Firearms Control Draft Bill & Security Officers' Board Chairperson: briefing

Meeting report

SAFETY AND SECURITY PORTFOLIO COMMITTEE
16 February 2000   
BRIEFING ON THE FIREARMS CONTROL DRAFT BILL AND CONSIDERATION OF SOB CHAIRPERSON

Documents handed out
Draft Firearms Control Bill
Report on the Reduction of Firearm Violence Campaign Workshop (as hosted by the Minister of Safety and Security)
 
SUMMARY
Chairperson of the Security Officers Board
The committee voted and agreed to recommend Mr Jele to the Minister to fill the position of Chairperson of the Security Officers Board. The DP voted against Mr Jele, while the UDM, the FF, and the NNP abstained.

Firearms Control Draft Bill
Advocate Kok, Chief legal advisor, was present to take the committee through the Bill, explaining the essence of each section as they went along. Important sections that were focused on were: competency certificates; licence renewal, termination, suspension; additional licences; firearms quotas and disposal; dealers, manufacturers, gunsmiths; and exemptions were focused on.       

MINUTES
Chairperson of the Security Officers Board
The applicant being considered for this position was Mr Josiah Jele. The following party positions were put forward:

The DP : The applicant that the committee agrees to recommend to the Minister, must ideally have some knowledge of the private security industry. They felt that before the committee agreed to recommend Mr Jele to the Minister, the committee should first have the opportunity to interview him. If the committee did not do this, then it could not be said that there was proper consultation (as required in section 4(1)(d) of the Security Services Act) and the DP would then have to vote against Mr Jele. Mr Swart (DP) made it clear that the DP would only vote against Mr Jele if the committee did not interview him. 

An ANC committee member said that the committee did not have time to entertain such notions. He said that they were not appointing the whole Board, they were simply trying to fill one vacant post. Further, if there were more nominees, it would make sense to interview the candidates so as to pick the best one. However Mr Jele was the only nominee and it would make little sense to interview him if there was no one to hold him up against. As no other names had been forwarded it made sense for the committee to agree on him.

He added that the critical point in terms of the legislation was that the Minister had to act in consultation with the committee – which he was doing. Some knowledge of the private security industry may be desirable but it was certainly not vital.

The UDM : They abstained from the process on the grounds that they ‘’lacked information’’.

The FF : General Viljoen felt that the applicant lacked the requisite background in security that was desirable for a person being appointed to the position in question. He suggested that names of other applicants be forwarded as well. He made it clear that his primary problem was not with the applicant himself but rather with the process. He felt that there should be greater consultation with all the parties even if the ANC was in the majority and could easily force any decision through the committee. This would however result in an undesirable state of affairs as a true democracy would demand consultation with the other parties. ‘’Consultation’’, he said, ‘’would enhance democracy’’.

General Viljoen continued saying that the opposition parties should not be taken for granted and that they ‘’must be given a significant role to play’’. According to him, the process of consultation (as required in the Act) was incomplete.

Both the DP and the FF agreed, however, that Mr Jele’s CV was quite impressive.

The NNP : They said that they had received the notice informing members of the meeting too late and they were not in a position to comment on the matter. They requested that the matter be postponed to another meeting.

The Chairperson indicated that the matter could not be delayed any longer and that the committee should take a decision on the matter now.

The Chairperson said that they were dealing with the security of the country and accordingly they needed to be sensitive. He also said that they would not ‘’push their way’’ but that, in this instance the appointment would be made. The appointment was agreed to with the following reservations:
The DP opposed the appointment.
The UDM, the FF, and the NNP, abstained.
Mr Jele is now the committee’s official recommendation to the Minister.

The Firearms Control Draft Bill
The drafters of the Bill were present to take the committee through the Bill. Advocate Louis Kok spoke on their behalf and briefly explained the essence of each clause. Mr Kok said that he did not propose to go through every section of the bill in detail but invited the members to ask him about any section that needed special clarification.

