Dangerous Weapons Bill [B37-2012]: Public Hearings

Meeting report

Chairperson’s opening remarks
The Chairperson noted that since the previous meeting there had been incidents that had again brought to light violence against women by their spouses or partners. Despite the existence of the Domestic Violence Act and the Dangerous Weapons Act, there were still repeated acts of violence committed by people who should have been disarmed after being reported. This was a matter that needed to be considered very seriously by the Department of Police, whom she requested to come up with suggested solutions, rather than reporting only on the statistics.

Knifemakers’ Guild of South Africa (KGSA or the Guild): submission
Mr Willie Venter, Vice-Chairman, Knifemakers’ Guild of South Africa, said that the Guild (or KGSA) was  an association of craftsmen dating back to 1980, which had played a pivotal role in developing an artisan industry in South Africa. It had six classes of membership and there were currently 121 members. The industry was served by a fast developing industry that manufactured specialised tools and equipment that were necessary to create unique knife products. This industry offered employment to hundreds of individuals. The main target markets were hunting, cutlery and collectors. The Guild was run according to a Constitution and Code of Conduct. There were no known incidents of criminal or culpable activity by any Guild members, nor problems associated with any products crafted by Guild members. The reason was that the products were high end, and carried a proportional price tag. They were also less readily available than standard weapons, such as knives, axes or pangas. The products were not acquired for illegitimate purposes, but were purchased by discerning collectors and hobbyists. KGSA had achieved international recognition and was regarded as a Guild of specialists. It was a proud and honourable institution and frequently took commissions for high profile manufacture, both domestically and internationally.

The first concern of KGSA related to the definition of a “dangerous weapon” in the Bill, which would bring the products of the Guild into the category of unlawful and dangerous. In its current form, the definition would unreasonably encroach upon the constitutional rights of the Guild members and any individual who purchased or possessed a product created by them. The Guild supported the concept of the Bill as a prudent piece of legislation. However, it asked that weapons posing no criminal threat should be excluded from its ambit. This would meet the goal of protecting the interests of the public, putting the public’s security above all else, as well as distinguishing objects which may be literally defined as weapons but were not designed to be used as such.

KGSA, in summary, subscribed to the proposal of the confederation of arms collectors (NAACCSA – see below) that the definition of “a dangerous weapon” should be amplified in order to restrict the application of the Bill to those objects designed or adapted for use as a weapon. None of the KGSA products were designed for this purpose and were primarily tools, for display or as investments. He reiterated that none of the products had ever been used in the commission of a crime. Although this may pose some practical difficulties for investigating officers, this also had a bearing on the contents of clause 2, in which a wide discretion was bestowed upon Police Officers to exercise their authority. KGSA also proposed that a stricter duty of care should be placed on such officers, so that an officer could make an arrest only where there was a reasonable and justifiable inference that a person possessed the item for an unlawful purpose. The training of officers did not lend itself to the interpretation of a wide and sophisticated discretion.

KGSA concluded that its suggestions were intended to give some guidance, and reiterated its request that the legislation be modified to recognise various accredited organisations such as itself, and exempt them from the ambit of the Bill, on the grounds that their products and their clientele did not pose a threat to society.

Discussion
Ms M Molebatsi (ANC) asked for advice on how the encroachment by the definition could be remedied.

Mr G Lekgetho (ANC) noted that the membership of the Guild was very exclusive, and asked about the demographic representation.

Mr V Ndlovu (IFP) asked for some clarity on some of the paragraphs in the presentation.

Ms D Kohler-Barnard (DA) asked if the Bill did not in fact already answer the objections that KGSA had raised. The Bill sought to protect citizens against being attacked, and therefore excluded weapons designed for self-defence. It therefore already required suspicion of intention to use the object for an unlawful purpose. She called for comment from the guild as to whether this would not already exclude  owners of Guild products which, by their own admission, could not be “reasonably suspected” as being used for an unlawful purpose.

Ms Molebatsi said that she had a further concern in that presumably the products produced by KGSA all  had sharp edges and were capable of maiming or killing. She asked if there was any procedure followed before selling a product whereby the Guild satisfied itself as to the purpose for which it would be used.

