The Department presented the amended wording of the Bill clause by clause for the Committee’s approval. The Committee was by and large satisfied that the issues raised in public hearings had been dealt with and that there was no longer concern over the scope of discretion afforded to enforcement officers. It was queried whether the influence of drugs or alcohol should be specifically factored in, but it was shown that this was tacitly included by the broadness of the means test. Members requested that the means test not presuppose that an object constitutes a dangerous weapon until the nature of its possession is known. In the event of a gathering in which individuals possessed items such as sticks or crutches which served cultural or practical purposes, the Department conceded that officers on the scene would be required to use their judgment in assessing whether these objects posed a potential threat.
The Committee was satisfied that referral to the House of Traditional Leaders was not necessary and that the Bill had been tagged correctly. There was an outstanding concern about the reference to “incidental costs” in educating the public and police officers about the Bill. The Committee emphasised that officers and the public at large needed to be fully versed in the contents of the law and this would incur more than “incidental costs”. The Department was unable to provide an implementation plan as had been requested earlier and the Committee was highly displeased. It said it was prevented from voting on the Bill until that was redressed. It was agreed that the Minister of Police and the Speaker would be written to on the matter.
The Chairperson opened by mentioning a few high profile cases of police officers allegedly abusing their authority and brutalising citizens. She said the Committee had worked hard over the past two months in pushing the Dangerous Weapons Bill forward, but that a fish should not be congratulated for swimming. There was still an enormous amount of work to be done. She mentioned also the problem of DNA kits expiring and holes in the SAPS services. She had written to the National Commissioner demanding answers to a series of questions, the deadline for which was 8 March. She said that there would be more intensive oversight over the SAPS in the future and that meetings would be scheduled to that effect.
Proposed Amendments to the Dangerous Weapons Bill: presentation by SAPS
Major-General Phillip Jacobs, Head of Legal Services at SAPS, went through the clauses showing the drafting of proposals suggested by the Committee in a previous meeting.
He noted the new wording of the Bill’s Long Title which made no reference to firearms or replicas.
Mr M George (COPE) asked for assurance that it was proper for sections of the Regulation of Gatherings and Firearms Control Acts to have been repealed or amended by this new Act.
Maj-Gen Jacobs said that where an amendment was made so as to promote consistency, this should not be an issue. He listed many examples of legislation being amended for this purpose through other pieces of legislation.
Clause 1: Definitions
Maj-Gen Jacobs then said that the definition of “dangerous weapon” had been changed to mean any object, other than a firearm, capable of inflicting death or serious bodily harm, if it were used for an unlawful purpose. The other definitions, for firearms and imitation firearms, were excluded altogether.
Clause 2: Application of Act
Clause Two now dealt with the application of the Act, which excluded possession in pursuit of lawful employment, duty or activity, during the participation in any religious or cultural activities, lawful sport, recreation or entertainment and the legitimate collection, display or exhibition of weapons.
Ms D Kohler-Barnard (DA) asked if the exemption for collection and display would also extend to collectors who were transporting weapons to and from exhibitions.
Maj-Gen Jacobs said that the possession of permits for that purpose should be sufficient in such a situation.
Clause 3: Prohibition of possession of dangerous weapons
This clause no longer made reference to firearms, replicas or imitation firearms. Clause 3(2)(b) referred to “behaviour” rather than “general behaviour”. Clause 3(2)(d) was amended to no longer refer only to specific crimes such as gangs, but also to any other criminal activity. Clause 3(2)(e) also compelled officers to take into account any other relevant factors, including any explanation provided by the person for his or her possession, so long as the person was not obliged to provide an explanation.
Ms Kohler-Barnard asked if the influence of alcohol or drugs could be used in considering intention.
Maj-Gen Jacobs said that the inclusion of “any other relevant factors” as well as their overall behaviour should cover that consideration.
The Chairperson asked how the clause could make reference to a “dangerous weapon” rather than an “object”. She said that the question should rather be whether or not the person was likely to use the object as a dangerous weapon.
Maj-Gen Jacobs said that there was no objection to using “object” but said that the factors were rather serving the purpose of assessing intention than describing the object itself.
