Firearms Control Bill: formal consideration

Meeting report

SAFETY AND SECURITY PORTFOLIO COMMITTEE
27 September 2000
FIREARMS CONTROLL BILL: FORMAL CONSIDERATION

Relevant documents:
Firearms Control Bill
Proposed Amendments Document: Firearms Control Bill [e-mail [email protected] if this document is required]

Chairperson: Mr M E George

SUMMARY
The committee reviewed Chapters 5 to 15. After reviewing each clause, the parties reflected how they would vote for each clause. There was much disagreement pertaining to the issues of competency, licencing and registration. However the majority agreed to drop sub-clause 11(3)(a). This provided for exclusion from obtaining competency certificates only if sentenced to more than 6 months without an option of a fine for crimes such as domestic violence. Also an issue was the period of validity of the competency certificate and it was agreed to be that it be valid for a period of five years. The committee once again hotly debated the issue of licencing both the firearm and the person and no consensus was reached.

The DP was opposed to the provisions on presumptions, specifically Chapter 15 even in its "watered down version". The NNP firmly believe that persons should be compensated for firearms forfeited to the state at market value. The ANC was strongly opposed to the idea of forcing the State to be a dealer in arms.

Members decided that inherited firearms kept for sentimental reasons should be deactivated and if to be used, the heir should get a competency certificate. The DP objected.

The Department drew the Committee's attention to a difference between the original wording of the provision on offences and a new draft by the State Law Advisor. The original clause sought to punish someone who had knowledge of the offence. The State Law Advisor's formulation seeks to punish someone who ought to reasonably have known about the offence. The latter formulation has the effect of extending the scope of the offence such that even negligence would be punishable. The Department said it was concerned about the constitutionality of punishing people for something they had no knowledge of. The parties will caucus on this.

MINUTES
Chapter 5: Competency Certificates
Clause 11 Application for competency certificate
The Chairperson stated that the UDM wants sub-clause 11(3)(a) "the accused person was sentenced to more than six months imprisonment without the option of a fine" to be removed He pointed out that it was the opinion of all the parties at one stage that sub-clause 11(3) be removed.

Ms Van Wyk (UDM) stated that in cases of child abuse, rape and domestic violence the committee must be sensitive to the issues. She pointed out that the convictions delivered by the courts do not correspond with the gravity of the crimes committed. She added that in cases of child abuse, rape and domestic violence, serious punishment needs to be imposed but rarely is. Ms Van Wyk stated that perpetrators of such crimes should be prevented from obtaining a competency certificates and barred from getting firearms licences.

Advocate Swart (DP) agreed that the punishment should be equal to the offence, however the committee cannot rectify the situation that the courts are not doing their jobs, instead there should be an outcry from the public to address this problem. He cautioned against trying to rectify the lack of competence by the courts in this Bill. It did not make judicial sense.

General C L Viljoen (FF) agreed with Advocate Swart and stated that the committee cannot legislate in Parliament for the incompetency of the courts. He added that he sympathises with victims of rape, child abuse and domestic violence. He suggested that the committee stick to (a)-(q) in 11(2) that excludes persons from obtaining competency certificates.

Mr Booi (ANC) stated that the ANC gives support to the viewpoint of the UDM, and added that the ANC understands their concerns. The South African courts seem to be saying that men have a right to physically abuse women and the Gender Commission is asking how the ANC can allow such things to happen. He added with much emphasis that the committee is supposed to legislate for better laws. This macho mentality that allows for women to be beaten, for cases of assault to happen, and to allow for the rapist to walk free because he has money to get a good lawyer must be eliminated.

Ms A van Wyk stated that the purpose of this Bill is to ensure that those who are not classified as fit and proper will not be in possession of a firearm. She added that we must accept the view of the community and not the court's judgements. She suggests that 11 (3)(a) be replaced with, "an offence where a person has been found guilty".

The Chair stated that 11(2)(f) states exactly this. He asked whether there is agreement to omit 11(3)(a). As sub-clause 11 (3)(a) stands presently, it differs from 11(2)(f), however if the committee takes the proposal as made by the UDM then sub-clause 11(3)(a) will be the same as 11(2)(f).

