A summary of this committee meeting is not yet available.
SAFETY AND SECURITY PORTFOLIO COMMITTEE
4 September 2002
EXPLOSIVES ACT; IMPLEMENTATION OF FIREARMS CONTROL ACT: BRIEFING
Documents handed out
Presentation on Implementation of Firearms Control Act
Briefing on Explosives Bill (Appendix 1)
Presentation by Explosive Unit on Explosives Act (Appendix 2)
The presentation by the Explosives Unit involved a practical demonstration of the types of explosives involved. The Unit provided background information to explosives control in South Africa and its governing statutes and listed the functions of the Inspectors and Chief Inspector of the Explosives Unit Office. The characteristics of bomb disposal in South Africa were also discussed, as well as the Explosives Act of 1956 and Regulations and the structure of the new Explosives Act. The presentation concluded by listing the various explosives control authorities other that the SAPS.
The discussion on the presentation raised concerns with whether the Department of Safety and Security has the necessary budget and manpower to implement the Bill once it is passed.
The presentation on the Implementation of the Firearms Control Act focused on the SAPS firearm strategy, its focus areas and the strategy's management structure. The implementation processes were broken down into the roles to be played by designated police officials, the licensing of firearms with special reference to the functions of the firearms registration centres and enabled police station as well as the current, interim and new firearm control IT system. The presentation also dealt with certain contentious issues effecting the implementation of the Act and its impact, especially on the applications for firearms licenses.
The major issues raised during the discussion on this presentation included the delay in the implementation of the Act and why problems with regard to the implementation of the Act were not brought under to the attention of the Committee. Members expressed their concern regarding the regulations that were not in place and felt that this is an integral part of the process of training Designated Police Officials, and it was questioned whether this delay is deliberate.
The presentation on the Explosives Bill provided background information to the Bill with regard to the effects of modern technology, inadequate penalty provisions, increased use and availability of fireworks and international conventions on explosives. The objects of the Bill are to ensure adequate control over explosives and to ensure that offences are met with severe penalties, and a brief summary of the provisions of the Bill were detailed.
The discussion on the Bill raised concern with whether SAPS has the necessary budget and capacity to properly implement the Bill.
Briefing by SAPS Explosive Unit
Superintendent R F Reijnders, from the SAPS Explosives Unit, briefed Members on the laws pertaining to the manufacture, storage, sale, transportation and the use of explosives in South Africa. He stated that at the moment the Department of Safety and Security and others are being guided by the Explosives Act of 1956 and its Regulations.
Supt. Reijnders stated that in 1992 the control over the manufacturing of explosives at the factories, which is dealt with in Sections 11-22 of the Act and chapter 2 of the regulations, was transferred to the Department of Labour. This is because the health and safety of employees and those involved in the manufacturing of explosives fall within the ambit of the that Department. Since that time explosive inspectors have been held responsible for insuring that adequate security measures are exercised regarding explosives.
Supt. Reijnders briefed Members about types of explosives available in South Africa, and showed Members some of the explosives that are used by Members of the public to conduct sabotage activities, such as the book bomb, pipe bombs and firecrackers.
Mr R Zondo (ANC) asked Supt. Reijnders to clarify who is responsible for combating the use of illegal explosives in this country.
Supt. Reijnders replied that all matters relating to explosives and allied concerns fall within the investigative jurisdiction of SAPS. Any place where there is a suspicious parcel or illegal explosives is viewed as a potential crime scene.
Ms A Van Wyk (UDM) asked Supt. Reijnders to explain what, in his opinion, was the shortcoming of this Bill.
Supt. Reijnders replied that Assistant Commissioner P J Jacobs, SAPS Head: Legal Component of Crime Operations, would be better placed to answer questions relating to the substantive provisions of the Bill.
The Chair informed Members that the question would only be answered after the House has discussed the Bill, and requested that Supt. Reijnders be made available when his expertise is needed by this Committee when processing the Bill.
Asst. Comm. Jacobs answered in the affirmative and informed Members that numerous workshops have been held in the provinces to identify the problems related to explosives, and al relevant parties were consulted in drafting the Bill and the new set of regulations.
Mr J Schippers (NNP) asked whether the Department has the necessary manpower and budget to implement the Bill once it is passed by Parliament.
The Chair intervened and informed Members that that question can only be answered by the SAPS management, because Supt. Reijnders is an expert in the explosives field.
Briefing on Implementation of Firearms Control Act
Director J J Bothma, SAPS Head: Central Firearms Register, conducted the presentation (see document above). He detailed the SAPS firearm strategy, its focus areas and the strategy's management structure. The presentation dealing with the implementation processes was broken down as follows. The roles to be played by Designated Police Officials (DPO), the licensing of firearms with special reference to the functions of the Firearms Registration Centres (FRC) and Enabled Police Station (EPS) as well as the current, interim and new Firearm Control IT System. The presentation also dealt with certain contentious issues effecting the implementation of the Act and its impact, especially on the applications for firearms licenses. The following additional matters were raised during the presentation.
A fifth pillar was added to the SAPS Firearm Strategy, and indicated on the slide entitled "SAPS Firearms Strategy", to deal with regional and sector co-operation. The presentation will focus exclusively on the first two pillars provided on the slide entitled "Management Structure of FA Strategy".
The fourth point on the slide dealing with "SAPS Firearm Strategy" is a very important concern to SAPS. The fifth point listed ensures the planning, implementation and monitoring of firearm initiatives in order to reduce the levels of crime in the regional areas, and in South Africa as a whole. The slide entitled "Implementation of Processes for Firearms Control" refers to DPO's, because currently SAPS officials dealing with firearms control are appointed on an ad hoc basis. Since 1999 a pilot model has been launched in the Western Cape Province that established the EPS, which would function in the designated area as provided for by legislation.