Mr V Ndlovu (IFP) agreed that by not referring to the object as a dangerous weapon already there would be an added means test for officers to rely upon.
Mr George said that it was better to change “dangerous weapon” to “object”.
Mr G Lekgetho (ANC) asked if the use of liquor could be included in assessing the behaviour of the person.
The Chairperson said that being under the influence of alcohol was already tacitly included in the Act.
Clause 5: Amendment of Regulation of Gatherings Act, 1993
Maj-Gen Jacobs said that Section 8 of the Gatherings Act would be amended so as to prohibit any participant at a gathering from possessing any airgun, firearm, muzzle loading firearm or imitation firearm or an object likely to be mistaken as such. They would also be prohibited from possessing any objects defined as a dangerous weapon in the Dangerous Weapons Act.
Ms Kohler-Barnard asked about a person in a gathering who required the use of a walking stick. This object would fit the definition of a dangerous weapon. She asked if mere possession would be a crime or only when it was used for a criminal purpose. She asked who would be held responsible for this and expected to disarm the person. What amounted to reasonable steps that convenors and marshals were expected to take to prevent possession?
Maj-Gen Jacobs replied that in many such situations, officers had to make a judgment call. Often the only thing to be done was to take footage and seek prosecutions after the fact. The police probably would not act before violence erupted. The context of the Dangerous Weapons Act would aid in the application of the clause, saying that a person using crutches or a walking stick would probably not be assumed to have an unlawful intention. He said reasonableness meant “what any reasonable man could be objectively expected to have done in the same circumstances”. This probably would amount to warning the persons in possession, making an attempt to dissuade them from remaining armed and whatever else was deemed necessary.
Mr George asked if protesters carrying sticks would be arrested even if those sticks were normal accessories according to their culture.
Ms M Molebatsi (ANC) asked how an officer would prove that there was intent to use the objects for an unlawful purpose.
Maj-Gen Jacobs said that a peaceful protest that happened to include sticks would probably not lead to prosecution. However, if the protest turned violent and participants began to use normal objects as weapons, the Act would empower the state to prosecute more effectively. In terms of the intent of an individual, the arresting officer would have the onus to prove that he had a good reason to suspect an unlawful intention and that there would be many factors informing his suspicion.
The Chairperson said that there would be predetermined conditions for a protest before permission was granted and that this would inform the scope for participants to be carrying objects, such as sticks or crutches which might be deemed weapons.
Mr Ndlovu said that to expect individuals not to be armed according to the definition of the Act was unreasonable. There were many people who may be involved in a protest who were habitually in possession of sticks, not as weapons but in the course of their usual behaviour. He asked if they were expected to leave their sticks behind in the same way that farmers were expected to leave behind their farming firearms.
Maj-Gen Jacobs sympathised with this, but said that habits should not be used as an excuse to hide dangerous behaviour. Although there were often individuals carrying sticks, as they did every day, many of them were also armed with “loaded sticks” that were actually weapons. He said that at the end of the day the general principle behind an unarmed protest had to be upheld.
A further amendment to the Regulation of Gatherings Act was the inclusion of a fine or imprisonment not exceeding one year for the contravention of the Act referred to in Section 12(1)(a-j). There would also be a fine or imprisonment of up to three years for the contravention of the Act as referred to in Section 12(1)(k).
Clause 6 Amendment of Firearms Control Act, 2000
Section 120 of the Firearms Control Act would be amended so as to include as an offence the possession of any firearm, airgun, deactivated firearm, muzzle loading firearm or imitation with intent to commit an offence, or to resist or prevent arrest. The same list of factors used in establishing reasonable suspicion of such an intent that had been outlined in Clause 3 of the Dangerous Weapons Bill would also be included. The exemptions found in the Dangerous Weapons Bill were also included. There was a technical omission of the factor permitting a person to offer an explanation for possession. This would be remedied.
