Arms and Ammunition Amendment Bill: briefing by SAPS

Meeting report

PORTFOLIO COMMITTEE ON SAFETY AND SECURITY
8 March 1999
ARMS AND AMMUNITION AMENDMENT BILL [B32-99]: BRIEFING

Submissions handed out:
South African Arms and Ammunition Dealers Association (Appendix 1)
Mr Hymns, editor of "The Gun Owner's Guide to SA Law" (Appendix 2)
M J Hood & Associates (Appendix 3)
Professional Hunters' Association of South Africa (Appendix 4)

SUMMARY
A representative from the Secretariat for Safety and Security and two members of the South African Police Services briefed the committee on the amendments, which the bill will bring about. They stressed that there was an urgent need to pass the bill. The amendment will strictly regulate the circumstances under which a gun licence holder may lend his/her gun to another person. Under present law, a gun licence holder can lend his or her gun to any person as long as s/he writes a letter of consent. The amendment will provide that a licence holder may only lend out their gun to another licence holder. This will ensure that only persons who have been screened as fit to hold a licence may possess a gun. The committee did not vote on the bill but decided to postpone voting for a few hours to allow the NNP to consult. The bill was passed by the committee without amendments later in the afternoon.

MINUTES
The Chairperson said that the bill had gone through Cabinet last Wednesday and that the committee was of the view that the amendment was not a controversial amendment. All political parties have agreed that it is not controversial. However, outside of Parliament the amendment has generated a lot of heat. Submissions had been received from Gun Owners Association of South Africa and the Arms and Ammunition Dealers Association. Both were vehemently opposed to the amendment and were also asking for public hearings on the bill. However, due to the tightness of the parliamentary programme and the NCOP cycle, the committee will not be holding hearings. Public hearings will be held when the whole Arms and Ammunition Act is re-drafted in July and submitted to the new Parliament.

Mr Matthee (NNP) said that the NNP had not seen the submissions that the Chairperson had referred to and asked if copies could be provided.

The Chairperson said that the submissions were received late on Friday afternoon and early this morning. There had been no time to distribute them. They have been handed over to the committee section and will be distributed to the committee members later.

Dr Benny Fanaroff from the Secretariat for Safety and Security then proceeded to introduce the Department’s team and to outline the background of the new amendment.

The Arms and Ammunition Act lays down strict requirements for granting licences. For example the person who applies must not have a criminal record. It further requires the person to have a safe. In the Hamilton case the Cape High Court has recently laid down the principle that the state has a duty to screen properly all licence applicants.

Section 8(1) of the Act allows a licence holder to lend his or her gun to a person who has not been screened. It does not make sense that the Act lays down strict requirements for acquiring licences and then allows lending to non-licence holders.

If one looks at the Western Cape as an example: Most gangsters know that it would be very difficult to get gun licences, therefore they use section 8(1) and borrow guns. It could be argued that if you take away their right to borrow, then they would simply get hold of guns illegally. But then at least the police could arrest them for illegal possession.

The drafting team received representations from many sections of the police calling for this bill to be fast tracked. He mentioned the Commissioner of Operation Good Hope, the Commissioner of Serious Violent Offences and others and reported that the amendment had very broad support in the Western Cape.

Section 8(1) is not only a problem with gangsters, but also with taxis. When taxi drivers are searched, they are often carrying guns with section 8(1) letters of consent.

There was a recent shoot-out in Pollsmoor Prison with visiting gangsters. They were carrying letters of consent and therefore could not be charged with illegal possession.

Gun dealers are buying guns second hand and then passing them on to new owners together with a section 8(1) letter. This is intended as a temporary measure until the new owner gets a licence. However, sometimes the licence is later refused.

Dr Fanaroff gave some examples of people who would be affected by the amendment:
If a husband owns a gun and leaves it for his wife to use to protect herself, even though she will technically be said to have illegal possession, if she has to use the gun to defend herself then the common law will protect her against a conviction.

Hunters may face a problem. But the bill cannot be delayed for these concerns. These concerns will be addressed later. He then used the analogy of a driver’s licence and said that gun licences should be viewed in the same way. You cannot lend your car to a person who does not have driver’s licence. The amendment is proposing that you should only be able to lend guns to other licence holders.

In 1996, an amendment to section 8(1) was submitted but subsequently withdrawn after objection. The drafting unit then intended to include a redraft of section 8(1) in the new Act later on in 1999. But due to the urgency, it has been decided to process just this amendment now.

The Minister had a policy drawn up in 1997 and approved it in 1998. It was drawn up in a committee that had wide representation. It is necessary to re-visit this policy document and to look especially at firearms and drugs, and firearms and schools.

