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SAFETY AND SECURITY PORTFOLIO COMMITTEE
22 August 2000
FIREARMS CONTROL BILL: PUBLIC HEARINGS
Human Rights Committee
M J Hood
South African Gun Owners' Association
Gun Control Alliance
The Human Rights Committee was in support of the Bill, stating that the Bill would help address the culture of gun violence in South Africa. It also pointed to some minor corrections needed in the Bill. The South African Gun Owners' Association was against the Bill. Its opposition was based largely on conceptual problems in the Bill and issues of whether the Bill was unconstitutional. The Gun Control Alliance was in support of the Bill, although it would favour tougher restrictions yet. It referred to the need to bring about a climate free of violence and indicated that tight controls were necessary to do this.
Afternoon session minutes to follow. Presentations were heard from RAPCAN, Vaal Gun Control Alliance, Brig General J Gerber amongst others.
Human Rights Committee
Mr Frankie Jenkins stated that the Human Rights Committee's background in violence monitoring makes it knowledgeable about the dangers of firearms. The HRC considered the Bill as an attempt to fulfil constitutional obligations to respect, protect, and promote dignity, life, freedom, and security of the person. The HRC supported the Bill generally as an effort against a culture of gun violence in South Africa. It was concerned that there be adequate training, record-keeping and resource allocations to ensure that there be full implementation of the Bill's system of declarations of unfitness. The presenter also pointed to an inconsistency between Clauses 105 and 106 of the Bill insofar as the Registrar was not compelled to declare unfitness in the same circumstances as a court, which it should be.
Adv Swart (DP) asked why the Bill had to take away all discretion with respect to a declaration of unfitness and asked why similar mandatory language should not also extend to an obligation to issue a licence in a case where an applicant met the requirements.
Dr Geldenhuys (NNP) asked about evidence on the success of amnesty programs in other countries and whether there should be a buy-back program.
Mr Ndlovu (IFP) asked for further comments on gun-free zones and about the proper age for firearms ownership.
An ANC member commented on the positive and mature presentation and asked for the presenter to introduce himself.
Mr Maziya (ANC) asked about the HRC's views on the human rights claims of those opposed to the Bill and about whether taxi violence had been conducted with licenced or unlicenced firearms.
Gen Viljoen (FF) asked about the basis of support for the HRC, who forms part of it, whether it was affiliated with the Human Rights Commission, and whether the presentation had been cleared with the organisation's member groups.
Mr Jenkins, in reply, began by introducing himself.
He then indicated that the matter of whether there should be discretion or not depended on the nature of the question. In a case of an unfit individual, there should be an obligation to protect society, and thus the decision should be mandatory; in the case of a licence, there was no right of gun ownership prior to possession of a licence, so there was no need for mandatory language. There would still be protection for applicants through the Administrative Justice Act and through judicial review.
On the amnesty issue, Mr Jenkins stated that it has worked elsewhere with knives but that a buyback program was not necessary as an amnesty already gave people an opportunity to get rid of illegal weapons.
On gun-free zones, Mr Jenkins stated that a mechanism for decommissioning firearms can help ensure that these work and noted that it should be possible to ask manufacturers to attach a personalised code into firearms.
On the proper age for ownership, Mr Jenkins stated that this depended on the circumstances of an individual's needs. It would be appropriate to look at statistics and the aim of the age limit. He personally felt that it should be 25 but flexible.
On the constitutional claims of those opposed to the legislation, Mr Jenkins noted that there might be concerns on the search powers given to the police under the Bill.
On the taxi violence matter, Mr Jenkins noted that the recent taxi violence in the Western Cape had been with an R4 rifle, which would be illegal under the legislation; in any case, the Bill would provide stiff penalties for the possession of illegal or unlicenced weapons. There was no doubt about the linkage between guns and violence.
In response to the final question, Mr Jenkins stated that the HRC was independent of the Human Rights Commission, that it was an independent organisation making submissions on its own behalf, and that he spoke with the approval of the head of the organisation in Gauteng.
Mr Martin Hood and South African Gun Owners' Association
Mr Martin Hood, a lawyer, combined his personal presentation with that of the South African Gun Owners' Association, which he represented. After a request by Dr Geldenhuys (NNP), the Chair gave the presenter additional time.
Mr Hood stated that the South African Gun Owners' Association provided home-grown solutions and that it supported reasonable legislation but could not support this Bill. He began by stating the case against several pieces of research presented in support of the Bill. He challenged the lack of information as to the majority of gun purchasers being black and as to the true costs of the Bill.
Mr Hood recognised positive aspects in the Bill insofar as it would update corrupt and incorrect information in the government's database. He also indicated support for the training and competency provisions of the legislation. He stated that amending the legislation so that it focussed on the licencing of individuals would cut down on the workload and cost associated with the Bill.
Mr Hood listed the following objections to the Bill and its process:
- the arbitrary limits on the number of guns a person might own,
- the Bill's attempt to delimit what was legal rather than what was illegal,
- the ongoing lack of knowledge as to what would be in the regulations.
- the problems implementing the legislation without trained officials,
- its creation of a new class of administrative criminals without mens rea,
- its exclusion of judicial jurisdiction in favour of administrative jurisdiction.