With regard to the next slide dealing with "Designated Firearms Officials" it should be noted that these officials would perform the inquiries listed in Section 102 of the old Act and Section 11 of the new Firearms Control Act (the Act). These officials have been trained over the last six months, and the success is significant, and these officials will operate at police station level and would be responsible for functions at the FRC's. A pilot project was hosted by the Gauteng Province and the Designated Firearm Officials (DFO's) performed all the administrative processes of firearms registration, as well as registration by firearm dealers, manufacturers and gunsmiths. They also review firearm licenses, serve as an advisory service, take fingerprints, compose a profile of the applicant, conduct the necessary analysis of each applicant and conduct a proper background check on the dealers, manufacturers and gunsmiths as well.
An awareness campaign was launched in this regard, safe storage facilities were also launched and the current database was checked and outdated information was updated. Those who remained in possession of firearms after they had been declared unfit to do so under Section 102 of the Act or Section 11 of the old Act would have had those firearms confiscated.
The slide detailing the "Model of Firearms Registration Centre" indicates that the FRC would have control of all police stations within its area. This avoids duplication of functions because it imposes a proper standard and implements the legislature. This project was piloted in Gauteng because 35% of legal firearm owners reside in that province, and also because of its geographical size, population density, rate of economic growth and high volume of firearm-related crime. It is expected that 22 FRC's will be implemented by 31 December 2002 and a proper evaluation of the FRC's would then be conducted. The National Commissioner and the Minister of Safety and Security (the Minister) will be approached to discuss whether the FRC's can be implemented in the larger provinces, such as the Northern Cape.
The factors that would be considered here include the annual number of firearm licenses processed, the geographical placing of the police stations. Also the suitability and availability of the necessary infrastructure and the number of dealers etc. Also, recommendations of the provincial management structures with regard to the development of the police station itself.
With regard to the following slide entitled "Firearm Control Mechanisms" it should be noted that the registration would take place at the EPS's and the processing would then take place at a central point. As far as the slide dealing with "Capacity Building" is concerned, SAPS has spent a considerable amount of time on this aspect over the last twelve months, and it has to be realised that it takes time to acquire the necessary resources and infrastructure. Furthermore, 632 DFO's have been deployed in the provinces, and significant focus has been placed on all those aspects listed on that slide.
The following slide deals with the "Firearm Control IT System", and here it has to be mentioned that the current IT infrastructure only meets the requirements laid down by the old Act, and that infrastructure is not equipped to meet the requirements of the new Act. For this reason an Interim Firearm Control System has been implemented to function during the transition between IT systems, and the third point on the slide indicates that an adaptive maintenance programme will have to be completed to give effect to those functions listed under point two on the slide. The aim here is to enable each DFO at the EPS and FRC to process the applications via computer by the end of April 2003.
Those slides illustrating the new Firearm Control Interim System indicates that all relevant information regarding the applicant and the firearm will be available on the system, so that the person may be easily tracked. The tender for the printing of the licenses will be allocated at the end of September and the new licenses will, unlike its predecessor, contain relevant information on both sides. These will includecluding the date of issue, the purpose for which the firearm is to be used and information on the firearm itself. The aim is to have all these in place by 31 December 2002 in the bigger provinces, but there is a need for a period of assessment of the printing machine's performance.
The Business Process Reengineering Study (BPR) aims to provide the Department of Safety and Security (the Department) with an effective mechanism to deal with firearms from the time it is manufactured, its importation and individual ownership till it is either exported or destroyed. The tender process for the new IT system will be published in October 2002 and will run for a period of six weeks, will then undergo an evaluation period of six weeks and will the tender will then be allocated. Should it be decided to buy a system which is already in place, it could be implemented soon and relatively minor adaptive maintenance matters could be done. But if it needs to be built, it would then be very difficult to fix a date by which it could be fully implemented. The aim here is to Keep Things Straight and Simple (KISS) so that the system is accessible at a grassroots level.
With regard to the slide dealing with the standards to be employed here, these standards would be devised by the SABS and this programme will commence in January 2003 with the SABS technical committee. These standards would apply to institutions outside government and to government alike, and therefore these standards need to be aligned.
The slide dealing with "Firearm Free Zone (FFZ)" is a new matter and requires monthly consultation and co-operation from the community. A pilot study was launched in various schools throughout the country and the results will be used to decide the role and responsibility of the Department here, and will also be used to establish good practice guidelines.
Under the slide entitled "Communication" it has to be mentioned that a significant amount of time and effort was spent on this matter to inform all SAPS officials, children and firearm holders, and good feedback was received from this awareness campaign. Visits have also been made to the provinces and relevant interest groups to ensure compliance with the Act.
The first slide entitled "Impact" indicates a reduction in registered firearm dealers which is due to the fact that the reselling of firearms between owners, and this would then result in the reduction in registered dealers. The following slide of the same name details the computer audit that has been conducted in 105 out of a total o 178 state departments, and involves a three-pronged approach. The first is the rectification of records, the second focuses on rectifying the particular state department's system and to establish a central system and the third concerns the handing-in of firearms. A large number of firearms are handed in here for destruction. The security firms will also be audited and 300 have been audited to date, and the audit has yielded unsatisfactory results. The new Act provides that any failure to comply with its provisions will not be tolerated, and here these security firms will be focused on.
The Chair asked Dir. Bothma to explain the situation regarding the implementation of the Act, as questions were constantly being raised by opposition parties regarding its implementation.
Dir. Bothma responded that, as he mentioned at the outset, the presentation only focuses on the first two pillars of the strategy, and the remaining three pillars would then have to be discussed in order to properly answer the question. It would not be a problem to brief this Committee on those three pillars at another time.
