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SAFETY AND SECURITY PORTFOLIO COMMITTEE
25 October 2002
EXPLOSIVES BILL: DELIBERATIONS
Chairperson: Mr George (ANC)
Documents handed out:
Explosives Bill [B43-2002]
Explosives Bill (draft with amendments) [document will be available here 31 October]
The Committee completed informal deliberations on the Explosives Bill. The effect of the Bill will be to ban fireworks, except for organised displays. The Clause effecting a blanket prohibition on carrying literature containing methods for the synthesising of explosives would be redrafted, as it was seen to be dangerous to leave it open-ended. The Bill would be finalised in the following week.
Mr Hoon (State Law Advisor) said that the amendments took the form of additions being underlined and deletions were struck down.
Clause 1, which deals with definitions was accepted as is, no amendments were made.
Clause 2(2)(d) is a new provision and so are (3)(a) and Clause 2(b). These additions were accepted with no further discussion as they were dealt with at the previous meeting.
Clause 4(2) has been amended and the amendments were accepted by the Committee.
The committee went on to discuss clause 10(4) as all the other clauses in between had already been discussed at previous meetings. Clause 10(4)(a) has been redrafted to build a time-limit into it.
Mr Hoon added that "prescribed" is defined in Clause 1 and so should not cause any problems as it stands in Clause 10(4)(b). Members accepted this. Clause 10(6) would be moved to Clause 28.
Clause 12(5)(c) is new and ensures that a person cannot operate on a license until the appeal has been decided. The Chairperson said the intention behind this provision is to suspend operation until the appeal against the revocation of the license has been decided.
Mr Swart asked whether the means by which, and the bases on which, the Chief Inspector could revoke a license would be stipulated or whether it would be left to the Chief Inspector's discretion. As the provision stands it allows the Chief Inspector the power of revocation with too much ease.
Mr Kgauwe (ANC) responded, saying that one could expect the Chief Inspector to be a very responsible person and not revoke licenses with no good reason. The provision should therefore be left as it is.
Mr Soman agreed and said that the Chief Inspector would also be bound by other legislation before making a revocation. For instance, the Administrative Justice Act and the Promotion of Access to Information Act. The Chief Inspector could not act arbitrarily.
Clause 12(2)(a) had been suggested to overcome the problem of the "juristic person". When the applicant is a 'juristic person" the juristic person must designate a suitable person to run/ control the magazine and "suitable person" is defined in clause 1.
It was also decided that "permit to work" in the bill would be changed to "valid work permit".
Clause 28(3) effects a blanket prohibition as it stands and it means that nobody may carry literature containing methods for the synthesising of explosives.
Mr Hoon said that there was a danger in leaving it so open-ended. He proceeded to rephrase the clause, but the new draft would only be available on Wednesday, 30 October.
Mr Kgauwe asked Mr Hoon to explain what this danger would be. Mr Hoon noted that if Clause 28(3) is left as is, it would mean that not even manufacturers of explosives, tertiary students or pyrotechnicians could carry this type of literature.
Mr Ferreira (IFP) said that he did not like the "â€¦ with intent" part of Clause 28(3) because it does not capture those who possess this type of information without intent. Intent is also quite difficult to prove. He gave as an example the school child who made a pipe bomb as a school project.
In response Mr Hoon said that intent had not been limited by describing the kind of intent, such as criminal intent, so in his opinion the intent part of the subclause would cause no undue problems.
Mr Kgauwe said that the subclause should be left as it is because it would be up to the judge to decide on intent. The new wording which Mr Hoon suggested was not convincing as the solution to the envisaged problems.
The Chairperson said that if Clause 28(3) means that not even the manufacturers of explosives may carry this type of information, then it would negate the whole bill.
Ms van Wyk (UDM) raised two issues, the first being that "â€¦ with intent" should be removed and that secondly they should go back to their principals with Clause 28(3)(b) because there would be no consensus today.
Mr Swart agreed with Mr Hoon's new wording, as it stated more clearly what the Committee was intending to say.
