A summary of this committee meeting is not yet available.
SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
17 October 2000
FIREARMS CONTROL BILL: DELIBERATIONS
Chairperson: Mr J L Mahlangu assisted by Ms Lubidla
Documents handed out
Legal opinion of the Womens Legal Centre (see Appendix 1)
Firearms Control Bill [B 34B - 2000]
Domestic Violence Act, No 116 of 1998
Drafting panel: Advocate Louis Kok (from the drafting team), Advocate Gert Joubert (a consultant working with the Department), Superintendent Rosa le Roux (from the Firearms Registry).
The committee continued deliberating on the Bill. They revisited the Clause 9(2)(m) issue - raised by concerned women's groups.
The drafting team believe that even without the final protection order as a disqualification in the Firearms Bill there are still backstops to protect women. Someone who has a final protection order against them will not be considered a ''fit and proper person'' as required in the Firearms Bill. The person will also be considered to have an ''inclination to violence''. These factors will be taken into account by the Registrar if such a person applies for a competency certificate.
The committee were in agreement with the women's group concerns. The Chair noted that there were two options at this stage. The Bill could be amended, but the National Assembly might not be available to vote on them. If the committee decided to make the amendments, then they would have to be passed in the National Assembly by the 3 November when they close. If this cannot happen, the Bill would have to be kept over until February 2001, but this has financial implications for the Department. Alternatively the Bill should be adopted and resolutions should be made regarding the need for amendments.
The DP noted their objection to the presumptions in Clause 116 and 117 and the invasion of a person's right to privacy in Clause 113. They objected to Clause 137 dealing with compensation and Clause 151 dealing with the jurisdiction of the magistrates courts. They are concerned about the resources needed on an on-going basis to sustain this Act.
Inspections - Chapter 13
The committee engaged in a general discussion of this chapter. The Chairperson said that a concern for him were criminals who pretend to be policemen to trick people into stopping at robots. They then commit crimes such as car-jacking.
Mr Lever (DP) suggested that perhaps they could insert something in the Bill which will explicitly state a persons right to verify the identification document of police.
Adv Joubert said that this would not solve the problem because once you have stopped, it is too late.
Request for information - Clause 108
Mr Lever commented that there was no general provision. Advocate Kok replied that not every refusal to give information is an offence. Only as constituted in Clause 107.
Mr Lever asked if it was possible to create offences in the schedules [that is, the schedule 4 list - in association with Clause 121 - which provides periods of imprisonment for Clauses 107(1), and (2), and Clause 108(2).] He suggested that the Clause 108 offence be removed from the schedule and be included in the actual Bill in the relevant section.
Advocate Kok said he had no problem with this because it was the original intent.
The Chairperson said that he agreed with them but with Parliament closing soon, he did not want to hold up the implementation of the Bill by complicating the procedure with amendments in spite of the fact that he wanted amendments.
Mr Lever said that the amendments were mostly technical so he felt that the committee should ''go with them''.
Inspection of premises - Clause 109
The Chairperson asked why Clause 2(a) had been removed. Advocate Kok replied that the Portfolio Committee had decided to do this because warning of the inspection could defeat the object of the inspection.
Search and Seizure - Chapter 14
Clause 110 - Chapter 2 of the Criminal Procedure Act to apply
Mr Lever asked what sections 30 and 31of the Criminal Procedure Act (which is referred to here) says. Advocate Kok replied that this deals with the disposal of articles of evidence. They had to provide for articles which are not allowed to be dealt with in terms of the Criminal Procedure Act. The clause is drafted so that it says that articles ''may'' be disposed of in terms of the sections in the Criminal Procedure Act. This is because in some instances it is better to dispose of an article in terms of the Criminal Procedure Act. Therefore they drafted the clause with some latitude.
Clause 113 - Body prints and bodily samples
Mr Lever noted his party's objection to this on the ground that it is an infringement of the individual's right to privacy. He said that he did not want to get into a discussion on this issue now. The DP would raise it in the debate on the Bill.
The Chair asked Advocate Kok to comment on the limitation of the right to privacy.
