Firearms Control Amendment Bill [B12-2006]: deliberations

SAFETY AND SECURITY PORTFOLIO COMMITTEE
23 August 2006
FIREARMS CONTROL AMENDMENT BILL [B12-2006]: DELIBERATIONS

Chairperson: Ms M Sotyu (ANC)

Documents handed out:
Comments on Submissions on Firearms Control Amendment Bill, prepared by SAPS
Firearm Renewals: A basic principle of National Firearms Legislation: Submission by Gun Control Alliance (not discussed)

Relevant documents:
Firearms Control Amendment Bill [B12-2006]

SUMMARY
The legal advisors from the SAPS, on behalf of the Department of Safety and Security, presented proposed amendments to the Firearms Control Bill, which had been prepared taking into account the submissions made by all stakeholders.

Members raised a number of questions for clarity, and expressed their concerns on some issues. They queried the effectiveness of and the backlogs in the current relicensing process, the proposed inclusion of a ‘silencer’ as a part of a firearm in Section 94 of the Act, and the competency certification process. The issue of SASSETA certification was raised and the Department would submit proposals at the next meeting.. The relicensing date of 30 June 2009 was clarified. The inclusion of the term “self-defence” was discussed. The age requirements and the provisions for supervision by a licensed holder were explained. Cap and ball revolvers, and the definition of muzzle loaders was discussed in some detail. Provisions relating to professional hunters and collectors, as well as imitation firearms, were explained. The Department stressed the need to obtain better interaction between the courts and SAPS on the implementation and investigation of final and interim protection orders. The Committee would continue its deliberations on 25 August.

MINUTES
Presentation by Legal Services, SAPS, on changes proposed by the Department of Safety and Security
Advocate Phillip Jacobs (Assistant Commissioner: Legal Services, Crime Operations, South African Police Service (SAPS)) presented the Department of Safety and Security’s (“the Department”) proposed changes to the Firearms Control Bill. He reminded members that a number of concerns had been raised during the public hearings and the amendments sought to address those concerns.

The Department proposed that the current relicensing process should be retained and should not, as had been suggested, be replaced by an auditing process. Replacing the relicensing process would be counter productive and disruptive. Auditing with competency testing differed very little from relicensing process and would add no advantages.

It was proposed that section 94 of the Act be amended to include the word ‘silencer’, so that it would be regarded as a part of a firearm. This would ensure that only those persons who were licensed to own a firearm may be in possession of a ‘silencer’.

The Department had considered the proposal to substitute the term ‘self-defence’ with ‘necessary defence’ or ‘private defence’. However, the department believed that the term should not be substituted as a licence would be granted primarily for self defence purposes. If a firearm was to be used in defence of another person, section 13(4) provided that such firearms were used for a lawful purpose.

The proposed change in the age limit for the use of a firearm had been considered. The Department proposed that anyone using a firearm, regardless of age, should be under the immediate supervision of the licence holder. The Department stressed that the use of the firearm remains the exclusive responsibility of the licence holder.

The Department acknowledged the problems experienced with the certification process of the South African Safety and Security Sector Education and Training Authority (SASSETA). It would investigate the possibility of removing this requirement and would consult with the Sector Education and Training Authority (SETA) and Department of Labour regarding this matter. It proposed that the SASSSETA certification be used for record purposes only, while the service provider certification could be used for administrative purposes.

The Department also acknowledged that there was a need for the further training of police officers to improve their response and analysis of when the competency certificate of a firearm holder should be suspended. This was especially critical in cases of domestic violence and when a protection order was lodged against a licence holder. Any application for a competency certificate or firearm licence should be suspended until the issue was finalised.

Discussion
Mr V Ndlovu (IFP) asked the Department to clarify the proposed amendments to the relicensing provisions in the Bill

Adv Jacobs replied that the Department had proposed that the existing relicensing process continued unaltered, and should not be replaced with an auditing process.

Mr Ndlovu asked whether the proposed amendments to Section 94 of the Act to include a ‘silencer’ implied that every licensed firearm owner could acquire a ‘silencer’, as he considered that this stipulation was potentially dangerous.

Mr O Monareng (ANC) added that permission should only be granted to specific people, which would limit the number of firearm owners in possession of a silencer.

Adv Jacobs responded that a person who did not possess a licensed firearm and who was found in possession of a silencer would be charged with illegal possession. The proposal required designated firearms officers to issue a permit for both the weapon and the silencer. The selling and manufacturing of silencers would be dealt with in the same manner and would only be done by a licensed dealer. Silencers for military weapons were already regulated and could not be imported, manufactured or sold commercially.

Mr Monareng (ANC) asked how many licensed firearms a person could possess, in terms of the proposed amendments.

