SA Gunowners' Association: We stand for responsible ownership of firearms
DISCUSSION DOCUMENT - HOW TO IMPROVE THE FIREARMS CONTROL ACT AND ITS IMPLEMENTATION
1. SAGA's is of the considered view is that the implementation of the Act
has been a dismal failure. Notwithstanding what the South African Police
Services may have presented to the Portfolio Committee, the reality is that the
Act is an administrative failure. SAGA does not intend at this stage (and
notwithstanding what the SAPS may have publicly stated) to challenge the
constitutionality of the Act here or in court. SAGA focuses in this
presentation merely on the interpretation of, and the implementation of the
Act.
2. By way of background, in 1999, SAGA warned repeatedly that the Act would be
un-implementable, costly and prejudicial to firearm owners beyond the scope of
what the Act states its intentions to be. It is clear that the South African
Police Service has extended the scope and meaning of the Act, and has
interpreted the Act to mean that its purpose is to reduce the number of
licensed firearms in circulation. This is not the purpose of the Act,
particularly in respect of existing firearm licences.
3. Commissioner Jacobs stated that SAGA and the author of this representation
were opposed to the original set of amendments. The writer wrote an article
summarising the amendments and provided his own interpretive comments in the
April 2006 edition of Magnum. The writer indicated that there were certain
parts of the proposals that were supported by SAGA, particularly those relating
to the recognition of existing licences.
4. It is also incorrect that, according to Commissioner Makubela, there are no
problems with the implementation of the Act. Firearm owners have not stopped
complaining, since the implementation of the Act, about lengthy, unjustified
administrative delays in the processing of applications, permits and
authorisations. Commissioner Makubela indicated that it should take
approximately eight weeks to obtain a firearm licence. This is simply
incorrect.
5. We are aware that it was also stated to the Portfolio Committee, that one of
the reasons why there are administrative delays is because of incorrect or
incomplete documentation. This may well be the case because the documentation
is overly complex, but members of the public go to firearm registration centres
and- are assisted by members of the South African Police Services in completion
of the documentation. The South African Police Services must take
responsibility for any inaccuracies in the documentation because they provide
the assistance to the members of the public to do so. In Commissioner
Makubela's own words "now that they (SAPS) have been trained there were no
problems". Commissioner Makubala is clearly accepting responsibility on
the part of SAPS, and therefore the completion of documentation should be done
correctly. The fact that many documents are rejected by the Central Firearms
Registry is indicative of the problem in the completion of the documentation at
Firearm Registration Centre level. More training is needed of police officials
in these centres to ensure that the documentation is completed correctly.
6. On the' issue of offences, only 140 000 renewal applications were received
up until the 31st of March 2006 out of an estimated 600 000 that should have
been made. This is less than a 25% compliance rate. There is an obvious message
in the low compliance rates: the public does not like this legislation and is
refusing or is unable to comply with it. The situation is going to be
compounded during the current renewal year because, not only do the same number
of individuals once again have to reapply, but a similar number of business
firearms will also have to be renewed by the end of December 2006.
7. SAGA has information at its disposal that shows that, notwithstanding the
first licensing process ending on the 31st of March 2006, many police stations
have not conducted safe inspections for applications that were lodged in
December 2005. We have one documented example where a licence application was
made, and it took eight months for the South African Police Services to conduct
an inspection. This is unacceptable. The provisions of the Promotion of
Administrative Justice Act must be complied with by the SAPS. The lengthy
administrative delays are clearly not in compliance with this Act and are going
to impose the Minister and the Portfolio Committee.
8. The South African Police Services have stated publicly that it is incumbent
upon the public to comply with the legislation, and it is immaterial how long
it takes for the South African Police Services to process re-licensing
applications or competency certificate applications. This is incorrect. Firearm
owners, as members of the public, are entitled to fair and efficient
administrative action. The Promotion of Administrative Justice Act 3 of 2000
more specifically Section 3 thereof provides for this. A failure to take a
decision is reviewable decision.
