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SAFETY AND SECURITY PORTFOLIO COMMITTEE
3 September 2003
ADDRESS BY THE MINISTER ON THE FARM ATTACKS REPORT, FIREARMS CONTROL AMENDMENT BILL
Firearms Control Amendment Bill [B28-2003]
Minister of Safety and Security, Mr C Nqakula, appeared before the Committee on the invitation of Advocate P Swart of the Democratic Alliance (DA) to brief Members on the report on farm attacks. The DA and the Freedom Front raised questions on the integrity and originality of the report after referring it back to the Cabinet subcommittee. The Committee then dealt with the Firearms Control Amendment Bill but only objected to the exclusion of forms from the regulations.
The Chairperson opened the meeting by referring to Advocate P Swart's (DA) request for the Minister to appear before the Committee with regard to the report not being tabled in Parliament and referred back to the Independent Committee. He said that the matter had not been discussed in the Portfolio Committee as there had not been sufficient time. He said that Mr Groenewald (FF) had been specifically invited as he'd had a number of questions.
The Minister said that the matter had not arisen as a decision of Parliament, so he did not see how he could table a report in Parliament regarding the inquiry. Members of the Committee who had participated in the inquiry did not report back and the report was taken to a Cabinet subcommittee for discussion. Going to Cabinet meant a collective response and resources would have to be allocated to implement recommendations. How could he, as Minister, go to Cabinet and be unable to respond to questions or on how to address issues? It was decided to go back to the Committee that had conducted the inquiry so that a well-motivated proposal could be taken to Cabinet. The report would not be released to the public without an indication of what would be done regarding the raised issues. There had been interaction with farming communities' representatives, including AGRI South Africa, who had accepted the unedited report.
The Chair summarised the Minister's address by saying that the report was still within process. It had been sent back to the subcommittee as there were unanswered questions and thus could not be taken to Cabinet.
Mr P Swart (DA) said an independent investigation had been requested by the late Mr Tshwete regarding the situation in farming communities. The report had been outstanding for two years and there was much anticipation within Parliament regarding its release. The point of an independent report was so that there could be no suggestion of tainting in any way. The media had reported that the report was referred back to the Committee as the Minister and MINMEC were not satisfied with certain aspects, which had given the impression that the report had been amended. Mr Swart asked whether the independence of the investigation had been compromised and if an amended report would be forthcoming. Questions would have to be answered about aspects of the report with which the Minister had not been satisfied.
Mr R Zondo (ANC) said that he was comfortable with the procedures thus far in Cabinet. At the Commission the previous evening, AGRI SA had made a special plea that people not jump to conclusions regarding farm attacks, which further encouraged the Commission to decide on a number of issues. The sooner the matter was addressed and laid to rest at today's meeting, the better.
Mr M Booi (ANC) said the integrity and conduct of the Minister could not be questioned as it was his responsibility to handle a report properly so that when it was made public, the collective Cabinet was behind him. He asked that the Minister be supported so that when the report came to the Committee, they would address it rather than leave it for speculation.
Ms A Van Wyk (ANC) said that the issue was very emotional and problematically, now very politicised. Participating in speculation as to the contents of the report contributed to the discrediting of the report and the sincere efforts of government and the police. MPs had a responsibility to distance themselves from media speculation as they had other means to access information. The matter should be handled with due seriousness. The report should be protected from implications of alteration.
Mr P Groenewald (FF) asked what kind of signal was being sent to the public. It was reported last July, in answer to an official question, that the motives for farm attacks were known. The FF was the only Party that had made a submission to the Commission. He asked why others who had made submissions could not be given a copy of the report. The impression was created that the Government did not do enough for the protection of the people. Perhaps the Minister should attend a funeral of a killed farmer.
The Chair said that it would be premature to discuss the report. The Minister would be given a chance to respond.
The Minister referred to a meeting with editors of a newspaper group that had said they were given the report long ago but would not release it. The easiest thing would be to go to the report compiler and ask whether he/she had handed over the report. The compilers would know if it had been altered in any way. What would be the reason for changing the report? Had Parliament decided that any person making a submission had the right to a report before release? If the report was to be discussed in Parliament, normal procedure would have to follow: the Speaker of Parliament would be approached and be informed of a debate. There were development streams for white people and black people and both groups were expressing certain expectations of how their interests should be catered for. Government could not respond to people's emotions because there would be chaos and anarchy. Instead, issues were responded to on the basis of good governance and the interests of the entire nation so that national consensus could be built. People would have to forgo certain privileges to create a national understanding.
