Mr P Groenewald (FF+), as initiator of the Bill, read out the objects of the Bill and thereafter answered questions that Members had previously posed on the Bill. Some of the questions were around the retrospective application of the Bill and whether there was a lacuna in the law. Did the Bill aim to deal with the backlogs in firearm licence renewals, and would there still be a need for the Bill if the backlog had been dealt with? Would the same outcome not be achieved with an amnesty? Members had also pointed out that sections 24 and 28 of the Firearms Control Act did deal with the renewal of firearms licences.
For the most part, Members agreed with the premise of the Bill. They seemed to be in agreement that there was a stalemate on firearms licence renewals. Firearms owners did not know where they stood on the matter. Could a moratorium be the solution? What about an amnesty? Another possible solution was the planned comprehensive amendment bill for the Act. Members said that the problem was that the South African Police Service (SAPS) management did not apply the provisions of the Act consistently. They pointed out that section 21 of the Act clearly provided that the Registrar could issue a temporary authorisation. In addition section 28(2) stated that the Registrar “may” cancel a licence if a person had not applied in time to renew. There was discretion by the use of ’may”. The owner of the firearm must be given an opportunity to make representations as to why he/she had not applied in time. There were thus mechanisms in the Act. Members felt that the SAPS and the Central Firearms Registry (CFR) were not using mechanisms that were there.
Mr Groenewald responded that the question was whether the mechanisms in the Act and an amnesty would solve the problem. It could in a sense. The courts had placed a moratorium on renewals. There was a great deal of confusion. There were some Designated Firearms Officers (DFOs) who said one could do renewals while others said one could not. The Bill stated that if the renewal had not been done within the specified period then one could still apply for the licence to be renewed. An amnesty was a short term fix whereas the Bill was suggesting a long term solution.
The concern was that there was little time left in the 5th Parliament. The Parliamentary Legal Adviser said that both bills could be revived by the 6th Parliament, but Members were concerned that the new Committee would not have the background knowledge to deal with “the mess.”
The Chairperson placed the Bill before Members for a vote. Four votes were for and four votes were against the Bill. The Chairperson cast the deciding vote against the Bill being accepted. After all was said and done, Members conceded that there was still no clarity and it was something that had to be addressed.
Firearms Control Amendment Bill [B40-2018]
The Chairperson asked Mr P Groenewald (FF+) to speak to the Bill, as well as to answer questions that Members had previously posed to him on the Bill.
Mr Groenewald read out the objects of the Bill. Thereafter he proceeded to answer the questions that Members had asked:
Mr L Ramatlakane (ANC) had asked about the retrospective application of the Bill and how it was to be dealt with. He had also asked whether there was a lacuna in the law.
Mr Groenewald responded that that the Firearms Act did not rectify the situation where a person failed to renew his firearms licence 90 days before expiry. Clause 5 of the Bill had measures to address the lacuna. Consequently, the person would not be charged for being in charge of an illegal weapon.
Ms M Molebatsi (ANC) had asked what could be done to ensure that gun owners applied on time to renew their firearms licences. She had also asked whether the firearms owner could still use his firearm during the period of renewal.
Mr Groenewald said that it was more a question of implementation. Clause 2 spoke about a licence holder being informed of the renewal. A balance was needed. Yes, there was a responsibility on the firearms owner to check if his licence needed to be renewed. However, the Central Firearms Registry (CFR) should also have a responsibility to see to it that owners of firearms complied with the law. He The firearm owner could use the firearm as it was still in his/her possession. The firearms owner could apply for renewal, and within two to three months would get the new licence. The firearm was after all still in the possession of its owner.
Ms M Mmola (ANC) had asked why amendments to sections 106 and 107 of the Act were still necessary.
Mr Groenewald said that Clauses 3 and 4 provided for amendments to sections 106 and 107 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.
Mr J Maake (ANC) had observed that the Bill seemed to be dealing with the backlog of renewals. He had asked whether there would still be a need for the Bill if the backlog had been dealt with. Would the same outcome not be achieved with an amnesty?
Mr Groenewald responded that there was still a lacuna in the Act. There was no remedy when the 90 days had passed. The holder of the expired licence took the chance of being charged. If there was an amnesty period granted, things would just go back to square one. The amnesty was only for a limited period. The main thing was to deal with the lacuna in the Act.
