NATIONAL FIREARM FORUM (NFF)

Introduction

The National Firearm Forum (NFF) is an umbrella organisation with over 30 member bodies. These bodies are all national associations in their own right with one common interest, the lawful use of firearms.

Our member bodies cover every possible field of interest. These include recreational and professional hunters, agricultural unions and game farmers, shooting sports bodies, the security industry, firearm instructors’ and gunowners’ associations, firearm dealers and manufacturers. In short almost every meaningful firearm body in South Africa.

The NFF was created specifically to represent the broader interests of licensed firearm owners and users and to provide Government with a large pool of specialised knowledge and expertise to assist in formulating sensible, effective firearm policy, regulations and legislation.

Unfortunately, despite numerous repeated offers and requests, this broad base of expertise was totally ignored in preparing this Bill. This is reflected in many of the clauses of this Bill. Clauses where we support the general intent but which are badly flawed in execution because of a total lack of technical expertise on the part of the drafters.

We must state clearly that the NFF, and all of its’ member bodies, strongly supports effective legislation to regulate lawful firearm ownership and eradicate and strictly punish the criminal misuse of firearms.

While we have great sympathy with the difficult task faced by the SAPS in combating violent crime, we cannot support this Bill in its’ present form. Indeed we believe that this Bill will achieve nothing other than limiting and criminalising the lawful activities of licensed firearm owners whilst misdirecting and squandering huge amounts of SAPS resources.

Concerns

We have endeavoured to provide this Committee with as much input and comment as possible. However this submission is by no means exhaustive due to the limited time available.

Our concerns can largely be divided into three areas.

1. Flawed conception

2. Problematic technical execution and implementation

3. Denigration and infringement of Rights

Apart from addressing these concerns we have also provided information that the committee may find informative and useful. We would welcome the opportunity to expand on this and provide any additional information and expertise that we have available.

1. Flawed conception

The publicly stated motivation for this Bill is the belief that licensed firearm ownership is a major contributor to violent crime. By reducing and restricting licensed firearm ownership it is hoped that there will be a reduction in criminal violence.

This is also based on the widely propagated myths that South Africa is a "heavily armed" society and that there is a direct link between firearm ownership and violent crime.

This is a demonstrably false presumption.

Accurate statistics for South Africa are difficult to obtain and the Secretariat for Safety & Security has made no attempt to gather more comprehensive data, nor have they apparently examined any of the wealth of information and research from overseas.

United Nations research

The UN Commission on Crime Prevention and Criminal Justice has undertaken an international survey on firearm regulation. The purpose of the study was to compare firearm ownership and regulation in various countries and to discover if there is any correlation between firearm ownership and violent crime.

No such correlation could be found.

From this study we can also see that the ratio of firearms ownership in South Africa is considerably lower than in many countries, none of which have a violent crime problem approaching that of South Africa.

COUNTRY

FIREARM OWNERS PER 100 000 POP.

% OF HOUSEHOLDS WITH FIREARMS

HOMICIDES PER

100 000 POP.

PERCENTAGE OF HOMICIDES WHERE FIREARMS WERE INVOLVED

ACCIDENTAL DEATH INVOLVING FIREARMS PER 100 000 POP.

AUSTRALIA

5860

16

2.40

23.33

0.11

BRAZIL

818

?

29.17

88.38

0.75

CANADA

10203

26

1.99

30.15

0.13

FINLAND

21539

50

3.25

26.77

0.12

GERMANY

12256

10

1.81

11.60

0.03

JAMAICA

648

?

31.60

57.69

0.12

NEW ZEALAND

11233

20

1.35

16.30

0.29

PHILIPPINES

529

?

16.89

21.37

?

SOUTH AFRICA

4341

5

64.64

41.20

0.05

SPAIN

6309

?

1.58

12.03

0.26

SWEDEN

9103

20

1.35

22.96

0.05

UK

1484

4

1.40

9.29

0.02

USA

?

41

8.95

69.72

0.58

ZAMBIA

?

?

10.74

50.00

0.02

This UN research clearly proves that there is no simplistic correlation between high rates of legal firearm ownership and violent crime involving firearms.

Indeed, this and similar research, suggests exactly the opposite. Every country in the world with high violent crime also has severely restricted firearm ownership.

USA Research

Considerable research has been conducted on firearms in the USA. The findings of this research are more conclusive as this research was conducted within the confines of a single country and society.

Within the USA one finds varying levels of control over the possession and use of firearms. In many cases these are controlled by state, city and county legislation. This offers some interesting comparisons.

US Department of Justice and FBI data is readily available comparing all major US cities. Both in respect of crime and firearm ownership. An examination of this data shows that those cities which restrict firearm ownership all have very high rates of violent crime whereas those cities with very low rates of violent crime all have very few, if any, restrictions on firearm ownership.

The most striking example of this is Washington DC. Washington DC has had a total handgun ban for 25 years yet it still has the highest homicide rate in the USA at ten times the national average and 30% higher than that of South Africa.

The majority of homicides in Washington DC involve handguns.

This makes an interesting comparison with other jurisdictions with similar socio-economic conditions. Richmond Virginia is located close to DC. It also has a similar social and economic profile. However because this area falls under the jurisdiction of the State of Virginia it has radically different and more liberal firearm laws.

If one accepts the argument that more firearms equals more crime then one would expect Richmond to have a higher violent crime rate than Washington DC proper.

This is not the case. Richmond, where firearms are freely available, has a homicide rate slightly below the national average and one tenth of that in Washington DC.

The Lott Report

The single largest research project in the field of firearms and crime was conducted by Professor John Lott while at the Law School at the University of Chicago. Lott is now teaching at Yale.

This is a summary of the findings, the entire report is included in our written submissions.

This analysis is further confirmed by the available South African data. Between 1992 and 1999 the number of licensed firearms in South Africa increased from 2.1 million to 3.6 million. During that period murder decreased by 7.3%, murder of SAPS officers by 10.3% and attempted murder decreased by 7.8%.

SADC Research

Some research has been conducted into firearm ownership in the neighbouring SADC countries. Although this research is flawed and incomplete it is of some interest to examine the situation in our neighbouring countries.

This research and an analysis thereof are included in our written submissions.