Adv Jacobs responded that the Act and Bill did not provide a limit to the number of licenced firearms a person could possess. A person could, for instance, have a firearm for self-defence, and three firearms for occasional hunting or for sporting purposes. A person owning more than four firearms could apply for a licence as a dedicated hunter. If an application was thoroughly motivated and named the purpose for the firearm, the number of firearms a person could acquire would be unlimited.

Adv Jacobs commented that the debate around the relicensing process reflected a fear that the Department would unfairly deny licence applications. If an application was thoroughly motivated and a purpose was provided for the use of a firearm, the department would consider the application favourably.

Ms Kohler-Barnard (DA) asked how the proposed amendments to the relicensing process would remedy the current backlogs.

Mr van Vuuren (Legal Services Department: SAPS) explained that certain stipulations in the Act caused delays in the relicensing process. Before a competency certificate could be issued, the competency of every applicant must be thoroughly investigated and tested. Only after competency was assessed could the relicensing of a firearm be considered.

He continued that the Department had incorporated five aspects to speed up the relicensing process. The competency and relicensing processes would be merged and would have to be repeated every five years. Applicants would only be required to submit fingerprints once. However, he did express his concern over the SASSETA relicensing process and asked if members would consider proposed regulations to make the process more efficient. He suggested that this certification could be used merely for record purposes only, while the certification of the service provider could be used for administrative purposes.

Mr Ndlovu (IFP) expressed his agreement that the SASSETA certification, as a prerequisite for a firearm licence, was problematic. This matter should be addressed to ensure that the guidelines for the relicensing process could be efficiently implemented.

Ms D Kohler-Barnard (DA) agreed that the process was problematic but suggested that the legislation should consider the licence application without a SASSETA certification.

Mr Van Vuuren said that the Department was already considering, on an administrative basis, applications without this certification. However, he believed that the legislation still needed to be amended.

Ms Kohler-Barnard expressed her satisfaction with the proposed amendments to section 94 of the Act to include ‘silencer’. She said that these proposals would be sufficient and workable.

Mr P Groenewald (FF+) asked the Department to provide proposed amendments to the regulations at the next meeting.

Rev K Meshoe (ACDP) believed that the inclusion of ‘silencers’ in the legislation was problematic, as it could negatively affect the curbing and resolution of crimes, especially those related to domestic violence and family murders. He would preferred that silencers be limited to specific groups including hunters.

Mr Groenewald asked whether the Department was aware of any criminal activities involving the use of a silencer. He expressed his concern on the additional administrative burden to the Department by including silencers in the legislation.

Adv Jacobs responded that every firearm used in a crime had to be examined by the Forensic Science Laboratory. According to the laboratory, the use of silencers in crimes was rare. The Department considered the proposals to control the possession of silencers sufficient. He confirmed that enforcement would not place significant administrative duties on designated firearms officers.

Mr Monareng commented that administrative challenges should not be confused with the provisions of the Act. The Committee could raise such issues with the Department as a separate matter

Mr Groenewald expressed concern that more attention was paid to the relicensing process than on ways to retain a firearm. The existing Act stipulated that the average South African could own four firearms, while the original proposal suggested that firearms could be retained. This stipulation should be included in the amendments. He enquired how many firearms a South African could have. He suggested that more attention should be given to the cost of implementing section 137 of the Act, which stipulated that if a person lost his firearm he should be compensated.

Adv Jacobs answered that the licence would be granted to most relicensing applicants. Only a small percentage of all applicants would be refused a licence and thus compensated. The costs would not be significant.

Ms A Van Wyk (ANC) said that the Department’s proposal regarding the relicensing process could be supported as South Africa had to honour international obligations and should be aware of the reality that many South Africans had been denied ownership of firearms. The revised proposal required a competency certificate before a silencer could be purchased. The possession of a firearm licence therefore implied that the person passed the competency test.

Mr Ndlovu (IFP) said that the debate about the silencers clearly indicated that there were suspicions and concerns. He suggested that the proposed amendments implied that any licensed firearm owner could possess a silencer and this could threaten the country’s security.

The Chairperson responded that according to her understanding, if a person was declared competent to possess a firearm, he or she should be considered competent to possess a silencer.

Mr Ndlovu expressed his agreement. He could not understand the need to own a silencer and felt that the legislation should address high levels of domestic violence by making it more difficult to acquire a silencer. He proposed that the Department redraft the amendments to include stricter stipulations.

The Chairperson responded that the inclusion of categories of people eligible to apply for a silencer would be redundant since it would be impossible to establish the intent of the gun owner.

Ms Kohler-Barnard said that proposed continuation of the current relicensing process was problematic. She said that this current process was slow and unworkable for both the applicant and the Department. The time taken to finalise an application was approximately one year rather than the specified six week period. Moreover, since the start of this process, 34 000 applicants had been denied a licence without sufficient reason. The inefficiency and constitutionality of this process could be challenged, and there was an urgent need to design more efficient ways of implementation.