Ms Van Wyk stated that if that is the case, 11(3)(a) should be deleted.

General Viljoen completely disagreed. He argued that sub-clause 11(3)(a) should be there in addition to sub-clause 11(2)(f), as it adds an area not covered by 11(2)(f). He stated that 11(3)(a) provides for a six month conviction period being the deciding factor in allowing a person to obtain a competency certificate.

Advocate Swart added that sub-clause 11(3)(a) qualifies the list of offences in sub-clause 11(2)(f). He added that a restraining order is already serious in nature as it prevents one from acquiring a licence.

Mr Booi said the guilty person, in addition to being found guilty, should not have a licence at all, as signs of incapability have been shown. The citizens of South Africa are asking what the State is doing to protect them. He added that the aim of the Bill is to make people feel protected. He stated that the issue should not be the conviction period of 6 months. The bottom line is that if a person has been found guilty of drunken driving, domestic violence rape and child abuse such person should be barred from obtaining a firearm's licence.

Mr Ndlovu agreed with Mr Booi, and added that proposals must be put forward and added furthermore that the committee was repeating itself. The Chair observed that the ANC and the UDM seemed in favour of omitting 11(3)(a).

Dr BL Geldenhuys agreed with Adv Swart, saying that if an individual has an inclination towards violent behaviour, he\she is already not permitted to have a firearm's licence.

Mr Ndlovu stated that the committee should agree to take 11(3)(a) out.

The FF and the NNP wanted the 6 months provision in 11(3)(a) to remain except in cases of rape, domestic violence and child abuse. The rest of the parties agreed to delete 11(3)(a).

Adv Kok (Department) stated that he could propose a third option. However Mr Ndlovu asked for a point of order stating that the committee is no longer deliberating on the Bill. He added that the Department had their chance to give input and that the committee is now engaged in a political debate.

The Chair ruled on the point of order and stated that he would not open up the matter for further debate. Mr Booi supported him in this.

General Viljoen wanted it to be placed on the record that he is strongly against the deletion of 11(3)(a) and if it goes ahead, it might just make him vote against the Bill as a whole.

Mr Ndlovu stated that it was not fair to the committee for the Chair to allow persons to express their opinions in such a manner.

The Chair stated that he would not open up the matter for discussion. The Chair asked if there were any other clauses in Chapter 5 that needed looking at.

Adv Kok stated that the committee had not yet agreed on Clause 11(5) as yet. Consensus was not reached on the age limit to be set on obtaining a competency certificate or firearms licence. In the proposed amendments document an age limit of 25 years is recommended. The Chair stated that the limit must be 25 years subject to exceptions. The Chair stated that 11(5) would remain outstanding on the issue of age as the parties views differ on it: ANC - 25 years, UDM and IFP - 21 years and the rest of the parties want it to be 18 years.

Clause12 Competency certificate
General Viljoen stated that in sub-clause 12(2), he was unhappy about the competency certificate lapsing after two years. Once a person has been competently trained, he should not require further training in the future. Mr Ndlovu stated that renewal is required for competency testing. General Viljoen stated that the committee agreed on the need the competency requirement, however proper training is needed.

Adv Swart stated that the training that the general is referring to is already provided for in Clause 11(2)(o). The Chair agreed with Adv Swart.

General Viljoen proposed the fusion of 11(2)(o) and 11(2)(q) but it was pointed out that 11(2)(o) refers to training individuals whereas 11(2)(q) refers to training the firearms industry.

General Vijoen noted that South Africa does not impose national conscription service anymore, and hence there is a growing need for practical training on the use of firearms.

Mr George stated that the committee cannot legislate that everyone go for training. He stated that all they can do is to provide for the requirement of training but people must go for it on their own initiative. The ANC however supported General Viljoen's point that training is important.

The Chairperson asked committee members if they all agreed on the proposed three year validity period as suggested by the Department.

