FIREARMS CONTROL BILL – B-34
PUBLIC HEARINGS
Gun Free South Africa -
23 August 2000

INTRODUCTION

Gun Free South Africa (GFSA) is a national Non Governmental Organisation, with offices in Braamfontein, Johannesburg and Mowbray, Cape Town.

This presentation will focus on three key areas:

  1. Identifying the key principles which have been supported in the Firearms Control Bill
  2. Rebuttal
  3. Submission on specific clauses and provision of the Bill

  1. PRINCIPLES

We need a new law

Overall, there has been an acknowledgement that the existing law is not working adequately – some see it as wholly inadequate whereas others see it as weak only in certain aspects. The point is that this means the status quo cannot be maintained and that we need a new law.

Support for the basic principle that the ownership of firearms needs to be regulated

The new Bill makes several reasonable and sound provisions for regulating the ownership of firearms – it includes the competency certificate and the provisions for the declaration of unfitness. In particular, the introduction of competency certificates has been supported across the board, and if not supported has not specifically been criticised. This is in recognition that the barrier for firearm ownership needs to be raised. There may be some differences of opinion on some of the criteria for establishing who is fit to get a licence to possess a firearm, but on the whole there is overwhelming consensus that one of the main purposes of this Bill is to ensure that only the most responsible people are allowed a licence to posses a firearm. Support has been particularly expressed for including violent crime and domestic violence convictions as criteria for exclusion. There must be no compromise by the committee on this new provision.

There are too many guns in the wrong hands

There appears to be agreement that we need to control the proliferation of firearms in our society – for some it means just dealing with the proliferation of illegal guns, for others it includes both reducing illegal firearms and regulating legally held guns. The challenge for this committee is how to ensure that the clauses in the Bill sufficiently contribute to keeping guns out of the wrong hands.

Parliamentary oversight over the Minister

This was generally accepted as an important principle, embracing the principles of democracy.

No exemption for Official Institutions

Concern was expressed in several quarters about the poor record of firearm use by members of official institutions, in particular police officials. This was made most obvious in the submissions of the Independent Complaints Directorate and the women’s organisations. There appeared to be general agreement that more attention needed to be paid to the licensing and training of police officers in the use of their firearms, because they have a responsibility to protect the public.

Independent Firearms Authority

Several presentations suggested the need for an independent firearms authority. This is based on a number of factors such as:

Implementation and allocation of resources

This issue has been raised again and again in the hearings, and will be a key component in the success of the Firearms Control Bill. This is one of the major issues for the Committee to focus on in your deliberations over the coming weeks. One of the contributing factors to the poor record keeping of the Central Firearms Register (CFR) is insufficient personnel and not enough personnel trained on the existing computer system.

The Bill is only one mechanism for dealing with violent crime

Again both those supporting the Bill and those opposing it have agreed that the Bill in and of itself cannot get rid of violent crime in this country. It is only one mechanism – there need to be many other programmes and strategies to rid our country of violent crime. Other efforts that are needed to enhance the effectiveness of the Bill include more concerted efforts to deal with the flow of illegal weapons, police training, regional co-operation with our neighbours and educating existing gun owners about their duties and responsibilities. If we are serious about reducing the proliferation of firearms in our society, resources will need to be allocated to dealing effectively with the problem of firearm proliferation – putting in place the mechanisms and systems to make the Bill work.

  1. REBUTTAL

Comparison between the existing Arms and Ammunition Act and the Firearms Control Bill

One of the reasons a new Bill is being presented is because the old one is out of date, not working, has too many loopholes and has to a great measure contributed to the current situation of an excess of firearms in our country. I would urge all Committee members to become more familiar with the existing Arms and Ammunition Act, as during the hearings some presenters have made reference to it, implying that it is a good Act and just needs to be implemented properly. I want to use two examples to illustrate why you need to know the existing Act, how bad it is and why it is important that we have new firearm legislation

  1. Ministerial powers
  2. Many have objected to the powers given to the Minister in the new Bill. However, under the existing Arms and Ammunition Act the Minster has many more powers and I quote Section 33 of the Act:

    "Powers which the Minister may exercise in the interests of public safety or the maintenance of law and order or in order to prohibit or restrict importation or possession of certain articles…" Refer specifically to Section 33 (2) which is not qualified by Section 33 (1), which gives powers to the Minister by notice. In effect what this means is that the Minister can, as from tomorrow ban firearms completely.