The problem that South Africa faces, is a proliferation of firearms. This proliferation makes it easier to commit violent crime. The mandate from Cabinet is to reduce the proliferation of both legal and illegal firearms. A policy document on this mandate will be submitted to Cabinet in a month’s time and a draft Arms and Ammunition Bill will be submitted to Parliament in July. Then there will be an open consultative process. Informal contact is maintained with all interested parties. However, the public will only be involved in the process after Cabinet has approved the draft bill.

Director De Karis, a Legal Advisor from the South African Police Service, took the committee through the amendments.

The changes being proposed are quite drastic.

Previously a gun owner could lend his or her gun to anyone. The amendment in section 8(1)(a) now specifies that the licence holder may only lend his or her gun to another licence holder and the person borrowing the gun may only use the gun on land which belongs to the person who holds the licence in respect of that gun. Written permission will also be required.

Section 8(1) (b) deals with storage of a gun. Gun owners are not storing guns properly. The Act specifies that a person may only acquire a gun licence if s/he has a safe or access to a safe. The safe has to fulfil certain prescribed requirements. Section 1(b) provides that a licence holder may store a gun in respect of which he does not have a licence, if s/he has written permission from the person who holds the licence in respect of that gun, and the letter is endorsed by a person acting under the authority of the National Commissioner of SAPS.

Section 8(1)( c) provides that only a person who holds a licence to possess a gun may transport that gun.

Section 8(1) (d) specifies that the letter must specify the time period for which the person may use or store the gun.

The new Arms and Ammunition Act will require all persons who possess guns to have their own safes. The provision in the present legislation, which allows gun owners to store their guns in other people’s safes, proves unworkable in practice. Often the guns are not stored in safes but are left lying around.

South Africa is the only country in the world, which has a formal licencing procedure, yet allows guns to be lent out to people who do not have licences.

Mr J van Lill [Provincial Head: Firearm Act Control: WC (Legal Services)] continued with the briefing.

Mr van Lill said that the police and interests of the community are negatively affected by section 8(1). One needs to compare the interests of minority groupings to the situation on the ground. Gangsters make use of section 8(1) letters of consent to obtain access to firearms. The Act says that an "unfit" person may not have a licence, yet section 8(1) allows an unfit person to use a gun as long as s/he has a section 8(1) letter from the licence holder.

SAPS approached the police in the Western Cape and notified them of the proposed amendment. The response was overwhelming. Various commanding officers are pleading for the amendment to be passed.

Commissioner Daniels, Commander of Operation Good Hope said that in many cases of violence, assassinations and attacks in the Western Cape, the perpetrators are carrying letters of consent or later present letters of consent. They subsequently cannot be charged with illegal possession. Various people connected to Pagad have guns through letters of consent. Section 8(1) letters of consent has frustrated various investigations. In February, the police found a shotgun and a revolver in the possession of four Pagad members. They produced letters of consent.

Sometimes gangsters use their wives to obtain the licence because they know that they would not qualify for a licence in their own names. They then "borrow" the guns in terms of section 8(1).

In another case, a licence holder used a gun to defend his property. When the gun was sent for ballistics testing it was found to be linked to several assaults and murders. It is hard to link those assaults and murders to the licence holder if the gun has been lent out to a number of people in terms of section 8(1).

The Gold and Diamond Branch of SAPS have also reported that section 8(1) is being misused and this misuse is interfering with their investigations.

There was a case in Bellville South where an accused was found in possession of an unlicenced firearm. The owner and licence holder of the gun said that he had mistakenly left the gun at the accused’s house. However, when the matter came to court, the accused presented a letter of consent. The charges had to be withdrawn.

In Mitchell Plein, a murder accused was arrested. He had a letter of consent with no dates on it. In Stellenbosch, an accused in possession of a shotgun had a letter of consent that was signed for a period of one year. In Cape Town, a person who had been declared "unfit" to possess a gun was found in possession of a gun and a letter of consent.

Mr van Lill said that he had pages and documents which highlight the abuse of section 8(1) and that these were but a few examples.

Mr George (ANC) said that this was not the first time that the committee had seen this proposed amendment. When first presented with it, the committee had agreed that it should be passed. The Department had subsequently withdrawn it. The issue of inconvenience to minority groupings does not warrant holding the bill back.

Mr Mathee (NNP) asked about section 8(2). Can a person who does not hold a licence get legal possession of a gun in terms of section 8(2)?

Director De Karis said that section 8(2) refers to the granting of firearms to private security firms. Section 8(2) specifies that all security officers have to submit fingerprints. The Security Officers Act then sets down the requirements which must be satisfied before the firm can issue the guns to its employees. These include a certain amount of training and safe storage.