Macrostructure of the Bill
Here Advocate Kok discussed Schedule 3 of the Bill. He described the schedule as ‘’substantive’’ and as ‘’including an overview of offences with regard to the text of the Bill’’. He said that the second column could easily have been left out of the Bill, as it contained no additional information, and was only there for ‘’easy reference’’. The third column deals with the nature of the contravention and how the contravention is classified.  The fourth column deals with the maximum period of imprisonment and the last column deals with administrative fines and other administrative sanctions applicable to the transgression of the sections. He said that, in terms of section 126 of the Bill, one had to look at schedule 3. He emphasised that the second column in the Bill was only for easy reference and was not intended to eliminate transgressions included in the full text of the Bill.

Questions
General Viljoen said that the concept of administrative transgressions was new in legislation and asked why they were putting it into the law now. He asked if it was a new kind of punishment that was creeping into the system.

Advocate Kok replied that administrative penalties were not completely foreign to our law and that there were in fact a number of penalties which were administrative, for example, forfeiture. While he conceded that the concept was novel in South Africa, he said that it had been implemented in other areas of legislation, such as Road Traffic legislation. This approach would allow for the decriminalisation of certain forms of conduct. In Canada and Germany, for example, administrative penalties are well-known and widely used.

Mr Kok explained that the difference with the administrative penalties as envisaged in the Bill and administrative penalties in terms of other Acts, was that the registrar would have the power to impose this penalty, and not the courts. The effect of this distinction is that, as it is not an order of court, the requirements of a fair trial do not have to be complied with. However, as it is a penalty imposed by the Registrar, it becomes categorised as an administrative action. This means that all the requirements of administrative action, as amplified in the new Promotion of Administrative Justice Act have to be complied with. These requirements include the right of the other party to be heard. This will protect citizens against administrative decisions which are not taken properly.

Mr Pretorius (NNP), referring to Schedule 3, section 14(6), commented that the penalty of 5 years imprisonment for using a firearm licenced for self-defence, for another purpose, was very severe.

Structure of the Bill

Chapter 1
Preamble
Advocate Kok simply described this as a ‘’useful tool for lawyers to interpret the provisions of the Act’’.

Definitions
These were said to be critically important and were expected to result in much debate. The committee decided not to discuss these now, but, rather to refer back to them later.

Purpose of the Bill
This was simply described as a ‘’policy statement’’.

Chapter 2 – Prohibitions
This is the main issue that the Bill is directed at. It deals with prohibited firearms and devices. All devices referred to in section 4 are declared to be prohibited firearms. While there was not a problem with the principle of this section, the drafters hoped to make the wording more ‘’user-friendly’’.

Subsection 2 gives the Minister the discretion to declare firearms of a specific type to be prohibited.

Chapter 3
This deals with firearms that need not be licenced. An important point in this regard is that antique firearms are included under the list. There is presently an international controversy as to the interpretation of the term ‘’antique firearm’’. South Africa is presently in the course of concluding international agreements, namely, the SADEC Protocol, and, a treaty of the UN, being concluded in Vienna. Firearm control is seen by the international community as being very important. In terms of our legislation, an antique firearm refers to a firearm from before the year 1900. It now appears, however, that the best date would be firearms from before the year 1870, as, it was at this time that a significant change took place in the manufacture of firearms.

An airgun is also not considered to be a firearm unless it is especially dangerous.

The Minister is given the power to declare a firearm, not to be a firearm for the purpose of this Act. If the Minister decides to exercise this power, then notice must be given to the NA and the NCOP, before publication in the government gazette.

Section 6 and section 7 deal with certain restrictions in respect of antique firearms and airguns. Responding to a question by Mr Swart, it appeared that there is a restriction on the private sale of airguns, and antique firearms.

Chapter 4 and 5
This chapter deals with competency certificates. The Registrar is given the power to issue these on application of the party who wishes to acquire a firearm licence.

The issue of competency certificates is a new feature. Different kinds of competency certificates can be acquired, example, competency certificates for private individuals, for manufacturers, and for gunsmiths, etcetera. The competency certificate makes provision for background checks to be made on the applicants.

Questions
Mr Vadi (ANC) asked what the difference was between a competency certificate and a firearm licence.

