Firearms Control Amendment Bill (Private Member’s Bill): briefing

Meeting report

Opening Remarks
The Chairperson greeted all the members and noted that in the interest of time he would allow Dr P Groenewald to present immediately as there was a plenary session in the afternoon.

Briefing by Hon P Groenewald on Private Member’s Bill on Firearms Control
Amendment Bill
Dr P Groenewald (FF+) read through his submission.

Amendment of section 28 of Act 60 of 2000
In terms of amendment of subclause 2 (a) 28 (1A) (c) Dr Groenewald said he understood that the sheriff of the Central Firearms Registry (CFR) was obligated to ensure proper control of firearms as the CFR was supposed to know who had a firearm and at what address. When the holder of a firearm license changed address the Firearms Control Act (FCA) obliged the holder to inform the CFR that addresses had been changed.
Clause 1 amended section 24 to allow for additional opportunities to apply for a renewal of a firearm licence or to surrender or dispose of a firearm. Each additional opportunity would attract an administrative fine to be prescribed, to serve as a deterrent for late applications. Clause 1 further provided that during these additional opportunities and until the period provided by the Registrar when notifying a holder of a licence that the licence has expired, the licence remained valid or would be deemed valid until the application was finalised, or the firearm had been surrendered or disposed of. It further provided that the lateness of the application and the administrative fine imposed did not disqualify the applicant from succeeding with the renewal application.
Clause 2 amended section 28 so that the Registrar would be required to inform a holder of a licence of the possible actions to take when the affected licence had expired. It further provided for the methods in which such notice could be made.
Clauses 3 and 4 provide for amendments to sections 106 and 107 of the Act so that proof of an application for renewal would also suffice in the event of an inspection or request of a police official or authorised person.

Amendment of section 107 of Act 60 of 2000
He said when a firearm owner could produce proof of application for renewal of a licence then that person could not be arrested.

Transitional provision
Dr Groenewald said he had asked the Minister of Police in Parliament how many firearms licenses had expired where owners had not applied for renewal of licenses. The figure the Minister had given him had been 385 000 and he knew there were different figures.

The transitional provision clause provided for firearm license owners with expired licenses to be allowed extra opportunity to the options outlined in clause 5. The provision would deal with current litigation by the Gun Owners South Africa (GOSA) on relicensing.

The Chairperson said he would first allow the Civilian Secretariat to give input on Dr Groenewald’s submission.

Civilian Secretariat for Police Input
Mr Milton Ntwana, legal advisor, the Civilian Secretariat for Police Service, CSPS, said it was incorrect for Dr Groenewald to say nothing had happened since the firearm summit which had been held in Parliament, regarding the drafting of the firearms control bill by SAPS. The then Minister of Police, Mr Nathi Nhleko, had established a task team to review a firearms control bill that had been published in 2015 which had received substantial comment immediately after the firearms summit. There currently was a Firearms Control bill before the Minister of Police which would follow Cabinet processes afterwards. In terms of Dr Groenewald’s private bill, the CSPS position was that the Constitutional Court (ConCourt) had ruled and pronounced on sections 24& 28 of the FCA (the principal Act) to the effect that both sections passed constitutional master and that gun owners knew they either had apply for renewal of licenses for their firearms or face disposal of said firearms when licences expired without renewal.

The proposed bill would create an administrative burden on the CFR because if subclause 1 (b) (3A& B) was implemented that would mean the license would continue in perpetuity where late applicants for renewal of licenses would simply be required to pay an administrative fine. With an already burdened CFR gun license owners would not be able to pay a fine and apply for renewal late. Sending of registered mail to registered firearm license holders would have a similar effect on the CFR as there were plus 400 000 firearms whose licenses had expired and the CFR would be required to send registered mail to all those individuals to surrender their firearms.

The CSPS submitted that the bill was not desirable seeing that the executive was considering a similar bill from SAPS and the processes would be parallel on the same matter.

South African Hunters and Game Conservation Association (SAHGCA) Input
Mr Fred Camphor, CEO, SAHGCA, stated that the ruling of the ConCourt (Minister of Safety and Security v South African Hunters and Game Conservation Association (CCT177/17) [2018] ZACC 14; 2018 (2) SACR 164 (CC); 2018 (10) BCLR 1268 (CC) (7 June 2018) was to only dismiss the case and found constitutionality with sections 24& 28. The existing problem remained unsolved and from that ruling followed the collection of firearms whose licenses had expired by SAPS with no directive from SAPS leadership and management. The Minister had then applied for an amnesty for the surrendering of the firearms before GOSA applied for an interdict to stop and were granted relief from SAPS confiscating firearms whose licenses had expired. SAPS had been instructed to return firearms that had been collected on the basis of the ConCourt ruling and SAPS had complied. The amnesty request had been either withdrawn or cancelled where SAPS had applied for leave to appeal GOSAs interdict where to date no progress had been made in either the appeal or the main application.