Advocate Kok replied by sketching the following scenario: there could be a group of three or four people. A police officer may have a good reason to suspect that one of them was the perpetrator in a particular crime. He cannot arrest any one of them because he does not know which one. What he can do now is to take all their fingerprints (or any other bodily sample) to compare to the fingerprints on the firearm. In this way they can identify the suspect through a process of elimination. The fingerprints of the others must be destroyed immediately. The Criminal Procedure Act does not make provision for taking bodily samples for the purpose of eliminating suspects. The committee felt that the limitation of the right to privacy is justified in light of the potential seriousness of the crime. The police still cannot take samples from an arbitrary group of persons. There must be a rational connection between taking the bodily sample from the persons and the investigation. Advocate Kok said that they were talking mainly of genetic samples.
Mr Lever said that subclause 3 does not mention what the size of the group of persons must be, for example, what about a 120 people.
Advocate Kok replied that it must be considered in the context of reasonableness. The prints must be of value in the investigation and the police must know that it is someone in the group who committed the offence.
Mr Lever said that the individual would then have to go to court to prove the unreasonableness of the investigating officer. The ordinary person and the investigating officer might not have the same opinion in respect of reasonableness.
When these actions are used inappropriately then it erodes all rights. Allowing this will create problems such as how does the individual know for sure that his genetic sample gets destroyed afterward and does not become part of a database.
Ms Lubidla asked if the tests would be conducted only on people with ''blood on their hands''. Advocate Kok replied that a body sample had to be found at the crime scene so that there was something with which to compare the samples taken from the group of people. They would test everyone in the group if they knew that the perpetrator had to be in the group but they did not know who he was.
The Chairperson commented that this clause was necessary to curb crime.
Presumptions - Chapter 15
Presumption of possession of firearm or ammunition - Clause 117
Mr Lever asked why they had decided on an age as young as 16 years.
Adv Kok replied that a large number of children were using firearms in crimes. Children even younger than this were doing so but 16 was the lowest age that they could justify. The State must show that reasonable steps were taken, therefore the police must still do a proper investigation and cannot simply rely on the presumption. The State must also prove the other facts in the clause. These safeguards were included to prevent the police from simply relying on the presumptions.
Mr Lever commented that it is true that police are quick to rely on presumptions. He was troubled by the age limit of 16 years as he thought it was inappropriate. For example in subclause (e) a 16 year old could be present in an aircraft but not necessarily in command of it. The DP takes a stand against all the presumptions.
The Chairperson said that the clause made sense because statistics show that it is the 14 - 21 year age group that commit the most firearm-related crimes.
Ms Lubidla asked why they phrased it as ''over the age of 16 years''. This seemed to exclude 16 year olds and only included people older than 16. She suggested that they rather say ''16 years and over''.
Advocate Kok said that they have considered this and changed the age phrasing in the other clauses to be in line with this suggestion. In this particular clause there seems to have been an oversight. He added however that technically a person was only 16 years for one day. After their birthday they were over 16 anyway. This point could be debated but it is simply a matter of semantics.
Mr Lever said that if they have changed the phrasing in other clauses then they must change it in this clause too. This is because if there is a discrepancy like this in the Bill then it is deemed that the legislature has done it for a particular reason.
Presumptions relating to failure to report - Clause 118
Mr Lever commented that his argument in respect of this clause was similar to the previous one. The DP will oppose this clause because of the limitation on the individual's rights. He said that such a limitation can possibly be justified in present times but in the future it may not be so justifiable because circumstances change. Putting this in the resolution would be a step closer to bringing it into public debate.
Organisational structures - Chapter 17
Certificate signed by Registrar to constitute prima facie evidence - Clause 126
Mr Lever said that he had read somewhere that the Registrar can delegate powers. He asked if they had considered that, where the certificate was signed by a delegated person, the delegation must be proved.
Mr Joubert replied that there is a system in place where the delegation must take place in writing.
Ms Lubidla asked if the old names on the register would be put onto the new database. She asked if there were penalties for people who had more than one firearm but only registered some of them.
Advocate Kok replied that they would be on the new database. If not all the firearms were registered then the Bill made provision for the payment of fines or for imprisonment.
Ms Lubidla asked what would happen if the names were mistakenly not included.
Advocate Kok said that they would look at the bona fides of the person but there was really a very limited scope for this to happen because of the high profile of the Bill. They will also send notices to people to tell them to register. If there is no record of the person's old licence (such as pre-1972) but the person can produce a copy of the licence, then they will register the licence. Re-licencing will be free of charge.
The Chairperson asked if they would use the police to perform these functions. This will take manpower away from the normal police duties.
