Firearms Control Bill: hearings

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Police

19 June 2000
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Meeting Summary

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Meeting report

 

SAFETY AND SECURITY PORTFOLIO COMMITTEE
20 June 2000
FIREARMS CONTROL BILL: PUBLIC HEARINGS

Relevant Submissions:
Mr R Wesson
South African National Rifle Association
Soul City
South African Shooting Sports Federation
Pretoria Arms and Ammunition Association
Mr Abie Loubser

SUMMARY
In the morning session, two of the presentations opposed the Bill and two were in favour. Suggestions were made on how to improve the proposed legislation.

The afternoon session heard submissions indicating their opposition to certain provisions of the new Firearms Control Bill. It was felt that the limit of two guns per person as well as the limit of 200 rounds of ammunition per calibre would present serious problems for the use of firearms on farms, which was sometimes essential. Other criticisms were aimed at the provisions for the re-registration of firearms as well as the regulations surrounding the competency requirements for getting a firearms licence.

MINUTES
Mr Richard Wesson
Mr Wesson identified himself as an independent who is opposed to the Firearms Control Bill on the basis of unconstitutionality. He highlighted areas in which the Bill is problematic as follows:

· Research on which the Bill was drawn up was not seen as accurate by the presenter, who conducted his own research into the current situation of gun-related violence in South Africa.
· He stated that the worldwide trend (confirmed in this country) was that the murder rate drops by 4% for every 180 000 new licenses issued, while violent crimes rise with the restriction of legalised ownership.
· Firearms are the most efficient means of deterring violent illegal attack, and stop both unreported and reported crimes, leading the presenter to believe that a privately licensed firearm in the hands of a potential victim has the greatest overall effect of deterring violent crime.
· If the current legislation with regard firearms control is not enforced, why should the mere fact that legislation is being changed have an effect on the enforcement of the same offences?
· The eligibility to apply for a firearm under the new Bill asks the applicant to demonstrate the need to own the firearm for self-defense. It is the opinion of the presenter that the only foolproof test for the demonstration of this need is to be murdered or seriously injured.
· Responsible gun owners who own more than four firearms will be forced to give up their excess guns.
· The one gun rule results in the situation that a person may need three identical guns for three different uses as the same gun cannot be licensed for more than one purpose.
· There is doubt cast on the ability of the South African Police Service to implement the legislation as a result of their current inability to control the situation.
· The Bill is unconstitutional as a result of the clause allowing for the presumption of guilt to remain.
· The Bill is unconstitutional as a result of its provision allowing the Minister to change aspects of the regulations without referring the changes to Parliament.
· The Bill makes provision for the department to have the right to make de facto members of the police force of any employee of the government. As prisoners are paid by the government, this allowed for prisoners to be made de facto members of the SAPS.

Mr Wesson then drew the Committee’s attention to his proposed amendments to the Bill, but declined to run through these as a result of time constraints.

Discussion
Mr Duma (ANC) asked Mr Wesson to indicate the exact clause in the Bill that gave the department the right to use prisoners as de facto members of the police force, as this was a very worrying possibility.

Mr Wesson was not able to indicate the exact clause number, but Adv Swart (DP) indicated this as being Section 147. Mr Wesson continued that as the prisoner was paid by the State for work done while in prison, they qualify as State employees, and that they can then be used as per the provision. He continued that the wording allows for abuse of the situation to take place, and remarked that legislation needs to be worded carefully and clearly.

General Viljoen ( FF) remarked that the current situation is being exacerbated by the fact that there has been a sudden explosion of firearm licenses that are being requested. If the current legislation is not able to ensure that owners are acting responsibly, then is it not worse to simply let the problem continue? He asked the presenter whether he felt that the current legislation was adequate in this situation?

Mr Wesson stated that he was not pleading for a situation of unrestricted firearms, but rather a policy that is based on safety. Not everyone should be given a firearm license if they apply for one – only those who feel that they have the need to own a firearm, have no criminal record, have proper training and have the proper facilities for storage.

General Viljoen (FF) asked whether he was therefore saying that more should be done in checking applications, and asked how this would affect the already overloaded system.

