Firearms Control Bill: formal discussion

Meeting report

SAFETY AND SECURITY PORTFOLIO COMMITTEE
26 September 2000
FIREARMS CONTROL BILL: FORMAL DISCUSSION

Relevant Documents:
Firearms Control Bill [B 34-2000]
Proposed Amendments
General Viljoen's proposed amendments:
Objects and General Purpose of the Draft Firearms Control Bill
Proposal to give priority to phasing in licensing of handguns

SUMMARY
The Committee began its formal discussions on the Firearms Control Bill. The discussion focused on procedures for the meetings themselves, the controversial link between the availability of firearms and violent crime, the prohibition against owning fully automatic weapons, and particularly the age of eligibility for a competency certificate. The ANC argued very forcefully and eloquently for 25 years of age, whereas the other parties were split between 18 and 21.

MINUTES
The Committee Chairperson, Mr George, opened the meeting by pointing out this was the first day of formal deliberations after the public hearings and informal discussion on the Firearms Control Bill. He reminded Committee Members that it was time for them to make decisions.

Discussion
Process
General Viljoen (Freedom Front): Let's make a time plan for inter-party discussions, so we are not always sitting around the table all together.

Chair: We already pushed the deadline for the Bill forward and I don't want to do so again.

Dr Geldenhuys (NNP): I want to come to an agreement on a final Bill as soon as possible.

Mr Booi (ANC): I want to remind all of us that we are here to express the positions of our parties and not our personal positions as individuals.

General Viljoen offered a text of his own suggested amendments to the Committee for discussion and negotiation.

Advocate Swart (DP): Why are the committee's proposed amendments different from the ones we received on Friday? We have had no deliberations since Friday. Is this the last and final version to use in our debate or will there be a new one tomorrow?

Departmental Representative: The document you received on Friday had only 50% of the proposed changes. This document is the final one. We lawyers tried to capture the essence of your discussions.

Link Between Availability of Firearms and Violent Crime
Dr Geldenhuys: As for the Preamble, I want the word "availability" to be deleted. No link has ever been established between the availability of firearms and violent crime. In 1994, the murder rate went down whereas gun ownership increased.

Mr Booi: Dr Geldenhuys is wrong. We are talking about now. There is nothing wrong with referring to availability in the Preamble.

Reverend Meshoe (ACDP): Are we speaking of the availability of legal or illegal firearms?
You can't abuse what is not available.

Chair: You can't compare a firearm to an axe, as a weapon; therefore, availability is important. Remember the purpose of the Act - it is to regulate the proliferation of all firearms, both legal and illegal.

General Viljoen: I agree it is dangerous to speak of the proliferation of firearms. But this Bill allows four per person whereas currently the firearm owner owns 3.5 firearms.

Advocate Swart: At the public hearings, many submissions used statistics to say there is a link between guns and violence. But there is no real connection. We should ask ourselves what we want to say. Look at clause 2(b) of the Bill; it speaks of the "proliferation of illegally possessed firearms" and "control over legally possessed firearms". But we don't have control over illegally-possessed firearms, so the Bill is not clear. We should focus on what we want to achieve.

Dr Geldenhuys: We agree with General Viljoen, except for the link between firearm availability and violent crime; for example, there is no link between car availability and road accidents.

Mr Booi: Guns are part of South African culture, but guns and ammunition have been abused. It depends on how we interpret "availability". There is a connection between the proliferation of guns and violent crime. Look at the history of this country.

Ms Van Wyk (UDM): We are all trying to score political points, but what about stopping violent crime? This Bill cannot be read in isolation. It should be read as a policy document, with attention paid not just to the individual clauses, but to the document as a whole.

Chair: Yes, Ms Van Wyk is right.

Adv Swart: But a policy document is not the Bible.

Chair: OK, so you don't agree on the question of a link between the availability of firearms and violent crime. If there is no compromise, we will proceed and this can be sorted out in the Chamber.

Dr Geldenhuys: I want to know the source of those statistics we heard in the public hearings, that guns and violent crime are linked.

Mr Ndlovu (IFP): Let's leave this debate now and come back to it.

Chair: So let's leave "availability" as it stands in the Preamble, OK?

General Viljoen: But that will mean more licenced weapons in South Africa.

"Purpose of Act", Chapter One
Chair: Let's move on to the " Purpose of Act" in Chapter One.

Dr Geldenhuys: Does "right to life" include "right to self-defence"?

Chair: Yes.

Ms Van Wyk: Shouldn't we include "storage" in 2(c), after "possession"? or "safe storage"?

Chair: OK, Department, please look at that. We agree on the "purpose", just not on the reference to "availability" in the Preamble.

Chapter One - DEFINITIONS
General Viljoen: I object to the requirement of "membership" in an accredited hunting association in order to be considered a "dedicated hunter" at clause 1(ix) of the Definitions.

Mr Booi: No, let's keep it broad.

Chair: That would open this to abuse and kill our intention. What if someone joins a hunting club purely to get a licence?

Dept: What is in this Bill is no deviation from the present legislative position.

General Viljoen: Now, you must be a full member to get a licence. I suggest confirmation of membership should suffice for a licence.

Adv Swart: But you can get a weapon without being a dedicated hunter.

Mr Booi: We can't influence how an organisation runs itself, only if a member is accredited or not.

Chair: The criteria must be active participation in a dedicated hunters' association. Do we now agree to Chapter One and the proposed amendments to it?

(The Members indicate agreement)

Chapter Two - PROHIBITIONS
General Viljoen: In terms of clause 4, will present licences be allowed to lapse or will the new legislation render them immediately invalid?

Chair: What the legislation prohibits will be prohibited.

