A summary of this committee meeting is not yet available.
SAFETY AND SECURITY PORTFOLIO COMMITTEE
15 February 2000
FIREARMS CONTROL BILL: BRIEFING
Firearms Control Draft Bill
National Crime Prevention Centre Presentation (See Appendix 1)
SAPS presentation (This is a Power Point document; email email@example.com for the text version if you are having difficulty downloading it)
Speech of Minister Tshwete, 4 February 2000
Proposal on Procedure, Gen Constand Viljoen (FF).(See Appendix 2)
Dr B Fanaroff and Ms B Holtman of the National Crime Prevention Centre delivered a presentation on the background and reasons behind the Bill and on its implementation. Director J Oosthuizen, from the SAPS head office, delivered a more detailed presentation on the implementation of the Bill. He was assisted by Director J Bothma. Questions and a discussion again followed.
The Chair, Mr M George (ANC), noted that there had been a request from the Freedom Front to put forward a proposal on the procedure for discussion of the Bill. He invited Gen Viljoen to read the proposal.
Gen Viljoen stated that the Bill under discussion was an important and controversial piece of legislation. He proposed a three-phase approach to the discussion of the Bill: The first phase should involve an analysis of the policy document on which the Bill is based. The second phase should entail consultation with interest groups and research by experts on the effect the legislation will have on curbing crime. The third phase should involve considering the detail of the draft legislation. He concluded by saying that before looking at detail, the policy document should be revisited.
The Chair suggested that the proposal be looked at in political party study groups and that it be responded to and discussed at a later stage.
National Crime Prevention Centre Presentation
History of and rationale behind the Bill
Dr B Fanaroff, head of the National Crime Prevention Centre, noted that this would be the first in a series of briefings and that he would be briefing the NCOP the following week.
Dr Fanaroff clarified the Department’s firearm policy saying that the intention was to deal with gun violence and not to harm businesses or sporting bodies nor to reduce the protection of those in dangerous situations.
Dr Fanaroff proceeded to read through the document handed out for the remainder of his presentation (See Appendix 2). His presentation was delivered under five headings:
Background to the Bill
Reasons for writing a new Act rather than amending existing legislation
Firearm use and distribution in South Africa
How the Act gives effect to the policy
Can the proposed Act be implemented?
Public Communication Campaign
Ms Holtman began by remarking that the policy in the Bill could succeed only if there is communication; understanding and education will be crucial. The aim of the campaign is ultimately to reduce firearm violence. However, there is a need to instil a belief in a safe society rather than merely to reduce violence. She noted that young men are most vulnerable both as victims and to becoming perpetrators and therefore that it is important to reach children.
She noted that there had been a workshop in Stellenbosch involving numerous bodies, including government departments, to initiate and mobilise the campaign. It is important to bring people together to acknowledge the number of bodies who regard firearm violence as a barrier to the realisation of their goals.
She remarked that there is a need to change the perception of young men that violence is to be admired. There is a further need to get together with young people to find out how best to reach the youth and to tap into a young audience.
She indicated that there was an intention to develop a campaign that will generate and be informed by feedback. She informed the members that a full report of the workshop had been prepared and would be distributed.
She concluded by stating that the curbing of gun violence is in the interests of society as a whole and the issue transcends political divides.
The Chair urged the members not to engage in argument as this was not yet a discussion of the Bill – the time for argument was still to come. He noted that the high levels of crime in the country affects the perceptions of the country, tourism and jobs.
Rev K Meshoe (ACDP) posed his first question. It related to the campaign to change public perceptions. He questioned how the campaign could succeed when there was so much violence in the media. His second question related to Gun Free Zones and he asked who would ensure that people were not carrying weapons. His third question was whether the new Bill could be enforced if the old Act had not been.
Gen Viljoen (FF) questioned whether there could not be a programme focusing on crime in general if there is going to be such a programme for firearms. He also asked why there is such a small portion of the Bill dealing with illegal firearms. He stated that this seems to indicate that there is little that can be done. He suggested introducing capital punishment as a penalty for certain crimes associated with illegal firearms. He concluded by noting that the sources of illegal weapons mentioned by Dr Fanaroff involved criminal activity and in order to curb these crimes, the Bill punishes law-abiding citizens.
Mr V Ndlovu (IFP) queried the survey of 2000 license holders and asked that this be elaborated upon. He raised concerns over rural arms dealers, who cannot be electronically linked to the Central Firearms Register (CFR). If they are not monitored, it will make the controls applicable to linked dealers useless.
Mr M Pheko (PAC) raised concerns regarding the proposed amnesty for those who declare unlicensed firearms. He stated that it was not clear whether persons who have committed crimes and who come forward will be prosecuted. He remarked that people will not come forward if they know that they will be prosecuted.
Ms Van Wyk (UDM) commented, regarding the public campaign, that much will be achieved if the State leads by example. She commented further that it is not really known what the status is of weapons owned by the State. She suggested an audit of guns owned by the State in order to illustrate that the State is leading by example. She asked what has been put in place to determine the identity of firearms and asked whether it would be possible to provide for ballistic tests. Regarding the proposed Designated Firearm Officers (DFO), she questioned whether they would be properly trained and whether there would be enough money to support this initiative.
Mr G Mngomezulu (ANC) requested clarity on the entire communication campaign. He noted that the first part of the paragraph in the presentation dealing with this issue indicates that a workshop has already been held, but later in the paragraph it appears that it must still take place.
Ms Sosibo (ANC) raised concerns regarding the DFOs. She noted that provisions of the previous Act had not been properly enforced and doubted whether the DFOs would be able to enforce the provisions of the new Bill.