The Chair thanked the Minister and assured the Committee that the report would not be unduly delayed. MPs were advantaged in that they could get information from Parliament and not necessarily from the media. He addressed Mr Groenewald and said that anti-farmer feeling in the country should not be encouraged.
Advocate Swart thanked the Minister for briefing the Committee.
The Chair then asked Advocate Jacobs to lead the Committee through the Firearms Control Amendment Bill.
Advocate Jacobs said that the purpose of the Bill was to ensure legal certainty and to correct errors. The first amendment was to exclude 250 pages of draft forms from the Regulations which would make the latter very bulky. He referred to Clause 1 section 1(a-d). Clause 1(e) dealt the forms which "need not form part of any regulations made under the Act, but must be available at the office of the Registrar and at such other places as the Registrar may determine".
The Chair asked whether the forms could then be changed by parties once outside Parliament and about implications if the forms were outside the Act.
Advocate Jacobs explained that the forms referred to were firearm licence forms, exemption forms, accreditation forms and other related forms. If excluded from the Regulations, they need not be published in the Gazette, should be available at the offices of the Registrar, and could be amended without being published in the regulations.
Mr Booi said that there was no reason why the forms should be left out. There should be confidence in the Register as previous problems could surface again. Forms should be kept with the regulations so that Parliament could have access to the information.
Mr Q Kgauwe (ANC) said that people without adequate competence would be prevented from possessing firearms. By excluding the forms, it would mean that someone else could write their own legislation to make it possible for any person to possess a firearm. He appealed that this not be accepted at this stage.
Ms Van Wyk questioned Clause 1(e): "A form which may or must be prescribed", saying that the intention was that the form "must" be prescribed. It was obvious that the forms should be available at the office of the Registrar. The intention of the Act should be weighed against implications of the additional 250 pages.
Mr Groenewald asked whether police stations would have a different form. If so, uniformity would be compromised.
Mr Swart said that the legitimacy of the form could always be tested but that there were allegations of blanket refusals. However, licenses not granted were appealed, successfully in most cases. The impression was then that the Registrar was unreasonably refusing licenses and confidence in the Registrar was undermined.
The Chair said that the Central Firearms Registrar (CFR) in Pretoria did not have a good image in Parliament. In Empangeni people were, after investigation, deemed unfit to possess forearms but the CFR still granted them licenses. With the forms being removed from the Act, the situation would be worsened. CFR staff would have to be called before the Committee to explain their business. A way should be devised so that the Committee was comfortable that the forms would not be changed. The intention of the Act was that it should not be easy to attain a firearm.
Advocate Jacobs said that "prescribed" was defined to mean "prescribed by the Minister by regulation". The amendment proposed that the Minister should prescribe, but that it should not be part of the regulations. In some instances of the Act, it said "may" or "must" prescribe.
The Chair said that regulations must come through Parliament. He asked whether the onus to prescribe should then only be on the Minister and not on Parliament.
Mr Booi said that Parliament must have a say in this particular aspect and the intention was that the Committee should have control over regulations to prevent firearms proliferation.
The Chair said that the control of the forms should be out of the Committee's hands. He asked whether it was possible for the forms to be taken out of the regulations and still be approved by Parliament. Recent study tours to KwaZulu-Natal had revealed that the CFR handed licenses to drunk people and others who had shown irresponsibility. It was clear that the staff at this institution were not up to the necessary standard.
Advocate Jacobs continued to lead the Committee through the Bill.
Concerning Clause 9, section 59 on licensed gunsmiths' apprentices, Ms Van Wyk asked whether there were provisions for the registration of apprentices.
Advocate Jacobs answered that this issue was dealt with in the regulations.
With regard to the insertion of the word "imprisonment" in Clause10, section 80, subsection (1) dealing with sentencing of those committing an offence in terms of the Act, Ms van Wyk asked what would happen in the case of a suspended sentence for five years imprisonment.
Mr Kgauwe said that the word "imprisonment" had been deliberately avoided in favour of the word "conviction" as the two concepts were different.
Mr Swart said that Clause 10 dealt with an import, export or in-transit permit to be suspended. However, if the interpretation included a suspended sentence, Advocate Jacobs should clarify.