Advocate Kok replied that the Bill will have personnel and financial implications. Holistically however firearm crime should be reduced. The administrative work will not be performed by the police at the Central Firearm Registry (CFR) but by ordinary civilians. The police perform executive police functions.
Mr Lever said that the point was that the resources still come out of the same budget. Firearms are a high priority but there seems to have been a gross underestimation of the resources that will be necessary.
Advocate Kok said that they had approached the Commissioner, the Deputy National Commissioner, the Minister and the National Treasury about this. They had assured the drafters that the state is forced to allocate adequate resources to implement the Bill. The Deputy National Commissioner even testified to this before the Portfolio Committee.
Mr Lever asked where in the Bill it says that they are ''forced'' to provide funds.
Advocate Kok replied that the specific infrastructure which is created in terms of the Bill (such as the IT links and the database) places an obligation on the relevant authorities to some extent.
The Chairperson asked if the funds would be provided in a once-off lump sum.
Advocate Kok replied that they have ring-fenced amounts for the first three years. After the first three years the allocation becomes part of the general budget.
- The normal SAPS budget for the CFR is R146 million for the year.
- This year there was an additional R57 million. They will be unable to use all of this money this financial year so about R30 - 40 million will rollover to next year.
- Next year they will receive R82 million in addition to the rollover.
Mr Lever said that their argument for funding will not bind a future Cabinet in terms of how they prioritise budgeting. They are creating obligations which will become unfunded mandates. Currently this Bill is a glamorous piece of legislation. When this fades, the budgeting priorities will change. He asked the Department what portion of the SAPS budget they will fight for in the future considering the ''big burden'' that they are taking on.
Advocate Kok replied that once the infrastructure and the personnel have been established then it has to be maintained. It can be deprioritised and receive a lesser allocation but the law cannot simply go unimplemented. Allocations have already been ring-fenced.
Mr Joubert commented that a lot of the training can be done by accredited institutions. The accredited institutions will be assessed from time to time to ensure that they comply with standards.
Mr Lever replied that the accredited institutions will not do all the work. For example they will not do the renewals of licences. The government should have a law that is practical and that can be implemented without affecting other areas of the budget. One must remember that the law must be administered after it has been implemented. Parliament loses credibility if it passes laws that cannot be implemented. What will happen if they train people in terms of the Bill and then in the future the budget is reduced? Rationalisation will come. These issues must be taken more seriously.
The Chairperson said that the proliferation of firearms is important. The budget is a problem but they must find sufficient funds to implement. It is Parliament's responsibility to ensure that the laws which are passed are implemented.
Establishment of an Appeal Board - Clause 128
Mr Lever pointed out that the Minister was not required to put people on the Board with suitable qualifications. It is important to ensure that the right people sit on the Board so that there is the right balance of community and police interests.
Advocate Kok said that this issue was never really debated in the Portfolio Committee. Limiting the Minister in this way would be a political decision.
Mr Lever motivated for this as it is after all a national board. They could have a panel of fifteen, then 5 people from that panel could sit on the Board on a rotating basis. The Chairperson of the body could be permanent for the purpose of continuity.
The Chairperson said that they could discuss this more to consider the practicality of that approach. He asked why the different provisions for the appeal board were placed into different clauses. He asked if it should not be restructured into one clause. Advocate Kok replied that it is better to break the provisions up into different clauses rather than having to search for provisions in one long clause.
Establishment of Ministerial Committees - Clause 132
Mr Lever asked what was envisaged by this clause, particularly why Ministerial committees had been created. He suggested that the drafters create Commissioners committees to take the committees out of the political realm.
Advocate Kok replied that the Minister has ultimate control over the Bill therefore they decided to create a committee to advise the Minister rather than the Commissioner. Also, it is the Minister who must make the regulations. In this way if the body advises the Minister then the body can influence the regulations. This is very important. An advisory committee to the Minister is normal practice.
Mr Lever said that the real problem was that the Minister had the discretion to deal with the Committee as he sees fit. Now it becomes political. There is nothing which inhibits the body from becoming a political body. He asked:
- Did the Minister ask for this provision? If he did then this committee can ask the Minister what the purpose of the provision is and then the committee can evaluate the acceptability of the purpose of the provision.
- Did the drafters include the clause simply in case the Minister may want to do this someday? If this is the case then there is absolutely no control. A general clause like this is bad as the Minister could create a panel simply to give his best friends a job.