Dr Fanaroff responded: He stated that he shared Rev Meshoe’s concerns regarding violence in the media. He also supported Rev Meshoe concerns regarding the difficulty in enforcing Gun Free Zones where there are many people. He stated that there was enthusiasm for pilot zones where communities and institutions were supportive. He cited the examples of working with the Minister of Education in making schools Gun Free Zones and working with the South African Breweries regarding the initiative to make bars and shebeens gun-free. He emphasised that there had to be consultation.
While he stated that Directors Oostuizen and Bothma would address the question of enforcement of the Bill, Dr Fanaroff remarked that there was now more enthusiasm for reducing gun violence and that even the old Act was being supported. He stated that the leadership of the SAPS needed to be motivated and that the assistance of civil society and religious leaders was required to motivate people to support the legislative initiative.
He turned to Gen Viljoen’s concern regarding the small portion of the Bill devoted to dealing with illegal arms. He noted that the parts of the Bill that did not deal with illegal arms were set out at length and in detail because of the complexity of these matters. He remarked that the length of the portions of the Bill that address the different issues is not an appropriate measure of the seriousness with which the issues are viewed. The portions of he Bill that deal with illegal arms provide for serious penalties.
Regarding Gen Viljoen’s contention that law-abiding citizens will be punished in the attempt to crack down on illegal activity, he stated that if it is accepted that the theft of and crimes involving guns cannot be stopped overnight, precautions must be taken and there must be a risk strategy. If an individual is suspected to be a risk, there had to be provision for a detailed check of such a person.
Regarding Mr Ndlovu’s question of the 2000 licence holders, Dr Fanaroff indicated that there had been an audit of all licence–holders throughout the country and that he could provide the numerical results. Concerning controlling arms dealers, he remarked that enforcement was important and that there had to be the development of an attitude in the community that citizens have a duty comply with the law. He stated hat civil society had to work with the police in this regard. He stated that rural dealers are not omitted from the controls of the Bill and while they cannot be electronically linked to the CFR, they are required to submit reports by fax and post.
Dr Fanaroff then dealt with Mr Pheko’s questions regarding amnesty. He stated that issue over whether people will come forward to declare arms is important. He emphasised that the amnesty would be against prosecution for the possession of illegal arms and not against prosecution for crimes committed using these arms. He stated that guns handed in would be subject to ballistic tests to determine whether they had previously been used in crimes.
He agreed that it was important that the state lead by example. He explained that had been work done to audit state-owned guns. He believed that there should be an instruction to the State that this audit should continue as soon as possible.
Dr Fanaroff addressed the question whether individual guns could be made more identifiable. He noted that in Canada in the US there had been progress in developing tests to identify guns on production. However, this is difficult and expensive.
He referred the questions of the training of DFOs to the delegates from the SAPS and the questions concerning the public communication campaign to Ms Holtman.
Ms Holtman responded to the questions referred to her. She addressed the concern regarding the levels of violence in the media. She noted that the media’s response to these charges is that it is simply responding to demand. It was therefore the demand for violence that needed to be addressed. She remarked that the central question was what society was prepared to give up in order to create a safe country. There needed to be a reduction in the demand for violence in entertainment. She stated that there needed to be new heroes and role models, and that there had been discussions with sports and other bodies in this regard. She noted that it remains a fact that people are attracted to violence.
She addressed the question of why there was a campaign concerned with gun violence and no campaign concerned with crime in general. She stated that this programme was not focused on gun violence only, but that by reducing gun violence there would be a reduction in crime in general. She commented that society needed to be mobilised against crime as a whole.
Ms Holtman said that there were plans to use the State as a role model. She turned again to the campaign and clarified that the workshop had already been held and that it constituted the first step in the campaign. The rest of the campaign had to happen now and in the future.
South African Police Service Presentation
Mr Oosthuizen, a director attached to the SAPS head office, first responded to the questions raised about the Designated Firearm Officers. He stated that there was better training underway for officers.
Mr Bothma, the head of the Central Firearms Register, noted, with regard to the State’s leading by example, that weapons had already been handed over for destruction. Departments had been notified to hand over arms and the upgrading of systems was being investigated. He stated that the SAPS was trying to gather information regarding weapons in the country which were not properly identified. He commented that DFOs will be designated for a particular area. Regarding the concerns over the lack of enforcement of the previous Act, he stated that high-risk people were to be investigated and their safes would be inspected.
Mr Oosthuizen noted that he was present on behalf of Deputy Commissioner Truter who was ill and therefore unable to attend. Mr Oosthuizen proceeded with his presentation which addressed the SAPS’s commitment to dealing with illegal firearms (see presentation).
He noted that the SAPS was currently implementing initiatives to make the policy work. The SAPS had a three-dimensional approach. The first dimension concerned the legislative process, from the Ministerial Policy document through to the regulations. The second dimension involves an awareness campaign that would inform the public and the SAPS. The third dimension involves the operational programme and entails the voluntary surrender of legal firearms, amnesty, audits, Business Process Reengineering (BPR) and training.
Voluntary surrender of legal firearms
This would present an opportunity to hand in unnecessary and unwanted arms. There would be a communication of the process to the public and to the SAPS. There may need to need to be special transport arrangements to transfer arms to safer places after physical surrender had occurred. The destruction process would be contracted out. The administration process involves the issuing of receipts, the cancellation of licenses etc.
Audit of firearms in deceased estates
Prior to 1994, there was no obligation on executors, trustees or curators to report firearms in their safekeeping. There will therefore now be a focus on these arms. There will be follow up on these people’s whereabouts. The administrative process will involve the provision of receipts for confiscated arms.
The policy for the amnesty process regarding voluntary handing in of illegal firearms is with the Minister for his approval. Regarding the methodology for collecting these arms, he stated that police stations would be the primary collection points but that other places would also be important to ensure anonymity. Security would however be necessary at these places. The processes would be communicated in the Government Gazette and were currently being worked out.