- The ACDP supported the three year period. Reverend K Meshoe added that unless there is a complaint or charge against the person, competency should stand as from the first test.
- The IFP suggested that the competency issue be linked to the renewal of licences, and should hence become a period of no less than five years.
- The Freedom Front (FF) suggested that once the preliminary test for competency has been done that there be no need for further testing to be done.
- Dr Geldenhuys (NNP) stated he supports the IFP's proposal that the period of validity of licencing and competency should be the same, that is, five years.
- Advocate Swart (DP) added that the moment a competency certificate lapses, one need not apply for another. It is only when you apply for a licence, you need a competency certificate.
- The Department suggested that three years for a competency certificate to lapse is a reasonable period.
- The Chairperson said that the five year period should be accepted, as it solves all problems.
- Adv Kok of the Department agreed with the Chair.

The Chair stated that the committee agrees to Chapter 5 with amendments. The DP, NNP and the FF expressed their opposition.

Chapter 6: Licence to Possess a Firearm
Dr Geldenhuys stated that that if a person has a licenced firearm he should be able to use it for any legal purpose and firearms should not be categorised for use.

Mr Booi (ANC) believed that the three categories should be sustained. The overall principle is that validation for the use of different firearms is needed.

The Chairperson pointed out that Chapter 6 deals with both the licencing of the person and the firearm.

The Democratic Alliance (DP and NNP) said that they are against licencing both, and suggested that the person be licenced and the firearm registered. Advocate Swart stated that some people seem to be blind to the practical implications. Clause 2 states that the purpose of the Act is to find a practical way in which to implement the Bill. The Registrar could not licence 900.000 guns per annum over a period of five years. Something more practical is needed.

Rev Meshoe (ACDP) asked what the difference is between licencing and registering a firearm.

Ms van Wyk replied that by requiring people to re-licence their firearms, you are forcing that person to account for their firearm, and to show that they are still in possession of that firearm. She added that the one million cars are registered on an annual basis. She stated that the practical advantages of re-licencing firearms are great. She suggested that Local Government could help or that they could outsource the registering of firearms as is done with motor vehicle registrations.

The Chairperson noted that inefficiency is rife in the country, and that the committee has a responsibility to improve the image of our country. In addition to this it must ensure that the level of crime does not escalate.

Gen Viljoen stated that he still feels that each firearm should not be relicenced rather the person be relicenced every 5 years. This he felt would lighten the administrative burden.

Mr Booi reacted that he feels strongly that each firearm should be relicenced. He felt that if this is not done certain right-wing persons might just build up arsenals on their farms.

Gen Viljoen took this statement as an attack on his integrity. The Chair had to bring the meeting to order.

The ANC, ACDP and UDM stated that the person as well as the firearm must be licenced. The IFP and FF want the relicencing of the firearm and the person but only when the person has to reapply for his licence every five years. The DP and NNP stated that the person should be licenced but the firearms should be registered.

Clause 13 Separate licence in respect of each firearm
The Chair stated that they had dealt with this clause exhaustively and no consensus had been reached. The committee therefore agreed to disagree on it.

Clause 14 Additional licences
The Chair asked the Department to tighten up the use of the word "premises" in Clause 14.

Clause 15 Licence to possess a firearm for self-defence
- The ANC and UDM stated that they support the provision in the clause for only one licence for self defence, either a handgun or shotgun.
- The IFP felt that persons should be entitled to two firearms but only in exceptional cases.
- The ACDP, DP and NNP were in favour of a person having two firearms.

Adv Swart (DP) and Mr Geldenhuys (NNP) felt that it is impractical for a farmer to only have one firearm for self-defence. Mr Ndlovu (IFP) stated that he supports persons in farming areas having two firearms but in urban areas it should be limited to one firearm. Mr Booi (ANC) was adamant that one firearm is sufficient for self defence be it an urban or rural area. Rev Meshoe (ACDP) supported the arguments of the DP and NNP.

The Chair pointed out that the aim of the Bill is to limit the proliferation of firearms in our society. Having a firearm at your side, he said, does not mean that you are safer than an unarmed person. No consensus was reached by the committee on this clause.

Clause 16 Licence to possess restricted firearm for self defence
Gen Viljoen (FF) asked that a semi-automatic shotgun be included in this section for self-defence especially for farmers Mr Ndlovu stated that such a provision would not be made as it would open the section to the general public. All the parties agreed that the clause should remain as it is, except the Freedom Front.