Mr Taabe (ANC) said that Advocate Kok's motivation for including the clause is adequate. Mr Lever seems to be saying that they cannot entrust Ministers with responsibilities. The DA has a general distrust of Ministers. Mr Taabe said that he has a problem with such views and in his opinion the clause should remain as it is.
Advocate Kok agreed that the Minister was given a wide scope as to whether he wants to establish a panel or not. The reason for this is that the Minister may need advice on things that are not foreseen now such as legislative changes or technical firearm issues which must be considered in light of the prohibitions.
The Chairperson commented that if someone is entrusted with a responsibility then the person must be given scope to act in terms of that responsibility.
Mr Lever disagreed saying that the issue was not distrust of Ministers. The issue is checks and balances which must exist in a democracy. Parliament and the Executive are separate and there should be checks on the Executive. If the clause was simply put in for no real reason and not even the Minister sees the purpose, then it presents a problem. There are no parameters to work with and there are no controls. This is dangerous. The question which must be asked is: ''What does the Minister want and what does the Minister need''?
Compensation - Chapter 19
Application for compensation - Clause 137
Mr Lever noted that the DP objects to this clause as the DP believes that the compensation should be wider. He would not discuss the issue now but the DP would raise it in the debate in the NCOP Chamber.
General provisions - Chapter 21
Service of documents - Clause 143
Mr Lever raised a point in terms of subclause 143(1)(g). This subclause says that the Regulations will prescribe the manner in which documents must be served on a person who is absent from SA. Mr Lever suggested that in instances where the person is absent from SA it would be better to approach a court and ask them how to serve the documents. This approach provides for more flexibility. If something is put in the Regulations it may not cover all the instances.
Advocate Kok replied that he had no fixed point of view on this. If problems do arise by prescribing in the Regulations then it will probably only relate to a minor number of incidents. He said that they did not necessarily have to amend the Bill, they could put Mr Lever's suggestion into the Regulations.
The Chairperson said that they would include this as part of their report.
Jurisdiction of magistrate's courts - Clause 151
This clause gives magistrate's courts the jurisdiction to impose the penalties in the Act. Mr Lever said that the DP objects to this because it is beyond the jurisdiction of the magistrates courts . He said that Clause 151 should be removed and the position should be left as it is in terms of the Criminal Procedure Act.
The Chairperson said that they would come back to this.
The Act binds the State - Clause 152
Adv Kok explained that this was a normal clause. Generally where exemptions are not applicable, the State is bound. State officials in their official capacity are bound.
Transitional provisions - Schedule 1
Mr Lever asked if Item 8 Matters pending under the previous Act would create offences retrospectively. Advocate Kok replied that it would not as this deals with pending proceedings in terms of the previous Act therefore it is not retrospective.
Mr Lever asked about the practical implications of Item 11 - Renewal of licence. Would it not create the problem that everyone would rush to renew their licences at one time. Advocate Kok replied that different periods will be determined for different licences so that they create a staggering effect in respect of renewal periods.
Ms N Botha (of the Joint Monitoring Committee on the Status of Women) was present to discuss the issues raised by Ms Govender (chairperson: Joint Monitoring Committee on the Status of Women) at the meeting the day before.
Application for competency certificates - Clause 9
The Domestic Violence Act has one aim: to protect women against domestic violence. This includes protection from firearms in a domestic violence situation. The Act gives the court the discretion to take appropriate steps. It sets out the courts jurisdiction in respect of firearms in a domestic violence situation. Sometimes the court is obliged to seize firearms but seizure is not always mandatory.
The Firearms Control Bill made a reference to the final protection order in its previous version of clause 9(2)(m). The Domestic Violence Act sets out the courts jurisdiction in terms of firearms in a domestic violence situation. If the old Clause 9(2)(m) was left in the Firearms Bill then the Firearms Bill would by implication have overridden the Domestic Violence Act. The Portfolio Committee made a political decision to remove this clause on the ground that it amended the Domestic Violence Act by implication.
The Portfolio Committee also said that old Clause 9(2)(m) could be deleted because the protection of women in a domestic violence situation (in relation to firearms) was adequately dealt with in terms of the Domestic Violence Act.