Audit of State-owned firearms
Mr Oosthuizen stated that the Government should be the example and must show that it is committed to the programme. He stated that there would be an extensive communication campaign and that there would be physical inspections at State departments. Excess and redundant firearms should be handed in and they will be an archive and record-keeping process as well as a destruction process which will be contracted out. The destruction process will be secure in order to ensure that there is no corruption etc.
Audit of privately-owned firearms
Mr Oosthuizen remarked that this is a controversial issue and that it is the first step in the licensing process. He noted that this may appear to be a vast and expensive process but that the SAPS feels it is manageable. Again there will be an extensive communication campaign and there may be a need to allocate additional personnel. Proof of the audit will need to be provided and there will need to be an archive and record-keeping process.
Business Process Reengineering (BPR)
He remarked that this is important and will gear the SAPS for the re-licensing process. The process encompasses the whole life-cycle of the firearm, from manufacture through importation to destruction or exportation. The process will involve all role-players, including the SAPS and other government departments.
BPR of the Central Firearms Register
The SAPS is legally bound to task the State Information Technology Agency (SITA) to conduct BPR. It would take approximately six months and would be dealt with in phases. The first phase will look at the current situation for arms control, the second at the ideal situation, and the third at what is needed to fill the gap.
Training of prospective firearm owners
The idea here is the same as the acquisition of a driver’s license. The programme is aimed at training owners to be competent and responsible and to be aware of the legislation. The programme will also ensure that there is no corruption involved in the training process, for example in the issuing of certificates.
Designated Firearm Officers (DFOs)
These officers provide a link between the Registrar and arms users. They will perform the background check on those applying for licenses.
The Operational Policing Strategy
This will be an overarching strategy.
Mr Oosthuizen concluded by acknowledging that the SAPS understands that it plays a central role in ensuring the effectiveness of the Act and that the SAPS is committed to doing a proper job.
Mr T Goniwe (ANC) asked what incentives were in place for people to hand in arms. He remarked that people had paid for guns and if there were no incentives there would be no handing over. He stated that he would be more comfortable if the Departments of Home Affairs and Education had collection points. These departments should participate. He stated that, overall, he thought that the legislative programme was a good one.
Mr Ndlovu raised concerns over the training of officers and suggested establishing an accredited board. He asked what would happen to people who purchased guns on the 1 March. He asked what would happen if a gun is handed in and, as a result of tests, it is discovered that it was used in the commission of a crime but the person who had purchased the arm and handed it in is not the criminal.
Gen Viljoen commented that the auditing of private arms would be complicated and would place a heavy burden on the SAPS. He asked whether it would not be possible to link court decisions to the licensing process. He asked whether the licensing process could not be simplified. He questioned why, if a person satisfies the licensing criteria, there should be different periods for the renewal for the licenses for different guns.
Ms Sosibo asked whether persons who handed in illegal arms had to give their names.
Mr O Kgauwe (ANC) asked whether the handing over of an illegal gun would impact on the investigation of a crime.
Mr Ndlovu asked how long the amnesty period would be and why it would be that length.
Mr Oosthuizen responded: The matter of incentives to hand in arms had been discussed at length. There will not be compensation in all cases but only in respect of valuable or rare weapons. In other cases there would need to be community participation to encourage handing over. Regarding collection points, there would need to be encouragement, and possibly financial support, of churches and schools to carry out collections. He stated that Mr Bothma would answer the questions concerning training.
Regarding crimes and amnesty, Mr Oosthuizen stated that there would only be amnesty for possession of illegal arms. He stated that Dr Fanaroff would answer the questions concerning the audit of privately owned arms. Mr Bothma would answer the questions concerning the renewal of licenses and the links to court decisions.
Mr Oosthuizen stated that the surrender and audit of arms would have a positive impact on criminal investigations and would not hamper them.
Mr Bothma repeated that there had been much debate around the incentives for handing over arms. He stated that a secondary market for arms should not be created. He suggested the possibility of vouchers for schools and churches who encouraged and participated in collections.
He stated that the regulations regarding training of DFOs still needed to be drafted and that there had been much discussion between the SAPS and the training departments. He stated that an accredited board would be established as soon as possible. Regarding persons who are currently applying for licenses, he stated that there is a demand for stricter screening. Therefore, before the new Act was in place it must be ensured that the current situation is upgraded. He stated that the SAPS is in the process of drafting regulations together with the Security Companies Board. There is a need to look at firearms, the types, the number and the training required to use them.
Regarding auditing, he stated that there will be a once-off audit and this would indicate the number of arms existing and where they are. He noted that there is an attempt to link the computer systems of the Department of Home Affairs and the SAPS in order to keep track of addresses. The SAPS was investigation the issue of persons with more than one identity document.
He turned to the question of the amnesty period. At the moment a ninety-day period was being considered. He noted that the issue of criminals going on a rampage and then dumping weapons needed to be discussed. He remarked that the time period provided in past initiatives had been too short for the message to reach people.
The Chair thanked Mr Oosthuizen and Mr Bothma and noted that there were questions to be answered by Dr Fanaroff.
Dr Fanaroff repeated the concern that it was not desirable to create a secondary market by providing incentives for the handing in of weapons. There is, however, a desire to reward communities. Communities themselves must be mobilised to create pressure to hand over weapons and if this collective will is not present, the amnesty provisions could not work. However, if communities are co-operative they should be rewarded with community halls etc. He warned that individual rewards would create a secondary market.
There had been an earlier question concerning the lack of action on the part of police where gangsters attended funerals and fired shots. Dr Fanaroff responded that this would be taken up with the Deputy Commissioner.
He addressed the issue of licensing and renewals, where there are a number of questions which should be asked of the individual. Does he/she have an identity document? Where does he/she live? Do they still have the firearm? Is it the right firearm? The audit will not involve an extensive investigation of the individual but re-licensing will, and will be burdensome but necessary.
