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SAFETY AND SECURITY PORTFOLIO COMMITTEE
2 April, 2003
FIREARMS CONTROL ACT IMPLEMENTATION: BRIEFING BY SAPS; TECHNIKON SOUTH AFRICA RESEARCH ON GUN OWNERSHIP
Chairperson: M E George (ANC)
Documents handed out:
Firearms Control Act, 2000
Technikon South Africa Presentation
Gun Free South Africa & Technikon SA: Role of criminal justice system in excluding unfit person from firearm ownership December 2002
Executive Summary of Gun Free South Africa & Technikon SA Report:
The Committee castigated the South African Police Service for what it termed as unacceptable laxity on their part in the implementation of the Firearms Control Act noting that this attitude was undermining the authority of Parliament. The Committee also took issue with the rate at which firearms licences were being issued pointing out that this practice does not augur well for the campaign to arrest the problem of proliferation of firearms in the country.
SAPS, however, explained that the blame for the delay in the implementation of the Act was due to external factors. The implementation program is awaiting the promulgation of supporting regulations and this process, was out of their control.
Technikon South Africa research unit defended SAPS stating that the police have covered good ground in laying the necessary infrastructure for the roll-out of the implementation program. Technikon South Africa also called on Magistrates to routinely invoke Section 12 at the sentencing level in order to lighten the work of the police in assessing applicants for a firearm licence.
SAPS on the implementation of the Firearms Control Act
Asst. Commissioner PC Jacobs - Directorate Legal Affairs: SAPS, noted that the draft set of regulations to the Firearms Control Act, 2000 has been submitted to the Minister and that he has approved proposals in relation to the phased implementation of the Act. Consultations were in progress to finalise the regulations as required by the Promotion of Administrative Justice Act, 2000. The Minister has approved the publication of the draft regulations in the Gazette on 27 March 2003 and the closing date for comments is 29 April 2003. The SAPS was keen that the regulations be finalised as soon as possible and the target date was later than end of June 2003.
Comm. Jacobs noted areas of the Act, which require regulations but no regulations have been drafted yet. These are:
- Fees/remuneration, which may be charged by dealers, or any firearm/device required to be disposed off through a dealer and
- Disposal of firearms forfeited to the State.
These aspects would be addressed once the relevant policy has been determined and they are not critical for the present implementation exercise.
On the issue of amendments to the Firearms Control Act, 2000, Cabinet had approved the Firearms Control Amendment Bill submitted on 24 March 2003 to Cabinet and the tabling of the Bill in Parliament would follow as soon as it was certified. This would be dealt with concurrently with the regulations.
Commissioner Jacobs explained that the proposed amendments to the Act were necessitated by the need to correct administrative and linguistic errors during the printing of the Act. He cited some errors such as "Game Hunter" to be changed to "Game rancher", and similar amendments relating to the Custom of building firearms by Gunsmiths. Others amendments deal with provision for an apprentice to a gunsmith to be in possession of a firearm for the purpose of the work of a gunsmith. Provision is also made for SAPS, SANDF, DCS, Metro Police Service members and security officers on duty to be exempted from the requirement that a firearm must be completely covered from view. There were also amendments to the transitional arrangements to allow for the continuation of an existing certificate to trade as gunsmith when the Firearms Control Act comes into operation (see SAPS Powerpoint presentation).
Briefing on Firearms Control Operations
Asst. Commissioner GJ Kruiser - SAPS Directorate Operations - addressed matters touching on Firearms Control Operations and noted that the process is intelligence-driven and that it was essentially part of the primary driver of the operational crime-combating approach. He pointed out that the aim of the newly established Operation Sethunya was to eradicate the proliferation of firearms, which contributes to the escalating crime and violence in South Africa (see SAPS Powerpoint presentation)
Briefing on Firearms Control Information System
Director J Bothma noted that SAPS was moving away from control to the administration of firearms. He explained that the enhanced system provides for the implementation of the Act in the areas of accreditation, competency and re-licensing. There was new equipment to print licences in accordance with the Act. SAPS is reviewing the standards of shooting ranges in order to improve their safety measures and to create mechanisms where such ranges would be accredited to provide training to individuals in the use of firearms. Since competency certification was a requirement for the licensing of firearms, SAPS would ensure that those who provide such training were accredited (see SAPS Powerpoint presentation).