- the new police powers under the legislation infringing on human rights,
- the creation of presumptions that amounted to unconstitutional reverse onuses,
- the imposition of third party liability when someone else went on one's land with a firearm.
Advocate Swart (DP) indicated that the presenter had brought forward some important points. He noted that statistics were probably not conclusive on either side. He asked for enlightenment on the specific clause where police officers might declare a person unfit to possess a gun.
The presenter interjected that it was the registrar, not a police officer, who made such a declaration.
Advocate Swart (DP) asked about presumptions and the duty to explain some circumstance.
The presenter reiterated that creating an obligation to explain something implemented an unconstitutional reverse onus.
Mr Bloom (ANC) asked what the Bill had to do with cultural differences and why the presenter had mentioned that his was not a foreign intervention.
An ANC member asked a question about the presenter's concerns on consultation.
An ANC member asked how it was problematic to have firearm-free zones when visits to prisons already required one to be free of firearms and asked how it was possible to prove the presenter's claims about black gun ownership without an audit as provided in the Bill.
The Chair interjected that this was not a time for debate.
Ms Molebatsi (ANC) asked how the drafting was unclear and asked why the presenter had kept trying to associate himself with blacks.
Mr Ndlovu (IFP) asked at what age firearm ownership was appropriate.
The Chair indicated that the presenter need not answer Ms Molebatsi's question about the presenter's attempts to associate himself with blacks but that he might proceed to answer the other questions. Mr Bloom (ANC) interjected that if people make statements about their associations with black people in their presentations, then they should expect politicians to respond as politicians who represent the people. The Chair ruled this out of order, indicated that there was no way to stop people who came to talk politics, but that the Committee would proceed to hear comments from people that were pertinent to the issues.
Mr Hood indicated that he was prepared to justify his statements and that he worked in criminal justice and knew how the criminal justice system was in crisis.
Mr Hood continued by saying that he represented many black people.
Mr Hood stated that presumptions are bad law and had led to his conclusion that the legislation was unconstitutional.
On the question about cultural differences, Mr Hood stated that individual rights were human rights important to the growth of a democracy, that there could be "reasonable" searches, but that cultural differences affected the understanding of what was "reasonable".
He stated that many of the gun control advocates were foreign interveners, that Canada and Britain had helped with the drafting of the Bill (including financial support from Britain), and that the South African Gun Owners' Association offered home-grown solutions without guidance from overseas.
On consultation issues, Mr Hood stated that policy documents on the legislation were not received until a year after they were requested and that there had been resistance from government officials when his organisation wanted information. Section 195(1)(g) of the Constitution promised transparency, and consultation after the fact did not provide this.
Mr Hood noted that he had grown up in Botswana and was not a typical white gun owner. Firearms owners differed, and he was trying to make this clear.
On the age question, Mr Hood stated that it was wrong to have an arbitrary limit and that sixteen might be appropriate, if one was required, since it was the age at which many shooting clubs started.
Ms van Wyk (UDM) asked about SAGA's use of the American National Rifle Association's (NRA's) Eddie Eagle program, about the Cape Times story on an accidental shooting, and about SAGA's affiliation with American and Australian gun organisations.
Mr Hood answered that the Eddie Eagle program was ideology-free and that SAGA did not hide its use of this program. He also answered that the Cape Times story was unfortunate but simply a good example of a bad use of firearms. And he noted that SAGA's affiliation with the NRA amounted to the fact that they both used the same independent research and that there was no formal contact with any Australian gun organisations.
The Chair noted that he had allowed this presenter more time than any other presenter and that he would hopefully be able to say that he had made a contribution to the legislation.
Gun Control Alliance
This Alliance grouped together a number of organisations (among them community police organisations, the South African Council of Churches, other churches, and Men Against Women Abuse) fully supporting the Bill. The presenter spoke of creating a climate free of violence. The Alliance would support strict controls, such as gun-free zones, no gun ownership by those under 30, and clear backgrounds and approval from the community police for prospective gun owners. For identification and tracking purposes, the Alliance would support a requirement that prospective gun owners have a permanent residence and would require identification cards and fingerprints. The Alliance indicated the present success of gun-free zones in schools and churches and expressed its hope that this kind of hope could be extended to hope for the country as a whole.
Mr Ndlovu (IFP) asked about progress in community policing and asked about the discrimination that the Alliance seemed to propose against gun ownership for those living in hostels or squatter camps.
Dr Geldenhuys (NNP) asked about who paid for security systems in existing gun-free zones.
The presenter indicated that community policing had brought progress and indicated that there was no discrimination intended against those living in hostels but that those persons were often from rural areas and could easily commit crimes and flee.
The presenter did not directly answer the question as to who paid for security systems.
Advocate Swart asked if he could ask for the presenter to answer the rest of the question about banning gun ownership in hostels and squatter camps. There was some commotion. Mr Ndlovu (IFP), who had posed the original question, indicated that the presenter had not dealt with squatter camps. An ANC member asked if he was not satisfied with the answer. The Chair indicated that the presenter could indicate why he would not allow gun ownership in squatter camps.
The presenter stated that this was on account of their lack of safes for storage.
[Afternoon session to follow]
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