Mr M George (COPE) asked if membership of the Guild was permanent and if weapons sold to people were retained if their membership lapsed. He also asked whether the Guild took steps to ensure that its products were kept under safe conditions by the owners. If proper precautions were not taken, it was possible that they could be stolen or used by less savoury individuals.

Mr D Stubbe (DA) asked if it was correct that all members began knifemaking as a hobby, and later acquired the skill to be a Guild member. He also asked if anybody belonging to the Guild had to adhere to a particular standard.

Mr Venter said that the definition suggested was not intended to change the content of the Bill, but rather to provide clarity on those objects that were, for practical purposes, targeted by law enforcement agencies. The Guild did keep records of sales, and the products could only be purchased by those over 18. The three founding members were indeed hobbyists to begin with, but since the Guild came into being, many newer members had begun the profession from scratch. There were a small number of members but the Guild served a large portion of the community. It included previously disadvantaged individuals, many of whom were extremely well known. There were no restrictions on entry, although it was not a recognised general profession. In all cases, the products would not be left unattended by their owners and those purchasing the products would take precautions to keep them safe. Although these weapons technically could produce harm or death, they were neither designed nor purchased with that intention. In answer to Ms Kohler-Barnard, he noted that the wording requiring “a reasonable suspicion” amounted to a subjective test, and this could still put unwarranted pressure on citizens that was surely not intended. He suggested that a narrowing of this discretion would in fact aid in proper implementation and create certainty in the minds of both the officer and the citizens.

Major-General Philip Jacobs, Head: Legal Services, South African Police Service, agreed that his unit would re-examine the definitions and the discretion given to officers. As indicated in previous meetings, there was consideration being given to a special dispensation for hunting or sporting objects, and he hoped that this would go some way to remedying many of those concerns.

Gauteng Airsoft Club submission
Mr Alexander Matthew, Member of Gauteng Airsoft Club, explained that Airsoft, in South Africa, was a recreational activity where participants eliminated their opponents with small, round projectiles fired from imitation firearms. The game had originated in countries where gun ownership was prohibited, so the “weapons” were designed so that they could not fire proper ammunition. There were various game types, including historical re-enactments and military type scenarios. The projectile was non-toxic and non-metallic, and could not penetrate the body even when fired at close range. Its maximum range was 80 metres and the weapons themselves must be handled with care, as they were somewhat fragile. Safety was a concern, and participants and spectators must be briefed on safety regulations before every event. There was a code of conduct on the field that mirrored the responsible use of actual firearms. The Club had more than 1 500 members and games were hosted almost every weekend with up to 180 participants. The Club supported SAPS in that it did not endorse displaying or carrying airsoft weapons in public. These items were replicas, but, due to their price levels, they were not readily available and were therefore not within the price range of the average criminal.

Mr Andre Du Plessis, Club member, then summarised concerns and recommendations from the Club. It was concerned, firstly, with the definition of a firearm as including imitations and air guns. This failed to distinguish between different kinds of air guns, and treated high energy air guns in the same way as low level ones. Air soft guns were not high-energy. The Club recommended that the definition exclude devices in the nature of an airgun, where the trajectory was fired at less than 2.3 joules. The concept of imitation firearms, as defined by the Bill, covered anything that appeared to be a firearm but was not capable of behaving as one. It was proposed, therefore, that a further test be used to determine which items were mere imitation guns. This should include an examination of the device and its contents, including the magazine. Such an examination would make it clear that airsoft guns were not sufficiently similar to actual firearms as to warrant the term ‘imitations’.

Clause 2 of the Bill discussed factors that may be used by an enforcement officer to determine whether an item was intended to be used for an unlawful purpose. It was suggested that this section be amplified to take into account the colour of the item, which may identify an item as an airsoft gun, and an inspection of the magazine in relation to the type of magazine used.

The Club made a further recommendation regarding the regulation of gatherings, requesting that a specific reference be made to sporting activities, in the Regulation of Gatherings Act. This amendment would not harm the overall purpose of the Act, but would help to distinguish those gatherings that were purely recreational and carried no political purpose.