Memorandum on the Objects of the Bill
Maj-Gen Jacobs said that the Short Title of the Act had been changed to reflect the proper year. The Object of the Bill was amended to state that it sought to prohibit the possession of dangerous weapons under circumstances which may raise a reasonable suspicion that the person intended to use to for an unlawful purpose. Paragraph 3.2.1 summarised Clause 3 as criminalising possession under circumstances which may raise a reasonable suspicion that it was intended to be used for an unlawful purpose. Paragraph 3.4 no longer included exceptions, as these were dealt with elsewhere. Paragraph 3.5 stated that the Firearms Control Act would be amended so as to contain the same provisions as the Dangerous Weapons Bill but in application to firearms and analogous weapons. Paragraph 5 now included that the Portfolio Committee had required a full implementation plan to be submitted setting out the cost implications.
Ms Kohler-Barnard said that Paragraph 5 referred only to “incidental costs” for informing police officers about this Bill and said that this would not be sufficient. There were major concerns over the potential for abuse and said that there would need to be more intensive training.
The Chairperson agreed that the costs would not be incidental and that the costs involved would be central to the efficacy of the Act’s application.
Maj-Gen Jacobs revealed that the implementation plan was meant to have been ready for presentation to the Committee and said that he had gone through all the correct channels but that the National Commissioner had not cleared it yet and it was therefore not available. He apologised.
The Chairperson said that this delay was unacceptable and that there had not been proper communication on the matter. The Bill should never have appeared without the implementation plan. She was very disturbed by the failure to produce it after more than adequate notice. She asked the Committee for advice on how to deal with the blatant disregard for procedure.
Ms Kohler-Barnard said that the wording of the sentence describing the costs involved as ‘incidental’, was very concerning. Educating the public and police officers was a crucial component of the Bill and this needed to be handled as a matter of urgency.
Mr George said that the Committee had a few options. To begin with, the Committee had sacrificed a great deal to ready the Bill for passing but without the police taking it seriously, there did not seem to be a point. His first suggestion was to call the National Commissioner to the Committee and inform her of their disappointment and the urgency of the Bill. His second notion was to write to the Minister and the Speaker and inform them of the issue, but he believed that the Commissioner should be given an opportunity to explain first.
Mr Ndlovu said that he had a problem with calling the Commissioner when she knew what was expected of her already. The Minister should be contacted instead, and that the Speaker should be informed that the Ministry was not cooperating. He excused Maj-Gen Jacobs from culpability, saying that he had done everything within his power.
Ms Kohler-Barnard said that the Speaker and the Minister should be written to and that it should be made clear that the Commissioner was responsible.
Ms Molebatsi agreed.
However, Mr Lekgetho seconded the motion to afford the National Commissioner an opportunity to explain before approaching her superiors.
Mr Ndlovu said that the Minister was ultimately responsible, and that he had been the liaison with the Committee when they had warned that there would be financial implications. Although it may be the Commissioner’s fault that this had not been properly considered, she had never been approached by the Committee for the purpose of compiling the Committee Report on the Bill, but the Minister had and therefore he should be contacted.
The Chairperson said that she would write to the Minister and the Speaker to inform them of the Commissioner’s failure. The request to the department for an implementation plan had been made in front of the Minister. The lack of respect for the Committee in failing to produce not only the report, but also a letter of apology, was unacceptable. It was the latest in a series of failures by SAPS to produce documents on time. She promised to be diplomatic but she said there was an obligation to inform the Speaker. She told Maj-Gen Jacobs that the Committee would only accept the implementation plan by day end, as per the seven-day rule for submission of documents prior to the following week’s meeting.
Ms Sue-Ann Isaac, Parliamentary Legal Advisor, advised that the amendment accepted in the previous week excluded areas related to tradition communities and cultural communities. Specifically, the definition previously referred to objects designed as weapon, but now included almost any object. This broadness excluded the need for consultation with the National House of Traditional Leaders. The amendment to the Gatherings Act no longer required permission to be granted for carrying traditional weapons. There was also specific protection afforded to lawful possession for cultural activities. The issues demanding referral to the House of Traditional Leaders no longer applied and tagging was no longer an issue.
The minutes of the previous meeting were adopted and the Committee Secretary was complimented on the efficiency she had brought to proceedings since her appointment. The meeting was adjourned.
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