Secondly, the Chair noted that the number of firearms registered has dropped to 150 000, and requested clarity as to whether this amount reflects those that have applied or does it refer to the total number of licences issued.
Dir. Bothma replied that it refers to the total amount of applications received before they were processed.
The Chair then requested Dir. Bothma to inform Members of the precise number that were approved.
Dir. Bothma replied that this would be made available.
Thirdly, the Chair contended that experience has shown that most South Africans in possession of firearms are not suitable to carry them because they do not observe the basic safety precautions and handling and care of firearms. The presentation also indicated that only 1 576 have been declared unfit to possess firearms, and this figure confirms that SAPS "has not even started to do [its] job".
Dir. Bothma replied that this is due to a lack of knowledge by the official, and the Act aims to resolve this problem.
Adv P Swart (DP) thanked Dir. Bothma for conducting a comprehensive presentation and contended that the implementation of the Act is "two years too late". The Committee had recently embarked on a visit to the Mpumalanga Province and Members were overwhelmed by the level of confusion with regard to whether a DPO has been put in place an a specific area. The RFC's in the Gauteng Province include all police stations and also have a DFO in place, who only deals with firearms registration. Where then does the DPO concept come from? Clarity is thus requested as to the exact nature and function of the DPO's.
Ms Van Wyk requested clarity as to whether the DFO's would be stationed at each police station, and whether they would do inspections locally or at the EPS.
Dir. Bothma replied to these questions by stating that the proper training of SAPS personnel is an important issue, especially with regard to those Section 11 inquiries in which South Africans are authorised to own and operate firearms when they clearly should not be granted such licenses. The aim here is to ensure that the DFO's are properly trained, and a document has been agreed to which allows the Superintendent to delegate such powers to the Captain. The SAPS is not completely satisfied with this situation but it is a "kickstart", and the situation will be improved in future.
Furthermore, the PFMA imposes a responsibility on SAPS to implement the Act effectively and in an efficient and cost-effective manner. SAPS has begun implementing twenty two FRC's in the Gauteng Province to deal with firearms alone, and their functions would be expanded at a later stage. Other provinces use the DPO model because the FRC's have such overwhelming workloads that DPO's have been appointed to deal with matters relating to the Liquor Act as well, because it has been identified that firearm-related matters are often linked to liquor-related matters. EPS's only deal with firearm-related concerns, and when a background check is conducted this goes to the DPO.
Secondly, Adv Swart stated that this Committee was informed that the audit of all government departments would be completed by the end of 2002, yet Dir. Bothma has just informed Members that 105 out of a total of 178 departments have been audited to date. The presentation contends that these controls will be put in place by July 2003, but the problem here is that there is a difference between the situation in 2001 when the audit commenced and July 2003.
Dir. Bothma replied that SAPS is not looking for excuses here but there is a split between national and provincial governments, and investigations are then conducted when these departments alter their information, such a change in the names of firearm holders. The aim here is then to educate personnel with regard to the processing of the firearms and also to capture the information in an attempt to find means to link the various government departments to a central firearms system. This would allow accurate and updated records to be maintained, but this process will take time.
The departments alone have to decide whether the firearms should be destroyed or handed over to SAPS, and SAPS cannot influence them here. All the provincial heads are involved in this process, and Dir. Bothma assured Members that the DFO's will execute their functions properly once the necessary capacity has been put in place.
Thirdly, Adv Swart asked how SAPS would ensure that the vehicles at the police stations would be utilised solely for the purposes of inspecting matters pertaining to firearms.
Dir. Bothma stated that the vehicles would primarily be used for matters concerning firearms, but there are also circumstances in which it could be used for other legitimate emergencies, such as in response to the scene of a rape or murder.
Adv Swart asked whether those who applied for firearm licences before the new Act was passed have to comply with the provisions of the new Act and, if they do not, whether they would have to be relicensed as of April 2003? How then will such cases be dealt with during the eighteen month transition period?
Dir. Bothma stated that licenses were issued in terms of the provisions of the old Act.
Adv Swart asked whether applicants needed to re-apply when the new licences will be issued, and who would bear the costs of the second application, should it be necessary?
Dir. Bothma replied that those licenses were issued under the old Arms and Ammunitions Act, with the result that as of April 2003 they would have to be relicensed. The applicant would then have to pay again.
Ms A Van Wyk (UDM) stated that she differs from the opinion expressed by Adv Swart because this Committee asked SAPS at every step of the way whether it would be ready to implement the Bill, and Members were assured that it would be done. Members were also told that the implementation of the Business Process Reengineering Study (BPR) was almost complete, yet the presentation just delivered contradicts exactly what was told to this Committee on previous occasions. Dir. Bothma has also stated during the presentation that FFZ's are being introduced for the first time by the Act, but this is "nonsense" because Parliament is and has been an FFZ.
Dir. Bothma responded that SAPS was ready to implement the Act but had to decide whether this should be done effectively, and it was thus decided that it would better serve the community implement the Act properly. The tender process can be rather simplistic, but SAPS wants to provide a proper licensing service and it does have the capacity to print one million licenses per year.
The BPR has been completed, but the SAPS legal advisor said that the tender process has to be carried out so that the process may comply with the PFMA. The result is that this tender process would be completed in eighteen months time, yet SAPS can implement the Act immediately if it is told that it no longer has to call for tenders.
The presentation stated that FFZ's are new in that it is the first time that they have not before been dealt with legislation. This process has to conducted and implemented properly, and here schools will be focused on in order to develop a code of best practice.
Secondly, Ms Van Wyk stated that a letter was received from the Minister stating that the regulations would be finalised in 2002, but they have not yet been put in place. It was reported that two people were drafting the regulations, but one was employed on a contract basis and services were terminated, and work on the regulations then came to a standstill. Another person was then appointed but who has also resigned leaving the task to a further third person. How would the DPO's be trained if the regulations governing their functions and duties have not yet been finalised? What type of training will they then receive?