Advocate Kok said that the purpose of the competency certificate was to ensure that the person was competent in all respects. It is in essence a two-phase approach. What is happening is that, one must licence the firearm, and, one must licence the person who wants the firearm. A competency certificate is valid for a period of two years.

A member of the justice committee (ANC) (it was arranged that a few members from this committee would be present at the meetings dealing with this Bill) asked who was responsible for discovering the applicant’s history. Was a check done in every single case or was the applicant simply expected to declare his history?

Advocate Kok said that the registrar would have to exercise his discretion. He had the power to do a comprehensive background check and spot check. However, it would obviously not always be possible to do this. Thus, the registrar would have to decide when it was necessary and when it was not.
Further, the applicant was required to fill out a form. If he lies on the form, or makes any kind of misrepresentation, then that amounts to a criminal offence.

A committee member asked why the competency certificate and the firearm licence were not designed to coincide in terms of the time within which they expire (as the competency certificate expires before the firearm licence).

Advocate Kok said that the person must be competent before he gets the firearm licence.

Chapter 6
Section 12 Separate Licences to be used in respect of each firearm licensed in terms of this chapter
Section 12 he said spoke for itself.

13  Additional Licences
Section 13 allowed additional licences to be granted in respect of the same firearm. In other words two people (e.g. husband and wife) would be able to obtain separate licences for the use of the same weapon.

Mr Swart (DP)asked whether a person could be the holder of an additional licence for another weapon where such person was already the holder of a primary licence for a separate weapon.

Mr Kok said that this was not allowed by the Act in respect of a firearm for self-defence.

 Gen Viljoen (FF) said that this situation would have the effect on further encroaching on the rights of citizens to defend themselves and would have very little effect (if any) on decreasing the number of illegal firearms which he estimated to be between 500 000 and 1 million. He was also concerned with the issue of what would happen in respect of the licences of existing licences.

Adv Kok said that the issues raised by General Viljoen were largely political and in addition the aim of the Act was to ensure that people could only get licences for firearms that they really needed. He said that a policy consideration when drafting the Bill was that handguns were a particular problem in the commission of crimes and therefore the proliferation of handguns had to be controlled. Whether existing licence holders could be exempted from the provision or whether their licences would be extended for a time period, were political questions.

14  Licences for restricted firearms used for self defence
This section deals with people who are in grave danger and cannot be adequately protected by one self-defence firearm where they are allowed to have semi-automatic guns or other guns allowed by the minister, by notice in the gazette.

15  Licences for firearms used for self-defence
This is the normal self-defence licence where you have one hand gun and one shotgun which can be licensed for self defence purposes. The need has to be demonstrated. Mr Kok said that in his opinion one would be allowed to practice to shoot such firearm properly otherwise the person would not be able to defend himself properly.

Adv Swart referred to 15(3) and wanted to know how the registrar would satisfy himself that there was a need for a firearm. He wanted to know whether this would not give the registrar powers to subjectively decide that there were some people who did not have needs for firearms. He wanted to know how this would be handled in practice.

Adv Kok said that this was a typical example of an administrative decision which has to be made. As such it has to be dealt with within the framework of  a certain policies and procedures to be followed in making administrative decisions – dealt with in the Constitution and the new administrative control act. Administrative law itself therefore imposed restrictions and if the registrar assumed too much power then his act could be taken on review to the courts.
 
16  Licences for firearms used for occasional hunting and occasional sports-shooting.
In terms of this clause a person would be able to have a licence for 4 firearms and could theoretically have two handguns.

Mr L Landers (ANC) wanted to know what informed the decision to allow 4 and not 2.

Adv Kok said that hunters needed various types of guns for various types of hunting. For instances they needed a small rifle for small game hunting and a larger one for larger game.

The chairperson wanted to know what would happen to the guns once the person no longer participated in the sport.

Mr Kok said that the case of the four firearms of the occasional hunter would not be the real problem but really the case of the dedicated hunter who has 25 firearms and is no longer hunting. Such a person may possess a large number of firearms which, in terms of the bill he may no longer possess. A policy decision still had to be made in this regard perhaps in relation to disposal of the firearms in one way or another.   
 