In summary, the concerns of the Club stemmed not from the intention of the Bill, as it recognised the Bill as a necessary safety measure, but rather from the fact that an airsoft player on his way to or from an event could be in contravention of the law simply by possessing the tools of his hobby.

Discussion
Ms Kohler-Barnard observed that the examples given were clearly distinguishable from dangerous weapons. She emphasised that protection of the citizens was paramount and that unintended consequences for sporting groups should be avoided where possible. She noted that there was a separate definition of ‘gathering’ and this could clarify the issues.

The Chairperson referred to an incident in Mpumalanga where similar weapons were used to attack people, so it could not be denied that such weapons were open to abuse. She would be concerned at meeting an airsoft player in camouflage with an imitation weapon, and whether or not another person might see her fear as unwarranted, she would certainly want the police to be able to take action. She pointed out that the Bill was not attempting to criminalise the possession of weapons, but was prohibiting the use of the weapons for an unlawful purpose. However, she remained concerned that these items could easily still be used for this purpose, and SAPS should not be hidebound by the legislation in such instances.

Mr Du Plessis reiterated the Club’s full support for prohibition of the use of an imitation weapon to commit an unlawful act. The Club was asking that the ordinary use of the weapons for sporting purposes should not be curtailed. The proposed amendments would not impact on the authority of an officer to act where such an imitation was sighted at a gathering, but the amendments suggested by including caveats or sporting activities would spell out the officers’ duties more clearly should he seek to apprehend someone who was returning from a sporting event and was still in peaceful possession of his weapon.  

The Chairperson said that whether or not a weapon was an imitation or an actual gun was not always relevant to the lawfulness of possession. It was possible for a crime to be committed using an imitation, so even where a SAPS officer could establish that the weapon was not a proper firearm, that would not necessarily allay concerns about the way in which it might be used.

Ms Jenni Irish-Qhobosheane, Secretary of Police, raised the point that the colouring of the gun would not be effective in distinguishing it from an actual firearm, as the latter could always be spray-painted.

General Jacobs explained that the definition of ‘gatherings’ applied specifically to the discussion or criticism of political parties or decisions, and therefore would not extend to sporting or recreational groups. Supporting the concerns of the Chairperson, he read out an extract from a police report relating to an incident where a robber was apprehended whilst in possession of a toy gun. He agreed that it was not so much the nature of the gun, but the motive for carrying it that was relevant. Driving at night, wearing camouflage outfits, and carrying an imitation gun, would be regarded as a suspicious activity, even if further investigation might show it to be harmless. There were ways to mitigate risk, such as keeping the guns in bags, and taking precautions to reduce police suspicion.

Mr Du Plessis agreed that actual firearms could easily be painted to appear harmless, which was why the Club advocated a closer examination to determine the nature of the weapon.

National Arms and Ammunitions Collectors Confederation of South Africa (NAACCSA)
Mr Carvell Webb, Chairman, NAACCSA, explained that his Confederation supported the overall purpose of the Bill, but believed that the Bill could be refined. He briefly introduced NAACCSA as an umbrella organisation for accredited collectors associations. There were 2 149 member in the various member bodies, which had remained fairly static over the last few years, which was an indication that membership was not easily attainable. The organisation stood for the promotion of collection and preservation of collectible arms, ammunition and related artefacts, for purposes of historical and academic significance. The bulk of these items were held in private hands rather than by museums, due to the costs involved. The sum total were estimated to be worth about R1 billion, with individual items worth up to R1 million, and these formed a substantial part of South Africa’s heritage.

The Confederation was chiefly concerned with the effects of the Bill on artefacts such as collections of rifles, World War paraphernalia, Colt revolvers, bayonets, muzzle-loaders, Japanese swords and pistols. Many of these items had extremely high value to collectors. They often need to be transported either between collectors or to events. The Bill, in its current form, would have the unintended effect of bringing such collectors into contravention of the law.

The Confederation proposed that the definition of “a dangerous weapon” should only apply to objects designed or adapted for use as a weapon, and capable in inflicting death or serious bodily harm. It was accepted that many artefacts were designed both as weapons and as tools, such as axes or ceremonial swords. However, at face value and upon superficial examination, non-dangerous weapons were indistinguishable from dangerous weapons.