Advocate Swart: At clause 4(3)(b), we asked the Department to include the words "for approval" but they are not there.

Dept: Parliament can pre-approve a notice for publication when it is not in session and rescind a notice while it is in session.

(There followed a long discussion on the roles and functions of the executive and the legislature in Parliament but no conclusion was reached.)

Fully Automatic Weapons
Dr Geldenhuys: Shouldn't there be an exception for those who are in danger of being killed with fully automatic weapons, for example, security companies?

Ms Van Wyk: I don't agree. If the security companies have fully automatic weapons, the attackers will just get bigger weapons. The real issue is the safe transport of cash.

Mr Ndlovu: No. Criminals do not attack when their potential victims have power to fight back.

Mr Booi: To make an exception to the ban on fully automatic weapons would create a precedent and others would also want to be exempted.

Dept: We don't want to make exemptions and no security company has asked for an exemption. Also, when robberies of cash in transit companies decreased, it was because of improved police investigations and intervention, not because of increased firepower.

Mr Kgauwe (ANC): Leave it as it is now.

Dr Geldenhuys: We do believe there is a need to regulate automatic weapons since they are used in violent crime.

Chair: Do we all agree to leave it as it is? OK, there will be no special provisions for anyone. We all agree except General Viljoen. So Chapter 2 stands as it is, with the amendment "for approval" at clause 4(3)(b).

Chapter Three - SPECIAL PROVISIONS IN RESPECT OF CERTAIN DEVICES
There was some discussion around the classification of an airgun as not a firearm, at clause 5(1)(f). The Departmental legal representatives said it had to remain classified as a non-firearm. The Chapter was agreed to as it stands.

Chapter Four - COMPETENCY CERTIFICATES, LICENCES, PERMITS, AUTHORISATIONS AND ACCREDITATIONS
This chapter was agreed to as it stands.

Chapter Five - COMPETENCY CERTIFICATES
The debate here focused on the age at which one becomes eligible for a competency certificate.

Advocate Swart (DP): I suggest the age should be 18, but with no licences to scholars, meaning those still at school.

Dr Geldenhuys (NNP): I also support 18. If you can vote and defend your country, then why not get a firearm licence? In addition, people between the ages of 18 and 25 who commit crimes do so with illegal firearms, so any prohibition on their owning firearms will have no effect.

Mr Ferreira (IFP): We propose the age for licence availability be 21. We think 18 is too young. We also want all firearm owners to get a competency certificate. These certificates should lapse after five years and be subject to renewal.

Mr Kgauwe (ANC): We are rigid the age should be 25 years.

Mr Ndlovu IFP): Can't 21 be a compromise? It's a privilege, not a right, to have a gun.

Adv. Swart: Do we want to set an age or go on the basis of need for a firearm? If you own a business or a farm, you need a gun for self-defence.

Chair: No, that is not valid. How many South Africans under the age of 25 own businesses or farms?

Dr Geldenhuys: There are also young people who travel long distances by car. They are in danger. No other countries have an eligibility age of 25. We will be international laughing stocks.

Mr Booi: We went from Apartheid to democracy. We have maintained this for five years now. We are setting an example. We set new examples everyday.

Dr Geldenhuys: Yes, we set an example with our approach to AIDS.

Mr Booi: Yes, even with AIDS. We argue from maturity. It's dangerous to have a gun at 18. There are exceptions. Let's create them. A gun is more dangerous than a car licence or voting.

Ms Van Wyk: We don't support 25. What are the constitutional implications of making 25 the age of eligibility, if any?

Dept: Yes, you may not discriminate on the basis of age, according to our Constitution. But the Constitution also says the state may infringe on certain rights in the interests of the society as a whole. There might be a constitutional challenge to this legislation, but I don't think it would be successful.

Adv Swart: Are you saying people under 25 are not allowed to defend themselves?

General Viljoen: The average youth here is not ready at 18, but 25 is too high. I say 21.

Mr Booi: Look at young people in Soweto. They go "jolling". They spend money. Are we doing justice to South Africa to let these young people have guns? They can be still hanging around at the age of 25.

Mr Ndlovu: We support 21. This is when a person is "of age". Let's compromise and ask ourselves what we want to project to South Africans.

Dr Geldenhuys: The requirement of clause 11(2)(c) is the important one, that the certificate holder be "fit and proper". This is more important than age. The Registry has already been flooded with applications for exemptions. We will be flooded with illegal weapons.

Mr Kgauwe: Ask who is in desperate need of a firearm? For example, who are the perpetrators of domestic violence? Who needs to protect themselves from this?

Mr Booi: There are times when Parliament should send out positive messages to youngsters. A young South African can't handle a gun. This is our message. A person is more mature at 25.

Chair: It is clear we can't agree on 18, 21 or 25. We will vote.

Advocate Swart: Will the ANC reconsider 25?

Other Conditions for Competency Certificates
Mr Ndlovu: What does clause 11(1)(n) mean? Do applicants have to know the whole Bill?

Dept: No, only that an applicant must know the rules that apply to her or him specifically.

Ms Van Wyk: Are clauses 11(2) and 11(3) contradictory? (Clause 11(2) says anyone who has been convicted of certain offences cannot have a gun licence whereas clause 11(3) sets out conditions for the offences.) Why can't the criteria just be a guilty verdict? I propose we delete clause 11(3)(a). Appeals, however, must be taken into account, as at clause 11(3)(b). The reference to "five years" at 11(3)(c) is vague. I propose clause 11(3) be rewritten.

Dept: It's a policy issue. An assault is an act of violence and there could be some very technical convictions. Clause 11(3) is intended to place a threshold. We can't make a merit decision on every case and there are many technical convictions. Be careful of taking away the threshold; you could end up lowering it.