The degree of regulation of firearms within SADC ranges from very liberal to total prohibition of firearms. A comparison of these countries once again totally disproves the notion that there is any correlation between licensed firearm ownership and violent crime. Again the indicators are actually exactly the opposite.

Zimbabwe has the most liberal firearm legislation within SADC. Essentially Zimbabwe has "shall issue" licensing. In effect this means that a licence must be granted for a firearm unless the State can prove good reason for refusing such a licence.

There are also no restrictions on the type and number of firearms that may be possessed. It is particularly interesting to note that the government of Zimbabwe has distributed large numbers of military automatic rifles to its’ citizens, mostly subsistence farmers. Tens of thousands of these military style rifles have been freely distributed without problem or abuse.

Zimbabwe does not maintain a central firearm register as South Africa does. This makes it impossible to give an exact number of firearms licensed in Zimbabwe. However the official estimates indicate that Zimbabwe has a higher ratio of firearm ownership per capita than South Africa.

The data also clearly shows that Zimbabwe does not have a serious violent crime problem.

Zimbabwe is a useful comparison as it has similar socio-economic problems and has also undergone political change and a period of armed struggle.

The other country in SADC that has a high ratio of firearm ownership is Namibia. Again in many ways Namibia has a similar history and make up to South Africa.

Namibia is currently undergoing a process of creating/updating a national firearm register. Final figures are not yet available but again the official estimates suggest that Namibia has a similar, and perhaps higher, per capita ratio of licensed firearm ownership.

Namibia also has a low level of violent crime.

Namibia has very liberal firearm laws with one exception; it imposes the types of arbitrary numerical limits proposed in this Bill. It should be noted that the imposition of these limits in Namibia had absolutely no effect on crime rates.

It should also be noted that to avoid economic damage to the farming/hunting sectors hunters and sportsmen are exempted from such limits in Namibia.

On the other end of the scale, the SADC country with the strictest firearm legislation is Swaziland. Firearms for protection are effectively banned and even hunting firearms are severely restricted.

Here we must note that Swaziland has by far the highest violent crime and murder rate within SADC at 25% higher than ours.

Failed Attempts

In preparing this Bill the Secretariat received input and assistance from various countries such as the UK and Canada.

Although happy to accept this advice the Secretariat has neglected to examine the success, or rather lack of success, such measures have had in these countries.

In the aftermath of the Dunblane shooting in the UK, the government there banned the possession of handguns. These handguns were confiscated at a cost of some 300 million pounds.

In the two years subsequent to the ban violent crime involving firearms has increased considerably. This has led to the UK government declaring that the handgun ban was never intended nor expected to reduce violent crime or the availability of firearms to criminals.

A similar situation has arisen in Australia. Australia banned and confiscated some 650 000 rifles and shotguns of the same types that will become restricted under this Bill.

The net result? Hundreds of millions of dollars spent in compensation and a 37% rise in violent crime involving firearms in the first year after implementation.

All of this proves once again that removing firearms from licensed owners cannot be expected to have any positive impact whatsoever on crime.

Papua New Guinea

Papua New Guinea is perhaps the most striking example of the failure of gun control.

PNG is historically a volatile society with considerable violent crime.

Under the influence and pressure of Australia PNG passed legislation banning the use of firearms for self defence and prohibiting certain categories of firearms. Within months the rate of armed crime in PNG had tripled. This is a classic example of violent career criminals taking advantage of the disarmament of their law abiding victims.

What makes PNG such an interesting example however is the fact that this trend was reversed.

Following an uproar from the public and opposition parties the restrictive firearm legislation was repealed. The effects were almost immediate. As the citizens once again started carrying and using firearms for protection the violent crime rate rapidly dropped back to the previous levels.

South African Research and Data

Here again no attempt has been made to undertake meaningful research and accurate data is simply not available.

It would be reasonable to expect that decisions that directly affect millions of South African citizens would be based on a sound basis of reasoned fact. This is not the case. This Bill is based entirely on supposition.

There are three possible areas of concern regarding private licensed firearm ownership.

  1. Accidental deaths involving firearms

The Central Statistical Service no longer maintains records of accidental death involving firearms. They stopped recording this data in 1993 because of the very low incidence. Examining the data available prior to this we find a fairly consistent number of incidents. Typically this is between 20 and 30 per year. Figures released by the Secretariat of Safety and Security indicate only 6 accidental firearm deaths in 1998.

While every single death is tragic and a matter of concern it must be obvious that accidental firearm deaths are rare and cannot be considered a major problem for society as a whole. This should also be viewed in perspective with other causes of accidental death.

In 1992 there were 22 accidental firearm deaths. In the same year the following other accidental deaths were recorded.

Killed by lightning: 113

Choking on food: 257

Drowning: 755

Accidental falls: 615

Accidental poisoning: 371

From this we can see that South Africans were 500% more likely to be killed by lightning than killed in a firearm accident.

2. Violent crimes committed by licensed firearm owners

Another reasonable area of concern would be violent crime committed by licensed firearm owners.

Again no data is available to quantify this.

There have been statements from the SAPS, including previous Commissioner Fivas, that there is very little violent crime committed by licensed firearm owners. It was stated that this problem was "statistically insignificant" and an unsubstantiated figure of less than one half of one percent of firearm crimes was attributed to licensed firearm owners.

We must stress the unsubstantiated as, despite numerous requests, we have been unable to obtain any data from the Secretariat to quantify these crimes.

The only indicator that we have available is the number of declarations of unfitness. Under the existing legislation conviction for any serious offence results in the person being declared unfit to possess firearms. There have been very few such declarations.

This supports the various SAPS statements that very few violent crimes are committed by licensed firearm holders.

3. Loss of licensed firearms

The loss of licensed firearms and there subsequent illegal misuse by criminals is a matter of great concern and has been declared as being the principal motivation for restricting licensed firearm ownership.

While we certainly agree that this issue must be addressed it is important that this be done with due consideration of the facts.

Between 1994 and 1998 an average of 19 881 firearms were reported stolen and 2 656 lost annually by licensed owners. The SAPS lost a smaller but proportionally much higher number and no data is available for firearms lost by the SANDF etc.

We should strive toward the total elimination of firearms being lost but we also need to examine these figures in context.