The second issue related to imitation firearms and replicas. “Imitations” meant having the appearance of a firearm, but not being capable of acting as such. However, “replica” had two meanings. The first, as contained in the Firearms Control Act, dealt with fully functioning firearms. The second, now included in the Bill, considered a replica as analogous to imitations that were in fact harmless. NAACCSA suggested that the definition in the Firearms Control Act be changed so that it would be stated to apply to “reproductions” rather than “replicas”. The definition in the Bill should relate to “replicas”.

The Confederation also had some concerns around the application of clause 2 of the Bill.  The circumstances under which a reasonable suspicion could be entertained were too vague. The clause was also internally inconsistent, since it mentioned a “suspicion” as well as an “intention”. It was submitted that law enforcers were allowed undue discretion. A more rigorous definition would require a reasonable and necessary inference, a reasonable conclusion (or even a conclusion beyond reasonable doubt) before an officer could properly act. All three options carried various degrees of legality and could be easily interpreted, and all were more robust than the current wording of the Bill. An officer would have apply his/her mind to a set of circumstances, so as to avoid misapplication of the Bill.

Discussion
Mr Ndlovu asked about the second proposal for the rewording of Section 2, asking who would be able to understand it better.

Ms Kohler-Barnard observed that there were any numbers of objects that could be, and often were, used for violence although they were not designed for that purpose. Whilst she accepted that there could be unintended consequences to legislation, this Bill was not seeking to impact in any way on the practices of NAACCSA collectors. She foresaw a problem in attempting to distinguish between items such as those collected that were not intended to be used as weapons, and items such as bricks or other everyday implements that were not designed as weapons but that were used in the commission of crimes.

The Chairperson agreed that the proposal was problematic. A refined definition as suggested, that would exclude objects designed or adapted so as to cause harm, could also exclude spades or picks, as well as the NAACCSA’s specialised items. She cautioned against oversimplifying the issues, saying that the emphasis should be on the intention behind the possession of an object, rather than the nature of the object itself.

Mr Webb highlighted that, although it was true that almost anything could be used as a weapon, the mere possession of these objects should not automatically imply criminal intent. It would be more helpful, in his view, to focus on whether such everyday objects had been adapted to suit a criminal intent in one way or another. Officers had to be trained to apply their minds better to ambiguous situations. The current wording of the Bill would not necessitate this, to the same extent as the Confederation’s suggested standards of reasonable inference. Officers should be required to take into account the possibility that the possessor had legitimate reasons for possession. The suggested amendments imposed stricter legal duties on police officers and supported the rights of innocent civilians. However, very legalistic wording would often be beyond the interpretation of the average man, which was why less stringent wording was also suggested. Decision on “reasonable doubt” vested in the courts, but officers should also be compelled to apply proper standards to their suspicions before acting.

Mr Ndlovu asked what would happen if the individual was not clear on the requirements of the Bill.

Mr Webb agreed that the wording of the Bill needed to be accessible, so that each individual knew of his or her rights. If an officer had suspected the person, s/he should be able to insist on corroborating an innocent intention before being arrested. The existing checklist was indicative, but not exclusive, and should be extended.

Cape Bar Council submission
Advocate Pete Mihalik, Representative, Cape Bar Council, noted that the teleological purpose of the Bill was sound and it had a valid historical basis. Section 12 of the Constitution provided the right to freedom and security of a person. SAPS had a positive duty to protect people from individuals possessing dangerous weapons. The right to assemble was also protected, provided that the assembly was unarmed and peaceful. The Constitution included a limitation clause to establish the justifiability of a particular limitation on the rights of the individual.

The Bar Council supported the wide definition of the Bill, especially taking into account the range of items which could conceivably be used to cause harm. It also supported the “reasonable suspicion” criterion, as this was an objective test based on cumulative factors, rather than a subjective one. However, the Bar Council wanted to stress that there was a Constitutional right to adequate legal representation, and in the event of an officer’s suspicion, the individual in question should be permitted, if not compelled, to explain their behaviour, as this may reduce reasonable suspicion. It was suggested that the list of factors to be considered in accumulating a reasonable suspicion should conclude with the words “ any other relevant factors.”