On firearms which had lapsed licenses, depending on who was interviewed within SAPS the number varied between 420 000 and 470 000. Those numbers were probably more up to date as it included about 30 000 firearms in estates where the original license owners had passed on and the estates had not been finalised. About 80% of those numbers were handguns and not hunting rifles or shotguns. The figures were not reliable because the SAPS 530 forms were not captured in time. The SAPS 530 was the form that transferred the firearm form the manufacturer or the importer to a dealer. Similarly the SAPS 534 forms were also not captured in time and those forms were to transfer gun ownership from the gun owner to a dealer when selling back a firearm. The backlogs ran from anything from 6-12 months currently. Currently an importer brought a firearm into SA through a permit, sold it to a gun dealer through the SAPS 530 and submitted it but that remained uncaptured. In the meantime the dealer sold the firearm where the individual would apply for a license which would be issued but only after this sale would the SAPS 530 be captured. What the system then did is to cancel the license in the individuals name and return the firearm to the stock of the dealer and the individual would sit with a firearm with a license in hand but the SAPS system would reflect the firearm in the dealers stock. At a SAPS roadblock the firearm would then reflect illegal possession of a firearm. Included in that 470 000 number are those sorts of firearms.

Assuming there were about 450 000 firearm owners with lapsed licenses; those owners could not be prosecuted nor could the firearms be collected currently, as the GOSA interdict remained in force together with the ConCourt decision. Moreover Mr Camphor did not imagine that SAPS had the capacity to prosecute that number of lapsed licenses.

Mr Camphor believed that in the current situation there were firearm owners that would want to surrender their firearms as the situation had become untenable; others would probably prefer to sell their firearms; the majority would probably want to relicense their guns. Currently in SA when a law was seen to be unfair and unimplementable the populace saw no benefit to it, civil disobedience followed a clear example being the e-tolling challenges in Gauteng. The existing FCA was not managed well and if the firearm licenses had started lapsing as far back as 2011 where the CFR had better managed licensing of firearms then prosecution of lapsed licenses would have started as far back as then. Since that had not occurred, he did not believe that the FCA would ever be better implemented if the CFR and SAPS had struggled to the current number of lapsed licenses to date.

The private members bill provided an opportunity to solve a current problem through re-licensing, disposing or surrendering of a firearm and to charge fines for those that had forgotten to re-apply for a license renewal. It would also obligate the CFR to better manage licensing which it had failed to do to date. However; he agreed with CSPS that legislating the bill would place a serious burden on the CFR.

Discussion
The Chairperson said there had been a private members bill by Mr Z Mbhele (DA) on the Critical Infrastructures Bill in 2015 and the CSPS had asked the Committee to wait as there was a bill forthcoming on the same matters as Mr Mbhele’s bill. The Committee had waited for three years as that bill had only been finalised by CSPS in 2018. The firearms summit had been held in 2015 and four national commissioners and three Ministers later the CSPS was telling the Committee the Firearms Control Amendment bill was around the corner again. Probably that new bill would come before the new Committee in 2020. If there was such a challenge as had been reported was Parliament now supposed to wait indefinitely for bills before the executive?

Mr L Ramatlakane (ANC) said he read the transitional provision section of Dr Groenewald’s bill to be seeking an amnesty for lapsed licenses by legislating the bill retrospectively. Was his summation correct? Was Dr Groenewald saying that the ruling of the ConCourt did not bar the Committee from passing law regarding firearm licensing?

Was the CFR currently struggling so much that CSPS were saying the Committee had to wait on the executive or did it know that the content of the bill before the executive would resolve the current backlog within the CFR? What was the SAHGCA actually proposing be done with the current challenges at CFR?

Ms M Molebatsi (ANC) asked whether whilst having applied for a renewal of an already lapsed license would the owners of lapsed licensed firearms, be allowed to use their firearms? What possibly would motivate a gun owner to apply for a renewal in time in an ideal environment? She posed the same question to the SAHGCA.

Ms M Mmola (ANC) asked Dr Groenewald why proof of application for renewal of a licence had to be accepted as sufficient in the event of an inspection request by a SAPS official to a gun owner, when section 24 of the principal act already provided the temporary conditions for gun ownership. Had the situation of lapsed licenses been documented historically?