    GFSA welcomes the new limitations placed on the Minister under the new Bill as we believe it is appropriate and necessary in a democracy that the Minister has to go through Parliament before taking such a radical step as declaring a ban on guns or any such similar prohibition. A step we would welcome.

  3. Style and complexity

In comparison to the existing Act the Firearms Control Bill is a vast improvement. The Arms and Ammunition Act has been amended numerous times, making it long and disjointed, and is full of legalese, making it difficult to comply with and enforce.

Use of statistics

You have heard many different statistics over the last week. I want to make a plea that we do not disregard the gathering of statistical data. The gathering of this information is critical in drawing a picture of what we are trying to get on top of – the extent of gun violence in our society and the links between gun availability and gun crime. We need to use statistics both to help us understand what the best intervention strategies are and also to assess and evaluate any new mechanisms which are put in place, such as this Bill. When we use statistics we need to be open to where we are getting our information from, what was the purpose of the study we are quoting, how the questions were phrased, etc.

Although statistics can be manipulated, this does not mean we must not use them. They play an important role in assessing whether or not the strategies we are using are effective. The collecting of data will be one of the most effective mechanisms we can put in place to determine whether new firearm legislation is achieving its aims.

Not all gun owners are responsible

There are many reasons for making this assertion. I will mention just three:

These examples demonstrate that there are times when legal gun owners are not responsible.

Threat of non-compliance

We have been astonished to hear responsible gun owners talking about the threat of non-compliance – this ranged from fairly veiled threats to a direct threat of insurrection. It will be unacceptable that a law, which has gone through the democratic process, is not adhered to.

Gun owners have stated that the law will make them into criminals because of its stringent requirements. The law will not make them criminals – law-abiding gun owners will make criminals of themselves if they refuse to adhere to the new regulations. We all have laws we do not like – that does not give us the right to break them.

I would call on the gun owning fraternity and organisation to educate their members as to the purpose and intent of the Bill and encourage their members to comply. When new legislation is introduced, regardless of what it is, compliance is a critical factor in ensuring some measure of success. We have drawn a lot on the recent experience of Canada and New Zealand on this issue. There are various strategies one can adopt to ensure compliance. We would like the opportunity to discuss this in more detail at a later stage.

Increase in guns = decrease in crime

The Lott study has been extensively used to bolster support for the idea that the increase in the number of guns actually results in a decrease in crime. I do not want to spend a lot of time on this except to point out two important details that have been omitted from the reports on the Lott study.

The role of GFSA in drafting Firearms Control Bill

We have heard some astounding allegations, some of them ridiculous such as that GFSA has an office in the Department of Safety and Security. Other allegations have however been much more serious – such as that GFSA was closely involved in the drafting of the Firearms Control Bill. I need to give some background information here. The process of reviewing our existing firearm legislation started in late 1996 when then Minister, Sydney Mufamadi, appointed a civilian team to assist in drawing up what he called policy guidelines for a new Firearms Control Bill. On this committee sat Ric de Caris (who is still involved with the process from the side of the department.), Advocate John Welch, a founding members of SAGA, a researcher from the Institute of International Affairs and myself representing GFSA. The team presented its final report to the Minister in June 1997. My understanding is that our document was integrated into several other reports, which indicted that a more strategic and over-arching firearm control programme was necessary. After June of 1997 GFSA was not involved in any way in the formal process of drafting this Bill now before you. We were consulted in late last year as part of the process of the department consulting key stakeholders. In July 1999 the gun owners were privy to the draft Bill before we were. Various submissions have also indicated that recently the gun lobby has, behind closed doors, had intense discussion on the technical detail of the Bill.

Technical weakness

We acknowledged that there are some technical weaknesses in the Bill. What we need to point out though is that the extent of the technical problems must be seen in the light of whom is raising them – different groups of small and highly specialised organisations. What the Committee needs to take into consideration is whether any of the technical changes suggested either compromise the principles of the Bill or, in creating so many exceptions and conditions, create more loopholes.

3. DETAILED COMMENTS

GFSA believes that the ultimate solution to widespread gun violence in South Africa is the abolishment of civilian firearm ownership. However, we support the Bill because it will make a significant contribution to reducing gun crime and gun violence in our country.