They may be appointed as DPO's now, but when a shortage of SAPS personnel occurs in future they will disappear within the system, with the result that no-one would perform that designated function.
Dir. Bothma replied that Asst. Comm. Jacobs would be better placed to respond to questions regarding the regulations but stated that SAPS has learnt that the phasing-in of regulations is the preferred approach, and it was thus decided to break the implementation of the regulations into different phases. Should all the information be implemented at once it would take ages to operate effectively.
Asst. Comm. Jacobs confirmed that it was being done by a contract worker whose service was then terminated, and the replacement has also recently resigned. This matter does fall within his directorate, and in future it will be ensured that one person alone does not perform this task. The present set of draft regulations were completed a week or two ago and they now have to undergo proper legal scrutiny, and the initial view is that they give proper expression to the policy issues.
There is still work to be done on the regulations and it mainly concerns the legal issues connected to certain provisions, and there are only minor alterations to be done with regard to grammar and punctuation. An example of this would be Section 84 of the Act, which does not currently exclude SAPS personnel from handling firearms in public, yet this has to be done in practice and officers often have to operate the R5 rifle. The other amendments relate to instances in which the language of the Act has to be made compatible with the previous legislation.
The Chair requested Dir. Bothma to provide Members with a list of names of the police stations where DPO's are already working.
Dir. Bothma replied that he did not have the list with him but would make it available at a later stage.
Adv Swart requested a list of all the EPS's as well.
Dir. Bothma agreed.
Mr O Kgauwe (ANC) contended that the SAPS delegation has basically been "telling lies" here in Parliament because it has concluded an agreement declaring that it would be able to implement the Act. When SAPS discovered that it would be experiencing problems in implementing the Act it did not come back to Parliament for assistance, and now that it is experiencing problems in implementing the Act it has informed this Committee of the problems. This would seem to indicate that SAPS does not take this Committee seriously.
Furthermore, with regard to the government Departments, SAPS also contends that it is looking for officials to specifically deal with firearm-related matters, only to then state that there are now insufficient numbers of SAPS personnel to do this. The result is that those departmental officials are being granted the opportunity to hide those unlawful firearms. Is this the SAPS strategy? It was also mentioned earlier that too many security firms operate unlicensed firearms, yet SAPS does nothing to address this problem.
Dir. Bothma replied that police officials need to be trained properly and that officials had to be appointed at area level to co-ordinate the processes.
The Chair asked how SAPS would determine whether a person is fit or unfit to obtain a firearm license
Dir. Bothma replied that there is still confusion around this aspect but there is an awareness campaign currently running. The pamphlets of the campaign will be made available to Members.
The Chair suggested that SAPS is putting the Minister in a very difficult situation because he tells Parliament one thing only for SAPS to address this Committee and say something else. This could be construed as providing Parliament with false information or even deliberate misinformation, because it is the Department that informs the Minister. Parliament and the Department share a common goal: to ensure that firearms are operated "by good people" and, should SAPS experience any problems it has to inform Parliament. The aim here is not to demoralise or lambaste the Department, but rather to empower it to properly do its work.
Mr A Maziya (ANC) asked what exactly must go on tender.
Dir. Bothma replied that the interim firearm control system is currently being employed by SAPS and it is the new system that has to be placed on tender, and the new system will then be linked to all government department systems.
Secondly, Mr Maziya requested timeframes for the implementation of the Act. There seems to be a deliberate go-slow in the public service with regard to implementation, which is very frustrating. SAPS needs to feel pressurised to meet the implementation deadlines, especially as this is an urgent matter.
Dir. Bothma stated that they were not on a go-slow and that the delay is not deliberate, and a it is crucial that proper system and capacity be put in place to make the Act work.
The Chair expressed his disappointment with the delay in implementing the Act and stated that crime has become one of our biggest threats and has to be dealt with swiftly.
Briefing on Explosives Bill
Asst. Comm. Jacobs conducted the presentation (see document above). He informed Members that the amendments that were made to the Bill are in accordance with international standards. Modern technology; globalisation, inadequate penalty provisions and increased use and availability of fireworks are some of the factors which have necessitated the need for a total rejuvenation of the existing Act. The regulations as well classifications in the Bill are in line with United Nations standards.
Mr Amichand Soman, Safety and Security Secretariat Director: Litigation & Constitutional Services, informed Members that the new Bill would assist the police in dealing with explosives, as they would be able to easily detect explosives.
Adv Swart stated that he will not raise any questions at this stage, because he has not yet gone through the Bill.
Mr E Ferreira (IFP) suggested that questions should not be asked until this Committee has been briefed on the Bill.
The Chair agreed.
Mr Soman informed Members that a summary of the provisions in the Bill has been prepared and it has been issued to each Member of the committee (see document above).
The Chair requested the delegation to reply to the question posed earlier by Mr Schippers regarding whether the Department has the necessary financial means to implement the Bill.
Asst. Comm. Jacobs replied that the Department does have the capacity and manpower to implement the Bill as inspectors have been appointed to assist in implementation of the Bill.
The Chair asked Asst Comm. Jacobs whether he is saying that the Bill would be implemented as soon as it is passed.
Asst Comm. Jacobs responded that the Department is currently working on a set of draft regulations.
Mr Maziya suggested that Asst Comm. Jacobs is not answering the question posed regarding the budget.
The Chair requested Asst Comm. Jacobs to give "a straight answer" as to whether the SAPS would be able to implement the Bill.
Asst Comm. Jacobs replied that inspectors who are experts in the explosives field have already been put in place in all the provinces, and there is not a shortage and before implementation. They will be fully equipped once the budget is passed.