Further, she asked Dr Groenewald to explain the rationale for the extension specified where a licence had been terminated in terms of subclause (1) (a) of his private members bill, where it would be required that the affected holder of the lapsed licence, by registered mail would be required to sign upon delivery within 60 days of receipt of that registered letter surrender; dispose or submit an application for renewal of the firearm license?

In terms of subclause 1 (b) (3B) (a) of the private members bill, what could the Minister deem an appropriate administrative fine in the instances mentioned under that clause. 
 
Mr J Maake (ANC) said after the backlog which the private members bill seemed to want to rectify; then the private members bill would have no function. If a moratorium or amnesty would be allowed by the Minister he agreed with the Bill as it was proposed.
 
Mr M Shaik-Emam (NFP) said that SA was the second worst in deaths by firearms where 21 people died from guns daily. He asked whether the bill was not simply moving the goal posts; what made Dr Groenewald believe that extension by a further 90 days would make 400 000 plus non-compliant gun licenses comply with the FCA? If people with driver’s license were not being reminded to renew why would gun owners need to be reminded? If there were challenges in the CFR extension of days did not mean that would resolve the challenges of the CFR. SAPS had to assist the CFR get its act together. Continuing to extend the time to apply for a renewal had the consequence of leaving the SAPS unaware of whether the 400 000 plus lapsed licenses were the only ones not legally supposed to have guns; how many had their guns still and how many had lost them

Mr P Mhlongo (EFF) said he would not allow himself to be disarmed through current challenges with the FCA and he agreed with the proposal by Dr Groenewald.

Mr Z Mbhele (DA) said that that it was important to be clear about the binary between issues of competence to own a firearm that is, had the owner no violent criminal history and whether the owner had the technical proficiency to handle a firearm: and simple administrative compliance and treating the two accordingly. From the reading of Dr Groenewald’s bill, nothing fundamentally new was being introduced to the firearms control regime but was amending timeframes for certain processes where a handful of provisions within the bill already had been captured in the FCA in force. In giving provision to apply for renewal after expiry of a firearm license the FCA provided that the license holder had to show good cause when the Registrar had sent notice of termination of a license; why the license could not be cancelled.     

Ms D Kohler-Barnard (DA) asked why additional opportunities to renew were being asked for because if the analogy to the driver’s license regime was used, when you missed renewing on time, a fine was charged. If Dr Groenewald proposed fines as he had why then would firearm owners need additional opportunities to renew? How would the late application fines be determined? Dr Groenewald had presented his private members bill despite the CSPS reporting to the Committee that the drafting of SAPS FCA amendment bill was being finalised. Dr Groenewald would have seen the leaked draft FCA amendment bill wherein self-defence had been removed as a reason for owning a firearm and she had it on good authority that removal had been a move by the former Minister, Mr Nathi Nhleko. She wanted to know whether Dr Groenewald was hoping that the Committee could finish his private members bill before the fifth Parliament was dissolved.

Was there a legal requirement for registered letters because her experience with corporate SA was that it sent out 100 000 plus short messages on mobiles reminding people of appointments, renewals and all sorts of things. She recalled seeing boxes up to the ceiling at the CFR during oversight where applicants or firearms had not even received acknowledgement that their applications had been received with many of the licenses probably expired by the time of the oversight by the Committee.

Was it possible for an amendment such as was being proposed by Dr Groenewald to be made into law retrospectively; with reference to those that had legal licenses before the current court judgements and appeals which were ongoing?

The CSPS was saying that it would be impossible to send out registered mail to 400 000 plus gun license owners; when that was being done by every in business in SA? The CSPS with the CFR seemed to not want to computerise the CFR filing system and get ahead of the CFR backlog. She recalled that she had told Parliament before the FCA had became law, that SAPS would not manage the administration of the FCA but it had been pushed through. She proposed that the CSPS had to redraft and remove personal opinions of former Ministers and to consider researched proven facts as provisions for the FCA amendment and she wanted to know whether Gunfree SA (GFSA) had given input on the current FCA amendment bill draft which had been leaked.

The Chairperson said that the Committee would have to determine a date for responses that would be in detail from all those that had presented to the Committee on Dr Groenewald’s bill although written inputs would be accepted as well.

Dr Groenewald replied that indeed there were other ways to deal with the current problem including an amnesty but the problem with an amnesty was that it was a once-off opportunity. After the amnesty, those who would have missed returned the situation back to the status quo. His amendment bill was to address the situation long term.

The Chairperson thanked everyone for attending the meeting.

The meeting was adjourned.