Introduction to NICRO Women’s Support Centre and issue of Domestic Violence – Mandisa Ngonongono (legal worker)

NICRO has been dealing with domestic violence for the past 11 years. The NICRO Women’s Support Centre in Cape Town (which was opened 7 years ago) and other NICRO offices around the country, counsel hundreds of women every month who are being abused by their partners and ex partners. Many of these women live in fear of their lives. They are threatened with death, and when there is a firearm around, whether legal or illegal, this threat must be taken seriously. Last year, just in the Western Cape, NICRO counselled 2385 women who had been abused by their partners. Of these half said they had been threatened or had a weapon used against them. Of the weapons used, 30% were guns. So approximately 357 (15%) of our clients were threatened or injured by guns in the Western Cape in one year.

Our response to the Firearms Control Bill comes out of this experience. We strongly support the introduction of improved controls over the use of firearms as proposed in the new Bill, as one strategy to address high levels of violence (particularly domestic violence) in this country. We do hope that sufficient resources will be made available for the implementation of the legislation so that the goals can become a reality.

The original Firearms Control Bill goes a long way to improve on existing legislation. There were however, some serious shortcomings with regard to domestic violence, which we addressed in our submission to the Parliamentary Portfolio Committee on Safety and Security in January this year. We were disappointed to see that these concerns have not been addressed in the new Bill and we have therefore repeated the same recommendations in this submission.

Those opposing stricter gun control often stress the right of every individual to own a firearm for self protection, implying that the vast majority of the population are law abiding and responsible people who should not be curbed in any way through the limitation of this right. Research however indicates VERY high levels of domestic violence in South Africa which need to be taken into account. We are talking about up to 50% of men in some communities who are reported to abuse (or who themselves admit abusing their partners). This is a very significant percentage of men who should not be allowed to possess a firearm. However the law as it is proposed will not affect the majority of these people.

To give a bit more detail on the statistics, the Medical Research has recently undertaken two pieces of local research which indicate alarming rates of women abuse. In the first study, 1394 male workers from three municipalities in Cape Town were interviewed. 45% of them admitted using physical abuse against their partners over the past 10 years. Of these, 37% also admitted that they also had a drinking problem. The MRC states that there is evidence that the real figures are higher than those admitted to. Another recent study by UCT backs up these figures. 400 women attending the Mitchells Plain Day Hospital were interviewed and 50 % of them reported that they had been abused by their partners.

The second MRC study, in Northern Province, Eastern Cape and Mpumalanga, found rates of 19 – 28% of physical abuse of women by partners across the provinces. These figures relate not only to rural areas where education levels may be low and poverty high, but to women who also have access to private doctors for their medical care. The South African Sentinel Practitioners Research Network (who conduct research through GPs) surveyed over a thousand of their female patients in 1998 (these are women who can afford private health care). They found that 21% of these women had been physically abused by their partners at some stage. This level of violence surprised even their doctors, who admitted being unaware of the abuse.

Even more worrying is the report of research done amongst the police force. On a recent radio programme (on Radio Tygerberg, in which NICRO was present) it was reported by a police training officer from Bellville that `research shows that there is abuse in 60% of police relationships’.

It is against the background of these high levels of domestic violence in every sector of our society, that we make our submission to you and plead for stricter firearm controls. We need to balance the right of women and children to live free from violence in their own homes, with the need for self defence against crime from outsiders. Of the women we see 50% have had a weapon used against them or been threatened by one. 30% of these weapons are guns, so we are talking about a lot of threats. We know that better legislation can only combat part of the problem – the violence caused by legal firearms – but stricter controls would make an enormous difference to the (20% or 60%) of women in our society who live with violence in the home. A legal firearm in the home (in the hands of a violent or irresponsible person) is more dangerous than an illegal firearm outside.

The issuing of firearm licences and competency certificates should therefore be undertaken with extreme caution, and only after thorough investigation into the history, behaviour and competence of the applicant to handle a firearm responsibly, without danger to others, particularly to their family.

Jane Keen, Manager of the NICRO Women’s Support Centre will present our comments and recommendations on the Bill:

Firstly we support the Preamble to the Bill, with its reference to rights, particularly the right to life, the right to security of person and the right live free from all forms of violence from public or private sources.

To reinforce the focus on crime in the home we recommend that a reference to domestic violence be included in paragraph 3 of the Preamble, so that it would read `AND WHEREAS the increased availability and abuse of firearms and ammunition has contributed significantly to the high levels of violent crime in our society (including domestic violence)’.