An ANC member wanted to know what informed the decision to have licences valid for 10 years in respect of hunting.

Adv Kok said that compared to crimes involving handguns, there were relatively few crimes committed with rifles for example, thus the intention was to shorten the period for handguns and semiautomatic firearms. It was very easy to use a handgun in a crime and much more difficult to use a rifle which can not be hidden as easily as a handgun.

Mr Landers wanted to know what informed the duration of the suggested periods for firearm licences. He also wanted to know how they compared with international experience. Secondly he could not understand why the period differed between licences in respect of a self-defence firearm and one for business purposes.

Adv Kok said that practically the periods could not be shortened otherwise there would be problems with processing the licences. International precedent was not used.

As far as firearms licensed for business purposes, they were not all for security personal. It could also be for someone who opens a game ranch and entertains international visitors and allows them to shoot with the firearms.
Businesses may also change or cease to function. The shorter 2 year period was there to therefore track and monitor applications for licences. 

17  Licences for firearms used for dedicated hunting
This had been discussed briefly already

18  Licences for firearms used for dedicated sports-shooting
This had been discussed briefly already

19  Licences for firearms in private collections and 20.Licences for firearms in public collections
Both these collections could include firearms prohibited as well as restricted. This was because some collections include cannons and various other dangerous weapons. Special safety measures were taken in these cases. The main difference between the two sections was that public collections were for public display.

Adv Swart asked why it had not been considered to allow for these guns to be used for self-defence.

General Viljoen said that by the same token it should have been allowed that guns for hunting and sport could be used for self-defence however they were specifically excluded as such.

Adv Kok conceded that where someone was in an emergency and his life was threatened, by existing legal principles people were entitled to rely on self defence to use such a weapon but one could not carry firearms around with them for the specific purposes of self defence when they were in fact hunting or sports firearms.

The chairperson agreed with Adv Kok and added that the Act could not state that a person was allowed to use hunting, sports or antique firearms for the purposes of self defence, since this would open this practice to abuse. Even though such weapons were specifically excluded as weapons for self defence the law would allow one to use such weapons if necessary to protect one’s life. It however could not be stated that such weapons could in certain circumstances be used for self defence, since this would open the door to abuse. He made the example that the pen he was holding was given to him for purposes of writing. If he found himself being attacked he could use the pen to defend himself if the emergency warranted it. A law could however not lay down that people could use pens for the sake of self-defence.

21  Licences for firearms used for business purposes
This was discussed already to some extent.

The chairperson said that this was where there were possibly problems. He said that there were rumours in some townships that security companies were behind  the crime which occurred in that weapons belonging to these companies were alleged to be used in crime and violence and then returned to the company. In this way the work of the police was made more difficult since they were unable to find the weapons as they would be legally possessed by the company. He wanted to know whether there was any provision for periodic checks of firearms in order to determine whether they were being used for their intended purpose.

Adv Kok said that the Bill did provide for the inspection of firearms, licences, and premises {see 22(6)&(7)}. There was also a provision concerned with ballistic testing.    

23. Temporary authorisation to possess a firearm  
Adv Kok said that this was necessary to be included

24. Identification marks on firearms
Adv Kok said that this would be debated extensively in the drafting of the Vienna Protocol. Among the questions is whether manufacturers alone should be obliged to mark firearms.

25. Renewal of firearms licences 
This has been dealt with already and Adv Kok just drew 25(6) to the attention of the members. It said that where an application for renewal was lodged in the prescribed period, the licence would not lapse until the application is refused.

26. Notification of change of Address 
This is obligatory

27. Notification of change of circumstances
This is obligatory

28. Periods of Validity of firearms licence
Adv Kok said that this had already been dealt with.

29. Termination of firearms licence
Adv De Kok said that this section referred to a number of matters. He referred to the competence of the registrar to cancel a firearms licence and the circumstances where this would occur. He also said that there were 14 days to lodge representations to oppose this and where the registrar gives notice that the licence is cancelled, the person would have to dispose of the firearm through a dealer within 60 days. An extension could be granted in this regard but the policy was to try and put pressure on persons to dispose of these firearms fairly quickly.

