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SAFETY AND SECURITY PORTFOLIO COMMITTEE
31 May 2006
FIREARMS CONTROL AMENDMENT BILL: SOUTH AFRICAN POLICE SERVICE BRIEFING
Documents handed out:
SAPS Presentation on Firearms Control Amendment Bill 2006
Firearms Control Amendment Bill 2006 [not yet tabled]
The South African Police Services (SAPS) briefed the Committee on the Firearms Control Amendment Bill. Many civil society interest groups were present to listen to the presentation. Members were particularly concerned about the Department’s ability to successfully implement the legislation. Officers would need to be adequately informed of the process so that they could assist the public and ensure that implementation ran smoothly. Members also sought clarity around compensation and the property rights of firearm owners. The Department emphasised that the legislation aimed to regulate and control firearms in South Africa. Members adopted the Committee’s Report on the Department’s budget: the ANC supported the adoption while the DA abstained from voting.
The Chairperson said that the Department’s briefing would be very short. The Firearms Control Amendment Bill would not yet be formally introduced and would probably appear before Parliament before the end of the term. All the interest groups would be informed of the processes that would lead up to the public hearings that she suspected would not be later than August.
Director Jacobs (SAPS Assistant Commissioner) said that the Department expected to finalise the Bill by the following week. He detailed the background to the legislation and the re-licensing process. He also gave a brief summary of the weapons that would be exempt from licensing but still subject to certain regulations, and listed the weapons that would be restricted as well as those that would be prohibited.
Mr B Jankielsohn (DA) said that the first draft of the Amendment Bill made provision for an audit of all legal firearms to be done. He had also written to the Minister of Safety and Security, Mr Charles Nqakula to ask whether he would consider such an audit. The huge backlogs at police stations made it clear that the SAPS would be unable to implement the legislation. The fact that police officers were forced to perform administrative duties meant that there was little police presence on the streets. He wondered whether these concerns had been taken into consideration and asked whether the Department would be able to simplify the process to make sure that the implementation of the legislation ran smoothly.
Mr Jankielsohn said that he was concerned about the restriction on the number of firearms a person would be allowed to have. He asked whether the restrictions stipulated in the new Act would still apply even if one had been issued a license under the old Firearms Control Act. If a responsible firearm owner had additional firearms confiscated by the State, it might raise a constitutional challenge as far as property rights were concerned.
Mr P Groenewald (FFP) noted that the presentation indicated, "that policy regarding re-licensing must recognise existing rights". He asked the presenter to explain what "existing rights" referred to. A SAPS media release stating that all firearm licenses would be valid until 30 June 2009 seemed to contradict this provision. In terms of Section 25 of the Constitution, citizens had the right to own property. Like Mr Jankielsohn he wondered how the Department would deal with challenges in terms of the Constitution.
Mr Jacobs said that the first draft of the Amendment Bill had made provision for such an audit. It was interesting to note that proponents of firearm ownership were not satisfied with this draft. He quoted Mr Martin Wood, who in the April 2006 edition of Magnum magazine conveyed the message that the draft Amendment Bill proved that SAPS would not be making any concessions to firearm owners.
He reminded the Committee that Mr Jankielsohn had at a previous meeting asked the same question but from a different angle. Mr Jankielsohn had at that time pointed out that the proposal would disadvantage those people who had already handed over their firearms. He cautioned that the Department might face civil claims from the citizens who had handed over their firearms only to have the Department decide that others might, in terms of new stipulations, keep their firearms.
Mr Jacobs explained that under the Apartheid regime a large number of people could not own firearms. Without the new licensing requirements these people would be limited to a certain number of firearms while those who could own firearms during Apartheid would be allowed to retain whatever firearms they had acquired before 1994.
The Act was very clear as far as transitional arrangements were concerned. The Department had consulted the National Director of Public Prosecutions and received an opinion signed by him. Unless they were revoked for some valid reason, all existing firearm licenses would be valid until 30 June 2009.
He explained that the Act provided that one could own one firearm for self-defence, while for occasional hunting and sports one could have four firearms (these four would include the one for self-defence). If one had firearms in excess of these numbers one had to dispose of them by 30 June 2009. The Act made provision for compensation under specific circumstances as well as for the procedures that had to be followed and the possibility of receiving compensation when firearms needed to be disposed of.
