The Minister and Department of Police briefed the Committee on the Dangerous Weapons Bill, focusing on its background and objectives, and noting that this Bill sought to replace the various pieces of legislation that were aimed at curtailing possession of dangerous weapons, with a composite enactment. The Constitutional Court had found that the existing legislation lacked uniformity of application that was required by the Constitution. Key aspects of the new Bill included a comprehensive definition of “dangerous weapon”, a distinction between possession, and possession at a public gathering, and the introduction of the concept that a person could be prosecuted for carrying a dangerous weapon, or a replica or imitation where it was “reasonably suspected” that the individual intended to use this for an unlawful purpose. It was stressed that the Bill would not negatively affect the rights of private individuals to lawfully possess firearms, for reasons of safety, nor their right to demonstrate or protest, provided that they were not armed and dangerous. The Minister was empowered to grant exemptions in relation to cultural or religious gatherings. The drafters had specifically taken into account other legislation, the contents of other Acts, such as the Firearms Control Act, Regulation of Gatherings Act and prohibition on dangerous objects at schools. The clauses were explained in more detail. Financial implications related largely to the need to train SAPS officials.
The Committee Researcher then gave her analysis of the Bill, suggesting that the Committee may wish to address the definitions, which she submitted were overly-broad, and did not accommodate other categories of dangerous weapons, and said that the inclusion of some items and failure to define replicas and imitations should be questioned. She also expressed concerns on the use of the word “reasonableness”, and sought further clarity on clause 2, as well as the implication of this clause for legitimate sporting clubs and groups. She suggested that the Committee question the lack of alignment between the Bill and the Regulation of Gatherings Act, the reasons around prohibition of manufacture, sale or supply, suggested that sales to under-18s be prohibited, as in other countries, and thought the Bill would benefit from more specific prohibitions. Finally, she summarised some of the public concerns about the Bill.
Members requested clarification of the term “gathering” and examined the implications of the Bill upon martial arts, traditional ceremonies and traditional weapons instruction, expressed their concerns that it could open the door to abuse by police officials, and wondered if there should not be a focus on the nature of the gatherings rather than the weapons. Several Members did not think the definitions were necessarily improved, and said the problem lay in implementation rather than the legislation itself. They sought more clarity on the exceptions, the adequacy of the sentences, training, and how the Bill would be applied. The Committee adopted minutes and reports from November 2012.
Chairperson’s opening remarks
The Chairperson noted the topical public awareness surrounding sexual violence, saying that the problem went beyond any single department and that the deeper causes needed to be analysed and remedied.
Dangerous Weapons Bill: Minister of Police and Department of Police introductory briefings
Mr Nathi Mthethwa, Minister of Police, began his briefing on the Dangerous Weapons Bill (the Bill) by underlining that partnerships were vital to fighting crime. In the context of the present Bill, he observed some clashes in opinion between the police and the public that often manifested themselves during protest. The current legislation around dangerous weapons had many flaws, not least the lack of uniformity. The current Bill sought to address several objectives, including a prohibition on carrying dangerous firearms or replicas, or indeed any imitation, and regarding the carrying of such items as a crime where it was reasonably suspected that the individual intended to use them for an unlawful purpose. This would hopefully go to the root of the trend of violent crime throughout South Africa, and was consistent with the Constitution’s letter and spirit. It would not impact on the rights of private individuals to lawfully possess firearms for reasons of safety. He also noted that it would not adversely affect people’s rights to demonstrate or protest, but would emphasise that they had no right, in such circumstances, to be armed and dangerous. He emphasised that it sought also to avoid the situation where people would act with impunity and seek to escape justice.
Ms Jenni Irish-Qhobosheane, Secretary of Police, agreed that the Bill was an attempt to rationalise various other pieces of legislation. It had undergone an extensive public participation process and had received considerable legal attention, with constant consideration being given to self-defence of individuals and the protection of society as a whole. The Bill also gave provision for the Minister to promulgate notices for exceptions to public gathering restrictions for religious or cultural purposes.
Major-General Philip Jacobs, Head: Legal Services, South African Police Service, indicated that the Bill had been prompted by a decision in the Constitutional Court to the effect that the Dangerous Weapons Act No 71 of 1968 was found to be not of uniform application. The relevant section dealt with the imposition of minimum sentencing, and differentiated between the Transkei and other regions in the country.