The Committee then commenced informal deliberations, beginning at Clause 1; definitions.
All Members were happy with the definitions and it was agreed that "permit to work" would be changed to "valid work permit". Mr Swart then raised another concern: in terms of the definition for "fireworks", fireworks were equivalent to explosives and it would mean that one would need to get a permit before setting off any type of fireworks. He asked whether this was what the Committee intended doing. If it was not the Committee's intention then the definition for 'fireworks" would have to be re-addressed. He also asked whether certain classes of fireworks would be exempted.
The Chair said that the "fireworks" definition was accepted as is because they are politicians and not highly skilled, technical people. As it stands, the definition covers them.
Mr Soman said that technical people have looked at the definition and they have accepted it as correct.
Mr Swart said that the definition was fine, but did that mean that nobody could set off a sky-rocket without a permit.
Mr Ferreira asked whether Mr Swart was heading towards being in favour of days like the 5th of November.
Mr Soman said that the way Clause 15 is drafted meant that nobody could use fireworks even on 5 November. Clause 15 is a blanket prohibition.
Mr Swart said that the Committee would then need to decide if this is what they want, because fireworks are also used in religious ceremonies.
Mr Ferreira said that a few weeks ago an explosives expert had showed them how bigger explosive devices could be detonated with "play-play" fireworks. He would therefore be happy if 5 November 2002 was the last time that animals and people were tormented with indiscriminate fireworks displays.
Ms Van Wyk said that the Committee needed to decide what it wanted to do with this Bill because she thought that the intention was to prohibit this type of fireworks display. She asked whether the Committee was serious with this Bill or not.
The Chairperson agreed. The Minister could make exemptions and the Bill should therefore not be watered down because we live in dangerous times. The definition and Clause 15 should be left as is.
Mr Swart asked if the Committee was then saying that except for organised displays, fireworks were not allowed.
The Committee said that this was the position. Mr Swart responded that sub-clause 33(1)(o) could then be deleted completely.
Clause 2, as amended, was agreed to.
Clause 3 was agreed to.
Clause 4, as amended, was agreed to by all.
Clause 5 was agreed to.
Clause 6 was agreed to. The Chairperson added that everything in Clause 6 had been covered elsewhere during all the meetings.
Clause 7 was agreed to.
Clause 8, as amended, was agreed to.
With respect to Clause 9, Mr Swart said that this clause would be problematic, but they could leave it to the courts to sort out. The Chairperson agreed that the clause should be left as is; even constitutional rights are sometimes limited.
Mr Swart said that Clause 9(3) and 9(4) may cause confusion as to who may take bodily samples because 9(3) talks about a "registered medical practitioner/ nurse" taking bodily samples and then 9(4) says that a "police official may do such testsâ€¦"
Clause 11 was agreed to. As an aside the Chairperson said that Ms Lynn Kennedy (Pyrotechnics Guild) had called him to say that too much power is being given to the Minister. Her fear was that if the Minister happens to wake up one morning, in a bad mood, then he may act against his better judgement and unfavourably towards the pyrotechnic industry. The Chair said that he had assured her that the Minister will not be able to act in accordance with his moods, but will have to act fairly and within the law; his moods cannot affect his decisions. The Chair said that he had to raise this issue with the Committee because Ms Kennedy had called him every day since the public hearings. When she called again he would be able to tell her that the matter was discussed.
Clause 12 was agreed to.
Clause 13 was agreed to.
Clause 14 was agreed to, but not before Mr Swart asked whether the sub-clause 14(3) would cause problems for the pyrotechnics industry. The sub-clause reads, " Unless it is done on a licensed explosives manufacturing siteâ€¦" Mr Swart said that a film set would not be a 'licensed explosives manufacturing site". Adv Strydom said that it in fact would be. She said that wherever mixing and manufacturing of explosives took place that would be a manufacturing site and it would have to be licensed.
Clause 15 was agreed to, but Mr Swart reserved his right to come back to this clause as he was not sure whether he was entirely happy with it.