A number of other pieces of legislation were highlighted in which it was made clear that criminal liability arose not from the nature of the item used, but the manner in which it was used, and whether or not it created the threat of, or actual harm. The Bar Council believed that the Bill created a sufficient check list against which police officers could satisfy themselves, before arresting. The Bill could not be applied arbitrarily, and had to serve the interests of the public.

South African Wingshooters Association submission
Mr Andre van de Westhuizen, Chief Executive Officer, South African Wingshooters Association, gave some background into the organisation. It served primarily as a game hunting body, and formed part of a R400 million industry. Activities were never conducted solo, and were open to any who wished to participate, but they did involve the use of weapons. The main concern arose over the factors taken into account by a SAPS official, when forming a reasonable suspicion of unlawful intent. Due to the group nature of wingshooting, their activities were often manifested in gatherings with weapons present, and could be close to public roads. An amendment was requested to clause 2 that would exclude legal hunting of any sort.

Martin Hood and Associates submission
Mr Martin Hood, MJ Hood and Associates, said that his submission was delivered on behalf of a number of stakeholder bodies. They believed that the legislation was potentially extremely problematic, despite being a vast improvement on previous measures. The focus on conduct and circumstances meant that SAPS would rely on their discretion, and this was not always a good indicator, especially when it might not be guided by strict policy. There was a need for police officers to be properly trained in Constitutional rights.

The organisations that he represented wanted the definition to be expanded as it was considered too restrictive, and excluded everyday items that could be used for criminal purposes. It was suggested that wording be inserted to make it clear that the item was intended to be used as a weapon. He agreed that the Firearms Control Act should be amended, and supported the proposed amendments from NAACCSA.

Mr Hood commented that the discretion afforded by clause 2 was a necessary evil, but all elements of subjectivity needed to be eliminated. This was of critical importance, but difficult to achieve. Policy guidelines should seek consistency of application. It was suggested that there be a change in terminology in the Bill so that the phrase “may give rise to a reasonable suspicion” was amended to “does give rise to a reasonable suspicion.” This would warrant a greater degree of consideration by officers.

Suggestions were also made surrounding the circumstances under which possession should be prohibited, such as illegal gatherings, public marches, protest actions on private property, and during any organised union or labour activity. This would be consistent with Section 17 of the Constitution. Security industry members should also be exempted from the Bill as their legitimate employment activities necessitated possession, under what may be considered suspicious activity. The rationale for the proposals, as stated at the end of the Bill, was misleading and might cause confusion during the course of a prosecution. It was stated that the objectives included prohibiting the possession of dangerous weapons, firearms, replicas and imitation firearms in public. However, the Bill made no clear distinction between legitimate and illegitimate possession of such items in public. This seemed to conflict with the actual purpose of the legislation, which pertained to unlawful intention rather than mere possession. He also emphasised the need for exemptions for historical enactments, filming activities and hunting and competitive shooting events.

Discussion
Ms Irish-Qhobosheane agreed that the definitions needed to be looked at again, and that the conflict in the rationale for the Bill, as included in the Memorandum on the Objects, needed to be corrected. Many of the other concerns over filming, security and sports were covered already in the responses given earlier by General Jacobs.

Ms Kohler-Barnard expressed concern with the definition proposed, as it appeared to be a reversal of later arguments. She emphasised that intent was the defining aspect of possession, and that a blanket exemption for certain classes of people would be too simple.

Mr Hood agreed that there may appear to be some contradictions, but his suggestions sought to accommodate both the intention of the possessor, and the possibility of a normal item being used for a criminal intent. He said that he was not convinced by the factors listed as assisting police officers in forming a reasonable suspicion. The officers should be compelled to take into account explanations given by individuals and should be trained properly in the rights of the individual to legal representation.

The Chairperson gave an assurance that the legislation would not be passed before an implementation plan, including training, was checked.

