The Department of Police (the Department) briefly outlined the new United Nations Security Council listing of people connected with the Taliban and Al-Qaida, for noting by the Committee, and explained that at present no South Africans were listed. The list was published in the Government Gazette, by the Office of the President, whenever the United Nations Security Council updated its list.
The Department of Police then briefed the Committee on the Dangerous Weapons Bill, which was drafted after a ruling by the Constitutional Court had set aside the sentencing provisions of the version of the Dangerous Weapons Bill that still applied in the former Transkei after unification, and which had also required rationalisation of the inconsistencies in the Acts that applied in the formerly independent TBVC states. The Department had decided to update the legislation entirely. The purpose of this Bill was therefore to unify legislation on dangerous weapons, to prevent the carrying or possession of a weapon under circumstances which indicates that the dangerous weapon was intended to be used for the commission of an offence and to give effect to the Constitution’s prohibition on armed protest gatherings and demonstrations.
Each clause was explained. It was noted that a broad definition was chosen for “dangerous weapon”, although firearms were excluded from this definition since they were already covered by the Firearms Control Act No 60 of 2000. A number of activities, such as lawful employment and cultural activities, were excluded from the ambit of the Bill. One major change from the previous legislation was that SAPS may call for an explanation to be given by a person for his or her possession of a dangerous weapon, and take that into account when considering whether an arrest was appropriate. However, it was stressed that the Bill did not place any obligation on a person to give such an explanation. This was similar to other legislation which had been found compliant with the Constitution. It was noted also that the Bill expanded the Regulation of Gatherings Act, No 205 of 1993, to provide for a prohibition on the possession of firearms, dangerous weapons and objects that resembled firearms, during gatherings and demonstrations. The Bill also expanded the type of weapons covered by the Firearms Control Act and allowed for the consideration of more factors in determining the intent with which a person possessed a firearm.
The Committee expressed its concern about several aspects. Two Members questioned the tagging of the Bill and believed that consultation was needed with the National House of Traditional Leaders, since the Bill affected the carrying of traditional weapons. They criticised the wide discretion which the Bill gave to the police, questioned the effect of the Bill on transformation, particularly if it gave rise to abuse of police power, and stressed that careful and comprehensive training on the Bill and the exercise of discretion would be required. The Committee also raised questions around the difficulty of determining the intent with which a dangerous weapon was to be used, since this played a crucial role in application of the Bill, questioned the reasons why firearms were left out of the definitions, and asked what public submissions had been made to the Department when it called for comment.
United Nations Security Council Proclamations regarding Taliban and Al-Qaida
Major-General Philip Jacobs, Head: Legal Services, South African Police Service, stated that the Department of Police (the Department) had been criticised by the press for allegedly misspelling the name “Al-Qaida”. The spelling used corresponded to the spelling used by the United Nations Security Council and would therefore continue to be used also by the Department.
The Security Council had published a new set of guidelines in March and April regarding the listing and delisting of people connected with the Taliban and Al-Qaida. No South Africans were placed on the new list and only one South African, who was placed on the list shortly after the 9/11 terrorist attacks, had ever been listed.
He reminded Members that whenever the United Nations Security Council published this list, the Department submitted the list to the President for publication in the Government Gazette. The Department recommended that the Committee take note of this list and the fact that no South African was currently listed.
The Chairperson noted that the press recently claimed that Al-Qaida cells operated within South Africa and asked the Department whether the South African Police Service was aware of this.
General Jacobs replied that the matter was receiving attention at an intelligence level and therefore the Department did not have any other information at present.
Dangerous Weapons Bill: Comment by Committee
Mr D Bloem (COPE: Free State) urged for the approval of the Dangerous Weapons Bill as it dealt with the security of the country.
Mr A Matila (ANC: Gauteng) responded that Mr Bloem should not form such an opinion before the meeting had taken place.