3.1 Licence the person and the gun

Licensing the person and the gun is a central part of any registration system, as it records the details of a firearm, together with information about the person responsible for this weapon, so linking a firearm to an owner. This information is recorded and stored in such a way that it can be readily accessed and inspected by authorised people, such as police personnel.

The reason licensing is very important is because it:

Although the existing Arms and Ammunition Act requires that all firearms be registered, because of the absence of any renewal system, which has detracted from the integrity of the data at the CFR, the net result is that South Africa does not have a working registration system, affording it the benefits of firearm registration and licensing.

There has been and will continue to be opposition to the principle of licensing the owner and the gun, as gun owners question the efficacy of this, viewing it primarily as an inconvenience and threat to their civil rights. However, the advantages of licensing need to be weighed against these fears and concerns.

It seems incongruous that while information on the owners of vehicles and televisions is annually updated through registration and licensing, firearm owners, whose guns are designed to kill, are not subject to renewal of information.

The two central components of the new Bill which ensure that the information entered into the Register has integrity is a.) the competency certificate and b.) the system of renewal.

a.) Competency certificate

We really welcome this innovative new provision – it is one of the cornerstones of the Bill ensuring that only the most responsible people are given the privilege to apply for a licence to posses a gun.

The certificate verifies that the person is fit and proper to posses a firearm.

What it also does is shift the onus of responsibility onto the firearm applicant to show that she/he is fit to own gun.

b.) Regular renewal

Under the current Act, a licence to posses a firearm lasts for life. This means there are no mechanisms in place to ensure that records are kept up to date thereby ensuring the integrity of the data. In order for the information stored in the CFR to be useful, it has to remain accurate, so requiring periodic updates.

Stored information also needs to be secured to prevent targeted gun thefts, with provision made for tracking those who access the system, particularly to keep tabs on corrupt officials.

Suggestions have been made that all that is needed is a firearm audit to update CFR records. However, while an audit will reveal to the state the inaccuracies in the CFR, it will do nothing to rectify these problems. The renewal system paces the onus on the individuals gun owner to comply with the regulations.

    1. Age
    2. We support the increase of the age limit for possession to age 25 years. I mention this for the record, as there has already been a lot of discussion on this issue

    3. Limits on the number of firearms an individual can hold

While GFSA welcomes the limits on the number of firearms an individual can hold, we are extremely disappointed with the revisions made to the Bill of the 24 May 2000, which now allows an individual to possibly own three firearms for self-defence, in contrast to the one firearm allowed in the draft Firearms Control Bill, 3 December 1999. Section 15 (3) of the current Bill allows an individual to own both a shotgun and a handgun for self-defence purposes, while Section 16 (3) allows the Registrar to issue a license for a restricted firearm for self-defence "to any natural person who shows that a firearm contemplated in section 15 (1) [which identifies either a shotgun which is neither fully or semi automatic or a handgun which is not fully automatic as firearms for self-defence] will not provide sufficient protection."

GFSA strongly objects to these changes:

GFSA recommends that Section 15 (3) be changed to read, "a person may not hold more than one self-defence firearms license," for either a handgun, a shotgun or a restricted firearm, of which the latter is granted only by the Registrar.

At all times GFSA would recommend that the minimum limit be imposed.

3.4 All gun owners to complete prescribed training and tests

Schedule 1, Item 11 (3) should be deleted. GFSA strongly urges that every firearm owner complete "the prescribed training and practical tests regarding the safe handling of a firearm." We see no reason why gun owners, who were granted their licenses under an outdated and inadequate Act, should be exempt from this provision. GFSA believes that such exemption undermines the concept of responsible gun ownership advocated throughout this Bill.

GFSA recognises that obliging all gun owners to complete training and tests will involve considerable management, but this can be phased in over 5 years, thereby ensuring that at a specified time every firearm owner will have demonstrated their skill in using and safeguarding their firearm.

3.5 Section 120 to 122

Separating administrative transgressions from criminal offences in the penalties section also requires commendation. The use of administrative transgressions to ensure compliance is not new in South Africa, for instance tax legislation allows the authorities to fine defaulters. Being able to fine firearm offenders for transgressions that do not endanger public safety has a number of advantages:

3.6 Mandatory injury reporting

The expense of implementing this Bill will be one of the primary arguments used to oppose it, but this has to be weighed against the cost of gun violence to South Africa.

