Dangerous Weapons Bill: public hearings and deliberations

Meeting report

SA Hunters and Game Conservation Association (SAHGCA) submission
Mr Fred Campher, President of SAHGCA, appeared as representative for the biggest group of hunters and sport shooters in South Africa, which was established in 1949. There were 33 000 members, all of whom were paid members. The association acknowledged the rationalising purpose of the legislation but opposed the inclusion of firearms, the ambiguity in the definitions and the latitude of discretion afforded to law enforcement. In terms of including firearms, Mr Campher submitted that existing legislation was adequate for the needs of the Bill. The objects of the Bill explicitly stated that it sought to prohibit possession of firearms, and this appeared to conflict with the Firearms Control Act which allowed for lawful possession of firearms under certain circumstances.

It was submitted that the Bill’s purpose appeared to have changed over time. Although it initially sought to consolidate existing legislation, it now appeared to actively control possession of dangerous weapons, including firearms. This change had not formed part of the public consultation process, in which the SAHGCA had taken part, and carried implications for them and their members. The ambiguity in the definition of a 'dangerous weapon' would require interpretation from law enforcement officers regarding the nature of the object in question, and this should be curtailed.  The latitude of discretion required judgment and interpretation which could differ significantly from person to person and was dependent on training and experience, leading to inconsistent application of the Bill. It was submitted that SAPS did not appear to have sufficient capacity before the passing of this Bill, and that the Bill would overburden them further. Mr Campher gave an example of a member of SAHGCA, Mr Scott, who was violently robbed in a parking lot but when the police arrived he himself was arrested on the basis of his possession, albeit legal, of a licensed firearm. He was ultimately awarded R15 million for unlawful detention, and there were concerns that the wording of the Bill would serve to increase the number of such unfortunate incidents. In fact, it would make such unlawful detentions, lawful. The SAHGCA urged for greater caution.

Discussion
Ms Jenni Irish-Qhobosheane, Secretary of Police, said that the Department was already looking at definitions that may allay the SAHGCA concerns. There would also be an emphasis on training to ensure a higher degree of reasonableness.

Major-General Philip Jacobs, Head of Legal Services at SAPS, agreed that the definition of a 'dangerous weapon' would receive some attention and he proposed that exceptions be discussed with the Portfolio Committee. The relevant sections of the Firearms Control Act dealing with possession for an unlawful purpose would be amended so as to avoid conflicts. He conceded that the object of the Bill may have been adapted following referral to the State Law Advisors but that any changes would have been made so as to conform to the Constitution and to be more practical.

Ms M Molebatsi (ANC) asked SAHGCA to elaborate on their concern about the inclusion of the word ‘firearm’. She asked if the delegation had doubts that SAPS was capable of rationalising the Bill.

Ms D Kohler-Barnard (DA) referred to the example of Mr Scott, saying that it could easily become the norm. This was a common fear amongst the submissions and she asked if there was a suggested rewording of the Bill so as to mitigate such errors. Many existing Acts were not properly understood by officers and this was an enormous problem.

Mr M George (COPE) asked how the delegation expected the definition to be narrowed yet still prevent objects being used for unlawful purposes while still avoiding cases like Mr Scott’s. Firearms were very dangerous and he asked how they thought it could be left out.

Mr P Groenewald (FF+) asked if changing the definition to objects that have been ‘adapted’ as weapons would not be too wide.

Mr Campher said that SAHGCA did not expect things to remain the same, but they found it strange that two pieces of legislation could be in conflict with each other rather than complement each other. In terms of the definition, he suggested that it could rather say objects “used or intended to be used as a weapon.” There were circumstances where a stone would be more likely to cause harm than a firearm. In essence it was clear that a firearm could be a dangerous weapon but this possibility had already been adequately dealt with in other legislation and to include it in this Bill was superfluous and harmful. The Firearms Control Act provided for the legal possession of firearms, but this Bill prohibited possession of firearms, under circumstances which would arouse the suspicions of a police officer. He agreed that there were concerns that training would be concentrated in urban areas, but hunting and sport shooting occurred in rural areas. There would therefore be adverse selection of training in the Bill. The decisions officers would be required to take would be more complicated than those already before them, which they were apparently unable to cope with. The burden of proof would rest with the police eventually. However, while a court appearance was pending, an innocent individual could be languishing in a cell and suffer other implications such as loss of reputation and loss of business.

