M J HOOD & ASSOCIATES
ATTORNEYS

In Association with Eugene Peyper - Conveyancer

PERSONAL SUBMISSION OF MARTIN JOHN HOOD

1. CREDENTIALS

1.1 Immigrated to South Africa in 1975.

1.2 Naturalised South African Citizen in 1991.

1.3 Renounced British citizenship 1995.

1.4 Lived in Botswana in 1976 - 1988.

1.5 Schooled in Zimbabwe in 1978 to 1982.

1.6 Rhodes University 1983 - 1987.

1.7 Obtained BA LLB.

1.8 Actively involved in student politics including student representative council and National Union of South African Students.

1.9 Admitted as practising attorney in 1990 (specialised in firearm law since 1993 onwards).

1.10 Bona fide hunter, sportsman and collector.

1.11 Member of following organisations:-

National Rifle Association America

Safari Club International

SA Wing Shooters Association

South African Arms and Ammunitions Collectors Association

Clay Target Shooting of South Africa

South African Gunowners Association

Counsel member National Firearms Forum

Legal advisor to numerous firearm associations.

2. TRAINING QUALIFICATIONS

2.1 Police reservist and police reservist firearm instructor.

2.2 No military training (conscientious objector).

2.3 NRA certified rifle, handgun and shotgun instructor.


3. PRESENTATION

General comments

3.1 I support the principle of reasonable firearm control through legislation.

3.2 The legislature needs to draw an distinction between the control of firearms and the reduction of:-

3.2.1 legal firearms; and

3.2.2 illegal firearms.

3.3 I am not here to threaten the legislature and I have no interest in the industry itself.

3.4 I am not lunatic and I have not recently escaped from the Valkenberg Lunatic Asylum.

After listening to and reading a number of the presentations the following is apparent.

3.5 Anti-gun organisations have adopted an emotional approach preconditioned by motion and ideology rather than fact.

3.5.1 The pro-firearm organisations have submitted independent research reference Professor John Lott concluding that more guns equals less crime.

3.5.2 Anti-gun organisations on the other hand such as Gun Free South Africa have commissioned research designed to substantiate their emotional view points:-

a) eg docket survey;

b) survey of house break-ins.

3.5.3 Even Government has not conducted proper research eg:-

a) Original estimate of illegal firearms four million, old Minister of Safety and Security estimates one million, new Minister of Safety and Security estimates five hundred thousand.

3.5.4 Government has concluded that largest source of illegal firearms is licenced gun owners which implies, that in coming to this conclusion they know that a number of unlicenced firearms coming from across our borders, which is patently ridiculous because if this were the case, such supplies could be cut off, interdicted, confiscated and destroyed.

3.6 The attitude of anti-gun organisations is that the constitution protects society as a whole is but individual rights must be sacrificed to protect and promote group rights.

3.7 However Bill of Right Sections 9 to 35 all deal with individual rights. Clearly constitution protects individuals. Anti-gun groups have failed to show any benefit to society by restricting firearms, in any presentation.

3.8 Very dangerous precedent to sacrifice individual rights at the expense of society as a whole - this has been done in the past and was used to justify apartheid.

3.9 Even members of the drafting team of the Secretariat have publically stated that minority rights must be sacrificed for the good of society - refer Barbara Holtman's letter to De Rebus, annexure "A". It also ignores multiplyer effect of firearms ownership.

3.10 Legislation must be fair, reasonable and easy to understand for there to be compliance. The FCB doesn't comply with these criteria.

3.11 Complexity will lead to law of unintended consequences - innocent noncompliance leading to criminality.

No meaningful data analysis

3.12 See fact book of Rob Chetty from Secretariat for Safety & Security eg 39 000 Astra firearms purchase and transferred in 1998.

3.13 Committee formed in April of 1988, at the suggestion of Dr. Bernie Fanaroff, one of the original sponsors of this Bill embodying representatives from:-

3.13.1 Government;

3.13.2 Anti-gun organisations;

3.13.3 Pro-gun organisations to collect, collate, analyse and agree on statistics.

3.14 This was never done and the Bill was drafted instead without consultation with the pro-gun organisations.

3.15 Significantly, no anti-gun organisation has complained about lack of consultation in this process.

Effective on Courts

3.16 Overreaching of court structures for minor offences.

3.16.1 Currently a case before the Constitutional Court by an accused claiming that delay in prosecution of his matter has led to a breach of his constitutional rights.

3.17 Creation of a new class of criminals who are not hardened criminals.

3.18 Diversion of state resources away from core police functions

3.19 SAPS have suggested privatisation of firearms registry - how can we reconcile this with court functions Bill grants to registry?.