Upon stakeholders’ request the Department extended the annual closing date for licensing from 31 December to 31 March. This would alleviate many of the problems experienced during the first year (31 December fell within a holiday period) of implementation.
Mr Jacobs said that the number of arms would be restricted. If a person had been a responsible firearm owner for a long time there was no reason to refuse that person a license, provided they possessed a competency certificate.
Mr Groenewald asked whether the Bill clearly indicated that collectables would not have to be made inoperable.
Mr Jacobs said that the Amendment Bill very clearly stated that only prohibited and restricted firearms would have to be made inoperable. The reason for this was very clear if one considered what type of firearms were being used in serious crimes. Although he did not have the actual figures at hand he doubted whether very many collectors collected assault-type firearms. He added that "most if not all" bona fide collectors were responsible.
Ms A Van Wyk (ANC) raised concerns about the admission of guilt fines. To her recollection the admission of guilt fines were included in the Act was because the courts had failed to fulfil their duties in terms of declaring people, who had made certain admissions of guilt, unfit to own firearms. Courts were reluctant to declare those who had admitted to acts of domestic violence unfit to own a firearm. She sought clarity on what would be considered minor offences in terms of Section 103 (a) and (b). Could one be sure that offences the court considered to be minor offences, would not impact on what the Act aimed to do in terms of confiscating the licenses of firearm-owners who threatened others?
Mr Jacobs explained that the process determining the unfitness of a person to own a firearm had been changed in the new version of the Act. The changes placed a greater obligation on courts to determine unfitness. He reminded the Committee that admission of guilt cases never came before the court. Problems were created if after an admission of guilt there were no administrative processes in terms of which a person could argue their case for why he or she was indeed fit to own a firearm.
He explained that domestic violence formed part of the separate criteria determining whether or not a person was fit to own a firearm. If domestic violence was involved a person would automatically be declared unfit to own a firearm.
Mr Jankielsohn wondered whether Commissioner Makibela could explain what the Department would do to improve the implementation of the legislation.
Commissioner Makibela said that the presentation indicated that there were no problems at the moment. The Department experienced problems when the process started because officials had not been trained for the task. Now that they have been trained there were no problems.
Mr Jankielsohn asked what the waiting period was between applying for a license and receiving it.
Commissioner Makibela explained that often applications contained many mistakes. These applications were then returned so that the correct information could be supplied. This took a lot of time.
Mr Jacobs added that the period it took to get re-licensed was not that important. The existing license would remain valid until 30 June 2009. It was important that one should apply for re-licensing within the stipulated timeframe.
Mr Meshoe (ACDP) said that the question had not been adequately responded to. He wondered whether the problems found on applications related to the applicant or the procedures followed by officials. He added that wanting to know how long it would take for your application to be processed was a valid request.
Mr Jacobs said that the previous weekend the Minister had a meeting with stakeholders and explained the importance of service delivery and having the licenses processed as soon as possible. A person had to apply before 30 June 2009. The five years preceding the closing date were a transitional period that would facilitate the successful implementation of the Act.
Commissioner Makibela said that it should take 6-8 weeks for a license to be issued.
Mr O Monareng (ANC) said that he was a collector and a hunter. The issues around property rights should be addressed. He agreed that people had the right to acquire property but reminded Members that the property should be within the scope allowed by the law. He said the new legislation would be introduced in order to regulate and control. One could not defend the right to property if that property would be used to cause disorder and anarchy.
Mr M Booi (ANC) observed that the argument revolved around interests. One used constitutionality as a scarecrow to investors. Hunters contributed to the economy. If these people were being scared by the possibility that their property rights or their constitutional rights would be infringed upon, it was a matter of concern. He wondered whether the Department had been challenged with regard to the constitutionality of the Act.
Mr Jacobs reminded the Committee that the South African Gun Owner’s Association (SAGA) and numerous other applicants had on 29 June 2004, on the eve of the implementation of the Act, brought an application to the High Court. The application was not successful. The Department was not aware of any present challenges in terms of the Constitution.
Mr S Ntuli (ANC) asked whether there was legislation that covered the mobility of arms. Mr Jacobs explained that the Act had a clear provision that stated that a firearm could be used by another person in the presence of the license holder. If one possessed a firearm for self-defence one was allowed to carry it. Similarly people who used their firearms for occasional hunting or for sport would be allowed to transport them. The Act was very clear on where a firearm may be used and for which purposes. Licenses were issued in accordance with these stipulations.