Mr Wesson replied that to his knowledge the situation had been stable for the past four or five years, and that better co-ordination should help the processing of applications.

Mr Kgauwe (ANC) asked how it was possible to establish if a person was unfit to possess a firearm.

Mr Wesson replied that there was no accurate psychological testing, making this very difficult. Those issuing licences should be able to tell when dealing with an applicant whether they are responsible or not.

A member added that the Bill intended to come up with guidelines to do this, but noted that the presenter was not prepared to allow the Bill nor proposed an alternative.

Dr Geldenhuys (NNP) raised an issue relating to Section 147, stating that the crux of this provision was not so much the possibility of prisoners being asked to do sophisticated police work. He also questioned whether any statistics are available relating to the number of lost and stolen guns being used to commit crimes.

Mr Wesson replied that no one knows how many firearms have been lost or stolen, and perhaps the only way that an accurate reflection of this figure can be obtained is to hold an amnesty for illegal firearms, lost firearms or stolen firearms to be handed in.

The Chair asked Mr Wesson to elaborate on the research that was undertaken to back up his submission.

Mr Wesson replied that he had based his submission on the research of Professors Clack & Lot (who researched in the USA), as well as statistics from the CIMC for the period 1994 - 1998. He also related to the experience of Great Britain and Australia, where it has been shown that the crime rate has increased in the wake of the reduction of allowed firearms, in some cases as much as 40%.

An ANC member asked whether the photographs handed out by Mr Wesson were supposed to indicate that if these victims had possessed firearms, then they would have been able to protect themselves.

Mr Wesson replied that he had included the photographs to show that the problem is the culture of violence and not the ownership of firearms, as these violent and horrific crimes had been commissioned without firearms. As far as his researched showed, the sharpened implement remained the most prevalent murder weapon.

An ANC member asked whether there were any figures available relating to the number of guns owned in South Africa, as well as the number of black and white gun owners.

Mr Wesson replied that these figures are not available, as the number of illegal firearms in circulation is not known, although he has been led to believe that the figure is in the region of 2.5 million firearms. Once again figures are not available regarding the distribution of white and black firearm owners, but he would guess that there are about 1 million black firearm owners with the rest being owned by white people. His observation of attendance at training courses shows that black/ coloured (poorer) people are applying for the majority of new firearm licenses.

Mr Zondo (ANC) asked what research was undertaken outside of Southern Africa, particularly whether any research was done among the SADC countries or mostly in Europe.

Mr Wesson replied that the SADC countries were studied, and that he would forward the committee a report of the findings in writing. The starting point for the research was the MacKenzie Report, and research showed that in Botswana and Zambia, where it is difficult to get a firearm licence, the murder rate was 14 per 100 000. In Namibia where it is very easy to get a license, although each person is limited to four firearms, the murder rate is 4 per 100 000. In Zimbabwe, where the most liberal firearms controls were in place, the rate is also 4 per 100 000.

South African National Rifle Association (SANRA)
Mr Johan Rossouw introduced himself as the spokesperson for the Association, and identified himself as Captain of the SA Bisley Union. He stated that his organisation was in favour of the proposed Bill.

He indicated that his organisation had the following proposals for the committee:

Section 96 (2) a
As the existing law is applied on a per license basis, SANRA would like to propose that this be continued in the new Bill. This is because there are substantial differences in the performance and safety of a firearm when primers are not kept consistent. The number of primers would need to be increased in order for consistency to be maintained. SANRA would recommend the words " per license" to be included after "primers and propellants".

Section 94 (1)
Section 94 (2) & (3) allows for dedicated sportsmen to have more cartridges than usual, but section 94 (1), while catering amply for hunters, does not allow for target shooters. The amount of 1000 rounds can easily be used for a single competition. SANRA asks that the limitation in Section 94 (1) & (2) do not apply in Section 94 (3)

Definition of firearm
SANRA would like to draw attention to the definition of a firearm as a barrel or a receiver by the Bill. Target shooters change barrel mostly annually, and this would result in one firearm becoming two when the barrel is removed. In line with international standards it is recommended that the firearm be defined as the receiver, as without a receiver a barrel is merely a tube. The number of the firearm would then be stamped on the receiver, or even on both barrel and receiver.