South African Catholic Bishops Conference (SACBC) submission
Advocate Mike Pothier, Research Coordinator, South African Catholic Bishops Conference noted that the SACBC presentation  was motivated by general concern about the safety of the public and the increasing threat of violent crime. There were two main queries raised in the submission. The first related to the ambit of the factors used in establishing unlawful use. It was submitted that qualifying this clause with exemptions was a clumsy and inefficient method to use, as it did not account for innocent activities that later might develop into violence. If the clause was amended so as to take into account the behaviour or intent of participants in gatherings, rather than focusing n the nature of the gathering, it would be an improvement.

Adv Pothier also questioned why the legislation had not been placed before the National House of Traditional Leaders, as it would seem to have interests that were directly influenced by the Bill.

Discussion
Mr Ndlovu asked how the behaviour of an intimidator could be judged, and commented that it was very difficult for a police officer to assess this and it may in fact lead to discrimination or abuse.

Ms Kohler-Barnard admitted that she had not considered instances where cultural weapons at cultural events turned into dangerous weapons used for criminal purposes.

The Chairperson said that these issues were dealt with in the Regulation of Gatherings Act. She cautioned Members not to fall into the trap of going beyond the purposes of the Bill.

Ms Irish-Qhobosheane said that the Bill was clear in using the nature of intent behind the possession as decisive, rather than the context of possession. If a cultural event turned violent, it would no longer be subject to an exemption. In answer to the second question, she said that SAPS had been advised that the Bill did not need not be placed before the House of Traditional Leaders. Such referrals must take place only if the Bill related to customs or customary law, and this was not the case with this Bill.

General Jacobs said that the examples given to the Committee came from Australian legislation. They would also take care of the concerns around workers in the security industry.

Advocate Pothier said that while the legitimacy of an assessment of a policeman as to the intentions of an individual would be subject to court approval, it was still desirable to use clearer language in the Bill, so that it was less likely that mistakes could be made regarding the use of a weapon for intimidation.

Mr Gerard van Onselen submission
Mr Gerard van Onselen, making a submission in his private capacity, said that many of his concerns had been dealt with already. However, he reiterated that the wording of the Bill appeared to unnecessarily curtail the ability of citizens to protect themselves. Although he accepted the possibility that the Bill may use technical language and did not in fact have this effect, it was still ambiguous for many members of the public. He questioned whether “reasonable suspicion” would be sufficient to institute a prosecution, as this fell short of proof of a crime. He also questioned how the prosecution could prove a crime beyond a reasonable doubt, on the basis of a mere suspicion. He believed that there should be ample evidence of actual unlawful intent, rather than mere possession. Many crimes were more specifically outlined in other pieces of legislation, and this Bill was too vague in what it was criminalising. He urged that the possession should not be prosecuted, but rather the use, but said that the use of dangerous weapons was already dealt with elsewhere. He was also concerned that the fear of wrongful arrest or prosecution would lead to fewer citizens protecting themselves, exposing them to violent crime. He asked that consideration be given to measures to prevent unlawful arrests. He requested that the Bill be reworded to clarify precisely what actions were being criminalised, and under what circumstances legitimate activities would remain permissible. He asked also that the possibilities for corruption and misapplication be addressed.

Discussion
The Chairperson reassured Mr van Onselen on the purpose and application of the Bill.

Ms Irish-Qhobosheane said that the blanket prohibition of the Bill only related to gatherings, and all other situations would be decided on the intention of the possessor. She clarified that police officers would only be making arrests on the basis of their reasonable suspicions, and that the actual prosecution would take into account other factors. She raised a concern over the suggestion that legislation should attempt to cover the police acting unlawfully and commented that it would be a dangerous route should this Bill attempt to take into account the possibility of corrupt application. Although such corrupt actions would of course lead to sanctions, it would be a mistake to try to legislate for such eventualities.

General Jacobs referred to the Firearms Control Act, saying that the offence of possession of a dangerous weapon was already in the law and that the Bill merely sought to bring consistency to the matter. An implementation plan had been drafted, and he requested an opportunity to present it.

The Chairperson thanked the various delegations and the Committee Members.

The meeting was adjourned.