Ms Van Wyk (ANC) requested Mr Bothma (Director, Central Arms Register, SAPS) if he could verify the figure of 34 000 refusals to issue licences.

Director Bothma replied that he could not verify the figure at that moment. However he would provide this information at the next meeting.

Mr Groenewald believed that the process of re-registration was not problematic. However, he asked how many people currently owned more than five weapons, as stipulated in the old regulations.

Mr van Vuuren responded that the old system suffered many inadequacies and thus no reliable figures existed. He was confident that most people owned less than four firearms. Those who owned more were most probably dedicated collectors or sport shooters, entitled to an unlimited number of firearms.

The Chairperson commented that she avoided the use of statistics when discussing matters of policy. One set of statistics could be contradicted by another.

Mr Groenewald asked whether all firearm licences would be valid up until 30 June 2009. He asked if the Department would issue licences up until this date, and if old licences would remain valid?

Mr Van Vuuren agreed that this deadline had been confused by the media. He wanted to dispel particular media reports that firearm licences would expire on that date. He stressed that if a person had not applied for relicensing a firearm, the existing licence would remain valid up until 30 June 2009, after which firearms would have to be ceded to the relevant authorities. He said that the amnesty provisions only applied to the unlawful possession of a firearm and not a failure to relicense a firearm.

Rev Meshoe asked why the term ‘self-defence’ was being substituted.

Adv Jacobs answered that the term would not be changed. The licence would be granted primarily for self-defence purposes and if it was used in defence of another person, it would fall within the provisions of section 13(4).

Mr Groenewald asked what the Department had proposed as the permitted number of rounds fired at sporting events.

Adv Jacobs answered that the Act would permit more than 200 shots at sporting events.

Mr Ndlovu asked for clarity about the ‘stepped age’ for the use of a firearm.

Adv Jacobs explained that the Department proposed that the licence holder, regardless of the age of the user, should supervise the use of guns. The Act allowed two persons to hold a licence for ,use of the same firearm. However, other persons, without supervision of the licence holder, could not use this firearm. Anyone using the weapon without the immediate supervision of the licence holder would be doing so illegally.

Ms Kohler-Barnard requested clarity on the stipulations regarding the ‘loan/use of a firearm’ section of the Bill. She expressed concerns that the required immediate supervision of the use of a firearm by persons less than 14 years would undermine the culture of hunting, or culling on farms.

Adv Jacobs reiterated that, regardless of age, the use of a firearm by a person other than the licence holder, had to be under immediate supervision of the licence holder. Although the Institute of Security Studies had suggested the age restriction remain at 18 years, the Department’s proposal would place sole responsibility for the firearm in the hands of the licence holder. He said that the circumstances for the use of the weapon, in the absence of immediate supervision, would be considered on a case-to-case basis.

Mr Ndlovu asked for clarity on the proposal that the relevant section of National Conventional Arms Central Committee (NCACC) could determine which experts must also be approved by them and channelled through SAPS to NCACC.

Adv Jacobs said that there was a perception that the amendment of section 96 required that all exports of firearms and ammunition would have to be channelled through the NCACC. The Department proposed that the NCACC Act should provide that the NCACC may determine which exports should also be approved by them, and channelled through SAPS to NCACC. The present Act still referred to the Arms Production Act that had been repealed by the new Armscor legislation. The proposed stipulation merely aligned the legislation to what was contained in the NCACC.

Ms Van Wyk pointed out that the Department had, on a previous occasion, requested the Committee to decide on the definition and inclusion of ‘cap and ball revolvers’ as a ‘muzzle loader’. She explained that ‘cap and ball’ revolvers should not be included in the definition of ‘muzzle loader’. Unlike muzzle loaders, these weapons could fire six consecutive shots without being reloaded. There was a significant difference between these weapons. She proposed that the legislation should require a competency certificate for the use of ‘cap and ball’ revolvers.

Mr Jacobs concede that the distinguishing feature of ‘cap and ball revolvers’ was the number of rounds that could be fired before reloading.

Mr Groenewald asked how the Explosives Act affected the use of ‘cap and ball’ revolvers.

Ms Kohler- Barnard (DA) commented that the Explosives Act covered the use of ‘cap and bolt revolvers. As it was cumbersome to load, it was not a weapon of choice.

Adv Jacobs explained that the Explosives Act merely regulated the gunpowder and had no relevance to the use of the object.

Ms Kohler- Barnard said that there had been various queries about the definition of ‘muzzle loader’. She said that the definition used, in particular, by collectors, differed from the definition employed in the Act. While gun collectors considered a portable firearm to be a muzzle loader, the Act merely included ‘muzzle loading canon’ as part of this category. This definition excluded various black powder firearms, which rendered them illegal. She felt that the definition should be explored further.