Chapter 9
This was agreed to.

Chapter 10
Members were reminded that it was agreed that Clause 94(3) be deleted. The chapter was agreed to.

Chapter 11
The Chairperson said the matter of exemptions was accepted on the understanding that the Minister would come up with stringent measures for the SAPS and SANDF to be more responsible than ordinary citizens in their handling of guns.

The drafters said a clause could be put in the regulations to cover this as it may be problematic to put it in the Bill.

The chapter was agreed to.

Chapter 12
Members were reminded that it was agreed that Clause 105(4) be deleted.

Clause 105(4) Declaration by Registrar of person to be unfit to possess firearm
The Chairperson said that he had been contacted by the Commission for Gender Equality that morning protesting that the clause provides for persons who have had a final protection order issued against them but does not provide for those who have a temporary protection order against them in terms of the Domestic Violence Act.

Advocate Swart reminded members that a temporary protection order is where the matter is still like an accusation and no judicial decision has been taken yet. From a purely legal perspective it would be unwise to for the Bill to state that a person who has a temporary order against them should be declared unfit. It could be possible for the Registrar on a purely administrative basis to keep the matter of a declaration to be unfit in abeyance until the matter is finalised.

The Committee agreed that the shortness of the period of the temporary order makes it unnecessary to provide for it in the clause.

The chapter was agreed on.

Chapter 13
This was agreed to with amendments.

Chapter 14
The Chairperson asked the drafters why they wanted to amend the provisions on search and seizure.

The Department said there is a possibility that Courts might have a restrictive interpretation of the clause. While not wanting to derogate from the powers the police already have, the Department would like to add to them and not be seen as limiting the powers in the Criminal Procedure Act.

The State Law Advisor who is drafting an additional subclause in Clause 119, is still grappling with the formulation for search and seizure where there is no warrant.

The Committee agreed to hold the chapter in abeyance until it is finalised by the State Legal Advisor.

Chapter 15 Presumptions
Adv Swart emphasised that the DP is opposed to the chapter on presumptions as it was a bad method to convict on the basis of reverse onus. He added that he would not be voting against the Bill purely on the basis of this chapter.

Ms Van Wyk said it has to be acknowledged by the Committee that parties cannot always agree on every matter and should thus agree to disagree on this chapter.

A long discussion ensued with the ANC arguing for the need to assist the police in their efforts to fight crime by provisions of this nature.

The DP said it was on a legal principle that they are opposed to the presumptions being included in the Bill even in the "watered down" version as they now appear in the clause. Adv Swart alluded to telltale signs that constitutional rights that everyone fought for very hard, would be taken away. He said the Minister intimated that the Constitution would be amended and even the Chairperson of the Committee referred to certain provisions of the Constitution as being a nuisance. He warned against the temptation to take away rights in the Constitution whenever there is something to be fixed.

The Chairperson berated the DP for making a clamour about the crime in the country charging it is easy for the DP not being the government of the day to cry that constitutional rights of citizens are not being protected. When the government does something to remedy the situation, the Opposition evokes the same Constitution to say rights are being taken away.

Mr Mahlangu (ANC - Chair: Select Committee on Security and Constitutional Affairs) said it would be interesting to find out what the precedent of the Courts has been in dealing with provisions of the same nature in other legislation.

Advocate Kok said most provisions on presumptions have been declared unconstitutional especially the reverse onus provisions. However, the Constitutional Court in the Manamela case indicated that the formulation in which the presumptions are now drafted in the Bill could be constitutional. The formulation ensures that someone cannot merely remain silent but has to create reasonable doubt.

The ANC, UDM, IFP and ACDP indicated they are in favour of the chapter. The DP and NNP remained opposed to it.

Chapter 16
Clause 123(2) Offences
Advocate Kok said there is a subtle difference between the State Law Advisor's formulation and the original wording of the clause. The original clause sought to punish a person who is "aware" which indicates knowledge of the offence. The State Law Advisor came up with the formulation that a person should "reasonably have known" - which goes further such that negligence would be punishable. The State Law Advisor's formulation could be more prone to constitutional attack but this is still a policy issue to be discussed by the Committee.

