Firearms Control Bill: public hearings

Meeting report

SAFETY AND SECURITY PORTFOLIO COMMITTEE
14 August 2000
FIREARMS CONTROL BILL: PUBLIC HEARINGS

Chairperson: Mr M E George

Relevant Submissions:
Clay Target Shooting Association
Mark Kalell
The Homestead [no written submission handed out]
Field Guides Association of South Africa
Katherine McKenzie
Africa Christian Action
National Firearms Forum
John Kotane
Samuel Kobela
New Generation Ammunition [awaiting submission; e-mail [email protected] if required]

SUMMARY
Various firearm associations claimed that this legislation was based on the incorrect assumption that there was a link between high civilian firearm ownership and high crime. They submitted research indicating that not only was this not the case but that the opposite was true.

Amongst their policy objections to the Bill was the arbitrary limitation to the number of firearms a person can own. Even though the presumptions and the administrative fines in the Bill had been rewritten in the final draft, they were still unconstitutional because only the wording had changed. The clauses still had the same overall effect. They noted concern that the application procedures have been taken out of the tabled Bill and are to be part of the regulations. These regulations are not yet available and will not be subjected to the legislative procedure and consultation. They object to the extreme power given to police. They complained about the lack of firearm expertise on the part of the drafters and urged the drafters to work with firearms associations because they had experience in this field.

The Homestead supported the Bill with minor changes being recommended such as reducing the age for prosecution for firearm possession from 16 to 14 years of age.

The Field Guides Association proposed that field tourist guides be included as a separate category under the Bill. This is warranted by their special circumstances, namely escorting clients in potentially dangerous situations where they may be vulnerable to attack by wild animals.

Ms Katherine McKenzie, who has done comparative research in gun control legislation in other developing countries in Southern African, presented her findings. She asserted that countries such as Botswana and Zambia which have stricter gun control laws have lower gun-related crime rates compared to South Africa which is viewed as having less stringent gun laws. The Bill should aim at ensuring that gun-owners understand their responsibilities and do not endanger the lives of others through careless loss or theft of their firearms. She said that the evidence of her research showed that effective gun control contributes to effective crime control.

Catholic Justice and Peace Community wants to see a reduction in the number of guns in private hands and they suggested that a bar-coded registration system of firearms would assist in making tracing of firearms easier.

Samuel Kobela of Gun-Free South Africa (Mapela) said his community had successfully adopted a campaign of gun-free zones for three years. His organisation feels that the age limit for a gun licence should be 25 years in order to exclude school children and to make the implementation of gun-free zones in schools easier.

Africa Christian Action expressed fears that the Bill could be used by a tyrannical government in the future to the detriment of citizens. They referred as an example to the laws made by a democratically elected German government in 1928 and abused by the Nazis later when they came to power. Their view is that the more guns in the country, the lower the crime rate. They support the view that innocent citizens should be able to defend themselves with guns from attacks by criminals.

MINUTES
New Generation Ammunition (NGA)
Mr Ivan Monsieur, the Director of NGA, made the following points:
- The Act places too much additional burden on law-abiding citizens whereas the focus of concern should be on the criminal use of firearms and crime fighting.
- The Bill is based on a policy document by the Institute for Security Studies funded by foreign entities. He said that outsiders should not have an influence on the Bill because their impact was negative.
- One must compare the costs with the benefits of implementing the Act. The control of licenced firearms is not in the interest of the population. He explained that curbing legal possession of firearms in the USA and Canada had a negative effect on the crime rate (firearm crime increased when legal ownership was curbed).
- There is a concern that there are no draft regulations currently. Everything to do with the application process is therefore unknown. The regulations are very important and they should not be seen separate from the Act. The two should be seen as one entity.
- Draconian provisions are provided for in the Act such as search and seizure by the police without a warrant.
- There is a lack of firearm technical expertise on the part of drafters of the Bill especially with the definitions which should be readable and understandable. Some of the definitions are too legalistic in their wording.