First we must clearly understand that it is already a serious offence to negligently lose a firearm or to fail to take the proper measures for its’ safekeeping. Around 1% of firearms reported stolen result in prosecution for negligence. This must indicate that the vast majority of firearms that are stolen do not involve negligence on the part of the owner.

Secondly we should look at the number of licensed firearms in circulation and what proportion of these are stolen annually. Taking these figures we find that 0.5% of licensed firearms are stolen every year and only 0.01% of licensed firearms are lost or stolen through negligence. We believe this figure would be much lower if licensed firearms stolen from the security industry were to be excluded.

While we strongly support measures to enforce proper safekeeping of firearms and the criminal prosecution of those who fail to do so, we fail to see the logic in restricting and disarming millions of citizens as an attempt to reduce the already tiny percentage of firearms lost negligently.

It should also be noted that this flawed logic has not been applied to the SAPS. Again accurate data has not been collected and made available but, according to statements made in Parliament by previous Minister Mufamadi, during the same time period over 12 000 firearms were lost or stolen from the SAPS.

On this basis an SAPS member is between 20 and 30 times more likely to lose a firearm than a licensed civilian owner.

In the debate on firearm theft we should never lose sight of the real issue. The real issue is that there is a small number of violent career criminals in our society, perhaps 30 000. They and their criminal activities are actually the problem.

Previous Government estimates suggested that there is a pool of 4 000 000 illegal firearms in South Africa. More recent estimates put this number at 500 000.

The precise number is actually immaterial to the core problem. We have a small number of armed violent criminals. They have access to illegal firearms, from whatever source, and will always have access to illegal firearms. The immediate confiscation of every single licensed firearm in the country would not change this nor disarm a single criminal. One need only look at countries that do have prohibition of firearms to confirm this.

Authorities in Britain, Australia and Japan have all recently made statements that despite their prohibitions on firearms they are unable to restrict the flow of illegal firearms to criminals. This is particularly interesting in the case of Japan where firearms have been banned since 1758.

There can be absolutely no reasonable expectation that disarming citizens will in any way deny that small core group of career criminals access to firearms.

Our own recent history confirms this. Under apartheid the majority of South Africans were denied access to licensed firearms so tens of thousands of citizens simply resorted to unlicensed firearms despite all efforts to prevent this.

In our opinion the entire foundation of this Bill is based on unfounded and flawed assumptions. This should have been immediately apparent had any serious research been undertaken and considered objectively.

2. Problematic technical execution and implementation

This Bill contains many technical errors. These have been largely caused by a total lack of technical expertise regarding firearms and their use on the part of the drafters and the lack of consultation with those groups that do have the necessary expertise.

We have prepared a detailed technical comment on the Bill. It identifies over 100 errors and problems. We must stress that these are not areas of policy where we disagree with the intent of the drafters but are instead mistakes and flaws in the drafting.

We do not have sufficient time to cover all of these points here. Some simple examples would be;

The Bill prohibits anything of a calibre larger than 20mm. This may appear reasonable, despite not a single crime ever having been committed with any such firearm. However this restriction unintentionally outlaws some hunting rifles and shotguns but most importantly it bans non-lethal firearms. These non-lethal firearms fire large rubber bullets and are widely used by the security industry. If they are banned then these people will be forced to use other, lethal, firearms. This is clearly not desirable nor the intent of the drafters.

Similarly there is a prohibition on military rockets, grenades etc. and anything used to propel them. Again this is sensible and reasonable but the wording is flawed. As it stands this clause would outlaw the normal gunpowder used in all ammunition. It would also ban shotgun ammunition and many types of hunting rifle ammunition as these are commonly used to propel grenades etc in military use.

The Bill also states that a licence for hunting or sport shooting may only be issued to someone actively participating in these activities. Again this is badly worded. It is illegal to borrow someone else’s firearm and it is impossible to participate without a firearm but one cannot obtain a firearm unless one is participating. Clearly the wording must be changed.

During the parliamentary recess we were eventually given the opportunity to discuss these issues with the drafters. They have agreed with us on almost every point we have raised and concede that from a purely technical standpoint the Bill needs to be rewritten.

We appeal to this committee, that from a purely technical standpoint, that this Bill must be referred back to the drafters to be rewritten before it can be approved.

These problems are compounded by the general approach taken by the drafters. In general principle Law should determine and prescribe the unacceptable. In other words, X, Y and Z are unacceptable to society and are illegal.

However in many parts of this legislation the drafters have taken the opposite approach. They have attempted to list the lawful uses of firearms and declared all other uses as being illegal. This is highly problematic as the drafters cannot possibly be aware of every single type of lawful use and thus exclude and criminalize perfectly legitimate activities.

A classic example of this is that the Bill does not allow for purely recreational shooting. This is a hugely popular pastime but no provision is made for this. This is not to be confused with occasional participation in sport as allowed by the Bill.

This type of oversight and shortcoming is common throughout the Bill and will have severe implications.

If it is felt that certain things should not be allowed then they should simply be prescribed in the Bill and all other legitimate activities could then continue without a need to specifically allow them in the Bill.

A similar confusing and inefficient approach has been taken in the attempt to classify types of firearm by their intended use. The Bill clearly reflects that the drafters have greater concern for certain types of firearm over others.

If certain categories of firearm should require greater motivation and be more controlled than others. Then in order to do this the emphasis must be placed on the type of weapon and not on the declared use.

A schedule of types of firearm should be created which clearly determines the degree of restriction / control over that type of firearm and the requirements to license such a firearm. Once these requirements are met and a licence has been issued then that firearm should be allowed to be used for any lawful purpose.

This is the approach that has been taken in all countries that differentiate between different categories of firearms.

Those firearms that are not deemed to be especially problematic should be recognised as such while other types that are an area of concern should be subjected to stricter controls and vetting procedures regardless of the use of the firearm.

Implementation

No proper study has been undertaken into the resources required to implement this Bill.

It has been suggested that the necessary studies will be conducted in the near future. It is a matter of great concern that new legislation could be approved before it has been established if the SAPS has the necessary resources available for its’ successful implementation. Particularly in light of the fact that the primary problem with existing legislation is a lack of enforcement and a shortage of resources to meet the obligations of the current Act.