9. This legislation was passed to give effect to Section 33 of the
constitution.
10. The public have been compelled to comply with the legislation and likewise
the South African Police Services should be compelled to deal with
administrative processes within a reasonable time. It is for this reason that
SAGA, on the 2nd of September 2005, publicly asked the Minister of Safety and
Security to make a commitment to a service delivery charter. This request
remains unanswered.
11. SAGA repeats its request for a service delivery charter. The fact that the
Minister did not give a positive answer and the fact that the South African
Police Services are opposed to this, merely compounds their denial of the real
administrative chaos that exist within the Central Firearms Registry and at
station level. If Commissioner Makubela is of the opinion that it should take
six to eight weeks to obtain a license, then SAPS should commit themselves to
this through a service delivery charter. SAGA would be prepared to consider
more time be allowed than this in the charter, as long as the time period is
reasonable.
12. This submission has a number of practical suggestions to assist in the
administrative failings of the Act. The most important one is to delete the
reference to the Skills Development Act and therefore the need to involve
SASSET A in any processes relating to the Firearms Control Act.
13. The Minister of Safety and Security has in fact implicitly agreed to this
proposal. In his letter dated the 9th of November 2004, addressed to the Black
Gun Owners Association, the Minister stated "to obtain a competency
certificate the applicant must be in possession of a training proficiency
certificate which is provided by an accredited training provider in the use of
firearms" (page 2 paragraph 8). We wholeheartedly agree with the Minister
in this respect.
14. The Skills Development Act is designed to create industrial or commercial
skills. It is not designed for legislation such as the Firearms Control Act. A
simple comparison would be to that of obtaining your driver's licence. The
actual driver's test is not a test that has to be a SASSETA approved test, and
one is not presented with a SASSETA certificate on completion of -the driver's
licence test. This is no different to the training provided by the Firearms
Control Act. The administrative processes in obtaining a driver's licence are
similar to that contained in the Firearms Control Act but it is obvious that
the processes are much quicker to complete because a Sectoral Education
Training Authority is not involved.
15. Adequate controls- in the quality of training would remain however if
the current status quo in respect of the instructors remain. Instructors
should be accredited by SASS ETA and they should be moderated and assessed
according to the qualifications Act framework.
THE APPEAL BOARD
16. The Firearms Control Act stipulates that appeals must be dealt with
within 80 days, yet the Appeal Board cannot deal with appeals lodged almost two
years ago. The work load at the Appeal Board is only going to increase because
there are more administrative processes involved in the Firearms Control Act
and the refusal rate for new licences and competency certificates is
substantially higher.
17. On the issue of the refusal of competency certificates, we are opposed to
the granting of wider powers to the South African Police Services to assess
competency. The Act is specific as it currently stands in terms of the
requirements that an applicant has to meet to be deemed competent. SAGA is
happy with this, because the more criteria are specified in the Act, the less
discretion the South African Police Services will have. Unfortunately, should a
greater discretion be given to the South African Police Services, the exercise
of these discretions may be abused or misused. A typical example is where a
person does not disclose a criminal conviction as a result either of an
innocent mistake on their part, or as a result of the misinterpretation of the
Act at station level by a member of the South African Police Services in
assisting them.
18. We have on record numerous examples where, and by way example a person who
did not disclose a R40,00 admission of guilt fine for failing to display a
third party token in 1976, was declared incompetent. He did not believe this
constituted a criminal conviction.
19. The South African Police Services have all this information on record and
instead of acting in an open and transparent manner, and in accordance with the
constitution by allowing the person to explain their mistake or oversight,
"they convict such person" of a failure to comply with the Act by
refusing their competency certificate. Another example is where a person has
had a firearm lost or stolen from them and they do not disclose it, but they
have previously reported the lost or theft of that firearm to the South African
Police Services. Surely the previous disclosure of such lost or theft of the
firearm and the fact that this is on the Police Services record should be
sufficient? Many-people do not keep records of previous criminal offences,
particularly where admission of guilt fines were paid (if they even understand
the court processes involved) and many people do not keep precise records of
when they-reported firearms lost or stolen particularly if this event happened
many years ago
20. The difficulties that members of the public are experiencing in complying
with these aspects of the legislation are compounded and by virtue of the fact
that it takes 28 working days to obtain an SAP69 (police clearance) and that
members of the South African Police Services refuse members of the public
access to information held on the Central Firearms Register about that person.