Although far more research is needed to estimate the economic costs of gun violence in South Africa, one study at Groote Schuur Hospital in Cape Town looked at how much the hospital spent on treating the almost one thousand (969) firearm injured patients who presented there in 1993. It was calculated that the treatment of these injured patients cost the hospital nearly R4 million (R3 858 331, an average of R3 982 per patient). These are direct medical costs, which only account for an estimated 13% of the total costs of gun violence – the composite costs for these patients was calculated as approximately R30 million (R29 679 315, averages R30 628 per patient). This is one year for one hospital only. If you apply this figure to two other public hospitals - Johannesburg General Trauma Unit and Chris Hani Baragwanath (for which gun-related admissions are available), then these three public hospitals treated nearly 5 000 patients (4 942) patients in a one year period at a total cost of over R150 million (medical cost = R19 678 817, total cost = R151 364 359).

In order to make national calculations of the costs resulting from gun violence, we need to know how many people are injured by firearms. The existing category of attempted murder as recorded by the Crime Information Analysis Centre of the SAPS is flawed, as this term is routinely assigned to cases in which a gun was fired, irrespective of whether an injury resulted. One way of capturing the extent of gun-related injuries is to make it mandatory for medical institutions to report injuries resulting from firearms to the police. Not only would such notification provide additional statistics with which to calculate costs, such data would assist the police in their work by giving them a more accurate picture of gun crime in South Africa.

3.7 Amnesty/buy backs/compensation

We support the notion of amnesties, buy-backs and compensation, seeing them all as measures to reduce firearm proliferation and violence. GFSA has done substantial research in this area – and are aware that there are strengths and weaknesses in all of them. One thing we have learnt is that the success of applying any of these measures, either alone or in many possible combinations, is knowing the context and what will work. All of these measures have worked to some degree in diverse situations from inner cities in the USA, to developed countries such as Australia to countries in transition like Guatemala and El Salvador.

We want to put on record that these strategies can work if applied to meet the particular needs of a given context and offer our services to assist when this issue is dealt with.

3.8 Regulations

Some presentations have mentioned that too much has been left for the regulations. We see the regulation phase as critical to putting the flesh onto the main provisions given in the Bill – but see the first task now before you as Committee members as getting agreement on the best possible set of principles which will then guide the drafting of the regulations. For example, there has been broad agreement that safe firearm storage is an important principle of the Bill. We have also heard conflicting evidence about the merits of safekeeping. It will be the job of those drafting the regulations to state specifically then how to best ensure safe storage, as we want regulations that will contribute to making a difference in the loss, theft and misuse of firearms by legal owners.

We urge the committee during the regulation phase to include all stakeholders.

3.9 Independent Firearms Authority

As a member of the GCA we support the call for an Independent Firearms Authority. Although this is not mentioned in the Bill specifically several other presenters have also raised it and it is worth consideration. Again we have done some work in this area and do not want to waste the Committee’s time but will welcome an opportunity to brief you more fully on how this could work.

3.10 Gun Free Zones

Gun Free South Africa works with various communities throughout South Africa to establish gun free zones. We thus support the Firearms Control Bill for giving the Minister the power to declare "premises or categories of premises" firearm free zones (Section 143) and hope that the Minister will use his powers to recognise community declared gun free zones. GFSA recently undertook an audit of the 20 highest crime areas in South Africa, which revealed how widely supported gun free zones are – 61% of the businesses, non-governmental organisations and government departments surveyed reported having gun free premises. Should the Minister use his powers and recognise these gun free zones, they would be granted the legal protection given to ministerial declared firearm free zones. This would allow people with firearms entering community declared gun free zones to be prosecuted in terms of the penalties included in the bill, so empowering communities to maintain their firearm free spaces.

CONCLUSION

The key to the success of the Firearms Control Bill is its implementation. While the expense of this has often been put forward as a reason for not implementing the Bill, GFSA believes that the cost of implementation has got to weighed against the cost of gun crime and violence.

A recent survey undertaken by the Human Sciences Research Council showed that stricter gun legislation is overwhelmingly supported, with 84% of South Africans indicating that they want stricter gun control. Gun owners make just 5% of South Africa’s population. The freedom of this minority must not be exercised at the expense of the majority.