Mr Groenewald said that Section 137 of the Act provided for compensation to firearm owners who handed over their weapons. He had asked the Minister whether there would be any compensation for people who lost or had to dispose of their firearms due to the restrictions. The Minister had responded that there would be no compensation. He added that it would be the gun owner’s responsibility to get rid of his arms.
Mr Jacobs agreed that the Act made provision for compensation in specific circumstances. The Act never undertook to compensate persons who voluntarily decided to handover their firearms. No-one had received compensation. He said that if a person refused to hand over their weapons they would have to apply to keep their weapons. Since all existing licenses would still be valid until 30 June 2006, no one had been forced to hand over their weapons.
Mr Groenewald said that Mr Jacobs had indicated that if a person had proof that he or she had been a responsible firearm owner he or she would qualify for re-licensing. He did not think that this was clearly expressed in the Act. Some responsible firearm owners applied for licenses but then experienced problems.
Mr Jacobs replied that the Minister had advised the Department to consider the policy and the central files register carefully in order not to refuse licenses for no reason. A policy review would need to be done. Much had already been done in this regard since the process was set in motion a year and a half ago.
Mr Groenewald said that he was aware that there was a difference between people voluntarily submitting their arms and being forced to do so. He was specifically concerned about people losing firearms due to the new restrictions. He agreed that the police had not forced anyone to hand over their weapons but wondered why the SAPS had embarked on a media campaign threatening people with 25 years in prison if they failed to apply for their license within the period stipulated by the Act. Why did SAPS mislead the public at such a high cost?
Mr Jacobs said that an advertisement had been run for about ten days. The Department then decided that only the National Director of Public Prosecution could decide on prosecuting people. The Department then approached the National Director of Public Prosecutions and decided that it would not prosecute under the circumstances indicated by the advertisement. The Department had corrected the situation as soon as possible.
He further explained that the amnesty that was granted was part of a multifaceted approach, which included roadblocks (a large number of firearms were seized) and the voluntary handing-over of firearms (large numbers responded to this project).
He emphasised that the main focus of the Act was to reduce the number of firearms in the country. Many firearms used in crimes were stolen during farm attacks, attacks on police officers burglaries, etc. He pointed out that there had been cases where people did not even know that their firearms had been stolen. There were also a number of people who had no use for their firearms. The Department invited these people to hand over their firearms because these were the ones that could potentially get in the wrong hands. The Department had to use all methods available to address the "scourge of firearms" in South Africa. The control of firearms was a day-to-day operation.
Mr Jankielsohn said that the comments that he had made earlier were made in the context of compensation. The Minister had then replied that the Department had not budgeted for compensation at all. Various sources indicated that other countries that had tried to implement similar legislation had found it an extremely costly exercise. He wondered whether the Department had budgeted for the thorough implementation of the Act.
Mr Jacobs said that he was not surprised that the implementation of the Act was not mentioned in the budget for 2006/07. Implementation already started in 2004 and would have been addressed on the budget for that financial year.
Mr Jankielsohn requested that the designated firearms officers (DFOs) should be kept informed of developments in the implementation process. Much of the confusion on the ground resulted from the fact that officers themselves did not know what the Act entailed and thus could not offer assistance to the public.
The Chairperson said that while there were differences of opinion on the top-down migration of skills in the police service, Mr Jankielsohn’s statement indicated that he agreed that the skills at the top level were needed at the bottom levels. The Department had indicated that most of the station commissioners and junior police officers had been taken on training and were instructed to use their newly-acquired skills at their stations.
Mr Jacobs was aware that a number of communications about the process of the legislation had been sent to the DFOs. They were kept abreast of developments. A training session for people serving on the Firearms Appeal Board had taken place before the Board commenced its duties. He was satisfied that the Board was adequately equipped to perform its task.
The Chairperson thanked the Department for the presentation and the public representatives for their presence.
Adoption of the Committee’s Report on the SAPS Budget
The Chairperson said that the Deputy National Commissioner had responded to the Committee’s query regarding the distribution of the 11 000 new recruits: 30% of the new recruits were made up of detectives, and 95% of the remaining number were made up of officers deployed in the area of sector policing.
Mr Monareng moved for the adoption of the report with amendments.
Mr Jankielsohn said that he would like it to be minuted that the Democratic Alliance abstained from either supporting or not supporting the report.
The Chairperson said that since the majority ruled, the report was adopted.
The meeting was adjourned.
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