Mr Mathee (NNP) followed up on his question by saying that the ANC has 317 firearms issued to it. It then distributes these guns to individuals within the party who do not necessarily have individual licences and have not been found to be "fit and proper" persons. Some of these guns have been found to be used in crimes. Should a political party be able to hold "block licences" and then be empowered to issue guns to individuals at their discretion?

Dr Fanaroff said that there were some problems with section 8(2). He had held discussions with the Central Firearms Register and they had indicated that there were a number of anomalies relating to security officers. For instance a company had applied for 100 licences, yet they only had 25 employees. This problem is being investigated. The new Act will tighten up section 8(2).

Turning to the problem of proliferation of firearms, Dr Fanaroff said that the biggest problem was firearms being lost or stolen from private owners. The second biggest problem area involved guns being lost, stolen or corruptly sold by the state. The third biggest problem was arms coming across the border and lastly there were still many guns circulating from the 80’s.

Mr Bloem (ANC) asked who would be charged in the case of a breach of section 8(1). The owner or the person borrowing the gun?

An ANC member said that he felt that the amendment was long overdue and thus it should be speedily passed through Parliament.

Another ANC member said that the proliferation of firearms was a very serious concern and asked the drafting team what their recommendations to deal with this problem were. He specifically wanted answers on how the requirement for issuing of licences would be tightened up.

An ANC member asked about the issue of handmade guns.

Mr Chuenyane (NNP) asked what would happen if his wife or a visitor to his house were to use his gun.

Mr Rockman (ANC) asked whether this amendment would not add to the problem of proliferation. Would husbands and wives now both apply for separate guns? So that instead of there being one gun in the household, there will now be two?

And what about training? How will a person who wants to fulfil the training required to obtain a licence do that training at a shooting range if he is not allowed to borrow a gun?

The Gun Free stats indicate that there are 4 million illegal firearms in South Africa. In 1998, the police issued 190 000 licences. How many of these were to private individuals and how many to security companies? And why were so many licences issued?

Mr Matthee (NNP) referred back to the husband and wife situation and the drivers licence comparison which Dr Fanaroff had made. One does not have to possess a car to have a licence. One should not have to possess a gun to have a licence. Such a system would solve the problem of too many guns in one house. There would only need to be one gun per family.

Director De Karis answered the question on who would be charged for a violation of section 8(1). He said it would depend on the facts of the case, but the police would probably charge both parties. The borrower for illegal possession and the licence holder for violating section 8(1).

If a wife is attacked, and she uses her husband’s gun, she will be protected against conviction for illegal possession due to the common law defence of "self-defence". If someone acts in an emergency situation, it negates the existence of mens rea.

Dr Fanaroff answered the questions regarding the proliferation of firearms. He said that the Department of Health was in the process of conducting a mortuary study. In Diepkloof mortuary near Soweto, the majority of bodies there are there as a result of homicides. 72% of these are as a result of gunshot wounds.

Another problem area is attacks on police officers when they are off duty. Sometimes they are attacked for their firearms. Police officers who go out drinking with their firearms are also targets.

The National Victimisation Survey indicates that the majority of violent crime is not "predatory/stranger" crime. Most crimes occur in your house with someone you know.

The challenge is how to reduce the number of firearms that are available. In preparing for the new Act, the drafting team is not just looking at the law. A programme team has been established to look at all aspects. There are 33 separate programmes that are looking at strengthening the police’s ability to deal with illicit guns. Some of these involve looking at equipment and training.

There are a lot of guns in distribution. Many are distributed by government departments or parastatals. SAPS is trying to trace all of them in order to get them back.

Turning to the problem of proliferation and two guns per household instead of one he said that they were looking at the possibility of allowing two persons to apply for licences for one gun.

Training and shooting ranges will be adversely affected by the amendment. The drafting team asked the South African Gun Owners Association (SAGOA) to submit proposals on this issue. Gun Free and SAGOA will both be attending a workshop to identify issues which need further research. SAGOA and Gun Free do not agree with each other’s research findings therefore the workshop will be aimed at working together on research. All the research will be presented to the Portfolio Committee.

If a husband takes his wife to a shooting range to train her to shoot with his gun, he does not really pass possession over to her. In this situation, it is not about relinquishing control, but about training.

Dr Fanaroff said that 20 000 licence applications were received per month. The Appeal Board was granting 60 to 70% of all appeals. The new Act will tighten up the requirements for obtaining licences.

Mr Matthee (NNP) said that it was his understanding that the amendment was aimed at preventing unlicenced persons from accessing firearms. To achieve that object, should the amendment not take one step further and cover the situation which allows political parties to hand out weapons at their discretion? In other words, an amendment to section 8(2) should be added to the bill.