Women's groups disagree with this saying that the court is not obliged to remove a firearm after a final protection order has been granted. Because of the deletion of old Clause 9(2)(m) there is also a lacuna in the law. The problem is that the Domestic Violence Act only provides for seizure of firearms. It does not cover those instances where someone who has a final protection order against them applies for a competency certificate. The court cannot seize a firearm that the person does not have yet.
Advocate Kok said that they cannot make the issue of a final protection order an obligatory disqualification for a firearm. This is because the final protection order in terms of the Domestic Violence Act covers a wide area. It relates to matters which do not even include violence, such as non-compliance with maintenance orders. If it was an absolute disqualification then the Registrar would have to receive the record of the person to examine whether actual physical violence was involved. This is technically impossible.
Even without the final protection order as a disqualification, there are still backstops to deal with this. For example the person must be a fit and proper person. If a person has a final protection order in terms of the Domestic Violence Act against them, then the person is not a fit and proper person and the Registrar does not have to grant a competency certificate. Also, if the person is prone to violence the Registrar does not have to grant a competency certificate. The same applies where there is a record of drug and alcohol abuse and where the person has been convicted of an offence involving violence. These are all backstops which cover the scenario.
Even though the original provision was an absolute disqualification it would still have required an evaluation by the Registrar as to whether violence was actually involved. For this reason the clause was superfluous because the Registrar must in any event do an evaluation.
Advocate Kok said that he thinks that there should be an explicit question about a final protection order in the application form. Ms Le Roux pointed out that the woman must report the final protection order to the police station. This means that the applicant is inclined to violence and it will affect his competency. The person can then be declared unfit in terms of Clause 102.
Adv Joubert offered the following proposals as a solution:
In Clause 9 they could set out the general requirements first (these relate to being fit and proper and not being inclined to violence). Below this they could list some absolutes (such as rape and sexual abuse). They could also include:
- an obligation on the Registrar to investigate.
- a final protection order question in the competency application form.
- a person's inclination to violence must be taken into account.
- an applicant must be obliged to supply the Registrar with papers.
- the Registrar can hold over the processing (so that the person has no firearm) until they have made a full enquiry as to whether the person is a fit and proper person and whether the person is inclined to violence or not.
Clause 9 (continued)
Mr Lever (DP, Northwest) stated that he recognised that there existed a gap in respect of people making first applications, and proposed that as a way of addressing this, he would propose that Clause 9 (2) (c) be split into two sub clauses as follows:
9 (2) (c) (i) is a fit and proper person to possess a firearm, to trade in firearms, to manufacture firearms or to conduct business as a gunsmith, as the case may be;
(ii) in determining whether a person is a fit and proper person, the Registrar shall have regard to whether a person has had a permanent restraining order issued against him/her (within the past 5 years can also be included)
This would ensure that where a permanent restraining order has been issued, the Registrar would take this into account when making the decision whether to grant a competency certificate or not. This would set out that when assessing a person, there is an imperative on the Registrar to have regard to whether a final restraining order was issued. This is a lighter test than that of a criminal conviction, as this is done on a civil threshold on a balance of probabilities, but a criminal conviction is done beyond all reasonable doubt. A final restraining order can be accepted as a good test as both sides have presented their case and the court has made its assessment, whereas with a temporary restraining order only one side of the case has been put forward. However, the suggestion has been made that when there is a temporary restraining order in place, a decision on the application for a competency certificate be held in abeyance until the court has made its decision to make that temporary interdict final.
Adv. Kok stated that he would not have any problem with this inclusion, but a further suggestion could also be that this duty can be imposed on the Registrar by way of a regulation. This kind of duty would, however, apply whether it is explicitly written into the legislation or not.
Ms Botha (of the Joint Monitoring Committee on the Status of Women) stated that it was her opinion that it would be risky to leave this out altogether. However she was concerned with the process required to make these amendments and still have the legislation passed in this parliamentary session. If this is not possible, then an alternative would be to have this included as a resolution, but she was not comfortable with leaving it out.
The Chair noted that several issues have been picked up during this meeting, and discussion is needed as to whether these can be included as amendments or whether these would have to be adopted as resolutions. This committee has a responsibility to cover any gaps that might exist in the implementation, and there may be value in learning from other countries that have made similar changes in legislation.
Mr Lever stated that the proposal may once again fall into the trap of seemingly interfering with the Domestic Violence Act).
Ms Botha stated that she would rather amend section 9 (2) (c) than simply deal with the changes as a resolution. She also asked when this Act was scheduled for implementation.