The Chairperson said that it would be preferable for an officer to be stopping and investigating people carrying weapons in suspicious circumstances, but it was imperative that the officers be properly equipped to judge on the basis of the situation.

Gun Free South Africa submission
Pastor Alan Storey, minister at Central Methodist church and Gun Free SA representative, welcomed the Bill and its purposes. He submitted that it would be highly irregular to exclude firearms from a Dangerous Weapons Bill, and argued that it complemented the Firearms Control Act rather than conflicted with it. He conceded that there was an overlap but not a negative one. Since the Firearms Control Act had come into effect, gun crimes had been reduced dramatically. Although it placed enormous pressure on those implementing it, it has been effective and a similar success was expected from this Bill. Many of the concerns about the Bill were based on 'intent of use' and ways of ascertaining this. It was proposed that mitigating misunderstanding could be achieved simply by members of hunting or sporting groups keeping weapons in designated armouries rather than in the care of individuals. Members could therefore check weapons out for use and check them back in, so as to place the onus on the organisation. This would mitigate the likelihood of accidents and misuse, as well as avoiding incidents of theft.

Gun Free South Africa furthermore called for an immediate ban on all replica and imitation firearms. In situations of threat it was impossible to distinguish imitations from genuine firearms. He argued that if the 'intent to use' was the focus of liability, then the nature of the object should not matter. However, he accepted that replicas or imitations could be possessed without unlawful intent, but that innocent parties would be unable to tell the difference. It was therefore proposed that they be banned outright so as to facilitate an assumption that any possession is automatically with an unlawful intent. The role of Parliament as to educate society and he asked that the Committee consider what kind of society they sought to establish.

Discussion
Mr George thanked Gun Free SA for its submission, but took issue with the proposed ban on imitations and replicas. He asked how this could practically be achieved, and referred specifically to the need for imitations used in television shows and movies.

Mr Groenewald asked how injuries and deaths arose from the use of imitation weapons and replicas.

Ms Kohler-Barnard said that many of the issues raised were already dealt with in existing legislation, especially safety requirements. As to the idea of painting imitations in different colours, there was no reason why actual guns could not similarly be painted. Imitation guns were frequently used in recreational activities. She asked what Gun Free South Africa thought of the section dealing with intent.

Mr V Ndlovu (IFP) said that items could not simply be banned because they were unfair to some people. There was an ongoing process of balancing interests. To say that manufacturers of imitations should be stopped was not giving due consideration for their interests and their role in the market.

Pastor Storey agreed that law was a process but that it had to start somewhere. Once the law was made, it had to be adhered to. He begged the question of what imitation firearms contributed to the wellbeing of the country. To suggest that people benefitted from them had never been a moral argument and could just as easily be applied to other dangerous items and substances. The 'intent' factor was subject to the judgment call of police officers, as with many other laws. To make it easier, he suggested that making imitations illegal would help to eliminate the question of intent. It would be preferable to have a police force that mistakenly arrested individuals who lacked intent, and be held liable for that, than to have one which failed to be vigilant and resulted in criminal violence. He agreed that imitations could not result in deaths but would result in fear crimes. The impracticality of a law should not prevent it from being passed; it should only aim to be right.

Ms Irish-Qhobosheane said that many issues had been raised which should rather be discussed in the context of the Firearms Control Act.

Legal Resource Centre submission
Ms Charlene May, Attorney from the Legal Resource Centre, explained that the LRC was a human rights and public interest law clinic. One of the focuses was gender based violence and especially the use of dangerous weapons in domestic violence. There was a regular use of common household items in the commission of often violent physical abuse, including bottles, cups, wood, belts and a porridge bowl. Although there was legislation dealing with this, such as the Domestic Violence Act, the majority of cases did not consider items other than firearms as dangerous weapons. The broader definition in the Dangerous Weapons Act should have led to more cases of the use of normal weapons being prosecuted. It was therefore proposed that the definition be broadened further to include any object made or modified to kill or cause harm or any object actually used for that purpose. This would include any object likely to cause harm if it were used for that purpose. Case law considers the nature and properties of an object in determining whether or not it could be considered dangerous. This would give clarity to the definition so that possession of any item that had characteristics likely to cause harm, along with the intention to cause harm would be prohibited. Personal safety should be a major concern and as far as possible, allowances should be made for items that are used for defence.