Mr George (ANC) said that if the problem, which Mr Matthee was raising, was correct, then he saw the amendment to section 8(1) as aimed directly at preventing such a practice.

The Chairperson appealed to the NNP, especially Mr Matthee to refrain from pressing this point as he may be bordering on contravening the sub-judice rule. He asked the committee to refrain from entering into a debate and to rather address questions to the Department.

An ANC member asked about handmade guns. She said that she was very worried about these as there were a lot in her province. Was there any intention of licencing them? She also asked about the safe requirements and whether the police were able physically to go and check that the safes were suitable.

Mr Chuenyane (NNP) asked whether other SAPS commanders had commented on the amendment. The Department replied that a number of sectors of SAPs had commented and all of them fully supported the bill.

Dr Fanaroff said that the intention of the amendment was primarily to get guns off the street.

There is no intention to legalise homemade guns, as there is no way to control and register them.

The Chairperson asked committee members whether any of them wanted to amend the bill before passing it.

Mr Matthee (NNP) said that he wanted an amendment to section 8(2) included to ensure that no political party can have weapons issued to it. He agreed that there was an urgent need to pass the bill but said that due to the fact that the bill was only printed over the weekend, he has not had a chance to discuss the bill with the NNP study group or caucus. He has not had an opportunity to read the submissions either. He asked for a day or two in order to consult with his party.

Mr George (ANC) said that the committee was dealing with an amendment to section 8(1) now. If the NNP supports the amendment to section 8(1) then let the committee pass this bill. An amendment to section 8(2) could be dealt with later.

The Chairperson agreed with Mr George. The bill needed to be passed today or tomorrow in order to make the NCOP cycle. The NNP had indicated at an earlier meeting that they supported the amendment.

Mr Matthee (NNP) replied that the NNP had previously supported the amendment, but at that stage he did not have the specific wording before him. He indicated that he did not have a problem with the principle but that he had to consult before he could state the official NNP position.

Mr Booi (ANC) said that if it was all about consultation, then he would not object to the voting being postponed to this afternoon to allow the NNP to consult.

The Chairperson said that the house was sitting in the afternoon and that it would be difficult to get permission for the committee to meet. He suggested that the committee meet at 6pm or tomorrow morning.

Mr Woodington (ANC) said that he agreed with Mr Booi and Mr George but said that Mr Matthee was playing games. Mr Matthee had come to this meeting especially to delay deliberately the bill. Mr Woodington said that he took strong exception to Mr Matthee’s delaying tactics.

The Chairperson said that he would notify the committee whether they would be meeting this afternoon or tomorrow morning to vote on the bill.

The meeting adjourned

Note: The committee met that afternoon and passed the bill without adding any changes.

Appendix 1: South African Arms and Ammunition Dealers Association

6 March 1999

Submission regarding proposed Arms & Ammunition Amendment Bill

Joint submission by the SA Arms & Ammunition Dealers Association and the National Firearm Forum

We wish to make the following submissions regarding the proposed amendment of Section 8 of the Arms & Ammunition Act.

In opening we wish to voice our objection and concern with the manner in which this amendment has been dealt.

This proposed amendment has an immediate and direct effect on the day-to-day lives of the more than two million licensed firearm owners in South Africa.

There has been absolutely no consultation with any organisation representing these firearm owners.

On the contrary, every offer and attempt by such organisations to assist in formulating firearm policy and legislation has been dismissed and ignored by the Ministry.

We also object most strongly to not receiving adequate notice of this proposed amendment. We have been given an effective 24-hour notice of this Bill. This obviously seriously limits our opportunity to adequately prepare comments and submissions and makes a total mockery of the concept of fair and transparent governance.

We believe this limited notice to be a deliberate attempt to limit our participation and input and an attempt to stifle the voices of the two million people this Bill directly effects. This is nothing other than "trial by ambush" a notion supposedly rejected in any free and participative democracy.

Objectives of the Bill

The purpose of this Bill is to eliminate supposed abuse of the existing Section 8, in which certain criminal elements obtain possession of a licensed firearm by virtue of a written authorisation from the licence holder.

An example would be that of a gang leader, who, by virtue of a criminal conviction, is legally unfit to possess a firearm. The gang leader then "borrows" a firearm from one of his gang members that does not have a criminal record.

While we sympathise with the SAPS and support their attempts to maintain law and order such situations are more than adequately covered by existing legislation. Indeed the SAPS are perhaps negligent in not enforcing current legislation.