We support the purposes of the Act as outlined in Section 2 but would like to recommend that Section 2 (a) include the `right to be free from all forms of violence’.

We strongly support the introduction of Competency Certificates in addition to firearm licences in order to ensure more responsible use of firearms.

To illustrate -

Although it is not mentioned in our written submission, we would like to recommend that the age at which a person can be issued a competency certificate be raised from 18 to 25 years. ‘In a decade’s time, every fourth South African will be aged between fifteen and 24. It is in this age group where people’s propensity to commit crime is at its highest.’ Martin Schonteich, Institute of Security Studies, 1999. Article called Age and Aids: South Africa’s crime time bomb?

We support Section 11 (2) (d) and (e) which says that a competency certificate may only be issued if the person is of stable mental condition, is not inclined to violence, and not dependent on drugs or alcohol. However we recommend that the process of establishing an applicant’s mental condition and dependency on alcohol or drugs be spelled out in the regulations to ensure that these valid considerations are in fact taken into account.

We support and welcome Section 11 (2) (l) which states that a competency certificate will not be issued to a person convicted of an offence in terms of the Domestic Violence Act, but we are very concerned that this only refers to someone who has been sentenced to more than 6 months imprisonment without the option of a fine. See Section 11 (3) (a).

Motivation: As the wording stands at present, very few offenders in terms of the Domestic Violence Act will be affected by this clause. The majority of those violating the previous Prevention of Family Violence Act and the present Domestic Violence Act are given suspended sentences, fines or short terms of imprisonment which would leave them free from any restrictions of access to firearms. Without this change the majority of women and children in danger from family members will remain unprotected by legislation intended to protect them.

To illustrate I would like to quote the case which was dealt with in the Mitchells Plain court. The woman applied for and was given a final interdict in terms of the old Prevention of Family Violence Act. Her husband then violated the interdict, beating her black and blue. She came into court with facial injuries. The man was given a sentence of 4 days imprisonment and a fine. Fortunately for the woman, her husband did not have a gun, but under the proposed law he would still be entitled to carry a one.

This is by no means an isolated case. A magistrate I spoke to yesterday confirmed our own experience. He has worked in the division of the court dealing with family violence interdicts for 4 years, confirmed that it was very rare (except in his court) for a sentence of over 6 months to be given, even in the case of a very serious violation of the interdict.

We therefore propose that Section 11 (3) (a) be changed to read `in respect of which the accused person was sentenced for an offence containing an element of violence or which constitutes a danger to the physical well-being and/or life of another person’.

Then we would like to refer to Section 11 (2) (m) which says that a person who has acted violently and been given a final protection order should not be issued with a competency certificate. Yet we know that one of the most dangerous times for an abused woman is when she takes legal action against her partner, ie in the time between the granting of a temporary protection order and the issue of the final protection order in terms of the Domestic Violence Act. This process can be drawn out by the respondent and delays in the court process, putting the woman and her children in further danger.

It is therefore recommended that no competency certificate be issued while a temporary protection order is in place, not just when a final order is granted.

We also recommend that a central national register of protection orders issued in terms of the Domestic Violence Act be compiled and maintained to assist the Registrar when applications are made for competency certificates and licences.

We also want to recommend that before a competency certificate is issued,

• the family of the applicant be consulted, to ensure that they are not living in fear of this person, and that
• the names of the applicants be published so that members of the community including service providers (such as doctors and social workers) can respond if they have evidence that the person is unfit to carry a firearm.

Without these measures, the most unsuitable applicant could lie about their past and be granted a competency certificate.

We strongly support the limitation of only one firearm per person for self defence purposes. Any more just means more guns in circulation which can lead to an increase in violence. We also support the renewal of licences as required in Section 27.

First of all we apologise for the wrong numbering of these sections in the copies submitted to the committee. We forgot to make the changes from the first version of the Bill. We refer to sections 98 to 104.

We know that members of SAPS, SANDF and the Department of Correctional Services need to carry firearms for some of their duties. But we are very concerned about the number of police and other officials presently abusing their partners, who are permitted to carry firearms just because of their positions. We see regular reports in the media of service pistols being used to commit crime (particularly domestic violence). And we know from our own experience of counselling, that many women are being abused by partners who are policemen.

Section 101 (8) (a) gives the Head of an Official Institution the right to issue a permit to carry a gun if the employee is `a fit and proper’ person to own a firearm. However, fit and proper is not defined, and it is our fear that the issuing of permits to police and other officials will just become an administrative exercise rather than an in depth checking of whether each individual should in fact be issued with a firearm.