Adv Jacobs said these weapons were used for purposes of exhibition only, which led to the removal of ‘portable muzzle loader’ as well as the miniature muzzle loading cannon’. The collectors had approved this definition.

Ms Van Wyk raised concerns about the proper enforcement of interim and final protection orders. She said that the Department had to ensure that magistrates followed through with the process and that justice was ensured. She enquired whether the Department had any information regarding the efficiency of this system

Mr Ndlovu (IFP) concurred with Ms Van Wyk, and asked how the Department would ensure that the process did not compromise justice.

Mr Groenewald requested clarity on the meaning of the protection order, asking if the proposed changes only related to section 9 of the Domestic Violence Act?

Mr Bothma explained that co-ordination between the courts and police services had to be improved. He said that a designated firearms officer would have to start an investigation into the competency of a licence holder at the time that a final or interim protection order was given. Currently, cases had to be lodged at the national registrar first before being distributed to local designated firearms officers for investigation. Police had to be trained to ensure immediate action and investigations started to assess the competency of licence holders in cases of domestic violence. The police and courts had to be linked through a central system, and access to the domestic violence register was necessary.

Mr Groenewald asked if this should be recorded in the legislation.

Adv Jacobs explained that although provisions were not made in the Bill, the enforcement mechanism was provided by another Act. He stressed that training of police officers was very important to ensure that problems were immediately identified and acted upon.

Ms Van Wyk requested the Department to provide the Committee with more information about the recommendations regarding the disposal of ammunition by collectors. The responsibility should not be relinquished to the designated firearms officer without very clear guidelines what the circumstances should be.

Ms Kohler- Barnard asked who would be responsible for the appointment of agents controlling a firearm for collection or as a heritage item. She expressed concern that the South African Heritage Resources Agency (SAHRA) might not have the expertise to determine if a firearm was a collectable item or not.

Adv Jacobs said that SAHRA could appoint agents in terms of its Act. It would be necessary for it to appoint agents with the necessary specialized knowledge of firearms, and this remained its responsibility.

Ms Kohler- Barnard said that the accessibility of imitation forearms was problematic for the film industry and could hamper the growth of that industry in South Africa, making it less attractive as a film production destination.

Adv Jacobs replied that the legislation required service providers who specialised in making imitation firearms to register. In cases where permission to obtain these firearms was not granted fast enough Section 21 of the Act made provision for a temporary permit.

Ms Kohler- Barnard said commented that the legislation did not stipulate what the procedure would be for making a firearm inoperable, and commented that who would enforce the legislation must be clarified.

Mr Jacobs replied that the procedure for making a firearm inoperable had not yet been finalised. This would be developed through consultation with the collectors. The possession of automatic weapons by private individuals should be restricted in accordance with SADC protocol.

He continued that guidelines for the disposal of ammunition had to be finalised but that the proposed amendments to the Act stipulated that a collector could sell or donate ammunition and firearms in the absence of a dealer once the buyer possessed a valid firearm licence. All procedures had to be subject to the provisions relating to the possession of firearms and ammunition.

Mr S Ntuli (ANC) asked whether there was a body to represent collectors’ concerns.

Advocate Jacobs answered that the South African Arms and Ammunition Collectors’ Association represented the collectors on a national level and that SAHRA merely dealt with the historical aspects of firearms.

Ms Kohler-Barnard expressed her concern over the potential challenges the proposed new category of professional hunter held for the implementation of the amendment. Although it was proposed dedicated hunter status be accredited to applicants, members of that professional association could not currently licence their private firearms separately. These were all included under one licence. Moreover, the licence would be reviewed every five years instead of over a ten-year period. She asked for more clarity regarding these proposed amendments.

Mr Jacobs replied that the Department would present the specific proposal regarding this issue to the committee at the next meeting. He explained that a person, registered as a professional hunter, might wish to discontinue his business without having to hand in his firearms. The only way of retaining these weapons would be by applying as a dedicated hunter. The interaction between the two categories had to be addressed.

Ms Kohler- Barnard asked the Department if it believed the Committee had dealt sufficiently with all important concerns within the proposed amendments. She also enquired how long the licensing process would take.

Rev Meshoe suggested again that the legislation should require a licence owner to provide reasons for the use of a silencer. Mechanism should be in place to ensure that silencers were not sold to person who did not possess a firearm licence.

Adv Jacobs replied that the proposed amendments would define a silencer as a component of a firearm. Silencers could only be sold by licensed dealers and only to a person with a proven firearm licence.

The Chairperson thanked the Department for its presentation. She announced that the Committee would meet again on 25 August to continue its deliberations.

The meeting was adjourned.