Under existing legislation any conviction or criminal record automatically makes a person unfit to possess firearms. Any possession by such a person for whatever reason, under whatever circumstances, is illegal and punishable under law. Where such incidents are alleged to have taken place those persons involved could, and should, have been immediately disarmed, arrested and prosecuted. This is a clear-cut case of illegal possession of a firearm.

It has also been suggested by the SAPS that the person "borrowing" the firearm in some instances might not have a criminal record and might not be unfit to possess firearms, yet in the opinion of the SAPS such person should not be allowed to possess a firearm.

Currently, in such an instance no offence has been committed. However the existing legislation, again makes more than adequate allowance for this.

Under the existing Act provision is made for any person to be declared unfit to possess firearms for a wide variety of reasons, such as abuse of alcohol or narcotics or the belief that the person may be a danger to himself, the community or property.

The crux of the matter here lies in the requirement that the SAPS must take action and substantiate their allegations. While this may well be inconvenient for the SAPS it is fully in line with the concept of due process which is entrenched in our Constitution.

Essentially this Bill is an attempt to exempt the SAPS from the burden of proof. Thus neatly avoiding the "inconvenience" of the Rights granted under the Constitution. Rights such as the presumption of innocence, due process and protection from unreasonable and unjustified action by the State.

Considering the terrible price paid by so many South Africans to obtain these Rights it is tragic to see such a blatant attempt to circumvent them. Particularly where existing legislation is more than adequate, if, it was properly enforced which sadly it is not.

Implications of the Bill

This proposed Bill has many serious implications for law abiding licensed firearm owners as well as the wider community.

It is unfortunately obvious that the drafters of this Bill have not applied proper thought or care to the amendment. Furthermore it is equally obvious that they have no knowledge of nor concern for the lawful activities of licensed firearm owners.

The proposed Bill will criminalise the reasonable and otherwise lawful actions of many firearm owners. There are many possible examples of this, amongst which are;

It would be illegal for a licence holder to teach his or her family members how to shoot or even to allow them to handle the firearm to familiarise themselves with it under his or her supervision.

The vast majority of applicants for a firearm licence currently undergo a training course in the proper handling of firearms before applying for a licence. This practice would now be illegal unless the instructor who provides the firearm is also the owner or legal occupier of the land where the training is conducted. This is not normally the case. Most firearm instructors utilise public shooting ranges belonging to third parties. We need more such voluntary training not the effective banning of it.

Should a husband and wife, or indeed any two or more persons be travelling with a licensed firearm in their vehicle and the licence holder should leave that vehicle for any reason whatsoever, such as to use a toilet, this would be illegal. The person remaining in the vehicle to care for the firearm would be in illegal possession.

South Africa has a very strong and growing presence in the international shooting sports. We have produced a number of world champions and notably performed outstandingly at the recent Commonwealth Games. South Africa also has excellent youth development programmes in many shooting sports, only last week a number of our junior shottists shot Olympic qualifying scores and show great promise to win Olympic honours for our country.

This Bill effectively condemns all of our shooting sports to a slow death and immediately outlaws all of the youth programmes.

Any sport requires new blood to remain healthy. This Bill makes it illegal for a person to visit a shooting club, "borrow" a firearm under close supervision and simply try the sport. This means the sure death of all shooting sports and South Africa’s participation.

Likewise the activities of our junior athletes are immediately outlawed. Virtually none of these junior athletes own their own firearm. Because of their ages the licences are issued to their parents who then supervise the use of the firearm. This practice would become illegal. Also many of the junior shottists use rifles which belong to the Ministry of Defence or their schools. Here again this is legal under existing legislation but would be illegal under the proposed Bill.

The previous regime denied the majority of our population access to firearms. Many of the shooting sports have implemented development programmes to correct this imbalance. These programmes are not only important to the sports and the previously disadvantaged communities but to our society as a whole by teaching safe and responsible handling of firearms. Such programmes would also now become illegal.

South Africa has a thriving hunting industry. It is estimated that this industry brings hundreds of millions of dollars in foreign exchange from visiting hunters. The local hunting industry and investments in land and game stretch into the billions of Rands. There is also considerable benefit from our hunting industry to the economies of neighbouring states such as Botswana and Zimbabwe as many safaris are trans-national with different game species being hunted in different countries.

This Bill threatens the very existence of the hunting industry.

Visiting hunters make use of the services of professional hunters. These professional hunters do not necessarily hunt on land owned by them. Instead they have agreements to hunt on land belonging to others. Often they provide firearms for their clients to use under their supervision. This practice would also now become illegal thus effectively destroying an important and growing sector of our economy.

There are many, many more examples of the serious implications of this Bill. We hope these few cases are sufficient to show how seriously flawed and poorly conceived this Bill is.