Mr A Shaik Emam (NFP) had mostly commented on the Bill, and had given his personal views. He had asked why people would comply now if they had not originally complied by renewing their licences.
Mr Groenewald pointed out that the constitutional court had not addressed the lacuna. He asked what the ordinary person was to do. There was no remedy in the Act. There seemed to be a stalemate on how things were in practice and in terms of the law itself. The South African Police Service (SAPS) could not handle all the renewal applications. The Minister of Police had given a figure of 380 000 licensed firearms owners. The South African Hunters Association had said the figure was more like 470 000. He hypothetically asked what if 400 000 firearms owners had not complied with the Act by not applying for renewals within the 90-day period. It was not practical to expect all of them to hand in their weapons. There was a need to deal with the stalemate.
Mr P Mhlongo (EFF) had pointed out that sections 24 and 28 of the Act dealt with the renewal of firearms licences.
Ms D Kohler Barnard (DA) had said that if it was an administrative action, why had the sections covered renewals. It seemed contradictory to her. She had also asked whether there was not a legal requirement for registered letters. She had in addition asked whether the Bill could be applied retrospectively.
Mr Groenewald responded that there was a body of law that dealt with registered letters. Clause 2 amended section 28 of the Act, which required the Registrar 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 may be made. He added that it was an administrative issue, but could be dealt with. He explained that there was no constitutional right that was adversely affected by the retrospectivity of the Bill. The case of Pienaar Brothers versus the South African Revenue Service (SARS) dealt with retrospectivity.
Mr Groenewald pointed out that the Chairperson had mainly commented on the Bill.
Mr Z Mbhele (DA) had asked for clarity on the competency of a person to own a firearm and around the process of renewal.
Mr Groenwald agreed that persons had to be competent to own firearms. There was a debate around it. The Act did set out rules.
The Chairperson thanked Mr Groenewald for his input/responses and opened the floor for Members to ask questions.
Ms Kohler Barnard said that to her knowledge, the issue at hand was back in court. The original ruling by the judge was that people should be given time. The SAPS felt that all the firearms whose owners had not renewed licences, were illegal. Now the matter was back in court. There was a definite need to amend the legislation. The Portfolio Committee on Police in the next Parliament would have to deal with the issue. The risk of 470 000 people handing in firearms would be catastrophic. The ANC had a proposal of a moratorium. Perhaps persons could be given a certain number of months to hand in their firearms or to renew their licences. She asked what Mr Groenewald’s thoughts on the matter were. The SAPS could not handle the handing in of firearms. Could the moratorium be a short term solution to resolve the issue?
Mr Maake agreed with Ms Kohler Barnard. It was an ad hoc type of situation. He felt that a amnesty/moratorium could resolve the issue. Even if there were in excess of 400 000 firearms owners, perhaps a method could be found to deal with the issue. Personally he agreed with what was contained in the Bill. The problem was that it was ad hoc. He suggested that the planned comprehensive amendment bill for the Act could perhaps deal with the issue. He felt that a moratorium was a good option to sort out the issues.
The Chairperson asked the Civil Secretariat of Police (CSP) what the current status was.
Mr Milton Ntwana, Director: CSP, responded that there was a draft bill that was complete. The Minister of Police had been briefed on the bill. The next step was for the bill to make its way to the Justice, Crime Prevention & Security (JCPS) cluster, where it would reach the JCPS Committee. Afterwards, the bill would go to the Cabinet. Thereafter it would be published for comment. On timeframes, the bill would go to the JCPS in January/February 2019. The bill would most probably go to Cabinet in March 2019. Thereafter it would be published for public comment.
Mr Mbhele said he agreed with the premise of the Bill. The problem was that the SAPS management did not consistently apply the provisions of the Act. Section 21 of the Act clearly provided for the Registrar to issue a temporary authorisation, which meant that things could be dealt with. In the meantime, the CFR could deal with the backlogs. He pointed out that in Section 28(2), it stated that the Registrar “may” cancel a licence if a person had not applied in time to renew. There was discretion by the use of “may.” The owner of a firearm must be given an opportunity to make representations as to why he/she had not applied in time. There were thus mechanisms in the Act. He felt that the SAPS and the CFR were not using the mechanisms that were there.