He responded to the query regarding the longer renewal period for rifles than for handguns. He stated that it was not the intention to hassle bona fide hunters and sports-people. He commented that the concern is not with these people but that the guns used in crime are handguns and semi-automatic weapons (which are illegal anyway) and these are the weapons which are of concern.
He supported Mr Bothma’s view on linking the SAPS and the courts. He mentioned the existence of a project called ‘The Integrated Justice System’ and stated that there are tenders out for a court process project. The latter would link the databases of the courts, criminal records and the CFR. The movement towards linking the databases would take time but that it is happening.
The Chair asked what the safety mechanisms were to ensure that police destroy illegal arms handed in and do not simply hand them out again.
Dr Fanaroff agreed that this is an important issue and that police corruption is a concern. He noted that there are many guns in police storage and that dealing with corruption is an issue of police management.
Mr I Vadi (ANC) commented that the policies are attractive on paper but that it would be a nightmare to administer them. He remarked that the human element would be a problem. He asked what the screening processes for the DFOs would be and stated that unless there are people of high integrity at grassroots level the programme will not work. He echoed the view that corruption would be a crucial concern. He stated that the logistics of applying for and processing licenses would be problematic and queried whether the process could be managed.
Mr Bothma acknowledged that there are corrupt officers. He stated that there should be independent members of the community involved in monitoring the handing over and the destruction of arms. Regarding the administration of the programme, he commented that this is an ‘elephant’ that must be tackled in phases. If this is done, the administration can be successful. He noted that experts might need to be involved.
Regarding the DFOs, he stated that a specific personality was required – a person with the necessary skills to deal with arms and the communities. He stated that there will be a code of conduct which will state that corruption will not be tolerated. He added that the cost factor had been considered and the National Commissioner had set aside money for the implementation of the programme.
Ms Sosibo asked whether there should not be express provision for monitoring and for annual reporting.
Mr Kgauwe asked what would be done concerning the withdrawal of licenses if a holder is convicted of an offence.
Dr Fanaroff responded to the question of monitoring and collecting data by stating that he believed it is essential to monitor the implementation of the law and that it is also important to monitor its impact. He stated that if the law is not having the desired impact it must be asked whether this is because of the policy or because of defective implementation. There is a need to look at reporting. Regarding the revocation of licenses, he stated that the Bill provides for the withdrawal of licenses in different circumstances.
The Chair extended his thanks to all present and noted that Adv Kok would address the Committee the following day on the legal aspects of the Bill.
National Crime Prevention Centre Presentation
THE POLICY ASPECTS OF THE FIREARMS CONTROL BILL
15 February 2000
This is the first of a series of briefings to this Portfolio Committee and the Standing Committee of the National Council of Provinces in preparation for the public hearings on the Firearms Control Bill. A briefing will also be presented by Assistant Commissioner F Truter, SAPS, who is Head of the Firearm Control Unit in the office of the National Commissioner of the SAPS. Although I will briefly mention the developments in the policing of legal and illegal firearms in my briefing, Commissioner Truter will go into far more detail. His briefing will be followed by a detailed briefing by Adv. Louis Kok, who is a Chief Legal Adviser in the Office of the National Commissioner. He will be assisted by Adv. Ric de Caris, who is well known to many of you.
It is the intention of the whole programme and particularly of the Bill to deal with gun violence. So we hope people or organizations don't oppose it for the wrong reasons. There is no intention to hurt the business or sports of safari hunters or sports persons, or to unnecessarily reduce protection of those in very dangerous situations.
RSA has a very high level of gun violence. There are about 12 000 gun murders per year. In Gauteng and Kwa Zulu Natal, gun murders far outnumber others.
There is no doubt that the easy availability of guns:
· Is a major contributor to the frequency of violent crime
· Is a major contributor to how lethal gun violence is.
If 2 persons get drunk and fight with fists, they are less likely to be killed than if they fight with guns. It is harder and less attractive to get involved in lethal violence if you have to go in close eg. with a knife or a club. A victim is more likely to be killed the higher the calibre of the gun.
The Bill is therefore intended to:
· Reduce the availability of guns used in violence
· Begin the process of embedding a culture of responsible gun use.
We believe it is an implementable and practical law and will achieve these aims.
Is it only a long-term measure?
I have asked Dir. Jaco Bothma and Dir. James Oosthuizen to tell you about the exciting things the SAPS are doing now.
There has been criticism that the current law was not enforced. There was much truth in that. (Quote 11% unfitness, De Deur and ISS surveys etc.) But much has been done in the past year.
Firearm control is a key part of the National Commissioner's Crime Combating Teams
It has been a key focus of police ops
The IFIU's and intelligence are being strengthened.
Border control is being strengthened.
The CFR is being strengthened.
1.BACKGROUND TO THE BILL
During 1997 the Minister for Safety and Security initiated studies on a Policy for the regulation of legal firearms, an investigation of allegations of mismanagement and corruption at the Central Firearm Register, and an audit of all State-owned firearms. The first two of these reports were presented to the Minister during 1998. At the same time the SA Police Services were developing a plan for the control of illegal firearms. The Minister then instructed that a comprehensive strategy be developed for the control of both legal and illegal firearms.
During the rest of 1998, a strategy was developed by the National Crime Prevention Centre, together with the SA Police Services, and this was presented to Cabinet and to the Intergovernmental Forum in October 1998. The strategy was based on all available information. It proposed that, in order to control illegal firearms and firearm crime, it was necessary to shut off all sources of new illegal firearms and at the same time to mop up the existing pool of illegal firearms. The sources of new illegal firearms were identified as being thefts from private owners, thefts from the State, firearms smuggled across the borders, firearms from arms caches which had not been recovered, corrupt dealers and homemade firearms. The strategy indicated that it would be necessary to reduce the trafficking of firearms in the Southern African region, because this would always form a source of new illegal firearms.