Ms Van Wyk asked whether there are any contentious issues in the Bill which should be brought to the attention of the Committee, so that those issues may be given attention to during the public hearings stage. This would avoid the trouble caused when this Committee processed the Private Security Bill.
Asst Comm. Jacobs replied that one issue that has been identified is that referred to earlier by Supt. Reijnders. This relates to the roles to be played by the Departments of Labour and Mineral and Energy and SAPS with regard to explosives, as well as by the South African Council for the Non -Proliferation of Weapons of Mass Destruction (NPC) and the National Conventional Arms Control Committee (NCACC). A meeting will be held to discuss this matter specifically.
Adv Swart asked whether there is such a change in the licensing procedure for explosives that SAPS foresees problems with the IT database, as is the case with the Firearms Control Bill.
Asst Comm. Jacobs replied experts on this matter will be made available to inform the Committee, such as the Chief Inspector on Explosives.
Mr Maziya asked whether it is an assumption or a done deal that the Minister who would appoint the Chief Inspector, or would this be an open process?
Asst Comm. Jacobs responded that transitional arrangements have been put in place by the Bill and the licensing procedure could continue, and stated that he is not sure who would appoint the Chief Inspector.
The Chair told Members that they should let that issue to the Minister and wait until there is a public debate on the matter. There are many schools of thought on the new Bill and those issues would be addressed in the meeting taking place on Friday 13 September, when the Department of Public Works will be asked to explain the source of the conflict between it and the Department. The two Departments have launched accusations and counter accusations against each other with regard to the building of police stations.
There were no further questions and the meeting was adjourned.
EXPLOSIVES BILL, 2002
PRESENTATION TO THE PORTFOLIO COMMITTEE ON SAFETY AND SECURITY
DATE: 04 SEPTEMBER 2002
PLACE: CAPE TOWN
In terms of section 199(1) the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) ("the Constitution") the security services of the Republic consists of a single defence force, a single police service and intelligence agencies. The objects of the South African Police Service are found in section 205 of the Constitution and include:
Â· Preventing, combating and investigating crime;
Â· Maintaining public order;
Â· Protecting and securing the inhabitants of the Republic and their property;
Â· Uphold and enforcing the law.
The use of and manufacturing of Explosives are presently regulated by the Explosives Act No. 26 of 1965 through the Chief Inspector of Explosives and various Inspectors of Explosives who resort under the National Commissioner of the South African Police Service.
Modern technology, globalisation, inadequate penalty provisions and increased use and availability of fireworks are some of the factors which have necessitated a total rejuvenation of the existing Act.
New international obligations imposed by the International Convention on the Marking of Plastic Explosives to which South Africa has acceded to on 30 January 2000 has also identified inadequacies pertaining to the existing Act.
South Africa is in the process of ratifying the International Convention for the Suppression of Terrorist Bombings and the Organisation of African Unity Convention on the Combating and Prevention of Terrorism, and the Obligations imposed by these instruments are also dealt with in the Bill.
2. OBJECTS OF THE BILL
The main object of the Bill is to ensure adequate control over explosives in general and to ensure that offences, related to the use of explosives, are deterred by severe penalties.
Penalties for contraventions of the Explosives Act, 1956. are not of a deterrent value and had to be revised. The seriousness of offences pertaining to the use of explosives are accentuated in the Explosives Bill.
Section 16 which provides for the prohibition of transport of explosives under certain circumstances of the Riotous Assemblies Act, 1956, (Act No. 17 of 1956), has been incorporated in the Explosives Bill in order to consolidate measures pertaining to explosives.
International trends with regard to the control of explosives are introduced into the Bill to ensure that South Africa can fulfil its obligations.
The Explosives Act, (Act No.26 of 1956) currently controls the production storage, transport, import, export, possession and handling of explosives, while section 16 in the Riotous Assemblies Act 1956, (Act No. 17 of 1956), deals with special precautions in the interest of public safety as regards explosives. The Parliamentary Committee for Safety and Security, during 1996, suggested that the Explosive Act, 1956, must be reviewed. The penalties in the present Act are outdated and have lost its deterrent effect. Furthermore, the presumptions in the present Act had to be reviewed to bring it into line with Constitutional Court judgements. International developments regarding the classification of explosives and the development of new explosive materials also necessitated the review.
4.1 The definition of explosives now includes a wider range of explosives in order to broaden the field of control of the explosives.
4.2 The Draft Bill comprises of 34 clauses divided into ten Chapters. The first clause with the definitions pertaining to the Bill which includes, amongst others, the following definitions:
"imitation explosives" are included in the definitions to ensure that the use of imitation of explosives to commit an offence, is criminalised.
A "suitable" person has been defined as a person who will be able to use and possess explosives. This person will have to be evaluated by the Chief Inspector.
"inspector" means any inspector of explosives appointed under section 4(2),
"manufacture" means the making or processing of any explosive and includes the division of any explosive into its component parts by any process, the conversion of an explosive to another kind and the alteration, testing or repair of any explosive;
"marking" in relation to a plastic explosive, means the introduction of a detection agent into the plastic explosive in accordance with the Technical Annexure to the Convention;
"plastic explosive" means any explosive in flexible, malleable, elastic or sheet form which is
(a) formulated with one or more high explosives which in their pure form have a vapour pressure of less than 10-4 Pa at a temperature of 25Â° C;
(b) formulated with any binder material; and
(c) as a mixture, malleable or flexible at normal room temperature;
"premises" means any land, place, road, harbour, open water, river, building, structure, tent, ship, boat, aircraft, railway truck, cart, van or other vehicle or vessel;
"suitable person" means,
(a) a person who is 18 years or older;
(b) is a South African citizen or a holder of a permanent South African;
(c) is of stable mental condition and is not inclined to violence;
(d) is not dependent on any substance which has an intoxicating or narcotic effect;
(e) has not been convicted of any offence under this Act or the Explosives Act, 1956 (Act No.26 of 1956), and sentenced to imprisonment without the option of a fine;
"unauthorised explosive" is also defined.