Mr Groenewald said that the question was whether the mechanisms in the Act and an amnesty would solve the problem. It could, in a certain sense. He said that the courts had placed a moratorium on renewals. The SAPS could not arrest firearms owners. It was best to await the outcome of the court case. There was a great deal of confusion. There were some Designated Firearms Officers (DFOs) who said one could do renewals, while others said one could not.
He reiterated that there was total confusion at present. The SAPS needed to go to court and get finality. Immediately after the SA Hunters Association case, the SAPS had placed a moratorium on renewals. Even the SAPS had been caught off guard by the decision of the Constitutional Court. He noted that Mr Maake had said that there could be a moratorium until 2019 when the new bill was to be introduced.
On the matter of an amnesty, he explained that the Minister of Police had withdrawn the amnesty. The problem was about how the SAPS were going to deal with the handing in of firearms. It was a once–off. He said that things were not clear. Were you given three months to surrender your firearm and not be arrested, or did it mean that you could apply for renewal of your firearms licence and keep the firearm in your possession? The Bill that he was introducing stated that if the renewal had not been done within the specified period, then one could still apply for the licence to be renewed. An amnesty was a short term fix, whereas the Bill was suggesting a long term solution.
The Chairperson said that the core issue was whether there was a need for review of the Act. Should the Act be amended, or should it be done in a piecemeal fashion? On the issue of amnesty, Gun Owners SA (GOSA) had secured a court interdict. He noted that if there was no court case, the issues could have been dealt with.
Ms Kohler Barnard asked whether the Committee had the right or ability to change what the norm for an amnesty was. In regard to an amnesty, did the Committee have the right to say the firearms owners had to hand in firearms or apply for renewal of licences?
The Chairperson confirmed that the Committee did have the right.
Mr Ntwana said that the Chairperson was correct. It depended on the wording of the amnesty given. It could be provided for in the wording.
Adv Charmaine van der Merwe, Parliamentary Legal Adviser, agreed with Mr Ntwana.
Mr Groenewald said that he was in favour of reviewing the current Act. The problem was that the Committee had since 2016 been waiting for the review of the Act. There was this mess, and nothing was being done about it. Nothing had come of efforts. There had even been a Firearms Summit in 2015. A comprehensive review of the Act was needed. He commented that he was also in favour of the Bill. He explained that after the court interdict and after the Constitutional Court case of the SA Hunters Association, he had introduced the Bill in an effort to deal with the vacuum that was there. The Constitutional Court had not stated that the legislative process had to provide for a period for the amendment bill to be introduced. Sections 24 and 28 of the Act were constitutional. The task of the Constitutional Court was not to prescribe to the legislature on how to write legislation. Only when legislation was unconstitutional could it tell the legislature to deal with it.
The reality was that there was a lacuna. The Committee had an opportunity to solve the problem. If the Committee was to wait for a comprehensive review of the Act, it would take a long time. Members were well aware of what lay ahead. After the 2019 elections there would be a new Committee. The new Members would not have the background knowledge on what the situation was. They would not have a sense of the problems around firearms licences. He pointed out that in the Bill he had mainly concentrated on sections 24 and 28. The focus was only on the lacuna.
On the issue of the amnesty, he agreed that if the wording was right, it could work. The Minister of Police had, however, withdrawn the amnesty because of the interdict. At present, firearms owners did not know what to do. What was the current state of affairs? Some DFOs did renewals, while others did not. The Bill was providing a solution to the problem. He was not sure what the moratorium process entailed. There was a difference between an amnesty and a moratorium.
Mr Maake asked how long it would take for the Bill to become an act. Even if the Bill was passed, it did not mean that it would come into effect before the elections. There was also the bill to comprehensively amend the Act to consider. Bills sometimes took years to enact. What about public participation? There needed to be public participation on the issues covered in the Bill.
Ms Kohler Barnard felt that the Bill being proposed could be dealt with quickly, as it was a Member’s Bill which could become a Committee Bill. Once it was a Committee Bill, it could go through processes more quickly. There was a mess, and it had happened on the Committee’s watch. She felt that the Bill needed to be pushed through -- and it could be pushed through. It was possible. The problem could not be ignored, as it would not go away. The Committee had vast experience of the issues. The new Members sitting on the Committee would not have the necessary know-how.