Even the briefest examination of this Bill clearly shows that there will be a huge increase in manpower and other resources required to administer this new system.

Currently the SAPS, and the Central Firearm Register (CFR) in particular, simply do not have the resources to properly manage the existing +/- 180 000 licence applications per year.

Under the system proposed under this Bill each application will require vastly more processing. The proposed system of competency certification will also more than double the existing workload.

An entirely new and massive workload will be created with the annual reports of the activities of every hunter, collector and sportsperson.

Added to this will be the requirement to process periodic licence renewals. There are currently around 4 million licences in circulation. These will have to be renewed periodically. Even if one accepts an average renewal period of every 5 years then this will still entail processing almost one million additional licences every year.

The CFR cannot adequately cope with the existing 180 000 applications. How then can they be expected to cope with 1.1 million? To compound this workload each new application will require at least four times the amount of functions and processing.

This workload must be put in perspective and clearly understood. Assuming 240 working days of 8 hours per year and 1.2 million applications / renewals then we find that this will require the CFR to consider, vet, approve and issue 10 licences every minute of every day.

To adequately meet the new obligations will require at least a 4000% increase in capacity. New information management systems may well improve the efficiency of the register but not to this magnitude.

An additional heavy workload will be placed on the SAPS officials at station level. Even if there is only one or two designated firearm officers per station this will require literally thousands of police officers with specialised training and skills.

It is absolutely vital that thorough studies be completed and presented to this Committee before this Bill can be seriously considered. Creating new duties and obligations for an already overburdened and under resourced SAPS will at best lead to legislation that is simply impossible to enforce. At worst it could well lead to the total collapse of the firearm licensing system.

It is particularly ironic that the drafters of this Bill have received considerable input and support from Canada.

Canada is the only country in the world that even attempts to maintain a firearm register similar to our existing system and is far simpler than that proposed in this Bill.

To be blunt, the Canadian register is a disaster. It is designed to have a workload of around 5% of our proposed system but it has failed to meet even this simple target. It was originally budgeted to cost no more than $85 million but has to date cost over $400 million and now employs over 1700 civilians and 400 police officers.

A complete analysis of the Canadian experience is attached as an annexure.

The lessons are clear, we must guard against approving any new system until a comprehensive study of all costs and benefits is completed.

As this committee must be aware, legislation, which is not enforced or at best selectively enforced, can often lead to contempt for the Law and a culture of non compliance. Such a possibility must be avoided at all costs. There is a very real risk of non compliance with this Bill. Should even 5% of licence holders (170 000 people) fail to comply then the situation becomes untenable and the Bill unenforceable.

Even if the additional resources can be found we must seriously consider the cost to benefit ratio and determine if such huge resources could not be better directed to other more serious problems.

We are not aware of the Firearm Register having ever solved a single crime.

3. Denigration and infringement of rights

The third major area of concern with this Bill is the infringement of rights.

Several million South African citizens own licensed firearms and will thus fall directly under the ambit of this legislation.

This Bill will severely limit the freedoms and rights of these millions of citizens. We address this more fully in the supporting documents included.

While we accept that all rights may be limited this must be justifiable. Any legislation that intrudes on and limits the freedoms and rights of so many citizens must be proven to have a corresponding and over riding benefit to society as a whole.

We submit that this Bill holds absolutely no benefits at all for society and will have no impact on its’ stated target of violent crime.

In addition to the freedom and rights of licensed firearm owners this Bill also has severe implications for the rights of all South Africans.

The most important of these must be the reversal of the assumption of innocence.

The various presumptions in this Bill are clearly contrary to the Constitution. The Constitutional Court has already ruled against similar presumptions. It would appear that the inclusion of these presumptions in the Bill is a specific attempt to circumvent the Constitutional Court ruling which struck them from the previous Act.

At the insistence of the State Law Advisers the drafters have rewritten some of these provisions. This redrafting has made no change to the actual effect of the Bill. Instead of simply stating that a person is presumed to be guilty and must prove innocence we now see a requirement that the person must lead evidence to rebut an accusation and establish innocence beyond a reasonable doubt.

Nothing has changed here other than the wording. The intent and effect are exactly the same. All persons have the right to remain silent and to be presumed innocent. It is the very basis of our legal system that the State must prove guilt beyond a reasonable doubt.

We hope and trust that this Committee will not approve legislation in such blatant contravention of the Constitution and Constitutional Court rulings.

Another worrying infringement of rights in this Bill is the creation of administrative offences.

Comparisons have been drawn between these administrative offences and the system of traffic fines. This comparison is invalid and spurious.

The proposed system of administrative offences is nothing other than a clear attempt to circumvent the courts and our entire legal system, indeed the very basis of our Law.

In the system used in traffic offences predetermined offences are punished by issuing prescribed fines. If the accused wishes he or she may accept this penalty and submit to the penalty without further jeopardy. If the accused does not accept the penalty the matter is then dealt with within the courts with due process.

Under the proposed system of administrative offences the SAPS will act as accuser, prosecutor and judge. The SAPS will have the power to impose severe penalties far beyond that granted to many of our courts.

Even should the accused choose to accept such an administrative penalty the accused is still exposed to further jeopardy in that he or she may still be prosecuted again in the courts for the same offence. Or punished further by other action such as refusal to renew licences etc.

There is a startling degree of contempt for the courts in these proposals as evidenced by the provision that any penalty imposed as an administrative offence will stand even if a court of law finds in favour of the accused.

We cannot support a system whereby the SAPS may prosecute and penalise a person who has been found to be innocent in the courts.

The proper place for any prosecution is in a court of law. The very concept of tribunals managed and staffed entirely by police brings back frightening visions of the abuses of power from South Africa’s dark past.

An overburdened court system cannot be allowed to excuse such a blatant denigration of rights. If the drafters are so concerned about reducing workload in the courts they should instead revisit the dozens of pointless and petty transgressions that will inevitably end up in court.

Primary Issues

Given the complexity and poor drafting standard of this Bill the time period allotted for comments is insufficient for a truly detailed and comprehensive response. These comments are by no means exhaustive and do not address every issue of concern with this Bill.

However we have endeavoured to identify some of the primary issues in this Bill as follows. Further, shorter but specific comments on the Act are included as an annexure to these submissions.