"unmarked plastic explosive" is also defined.
4.3 The scope and application of the Bill is formulated in Chapter 1.
Provision is made for the compulsory possession of licences, permits or authorisation
4.4 Appointment and Powers of Inspectors and Disposal of Explosives are dealt with in Chapter 2.
4.4.1 Clause 4 deals with the appointment of a Chief Inspector of Explosives and other inspectors.
4.4.2 Clauses 5 and 6 empower inspectors to seize illegal explosives, as well as explosives which he/she deems to be unsafe or unstable, and he/she may order its destruction, during an inspection, or during an investigation.
4.4.3 In Clause 6, entry and search of premises are dealt with in detail and is in accordance with the Criminal Procedure Act, (Act No.51 of 1977).
4.4.4 Clause 8 provides for the destruction of explosives. The cost pertaining to any such destruction may be recouped by the State from the person from whom it was seized. The person from whom the explosives were seized may in addition be held liable to any third party who may suffer damages as a result of the explosives.
4.4.5 Clause 9 makes provision for the obtaining of prints and samples of suspects, for investigation purposes.
4.5 In Chapter 3, Manufacturing, Dealing, Importation, Exportation and Packaging of Explosives, the following are addressed:
4.5.1 Clause 10 deals with keeping, storage, possession and transportation of explosives and also imposes an obligation to:
(i) prevent explosives being brought into premises, vehicles, vessels and aircraft.
(ii) report lost or stolen explosives.
4.5.2 The existing section 16 of the Riotous Assemblies Act, (Act No.17 of 1956) is inserted in Clause 11. Section 16 is an emergency measure to maintain public order and relates specifically to explosives This section is included accordingly to consolidate all aspects pertaining to explosives in the Bill.
4.5.3 Clause 12 deals with licensing of explosive manufacturing workplaces, and explosive magazines. The clause also provides for the licence to be issued to a suitable person and to be revoked should the person no longer comply with the criteria for being a suitable person.
4.5.4 Clause 13 provides for the licensing of dealers in explosives, who have not been exempted by Regulation.
4.5.5 Clause 14, in view of the difficulties experienced in the Regulations to Explosives Act, to control fireworks, the manufacturing of fireworks have been included to ensure better control over the manufacturing of fireworks.
4.5.6 Clause 15 provides that explosives can only be used after the necessary permit is obtained.
4.5.7 Clause 16 criminalises the use of imitation explosives for the purpose of committing an offence.
4.5.8 Clause 17 provides for importation and exportation of explosives.
4.5.9 Clause 18 makes provision for package identification, as well as the creation of a database in this regard.
4.5.10 Clause 19 controls any actions and activities regarding unauthorised explosives.
4.6 Chapter 4 makes provisions for record keeping.
4.6.1 Clause 20 requires the South African Police Service to establish a database of explosives at the Forensic Science Laboratory in Pretoria. To this end, specimens of all types of explosives manufactured and imported into the Republic must be forwarded to the Forensic Science Laboratory.
4.6.2 Record keeping is regulated in terms of Clause 21.
4.7 Chapter 5 deals with acts which Endangers Life or Property
4.7.1 The explosion definition is broadened to include "fire" as a result thereof and an offence of threatening life or property is created. Damage or threat of a fire cause by an explosion due to the use of explosives is included in clause 22. Furthermore any threat with regard to the use of explosives, or false communication with regard to the existence or explosives, will constitute an offence.
4.8 Presumptions regarding Explosives are in Chapter 6.
4.8.1 Clauses 23, 24 and 25 provide for presumptions relating to the possession, and the failure to comply with obligations. (Clause 23 also criminalises the use of petrol bombs).
4.9 Plastic Explosives and South Africa's international obligations with regard thereto, are dealt with in Chapter 7.
4.9.1 The Bill includes, in the definitions inter alia the principals of the Montreal Convention (The United Nations Convention on the Marking of Plastic Explosives for the Purpose of Detection), (clause 26 deals with acts relating to unmarked plastic explosives and clause 27 places an obligation on any person who obtains plastic explosives to inform the Chief Inspector of Explosives of all the details of the acquisition).
4.10 Chapter 8 deals with Offences, Penalties, Jurisdiction and Appeals.
4.10.1 Clause 27(3) makes the possession of information of methods of synthesising explosives an offence.
4.10.2 The penalties as reflected in Clause 28 are significantly increased in order to enhance the deterrent value of the Act. This Clause makes provision for a person to be declared unfit to possess or have under his/her control any explosives.
4.10.3 In Clause 33(2) the jurisdiction of the Regional Court is also increased to accommodate the increased penalties. The new penalties clause is in line with the Criminal Law Amendment Act 1997, which provides for certain minimum sentences regarding the possession and illegal dealing in explosives.
4.10.4 An appeal mechanism has been introduced in Clause 31.
4.10.5 Clause 32 empowers the Minister to create specific regulations relating to explosives and explosive related activities.
OTHER DEPARTMENTS AND BODIES CONSULTED
Â· Department of Labour
Â· Chief State Law Advisor
Â· South African Law Commission
Â· Secretariat for Safety and Security
Â· Department of Trade and Industry
Â· Department of Environmental Affairs and Tourism.
Â· Department of Transport
Â· Department of Correctional Services
Â· Pyrotechnic Guild of South Africa.