Department of Police (SAPS) briefing on the Bill
General Philip Jacobs explained that the Dangerous Weapons Bill was primarily aimed at rationalisation, since after 1994 different legislation in regard to dangerous weapons had applied to different areas of the country. In the judgement in the matter of State v Thunzi & Mlonzi, the High Court in the Eastern Cape declared section 4 of the Dangerous Weapons Act No 71 of 1968, which then applied in the former independent state of Transkei, to be unconstitutional since it created a different sentencing regime in that area from the rest of South Africa. The Constitutional Court confirmed this declaration and called for the rationalisation of Dangerous Weapons Acts as applicable in South Africa, as well as in all the former Transkei, Bophuthatswana, Venda and Ciskei (TBVC States). Although the Constitutional Court ruling in fact addressed specifically the subsections dealing with sentencing, in section 4 of the Act, which were withdrawn it was also obvious that the whole of the Act was outdated, and the Department therefore decided to re-examine and re-draft it.
He noted that the current Dangerous Weapons Bill (the Bill) did not deal with the use of a weapon, since this was already criminalised through offences such as assault, attempted murder and murder. The Bill was intended to address the carrying or possession of a weapon under circumstances which indicated that the dangerous weapon was intended to be used for the commission of an offence. The Bill would repeal all other legislation applicable in South Africa regulating dangerous weapons and would replace create a single, uniform piece of legislation applicable to the whole country. The Firearms Control Act already contained provisions controlling firearms but the Bill sought to extend this control to other types of dangerous weapons. Furthermore, part of the role of this Bill was to give effect to the Constitution’s prohibition on armed protest gatherings and demonstrations.
General Jacobs took Members briefly through the Bill. Clause 1 defined a “dangerous weapon” as “any object, other than a firearm, capable of causing death or inflicting serious bodily harm, if it were used for an unlawful purpose.” This was a broad definition, and was decided on at the insistence of civil society. He reiterated that firearms were excluded from the Bill since the Firearms Control Act No 60 of 2000 already provided for the control of firearms.
Clause 2 excluded from the ambit of the Bill the possession of dangerous weapons in pursuit of any lawful employment, duty or activity, the possession of dangerous weapons during the participation in any religious or cultural activities, lawful sport, recreation or entertainment and the legitimate collection, display or exhibition of weapons.
Clause 3 criminalised the possession of a dangerous weapon in circumstances which may raise a reasonable suspicion that the person intended to use the dangerous weapon for an unlawful purpose. While the current Dangerous Weapons Act allowed people to give an explanation to the Court, of their reason for carrying a dangerous weapon, this was not satisfactory, as it necessitated that a person suspected of carrying a dangerous weapon with the intent to use it for an unlawful purpose would have to be arrested before the explanation was sought. The Bill on the other hand, now required the South African Police Service (SAPS) to question the reasons, and referred to “...any explanation the person may wish to provide for his or her possession of the object....”. This did not place an obligation on the person to explain his or her possession of the object, since this would violate a person’s constitutional rights.
In addition to any explanations given by a person, several other factors must be taken into account in order for SAPS to determine whether a person intended to use a dangerous weapon for an unlawful purpose. These included the place and time where the person was found, the behaviour of the person, the manner in which the object was carried and whether the possession of the object was seen within the context of a crime. The Bill further stated that “any other relevant factors..” must be taken into account. This was especially useful as it allows for factors not anticipated by the drafters of the Bill to be taken into account.
Clause 4 repealed all existing Dangerous Weapons Acts in force in South Africa. Clause 5 amends the Regulation of Gatherings Act No 205 of 1993 to provide for a prohibition on the possession of firearms, dangerous weapons and objects which resembled firearms, during gatherings and demonstrations. Gen Jacobs noted that at present the Firearms Control Act and the Regulation of Gatherings Act did not prohibit people from carrying licensed, concealed firearms to gatherings, but this would now be remedied by the Bill.
Clause 6 extended the criminalisation of the possession of a firearm with the intent to commit an offence, which was already in the Firearms Control Act, to include airguns, deactivated firearms and muzzle loading firearms. In addition it extended the factors to be taken into account by the Firearms Control Act in order to determine intent, to be in line with those factors listed in the Bill.
Gen Jacobs stated that when drafting the Bill, about 2 300 public comments were taken into account. The State Law Advisers had certified the Bill to be constitutional. The National Prosecuting Authority (NPA) also made comments on the Bill. Several interested civil society organisations contributed submissions on the Bill and all were taken into account in the drafting, and had resulted in several changes being made to the original draft version. These included the amendment to the definition of “dangerous weapons”, the exclusion of certain activities from the Bill and the manner in which the amendments to the Firearms Control Act and Regulation of Gatherings Act were made.