Advocate Jacobs answered that if "imprisonment" was left out, the type of sentence was not clear e.g. community service. The intention of the Act was clear and "imprisonment" was omitted.
The Chair agreed that the word "imprisonment" should be inserted as it did not necessarily mean that the person would serve the sentence.
Mr Swart agreed and added that the 2000 Act was passed without the word "imprisonment" and the intention here was to insert it.
Advocate Jacobs continued to lead the Committee through the Bill.
With regard to the amendment to Clause 18 section 140.4 on measures to be taken regarding firearm-free zones, the Chair asked where a firearm would be left upon entering a firearm-free zone.
Mr Swart said that the same question had been raised three years ago. It had been suggested then that facilities would have to be made available for firearms to be locked up. A number of other problems arose, including who would take responsibility for the firearms left there.
Mr Kgauwe said the Committee had been decided that all schools be firearm-free zones. He sought clarification as to whether the Minister could use his discretion on which schools would be firearm-free. He wanted to know whether the amendment would cater for all or a only few exclusive schools. The state had the responsibility of fencing in schools.
Mr Groenewald said that the Minister, in consultation with the Commissioner, decided where the signposts would be erected to declare a zone firearm-free. The amendment posed a question as to how to determine if a zone was firearm-free, and was therefore acceptable.
Mr Swart said that there was no provision in the Act for all schools to be designated firearm-free zones. This was only possible after all the relevant principles were in place. Regarding the insertion in Clause 20 after item 4, Mr Swart explained that gunsmiths were left out of the one year referred to in the amendment.
Advocate Jacobs explained that, in respect of licensed firearm holders, their licenses were valid for five years. The category of gunsmiths was left out of the initial draft. He continued with Clauses 21 to 23, suggesting that the clause on putting the Bill into operation be examined. There was a possibility of the Bill being adopted before the Act was put into operation if the above-mentioned clause was considered. It could be done directly after being approved by the President and not by proclamation so that the Bill will automatically amend and the amended Act would be enforced. Otherwise, two different proclamations would have to be published for the putting into operation.
The Chair suggested that the target date of 30 October 2003 not be changed for the implementation of the Act. The unresolved issue regarded forms and the Bill would be finished at the next meeting.
Mr Swart asked whether Members would be expected to vote on the Bill then. If this should happen the following week, the Bill would have to be taken to the various party caucuses.
The Chair said that the Bill would be finalised if there were no comments. Any person wishing to make comments would be invited to do so at the next meeting.
Mr E Ferreira (IFP) said it was clear that some Members were eager to have the CFR in Pretoria before then. It was a concern that staff could make fools of them because Bills were sometimes passed when everything was not practically in place. The concept of firearm-free zones was a long way from realisation as there were many unresolved practicalities. There would be many amendments and they not leave key issues for another six or twelve months. This Bill had been passed three years ago and everything was still not in place.
Mr Booi said that the Department had been taken on board and raised their concerns. Parties had agreed that certain things would not be completed and therefore the issue regarding the firearm-free zones had been left with the Minister. The Committee would not move without involving the Department, which in turn would indicate available capacity. The Committee had been working with Advocate Jacobs for years and knew at this stage that there would be areas for amendment.
The Chair said that Mr Booi's response did not address what was raised by Mr Ferreira. Circumstances changed and therefore necessitated amendments.
Ms Van Wyk agreed and said that the principle of the Bill would not be changed because of the Department's failure to implement. The Department had been on board from the start. Amendments were necessary because of logical developments but the principle of the Bill was not being amended.
Mr Swart said that it was important to consider what would be done at a later stage. He had advised his party to oppose the Bill because it could not be implemented. The Registrar could only work with what he was given. The Commissioner of Police should be present when the CFR was called before the Committee. Regulations were not in place three years later to implement the Act. Amendments needed to be finalised and a quick decision taken on the issue of forms.
Mr Ferreira said that the Committee was not giving the Department the full product as much would be added to finalise the issue of firearm-free zones. The Department was expected to do a full job without the full product.
The Chair urged that the matter be closed to avoid a debate. The Department was given everything it needed to fulfill its duties. Members were not police or lawyers, but politicians taking principled decisions. The distribution of firearms should be controlled and it was the Department's responsibility to see that this was done. The issues of the forms would be addressed. Amendment of the forms would be rejected if Advocate Jacobs could not convince the Committee to have them removed.
The meeting was adjourned.
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