Almost exactly two years ago your committee rejected a similar Bill. At the time many shooting bodies objected to the proposed Bill but also made offers of expert assistance to draft good sound legislation that would assist the SAPS in their task while still avoiding the serious implications of flawed legislation.

Sadly, two years later these offers have still not been accepted.

Instead we once again see a proposed Bill which;

Has clearly not been subject to any consultation with the role-players and persons most effected by it.

By virtue of lack of notice given is clearly an attempt to avoid any submissions and opposition to the Bill.

Totally disregards the notion of fair and transparent governance.

Is clearly severely flawed and has serious implications for legitimate firearm owners and the economy of the country.

Is clearly unnecessary if existing legislation was competently enforced.

Is clearly an attempt to remove the burden of proof from the SAPS and in so doing deprive citizens of Rights entrenched in the Constitution such as due process and presumption of innocence.

On behalf of the millions of law abiding licensed firearm owners we appeal to this committee to reject this proposed Bill.

Yours truly

For and on behalf of The South African Arms & Ammunition Dealers Association and The National Firearm Forum.

Signed by Alex Holmes

A.G. Holmes

Chairman

Appendix 2: Mr Hymns, editor of "The Gun Owner's Guide to SA Law"

8th March, 1999

The Chairman

Committee on Safety and Security, Parliament, Cape Town

From: Gerald Hymns, Editor "The Gun Owner’s Guide to SA Law."

I would like to suggest that the Arms and Ammunition Amendment Act 1999, amending Section 8 of the Act and currently published as a Bill, should be further considered before implementation.

While the Amendment as published should indeed do much to eliminate current abuses of Section 8, the side effects of the Amendment as published will seriously inconvenience law abiding gun owners in some respects and will have a detrimental effect on visiting hunters who contribute millions of Rands annually to the economy of South Africa. It will also have the effect of causing a tremendous increase in applications for firearms from those who will have to have a licensed firearm of their own before being able to borrow a firearm on a temporary basis.

I believe the amendment of Section 8 could be effective in achieving its objective of preventing current abuses while taking wider considerations into account.

I suggest that an opportunity be given for further consultation with interested parties before the Act is amended.

M J Hood & Associates

M J HOOD & ASSOCIATES

ATTORNEYS

Director R A De-Caris

Appendix 3: M J Hood & Associates

Dear Rick

RE: PROPOSED AMENDMENT TO SECTION 8 OF ARMS AND AMMUNITION ACT 1969

1. We thank you for faxing us a copy of the proposed Section 8 Amendment

2. Whilst we believe that the ultimate intention embodied in the amendment is a commendable one i.e. to stop persons disqualified from possession a firearm or persons who do not qualify to possess one, we must stress in the strongest possible terms that the proposed amendment as it stands does not achieve this objective.

3. We believe that the proposal as it stands, is too far reaching in that by attempting to prevent a small minority of criminals from possessing arms, the proposed amendment affects many law-abiding people prejudicially.

4. Should this section be implemented, the following anomalies arise.

4.1. If you are under the age of 16 years old, you can still possess a firearm in the immediate vicinity of the licensed owner of such firearm. If you are over the age of 16, you are automatically prevented from doing so. There is no legal basis or factual basis to draw a distinction between a person under the age of 16 and over the age of 16. Furthermore, it is the Government’s expressed intention to raise the licensing age (with which we do not agree) and this directly contradicts this attitude.

4.2. Section 8(2) of the Act remains which applies predominantly to security guards. The effect of this is that a security guard is placed in a better position than that of a member of the public i.e. a security guard is entitled to possess another person’s firearm (their employers) but a member of the public is prevented from possessing a third party’s arm if they do not themselves possess a firearm license. This is in effect a form of discrimination by giving greater rights to a security guard over members of the public.

4.3. Most importantly, however, is the fact that a person can no longer possess a firearm if the holder of the firearm is in the immediate vicinity. A typical situation that is problematic is where a firearm instructor is instructing his students on a public range – they cannot let any of his students who are undergoing instruction to possess a firearm if they do not possess a license already. This is patently ridiculous particularly in the light of the Government’s professed attitude to institute some form of compulsory training.

4.4. In similar circumstances, a hunter who is not hunting on his own land or land owned by a person with whom he is hunting cannot borrow a rifle to hunt on somebody else’s land – this would affect in many instances foreign hunters who, upon arrival in this country, decide to hunt additional species than which they originally booked for. This may certainly affect the hunting economy of the country in an adverse way.