At the beginning of 1999 a team consisting of the National Crime Prevention Centre and the SA Police Services, supported by the Institute for Security Studies, was commissioned to draft a Policy for the Regulation and Control of Legal and Illegal Firearms. Subsequently a team was established consisting of the National Crime Prevention Centre and the SA Police Services, supported by the Institute for Security Studies, to begin drafting working notes for a Bill.
During this process, research was carried out by the SA Police Service and the Institute for Security Studies on the views of the SAPS Illegal Firearms Unit. A docket survey was also carried out to develop information about the occurrence and characteristics of firearm crime. An audit of 2000 licence holders was carried out to check the validity of the information contained in the databases of the Central Firearms Register. The research found that the Illegal Firearms Units were almost unanimous in recommending stricter control on legal firearms. The docket survey indicated, amongst other things, that the majority of victims and offenders in lethal firearm crime were young men. It also showed that courts were declaring gun owners unfit when they had been convicted of crimes in only 11% of the cases where they should have been found to be unfit. The audit of licence holders showed that a very high percentage of licence holders did not live at the addresses listed in the Firearms Register, and that many firearms had been lost or stolen and had not been reported to the SAPS.
The Policy was completed and submitted to the Minister and then to Cabinet in September 1999. Cabinet approved the policy as a basis for drafting legislation, and a drafting team was then established, consisting of the SA Police Service, the NDPP, the National Crime Prevention Centre and Senior Counsel from the Johannesburg Bar, to draft the Firearms Control Bill.
Beginning in 1997, a number of informal consultations took place with Gun Free SA, the SA Gun Owners’ Association, the Confederation of Hunting Associations of SA, the Khuseleka association, the collectors’ association, sports associations and others. None of these associations was included in the drafting of the Bill. The draft Bill was approved by Cabinet for tabling in Parliament in November 1999
2.REASONS FOR WRITING A NEW ACT RATHER THAN AMENDING THE EXISTING ARMS AND AMMUNITIONS ACT No. 75 of 1969.
The Arms and Ammunitions Act has been amended on many occasions, and is very fragmented as a result. It is difficult to read, and both Police members and Prosecutors who were consulted stated that they had difficulty in reading, interpreting and understanding the Act.
The new policy requires much stricter regulation of both legal and illegal firearms than was the case in the past, and also provides for greater policing powers in the enforcement of the legislation. These matters are not adequately covered in the existing Act.
For these reasons a completely new Act has been drafted to give effect to the policy.
3.FIREARM USE AND DISTRIBUTION IN SOUTH AFRICA
For the first time, an extensive compilation of facts and statistics concerning the use and distribution of firearms in South Africa has been compiled. This book has been distributed to all members of the Committee and has been made available to the media. I recommend that all members of the Committee should read this book very carefully. (I will call it the "fact book"). The information contained in it should be read together with the information contained in the book titled ‘Victims of Crime’, which contains the results of the first national victim survey, and was published in 1998 by Statistics South Africa for the National Crime Prevention Centre.
I will outline some of the most relevant issues covered in these books:
3.1There are very marked cyclical variations in the occurrence of murder, serious assault, rape, and robbery with aggravating circumstances. Our initial analysis of these variations indicates that the peaks usually coincide with the times of the year and of the week when people are at home and have money available. There are strong indications that excessive consumption of alcohol plays a key role. These conclusions are consistent with the information from the National Victim Survey, which shows that the majority of assaults and a very high percentage of rapes occur in or around the home or at places of entertainment, with the victims most often knowing the offenders.
3.2Although the number of murders has stabilized between 1994 and 1999, the number of murders with a firearm has increased during this period. Robbery with a firearm has increased quite steeply, and so has the theft of a firearm. Offences relating to the negligent loss, negligent handling, irresponsible firing or pointing of a firearm have also increased. These statistics are given on page 19 of the fact book.
Murders with a firearm constituted 49% of all murders in 1998. This percentage is very high compared to most countries. Handguns were used in at least 57.4% of firearm murders during 1998 (the firearm used in 15% of murders was unknown). In Gauteng and KwaZulu-Natal, far more murders were committed with firearms than with any other weapon. These figures are given on page 23 of the fact book. The book also gives the breakdown of the ages of the victims of firearm murders. Note that 461 children under the age of 11 were murdered with firearms during 1998. The vast majority of victims were aged between 16 and 39, as were the perpetrators. The majority of victims and perpetrators of murder were thus young men.
3.3The majority of murders of members of the SAPS occurred when they were off-duty (65% during 1998). A total of 83% of the members murdered between 1994 and 1998 died from gunshot wounds. A high proportion died in or around bars and shebeens.
Firearms were by far the most common weapons used in taxi violence as well.
3.4The most common licensed handguns in circulation are of 9mm calibre. These are also the most common handguns used in crime. The most common makes of guns recovered by the SAPS and the SANDF are the same as the most common makes which were registered by the Central Firearm Register. This is a strong indication that the most common source of guns used in crime is theft from the public, and to a lesser extent from the State, rather than weapons which are illegally imported.
3.5There were 4.5 million licensed firearms in South Africa by the middle of 1999. Just over 3.5 million of these are registered to private individuals. 2.8 million of the registered firearms are handguns. Currently about 150 000 new licences are being issued each year. Gauteng received 37% of all licences issued between 1994 and 1998, followed by KwaZulu-Natal with 14% and the Western Cape with 12%.