Mr. Bothma said that procedures are already in place for legal owners to voluntary hand over their firearms to the SAPS for destruction in compliance with the Act. SAPS has already received applications to declare premises firearm-free zones and that it has verified the physical aspects of the premises and that appropriate recommendations have been forwarded to the Minister for approval and gazzetting. SAPS was currently auditing the national/ provincial departments in order to accurately determine and record the number of departments in possession of firearms. The exercise would also identify obsolete and redundant firearms for destruction and already 195,136 firearms have been surrendered for destruction from the departments already audited (see SAPS Powerpoint presentation).
Gun Free South Africa / Technikon South Africa Report
Ms Redpath informed the Committee that Gun Free South Africa had commissioned her research and that the methodology adapted was based on research in four provinces that cover 72% of all applications in both rural and urban areas. She noted that 92 interviews or focus group sessions with magistrates, prosecutors and police were held and 376 records from Criminal Records Centre perused and analyzed in addition to 250 firearm licence applications. She contended that the survey revealed that the ultimate responsibility for approving and declining firearm applications rests with the Central Firearm Register noting that prosecutors appear to lack initiative regarding declarations of unfitness. Many magistrates believe that there is no need to record the declaration that the accused is declared unfit to possess a firearm. Where nothing has been written down, the police can assume that the accused has not been declared unfit. A further confusing factor is that A further confusing factor is that, where the ruling is recorded, courts use the term "no order is made". This can be misinterpreted by police investigating officers and staff at the Criminal Record Centre to mean that the court did not declare the person unfit to possess a firearm. In some provinces, the police have begun attaching a form to the SAP 69 folder: asking directly whether the accused has been declared unfit to possess a firearm. The study found, however, that few prosecutors had seen these forms.
Ms Redpath criticised the fact that Magistrates do not routinely declare people unfit for the issuance of the firearm licence as it contributed to police overload. She commended the SAPS background checks procedures, which she credited for being thorough despite the constraint that this put on resources at the local police station. The enormous workload and responsibility SAPS shoulders in this respect would be considerably reduced if magistrates took the initiative to apply their minds on Section 12 of the Act. Further, police are conducting more Section 11 inquiries but the Firearms Appeals Board seems to routinely lift declarations of unfitness as a matter of course.
She recommended that:
- Court officials should be retrained about automatic declarations of unfitness.
- Court officials should record on the SAP69 form whether or not a declaration of unfitness has been made.
- Confusing language practice should be clarified.
- Prosecutors should be encouraged to give clear instructions on dockets, instructing the police to remove weapons and licences in accordance with the court ruling.
- SAPS manuals, procedures and forms should be standardised.
- SAPS members should be made aware of the provisions of the Domestic Violence Act as it pertains to declarations of unfitness. Moreover, communication between the DFO and police members dealing with the Domestic Violence Register should be encouraged.
- Court and police systems should be linked in respect of information pertaining to the granting of protection orders.
- Police should be required to interview the spouse or partner of the applicant in every application.
- Where a DFO is experiencing capacity constraints, Crime Prevention and Client Service Centre personnel could be used to inspect safes and visit partners.
The Chair noted that it was disturbing to see the number of firearms police are issuing noting that this trend defeats the very purpose of the new Act to curtail the proliferation of illegal firearms in the country. This practice on the part of SAPS was insensitive.
Mr Bothma replied that there has been a considerable drop in the issuing of firearm licences and that almost 190 gun-dealers had closed shop due to lack of a credible market. More than half the number of applicants have so far been declared unfit and that police were holding more Section 11 hearings to cap the proliferation of firearms.
