THE FIREARMS CONTROL BILL: SUBMISSION TO THE CHAIRPERSON OF THE SAFETY AND SECURITY PORTFOLIO COMMITTEE BY THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION

June 2000

  1. Introduction
    1. The South African Human Rights Commission ("the SAHRC") was created in terms of Chapter 9 of the Constitution, Act 108 of 1996 ("the Constitution") and has the following functions:
    2. 1.1.1 Promote respect for human rights and a culture of human rights,

      1.1.2 Promote the protection, development and attainment of human rights, and

      1.1.3 Monitor and assess the observance of human rights in South Africa.

    3. In accordance with its mandate, the SAHRC approaches the fulfilment of all its functions and responsibilities from a rights based perspective in order to promote, protect and monitor human rights within South Africa
    4. In the context of the Firearms Control Bill the SAHRC has at heart the interests of all South African’s, whom present levels of violent crime in our society have profoundly affected. Every person has the right to life and security of the person, which includes the right to be free from al forms of violence from either private or public sources.
    5. Similarly, every person has the right to freedom of association and the right not to be deprived of property except in terms of law of general application and never in an arbitrary fashion. These rights are often invoked by those opposed to legislative measures to control firearms. Without subjecting these arguments rights to closer analysis, it is clear that even if a successful argument can be put forward in this regard (which we do not concede), we would argue that the limitations proposed by the Bill are reasonable and justifiable and would survive scrutiny in terms of the general limitations clause in the Bill of Rights. The right of all South Africa's people to a violence free society outweighs the right of the individual to own a firearm (which right is not extinguished by the Bill).
    6. Applied to present levels of violent crime and the proliferation of firearms within our society, following words of Langa, J, uttered in 1996, ring true today with an urgency that cannot be ignored any longer:
    7. "In a discussion document titled: Recent Crime Trends, Dr Lorraine Glanz of the Human Sciences Research [*26] Council observed that "the face of crime is becoming increasingly violent and more serious," and that the rampant crime levels must have "a profound negative effect on the quality of life in communities. If left unchecked, a protracted increase in violent crime in particular is a threat to social stability." I could not agree more. A further ugly feature allied to the actual deeds of violence is the incidence of illegal smuggling, sale and possession of arms. We were told that trafficking in arms and drugs from neighbouring countries into South Africa is taking place on a significant scale. There is a proliferation of illegal firearms throughout the country and this, no doubt, contributes in no small measure to the high incidence of violent crime. This state of affairs is obviously a matter of serious concern, not only for the courts, but for the legislature, the police and the entire population which is affected by it. There is no doubt that, whatever the causes, crimes of violence particularly those involving firearms have reached an intolerably high level and that urgent corrective measures are warranted."

    8. Many citizens, responding to daily reports of violent crime and increased insecurity and frustrated by a perceived lack of action on the part of the State to protect them, turn to firearms as a means of protecting themselves. In the light of the realities facing our society at the beginning of the 21st century, their actions are understandable. However, this course of action is not supported by the SAHRC for the reason that it actually offers no solution. While we all share the common objective to reduce crime, and particularly violent crimes, meeting violence with violence does not guarantee results and leads only to further violence. It remains a sad truth that firearms and ammunition, whether legal or illegal, lead to crime and the more firearms and ammunition enter our society, the more lives are lost and the higher the rate of violent crime becomes. It also sets back the advancement of a culture of human rights in South Africa, which the State has been mandated to realise both in terms of the Constitution and the Constitutional Court.
    9. Against this background the SAHRC welcomes the drafting of the Firearms Control Bill as one of the urgent corrective measures referred to by Langa, J . In the final instance the State is responsible for the protection of the lives and security of all those within its territory and they are entitled to look to the State for redress.
    10. The inadequacy of protection of the rights of law-abiding citizens and residents, and the consequent loss of confidence by the public in the democratic institutions of our constitutional state is a problem which requires urgent attention beyond legislative measures and needs to be addressed at a societal level. However, lawmakers should keep in mind public perceptions of their rights when drafting legislation of this nature.
    11. It is against this background that the SAHRC wishes to comment on the provisions of the revised Firearms Control Bill. We shall limit our comments to a number of issues that directly impact on the human rights of all in South Africa. We also look forward to the opportunity of addressing the Portfolio Committee of Safety and Security when this Bill is considered at the public hearings, which have been scheduled.