Some of the objections with the definitions were:
- the definition of ''ammunition'' in Clause 1(iii) includes a propellant. This is technically inaccurate as ammunition can never propel rounds.
- the definition of firearm in Clause 1 (x)(ii) is problematic as one should either licence a frame or a barrel but not both.
- the definition of a police official in Clause 1 (xxii) (a) - (c) is unacceptable as policing should only be done by the police. The police have tremendous power and the fact that the Minister can designate anyone to be a police official as in (b) is worrying. Also in (c) the fact that members of the SANDF may be regarded as police without a state of emergency being called has the effect that there is a permanent state of emergency countrywide. If this were to be the case, then the country would be "moving backwards" to a police state as in the old days.
- in Clause 1(xxx) a security company is defined as a person. This cannot be.

Other objections
- Clause 6 (3) requires that an antique firearm may only be disposed of to a dealer. This is not necessary and it restricts the right of the individual to find a market to sell.
- Clause 11 on competency certificates has the effect that someone who has been found guilty of dishonesty (such as cheque fraud if his cheque bounces) can lose his right to possess a firearm.
- It will be impractical to check up on criminal records outside of South Africa. Further, what may be a crime in another country is not necessarily a crime in South Africa.
- NGA objects to the categorisation of firearms as this does nothing to curb crime or to prevent firearms from falling into criminal hands. Potentially an intruder could be shot and killed and the ''shooter'' be acquitted in court yet the Registrar could say that an offence was committed as the wrong firearm was used.
- The Act restricts multiple firearm ownership whereas the emphasis should be on illegal use of firearms rather than the legal use.
- Clause 23(7) provides that the police may stop someone at anytime to request production of any firearm. This is worrying because there has to be a balance between the right of the individual and the police. Police should not have the right to stop someone unless they have a reasonable suspicion or grounds. These terms limit the freedom of the individual.
- The practicality of licencing and the undue administrative burden on law enforcement for the Act must be considered.

Discussion
Mr Pheko (PAC) asked for further explanation of the comment that the drafting of the Firearms Control Bill was financed by foreign entities (outsiders).
Mr Monsieur said that the ISS policy document had been similar to the draft Bill and the ISS funding was mainly British. There was no written proof of this but he said it was a common fact. He also said that the cost of the implementing the Bill would be excessive. He referred to the large amount that the Canadian government had spent on implementing their Firearms Act.

Mr Zondo (ANC) noted the presenter's comment that they were "moving backwards" and asked for an explanation.
Mr Monsieur said that the duty of the SANDF was to defend the borders of the country. A roadblock in co-operation with police for example would be beyond the brief of the military in a democratic country.

An ANC member commented that the presenter seemed to be against police power.
Mr Monsieur acknowledged that police powers are necessary but the interests of the individual must also protected. The Bill made it possible to search without a warrant. He referred to the presumptions of, for example, if a firearm is found in someone's home, he is expected to know how it got there. However if he has a huge property and a firearm is found under a tree on his property it would be unfair and unconstitutional if a presumption operated against him.

Mr Geldenhuys (NNP) asked for the Department's response to the technical objections. He asked the presenter if he thought that the specific-use principle should be done away with and what his view was on the restriction of the number of firearms.
Mr Monsieur asked rhetorically, ''Should there be a restriction?''. He said the restrictions should be reasonable and defined on a case-by-case basis. There should be no restrictions in quantity.

Mr De-Caris, for the Department, said that the Department is still discussing technical issues. This includes discussions with their Central Firearm Register and ballistics experts. The Department will present what they think should be technical changes.

On the ISS issue he said that the ISS was an independent body and it had nothing to do with the State. They acted as facilitators with regard to the Bill. If they did get foreign funding then that was their right. The guidelines for the Bill and the policy document came from the Department itself.

National Firearms Forum (NFF)
Mr Alex Holmes focused on three areas:
1) Flawed conception - the legislation in question is based on the incorrect presumption that licenced firearm ownership contributes to violent crime. The belief is that liberal firearm legislation equals more violent crime and strict firearm legislation means less violent crime. This is not the case. The UN Commission on Crime Prevention and Criminal Justice had conducted an international survey on firearm regulation and had found no correlation between firearm ownership and violent crime.

2) Problematic technical execution and implementation as the Bill contains many technical errors due to a lack of expertise regarding firearms by the drafters and a lack of consultation with those groups who do have the necessary expertise. One such example is the Bill's prohibition on military rockets, grenades, and anything used to propel them. The idea is sensible but the wording is flawed as it would outlaw the normal gunpowder used in all ammunition.

