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SAFETY AND SECURITY PORTFOLIO COMMITTEE
29 February 2000
FIREARMS CONTROL DRAFT BILL
Documents handed out:
Firearms Control Draft Bill
The State Law Advisers who drafted the Bill continued to take the Committee through the Bill from s117 to the end of the Bill. Members were permitted to ask questions only to clarify sections of the Bill (No policy debates can be held until the Bill is certified.).
The Chair announced that the Bill was currently undergoing a certification procedure (i.e. lawyers were perusing the Bill to see whether it appeared constitutional). The State Law Advisers present at the meeting said that it was unlikely that the certifying lawyers would recommend major changes.
Many members of the Opposition raised concerns with the Chair over the process of the Committee Meeting. Mr Gibson (DP) was concerned that the Committee seemed to be ignoring the representation made by interested members of the public on the Bill. He warned that the Committee should be seen to have taken the representation of the public into account when deliberating the Bill. He asked that copies of the public submissions be made available to committee members. The Chair noted these concerns.
DRAFT FIREARMS CONTROL BILL
Chapter 14: Search and Seizure
S117 Search and Seizure in the Course of Policing Operations in terms of the South African Police Service Act, 1995
Opposition members asked Adv. Kok whether this section gave too much power to the police and were thus unorthodox. He replied that the police powers of search and seizure under this section were limited in scope by the context. They could only search for illegal firearms.
Opposition members also asked whether there was not an overlap between s117 (1)(a) and s117 (1)(b). Adv. Kok agreed there was; however s117 (1)(b) was a typical provision and was merely designed to exist as a precaution to widen the area of s117 (1)(a)’s applicability.
S119 Body-Prints and Genetic Samples
Opposition members queried whether this section was redundant as the Criminal Procedure Act also controlled the taking of body prints and genetic samples from crime suspects. Adv. Kok pointed out that while this was true, a person needed to be arrested before these provisions of the Criminal Procedure Act took effect. This draft Bill allowed police to take these prints and samples even if the person had not yet been arrested.
Chapter 15: Presumptions
S123 Presumption of Possession of Firearm of Ammunition
Mr Gibson (DP) questioned whether the presumption contained in s123 (4) makes the person affected an "accessory after the fact" to the crime. Adv. Kok said that the provision indeed make the person an accomplice to the crime of possessing and using an illegal firearm.
Mr Gibson also queried why the provision, which clearly related to taxis only, referred to taxis that could convey up to 20 passengers when there were plans to introduce 35-seater taxis. Adv. Kok agreed that the wording of the provision should be changed to accommodate changes in legislation.
Finally Mr Gibson remarked that the entire presumption creates a " reverse onus" presumption of guilt and for that reason could be unconstitutional. Adv. Kok replied that he believed there were strong constitutional arguments in favour of retaining the presumption but he was still awaiting conclusive legal opinion on this point.
Members of the Opposition asked for clarity on how a person affected by this presumption could rebut it. Mr B Geldenhuys (NNP) gave the example of a person who was on a taxi responsible for a drive-by shooting. This person would be labeled an accomplice even if he or she was an innocent passenger. Adv. Kok explained that to rebut the presumption the accused would simply have to provide a reasonable explanation for their presence on the taxi. They would not need to prove on a balance of probabilities that they were not involved in the crime.
Gnl Viljoen (FF) asked for clarity on the meaning of the word "vehicle". Adv. Kok explained that the words were meant in its widest possible sense to include land, air and sea transport.
S125 Presumption of Failure to take Reasonable Steps
Members of the Opposition indicated that the term "reasonable steps" was too vague. Adv. Kok responded that the "reasonableness" test was common in law and the courts would take the personal circumstances of a person affected by the presumption into account.
Chapter 16: Offences and Penalties
Adv. Kok explained that the section created a string of "administrative transgressions" in addition to criminal offences. To ease the burden on the courts, heavy fines may be imposed by officials without charging the offender. The principle of "audi alteram partem" will nevertheless be observed and offenders will be able to appeal the decision to the High Court. While admitting this measure was "unorthodox" and "constitutionally sensitive", Adv. Kok said that the Department was convinced the system would pass constitutional muster.
S130 Additional Offences and Obligations
Mr Swart asked why the presumption in s130(1)(d) and s130(2)(d) only referred to 30 persons. Adv. Kok replied that the number was debatable and could well be changed.
To criticisms that the clause once again introduced a reverse onus provision and was "constitutionally sensitive", Adv. Kok replied that it might have to be tested against the limitations clause in the Constitution.
Mr Geldenhuys questioned what would happen if someone used a firearm to defend himself from imminent attack. Adv. Kok replied that common law allowed one to use anything at one’s disposal to fend for one’s life and would not be prosecuted in terms of this Bill for doing so.
Chapter 17: Organisational Structures
S133 Central Firearms Register
Mr Gibson asked when this Register would be established. Adv. Kok replied that this could not be established immediately but would have to be done over time.
S137 Composition of the Appeal Board
Mr Gibson complained that the requirements for membership of the Appeal Board made no reference to the requisite qualifications of Board members. Neither was provision made for a chairperson of the Board to be appointed. Adv. Kok responded that such decisions about composition were a political one and made by the Committee on Safety and Security.
Chapter 19: Compensation
Adv. Kok explained that the principle behind this chapter was to make effective implementation of the Bill possible. The Chapter created a number of situations where the State would not have to pay compensation for confiscated firearms. Paying compensation for all firearms confiscated would be financially impossible.
S145 Compensation not payable where firearms or ammunition are destroyed by the State
The Chair asked what would happen in a situation when a firearm was confiscated from a person who temporarily lost his eligibility to possess such a weapon. If the firearm was destroyed and the person was rehabilitated, would that person be compensated for the loss of his firearm. Adv. Kok responded that it was impractical to store firearms and that it was safer that they were destroyed when confiscated. Moreover, when a person temporarily lost his or her eligibility to posses a firearm, it was generally for less-than- sympathetic reasons.
Mr Gibson commented that a failure to pay compensation may result in sudden market for the sale of cheap firearms as owners attempted to rid themselves of illegally possessed firearms before the provisions of the Bill came into effect.
Mr Geldenhuys asked at what value the State would compensate people in circumstances where compensation was to be paid. Adv. Kok replied that it would depend on the State’s capacity to pay.
Chapter 20: Special Powers Relating to Amnesties, Firearm Free Zones and Emergencies
Gnl. Viljoen asked whether the existing Act controlling firearms also had amnesty provisions. Adv. Kok said this was indeed the case.
The UDM asked whether the amnesty provision would absolve offenders from offences that had committed with the illegally possessed firearm. Adv. Kok responded that the provisions only gave amnesty for the crime of illegal possession of firearms, nothing more.
Chapter 21: General Provisions
S153 Delegation of Powers and Functions
Mr Geldenhuys asked if a person, who is not a police officer, may be delegated the powers and functions of the Registrar. Adv. Kok replied that it was possible for the Registrar to delegate him or her powers to a person who is not a police officer. However this was hardly an unusual provision.
MEETING WITH COMMISSIONER SELEBI
The Chair announced that the National Police Commissioner had agreed to meet the Committee the next morning and had requested that the media be excluded.
Committee members protested the short notice that the Commissioner had given the committee. Members of the opposition commented that his desire to exclude the media was against parliamentary protocol.
The Chair suggested that member meet the next morning at 8h30 to debate the Commissioner’s request. This was agreed.
The meeting was then adjourned.
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