Discussion
Ms Irish-Qhobosheane reiterated that the definition was being looked at already, as was the issue of self-defence, and that she hoped that the outcome would satisfy everyone's concern.

Mr Ndlovu asked for clarity about the statement that a perpetrator using an ordinary item could not be charged.

Mr George said that when police arrived at a scene of violence they only removed firearms and not ordinary items for a reason. To say that every item in a household that could possibly be used for harm should be removed was far too unrealistic. To allow exceptions for items used for self-defence was problematic.

Mr Groenewald asked into which category of dangerous weapons a knife would fit, taking into account the wide range of purposes for which a knife could be used.

Ms May explained that the definition recognised not only items designed or adapted to kill or cause serious bodily harm, but those items that are merely used or intended for use in killing or causing serious bodily harm. Not all weapons used in violent crime were purchased specifically for that purpose; many were simply items that were close to hand at the time. The current definition would result in three distinct categories of items. First, those made for killing or causing serious bodily harm. Second, items adapted for killing or causing serious bodily harm. Finally, items neither made nor adapted for killing or causing serious bodily harm, but could do so if used with that intention. Clarifying these categories would assist law enforcement in judging whether the Act had been violated. when women were abused with everyday items, the only charge available to the police was assault and that this was often problematic. It would be better to have an alternative charge of possession available.

Mr George said that the extension of the definition to everyday items that could potentially cause harm was extremely problematic.

Ms Kohler-Barnard said that anything could be used to kill with, so it was clearly only relevant to discuss the intention with which it was used.

The Chairperson warned that the Bill should not be seen as attempting to prevent any potential crimes and should be realistic in its focus.

Presentation from the Parliamentary Legal Advisors
Ms Sue-Anne Isaac, Parliamentary Legal Advisor, began with the issue of the referral of the Bill to the House of Traditional Leaders. She explained that when Bills were tagged a decision was made whether or not this was necessary, and that during the public hearings it had become apparent that the Bill had implications for customary weapons. According to legislation, any Act pertaining to customs or traditions should be referred for comment. It was submitted that the definition of dangerous weapons had been extended to include customary weapons and that the Traditional Leaders should therefore be afforded an opportunity to comment.

The second point was discussed was the definition itself. The purpose of the Bill was to criminalise possession of a dangerous weapon with the intention to commit an unlawful act. However, the use of the words “designed as a weapon” did not conform to this purpose, as it relied on the intention of the manufacturer rather than the intention of the possessor. Ms Isaac finally observed that the Clause dealing with exceptions for gatherings of a particular nature should not be limited in its scope and should include all sporting or recreational gatherings.

Discussion
Ms Irish-Qhobosheane noted the issues raised, saying that many of them were already set to be discussed and revised, having been raised in previous submissions. She agreed that the issue of tagging would need to be discussed.

The Chairperson asked why only death and serious bodily harm were being considered in the Bill rather than objects that could be used in non-violent crimes like wire-cutters.

Ms Kohler-Barnard asked if cultural and traditional weapons would be exempt, and if that would circumvent the need to consult the House of Traditional Leaders.

The Chairperson asked how the Gatherings Act dealt with traditional gatherings.

Mr George said that there were many weapons used in rituals or for everyday traditions. He said that they were technically dangerous but they were not allowed to be used for such a purpose.

Ms Isaacs explained that there were Acts governing which Bills needed to be tabled before the House of Traditional Leaders. The Bill did not initially require this, but it now appeared that it did. The presence of an exemption did not mitigate this as the exemption itself would need to satisfy them. Ultimately it was for the committee to decide on whether or not to refer it.

Ms Irish-Qhobosheane said that the original Dangerous Weapons Act had a far broader definition of dangerous weapons so it should not be necessary to consult on the basis of a narrower definition.

Gen-Maj Jacobs explained the proposed changes to the Bill, having taken note of the public submissions. He commented that a lot of time had been spent on the definition of 'gathering' as included in the Regulation of Gatherings Act. There was an exception pertaining to gatherings "for cultural or religious purposes or historical enactments". However, he proposed that this exception be removed, as it was not applicable. The Regulation of Gatherings Act did not automatically include cultural gatherings and therefore the exception was unnecessary. The House of Traditional Leaders should not have to be consulted; as the nature of the weapon was not central to the Act so much as the circumstances for its possession.