2. Clause 99: "Official Institution" exemptions

    1. In terms of proposed Chapter 11 of the Bill, "Official Institutions" will be exempted from all provisions of the Act except two. An Official Institution is defined as:
      1. The South African National Defence Force,
      2. The South African Police Service,
      3. The Department of Correctional Services,
      4. Any intelligence Service,
      5. The armaments acquisition agency of the State, and
      6. Any accredited government institution

2.2 The SAHRC raises the following objections to the provisions of Chapter 11:

      1. A civilian who wishes to obtain a firearm will be subjected to a rigorous, two step process of background checks and investigations. Chapters 5 and 6 of the Bill requires persons other than employees of Official Institutions to obtain both a competency certificate and a licence or permit for the particular firearm they seek to acquire from the Registrar of Firearms. A competency certificate relates to the person and character of the applicant and strict requirements are laid down before a person is declared competent to own and use a firearm. A competency certificate is valid for two years only.
      2. Moreover, a person who has successfully applied for a competency certificate must thereafter also obtain a license or permit for every firearm he or she wishes to acquire. The licence will place limits on the use to which the firearm may be put.
      3. The SAHRC supports the measures outlined above as a critical component of the Bill. Unfortunately, these requirements do not apply to employees of Official Institutions. The heads of the aforesaid Institutions will have the power to issue permits to employees who are "fit and proper" to possess a firearm, and who have completed training and a test for the safe use of a firearm.
      4. Cogent reasons may exist why Official Institutions should not be subjected to the complex array of licensing requirements contained in the Bill. The specialised nature of their duties and functions may probably justify their exclusion. However, we cannot support the exclusion from the Bill of employees of Official Institutions as far the competency determination is concerned. Among them, Official Institutions have the highest number of firearms at the disposal of their employees. Recent incidents of firearm violence perpetrated by members of these institutions only emphasises the need for the competency of employees of these institutions to be subject to rigorous monitoring an ongoing evaluation. The fact that employees are subjected to security and competency evaluations prior to them joining the institutions clearly is not sufficient scrutiny in this regard and should be addressed.
      5. A second concern we wish to raise relates to the declaration of an employee of an Official Institution as "fit and proper" by the head of that Institution. Clause 101(8) gives no indication how this determination is to be carried out. Moreover, it does not state whether this determination shall be an objective or subjective one. The Bill also does not grant the Minister the authority to regulate on the determination to be made by the Head. Therefore, the only conclusion one can draw is that in the case of employees of Official Institutions, the "fit and proper person" declaration will be no more than the subjective opinion of the Head of Institution.
      6. The SAHRC is opposed to the granting of such a subjective and unfettered discretion to the head of an Official Institution. It leaves the door open for abuse and corruption. A system whereby employees of Official Institutions are subjected to regular competency reviews by the Registrar will allay these fears while leaving the issuing of licenses and permits in the discretion of the Head of Institution.
      7. While a similar concern could be raised in the context of the competency determination of a civilian, the exhaustive list of criteria contained in the clause dealing with competency determinations in the case of civilians satisfies the SAHRC that sufficient objective criteria exist to ascertain the competency of civilians.
      8. In view of the aforesaid, we propose that Chapter 11 be amended to compel employees of Official Institutions to be subjected to the provisions of Chapter 5, and specifically those provisions relating to the issuing of competency certificates, valid for two years only.

3. Clauses 11(2)(n) & (o) and Clause 101(8)(b): Prescribed Training and Tests

    1. The aforesaid clauses require that everyone, including those employed by Official Institutions complete a prescribed test on knowledge of the Act and prescribed training and practical tests regarding the safe handling of a firearm.
    2. The SAHRC wholeheartedly supports the notion of training and tests before any person obtains or uses a firearm. Our concerns, however, relate to access to the Act by the public and the regulation and control of the proposed tests and training. While these issues will in all likelihood be addressed by the regulations which will be drafted once the Act has been passed, we point out at this stage that the vast majority of South Africans do not have ready access to legislation and steps will have to be taken to make the Act available to the public, preferably in plain language summary form. Such a task should be undertaken by the Department and not be left to chance.
    3. Similarly, we are concerned that the proposed training and tests should be of the highest standard and that these should be carefully regulated and monitored to avoid corruption, abuse and the regressive deterioration of standards.
    4. Of course, such steps will have financial implications and careful consideration should be given to the different options available. One solution would be to enter into partnerships with appropriate small, medium and micro enterprises (SMMEs) to establish training facilities and conduct testing in accordance with standards laid down by the Minister. Training and Testing facilities should be accredited in terms of the Act and the Registrar should have wide powers of investigation with regard to such facilities.
    5. In its present form the Bill does not contain any provisions to give clarity on these issues. We respectfully submit that this is an oversight that should be addressed without delay.