Definitions

Many of the definitions contained in the Bill are either inadequate, problematic, technically flawed or in some cases totally absent. Many of these simply reflect the lack of technical expertise in this field on the part of the drafters and should be corrected through a process of consultation with persons and organisations that do have the necessary technical expertise.

Amongst these are;

Airgun

The move to deregulate airguns is welcomed and supported by the NFF as this would bring South Africa back into line with worldwide norms.

In the overwhelming majority of the world airguns are not considered to be firearms. This was the case in South Africa until the late 70’s. Prior to that time airguns were not considered firearms and there was absolutely no involvement or use of airguns in serious crime.

This situation was changed during the 70’s for political reasons. It was the policy of government at that time to deny the majority of South Africans access to firearms along racial lines. The then government believed it was necessary to change the status of airguns to prevent people who were effectively prohibited from owning firearms obtaining airguns, training with them and in so doing obtaining skills and competence which could then be applied to real firearms.

This Bill proposes deregulating some air rifles depending on energy. The disadvantage of accepting a maximum energy level is in practical law enforcement. The police officials on the ground will not have the scientific equipment required to measure and calculate energy of a particular airgun. This would make this provision difficult to enforce.

A far simpler solution would be to differentiate purely on calibre. Airguns are made in various calibres, most commonly 4.5mm and 5.5mm, with a few very rare and often historical larger calibres.

The vast majority of airguns in 4.5mm calibre would fall below the limit whilst the majority of larger calibres would be over this limit.

From a purely simplicity of enforcement point of view we would recommend that calibre be the defining factor. All 4.5mm air rifles would not be treated as firearms while all larger calibres would be. This would hugely simplify the entire issue as even a layman could readily establish calibre and thus the need or not for the airgun to be licensed.

An even simpler alternative would be to simply deregulate all airguns. They should not be a matter of great concern as they have never been used in serious crime. This would also have a benefit to the CFR as it would remove a large but unnecessary burden for them.

Ammunition

The given definition of ammunition includes primers and propellant powder. This is problematic.

Propellant is a granulated powder and is sold and used by mass. It is impossible to quantify numerically as proposed here. A standard container of propellant weighs 500g, that 500g consists of tens of thousands of granules. By this definition each granule could be deemed to be ammunition, making a mockery of any numerical limits.

The possession and use of propellant is already properly controlled in terms of the Explosives Act, which is where it belongs. All references to propellant in this Bill should be removed and left to be controlled by the Explosives Act, which has always been the case in South Africa.

Primers should also be excluded from the definition of ammunition. Primers are a necessary component in modern centrefire ammunition but are only functional once inserted into a cartridge case. Prior to that they cannot be used to discharge a bullet from a firearm or indeed be used in anyway in a firearm.

The definition of ammunition should be changed to the standard internationally recognised definition of complete cartridges and not include components which are useless until assembled into complete ammunition.

Firearm

The proposed definition of firearm is also problematic.

Included in the definition is any device which is not a firearm but which can be readily altered to be a firearm. Readily altered is a subjective opinion that is very difficult to define.

This could lead to confusion that could easily criminalize the possession of many objects.

There are numerous possible examples of this. A legally deactivated firearm might subjectively be deemed to be readily alterable.

This definition would also include many, perfectly innocent, normal domestic objects. An example of this is standard 20mm water pipe. By screwing a cap on the end of such a pipe and adding a normal nail one can readily create a 12 bore shotgun within minutes.

This definition is far too wide and open to confusion and abuse. If an object is not a firearm and is not capable of being used as one in its current form then it simply is not a firearm and should not be treated as such. It is only when it becomes a firearm that it can and should be treated as a firearm and prosecuted as such.

The definition of firearm also includes any barrel, frame or receiver of a device.

Here there are two problems. Firstly the ridiculous and subjective situation that innocuous objects such as water pipe would be deemed to be restricted parts of a firearm without any intent to use them as such.

Secondly this is problematic with real parts of firearms and is a total reversal of current sensible firearm legislation.

Under current South African law the barrel is deemed to be the licensed part of the firearm. This is eminently sensible and enforceable. There is also an additional restriction on selling or providing any major firearm part to a person who does not possess a licence for a firearm that part can be used in.

A practical example of this is with hunting rifles. The action of a rifle is incapable of being used as a firearm until it has a barrel fitted to it. Many of the most sought after actions are scarce and not readily available. It is quite common practice for a person to purchase a barrel in a given calibre, which requires obtaining a licence. The person then acquires the action separately and has them assembled into a rifle.

In current practice this is controlled by virtue of the barrel requiring a licence. Under the proposed Bill both the action and barrel would require a licence this would then lead to the situation whereby the rifle, once assembled, is one firearm but with two different licences.

We would suggest that the current status of the barrel being the licensed part of the firearm be retained. If additional control over frames, actions etc are required then we would suggest that the current prohibition on providing frames and actions be amended to prohibit possession unless the person is the holder of a valid firearm licence for a firearm of that type.

Possession

Possession is not included in the definitions.

It is absolutely vital that possession be fully defined. In legal terms there must be an intent to possess as well as the physical possession of an item. However in this Bill it would appear that a broader definition is given to the term possess. In particular the presumptions assume a person to be in possession by virtue of merely having been in the vicinity of where a firearm is found.

This sweeping definition of possession gives rise to many problems. For instance a family member living in the family home would be deemed to be in illegal possession simply because he or she resides in a home where licensed firearms are stored.

Similarly the proposed prohibition of being in possession of a firearm whilst under the influence of alcohol or a narcotic substance. In this sense a person could be deemed to be in possession of their licensed firearm even if the firearm was safely locked away in a safe. This effectively would prohibit any person consuming any amount of alcohol or even taking prescribed medication in any household containing licensed firearms. In this particular instance current legislation prohibits the handling of a firearm whilst under the influence. We suggest that this restriction be retained but that possession be very carefully defined to prevent misinterpretation and unnecessary criminalisation of lawful responsible behaviour.

Antique Firearm

This definition of antique firearm is clearly intended to describe muzzle loading firearms and to deregulate their ownership.