The Chair replied that this Act was scheduled for implementation as soon as possible, and that the legislation was scheduled for presentation in the NCOP on 10 November 2000, but members of the National Assembly would be in recess. Amendments would therefore be a problem and it would have to be seen whether failure to include changes as amendments would lead to serious problems. It is a political decision whether this Bill can be passed this year with regulations or whether these changes should be included as amendments and passed next year.
Mr Lever reminded the committee that the Whip's program does allow for amendments by either fitting them into the timetable or by calling the National Assembly back. The committee should be guided by how strongly the women's committee feel, and this kind of amendment should not lead to objections from the Portfolio Committee.
The Chair asked that this be discussed further at the end of the meeting.
Advocate Kok stated that this is not a very controversial section, as the final protection order is included to give discretion to the Registrar. Administrative measures will be in place so that final protection orders will be picked up in relation to new applications.
Adv. Kok stated that whatever the merit of the suggestion in the legal opinion, the Domestic Violence Act explicitly refrains the courts from making a ruling on fitness, and leaves this to the Registrar. If we should oblige the court to make a decision, this would go against the Domestic Violence Act. The situation was left as it was in order not to change the dispensation of the Domestic Violence Act. Mr Lever stated that he agreed with Adv. Kok.
Ms Botha stated that as the clause made provision that "any additional conditions" could be applied, the court can therefore also subject the applicant to any test, In her opinion this suffices.
Adv. Joubert stated that it was important that Section 9 of the Domestic Violence Act obliges the court to seize the weapon, and that the drafters of the legal opinion may have missed this. There is no use in drafting legislation that is conflicting, and the committee has two choices in order to avoid this situation: either change the Domestic Violence Act, or pass a schedule. Either solution would have to be discussed with the Department of Justice.
The Chair expressed the view that the legislation must be changed if needs be. The route forward would be to identify all problems and bring them as part of the resolutions.
Adv. Joubert suggested that a request be sent to Justice to amend the Domestic Violence Act to compel seizure of the firearm and declare the person unfit.
The Chair stated that he thought that this was a good suggestion to send a resolution to the Justice Department as it is better to oblige the courts from the beginning. The courts may not like it, but that is too bad.
Mr Lever stated that he thought that the committee needs to retain an oversight role for the implementation of the bill, and that problems could be raised at report-back meetings during the first three years of implementation and could be dealt with in that way.
The Chair stated that this would be a good route to take as the committee needs to monitor the process as it unfolds.
Mr Lever referred to Clause 103 (1) (g) and the use of the word "dishonesty" here. He stated that it is a difficult word to interpret and that a measured and balanced approach needs to be taken so that trivialities are not raised. He also needed to draw attention to the situation where a person is convicted of an offence, and where the person would be found unfit unless the court rules otherwise. As the person has no need for a firearm, he/she would not request that the court stipulate them as fit. However, a few months later this situation may change, and the possibility needs to be catered for by allowing a provision for revision of the facts and a ruling on fitness. This should not amount to too many applications at this stage, and could also be included in a resolution.
Adv. Kok stated that this would be implicit, but it is good to make it explicit.
Ms Botha was not convinced that the issue of equating sexual abuse and dishonesty in 101 (g) was a good idea.
Adv. Joubert pointed out that dishonesty was being equated with offences in terms of the Explosives Act, the Domestic Violence Act and this Act. The real equation is therefore the threshold offences, and this could be included in separate clauses, although it does not have any legal significance to include it as one paragraph. It is not the definition of the crime, but the punishment that is the test. Adv. Kok added that this is merely a technical issue and that it has no legal effect. It could have been separated into separate clauses.
Mr Lever said in his opinion that the courts would not really impose a fine for sexual abuse, although he was not sure.
Adv. Kok clarified that the definition is that the crime INVOLVES sexual abuse and so is not narrowing in any way. Adv. Joubert added that wording in Clause 103 (1) (i) does not refer to a certain crime, but rather to an issue. The total effect is what is important rather than the individual words: "any offence involving physical or sexual abuse occurring in a domestic relationship as defined â€¦in Domestic Violence Act."
Mr Lever suggested that it might be more appropriate to add the words "violence/sexual abuse in any other relationship" from (g) and add it into (i), although there is no material effect.
The Chair stated that this may be more appropriate to include into the Sexual Offences Act, allowing space for the regime to develop.