Clauses 16 to 22 were agreed to.
Clause 23, which is the presumption clause, sparked a number of questions from Mr Swart.
With respect to sub-clause 2(b)(ii), he asked whether the age of liability should be sixteen. He was under the impression that the Child Justice Act would have a different age of liability. Mr Swart was told that the Justice and Constitutional Development Portfolio Committee will only look at the age issue next year. The sub-clause was left as is.
Mr Swart asked why sub-clause 2(c)(ii) was so broad, he said that the words "ordinarily employed" included too many people and that if a bomb was found somewhere at Parliament, in terms of Clause 23(2), it would mean even the Committee Members present could be investigated. Mr Swart said that he was not happy with all the "ors" in the clause and that he would prefer to see "ands" instead. The sub-clause was too broad, in light of sub-clause (3)(a) which limits/ narrows the presumption. This sub-clause excludes from its ambit the taxi driver who transports less than twenty people in his taxi, but Members of Parliament are not excluded from the presumption of guilt. Mr Swart asked whether it was the Committee's intention to exclude taxi drivers from the presumption of guilt, but not to exclude Members of Parliament.
Another Member asked Mr Swart what exactly it was that he wanted. Ms van Wyk added that the presumption only kicks in under certain circumstances. If an explosive was set off in a taxi, there would be factors to point to the guilty party, different to the factors which would be considered in the case of explosives going off at parliament. She said that presumptions are a matter of convenience and that they are used to isolate a crime scene. She then asked that the Committee move on and not over analyse the clause.
Mr Ferreira pointed out that the words "in the absence of evidence to the contrary" made the presumption as fair as it could possibly get.
Clauses 24 to 27 were agreed to.
Clause 28, as amended, was agreed to and sub-clause 10(6) will be added to it.
Clause 29 was agreed to.
With respect to Clause 30, Mr Ferreira asked whether sub-clause (i) would include an interdict or whether it would have to be a conviction. He said he was just interested to know whether an interdict would constitute an offence because it is normal practice these days for divorcing spouses to obtain interdicts against one another.
Adv Strydom pointed out to Mr Ferreira the wording of the clause which clearly states at the beginning, "â€¦ if convicted of-" and she said that an interdict against you is not the same as having been convicted of an offence. Mr Ferreira then said that sub-clause (i) and (l) seemed to be saying the same thing, so should (i) not be removed and then the clause as a whole would be more fair.
Mr Swart answered by saying that it seems what the drafters have done is twofold; he said that (i) referred specifically to physical/ sexual offences while (l) referred to general "domestic" offences and so on that basis, both should remain in the clause.
Mr Ferreira agreed to this.
Mr Swart asked whether there were any time limits on these offences and the answer was no because the Minister has the power to exempt.
The Chair asked why Mr Swart wanted a time limit. Mr Swart said that it just seemed a bit harsh to fall into the ambit of this clause if someone who stole a chicken 30 years ago and was convicted of theft, could not today possess explosives.
Mr Ferreira said that something that small would not be kept against you for such a long time. The court would not be unreasonable or unduly harsh in its determination of whether someone was fit to possess explosives or not.
Clause 31 was agreed to.
Clause 32, as amended, was agreed to.
With respect to Clause 33, Mr Swart said that sub-clause (1)(o) should be removed because all types of fireworks, except organised displays, have already been prohibited by this bill. Adv Strydom disagreed; she said that because the Minister has the power to exempt, people may still apply for permits to carry on fireworks displays other than organised fireworks displays. That was why the clause should remain, but that "including" should be amended to "excluding". Mr Swart agreed to retain the sub-clause. All agreed to the clause.
Clauses 34 and 35 were also agreed to.
The Committee concluded the discussion of the clauses. The Chairperson said that the State Law Advisors would now have to bring a proper bill which encompasses all the changes to the next meeting so that they would be ready to vote on the bill.
The Chair lastly added that he had received a letter from DENEL apologising for misleading Parliament on 16 October because they had in fact been consulted during the drafting of the bill.
The meeting was adjourned.
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