This step is very welcome and rational. We are not aware of a single case of any such firearm being used to commit a crime anywhere in the world in the last 75 years. Such firearms have a considerable historical and nostalgic interest to specific interest groups but in practical terms they are totally obsolete and should not be considered any form of danger to society.

However this recognition and deregulation should be applied to all firearms of this type, i.e. muzzle loading firearms, regardless of date of manufacture.

It is often very difficult to exactly determine the date of manufacture of old firearms. It would seem unreasonable and could possibly lead to complications if two identical firearms, one made in 1869 and the other in 1870, were treated differently under the law.

The important issue is the type and function of the firearm, not the exact date of manufacture. If we recognise that muzzle loading firearms are not problematic then they should all be deregulated, regardless of when they were made.

Enthusiasts of this type of firearm also often use exact replicas of the originals. These replicas are of modern manufacture but are precisely the same as the originals in every respect of design, appearance and function. Indeed in many cases these replicas would fool many firearm experts into believing they were the original.

We would suggest that the reference to date of manufacture be removed from this definition and that the proposed deregulation apply to all firearms of this type regardless of date of manufacture.

Vetting and approval of the individual

This Bill goes some way toward recognising the importance of vetting and approving the individual as a firearm owner.

We strongly support this concept and believe the emphasis must be placed firmly on the suitability of the firearm owner.

We believe this Bill still places too much emphasis on the type and number of firearms possessed rather than on the person. Once a person has been vetted as suitable and meets the necessary safe keeping requirements then the exact number and even type of firearms owned should be very much a secondary issue.

Licensing firearms for specific uses

This Bill unsuccessfully attempts to classify firearms and licence them by specific use.

We believe this is a flawed approach.

We accept that certain types and categories of firearms may be of greater or lesser concern to government. With that in mind firearms should be classified on what type of firearm they are and not on their usage. This is the approach followed in most countries such as the UK, Australia, Canada and New Zealand. Indeed this approach is almost universal in those countries that have restrictions on firearm possession.

If the issue of concern is the type of firearm then this should be addressed directly. Where a specific type of firearm is perceived to be more or less problematic then the requirements and conditions to possess such a firearm can be adjusted where necessary.

This Bill already concedes this concept by deregulating airguns and antique firearms and attempting to restrict other categories of firearms. However these measures are mixed in with the concept of licensing usage.

We suggest that a schedule of firearms by type be created which also stipulates the conditions and requirements for owning that category of firearm.

This would properly address the concerns of government whilst avoiding the confusion of trying to classify every possible lawful use for a firearm and then attempting to stipulate which firearms may be used for that purpose, which is the approach taken in this Bill.

Such an approach would also avoid the untenable situation whereby a properly licensed firearm may only be used for a specific purpose. The Bill cannot possibly describe and specify every single lawful use.

An example would be where a firearm collector wishes to hunt with one of his historical firearms. The Bill makes provision for a collector to shoot such a firearm on a shooting range but lawfully hunting with that same firearm would be a serious criminal offence. This is presumably an oversight on the part of the drafters but such oversights would constantly arise and have serious implications.

The approach taken in this Bill would be unworkable and would need constant revision as new legitimate uses come to the attention of the drafters.

Rather than attempt to specify every single use of a specific firearm the Bill should allow for a licensed firearm to be used for any lawful purpose. Again the important function should be to vet the suitability of the person to own that category of firearm.

If it were felt that certain categories of firearms should not be used for a specific purpose then it would be easier and more efficient to simply prohibit certain uses for particular types of firearms. Although here again we must state that we can see no purpose in restricting the lawful use of a licensed firearm.

This concept also has unintended consequences. Limiting the lawful use of firearms will lead to people buying additional firearms which can be licensed for each separate lawful use.

Administration of special categories

The existing legislation recognises certain special categories of persons such as collectors, hunters and sportspersons.

The proposed Bill places further restrictions on these categories and places a huge administrative burden on them and their respective associations as well as the SAPS who must administer this system.

We believe this additional administration is totally misdirected. We are not aware of a single person from any of these categories using their firearms in violent crime. These special categories were created in recognition of the fact that these persons and their activities were neither problematic nor contributed to the problem of crime.

This system has been successful since its’ creation. We do not believe any further restrictions on these persons are necessary or justified.

We must note that there are large numbers of sportspersons and hunters who are not currently registered in these special categories. This is simply because there was no benefit in so doing unless applying for additional firearm licences.

Under the proposed Bill all hunters, collectors and sportspersons will be forced to register if they wish to retain their existing firearm licences. This will lead to tens of thousands of people registering in these categories. Of concern here are statements from the drafters and the Secretariat that any increase in registration in these categories will be treated with suspicion and acted against. Such an increase is predictable and to be expected and should not be a reason for further restriction.

Safekeeping of Ammunition

The proposed Bill will bring ammunition under the same safekeeping requirements as firearms.

This is problematic in two ways, practicality and safety.

Ammunition is not a safety risk when stored normally. However when stored in the prescribed steel safe it becomes an immediate safety hazard. Enclosing ammunition in a safe creates the risk of explosion.

This is compounded by including propellants under the definition of ammunition. In terms of the Explosive Act it would actually be illegal to store propellants in a safe.

Storing ammunition in a firearm safe also has practical implications particularly in the case of shotgun ammunition but also in others. One month’s supply of ammunition for a serious shotgunner takes up a large amount of space and volume that would be several times larger than a typical safe that could contain six firearms.

Admittedly this would only apply to a few thousand firearm owners. However we would suggest that this is all the more reason why such a requirement is totally unnecessary.

There is also no evidence to suggest that stolen ammunition is a major problem. Most certainly not in the case of sporting ammunition.

We would suggest that ammunition be excluded from this safekeeping requirement. Alternatively this requirement should only be applied to metallic centrefire ammunition.

Arbitrary numerical limits

As previously stated the NFF strongly supports improved vetting of the suitability of the person to possess firearms. If certain categories of firearms are deemed to be of a greater concern then even greater attention should be paid to approving the person’s suitability to possess such firearms. This would place the emphasis in the proper place, the person.

We do not support the imposition of arbitrary numerical limits. Each and every application should be properly considered by the registrar and approved subject to his discretion.