Unfortunately no one becomes fit and proper just by joining the police service or the SANDF. If the statistics given earlier (ie. that there is abuse in 60% of police relationships) is correct, then we need to be much stricter when it comes to assessing which members of the police service should be allowed to carry firearms rather than the other way around.

To illustrate the problem:

Case study 1: One of our clients (from Mitchells Plain) Mrs X who is married to a police officer reported that her husband abused her physically, emotionally and sexually over a number of years. When Mrs X came to NICRO, Mr X had already been found guilty of assault and been given a suspended sentence of 6 months. One of the conditions of the sentence was that he hand in his firearm when going off duty but this did not happen, and he continued to take his gun home with him at night and threatened to kill his wife with it. He even told her friends that she would not live to see the year 2000.

We therefore recommend that the same criteria listed in Section 11 be used to assess every person who needs to possess a firearm. This may sound unwieldy but we cannot think of any other way of controlling the misuse of firearms by officials.

For the same reasons we recommend that no employee (listed in Section 101 (6) (a)) be allowed to take a work firearm home or to carry it after hours unless specific application has been made, motivating why this is necessary. We know that it is sometimes dangerous for police to move around after hours without being armed, but again we are weighing up this danger with the danger that the gun itself poses to the family. As it stands at the moment the Bill implies that authorisation to carry the gun after hours is merely administrative (see Section 101 (6) (a)) which will not ensure that each case is thoroughly investigated before permission being granted.

Section 105 lists a number of very serious offences that may lead to the Registrar declaring a person unfit to own a firearm. We feel strongly that in such cases the Registrar should be obliged to declare the person unfit. (The term `may’ (105 (1)) should be replaced with `must’.

As we have mentioned before, women are often in most danger in the period in which a temporary protection order has been issued but before it becomes final. We therefore recommend that Section 105 (1) (a) should provide for a provisional declaratory order of unfitness when a temporary protection order has been issued.

We also recommend that this section refer also to similar restraining orders in terms of any other legislation inside or outside of South Africa to cover interdicts issued in terms of the Prevention of Family Violence Act 1993 and any other similar legislation.

We recommend that the processes for determining the behaviour listed in Section 105 (1) (b) to (e) be spelled out. For example, will an affidavit from a family member claiming that a person has threatened to kill them be sufficient evidence to declare a person unfit to own a firearm? Who will decide that someone is dependent on drugs or alcohol?

Section 106 deals with offences for which a person must be regarded as unfit. We recommend that this section include any offence in terms of the Domestic Violence Act.

Section 106 (3) (a) refers to Schedule 2 which is a list of serious offences. If a person is convicted of any of these offences the court is obliged to determine whether this person should be declared unfit to own a firearm. We regard all these offences (with the possible exception of certain cases of culpable homicide) as grounds to automatically declare the person unfit to possess a firearm. We are concerned however that this list (which includes, rape, terrorism, arson and kidnapping) does not include murder, robbery, assault and assault with intent to do grievous bodily harm. We are not sure if this is an oversight, but it is certainly important to ensure that if a person is found guilty of murder that they are automatically declared unfit to carry a firearm.

Addressing another problem, that of disposal of firearms when a person has been declared unfit:

The Bill addresses this problem to some extent in Section 107 (3) (a) but we feel that it needs to be tightened up still. In cases where a person has been declared unfit to own a firearm, we recommend that the Registrar be obliged to inform the dealer (who has been given the gun to sell) that the owner has been declared unfit to own a firearm. In this way we can ensure that the firearms is not be released back to the owner before being sold.

Section 107 (6): Given the fact that domestic violence often continues in relationships for many years, we strongly recommend that:

• the period of five years mentioned in the Bill be extended to at least ten years and that the person declared unfit to possess a firearm should undergo a stringent reapplication process. It should not be automatic.

• The onus should be on the applicant to prove that they are now fit and competent to possess a firearm. This could include evidence of a treatment programme for domestic violence, treatment for alcohol or drug abuse, medical evidence etc.

• We also recommend a section stating if the declaration of unfitness included any form of domestic violence the relevant family members must be consulted before the re-application is considered. In this way we could ensure that no one is allowed to own a firearm if they are still being abusive.

We support the appointment of a Registrar and a central Firearms register. However, due to the present work load of the police as well as known and suspected corruption amongst certain sectors of the SAPS, we recommend that this be the duty of a new body set up independently of the police for this purpose only.

Chapter 20: Section 143 Firearm Free Zones:

We strongly support the setting up of Firearm Free Zones in as many public places as possible as proposed in Section 143 (1).