30. Defaced, lost or stolen licences
If defaced, lost or stolen a copy of the licence has to be obtained.  

31. Central Firearms Database
This would include the licences issued in terms of this chapter

Chapter 7
In chapter 7, which followed, the various categories were dealt with in a very similar way. There is a thus lots of duplication. It was possible to word the chapter in a different way to make it much shorter but the drafter opted to have separate sections regarding dealers, manufacturers, gunsmiths and others for the purpose of easy access for the reader.

32.Prohibition of unlicensed dealing in firearms or ammunition
The inclusion of this was obvious.

33.Requirements for a dealers license
A competency certificate as well as a few other things.

34.The Dealers License
This states what is contained in the dealers license itself.

35. Conditions Imposed on a licensed dealer
These would be prescribed by the minister.

36.Renewal of the dealers license
The procedure is specified

37. Temporary authorisation to deal in firearms and ammunition on premises other than those specified in the dealer’s licence
It is sometimes necessary to promote his goods elsewhere and this section provides for this.

38. Change of license
Dealers cannot be allowed to change their premises without informing the registrar.

39. Notification of change of circumstances
The same as above

40. Duties of a licensed dealer
There are a number of duties listed in each of the categories, which deal explicitly with the idiosyncrasies of that category. In 40(6) there is the requirement of the establishment and maintenance of a workstation and 40(7) requires the registrar to exempt someone from this in certain circumstances.

41. Establishment of centralised dealer’s database
This is the same as the previous provision in regard to individual firearm licenses.

42. Suspension of a dealer’s licence
Whether this would still be enforceable in the light of the new administrative justice act would have to be tested and debated since provision is made for suspension without a hearing for 7 days since there is a crisis situation where there is a suspicion but no evidence yet and if the dealer is allowed to continue he/she may dispose of their firearms. The suspension is for 7 days and may become 60 days and then a further 60 days if certain circumstances arise.

43. Termination of dealers License
This would occur for example where a dealer is found no longer to be a fit and proper person. The provisions for disposal of firearms are included here again.

44.Dealer’s licenses in respect of partnerships and juristic persons
Some detailed provisions are made for the specific requirements of the law relating to juristic persons and partnerships.

45.Application of other licenses
This is important to provide that it is necessary for a dealer also to obtain the necessary trader’s license from the municipality for example. It is thus not intended to exempt the dealer from having to comply with other laws applicable to him/her.

46.Defaced, lost or stolen licences
This is included again.

Manufacturers and Gunsmiths
As stated previously, the majority of the subsections under dealers were duplicated to a large degree under the parts of manufacturers and gunsmiths from sections 47 – 77.

Chapter 8
82. Import and Export of Firearms and ammunition
Mr Kok said that this would be extensively dealt with in both the SADC and Vienna protocols. He said that he would report on this once he has attended both these meetings.

Sections 78-81 were straight forward. An important provision in 82 is that an import permit will constitute a license to possess. This is very important to cater for foreign sportspersons and hunters coming into South Africa all the time.

A member asked whether such persons shouldn’t also be required to obtain a competency certificate.

Adv Kok said that this was implicitly provided for in that the registrar can specify such conditions as may be prescribed which implicitly deals with the competency issue. If a highly skilled professional overseas hunter has the necessary accreditation of a hunting association the registrar may deem this sufficient to demonstrate that person’s competency.

From sections 83 to 88 there was once again a substantial duplication as with 
dealers, manufacturers and gunsmiths.

Chapter 9
89 Storage, Transport and carrying of firearms and ammunition
This was intended to be dealt with more fully in regulations.

90 Carrying of firearms in a public place
There is an existing provision similar to this . Once again provision is made for a holster or an appropriate holder covering the firearm in a public place.

91 Firearms transporter’s permit
This was dealt with in a slightly watered down fashion if compared with the importers and exporters permits referred to since this person would simply carry the firearm from point A to B thus this is not as onerous.