The Portfolio Committee on Police, when considering the Bill, had required an implementation plan to be submitted by the Department, and this was submitted. The Committee indicated that it wanted the South African Police Service to report back to it on every step of the implementation process. A cost implementation plan was also provided to the Committee.
Finally, Gen Philips noted that this Bill was a section 75 Bill, since it contained no provision to which the procedure set out in section 74 or 76 of the Constitution applied. The State Law Advisers concluded that it was not necessary to refer the Bill to the National House of Traditional Leaders as it did not contain provisions pertaining to Customary Law or customs of traditional communities.
Mr L Nzimande (ANC, KwaZulu-Natal) expressed his disagreement with the legal opinion that the Bill did not need to be taken to the National House of Traditional Leaders since it could affect the carrying of traditional weapons.
Mr A Matila (ANC, Gauteng) agreed with Mr Nzimande that the National House of Traditional Leaders should be consulted. It had not made any submissions and the consultation process tended to exclude the average person, because it was aimed at a specific class. He requested clarity on the reason behind the lack of consultation with the National House of Traditional Leaders, and on how traditional celebrations would be affected by the Bill.
General Jacobs replied that the Bill was published in the Government Gazette, so that anyone could have responded. Traditional leaders were not intentionally excluded from making submissions. Effort was made to ensure no overlap with the National House of Traditional Leaders ambit. A traditional activity such as a wedding would be excluded from the Bill, since it was classified as “any lawful activity” and was thus excluded from the Bill by Clause 2, even if traditional weapons were carried at a wedding. The Regulation of Gatherings Act No 205 of 1993, as amended by the Bill, did not intent to regulate activities such as weddings for it was directed at protest gatherings.
Mr Amichand Soman, Director: Legislation, Civilian Secretariat of Police, added that people would not be prevented from carrying weapons to bona fide events since the intention with which the object was carried must be considered.
General Jacobs agreed with the importance of intention in determining whether or not a dangerous weapon could be possessed lawfully.
Mr Matila requested more information about the issues raised by the various submissions made to the Department.
General Jacobs responded that submissions relating to their own core functions were made by a variety of institutions, including the Cape Bar Council, on the definition of “dangerous weapon”. The Security Industry Alliance had made a submission on security officers, but their concerns were dealt with through the Bill allowing for the possession of dangerous weapons in pursuit of any lawful employment. The Gauteng Airsoft Club, the SA Wingshooters Association and the SA Hunters and Game Conservation Association all made submissions specifically in relation to their sports. The SA Catholics Bishops Conference and Legal Resources Centre made general submissions. The National Arms and Ammunition Collectors Associations made a submission regarding holding of its public meetings.
Mr Nzimande objected to the exclusion of firearms from the definition of “dangerous weapons” in the Bill. The possible effects of Clause 4, which repealed all previous laws regarding the control of dangerous weapons should be examined further.
General Jacobs responded that while different rules applied when people carried weapons individually, the Constitution would apply generally when people carried arms to public gatherings. The public must become aware of the fact that being armed at public gatherings was prohibited by the Constitution. Legislation should reflect the Constitutional rule that protests, gatherings and demonstrations were not allowed to be attended by armed individuals. This was especially important since protest gatherings were particularly difficult for the police to deal with. He pointed out that this was covered through the Regulation of Gatherings Act, as amended by this Bill.
General Jacobs further stated that all legislation repealed by Clause 4 of the Bill was more or less the same and this Bill covered the same issues which were covered by the former Acts, save that it sought to rationalise so that there would be uniform application throughout the country. Previous legislation must be repealed since the Constitutional Court called for the unification of law, and that was the purpose of rationalisation.
Mr Nzimande stated that the wide discretion given to the police might be subject to be abuse. He objected to the inclusion of the consideration of “any other relevant factors...” in the Bill since it would place an unnecessary burden on the police officers. He emphasised the need for the obligations placed on the police officer to be clarified, and for a guide provided that would enable police to understand how to apply the law.