3.6About 30 000 firearms are lost or stolen each year. The number of cases of robbery of a firearm has increased from 891 in 1996 to 5045 in 1998. About 21 000 firearms were recovered by the SAPS and the SANDF during 1998. Note that a study by SAPS in Gauteng indicated that in cases of firearm theft from houses, cars and businesses, in 81% nothing but the firearm was stolen, indicating that thieves and syndicates are carrying out housebreaking specifically to steal firearms.
3.7A survey of mortuaries by the Medical Research Council and others, funded by the Department of Arts, Culture, Science and Technology for the National Crime Prevention Centre, indicates that 26% of non-natural deaths are due to firearms, which is the same as the percentage dying in traffic accidents. The percentages for firearm deaths in Gauteng, and especially for areas like Soweto, are substantially higher. The Committee is referred to the figures obtained on pages 57 and 58 of the Fact book. Note also that an increasingly large percentage of the budget of public hospitals is being utilized to treat the victims of gunshots.
3.8The Human Sciences Research Council included questions in a national survey conducted during October 1999 to test public opinion on firearms. The survey indicated that only 7% of the population owns or has ever owned a gun, which is consistent with the figures from the Central Firearms Register. In this survey, 61% of the respondents indicated that the government should make it very difficult to own a firearm and 23% felt that the government should make it difficult.
There is often speculation on the number of illegal firearms in circulation in this country. The National Crime Prevention Centre, together with the SAPS and Intelligence agencies, has made an estimate of this number, using the best information available. We estimate that there are between 500 000 and one million illegal firearms, with the number probably closer to 500 000. Less than about 250 000 of these are weapons which originated from the apartheid state or the liberation movements. The majority of the rest have been stolen from private owners or the State or illegally imported. Although a large percentage of the existing pool of illegal firearms originates from struggles in South Africa or in the region, it is nonetheless clear that the major inflows of new firearms for use in crime are taking place through the theft of firearms within South Africa, mainly from private owners.
A further indicator for the figure mentioned above is the information being generated by the Integrated Ballistics Information System within the SAPS. Testing confiscated firearms indicates that one firearm is often linked to more than one crime, which refutes the notion of one gun one crime.
4.HOW THE ACT GIVES EFFECT TO THE POLICY
In this section, I will describe the key features of the Policy which are given effect to by the Bill. The Bill aims to create a culture of responsible gun ownership and to tighten control of both legal and illegal firearms.
The focus of the licensing process in the new Bill is on the licensing of the individual as a fit and proper person to own a firearm. This applies also to the owners and directors of businesses, such as security companies, arms manufacturers and dealers. An applicant for a licence has the onus of satisfying the Registrar of Firearms, who is the National Commissioner of the SAPS, that he or she is a fit and proper person to own a firearm. Once a competency certificate is issued confirming that the applicant is a fit and proper person, his or her firearm can be licensed. The licensing of the firearm itself is therefore primarily an administrative process of recording all the identifying characteristics and marks of a firearm. In practice, the Registrar will issue the competency certificate and the licence together. Note that this is not the same as the competency certificate that was exposed by the Sunday Times. They were talking about a certificate from a training establishment which confirms that you have been trained. We are talking about a certificate from the Registrar which says that you are a competent, fit and proper person to own a firearm. Training is one small component.
An applicant must provide proof of his or her identity and address, and must provide a photograph, as well as fingerprints to enable a search to be made for any criminal record. There is an onus on the applicant to inform the Registrar of any convictions for violence or certain other types of crimes in South Africa or any other country, and also to inform the Registrar of any charges which may be pending and orders against the applicant granted in terms of the Domestic Violence Act. The applicant must also state whether there is anything in his or her medical history which would have a bearing on fitness to own a firearm, or whether the applicant is dependent on or abuses alcohol or drugs. Two sworn affidavits dealing with the applicant’s character are required.
The intention therefore is to establish reliably who the applicant is, where the applicant can be located and whether there is anything that indicates that the applicant has a propensity to violence or to irresponsible behaviour. At one stage there was discussion on the inclusion of psychometric tests in this process. However, advice from police in the United Kingdom and from psychiatrists in South Africa was that psychometric testing, unless very intensive, was unlikely to be a useful indicator regarding the fitness or unfitness of an applicant to own a firearm.
Up to now, a firearm licence has been valid until it is withdrawn. The Bill make provision for a firearm licence to be valid only for a specified period. In most cases, licences for handguns would be valid for five years, and licences for rifles for ten years, although the details are more complicated. Licences for security companies are valid for two years. Dealers’ licences are intended in terms of the policy to be valid only for one year. This is not clearly set out in the Bill, but should be stated clearly there. The intention of requiring the regular renewal of licences is to ensure that the licence holder remains a fit and proper person, that his or her address is still valid, and that the firearm is still in his or her possession and has not been tampered with. In the light of the serious inaccuracies in the CFR database which were shown up by the audits carried out by the SAPS Illegal Firearm Units and various Station Commissioners, it is essential that this renewal should take place. It is impossible to properly regulate legal firearms unless we know where they are at any given time.
It will be necessary to bring all gun owners into the new system. Our intention is to achieve maximum voluntary compliance. We propose that all new applications from a given date should automatically go into the new system. All existing licence holders will be required to undergo an audit and to have their licences reissued in the new format, which will have better security features that the old format. The audit will aim to confirm the identity and address of the licence holder, to confirm that he or she still has the correct licensed firearm in his or her possession, and that he or she does not have a criminal record or charges pending. This audit and re-issue process will therefore not be as exhaustive as the new licensing process. It will take place over a period of time, to be determined administratively. Given that there are 4,5 million licensed firearms, it is unlikely that this could be completed in less than two to three years. Having access to the Automated Fingerprint Identification System, which the SAPS will be building as part of the Integrated Justice System, will greatly speed up both the audit process and the normal licensing process.