4. GENERAL LEGAL IGNORANCE

Comments on presentations so far.

4.1 Ignorance of the Law eg belief that Section 8 of current Act is still in existence.

4.2 Act was amended in May of 1998 but never publicised by the Police.

4.3 Firearm organisations publicised it.

4.4 Has therefore led to many people innocently breaking the law and in some instances they have been criminalized.

4.5 Therefore, what is the budget for publicisation of the current Bill when it becomes law and what is the communication strategy to educate the public?

4.6 Ignorance of the statute is a justifiable excuse - S vs de Blom see annexure "B".

4.7 Creation of alternative administrative criminal judicial systems to exclusion of normal courts 0 see Section 34 of Constitution.

5. POLICE IGNORANCE

5.1 The police are not aware of what the current Act says - refer to Superintendent van Lill Sunday Times article annexure "C".

5.2 The police have doubts about constitutionality of Section 12 of the current Act yet similar provisions contained in the new Act.

5.3 Public proponents of Bill have no knowledge of legal procedures relating to how one obtains a licence and the law relating to ownership of firearms.


6. FOREIGN INTERVENTION

6.1 Foreign money use to fund the drafting of the Bill.

6.2 Importation of foreign concepts.

6.3 Ignorance of current local situation.


7. POLICE POWERS

7.1 Shortcomings in giving police greater powers:-

7.1 Lack of education and knowledge will lead to difficulties, interpretation and implementation of the provisions.

Cultural differences.

Understanding of reasonable suspicion and need to explain this to suspects.

Difficulty from a legal point of view in trying to define what is legal as opposed to defining what is illegal.

8. INFLUENCE OF DRUGS AND ALCOHOL ON CRIME

8.1 See annexure "D" being Nedcor ISS report on Medical Research Council research.

9. LEGAL PROBLEMS

9.1 Magistrates and prosecutors don't know current law.

9.2 This is because of various amendments and promulgation of regulations. The situation will be made worse by the Bill which is more complicated and at this stage does not have regulations.

9.3 Example of Magistrates not knowing the law:-

9.3.1 Section 12, failure to explain consequences of being declared unfit and the right to present reasons in opposition therefore.

9.3.2 Incorrect record keeping.

9.4 Lack of police personnel to implement similar enquiries in terms of Section 11 of the current Act.

9.5 We urge the Department of Justice to cost the implementation of the Bill from a court point of view and indicate whether the Bill can effectively be implemented.

9.6 Debunking the myth that all gun owners are white.

9.7 Legal problems with Bill from a constitutional point of view, see annexure "E".

10. STATISTICAL PROBLEMS

10.1 Analysis of 33 people who die by gun shot wounds per day.

10.2 Incorrect use of information by Central Firearms Registry.

10.3 Myth that 25 000 dangerous criminals have licenced firearms.

10.4 17% Of SAPS have criminal records or charges pending.

10.5 If you compare 17% of approximately 120 000 police officers to 2 5 00000 of licenced firearm owners with criminal convictions it shows that 1% of firearm owners have a criminal conviction and that the police therefore are 17 times more likely to have a criminal conviction than licenced firearm owner.

10.5.1 According to the fact booklet of Rob Chetty, the Police are twenty times more likely to loose their firearms than a civilian. Therefore using logic our Firearm Control Bill the first group of people that need to be disarmed to prevent losses of firearms to criminals are the police.

10.5.2 We have a confidential Cabinet memorandum that states the state has lost or is unable to account for 200 000 firearms which is far in excess of any firearm loss by civilians. Do the drafters of the legislation suggest that the state should be disarmed?

10.6 For this reason we must question the exemption of the police and the state from the provisions of the Bill.

11. CONCLUSIONS

11.1 The Bill introduces reverse onuses.

11.2 The Bill reintroduces a common purpose principle which has been ruled unlawful by the Appalled Division.

11.3 The Bill attempted to us a civil onus of proof which is a relaxation of the onus of proof to assist the police.

11.4 The Bill introduces the concept of group punishment.

11.5 This is indicative on behalf of the police that they can no longer fulfil proper policing functions and are losing control of crime. The police therefore need to shift the gold post in their favour by relaxing their responsibility of proving crimes and by doing so they are infringing upon the Bill of Rights.

12. PROPOSED SOLUTIONS

12.1 Simple and unambiguous legislation drafted by experts including those from the firearms community..

12.2 Legislation free of ideology, that contain practical solutions to reasonably control firearms.

12.3 Training of dedicated Prosecutors and Magistrates.

12.4 Increase overall skill level of police and train specialised police officials

12.5 Proper costing.

12.6 Information and educational campaigns.