Ms Botha stated that the reason for (g) including sexual abuse was to redress the fact that the current definition of rape does not distinguish this properly. She was still troubled by the juxtaposition of the word dishonesty - as relating to (l) (m) and (h), asking whether this meant that it can be incorporated in these clauses as with (g). She stated that she was not sure if the phrase should be "and dishonesty" or "or dishonesty".
Adv. Joubert clarified that it read "or dishonesty" as otherwise there would be the requirement of having all three elements which was not the intention.
Ms Botha asserted that there is a great difference in the kind of person who would commit a crime involving dishonesty and one who would commit a crime involving violence.
The Chair asked for members to take these suggestions back to their parties, and to get guidance and come back with positions for discussion in the week of the 30 October.
The Chair noted that there were two options at this stage. The amendments could either be included as resolutions, or the Bill could be amended, but that there are practical considerations which need to be taken into account. If the committee decided to make the amendments, then they would have to be presented in this forum either tomorrow or on the 30 October. A slot can only be found in the NCOP plenary on 2 November, and if there is no debate it could be passed in the National Assembly on the 3 November. If this cannot happen then, the Bill would have to be kept over until February / March 2001, but this has financial implications for the Department. Alternatively the Bill should be adopted and resolutions should be made.
Mr Lever suggested that the proposed amendments be identified and divided into those which should be included as amendments and those which should be included as resolutions. None of these issues are life and death issues which will materially affect implementation. Typographical errors will be rectified, and there should be no further major objections to this going through. He suggested that members take these to their principles and prepare the groundwork so that the amendments can be passed.
The Chair noted that if the Bill needs to be debated, then it could not be finalised with amendments before the end of session. If the Bill can be presented without debate there might be a possibility that it could be passed before the end of the session.
Mr Lever stated that this Bill would have to be debated as a result of the large amount of public interest in this Bill.
The Chair said that the ANC felt that the drafters should be requested to compile a document with all the amendments arising from today's discussion, that members can take these to their caucuses and that these can then be adopted as resolutions. This Bill will have to be debated as a result of the high profile in the public arena.
Mr Lever stated that the Opposition agrees with the proposal.
The Meeting closed at 16h15.
LEGAL OPINION ON THE FIREARMS CONTROL BILL, 2000 AND HOW IT RELATES TO THE DOMESTIC VIOLENCE ACT, 116 OF 1998
Michelle O'Sullivan - Attorney
Lulama Nongogo - Attorney
Women's Legal Centre
1. DOMESTIC VIOLENCE ACT
1.1 Protection Orders and Offences:
The Domestic Violence Act ("DVA") creates a distinction between an "offence" committed and obtaining Protection Orders.
In order to obtain a Protection Order, a Complainant has to show that the Respondent is committing or has committed an act of domestic violence and that she will suffer undue hardship if the Protection Order is not issued immediately. In other words, a Protection Order is often issued once an act of violence has already been committed.
The Act does not create a specific offence of domestic violence. However, when a Court issues a Protection Order, the Court authorises a Warrant of Arrest of the Respondent and suspends the execution of the Warrant or until the Respondent breaches the Protection Order.
The Act provides that any person who breaches a condition of a Protection Order, reveals the identity of any party to the proceedings or makes a false statement shall be guilty of an offence and may be imprisoned for a period not exceeding five years.
The Act draws a distinction between an Interim Protection Order and the Final Protection Order. An Interim Protection Order can be obtained if there is prima facie evidence that an act of domestic violence has been committed. A Final Protection Order may be issued if the Court finds, after a hearing of written and oral evidence on a balance of probabilities that the Respondent has committed or is committing an act of domestic violence.
1.2 How difficult is it to obtain a Final Protection Order?
The DVA provides that in order to obtain a Final Protection Order, a Court has to accept that on a balance of probabilities an act of domestic violence has been committed. In order to prove that an act of domestic violence has been committed, a Complainant must prove that the actual act occurred and introduce evidence to that effect. The Respondent has an opportunity to lead evidence and to cross examine the Complainant in regard to her evidence. Both parties are entitled to legal representation. It is unlikely that Final Protection Orders will be granted in circumstances where there has not been an act of domestic violence.