Another example relates to the safekeeping of ammunition. The Bill applies the same safekeeping requirements to ammunition as to firearms. This is a bad idea because storing ammunition in the prescribed steel safe creates the risk of explosion. This risk does not exist when stored normally.

No proper study has been undertaken into the resources required to implement the Bill. The primary problem with existing legislation is a lack of enforcement and a shortage of resources to meet its obligations. The Bill will require a huge increase in manpower and other resources to administer this new system.

3) Denigration and infringement of rights - the various presumptions in the Bill are contrary to the Constitution. The redrafting of the presumptions has made no change to the actual effect of the Bill. Nothing has changed other than the wording.

The creation of administrative offences in the Bill is also an infringement of rights.

The Bill places too much emphasis on the type and number of firearms a person may possess rather than on the person. Once a person has been vetted as suitable, the number and type of firearms he owns should be a secondary issue. Thus, they do not support arbitrary numerical limits.

Discussion
Mr Geldenhuys asked if Mr Holmes had estimated what the implementation of the Bill would cost.
Mr Holmes replied that it was hard to say. The budget would depend on what kind of software the police were going to use. The Canadian system cost two billion rand. The Central Firearm Registry has been understaffed so from a resource point of view more policemen were needed. At the moment there were a few people in Pretoria doing 180 000 registrations per year. The same amount of people would now have to do more registrations.

The Chairperson commented that the Committee would consider the issues of the budget and the definitions and he acknowledged that some of the definitions were badly drafted.

Clay Target Shooting Association
Ms Sarah Kalell contended that the effect of the Bill would be a burdensome licencing procedure that would deter law-abiding citizens from participating in shooting sports.

Those points they do not agree with in the Bill include:
- Once a person has gone through the vetting procedure and been considered suitable and responsible to have firearms then there should be no restriction on the number of firearms they can own. Also the wording ''may be allowed to get a licence'' in the chapter on competency certificates should be changed to ''shall be allowed to get a licence''.
- Their biggest gripe is that there were not any regulations yet and therefore everything to do with the application process is unknown.
- They proposed that the Bill must be sent back for a technical rewrite and that the drafters work with associations experienced with firearms.
- They noted that the Constitution must be upheld as the presumptions and administrative fines infringed upon individual's rights. They emphasised that international research has found no correlation between high ownership of civilian firearms and high crime and urged the committee not to ignore this.

Discussion
Mr Pheko asked how sports shooting contributed to the economy of the country.
Ms Kalell replied that members are also hunters and collectors. They have an international competition every other year. This brings in foreign currency and it advertises South Africa. There are various local competitions. They employ labour at their clubs and they support dealers. She admitted that they did not make a huge contribution to the economy but added that ''every bit counts''.

In reference to a point in their written submission about a US Department of Justice study on children which showed that guns do not turn children into criminals, Mr Zondo asked how they could compare South African children with Americans.
Ms Kalell said that where children were involved in guns due to participation in shooting sports, they were more responsible about guns. Therefore one could compare any child over the world to South Africa.

An ANC member asked what is the appropriate age for children to use firearms.
Ms Kalell said that some children learned about firearm safety as early as four years old. Generally ten or eleven years of age was a good time to learn to start shooting.

The Homestead
Ms Annette Cockburn stated that as a non-government organization dealing with street children, they are concerned by the proliferation of firearms on the streets and the number of street kids that are being shot in gang-related activities. She said that she was shocked by the self-interest of the pro-firearm individuals who had made submissions prior to her. She said there was a narcissistic attitude as to why firearms should be made available. She criticized the pro-gunners for nagging that there was a lack of consultation when the Bill was drafted. She emphasised that this hearings process was indeed to facilitate transparency and consultation.

Ms Cockburn stated that their organisation is in favor of stricter gun control and support the Bill overall particularly with Clause 11 which dealt with the issue of competency certificates being a requirement for potential firearm-licence applicants. She felt that money and personnel should be made available to support this.