4. Chapter 15 Presumptions

    1. We note with approval the amendments that have been affected to Clause 120, which appear to be in line with recent Constitutional Court judgements regarding presumptions and reverse onus provisions. As presently phrased, the "presumptions", listed in Chapter 15 create evidentiary burdens, by requiring the accused to provide evidence sufficient to raise a reasonable doubt.
    2.  

    3. While such a burden may impact on the right of the accused to remain silent, we quote with approval the words of Langa, J in S v Mbatha; S v Prinsloo . Referring to evidentiary burdens in the context of the Arms and Ammunitions Act, 1937, he states:
    4. "…on the assumption that the rampant criminal abuse of lethal weapons in many parts of the country would justify some measured re-thinking about time-honoured rules and procedures, some limitation on the right to remain silent might be more defensible than the….one on the presumption of innocence. The accused could of course be exposed to the risk of being convicted if he or she fails an explanation which could possibly be true, regarding physical association with; there would however be no legal presumption overriding any doubts that the court might have. At the end of the day and taking into account all the evidence, the court would still have to be convinced beyond doubt that the accused was indeed guilty."

    5. Taking into account present day levels of crime and abuse of firearms, these words, uttered in 1996, ring true with even more urgency today. Therefore, the SAHRC supports the amendment of Chapter 15 to create evidentiary burdens only and to delete legal presumptions of guilt and reverse onus provisions. However, in light of these amendments we propose that this chapter should be re-named "Evidentiary Burdens".

5. Chapter 16: Administrative Fines

    1. We support the redrafting of Chapter 16 to bring the contents thereof in line with the Bill of Rights. Clause 125(2) now gives clear direction on the imposition of administrative fines and affirms the rights of perpetrators to elect whether to pay the fine or to be prosecuted in criminal court. In so doing the Constitutional right of access to courts is respected.

6. Chapter 20: Firearm Free Zones

      1. The SAHRC welcomes the declaration of Firearm free zones as a significant deterrent against the public carrying of firearms. Persons entering firearm free zones should be educated to know that they should leave their arms in a place a safety prior to departing. The severity of penalties for contravening of these clauses appears justified and proportional to the objective of creating gun free environments in certain, specifically declared areas such as schools churches and shebeens.
      2. We wish to raise one concern, which remains with regard to the implementation of the provisions relating to firearm free zones. In present day South Africa, people may have to travel through dangerous areas before they get to their school, church or the shebeen. It appears unreasonable to expect South Africans to leave their firearms at home and then travel to their local shebeen via a dangerous gang area or face the risk of 25 years imprisonment. Alternatively, are we expecting all firearm free zones to provide facilities for safe keeping of firearms and if so, who is going to manage such facilities and at what cost? Not to mention the appeal that such facilities will carry for the criminal element in our society.
      3. We raise this concern without a proposal and call on the drafters to apply their minds to this practical issue that may hamper implementation of the Bill.

7. Powers of the Registrar

    1. The National Commissioner of Police will be appointed as Registrar of Firearms. The Registrar is given wide-ranging powers in a myriad of matters relating to the implementation of the Bill.
    2. However, the Bill makes no provision for the Registrar to be accountable to the public. It is stated in the preamble to the Bill that the state has a duty to respect promote and fulfil the rights in the Bill of Rights. These include the rights to just administrative action and access to information and also the rights to open, accountable governance. Therefore, the SAHRC proposes that the Registrar be subjected to the public oversight by an independent organ of civil society to be identified.

8. Clause 150: Regulations

    1. The Bill amounts to an innovative, comprehensive and detailed reworking of present Firearms legislation. For this reason alone, the SAHRC supports and encourages the drafting of appropriate firearm control legislation.
    1. However, the Bill gives only the legal framework of the proposed new system. The real test will be the effective implementation of the Act, once it has been passed. The successful implementation of the Act will largely depend on the content of regulations that will be drafted to give content to the framework. Public participation in the drafting of regulations will be of critical importance. Therefore, we call on the department to subject the drafting of regulations to public participation by publishing the draft regulations for comment and public hearings prior to the Act coming into force.

9. Conclusion

The SAHRC supports the Firearms Control Bill in its present form subject to the issues we have discussed above. We wish the Department success with the further progress of the Bill and invite you to call on the services of the SAHRC should you require our assistance as the Bill continues on its journey to become law.

We also welcome the opportunity to participate in the public hearings before the Portfolio Committee on Safety and Security and request that you liaise with our Parliamentary Officer / Legislation Monitor to make the necessary arrangement in this regard.

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Submission prepared by: Victor Southwell, Parliamentary Officer / Legislation Monitor (South African Human Rights Commission)