Mr Matila commented that the Bill was drafted by lawyers, not by the police, and this could make it difficult for the police to understand and interpret the law. Due to the lack of clear guidelines he agreed that there was a possibility that the law may be misinterpreted.
General Jacobs agreed with Mr Nzimande and Mr Matila that the SAPS officials must be provided with guidelines on how to exercise their discretion. However, he added that since police officers currently already had to exercise discretion in making other arrests; the exercise of discretion was not beyond their ability. Since part of the aim of the Bill was to prevent people from having to go to court before being able to explain why they were carrying a weapon, the police must be given discretion to consider such explanations. He said that the guidelines on how to exercise this discretion should be extended.
Mr Matila expressed his concern that if a person was to hold a bottle by the neck, the police may misinterpret his intention as being one of violence.
General Jacobs replied that it was more likely that a broken bottle would be interpreted to be a dangerous weapon than a whole bottle being carried in this way.
Mr Bloem noted that Clause 3, which stated that a person could be guilty of an offence upon “reasonable suspicion” that the person intended to use the dangerous weapon for an unlawful purpose, was very broad. He questioned who would determine what could be classified as “reasonable suspicion”. In addition he enquired as to the precise meanings of “cultural activity” and “recreation”, as excluded from the application of the Bill by Clause 2.
General Jacobs replied that “cultural activity” would include events such as weddings, while sport and recreation had very similar definitions. “Reasonable suspicion” must be objectively tested, and he pointed out that the Criminal Procedure Act also used this criterion for arrests. He emphasised that the decision to arrest could not be postponed until a person was in court, and so any explanation by a person must be taken into account before that person was arrested.
Mr Nzimande stated that while “reasonable suspicion” had been explained quite well, through the tests which the court had created, he was still concerned about the way in which the police would apply discretion in practice.
Mr Matila noted that the training of police officers would have to include how to apply this Bill and enquired about the Department’s intentions in this regard.
General Jacobs agreed that training was important and stated that once Parliament had approved the Bill, a training programme would be created for the SAPS. He further stated that the way in which discretion was applied in practice was a concern of the Department, and it had been discussed at length.
Mr Bloem was concerned that the inclusion of a clause that police officers had to take into account any explanations by persons as to why they were carrying dangerous weapons may infringe on constitutional rights.
General Jacobs responded that the Bill did not oblige people to explain themselves, although it did allow the police to take any explanation into account.
Mr Bloem asked what was the purpose of allowing explanations to be taken into account, if people could not be forced to give an explanation. In practice, many people may be unwilling to explain themselves. He also enquired as to how this Bill would affect disabled people. He enquired as to what prompted the Bill. He also noted his concern that the Bill would hamper transformation, since it would require traditional activities to be unnecessarily explained.
Mr Matila stated that if people were unwilling to explain themselves, then the discretion of the police officer was in fact limited.
General Jacobs replied that the Constitutional Court had found, in a previous case, that if a person was asked for an explanation with regard to the possession of suspected stolen goods, this was not contrary to the Constitution, provided that the person had the right to remain silent. This Bill would function in the same manner. He then stated that the Department had examined many court cases from a variety of jurisdictions regarding the way in which dangerous weapons had been treated. He pointed out that the United Kingdom had made “a mockery” of the legislation, but nevertheless the way in which dangerous weapons were treated had been taken seriously in other countries. In addition, the provinces were consulted in the drafting of the Bill, and they indicated that they did find it desirable. Finally, an attempt had been made to balance the various interests involved.
Mr Matila noted the need to consider the past and enquired as to how the Bill would assist with transformation. He stated that it was possible that some policemen may be prejudiced and thus end up not fully taking into account the explanations of people of different cultures. The training should take this particular factor into account.
Mr Soman emphasised the importance that any explanation given by persons carrying dangerous weapons should be considered, to avoid people being arrested unnecessarily. He also stated that carrying dangerous weapons was only criminalised under this Bill if those weapons were carried with the intent of being used for an unlawful purpose.
General Jacobs reiterated that while people must be allowed to protest, they may not do so while armed. He again emphasised the need for the Dangerous Weapons Act to be rationalised, to comply with the Constitution. He also emphasised that the circumstances surrounding the carrying of a dangerous weapon would be used to judge the intention behind its possession.
The meeting was adjourned.
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