It was also apparent that the Act was outdated and needed to be replaced by the new and constitutionally valid Bill. The use of dangerous weapons had already been criminalised, but the Bill sought to go beyond this and also to criminalise the mere carrying of such weapons. The Bill would supercede all existing legislation and provide for uniform application in the prohibition of possession of dangerous weapons, or firearms, and their replicas, with the intention of unlawful use. This was extended to objects likely to cause injury or damage to property.
The drafters of the bill had specifically taken into account the contents of other Acts, such as the Firearms Control Act that dealt with licensed firearms. The Regulation of Gatherings Act was amended so as to relax the prohibition on carrying dangerous weapons during public gatherings. The South African Schools Act dealt comprehensively with possession of dangerous objects on school premises, and therefore this area did not require specific attention by way of the Bill.
The definition in the Bill of a dangerous weapon was “any object, other than a firearm, designed as a weapon and capable of producing death or serious bodily harm.” Previous definitions had been too wide for legitimate application and could even have included a spade. Items such as pepper spray were manufactured specifically for self-defence and therefore were also not included. Clause 2 required reasonable suspicion of an intention to use the item for an unlawful purpose, as an element of the crime. Factors contributing to “reasonableness” included the manner of the possession, the general behaviour of the person and the place and time of the possession. This was not a closed list. Clause 4 amended the Regulation of Gatherings Act to provide for a prohibition on a wider range of items such as air guns, imitation firearms and any item likely to be mistaken for a firearm. It did not affect the possession of or carrying of a licensed firearm in the prescribed manner. Exceptions may be allowed under conditions such as cultural, religious or historical purposes, including re-enactments. Wording allowing the Minister to prohibit the manufacture and sale of dangerous weapons was excluded.
The publication of the Bill in the Gazette had elicited 2 300 public comments, as well as input from the National Prosecuting Authority. The State Law advisers were given credit for their input and efforts. The financial implications were that there would need to be training, but there were no other costs involved. The Bill would need to be dealt with in terms of Section 75 of the Constitution. It was not necessary for it to be referred to the House of Traditional Leaders, as it did not pertain to traditional law.
Ms D Kohler-Barnard (DA) requested clarification on the term “gathering”, saying that it could be extended to a group of people playing paintball or the practicing of martial arts with traditional weapons.
Ms D Sibiya (ANC) asked also about the use of traditional weapons at weddings.
Mr P Groenewald (FF+) expressed his support for prohibiting weapons at public gatherings. However, he noted that there was existing legislation giving effect to the same notion, and asked if this Bill was intending to repeal and replace such legislation. He expressed concern that the Bill could be open to misuse and would empower members of the police to make arrests without proper grounds. He asked also if the focus should not be on the gatherings themselves rather than the nature of the weapons. The original, wide definition had been suitable, given the range of items that were used to cause harm, such as tyres used for necklacing. He suggested that the problem would be better solved if existing legislation was better implemented, rather than through drafting new legislation.
Rev K Meshoe (ACDP) noted that during demonstrations, damage could be caused by many objects that had not been designed as weapons. He said that limiting the definition to “objects specifically designed to be used as weapons” thus would create a loophole. He suggested that the use of the word “weapon” be reconsidered, as it was not comprehensive enough to prohibit violence at public gatherings.
Mr V Ndlovu (IFP) raised the subject of the exceptions, and wanted more clarity especially in relation to traditional items like sticks, which could be used as weapons but were not primarily designed for that purpose.
Ms M Molebatsi (ANC) asked if the sentence of three years was considered sufficient. She also asked if the reference to training members of SAPS was intended to be additional to their ongoing training.
The Chairperson requested an explanation on the reasoning around granting permission for carrying licensed firearms. It was her understanding that there would be circumstances where even a licensed firearm could not be carried. She also drew attention to an alleged incident in Mpumalanga, where a taxi and its occupants were under fire from paintball guns and rubber bullets. She asked how the Bill would deal with such an incident.
Ms Kohler-Barnard asked if the Bill dealt with selling firearms as well as carrying them.
Minister Mthethwa reiterated that the presentation did not seek to deal with the substance of the Act so much as the harmonisation of various individual pieces of legislation. The definition of “gathering” included groups of more than 15 individuals and was extensive, but it was not a general term. As for use of cultural weapons like spears and shields, it was the intention of the possessor that was of importance. The possible abuse of the law by the police was a concern, and naturally such abuse would not be permitted where it was known. The inclusion of a degree of “reasonable suspicion” sought to curtail such eventualities.