If there is concern of the possible theft of large numbers of firearms from a single person then it would be reasonable to more carefully consider and enforce the safe keeping facilities of that person.

The proposed limits on firearms for self protection again show a lack of understanding of firearms. These limits could also have undesirable consequences contrary to the intent of the Bill.

Handguns come in different physical sizes. Typically the smaller in size they are the less effective they are. Because of this many people own more than one handgun for protection, a small one for concealability and a larger one which can be used in a higher perceived threat area where ease of concealment must be sacrificed.

Limiting this choice to a single handgun will lead to many people resorting to carry larger less concealable firearms at all times. This is not a desirable situation.

The other alternative in this Bill is to resort to a shotgun. Shotguns have valid defensive applications but in many cases these needs could best be met by using a different handgun. We believe allowing the use of a second handgun would be a better solution than forcing the escalation to a shotgun.

The suggested limit of four firearms per person is particularly objectionable and has no justifiable basis. There are only a few thousand South Africans who own more than four licensed firearms. Most of them fall into the categories of hunter, collector or sportsperson who are exempted from this limit. This limit would then only serve to restrict a small number of enthusiasts who are not competitive sportspersons or dedicated hunters.

The Secretariat and SAPS members have repeatedly stated that such enthusiasts play no part in criminal activities and are not problematic. In that case we can see no purpose in imposing an absolute limit on their activities.

We believe the registrar must have the discretion to approve any properly motivated application. We accept that it would be reasonable for the Registrar to more closely scrutinise the motivation and safe keeping facilities of multiple firearm owners but cannot support arbitrary numerical limits.

The proposed limits on ammunition are even more problematic and nonsensical.

We must assume that the intention of these limits is to reduce the availability of ammunition for use in violent crime. Although a noble goal this notion fails every test of logic.

Again it is obvious that no proper consideration and thought has been applied in this issue, nor has any research been conducted to indicate any particular problem.

First we should examine the amount of ammunition used in crime. Criminal activity consumes very small quantities of ammunition. Our estimate would be in the order of perhaps 60 000 rounds of ammunition per year. A typical armed robber or hijacker may only fire one or two shots per year.

We would submit that it is futile to attempt to interdict such small quantities of ammunition. Particularly in light of the fact that 90% of all armed crime utilises the standard ammunition calibres of the SAPS and SANDF and how lax both organisations have been proven to be in the control of their firearms and ammunition.

In comparison the millions of licensed firearm owners lawfully consume tens of millions of rounds of ammunition annually.

Limiting the amount of ammunition a licensed owner may purchase is also contradictory of the desire to see these persons become more competent. The proposed limits of 200 rounds and 2400 rounds per year would severely restrict those persons who do wish to practice more often and become truly proficient with their firearms.

The concept of an annual limit is especially pointless. An annual limit would have no impact on the amount of ammunition that could possibly be stolen from any one person so this is an illogical limit. Annual limits would only be sensible if it was believed that criminals were using licensed firearms and buying licensed ammunition for use in crime. This argument falls short in two areas. Firstly it is generally conceded that very few licensed firearms are used in crime. Secondly if this were the case a limit of 2400 rounds would be far in excess of the requirements of any criminal.

Instead this limit serves only to restrict the law abiding. It will also be hugely difficult to enforce and to comply with.

It might be reasonably expected that a person should know exactly how many rounds of ammunition they have in their possession at any one time. It is much less reasonable for a person to be able to recall exactly how many rounds of ammunition for each firearm they had purchased in a given year. This would lead to people inadvertently purchasing more than the allowed annual quantity. This inadvertent act would attract a fine of R15 000 and a ten year prison sentence.

The dealer who sold the ammunition would have no means of knowing or controlling the annual purchases of the person and could be construed to be illegally supplying this ammunition attracting severe penalties and criminal sanction.

We do not believe the drafters have made any attempt to assess the huge volumes and numbers of ammunition transactions that take place daily. The recording and administration of this ammunition control would require a huge amount of manpower and effort for no perceivable benefit.

The Bill does make provision for exemptions to these limits. If these exemptions are restricted it will impose severe limitations on the lawful activities of firearm enthusiasts.

In the event of these exemptions being readily issued to enthusiasts the entire system becomes meaningless. All firearm enthusiasts can easily justify need to exceed the limits and will receive exemption. This then leaves a huge administration in place to monitor those few owners who do not exceed the set limits.

These numerical limits do not recognize the different types of ammunition available in any given calibre and the many legitimate uses for these different types of ammunition. Ammunition in any given calibre is available in a huge range of different projectile weights and types for very different applications. Shotgun ammunition is a simple example. This ammunition is made in a variety of pellet/projectile sizes ranging from less than 2mm to 9mm, each with unique and non overlapping uses. A bird hunter would typically use size 7 shot for pigeons, size 5 for ducks, size 4 four guinea fowl and sizes 3 and 1 for the different types of geese, not to mention the larger sizes for small game and vermin. It would be common for a days shooting to comprise different bird species and thus a variety of different ammunition types. An overall limit of 200 cartridges would make this impossible.

Similarly a rifle hunter with a single rifle would commonly use different types of ammunition in the same calibre for different game animals.

Penalties

The NFF strongly supports heavy penalties for criminal activities involving firearms.

However this Bill proposes draconian penalties for minor transgressions and for actions where there is no criminal intent.

We find for instance a penalty of a fifteen year prison sentence for "failing to provide an satisfactory explanation". How can an innocent person with no knowledge of the offence offer a satisfactory explanation other than a simple denial of knowledge. Coupled with the presumption of a person’s guilt this would offer any accused no defence and offer the courts no option than to impose lengthy prison terms on innocent people.

Another example is the ten year prison term for a person failing to carry their licence on their person.

We agree that this is a sensible requirement but the penalty is extremely harsh. No crime is being committed in this case. The similar requirement for drivers attracts a fine of R300, not a long prison term.

The entire schedule of offences and penalties must be reviewed.

Administrative offences

As argued previously we cannot support this concept.

As proposed in this Bill these provisions are clearly designed to circumvent our entire legal system, restrict the accused’s right to due process and even to punish people already found innocent in the courts.

These provisions should be removed or amended to function along the lines of the system used to administer traffic offences whereby double jeopardy is excluded and the accused at all times is entitled to full access to the courts.