Adv Swart said he feels what the Committee wants to achieve in the clause is covered by the original clause.

The State Law Advisor explained why he had changed the formulation: it would be difficult to prove that a person knew (intent) something and easier to prove that they reasonably should have known - which leaves it to the Court's discretion to decide on.

Advocate Kok reminded members that in every instance where there was a conviction for assault and murder, intent was proved. It is more difficult to prove but not impossible, it can be done. The clause places a duty on someone to report something they had no knowledge of and the Department is worried about the constitutionality of such a provision.

The ANC appealed that in the light of the explanation from the State Law Advisor, they would like to go back to their caucus to review their position on the issue. It was agreed that the matter would be discussed the following day.

Mr Mahlangu suggested that the Legal Advisors afford the Committee an explanation of the two formulations and scenarios where each would be applicable and what the implications of each would be. This he felt would assist the Committee in its decision on the issue.

Chapter 17
This was agreed to.

Chapter 18
This was agreed to.

Chapter 19
Clause 140(5) Application for compensation
Mr Geldenhuys NNP) said his party stands firm on the issue that if someone is forced to forfeit their firearm to the State (by exceeding the quota provided for in the Bill), they should be compensated at market value. By making compensation subject to availability of funds means the State is not obliged to compensate owners. He agreed that there should be no payment.
where one forfeits a firearm because of contravening the provisions of the Act.

The ANC felt strongly that the State cannot be put in a position where it trades in arms. The provision allows for five years within which to get rid of the firearms to meet the terms of the Act and if someone still fails after that to sell their weapons, the State cannot be expected to buy at market value a firearm that nobody wants. If parties are serious about the object of the Bill, to prevent the proliferation of firearms in the country, then they would agree that forfeited weapons should be destroyed and no compensation should be payable.

Ms Van Wyk said the clause with the added subclause (7) is very reasonable.

Chapter 20
Clause 142 Amnesty
The Chairperson noted that all Parties agreed to the proposed amendment, that the Minister must get Parliament's approval before conferring amnesty.

Clause 143 Firearm free zones
Mr Geldenhuys said that the Bill should ensure that criminals are also kept out of the crime free zones. There must be security systems to make certain that arms do not enter these areas.

The ANC said if the principle is right, it is not necessary to put specifics in the Bill.

Adv Swart asked the Department what they would put in regulations to provide for the specifics before the Minister declares a crime free zone.

Advocate Joubert of the Department said they would look at what can be feasible in the circumstances but cannot regulate on the Minister's declaration. What they can do is to lay down exceptions for certain categories of persons to carry weapons in crime free zones.

The Department said crime free zones are a crime prevention drive by the community and not a combating strategy and police would only come in to assist. Their study of crime free zones that are operating in the country shows that they work without metal detectors or security systems but through community efforts.

Clause 144 Emergency provisions
Advocate Joubert said emergency provisions are not usually included in general legislation as it makes for clumsy drafting and goes against cardinal rules of drafting legislation. The Committee was reminded that it had agreed to the deletion of this clause as it is covered by the powers the President has during a state of emergency. It was agreed that it be removed.

Chapter 21
Members were reminded that it was agreed that Clauses 145 and 150 (e) would be deleted. This was agreed to. Chapter 21 with the exception of clause 153 was agreed to.

Clause 153 Inherited firearms
A long discussion ensued on the issue of inheritance of firearms with members contending that the firearms should be deactivated if kept for sentimental reasons and if to be used, the heirs should get competency certificates. The Department was of the view that it would be superfluous to provide for the deactivated firearms in the Bill as they are no longer firearms. Members suggested temporary deactivation but the SAPS said this is not possible because the purpose of the Act would be defeated as it would be easy to reactivate a temporarily deactivated firearm. The DP felt that the claim that this provision was being sensitive to inherited firearms was misleading. There was no point in allowing a person to keep a destroyed firearm for sentimental reasons because that is what deactivation amounts to. No agreement was reached.

Clause 155 Deactivation of firearms
It was agreed to add subclause (4) as proposed in the amendments.

The Chairperson asked the drafters to consolidate the amendments and clauses agreed to into a single draft. The meeting was adjourned until the next day.