Chapter 3
SANRA would recommend the insertion of the words "compressed air and hydraulic" between "explosive" and "hydraulic" in Section 5 (1) a and b.

Section 17 (1)
This may apply to an occasional hunter, but not to a dedicated hunter.

Section 18 (1)
This may apply to an occasional hunter, but not to a dedicated hunter.

Section 20
What about a firearm which is in a private collection, unlicensed, but which is almost never used - for example a collector’s firearm which is only taken out once a year for ‘sentimental’ value.

Section 155 (1)
SANRA recommends that firearms licensed as ‘de-activated’ under the present legislation be able to be certified as de-activated under the new Bill by a gunsmith.

Section 106
SANRA would recommend that this be subject to the qualifications contained in S 11 (3) g.

In closing, Mr Rossouw complimented the drafters and legislators for a piece of legislation, which he characterised as furthering the aims of responsible citizens and responsible firearm owners.

Discussion
Adv Swart (DP) asked the presenter whether, in his opinion, semi-automatic shotguns should be allowed under the new Bill.

Mr Rossouw replied that a gun is only as dangerous as its handler. The main difference with these types of weapons is that they have a greater rate of fire, and the eventual destruction in the hands of the wrong person could consequently be much greater. Whereas with another type of firearm the incident may not have been avoided, but the damage caused would have been less. His personal view was that these kinds of weapons are not ethical in hunting, but this is not necessarily the view of the organisation that he is representing. The limitations, as set out in the Bill on this kind of firearm, are technically academic as they can be altered reasonably easily.

Mr Geldenhuys (NNP) stated that the SA Target Rifle Association and the Sports Shooting Association have adopted a different approach, and questioned whether there was any consultation with the two bodies.

General Viljoen (FF) echoed this by asking whether the SA Pistol Association has similar views.

Mr Rossouw replied that the Sports Shooting Association was not really the governing body in the sport, although there had been a perception that this was so. He had personally attended most of the meetings of all organisations, as well as of the National Firearms Forum, and their organisation had then disassociated themselves as they felt that their approaches differed. SANRA felt that they could make a more positive contribution on their own, as gun control is a necessity for responsible and safe daily life. He stated that he is in daily correspondence with the other bodies.

Soul City
Ms Clacherty stated that her organisation had undertaken research among children to examine the nature of the impact of violence and, particularly firearms, in their lives. These activities included drawings, descriptions of their environments, as well as giving the children disposable cameras to take home and photograph things which they thought were unsafe. Soul City advocated responsible gun use, and particularly welcomed the idea of gun-free zones. She presented the results of this research as attached.

Discussion
An ANC member asked whether the guns photographed by children were legal guns in legal hands, or whether they were illegal guns in illegal hands.

Ms Clacherty replied that the children were not asked to differentiate with regards the pictures, but that they are able to distinguish guns owned rightfully and those owned illegally.

A member raised the question relating to gun-free zones, stating that law-abiding citizens would adhere to them, while people with other intentions might see them as soft targets. Where will this end? Searches at churches and schools?

Ms Clacherty responded that schools are not safe areas, and that children should have the right to attend school without being afraid of guns and violence.

Mr Maziya (ANC) noted that members should remember that the purpose of these submissions is to ensure that all voices are heard. Mr Zondo (ANC) echoed this.

Mr Duma (ANC) asked how Soul City justified raising the age of eligibility to 25 years, when in the eyes of the law people between 18 and 25 are adults. How can we justify infringing their rights as such?

Ms Clacherty stated that the children’s exposure to gun-related violence was the concern. In their work with boys, who are on the verge of becoming involved in criminal activity, it has been found that each of these boys had a mentor of between 18 and 25 who owns a firearm.