The most recent amendments to this section partially address this issue. However we maintain that the only proper place for a trial remains the courts and not an internal police tribunal.

Firearm Free Zones

This section is totally untenable.

It is based on the assumption that by declaring an area as firearm free violent criminals will not bring their firearms into these zones.

If violent criminals fail to adhere to existing prohibitions on murder, rape and pillage, we cannot believe they will comply with restrictions on carrying firearms.

Considerable research on this subject has been conducted in the USA and in Israel. A copy of the findings from the USA is included in our written submissions.

It has been clearly established that the concept of firearm free zones actually increases the probability of violent crime.

Within such zones law abiding citizens will be disarmed and prevented from protecting themselves or others. Violent criminals on the other hand will be drawn to such places. Crime patterns in South Africa already substantiate this with criminals more frequently targeting places such as schools, hospitals and most recently churches where they do not expect resistance.

Here again we see a clear case of this Bill only having an impact on the law abiding with no effect on criminal elements other than to facilitate their activities.

This provision could also lead to an increase in firearm thefts. If a person who is lawfully carrying a firearm is excluded from entering a particular area there is the very real possibility that the firearm will be left temporarily in a car. Although this may be prohibited in the safekeeping provisions this is still very likely to happen. This would in all probability result in an increase in firearms stolen and again would likely lead to further contempt and non compliance with the law.

Such firearm free zones also seriously intrude on the right to freedom of movement. This will also lead to inadvertent breach of the law. A person lawfully carrying a firearm could easily and unknowingly drive through a firearm free zone and would then be liable to severe criminal sanction.

Private property owners have the right to refuse access and entry to their property. This includes denying access to persons lawfully carrying a firearm. While we do not necessarily support such denial and restriction of access we feel strongly that this decision must rest with the property owner and should not be imposed by the State.

The declared intention to declare certain types of private property to be firearm free zones also makes no allowance for the owners of such property or their employees to be armed for their personal protection.

Compensation

The Bill attempts to avoid the issue of compensation for already licensed firearms. It would also appear that no attempt has been made to examine the costs of such compensation.

It is important to note that all accessories, parts, components and ammunition for such firearms will also become illegal and therefore must be included in any calculation of compensation.

The Bill suggests that compensation be determined by the Registrar. This is in clear contravention of the Constitution. Values of compensation should be determined by the courts in every case, as is prescribed. We would suggest that an independent panel of experts in this field be created to advise the courts on values.

Valid claims for compensation can essentially divided into three categories;

1. Prohibited firearms

These are certain types of firearms that will immediately become prohibited. These licensed firearms will be confiscated by the State and full and proper compensation must be paid as prescribed in the Constitution.

We estimate that this will consist of a relatively small number of firearms, perhaps 20 000. However the vast majority of these firearms will have considerable value. We would estimate compensation for these firearms to amount to at least one hundred and forty million Rand (R140 000 000).

2. Restricted and "excess" firearms

Large numbers of existing firearms that will become either restricted or excess in number will become illegal and will have to be surrendered. The drafters have estimated this to be 500 000 firearms. We believe this to be a very low estimate but even accepting this figure compensation for these firearms will amount to a minimum of some two billion Rand (R2 000 000 000).

The Bill seeks to avoid paying compensation for these firearms by compelling them to be sold to a dealer, failing which the firearms must be handed to the State for destruction without compensation.

This is a clear attempt to circumvent the Constitutional requirement for compensation that we believe will be successfully challenged in court.

The simple fact of the matter is that these firearms are currently lawfully held that will now be declared illegal and thus a disposal forced by the State.

It should also be noted that the current South African market for firearms is around 120 000 per year. This market could not possible accommodate 500 000 additional firearms. This will result in the huge majority of these firearms being confiscated by the State.

3. Claims from dealers

Licensed arms and ammunition dealers will also have valid claims for firearms that they have in stock which will now become prohibited. Obviously this should only apply to stock on hand before the enactment of the Bill.

The value of such firearms is more difficult to accurately assess. However considering that all spares, accessories, parts and components for these firearms will also become prohibited this is likely to be a considerable amount. Our best estimate would be twenty million Rand (R20 000 000).

There is a possibility that dealers might also pursue further compensation for restricted firearms they have in stock on the basis that at the time of purchase these were nor restricted as proposed in this Bill. Should this happen the amounts involved would be very large indeed, probably in excess of one hundred million Rand (R100 000 000).

It is vital that this committee fully consider all of these implications when considering this Bill.

Relicensing

We cannot support the concept of periodic relicensing. The motivation given for this is to ensure accurate record keeping. This could easily be achieved through a far simpler system of periodic re-registration which we would support along with an initial audit and re-registration of all licensed firearms.

Once a person has been properly vetted, declared as being a competent person and issued with a firearm licence we can see no purpose in that person continually having to remotivate their possession of their existing firearms.

This system will create a huge workload that will put the entire licensing system under immense pressure with absolutely no benefits over a simple re-registration system.

It is obvious that no study has been conducted to properly evaluate the workload involved in relicensing. There is a very real risk that the system will not be able to cope, additionally there is a large probability of non compliance. Either of these scenarios would result in the total collapse of the licensing system.

Transitional arrangements

It is suggested that all new conditions be imposed on existing licence holders.

Such retroactive provisions have a dubious legal basis and will almost certainly be challenged in court.

More importantly any attempt to restrict or confiscate existing licensed firearms will most certainly be met with antagonism and opposition from those millions of citizens that will be directly affected. Again such antagonism is already widespread because of the abusive procedure followed in creating this Bill.

This Bill, indeed any legislation, is entirely reliant on the acceptance and compliance of the people. Should this acceptance and support not be obtained then this legislation is doomed to absolute failure. The drafters have already stated that the SAPS does not have the ability to enforce this Bill and that the onus must be on voluntary compliance.

Although the overwhelming majority of licensed firearm owners are inherently law abiding it is unlikely that they will willing comply with legislation they perceive as flawed and which seeks to restrict their rights and confiscate their property.

Such consequences must be fully taken considered when deliberating this Bill.

We would suggest that all existing firearms should be exempted from any proposed restrictions. This would have many benefits including reducing compensation claims and encouraging full compliance.