In order to get unlicensed owners into the system, amnesties will be declared by the Minister, which will allow people who own unlicensed firearms to declare them and either obtain licences or hand in the guns for destruction, provided these guns have not previously been stolen or used in crimes.
For the first time, ammunition will be regulated. You will see from the Fact book that in most cases of the theft of a firearm, ammunition is also stolen. It is easy for criminals to buy ammunition either directly or indirectly. The new policy and the Bill therefore require that ammunition be strictly regulated. Dealers will be required to check a customer’s licence, and can only sell a limited amount to a customer for the specific calibre for which he or she holds a licence. The dealer (except in some rural areas) must be connected to the Central Firearms Register, so that a record of all transactions goes immediately to the CFR. The CFR will therefore be able to keep track of people who are buying large quantities of ammunition, in excess of the legal limits. The amount of ammunition which a licensed owner will be allowed to purchase in a year is limited, and the number of cartridges that a licence holder may possess at any given time is also limited. However, hunters, target shooters and others who require to purchase or to possess more ammunition will be able to obtain authorization from the Registrar, who will probably delegate this power to the SAPS Designated Firearm Officers. The limitation should therefore not present any problems for people who use their guns for sport or in their business. It is certainly not intended to hamper safari companies or sportsmen, farmers or conservationists.
The Bill also makes provision for the Minister to prohibit the use of certain types of particularly dangerous ammunition, such as armour piercing bullets or exploding bullets.
The Policy requires that the State and agencies of the State must exert much tighter control on firearms and ammunition in their possession than was hitherto the case. There has been a perception both in the public and in the government that guns have not been as tightly controlled by the State as they should have been, and this has to be remedied. Although State institutions, which are called Official Institutions in the Bill, are exempted from most of the provisions of the Bill, these institutions are required to maintain strict controls. The Head of an official institution is required to issue permits to people who have possession of official firearms, to assure him or herself that these persons are fit and proper persons, and to lay down conditions under which the employee may carry or use the firearm on or off duty. Official institutions must keep a register, and the Registrar of Firearms must have access to that register. The policy makes provision that subject to certain security arrangements, the police will also have access to the premises of official institutions in order to inspect their firearms and armouries.
The SAPS have complained for some time that the absence of presumptions on the illegal possession of firearms, and the limitations of their powers to take fingerprints and DNA samples from persons in the vicinity of where illegal firearms are found, has limited their ability to investigate these cases. The policy and the Bill therefore make provision for extensive powers to be given to the SAPS for investigations and for inspection, search and seizure. The Bill creates new presumptions which are very powerful. These presumptions limit the individual human rights of suspects. The Constitution does allow the legislature to limit individual rights by Statute, provided there is good reason. We believe that there is good reason, as has been shown by the statistics of firearm crime and violence in this country. It will be crucial to continue the research and compilation of statistics so that you are always fully informed and able to justify your decisions.
The presumptions would be used mainly in cases where illegal firearms are found in a motor vehicle or a house, and cannot be immediately connected with a specific individual. Because they are so powerful, police commanders, prosecutors, the ICD and this Parliamentary committee will have to keep a very sharp watch to ensure that they are not misused.
The Bill introduces a new type of penalty for contravention of the new Act or its Regulations. These are administrative remedies, where the Registrar would impose fines or the confiscation of stock or the closure of a business. Clearly, the Registrar would have to comply with the principles of natural justice. These administrative remedies will only be used in cases which involve the contravention of administrative provisions, rather than the commission of (for example) violent criminal acts. The administrative remedies are intended to be much quicker and more effective than having to proceed through a long court trial, and will avoid clogging up the courts with administrative contraventions. They are a very important innovation and I believe that they are crucial to making the Bill implementable. Similar administrative remedies are contained in the South African Mine Safety Act and have also been accepted in Canada.
The policy and the Bill make provision for the Minister to declare certain places and categories of places as gun free zones. He must do this in consultation with the National Commissioner of the SAPS and the Secretary for Safety and Security. There are already many gun free zones in our country. Banks are gun free. Many government buildings are gun free. Casinos are gun free. So it is not impossible to create gun free zones. We believe that it is crucial to create gun free zones in such places as hospitals, places of worship, schools and government buildings, so that people feel safe in these places. We believe it is essential that bars and shebeens are gun free, because this is where a very large part of our firearm violence takes place. The onus must be on the owners of these places to keep them gun free. The onus cannot be on the SA Police Service. We are currently working on a strategy for these gun free zones, and will do this in consultation with the association of owners of these premises, such as the Taverners. In fact, these areas should be free of all weapons.
The policy proposes that the number of guns which can be owned for self defence should be sharply limited. The Bill makes provision for family members to own guns for self-defence, or to share a licensed gun. We do not believe that it is necessary or practical for a person to use more than one gun for self-defence. (In special cases, such as that of a shopkeeper in a dangerous neighbourhood, we may need to consider this further.) This will result in some people having to dispose of some of their firearms. The policy makes provision for this to be done over quite a long period of time, in order to allow people who are affected to sell or give away their excess firearms. It will not be possible for the State to buy back these firearms. This would be beyond the financial capacity of the State. A similar exercise carried out in Britain over a much shorter period of time has been extremely expensive.
The only case in which the State should pay compensation is where a firearm which was previously legal is now declared to be prohibited. This principle is extremely important, and we strongly recommend to you that you maintain in the Bill both the limitation of the number of firearms which can be owned and the non payment of compensation.
5.CAN THE PROPOSED ACT BE IMPLEMENTED?
Throughout the drafting of the Policy and the Firearms Control Bill, the executive sponsors of the process, Dr B Fanaroff from the National Crime Prevention Centre and Deputy National Commissioner M Bester (subsequently Assistant Commissioner F Truter) from the SAPS, tested the proposals to ensure that they were practical and could be implemented by the SAPS.