Ms Irish-Qhobosheane noted that the limiting of the scope of items only applied to individuals. In the case of a gathering, any item that could be used for bodily harm was included. She was reluctant to suggest specific scenarios that would constitute exceptions, but said that weddings or cultural events would fall within the broad definition.
General Jacobs referred to the definitions in the Regulation of Gatherings Act, saying that these related specifically to protests, rather than social meetings. In terms of the correlation with the Firearms Act, he emphasised that the intention to use the dangerous weapon for an unlawful purpose contributed to the process of arrest. Sentencing of up to three years was consistent with the general principles. He referred to the Chairperson’s example, saying that the Bill was carefully drafted so as to take into account the emotional impact of an imitation firearm, and that the event constituted an unlawful act, namely assault, and would therefore be covered by the ambit of the Bill.
Reverend Moshoe drew attention to page 12 of the presentation, saying that the clause relating to assemblies and gatherings specified the possession of weapons, rather than items in general, and therefore excluded bricks and tyres.
Mr Groenewald maintained his opinion that a new piece of legislation was not necessary, and instead he other existing legislation could be amended, harmonised and made consistent. He also said that the Bill appeared to relate specifically to non-gatherings. He asked also about gatherings where the use of cultural weapons was being taught.
Ms Irish-Qhobosheane reiterated that where the Bill would be applied to gatherings, the definition would indeed be extended beyond weapons, so as to include any items that could be used to cause injury or damage.
General Jacobs said that intensive training of SAPS personnel would be necessary, but that it had been budgeted for and would form part of ongoing preparation.
The Chairperson noted that there should possibly be further exceptions for sporting events as well.
Committee Researchers’ analysis of the Dangerous Weapons Bill
Ms Nicolette Van Zyl-Gous, Parliamentary Committee Researcher, began her analysis of the Bill by discussing its purpose to regulate possession and use of dangerous weapons or analogous items. It included changes to definitions of dangerous weapons and made provision for arrests under certain circumstances. It was preceded by a draft Bill, published in September 2011, and a Constitutional Court judgment that ruled on uniformity of legislation. Major criticisms surrounding the draft Bill related to the right to security of the person and therefore it was decided to make an accommodation for self-defence.
She submitted that the definition of weapons in the Bill was too broad as it required that the item be designed as a weapon. It therefore did not properly accommodate other categories of dangerous weapons. She suggested that it should rather also cater for objects designed to injure, or ordinary objects modified so as to injure, and normal items, such as rocks that could still be dangerous.
Airguns had been included in the Bill, as had muzzle-loading firearms and replicas. She said that this was a puzzling inclusion that had to be questioned and clarified, although not necessarily challenged. Definitions of “replicas” and “imitations” were not included, and this should also be queried.
Clause 2(1) dealt with possession of a dangerous weapon and the conditions under which an arrest may ensue, specifically where there was reasonable suspicion of an intention to use the weapon for an unlawful purpose. It was suggested that clear examples and definitions of “reasonableness” should be requested from the Department. The appropriateness of the three year sentence should also be queried.
Clause 2(2) listed factors contributing to a reasonable suspicion, such as the time and place of possession and the behaviour of the possessor. Circumstances where possession was lawful should be requested, and questions could be raised about the adequacy of the list provided for unlawfulness. The implication of the clause for legitimate clubs or sports groups should also be carefully considered.
Clause 3 dealt with the repeal of all Dangerous Weapons Acts currently in force. Clause 4 amended the Regulation of Gatherings Act so as to include the prohibition of objects resembling firearms, as well as making provision for items used in cultural, religious and historical events. She suggested that the Committee may wish to seek clarity on the lack of alignment between the Bill and the Regulation of Gatherings Act, and whether or not it was intentional. The distinction between objects resembling firearms and those that were actually replicas or imitations should also be clarified by the Department.
Exclusions from the Act included the prohibition on manufacture, sale or supply of dangerous weapons. The previous Act had given the Minister a wide authority in this regard. She assumed that the exclusion was due to the lack of enforcement of the provision, but this should be queried. It seemed reasonable to regulate manufacture, sale or supply, as the proportion of society who held weapons for protection was below 5%, meaning that the majority of possessors intended to commit crimes.