5. We wish to stress that the thoughts embodied in this letter have been put together with very short notice and are not intended to be either exhaustive of the comments that we wish to make in respect of the proposed legislation nor should they be construed as limiting in any way our right to comment further at a later stage.

6. We must also express our reservations about the manner in which the legislation has been drafted. We wish to stress once again that the South African Gunowners Association and related firearm organisations has persons skilled not only in the legal aspects of firearm ownership, but in the practicalities of firearm ownership and we wish to place this expertise at the disposal of the Government to enable the drafting of clear, effective, easily enforced and equitable legislation.

7. We must insist therefore that we are consulted on any proposed amendments prior to them being drafted in bill form.

We remain

Appendix 4: Professional Hunters' Association of South Africa

THE PROFESSIONAL HUNTERS’ ASSOCIATION OF SOUTH AFRICA

5th March, 1999

MR. M.I. VILIKAZI

THE PARLIAMENTARY COMMITTEE ON SAFETY & SECURITY

GENTLEMEN:

It has come to our attention that an amendment to the Arms and Ammunition Act will be presented to Parliament on Monday March 8 1999.

To the best of our knowledge we were not advised or consulted on this and therefore had no time for adequate response and objection.

The proposed amendment will have serious implications for our members who earn their livelihood with the use of firearms. They are all skilled professionals and it would be grossly unconstitutional to deprive them of their livelihood by restricting the use of the tools of their trade.

We urge you to postpone Parliamentary action until all of the affected parties have had adequate time to make representations to the Committee.

I am sure that your discretion will move you to concede to this request.

A.J. MAARTENS

VICE-PRESIDENT, PROFESSIONAL HUNTERS’ ASSOCIATION OF SOUTH AFRICA.

SA Arms & Ammunition Dealers Association; National Firearm Forum

6 March 1999

Submission regarding proposed Arms & Ammunition Amendment Bill

Joint submission by the SA Arms & Ammunition Dealers Association and the National Firearm Forum

We wish to make the following submissions regarding the proposed amendment of Section 8 of the Arms & Ammunition Act.

In opening we wish to voice our objection and concern with the manner in which this amendment has been dealt.

This proposed amendment has an immediate and direct effect on the day-to-day lives of the more than two million licensed firearm owners in South Africa.

There has been absolutely no consultation with any organisation representing these firearm owners.

On the contrary, every offer and attempt by such organisations to assist in formulating firearm policy and legislation has been dismissed and ignored by the Ministry.

We also object most strongly to not receiving adequate notice of this proposed amendment. We have been given an effective 24-hour notice of this Bill. This obviously seriously limits our opportunity to adequately prepare comments and submissions and makes a total mockery of the concept of fair and transparent governance.

We believe this limited notice to be a deliberate attempt to limit our participation and input and an attempt to stifle the voices of the two million people this Bill directly effects. This is nothing other than "trial by ambush" a notion supposedly rejected in any free and participative democracy.

Objectives of the Bill

The purpose of this Bill is to eliminate supposed abuse of the existing Section 8, in which certain criminal elements obtain possession of a licensed firearm by virtue of a written authorisation from the licence holder.

An example would be that of a gang leader, who, by virtue of a criminal conviction, is legally unfit to possess a firearm. The gang leader then "borrows" a firearm from one of his gang members that does not have a criminal record.

While we sympathise with the SAPS and support their attempts to maintain law and order such situations are more than adequately covered by existing legislation. Indeed the SAPS are perhaps negligent in not enforcing current legislation.

Under existing legislation any conviction or criminal record automatically makes a person unfit to possess firearms. Any possession by such a person for whatever reason, under whatever circumstances, is illegal and punishable under law. Where such incidents are alleged to have taken place those persons involved could, and should, have been immediately disarmed, arrested and prosecuted. This is a clear-cut case of illegal possession of a firearm.

It has also been suggested by the SAPS that the person "borrowing" the firearm in some instances might not have a criminal record and might not be unfit to possess firearms, yet in the opinion of the SAPS such person should not be allowed to possess a firearm.

Currently, in such an instance no offence has been committed. However the existing legislation, again makes more than adequate allowance for this.

Under the existing Act provision is made for any person to be declared unfit to possess firearms for a wide variety of reasons, such as abuse of alcohol or narcotics or the belief that the person may be a danger to himself, the community or property.

The crux of the matter here lies in the requirement that the SAPS must take action and substantiate their allegations. While this may well be inconvenient for the SAPS it is fully in line with the concept of due process which is entrenched in our Constitution.

Essentially this Bill is an attempt to exempt the SAPS from the burden of proof. Thus neatly avoiding the "inconvenience" of the Rights granted under the Constitution. Rights such as the presumption of innocence, due process and protection from unreasonable and unjustified action by the State.