92. Conditions imposed on transporters of firearms
This could entail inspection and registers to be maintained. There is no requirement (as before) that registers have to be linked to the central firearms register, since this is a more temporary type of operation being dealt with.

Sections 93-95 are straightforward.

Chapter 10
96. Prohibition of possession of ammunition
There is a general prohibition of possession of ammunition if not authorised in terms of the act.

97. Restriction on possession of ammunition
There are limitations on quantities to ensure that there is no unnecessary proliferation of ammunition subject to the exception in 97(4).

98. Prohibitions and restrictions on use of certain ammunition 
Here the minister has the discretion to prohibit or restrict acquisition, disposal, possession or use of ammunition.

99. Prohibition of Possession of Firearm Parts
The definition of a firearm includes just the barrel as well. Thus if you want to have a barrel in your possession you have to have a licence for this barrel. The same applies to the frame or receiver.

Chapter 11 Exemptions
In terms hereof the SAPS, SANDF, Correctional Services, intelligence services and certain government institutions are exempted from most of the provisions of this act. Permits are issued in respect of firearms within these institutions and a specific dispensation is created in this chapter for proper control and more stringent control than is currently possible over these firearms.

100. Definitions

101. Exemptions
In addition to providing for the exemptions, this makes provision for 114 (inspection of premises) and 157 referring to official institutions to still apply.
There is also reference to members of military forces of foreign countries to be exempted from the act under certain conditions.

102. Further conditions applicable to certain official institutions.
The registrar is empowered to impose these.

103.Possession and use of firearms by official institutions
The permit referred to earlier is mentioned in 103(1).

104. Register to be kept by official institution
Even though these firearms may be in possession of the SANDF, if a firearm is found, the registrar must be able to trace the firearm to an individual licence holder or to a state organisation.

105. Establishment of central official institution database
This facilitates the need in 104.

106. Official Institutions workstations
This also facilitates the proper control over official institutions’ firearms.

Chapter 12
 Declaration of Unfitness to possess a firearm
 Sections 107- 110 deal with this in some depth. There are for example in 108 (1) instances where a person is automatically deemed unfit to possess a firearm. If a person is declared to be unfit, his competency certificate and license(s) cease(s) to be valid. Once again provision is made for 60 days to dispose of the firearm and ammunition. This period, may again, be lengthened by the registrar. Whilst age is a factor to be considered here, old age alone cannot justify unfitness to possess a firearm. Only if the firearm cannot be of use to such person any longer or if the person poses a danger with the firearm then the person may be declared unfit to possess a firearm.

General Viljoen said that most people killed in farm attacks were very old persons. He opposed taking away the right of such persons to defend themselves.

The chairperson said that if an old lady who cannot see anymore argues that she has a democratic right to possess a drivers licence, then she will be a hazard to other road users. He said that he whilst he was disgusted especially with the killing of elderly farmers, their guns, which they may not even be able to use anymore, are readily available to criminals. He said that this issue would be debated at a later stage.

Chapter 13 Inspections 
Mr Kok said that he had already referred to production of licenses and firearms for inspection. Request for information is specifically provided for as well as the duty to comply with the request of police official or authorised person. The inspection of premises, (114) was also applicable to government institutions.

Chapter 14 Search and Seizure   
The relevant sections of the criminal procedure act (CPA)51 of 1977 have been amplified to make more extensive provision for searches and seizures.

A member of the UDM felt that chapters 13 and 14 raised concerns in relation to the perception that citizens were being disarmed by the state. Their constitutionality was questionable.

A member of the ANC asked whether one would need a court order to conduct a search and seizure.

Adv Kok said that in general one would but as with the CPA in certain circumstances one would not.

Adv Swart (DP) said that it was clear that another meeting was necessary with Adv Kok since the whole bill had not been dealt with yet. He said that chapters 13, 14 and 15 were inter-linked, and had to be dealt with together. There was thus no point in starting with 15 yet since it had to be related to 13 and 14.

Since Adv Kok would be in Vienna the following week the committee would only be able to meet with him after that . The meeting was adjourned.