Mr Mbhele said that he supported the Bill and the merits of its premise. He pointed out that there were two instances where a Bill had been dealt with quickly. One was the Protection of Critical Infrastructure Bill, and the other dealt with the Independent Police Investigative Directorate (IPID). It had been done before. He wished to make some key points in the absence of the Committee not voting in favour of the Bill going through. He asked that the Committee recommend to the SAPS to make stronger and wiser use of the current framework provided for in the Act in sections 21, 28(2) and 28(3). Issues could be dealt with within the current framework. First prize would have been to get the Bill through, but options were there within sections 21, 28(2) and 28(3) to deal with the problems.
Mr Groenewald said that the Committee needed to make an informed decision. There was firstly the Bill before the Committee. If the Bill was accepted by the Committee, then it became a Committee Bill. He felt that the Bill could be processed before the 2019 elections. Secondly, there was the comprehensive amendment bill to amend the Act, but the bill was not even in Cabinet yet. There was a long process ahead on the bill. He felt that nothing would happen on it until the end of 2019. If the Bill that he proposed went through, it could be an act in no time and it could address the problem at hand.
He asked Adv Van der Merwe to speak to the process on the Bill if the Committee accepted the Bill, as well as to give clarity on the process around the comprehensive amendment bill to the Act.
Adv Van der Merwe said that Members’ bills did have more speed. On all Executive bills, there was a need to get input on the socio-economic impact. This was the biggest difference to a private Member’s bill. The process on either bills was the same once they were in Parliament. There was, however, little time left in the 5th parliament. If the Bill before the Committee was adopted, it had to be published for public comment. It could be out for comment for two weeks. Given that it was near the festive season, the process could run into January 2019. The Committee would come back to Parliament only in February 2019. She agreed that like the IPID Bill, it could be processed fast. The Bill also needed to go to the National Council of Provinces (NCOP). If the Bill was not completely processed by the end of the 5th Parliament, then the 6th Parliament could revive the Bill.
On the Executive bill to comprehensively amend the Act, she had no idea when it would be introduced to Parliament. She noted that Members, through oversight, could enquire about the bill. Once the bill was in Parliament the same principles applied. This bill could also be revived. Placing the provisions of the bill into the Executive bill could also be done. The only problem was that the comprehensive amendment bill to the Act was not yet in Parliament.
Mr Groenewald appealed to Members to consider the benefits of the Bill objectively. Members had all the knowledge to do the right thing. He asked that Members support the motion of desirability on the Bill.
Mr Ntwana responded that the Bill being proposed allowed for a person to apply for renewal even though deadlines were missed. The Bill made a mockery of the timeframes that were there. It would also increase the burden on the Civilian Secretariat for Police. The Bill also did not deal with the issue of old licences. The Bill, in addition, went against the Constitutional Court judgment.
The Chairperson, in terms of Rule 286 of the National Assembly, read out the motion of desirability to the Committee and placed the Bill before Members for a vote. Four votes were for and four votes were against the Bill. The Chairperson cast the deciding vote against the Bill being accepted.
Even though the Bill was rejected, he said that the issues brought up in the Bill had to be dealt with. A comprehensive review of the Firearm Control Act was needed. There were other issues which needed to be dealt with as well. There was a need for proper consultation and participation to also take place. He said that on what Mr Groenewald had proposed could perhaps be provided for in an amnesty.
Mr Mbhele asked that his recommendation to the SAPS be taken into consideration.
The Chairperson responded that the matter could be discussed the following day when the Committee would meet again
Mr Maake said that there was no clarity on what was happening. Were things being left as they were? He asked what were gun owners supposed to do. It was as if no progress had been made.
The Chairperson said that the Committee’s Report would recommend that the SAPS management had to deal with issues like the interdict and the amnesty.
Ms Kohler Barnard responded that at a previous meeting, the SAPS management had conceded that they did not know what to do. The SAPS would not clarify things. She suggested that the Committee put out a joint media release on what people could do.
The Chairperson said that the National Commissioner of Police had clarified the process. He thanked Mr Groenewald for his efforts.
Mr Groenewald thanked the Committee for giving him the opportunity to introduce the Bill. He commented, with tongue in cheek, that sometimes democracy was not a good thing given that the Bill had been voted out. He was concerned that the problem of a lacuna was still there. There was no clarity out there. There was a huge responsibility on the Committee to provide that clarity.
The meeting was adjourned.
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