Â· South African Secret Service
Â· National Intelligence Agency
Â· African Explosive Limited
Â· Department of Mineral and Energy
Â· Denel (Pty) Ltd. Denel indicated that the comments are only preliminary and would like to furnish more comments at a later stage
Â· National Institute for Explosive Technology
Â· Department of Foreign Affairs Department of Defence
Â· Dantex Explosives (Pty) Ltd
Â· Sasol Mining Explosives (Pty) Ltd
Â· Technical Production Services Association
Â· S/Supt Stan Joubert: Serious and Violent Crimes Component (Chairman: United Nations Group of Experts on Illicit Manufacturing of and Trafficking in Explosives by Criminals and Their Use for Criminal Purposes.)
Â· Justice, Crime Prevention and Security Directors-General Cluster
Â· South African Police Service:
- Commander - Crime Prevention
- Commander - Forensic Science Laboratory
- Divisional Commissioner - Crime Intelligence
- Head - Legal Component: Legislation
- Head - Legal Component: Property and Assets
- Divisional Commissioner: Legal Services
- Head - Legal Component: Policy Standard
- Head - Legal Component: Crime Operations
- Divisional Commissioner - Detective Service
- Head - Legal Component: Litigation
- Commander - Criminal Record Centre
- Head - Legal Component: Contract and Agreements
- Operational Response
Presentation to the Portfolio Committee on Safety and Security
4 September 2002
Superintendent RF Reijnders
South African Police Service
Forensic Science Laboratory
Explosives Control in South Africa
All laws pertaining to the manufacture, storage, sale, transport, importation, exportation and the use of explosives in South Africa are consolidated in the Explosives Act and Regulations, 1956 (Act 26 of 1956).
In terms of Section 2 (1) of the Act the Minister of Safety and Security may appoint a Chief Inspector of Explosives and other inspectors of explosives to carry out the provisions of the Explosives Act and Regulations. At present the position of Chief Inspector of Explosives is filled by Senior Superintendent AJ Van Sittert, who is also appointed as the National Commander; Explosives Unit of the South African Police Service, all other inspectors of explosives are appointed by the designated member, in terms of Section 2(5) of the Act.
During 1992 the control over the manufacturing of explosives at factories (Section 11-22 of the Act and Chapter 2 of the Regulations) was transferred to the Department of Labour, because the Health and Safety of employees and people connected with the manufacturing of explosives are within the ambit of the Department of Labour. Since then explosives inspectors are responsible to ensure that adequate security measures are being taken regarding explosives. Explosive magazines at factories are inspected in co- operation with inspectors of the Department of Labour.
Explosives Control is a function performed by the Explosives Unit of the Forensic Science Laboratory under the Authority of the Divisional Head; Detective Service. All Members of the Explosives Unit are trained bomb technicians and inspectors of explosives who perform bomb disposal as well as explosives control tasks. Due to specialisation at Head Office, the unit is sub-divided into two sections, namely Bomb Disposal and Research, and Explosives Control.
2. FUNCTIONS OF THE CHIEF INSPECTOR OF EXPLOSIVESJEXPLOSIVES UNIT OFFICE (EXPLOSIVES CONTROL).
The main objective of the Explosives Control Section at Head Office, is the effective control over explosives in the Republic of South Africa.
Explosives control includes inter alia the following functions:
2.1 The manufacturing of explosives e.g. mixing vehicles, which includes licensing, inspection and investigation of blasting sites.
2.2 Storage i.e. licensing, inspection etc. of magazines including those at licensed factories.
2.3 Testing and registration of blasters, magazine masters and pyrotechnitians.
2.4 Conveyance of explosives (licensing of vehicles, inspection thereof, issuance of permits etc.)
2.5 Usage of explosives (issuance of permits, inspection at blasting sites, investigation of blasting accidents etc.)
2.6 Importation and exportation of explosives
2.7 Control over gunpowder and nitro-cellulose for re-loading purposes, blank cartridges, pyrotechnics, such as smoke grenades, special effects etc.
2.8 Importation, sale and usage of fireworks since 1986, as there was a moratorium on the importation fireworks for a period often years. (Pyrotechnics, however were not restricted at that stage).
2.9 Investigation of explosives related crimes i.e. theft, illegal possession etc.
2.10 Authorisation of new products, including packaging.
2.11 Maintenance of the Explosives Control computer system (CES).
2.12 Liaison with government departments, institutions and a variety of role players to improve explosives control (e.g. Department of Minerals and Energy, South African Bureau of Standards, Department of Labour, National Institute for Explosives Technology, Denel, Council for Scientific and Industrial Research and all manufacturers).
2.13 International liaison with competent authorities, law enforcement agencies and foreign government departments to enhance explosives control.
2.14 The management of an effective bomb disposal capability in South Africa.
3. FUNCTIONS OF INSPECTORS OF EXPLOSIVES AT EXPLOSIVES UNITS
Inspectors of Explosives stationed at Explosives Units are inter alia responsible for the following explosives functions:
3.1 Quarterly inspection (minimum standard) of licensed explosives magazines, explosives vehicles, fireworks dealers, nitro-cellulose dealers, shaft head delivery areas and premises such as where chlorates and nitrates are being stored.
3.2 Inspections at blasting works and fireworks displays where permits have been issued
3.3 Vetting and examination of learner blasters, blasters, magazine masters and assistant magazine masters.
3.4 Investigation of accidents and incidents concerning the storage, transport and use of explosives and subsequent reporting to Head Office.
3.5 Issuing of blasting and transport permits and submission of applications for continuous transport permits to Head Office.
3.6 Quarterly visits to explosives factories after liaison with the relevant inspector from the Department Labour to ensure that adequate security is in place.
3.7 Preliminary inspection of site and construction plans of proposed explosives magazines where the client requests assistance, prior to forwarding it to Head Office for approval.