1.3 What is required to obtain a conviction in terms of the DVA?
In order to obtain a conviction for an offence in terms of the DVA, a Complainant must prove beyond reasonable doubt that the Respondent has breached the conditions in the Protection Order. Beyond reasonable doubt is the standard of proof used in criminal trials. This is a high onus for a Complainant to meet.
1.4 What does the DVA say about firearms?
Section 7 of the DVA provides that in granting a Protection Order a Court may impose conditions which it deems reasonably necessary to protect and provide for the safety, health or well being of the Complainant. This includes an order to seize any arms or dangerous weapons in the possession or under the control of the Respondent. However, in order to do this the Court must be satisfied on the evidence placed before it, either that:
(i) the Respondent has threatened or expressed the intention to kill or injure himself or herself or any other person in a domestic relationship; or
(ii) possession of such a dangerous weapon is not in the best interest of the Respondent or any other person in a domestic relationship as a result of the Respondent's:
(a) state of mind or mental condition;
(b) incarnation to violence; or
(c) use of or dependence on intoxicating liquor or drugs.
The Act make provision for a firearm to be seized and to be handed over by the South African Police Service for the period for which a Protection Order is in operation.
The DVA grants a discretion to Court in deciding whether to oppose an additional condition concerning a firearm or a dangerous weapon. It does not make it mandatory for dangerous weapons and firearms to be seized and to be removed from the Respondent.
Because of the nature of violence in domestic relationships and the cycle of violence in these relationships, there is often great economic and other pressure on Complainants to withdraw or vary Protection Orders. As a result, many Protection Orders are withdrawn by the Complainant and in these circumstances they result in the firearm being returned to the Respondent.
The DVA does not automatically require Magistrates who are considering applications for Protection Orders to consider whether it is necessary to order the removal of a firearm.
2. FIREARMS CONTROL BILL
2.1 Competency Certificates awarded in terms of the Firearms Control Bill:
Section 9(2) of the Bill sets out conditions under which a person may be issued with a Competency Certificate.
At present a competency certificate may only be refused if a Respondent has been convicted of breaching a Domestic Violence Protection Order, by physical or sexual abuse or been sentenced to a period of imprisonment without a fine for Section 9(2)(h)(ii) and Section 9(2)(l) In the earlier draft of the Bill, Section 9(2)(m) included the condition that the Applicant "has not, in a matter involving a reasonable apprehension of violent behaviour by that person, been the subject of a Final Protection Order issued in terms of the Domestic Violence Act, 1998 (Act No. 116 of 1998), or a similar Restraining Order issued in terms of any other legislation, in or outside South Africa.
In the final deliberations on the Bill, Section 9(2)(m) was deleted. The state law adviser's justification for the late deletion of this Section was that this issue was adequately dealt with in terms of the DVA. However, the above analysis of the provisions in the DVA dealing with firearms reveal that:
a. removal of a firearm after a Final Protection Order is not mandatory;
b. the Magistrate has discretion as to whether to consider removing a firearm;
c. the firearm is only removed for the period under which the Protection Order is in operation and may be returned to the owner;
d. the DVA does not make it mandatory to hold an inquiry into the Respondent's gun licence;
e. it will often require knowledge on the part of the Complainant to bring to the Court's attention the existence of a firearm in order for it to be removed;
f. unless the offence complained of in relation to the Protection Order involves the use of a firearm, it is unlikely that this issue will canvassed during the Court granting a Protection Order.
2.2 Who is excluded from protection of this Firearms Control Bill by the deletion of Section 9(2)(m)?
Many women who have obtained Final Protection Orders on the basis of extensive physical or sexual violence, would not be protected by the Firearms Control Bill. Although they have obtained Final Protection Orders against their partners, their partners may successfully apply for a Competency Certificate because of the deletion of Section 9(2)(m).
We propose, that in order to afford protection to women who are victims of domestic violence and to give effect to the right of all persons to be free from violence from both private and public sources, that Section 9(2)(m) is re-inserted in the Firearms Control Bill. It is suggested that this was a technical amendment proposed by the drafters in the final deliberations on the Bill and that the full implications of the deletions of Section 9(2)(m) were not considered.
Section 103(2) provides for circumstances in which a firearm licence may be removed. It is suggested that Section 103(2) may be used to link the Firearms Control Bill to the Domestic Violence Act. It is suggested that after a Final Protection Order is granted, a Court must enquire to determine whether the Respondent is unfit to possess a firearm and that Section 103(3) should be amended accordingly.
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