They were in favour of Clause 11(2) which set the age limit to qualify for a competency certificate at 18 years or older. She however was concerned about Clause 11(3) and felt that it should be deleted because eligibility should be excluded on the individual's conviction not the sentence. She also felt that Clause 15(2)(a) and (2)(b) are too lenient and that stricter criteria should be formulated to deal with eligibility. She fully supported the two year validity period for the competency certificate. She expressed concern over the provision of Temporary Authorizations as it was open to abuse and in order for the Central Firearms Registry to be a success, continuous input is required.

Their organisation is in favour of Clause 105 as it gives the Registrar of Firearms the power to declare a person unfit to possess a firearm. Ms Cockburn asserted that the threatening with a firearm was in itself a crime, especially when linked to crimes such as rape and domestic violence abuse. Clause 106 which states that it is a requirement that a court must declare a person unfit to possess a firearm should be deleted as this limitation is problematic.

Ms Cockburn stated that Clause 120 which deals with presumptions of possession of firearm or ammunition was vague and open to abuse. This section use the phrases, "reasonable steps and reasonable certainty", which she feels is undefined. She also felt that the age limit for prosecution in Clause 120 (2) should be lowered from 16 years to 14 years so as to protect communities against youngsters possessing firearms.

Finally her organisation supports Gun-Free Areas as set out in Clause 143, which includes Children's Homes.

Discussion
Advocate Swart (DP) asked Ms Cockburn if she had any proposals as to how to rid society of illegal firearms since statistics had been previously introduced to show that there was no correlation between licenced firearms and crime.

Ms Cockburn answered that stricter control of licencing and illegal firearms are two sides of the same coin. One cannot look at statistics from other countries as the context and variables differ. She added that when youngsters are incarcerated in state prisons for minor offences they often develop into hardened criminals as a result of interaction with prison gangs.

Dr Geldenhuys (NNP) asked Ms Cockburn which clauses does she think will be difficult to implement. Her answer was that all those sections dealing with procedure will be difficult to implement as vast amounts of resources will be required.

In reply to Dr Geldenhuys's question as to the source of the guns held by street children,
she answered that they were obtained from gangs. Dr Geldenhuys also asked her whether she believed that stricter gun control would alleviate this problem and she answered in the affirmative.

Advocate Swart (DP) stated that official statistics showed that only 0,5% of legal firearms are stolen and he wanted to know if she could shed light on the benefit that would justify the cost of implementing the restructuring of legal firearm restrictions. Ms Cockburn was unable to answer the question.

Mark Kalell (Individual Submission)
Mr Kalell said that Clause 120 of the Bill which states that a person is presumed guilty of possession of a firearm unless that person can raise any reasonable doubt as to the contrary, is in contravention of the Constitution as the onus is on the individual to show that he is not guilty.

Another concern was that Clause 19(4) restricts the use of a firearm to only that use for which it was licensed. He feels that his right to defend family and property is being infringed. As such he proposes that once an individual has satisfied the government's criteria to possess a firearm, it should be able to be used for any lawful purpose including self defence.

He stated that hunting and sport shooting are his hobbies and the government is persecuting him by trying to take away his past-times. The multiple firearms which he uses is as a result of his past-times and poses no threat to national security. Mr Kalell asked for proof that the more licensed firearms there are in circulation, the more the likelihood that they will be stolen. He suggested that where a person applies for his first licence, stringent checks must be done to ensure that the individual conforms to all the requirements. However once the criteria have been met, the person should be able to have as many firearms as he may want.

Mr Kalell expressed his shock at Clause 94 which restricts the licence holder to only 200 cartridges at any one time. As a serious sportsman and hunter this ammunition limit is totally impractical. He can only presume that the drafters did not confer with shooting associations on this issue.

Mr Kalell noted that the previous draft of the Bill included further restrictions which in the tabled Bill are absent as they will be enforced by regulations. He points out that these regulations will not have to pass through any legislative procedure and will hence come into effect without consultation. This was in effect giving legislative powers to the executive which is unconstitutional.

Mr Kalell claimed that the Minister is given too much power to declare a firearm prohibited, to declare a 'gun free zone' or even to change law by regulation. He feels that if any of his weapons is declared a prohibited weapon and is confiscated without compensation, this is an infringement of his right to property. Mr Kalell further explained that the Bill of Rights states that compensation should be determined by a court of law, but in Clause 140, the Registrar decides on the compensation. He proposed that this clause be deleted from the Bill and that any declaration of prohibited weapons be passed by Parliament.