SA Sports Shooting Association
Mr Jake van der Wilden introduced himself as a member of the executive committee of the SA Sports Shooting Association, as well as the president of the SA Pistol Association. He stated that his organistion is critical of the Bill and these criticisms are based on the following:
· There is currently a culture of ignoring the law, and simply introducing new legislation will not fix this. Current legislation is adequate but is not implemented properly.
· Congruence is needed between reality and statements of policy. It is not accurate to assume that the SAPS and SANDF are able to reduce the acts of criminals, and that a gun-free environment will not reduce crime, but will produce victims.
· There is a perception that this Bill has a hidden agenda, and this will encourage people to ignore it as responsible citizens are being targeted and their capacity to protect themselves being reduced.
· The law is too complex - how will the SAPS member arriving at a house be able to implement it practically. Specialists will be required, resulting in a huge police force being required

He continued that it was the organisation’s recommendation that they be allowed to help make the legislation workable, as well as ensuring that firearms are kept controlled and regulated.

Discussion
Mr Bloem questioned the statement that the feeling was that the Bill had a hidden agenda, asking whose agenda this was meant to be - government, the department or individuals.

Mr van der Wilden replied that organisations such as his own were never privy to policy and had never been given the stated objectives of the bill, resulting in the perception that here is a hidden policy.

Mr Maziya (ANC) asked whether the organisation had had any interaction with the department regarding the Bill, and whether they had made a concrete submission.

Mr van der Wilden stated that the organisation's attempts to be included in the process, as well as submissions have gone unreplied by the committee.

Mr Zondo (ANC) asked Mr van der Wilden whether he really thought that the present legislation was adequate as it allowed children of 16 years old to own firearms.

Mr van der Wilden replied that it was not the Bill but the people responsible for issuing licenses that were at fault, as the administrators should have applied the law more carefully.

Mr Geldenhuys (NNP) asked why the presenter thought that the present Act was not being implemented - as a result of a lack of resources and capacity, or as a result of loopholes in the law?

Mr van der Wilden replied that he thought that manipulation, ignorance, fear and lack of capacity influenced the effectiveness of the legislation.

Adv Swart (DP) asked whether the presenter was aware of any weapons with a projectile of more than 25 mm or larger than a .22 caliber were currently in use.

Mr van der Wilden replied that he was not aware of any, and that this would only be the case in very rare circumstances

Adv Swart (DP) asked whether he thought that the barrel or register should rather be licensed, and what the acceptable upper limit of number of firearms should be.

Mr van der Wilden stated that he thought that the barrel should be licensed, as without the barrel, the register was unusable. Relating to the issue of number of firearms permitted, he said that this should be done the basis of need demonstrated.

Afternoon session
Mr Abie Loubser
Mr Loubser asked if he could make his presentation in Afrikaans. The chairperson asked him to please speak in English if he could, as otherwise the meeting would need to be adjourned in order to arrange for interpreters. Mr Loubser proceeded in English.

He said that it was important for ordinary South Africans to be able to talk to the committee. There were aspects to firearms which people who did not own firearms would not understand. Firearm owners could love their guns and keep them purely for legitimate purposes. The crime problem should not cause the wrong people to be targeted. Legal gun owners should not be penalised because of the actions of criminals and because of the theft of firearms by them.

Farmers had a very wide area to defend and doing this would be impossible with just two guns. Also, guns were used for many different purposes on farms, such as in the control of pests, including dogs, birds and other animals. A shotgun was considered to be a particularly important piece of equipment for controlling birds which were one of the most serious pests that had to be controlled on farms.

Of the various types of shotguns which were used on farms, trap, skeet and clay-target shotguns were just three examples. A trap shotgun shot 15 centimetres high at 30 metres and was therefore useless as a hunting or self-defence weapon. A skeet shotgun was another type, normally one with two barrels. A clay-target shotgun was another type of gun. It was therefore evident that for a sportsperson, a number of different types of guns were needed. The limit of just 200 rounds of ammunition for each calibre, was also considered to be a problem. Any farmer could easily use 200 rounds of ammunition in just one weekend and if the tasks of clearing birds and clay-target shooting were combined, much more than 200 would be used. The limits on ammunition and on the number of shotguns was therefore a real problem for farmers. Similarly, with hunting, different types of guns were needed for different circumstances, an example of which was the need for higher calibre guns in weather with high winds.

Some guns were family inheritances and therefore weren't used at all, merely kept and loved by the owners. The limit of two guns would affect such owners too. In conclusion, Mr Loubser said that guns were more than just self-defence items and needed to be viewed as such. Particularly on farms, they were useful tools which were essential for the functioning of some farms and were used on a daily basis.