Considering the terrible price paid by so many South Africans to obtain these Rights it is tragic to see such a blatant attempt to circumvent them. Particularly where existing legislation is more than adequate, if, it was properly enforced which sadly it is not.

Implications of the Bill

This proposed Bill has many serious implications for law abiding licensed firearm owners as well as the wider community.

It is unfortunately obvious that the drafters of this Bill have not applied proper thought or care to the amendment. Furthermore it is equally obvious that they have no knowledge of nor concern for the lawful activities of licensed firearm owners.

The proposed Bill will criminalise the reasonable and otherwise lawful actions of many firearm owners. There are many possible examples of this, amongst which are;

It would be illegal for a licence holder to teach his or her family members how to shoot or even to allow them to handle the firearm to familiarise themselves with it under his or her supervision.

The vast majority of applicants for a firearm licence currently undergo a training course in the proper handling of firearms before applying for a licence. This practice would now be illegal unless the instructor who provides the firearm is also the owner or legal occupier of the land where the training is conducted. This is not normally the case. Most firearm instructors utilise public shooting ranges belonging to third parties. We need more such voluntary training not the effective banning of it.

Should a husband and wife, or indeed any two or more persons be travelling with a licensed firearm in their vehicle and the licence holder should leave that vehicle for any reason whatsoever, such as to use a toilet, this would be illegal. The person remaining in the vehicle to care for the firearm would be in illegal possession.

South Africa has a very strong and growing presence in the international shooting sports. We have produced a number of world champions and notably performed outstandingly at the recent Commonwealth Games. South Africa also has excellent youth development programmes in many shooting sports, only last week a number of our junior shottists shot Olympic qualifying scores and show great promise to win Olympic honours for our country.

This Bill effectively condemns all of our shooting sports to a slow death and immediately outlaws all of the youth programmes.

Any sport requires new blood to remain healthy. This Bill makes it illegal for a person to visit a shooting club, "borrow" a firearm under close supervision and simply try the sport. This means the sure death of all shooting sports and South Africa’s participation.

Likewise the activities of our junior athletes are immediately outlawed. Virtually none of these junior athletes own their own firearm. Because of their ages the licences are issued to their parents who then supervise the use of the firearm. This practice would become illegal. Also many of the junior shottists use rifles which belong to the Ministry of Defence or their schools. Here again this is legal under existing legislation but would be illegal under the proposed Bill.

The previous regime denied the majority of our population access to firearms. Many of the shooting sports have implemented development programmes to correct this imbalance. These programmes are not only important to the sports and the previously disadvantaged communities but to our society as a whole by teaching safe and responsible handling of firearms. Such programmes would also now become illegal.

South Africa has a thriving hunting industry. It is estimated that this industry brings hundreds of millions of dollars in foreign exchange from visiting hunters. The local hunting industry and investments in land and game stretch into the billions of Rands. There is also considerable benefit from our hunting industry to the economies of neighbouring states such as Botswana and Zimbabwe as many safaris are trans-national with different game species being hunted in different countries.

This Bill threatens the very existence of the hunting industry.

Visiting hunters make use of the services of professional hunters. These professional hunters do not necessarily hunt on land owned by them. Instead they have agreements to hunt on land belonging to others. Often they provide firearms for their clients to use under their supervision. This practice would also now become illegal thus effectively destroying an important and growing sector of our economy.

There are many, many more examples of the serious implications of this Bill. We hope these few cases are sufficient to show how seriously flawed and poorly conceived this Bill is.

Almost exactly two years ago your committee rejected a similar Bill. At the time many shooting bodies objected to the proposed Bill but also made offers of expert assistance to draft good sound legislation that would assist the SAPS in their task while still avoiding the serious implications of flawed legislation.

Sadly, two years later these offers have still not been accepted.

Instead we once again see a proposed Bill which;

Has clearly not been subject to any consultation with the role-players and persons most effected by it.

By virtue of lack of notice given is clearly an attempt to avoid any submissions and opposition to the Bill.

Totally disregards the notion of fair and transparent governance.

Is clearly severely flawed and has serious implications for legitimate firearm owners and the economy of the country.

Is clearly unnecessary if existing legislation was competently enforced.

Is clearly an attempt to remove the burden of proof from the SAPS and in so doing deprive citizens of Rights entrenched in the Constitution such as due process and presumption of innocence.

On behalf of the millions of law abiding licensed firearm owners we appeal to this committee to reject this proposed Bill.

Yours truly

For and on behalf of The South African Arms & Ammunition Dealers Association and The National Firearm Forum.

Signed by Alex Holmes

A.G. Holmes

Chairman