The Chairperson ruled on the question of whether the House of Traditional Leaders should be consulted, saying that the Parliamentary Legal Advisors should meet with the Department and the Tagging Committee to decide once and for all if it would be necessary. As the Committee was set to finalise the contents of the Bill, she urged that this occur within the next 24 hours.

Proposed Amendments to the Dangerous Weapons Bill

Clause 1 Definitions
Gen-Maj Jacobs explained that it was recommended that the definition of a 'dangerous weapon' should now read "means any object, other than a firearm, capable of inflicting death or serious bodily harm, if it were used to commit an assault".

It was proposed that the definitions of "firearm" and "imitation firearm" be deleted

Clause 2  Prohibition of possession of dangerous weapon
The amendments proposed excluding imitations or replicas and rather criminalising the possession of a dangerous weapon under circumstances which may raise a reasonable suspicion that it is intended to be used for an unlawful purpose. There would be no specific mention of replica or imitation firearms.

Clause 3  Exceptions
This new clause would provide exceptions for pursuit of lawful activities, lawful sports or recreation and legitimate collection or exhibition of weapons.

Clause 5 Amendment of Regulation of Gatherings Act, 1993
This clause would no longer provide an exception for cultural, religious or historical purposes. This was seen as unnecessary given the contents of the Regulation of Gatherings Act.

Clause 6 Amendment of Firearms Control Act
This new clause would amend the Firearms Control Act so as to include airguns, deactivated firearms and muzzle loading firearms.

Discussion
Mr Groenewald, referring to Clauses 5 and 6, asked if it was appropriate to make an amendment to existing legislation via a Bill that was not directly amending the relevant Act. He wanted to know if individuals engaging in a protest would have to relinquish their firearms and said that this was unreasonable.

Ms Irish-Qhobosheane said that amending legislation through other legislation was a common occurrence and should not be seen as problematic.

Ms Kohler-Barnard raised concern over Section 2(d), saying that it referred to the context of drug dealing and organised crime. She said that it did not seem appropriate to specify particular areas of crime as it gave the appearance of having limited ambit. She also asked why lawful activities included sports and exhibitions but not traditional gatherings.

The Chairperson said that she did not feel that the definition of a 'dangerous weapon' was complete. It dealt specifically with assault but throughout the Act there were references to other crimes such as murder or unlawful purposes in general. She suggested using the Australian legislative method of narrowing the scope rather than using exemptions to do that. She also said that the long title would need to be modified.

Mr Groenewald said that the manner in which a weapon was carried or displayed should not be a consideration as it was very vague.

Ms Irish-Qhobosheane used the example of farmers demonstrating against farming regulations, and said that they would not be entitled to carry firearms even though it was a common tool of their trade
 in the interest of the general application of the constitutional right to unarmed protest.

Maj Gen Jacobs agreed that the definition of 'dangerous weapon' could be changed to deal with an intention to use for unlawful purposes rather than specifically for assault. There were existing prohibitions on other items such as housebreaking equipment. In terms of the impact on cultural weapons such as sticks, often used at traditional meetings, this was not prejudiced in any way because the possession was clearly not for an unlawful purpose. It was of utmost importance to look at the manner of possession. The police officer was in a position to exercise his discretion, and the onus would be on him to show that he had done so reasonably. The restructuring of Clause 3 to conform to the Australian model would be looked at as well.

Ms Kohler-Barnard mentioned amending existing legislation through a new Bill, saying that she did not think making direct changes to Acts was permissible without undergoing adequate public hearings.

Gen-Maj Jacobs replied that the hearings that had been held should be sufficient for that purpose and that the degree of the amendment was not so substantive as to warrant undue interference with prior legislation.

Clause by clause deliberations
The Chairperson repeated that the long title needed to be reworded to accommodate for the changes that had been made to the body of the Bill. She said that the preamble was derived from the Constitution and was acceptable.

Clause 1 Definitions
The definition was changed to say “an unlawful purpose” rather than “an assault”.