Mr Loubser then introduced another farmer and colleague of his, Mr Derek Clift, who was also the chairman of the Berg River Table Grape Association, who addressed the committee. He represented some 200 agriculturists or farmers. There are a wide range of pests that need to be controlled by farmers, among them birds such as Sparrows, Finches, Starlings and others. In order to control these birds many farmers today used trained teams of workers with shotguns to shoot the birds. This had been found to be the most effective means of controlling birds as other methods had been fund to be mostly ineffective, for example gas canisters which emitted a loud boom and nets and other devices. The new legislation would present serious problems for this method of pest control.

Discussion
An ANC member asked for clarification on Mr Loubser's opposition to this Bill or even just sections of it, in light of the fact that most farms were robbed for the purpose of stealing guns. Mr Loubser replied that the problem was thuggery, not the number of guns. He said that it was his primary intention to clarify the point that guns were needed on farms as tools. The problem of unemployment would be affected by reducing the numbers of guns and ammunition, in that those working in the manufacturing of guns and ammunition might be put out of work. An example of why this was so, could be seen through the example of one shooting champion who had used 800 000 rounds of ammunition before he won his first championship.

The chairperson said that the committee appreciated Mr Loubser's input and that the points he had put across would definitely be taken into account.

The Pretoria Arms and Ammunition Association
Advocate Welch said that he appreciated the opportunity to exchange views with the committee. He had been hunting since 1967, involved in sport shooting since 1966 and had been pistol shooting since 1976. In 1985, he founded the South African Gun Owners Association and was its first President. In 1995 he founded the Pretoria Arms and Ammunition Association and was currently the head of that organisation. He was also the Deputy Director of Public Prosecutions in Pretoria but was not addressing the committee in that capacity. Many of the people in the shooting community were "up in arms" over this new legislation. He said that he hoped he could be objective throughout his presentation.

Advocate Welch indicated that he had submitted the most recent version of his document, dated 9 June, to the committee and that the older version of his document, dated 10 January should not be referred to by the committee members. It was noted by Gen. C. Viljoen (FF) that the document that had been handed out to the members, was in fact the older incorrect version of Advocate Welch’s document.

In reference to the principles of the bill, it should be noted that the bill was trying to do two totally different things at the same time. Firstly, it aimed to control firearms in the hands of legal owners and, secondly to control illegal firearms. There were problems in this approach. If the intention was to control firearms in the hands of legal owners, that should be the specific objective of the bill without any other attempt to do anything else. The proposed bill would create many more crimes than existed at present, which the police would not be able to enforce. In fact, thousands of new crimes would be created among legal gun owners.

It was far more desirable to address the particular area where the problem existed, notably the use of illegal firearms by criminals. Crime, and especially violent crime, was detested. It was acknowledged however that the law of1969 governing firearms could be streamlined.

One matter about the proposed legislation that should be addressed, was the issue of re-registration and re-licensing. It was believed that only about 75% of those who should be covered under these provisions, would in fact be covered, and the question that needed to be asked therefore, was whether or not the desired result would be achieved? It was anticipated that here would be many more cases where people who had lost firearms or from whom firearms had been stolen, would be subject to prosecution under the new bill, but this would certainly not reduce crime.

Inanimate objects were being given responsibility for crime instead of those who were actually responsible for crime, the criminals. It had to be noted that guns were nothing but tools in the hands of the user, they could be put to good use by a craftsman or bad use by a criminal. Guns were to crime, what a camera was to pornography. Where an inanimate object was being blamed for crime, that represented a problem.

What was proposed was that firstly, licensing should be of the person concerned rather than of the firearm. Advocate Welch said that the impression from the media was that it was easy to obtain a firearms licence. He said that he had not found this to be the case. Corruption was a problem, but corruption could as easily occur under the new law as under the old law.

Under the proposal that the individual be licensed instead of the firearm, that person would have to be competent which would mean that a competency certificate be issued to them. What was meant by competency? Was it merely that the individual be competent in the use of the firearm? Advocate Welch said that he did not believe that this should be the first priority. A person should rather be fit and proper to possess a firearm, such as not being an alcoholic or a drug user or fitting into one of a number of other similar categories.