In conclusion, Mr Kalell recommended that the Bill be referred back to the drafting committee with the following instructions:
- To make use of the National Firearms Forum and its members
- The re-draft must comply with the South African Constitution
- To become knowledgeable about firearms for hunting, sport and self-defence
- To heed well-documented research.

Discussion
A member of the ANC asked Mr Kalell to explain his concern about the lack of transparency. Mr Kalell answered that the firearms association to which he belongs was not consulted about ammunition restrictions. The Chair reacted by informing Mr Kalell that this is exactly why everybody has now been invited to contribute to the Bill.

Another member of the ANC asked how will restrictive firearms legislation lead to a thriving black market. Mr Kalell stated that inevitably citizens will take up illegal arms, so such a market can develop.

Field Guides Association
Mr D van der Zee said his association represents tourist guides in natural areas with a membership of about 2500 persons. A large number of these guides also operate in private game reserves.

With the increase in reserves, field guides are an important part of the tourism industry. He said there is a need for field guides to be able to use lethal force to stop charging animals and protect their clients. Currently if a guide uses a gun in defending his clients and kills an animal, an elaborate investigation always follow.

In the Bill field guides would fit under the category "occasional hunting and sports shooting", "dedicated hunting" and "dedicated sports-shooting". Field guides would be required to join hunting associations which is not appropriate for their circumstances. Mr van der Zee said that field guides should actually fall under "self defence" otherwise field guides will find themselves in a situation where they cannot defend their clients. The Field Guide Association suggests that a separate category of tour guides be included in the legislation.

He also commented that certain firearms that would suit field guide circumstances are not included in the Bill. The Association also suggests that field guide licences be valid for five years. It is happy with the restrictions on ammunition as it feels these would cover normal training requirements.

Discussion
A committee member asked how long does the association think the renewal period for competency certificates should be. Mr van der Zee said for practical reasons his association feels it should be three years.

Katherine Mckenzie
Ms McKenzie commended the committee for its transparency and the work it is doing in relation to the Bill. Her presentation discussed the findings of her comparative research in gun control legislation in developing countries in Southern African. She said that the evidence of her research showed that effective gun control contributes to effective crime control. Her submission includes a critique of some of the technical aspects of the Bill.

Discussion
Dr B Geldenhuys (NNP) said Ms McKenzie asserted that illegal firearms in neighbouring countries originated from South Africa, yet the South African Police say that the bulk of illegal firearms are from neighbouring states.

Ms McKenzie explained that she did not say all illegal firearms come from South Africa but that firearms of South African origin find their way into neighbouring countries.

Advocate P Swart (DP) said an earlier presenter had informed the Committee that there has been no comparison made between Botswana and Namibia. Also there is no indication of statistics for Swaziland which has the strictest gun control with the highest violent death rate involving guns. On the other hand Zimbabwe which is said to have less stringent gun control has fewer gun-related killings.

Ms McKenzie emphasised that her research is not the final word on gun control in the SADC. She said she would encourage the government to do their own research regarding comparison between Botswana and Namibia. She pointed out that the statistics received from Botswana and Namibia are not of the same years and it would be dangerous to compare murder rates from say 1995 in one area with 1998 in another country. She said she did not feel the situation between the two countries is comparable.

Mr M Pheko (PAC) commented that it is generally perceived that guns used in crime come from outside the country yet the presenter asserts they are from South Africa. He said it is important that the Committee should have properly researched information because they would not want to base their decisions on flawed information.

Advocate Swart asked if there is any co-relation between the number of per capita licensed firearms and murder crimes committed with a gun.

Ms McKenzie said Botswana (which has implemented a total ban on the issuing of handgun licences) has a murder rate of 15 per 100 000 members of the population whilst South Africa has a murder rate of 64,6 per 100 000 with murder weapon of choice being guns.

Catholic Justice And Peace Community (Rustenburg)
Mr John Katane said South Africa has one of the best constitutions in the world but South Africans are living in fear because of guns. His organisation's main problem with the Bill is that there is no certainty that it can be implemented successfully.