Mr Booi (ANC) criticised the SAPS for "unmitigated laxity" in the implementation of the Act. He said the Committee was disappointed at the manner SAPS had conducted the process of implementing the Act noting that SAPS had given the Committee several assurances since 2000 that the Act would be implemented speedily but to date nothing has come out of these promises. He voiced concern that SAPS was seriously undermining the work of Parliament. It called into question their commitment to the reduction of violent crimes.
Comm. Jacobs explained that the delay was occasioned by the requirement that the draft be opened for public comments. He added that there was also the obligatory process of consultation with Parliament which took place on the 15 September. He assured the Committee that SAPS was eager that the Act be implemented expeditiously and that is why they have gone out of the way to put all resources into the process.
Mr Booi complained that SAPS had briefed the Committee without apologising for the delayed implementation of the Act - as if nothing was the matter. He noted that no mention had be made on the worrying trend of private security firms amassing arms which is in itself a threat to national security.
Comm. Makhubela said he was only recently appointed to head the division that would oversee the implementation of the Act . He urged the Committee to take it from him that the Act would be implemented expeditiously. He tendered unreserved apology to the Committee for any omissions SAPS may have committed that contributed to the delay in the implementation of the Act
Mr Booi faulted the implementation mechanisms, which he said do not have a communication strategy to roll out an aggressive publicity campaign that would precede the implementation of the Act.
Mr Bothma confirmed that SAPS has already designed a functional communication strategy and that an aggressive public education campaign was already in place. This would be revamped once the Act is implemented.
Mr Zondo (ANC) concurred with concerns expressed by Mr Booi. SAPS had raised high expectations on the swift implementation of the Act and he was perturbed by SAPS silence on why this delay has come about. He noted that SAPS delay in implementing the Act was a clear failure and one that has dealt irreparable damage to the campaign to check the proliferation of firearms among the populace.
Mr Bothma assured the Committee that SAPS was very much committed to the speedy implementation of the Act. He blamed the delay in implementation of the Act to the outstanding issue of regulations. It is not practical to roll-out the program without the promulgation of regulations and that this is a process that is controlled by external forces.
Mr Zondo sought clarity on the question of use of firearms during training and whether there were mechanisms to ensure safety.
Mr Bothma pointed out that SAPS train its own members in the proper use of firearms but that it is incumbent upon SAPS to ensure that external trainers meet the minimum criteria to meet safety and certification requirements.
Mr Zondo commended Technikon South Africa for its independent presentation and one that gave useful insight into the process of issuing of licences especially at the local police level. He sought to know whether Technikon South Africa did at any time interact with ICDC during its research undertaking.
Ms Redpath replied in the negative stating that she only interviewed some women organizations on the issue of domestic violence and did not venture further than this.
Mr Swart (DP) pointed out that the blame for the failure to implement the Act falls on the National Commissioner who had personally assured the Committee that the process would be expedited. He noted that the presentation by Technikon South Africa was an interesting one and thanked the presenters for their lucid input. He then requested the police to supply members with statistics on the number of applications received annually and those that are approved. Such data would help one to determine whether or not the rate of licence issuance has gone down.
Mr Swart observed that SAPS currently lacks the necessary training and knowledge to effectively implement the Act and inquired how this deficiency would be addressed.
Comm. Kruiser pointed out that SAPS would train more people to ensure that there are at least 2 firearm experts at the local level and 13 store keepers in every province so that there are enough people to test firearms without necessarily referring cases to the head office.
Mr Ferreira (IFP) said that from the presentation by Technikon South Africa, one has the impression that gathering enough background information on applicants would be a monumental task. He noted that police officers have no training in psychology and that therefore their assessment of applicants would not be sustainable in a court of law.
Ms Redpath noted that she sympathized with the dilemma SAPS was faced with since it is not practical to determine a person's temperament at face value and that SAPS have to increasingly rely on the applicant's external conduct which process is lacking in scientific value.