Clause 2 Prohibition of possession of dangerous weapons
Firearms, replicas and imitations were no longer alluded to in the title. The clause criminalised possession of a dangerous weapon in circumstances which would raise a reasonable suspicion of intention for use for an unlawful purpose. The Chairperson asked the committee to apply their minds to the factors used to assist an officer in forming such a suspicion.

Mr Ndlovu asked for “general behaviour” to be explained.

Gen-Maj Jacobs said that there had to be something negative about the behaviour of the person but conceded that “general” could be removed and this was agreed to.

Ms Kohler-Barnard complained about the “manner in which the dangerous weapon is carried or displayed”. She said that the definition of a dangerous weapon was anything which could cause harm, but also said that it was the intention with which it was possessed that made it dangerous. She said that this appeared to be problematic.

Mr Ndlovu asked what the sub-clause meant exactly.

Mr George said that the sub-clause was acceptable, as there were many items which were potentially dangerous but would not give cause for alarm unless they were carried in a particular manner.

Ms Kohler-Barnard asked if the manner in which the weapon was carried made it dangerous.

The Chairperson said that this was merely a factor used in determining the intention of the possessor, not part of the definition of a dangerous weapon at all.

Mr Groenewald said that sub-section (d) should include “and any other criminal activity” so as not to create loopholes.

The Chairperson asked if there were any other factors that could constitute a means test. She suggested that officers be required to allow a person the opportunity to give an explanation for their possession.

Ms Kohler-Barnard said that context was everything and that there was always the possibility that a threat was empty and not cause for prosecution.

Maj-General Jacobs said that there had been submissions relating to the provision of an explanation and that it was important not to violate anybody’s right to remain silence. For certain crimes, such as possession of stolen goods, an explanation could be required. It was suggested that one of the factors to be taken into account could be the explanation, if any, given by the person so long as the explanation was not obligatory.

The Chairperson and members agreed that as long as an explanation was not compelled, any explanation given should be used as a factor in judging intention so long as it was reasonable. She recalled a suggestion to include a section that prohibited possession of any dangerous weapons during a protest or strike of any kind. This was in light of the submission that stated that private bodies had to obtain interdicts against strikers in order to disarm them.

Maj Gen Jacobs opined that such eventualities were covered by the Bill and the Gatherings Act already.

Clause 3 Exceptions

The Chairperson asked if members were satisfied with the exceptions provided in Clause 3. Members agreed that “cultural and religious activities” should be included under Clause 3(b).

Clause 5 Amendment of Regulation of Gatherings Act, 1993
Maj Gen Jacobs reviewed the amendments to the Gatherings Act, saying that a punitive measure would be included for violation of the prohibition on possession.

Ms Kohler-Barnard asked if the wording in Clause 5(i) should not be changed from “shall be guilty of an offence” to “may be guilty of an offence” so that courts could be more flexible in determining whether or not the convener or marshal of a gathering is really liable for possession of dangerous weapons at a gathering.

Mr George expressed concern that the section signalled a return to common purpose law under which the perpetrator of the crime was not always the same as the person prosecuted for it.

Maj-Gen Jacobs said that the clause only permitted the prosecution of the individual carrying the firearm, not anyone around them. The convener would also be prosecuted but in a separate capacity.

Clause 6 Amendment of Firearms Control Act
Maj Gen Jacobs went on to explain that there would be five Dangerous Weapons Acts, dating from 1968 to 1982, repealed in whole. Section 120 of the Firearms Control Act would be amended so as to include muzzle-loading firearms, airguns and deactivated firearms. The exclusions were also included, relating specifically to sporting or recreational events.

He explained that the Bill memorandum had been modified so as to be more consistent with the application of the rest of the Bill. Various other sections would be aligned, taking into account submissions made at the public hearings.

Conclusion

The Chairperson said that the financial implications for the state needed to be amended and asked when an implementation plan would be ready.

Ms Irish-Qhobosheane said that the following week should see a draft on the table.

The Chairperson warned that the following week was the latest possible deadline and insisted that it be done by then if not before. After clarifying discussion the Department announced that here were no more issues they wished to discuss as arising from the public hearings. The Chairperson said that the matter of tagging and consultation with the House of Traditional Leaders needed to be clarified. Further, there was dire need for a comprehensive implementation plan to be presented to the committee in the following week before any final decisions could be taken.

The Committee adopted outstanding minutes from previous meetings. Meeting adjourned.