Their view is that families should not be allowed to possess a "big rifle" in a built-up area. Mr Katane emphasised that he is not against gun shops but feels that the number of guns should be reduced. He suggested that a system of bar code registration of guns could be used to make it easier to trace weapons. A shorter renewal period should be applicable because when it is long, people do not report lost guns. He said he supports gun free zones and believes that learners and teachers should be searched for guns when entering school premises.

Discussion
Dr Geldenhuys said the bulk of applications for gun licences are said to be from the Black community. A leader in Mamelodi said that Black people need guns to protect themselves because they cannot afford security firms and high fences. He wanted to know if Mr Katane thinks this is the true state of affairs.

Mr Katane said that while it is true that most Black people cannot afford high fences and security firms, when a robbery takes place at gunpoint it is mostly not possible for people to be able to defend themselves with a gun.

Gun-Free South Africa (Mapela)
Mr Samuel Kobela said Mapela is a rural community 30 km west of Portgietersrus in Northern Province with a population of above 50 000. He started a gun-free project in 1996 in his community after seeing a newspaper advertisement about Gun-Free SA (GFSA). A committee of 10 people was formed and a workshop was organised and attended by churches, tribal authority, business, SAPS, Health and the national office of GFSA. After this workshop a number of institutions, including schools, shebeens, clinics, tribal hall, constituency offices, churches and shops declared themselves gun-free zones. The progress made in the community is pleasing.

The Mapela community supports the Firearm Control Bill. On 11 June 2000 the local traditional leader in her capacity as member of the provincial legislature told the community that she supports the Bill and gun-free zones in her community. She said the Bill fitted in with her vision for the Mapela Community "to see all children in every village of Mapela to be able to live in freedom without guns and violence".

The Mapela GFSA supports Chapter 20 of the Bill on firearm free zones and the powers given to the Minister because it feels these are about community safety. They submit that 18 year olds are not ready to be given permission to have guns and propose that the age limit should be changed to 25 years of age. In this way school children would be excluded and this would make implementation of gun free zones in schools easier.

Discussion
Advocate Swart asked whether there has been any reduction in gun-related violence since the introduction of the gun-free campaign.

Mr Kobela said that since the implementation of the campaign they have not heard of gun-related violence in their community which was a frequent occurrence before they engaged in the gun-free campaign.

Africa Christian Action
The Director of Africa Christian Action, Mr Charl van Wyk, said that he had brought with him as expert witness, the Executive Director of Gun Owners America who has studied gun control in a number of countries.

The expert witness compared the Bill to legislation passed by democratically elected governments in countries such as Germany in 1928. When a tyrannical government later took over power in Germany, they used this law to enable the slaughter of six million people.

He urged the Committee to consider carefully the definition of self-defence given in the Bill. He said according to data provided by Dr John Locke, the more guns there are, the fewer the crimes. Dr J Ludwig, one of Dr Locke' s critics, had found that in comparing states where gun control was stricter to states where there were none, that this so-called Brady law had no effect on crime rate in the United States. Instead it made it easier for people to obtain firearms illegally off the streets.

Locke's view is explained by the fact that criminals act in the now without planning for the future. Their only restraint is "will I get away with it?". Research conducted by Oxford University and the US Justice Department found that the rate of violent crime in the United Kingdom, where stricter gun control law is in place, had risen above that of the US. Incidences of criminals breaking in while somebody is indoors have risen in the UK which is seen to point to criminals being aware that they would not meet with restraining force since fewer homeowners have guns. It is felt that instead of lessening gun related crime, the Bill could easily reap unintended consequences.

Mr Charl van Wyk followed up by reading the Africa Christian Action submission.

Discussion
Mr R Zondo (ANC) wanted to know what Mr van Wyk thought of the 1928 Germany scenario when comparing it with what Mr Simon Kobela said is happening in his community.

Mr van Wyk replied that what Mr Kobela talked about is a community-based initiative which is not imposed by the state. He likened the situation to that of pornography shops going bankrupt because the community had decided they do not want them instead of the state having closed them.

The Chairperson ruled out certain questions as they were not for the sake of gaining clarity but for the purpose of debating with the presenters which was not the purpose of the process. He thanked the presenters for their input and the meeting was adjourned.