Mr Kgauwe (ANC) pointed out that the Act would address most of the concerns around the applicant's profile since the court would be guided by views of the community and the applicant's partner. He expressed concern that the delay in implementing the Act has seriously undermined the program to retrieve firearms that are unnecessarily held in private hands.
Ms Redpath came to the defence of SAPS noting that, although still working under the old legal framework, SAPS has so far undertaken its programs with an eye to the new legislative dispensation and that therefore it is not fair to state that there has been no roll-out whatsoever.
Comm. Kruiser concurred with the views expressed by Ms Redpath noting that the implementation process has been hampered by the pending regulations but that much work has been done to lay out the necessary infrastructure for the program. He pointed out that SAPS would incorporate some of the recommendation made by Technikon South Africa during the process of promulgating the regulations.
Mr Botha (DP) wanted to know if police have put in place mechanisms to ensure that the confidentiality of licenced firearms holders is not violated in view of the fact that police stations are a public area where members of the public have free access.
Mr Bothma assured the Committee that SAPS trains people in the area of enquiry functions and how to process computer data and that such information is properly secured to keep the applicants particulars out of the public eye.
Ms Redpath added that the inquiry system is such that one has to produce an identity card before information can be accessed and therefore it was not easy for people to gain access to private information.
Mr Maziya (ANC) wanted to know whether a security check is conducted on the firearms that are voluntarily surrendered to ensure that such weapons have not been used in the commission of criminal activities.
Mr Bothma confirmed that SAPS makes it a point to routinely check whether the surrendered firearms were used in the commission of crime or not. Where it is determined that a crime was committed the appropriate legal measures are immediately instituted.
Mr Maziya sought to know whether members of the public know the existence of the so-called 'Operation Sethunya'.
Mr Bothma replied that he was unable to reveal the character and contents of the document relating to 'Operation Sethunya' since the matter was at present before the Cabinet.
Mr Maziya noted that the research by Technikon South Africa identified certain deficiencies in the Act which suggests that more work needs to be done in order to cover these areas of inadequacy.
Mr Booi wanted to know whether the implementation work has been budgeted for in the current financial year.
Comm. Mukhabela replied in the affirmative noting that adequate budgetary provision has been made for the roll-out of the firearms control program.
Mr Swart contended that it is a contradiction in terms to promise people amnesty from prosecution should they voluntarily surrender illegal arms yet at the same time scrutinize the surrendered weapons for possible criminal activity.
The Chair wanted to know on what basis unsuccessful applicants appeal the refusal to be licenced for firearms.
Comm. Jacobs explained that applicants are allowed to re-apply after the expiry of two years and that most appeals succeed because police officers lack knowledge and training in determining the suitability and merits in such applications
The Chair expressed concern at the lack of training at the local police station where most firearm licences are approved and wanted to know how SAPS proposes to address this deficiency.
Mr Bothma explained that SAPS has designated certain police officers as firearm experts at the local police station and that in smaller areas these offices are held on an ad hoc basis. Such offices are fully equipped with the necessary infrastructure such as vehicles and computers.
Mr Zondo wanted to know when magistrates make orders in relation to fitness or otherwise of an applicant.
Ms Redpath explained that the magistrate makes the order during the sentencing stage where information is sought on the convict's previous record. She added that the work of SAPS would be made much easier if magistrates made it a norm to revisit this section.
Comm. Jacobs said that SAPS was ready to tender its briefing on the regulations once the Committee signals it to do so.
The Chair was emphatic that although the Committee's calendar was tight, a briefing should be tendered as soon as is practical so as to put a stop to the speculation attending the implementation of the Act. He pointed out that there were many undeserving persons walking around with firearms and that there was an urgent need to ensure that only responsible persons were issued with firearm certificates. He also called for a reassessment of firearms in the custody of State Departments wondering why a Department like Social Development would need firearms. He castigated some senior police officers for taking matters to politicians instead of seeking remedy through established police structures warning that such a habit is potentially explosive. He called on SAPS management to move first and arrest such despicable malpractice.
The meeting the adjourned.
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