The new law would grant the Minister very wide powers, even draconian powers, to impose regulations in regard to the issuing of competency certificates. Competency should not be the primary criteria for determining who should be granted a licence. It was necessary that a person be, not just competent, but also that a person should have some knowledge of the law governing the use of firearms as well as safety rules on firearms and then should also be considered fit and proper. On safety specifically, people should be constantly reminded of their obligations to be safe and to follow the rules of safety. Advocate Watch said that he did not believe that weapons should be licensed, merely registered and that individuals should be given further licences if competent and fit and proper. The necessary tests could be carried out by shooting organisations.

The questions of why there should be a limit of the number of guns a person could own as well as why a sporting weapon could not be used for self- defence, needed to be answered. Common law dictated that a person could use any weapon for self-defence. Also, if hunting with semi-automatic rifles was allowed in most countries, why was it not allowed in South Africa and why was it necessary for this bill to prescribe on the issue when there were other pieces of legislation such as the Nature Conservation Ordinance of 1983, which covered this? The previous bill which had been redrafted said that not even a dedicated sportsperson could use a semi-automatic rifle, but this second version of the bill said that one could. Why was it necessary to prescribe on this? If controls were necessary, they could be carried out by gun organisations.

The law should be user friendly at the same time that it made it as difficult as possible for criminals to obtain firearms without penalising law abiding citizens. The legislation also had to be enforceable. The legislation had to be constitutionally correct too, and there was a concern in this regard that it may not be constitutional as it currently existed. There was also a possibility that some of the provisions of the Bill could lead to increased abuse of power by police.

Discussion
Advocate P Swart (DP) asked if Advocate Welch would be prepared to take the current bill to the Constitutional Court?

Advocate Welch replied that he would seriously consider attacking the constitutionality of the clauses in section 15. The moment the rights of silence of the accused were stepped on, then that was a case of treading on very thin ice. The current constitutional court had ruled that the current legislation was unconstitutional in terms of the issue of presumed ownership when a gun was in the back of a vehicle, or a truck, or in someone's backyard, and this could perhaps serve as an indicator of what might happen in future.

Dr B Geldenhuys (NNP) said that he agreed with Advocate Welch with respect to the issue of re-registration and re-licensing, that it should be the individual rather than the firearm that was licensed, but could he give some more clarification on his exact position on re-registration as it seemed that if a car had to be re-licensed, surely a firearm should be too? Ms M Molebatsi (ANC) similarly asked why registration was considered to be impractical?

Advocate Welch replied that on the issue of licensing, one could not compare a car licence to a gun licence. One could buy as many cars as one wanted without needing to licence them if they were kept off the roads. Advocate Welch said that he was in favour of registration, in terms of an actual audit, but not re-licensing. He said he doubted whether there were the human resources for a system where an official travelled to every gun owner's house to view their firearms and in any event, such a system was liable to corruption and would be a security risk for the gun owner. The other alternative, that of a gun owner taking their firearms to the police station was an even greater security risk for the gun owner. Advocate Welch was in favour of the initial registration of a person as fit and proper to own a firearm, but not of the re-registration of firearms.

General C Viljoen (FF) asked whether or not it would help with the question of re-registration, if there were different classifications of firearms, since the biggest problem seemed to lie with handguns? He added that there was surely a need for re-registration in his opinion.

Advocate Welch replied that different classifications of firearms, could help the issue of limits on firearms, and should therefore be considered. What was key in this regard though, was a correct understanding of why people had firearms. The present criteria in the bill were not correct in this regard. A person should be determined to be fit and proper in order to own a firearm and should have a full knowledge of safety regulations.

Ms D Morobi (ANC) asked why it was the advocate's impression that this bill was targeted at legal landowners, and not as he had put it, at those "contributing to crime"?

Advocate Welch replied that what was key in this regard, was looking at preventative requirements. Prevention could only be addressed in the hearts and minds of people, not necessarily through legislation. Even a competent person, who qualified well to own a firearm, could be liable to bloodshed under certain circumstances and therefore the root causes of violence with firearms needed to be addressed.

The hearing was adjourned.



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