3.8 Inspection of new vehicles prior to licensing by Head Office.
3.9 Any other duty that emerges and that has a bearing on explosives control.
3.10 The rendering of an effective bomb disposal capability.
BOMB DISPOSAL IN THE SOUTH AFRICAN POLICE SER VICE
The Explosives Unit of the South African Police Service is also responsible for rendering an effective bomb disposal capability to the community. This is a specialised function, which is aimed at protecting the interests of the community e.g. the protection of life and property.
The appearance of explosives filled devices are normally associated with a criminal motive, bomb disposal and neutralisation of bombs has become a function of police forces worldwide.
B. CHARACTERISTICS OF BOMB DISPOSAL.
Bomb disposal entails two separate fields;
- improvised explosives disposal (lED)
- explosives ordnance disposal (EOD)
The first mentioned, entails the neutralisation and disposal of home-made or improvised explosives devices, while the latter entails the disposal of conventional military ordnance such as mortar bombs, hand grenades, rockets etc.
Due to the intrinsic dangers involved, the persons assigned these duties, undergo specialised training anf re-training on a regular basis.
4. THE EXPLOSIVES ACT AND REGULATIONS (ACT 26 OF 1956)
The explosives Act and Regulations (Act 26 of 1956) (as amended) from the basis of explosives control in the Republic of South Africa. The Act and Regulations are currently being revised to conform to international trends and standards. It is anticipated that the New Explosives Act will be published in a Government Gazette during 2002, and the Regulation thereafter. Until then, the existing Act remains valid.
The following Chapters appear in the current Explosives Regulations: -
- Chapter 1: Interpretation of terms
- Chapter 2: Manufacture of Explosives in Explosives Factories.
- Chapter 3: Packing and Marking of Explosives.
- Chapter 4: Importation and Exportation of Explosives.
- Chapter 5: Harbour Regulations.
- Chapter 6: Transport of Explosives.
- Chapter 7: Licensing and Construction of Magazines.
- Chapter 8: Storage of Blasting Materials.
- Chapter 9: Storage and Sale of Blasting Materials and Fireworks by licensed dealers.
- Chapter 10: Use of Blasting Materials (including fireworks).
- Chapter 11: Accidents and Inquiries
- Chapter 12: Trespass
- Chapter 13: Appeals
- Chapter 14: Testing of Explosives.
- Chapter 15: Miscellaneous Regulations.
5. THE NEW PROPOSED EXPLOSIVES ACT (2002)
The Explosives Bill has been certified by the State Law Advisor on the 9 August 2002.
APPLICATON OF ACT AND AMENDMENT OF SCHEDULE THREE
2. Application of Act
3. Amendment of Schedule 3
APPOINTMENT AND FUNCTIONS OF INSPECTORS AND DISPOSAL OF EXPLOSIVES
4. Appointment of Chief Inspector and inspectors
6. Entry and Search of Premises
8. Destructions of Explosives
9. Prints and Samples for investigation purposes
MANUFACTURE, DEALING, IMPORTATION, EXPORTATION AND PACKAGING OF EXPLOSIVES.
10. Keeping, storage, possession or transportation of explosives.
11. Prohibition of transportation of explosives under certain conditions.
12. Certificate in respect of explosives manufacturing site and license for explosives magazine.
13. License to deal in explosives
14. Manufacturing of explosives
15. Prohibition on use of explosives without permit
16. Possession of imitation of explosives
17. Importation and exportation of explosives
18. Packaging of explosives
19. Prohibition in respect of unauthorised explosives
20. Record keeping
ENDANGERING LIFE OR PROPERTY
22. Endangering life or property
23. Presumption of possession of explosives under certain circumstances
24. Presumption relating to failure to report
25. Presumption relating to failure to take reasonable steps
26. Act relating to unmarked plastic explosives
27. Information regarding plastic explosives
OFFENCES, PENALTIES, JURISDICTION AND APPEALS
30. Declaration of person as unfit to possess explosives
REPEAL OF LAWS AND TRANSITIONAL PROVISIONS
34. Repeal of laws and transitional provisions
35. Short title and commencement
6. EXPLOSIVES CONTROL BY AUTHORITIES, OTHER THAN THE SOUTH AFRICAN POLICE SERVICE.
Besides the South African Police service, the following Government Department or bodies, are also concerned with explosives control tasks and responsibilities
- Department of Labour (DL) - regulations regarding Health and Safety of employees
- Department of Minerals and Energy (DME) - regulations regarding Health and Safety of employees
- National Conventional Arms Control Committee (NCACC)
- The South African Council for the Non-Proliferation of Weapons of Mass Destruction (NPC)
6.1 Department of Labour (DL)
The DL is responsible to regulate Health and Safety matters incidental to manufacturing of explosives in factories and administers the Occupational Health and Safety Act (Act 85 of 1993).
6.2 Department of Minerals and Energy (DME).
The DME is responsible to regulate Health and Safety matters incidental to the use of explosives at mines and administers the following Act and its associated Regulations:
- Mine Health and Safety Act (Act 29 of 1996)
6.3 National Conventional Arms Control Committee (NCACC)
The NCACC is a committee of ministers appointed by Cabinet to carry out South African Government Policy on Arms Control and to ensure political oversight over all arms transfers. The Directorate
Conventional Arms Control (DCAC) is the secretariat to the NCACC and is based at the Department of Defence. The DCAC administers the following Acts and their associated Regulations:
- Armaments Development and Production Act
- Regulation of Foreign Military Assistance Act
6.4 The South African Council for the Non -Proliferation of Weapons of Mass Destruction (NPC)
The NPC is an interdepartmental committee that controls the transfer of weapons of mass destruction and dual use goods according to South Africa's responsibilities as a signatory to the International Missile Technology Control Regime (MTCR). The NPC secretariat is based at the Department of Trade and Industry and administers the Non-Proliferation of Weapons of Mass Destruction Act and associated Regulations.
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