Ms van Zyl-Gous drew a parallel to international legislation which included schedules of specific items that were designed to cause bodily harm, including knives, knuckledusters and ninja stars. These lists were extensive and allowed for flexibility of legislation. The Bill would benefit from more specific prohibitions, rather than being restricted to definitions. School Safety was not specifically dealt with in the Bill, but there was potential that the Committee could consider the issue. The Regulations for Safety Measures at Public Schools declared public schools to be zones free from dangerous objects. However, it excluded other institutions of learning, such as private schools. In the United Kingdom, sale of dangerous weapons to under-18s was prohibited, and she recommended that this should be done in South Africa too.
Over 35 written submissions on the Bill were received requesting that the Bill be withdrawn and not proceeded with. There were also 692 signatures on a petition. There were fears that the Bill sought to disarm citizens, weakened the right to self-defence and gave SAPS too much power in dealing with weapon-holders. The Legal Resources Centre argued that many definitions of dangerous weapons should take into account household items used in domestic violence, as well as traditional items used in industrial strike actions. Many other submissions also supported the broader definition for dangerous weapons in the Bill that included replicas and imitations.
The power derogated to SAPS officials to arrest on reasonable suspicion of unlawful intent was seen as being too broad, and the factors used in determining a “reasonable suspicion” should be widened. The implication for recreational use of weapons or replicas should also be considered. There were suggestions that clause 4, which dealt with exceptions, should specifically address sporting purposes. The same argument was made in favour of filming productions and hunting. The Legal Resources Centre advised comprehensive rewriting of the Regulation of Gatherings Act, and said that specific provision should be made for industrial strike action. The Gauteng Airsoft Club disagreed that replicas could be sold as self-defence weapons, as they were unsuitable for this purpose. A suggestion was also made that the use of dangerous weapons in a strike action should be listed as a specific offence.
Ms van Zyl-Gous, in her concluding remarks, highlighted issues of importance as including the definitions of dangerous weapons, the exclusion of replicas with distinctive markings, the possible excessive power given to police in implementing the Bill, the adequacy of factors used to determine reasonable suspicion, the infringement of the Bill on sporting activities, the inclusion of industrial strike actions in the Regulation of Gatherings Act, the possible reinstatement of prohibitions on manufacture, sale or supply of dangerous weapons with reference to a specific schedule, and the prohibitions on sales to minors.
Ms Kohler-Barnard raised concerns over the use of the word ‘intends’ in the act. In a situation where there were no witnesses, this could open the door for police officers to break the law but justify themselves by referring to their belief in the suspect’s intention.
Ms Molebatsi asked if a silencer constituted a weapon or an accessory to a weapon.
The Chairperson agreed with the possibility of misuse by the police. She said that the public had begun to lose faith in the ability of the police to protect them. Unless officers were properly trained in the content of the Bill, they would not be able to act correctly in dangerous or suspicious situations. However, it was also important that police officers be properly equipped to prevent crime rather than simply deal with crimes after the fact.
Ms Irish-Qhobosheane dealt firstly with the comment on strikes, noting that these were dealt with under the Regulation of Gatherings Act. She accepted the concerns of the Committee regarding abuse by the police, as well as fears that police would be powerless. She noted that the standard of a ‘reasonable person’ should be sufficient to curtail abuse. This was a legal term used by the courts to measure legality of behaviour and it was therefore central to the efficacy of the Bill that members of the SAPS be properly instructed in the meaning of this term.
General Jacobs agreed that the drafters of the Bill had taken cognisance of international legislation. The intention of a possessor to do harm was a term more instructive than trying to define the nature of the item the person possessed. He suggested more extensive exclusions for lawful activities such as sporting events. He emphasised the importance of determining the intention of the suspect as being crucial to empowering police and preventing violence.
The Chairperson asked that the suggestions made at this meeting be considered by the delegation.
Adoption of Minutes
Members adopted the minutes of 14, 21 and 27 November 2012. They decided that in the future, the weekly minutes would be adopted in the following week.
Adoption of Report on Northern Cape
Members briefly discussed and then adopted the report on the Northern Cape.
Committee Report on PSIRA engagement
Members adopted the Committee’s report on its engagement with Private Security Industry Regulatory Authority (PSIRA) at the end of 2012.
The meeting was adjourned.
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