The most important issues regarding implementation are dealt with below:
5.1The Regulation and Licensing of Firearms:
The State Information Technology Agency has been instructed to carry out a study on the re-engineering of all processes involved in the regulation and licensing of legal firearms. The focus of the licensing process is moving away from the Central Firearms Register and will be carried out by Designated Firearm Officers who will be appointed in all policing areas. It will be the responsibility of these Designated Firearm Officers (DFO) to receive applications, to check the completeness and accuracy of the information, and to carry out background checks where these are required. The DFO will then be required to make a recommendation regarding the fitness of the applicant to receive a licence and to forward this together with the application to the Central Firearms Register, for a final decision by the Registrar of Firearms (i.e. the National Commissioner of the SA Police Service).
This system is being piloted in the Western Cape and will then be rolled out to the rest of the country.
It will not be possible to conduct background checks with the same intensity for all applicants, because it is not necessary and the SAPS do not have sufficient resources. Instead, a risk assessment and management strategy is being developed which will identify the groups of applicants who are most likely to present a risk of irresponsible firearm ownership or criminality. Great care will be taken to ensure that no discrimination takes place on the grounds of race or social class. The risk assessment and management strategy will also be required to flag characteristics in an individual application which indicate that the applicant may pose a risk. More intensive checks will then be carried out only on those applicants who are identified in terms of the risk assessment. This is in line with international best practice.
The Business Process Re-engineering Study is intended to produce a proposed business process as well as the information technology and institutional requirements required to support it. This will inevitably require upgrading of the current IT systems of the Central Firearms Register, as well as links to dealers and to certain State departments. Funds for this purpose have been earmarked in the Medium Term Expenditure Framework of the Department for Safety and Security
There has been criticism of the Bill on the grounds that it may be unenforceable. The concept of compliance is extremely important in this respect. If most citizens in this country take the attitude that they can and should do what they like unless they are caught, almost any law is unenforceable. The emphasis on this Bill is on complying with the statutory requirements. We must give thought to providing incentives and encouraging citizens to comply with the Statute and Regulations. This includes particularly dealers, who will have substantial responsibilities in terms of the Bill.
It is a duty of citizens to comply with the law. To rely only on law enforcement is both unaffordable and ineffective. A part of the implementation of the new law must therefore be a public education and mobilization campaign which encourages the vast majority of citizens (including dealers, sports shooters, hunters and other legitimate users) to comply. The role of law enforcement is then to detect those who do not comply and to act very harshly against them.
This approach, of emphasizing the need for the public to comply with laws, must increasingly underlie our efforts to reduce the levels of crime and violence in South Africa. As long as the majority of our citizens take the attitude that it is legitimate to do whatever they can get away with, it will be almost impossible to reduce the levels of crime and violence by law enforcement alone.
It is intended that the Business Process Re-engineering Study will be completed within eight months from March 2000. The implementation of some of the systems will begin during the course of the study (for instance, the designated the Designated Firearm Officers system), but the complete implementation will take a further one to two years, depending on the availability of sufficient funding. It is therefore likely that the complete new licensing system can only be implemented over that time scale. However, aspects of the new regulatory system can be implemented quite quickly. The additional policing powers and penalties can be implemented immediately. A timetable is being drawn up to set out when each section of the Bill can be implemented.
5.4Control of Illegal Firearms
Substantial improvements to the coordination of border control functions have taken place, and a knowledge-driven system is being developed to improve the targeting of border control activities. Particular attention is being given to the control of firearms, stolen motor vehicles and narcotics.
Great success has been achieved in the joint operations conducted by the SA Police Service with the Mozambican police, called Operation Rachel. Large quantities of firearms, ammunition and explosives have been recovered and destroyed within Mozambique. It is obviously much more cost-effective to destroy the weapons at source, rather than to have to detect them at the border or to recover them once they are dispersed inside South Africa. However, relatively few handguns have been recovered in Operation Rachel, and handguns are the majority of the firearms used in crime.
The National Commissioner of the SAPS has created a special Firearms Control Unit, headed by an Assistant Commissioner, which is situated in his office and which reports directly to him. Improvements to the organization, resources and operation of the Illegal Firearm Units of the SAPS have already taken place. Provision has been made in the Medium Term Expenditure Framework of the Department for Safety and Security for further improvements. This has resulted in greatly improved morale among both members of the Illegal Firearm Units and police members based in police stations. I must make reference here to the very fine initiative shown by the Station Commissioner at De Deur in Gauteng, who has audited all licence holders in his area and is following up and prosecuting all cases of negligence or false declarations. Details are available for those who would like to see them. A number of police operations have been launched recently and the recovery of illegal firearms has been a priority in these operations. The integrated crime combating teams announced by the National Commissioner of the SAPS will also focus on illegal firearms and firearm crime.
I also want to refer to the work that Director Bothma has done since becoming the head of the CFR two months ago, With the support of the staff there, they have tightened up the licensing process, identified inefficiencies, tightened up on security companies and so on. They are not waiting for the new Bill, but are acting now.
6.CAMPAIGN TOCOMMUNICATE AND MOBILIZE THE NATION
A workshop was held two weeks ago with a wide range of stakeholders to develop a campaign to reduce gun violence. The workshop received enthusiastic support. The campaign will combine public education on the need to comply with the legislation and the need to find alternative means of dispute resolution, with mobilization of communities to change the violent attitudes and to help the SAPS to recover illegal guns. The campaign will cover all means of reducing gun violence. It will start as a communication campaign, and will focus intensively on the SAPS, to make sure SAPS members and other government officials are fully behind the new legislation and understand it. It will seek to reduce the demand for firearms, and to mobilize communities against violence. This is a crucial campaign for the success of the legislation and the whole strategy to reduce the proliferation of firearms.
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