If this information were made publicly available, many of the mistakes that
allowed the South African Police Services to refuse licences or competency
certificate applications would be avoided and the administration of the Act
would be reduced.
COMPETENCY CERTIFICATES
21.Another area of the Act that urgently needs to be addressed, is the issue of
the granting of competency certificates and licences to persons who are
permanent residents or citizens only. The Act makes it clear that a Section 21
permit can be obtained by anyone, particularly a person not in possession of a
competency certificate. The purpose of this part of the Act is clearly to
accommodate people who are not permanent residents or citizens. The practical
reality is, and the policy, that SAPS insist on a person being in possession of
a competency certificate in order to obtain a Section 21 permit. This makes the
process self defeating because it therefore excludes people that are not
residents or who are not citizens.
22. A potentially problematic area that could arise, should the amendments in
respect of black powder firearms be passed, is that people who have purchased
black powder firearms, who are not residents or citizens, cannot obtain a
competency certificate and they will therefore be forced to dispose of their
firearm without compensation.
EXISTING LICENCES vs RE-LICENSING
23. The principle of re-licensing itself should be revisited. International
examples show that, for example Canada, did not have a centralised Firearm
Registry before the implementation of its registration legislation. In South
Africa we already have a data-base that controls all firearms. The initial
purpose of the renewal of licences was to audit and issue new licences and not
to undergo a complete re-licensing process The manner in which the police have applied
the legislation, interpreted and supported the legislation is ultra vires, and
Parliament must re-visit what it is seeking to achieve in terms of re-licensing
versus an audit of licences. Compensation provisions-as they currently stand in
Section 134, 135, 136 and 137 allow anyone who has been refused a licence under
the new process, to apply for compensation.
24. If a mere audit is undertaken this process could be avoided and
compensation claims would be dramatically reduced.
ESTATE FIREARMS
25. There are many problems with estate firearms and the current
administrative difficulties in complying with the Act. are in essence
discouraging heirs from re-licensing estate firearms, which firearms then fall
outside of the control net imposed by the Firearms Contro: Act. The
Regulations, which are subordinate legislation, conflict with the
Administration of Estates Act which is national legislation. The Regulations
state that firearms cannot be transferred after the finalisation of an estate
yet the Administration of Estate Act imposes an obligation on the executors of
an estate to wind up the estate as quickly as possible and give powers to the
Master to impose. penalties in the event that the Act is not complied with
timeously. It is however impossible to wind up an estate effectively, when it
can take up to two years for firearm licences to be granted. We would suggest
that the Regulations be amended, to delete the holding up of the finalisation
of an estate until such time as the firearms have been transferred. All that
should happen is that the firearms be reported to the Central Firearms
Registry and that their existence be detailed in the liquidation and
distribution account of the estate. Transfer of the licences can then take
place without delaying finalisation of the estate.
HARMONISATION OF LEGISLATION
26. Conflict between the Regulations and the Administration of Estates Act
shows quite clearly that the Firearms Control Act has not been harmonised with
the existing or proposed legislation. Another example which requires urgent
attention is the proposals by the Ministry of Environmental Affairs and Tourism
in respect of regulating the hunting industry. In such proposals there exist
similar concepts but which has different terminology. A simple example is that
of an occasional hunter versus an amateur hunter. Furthermore, if the
regulatory proposals from the Department of Environmental Affairs and Tourism
are not harmonised with the Firearms Control Act, the regulatory environment is
going to become even more complicated, impossibly to comply with and
impossible to implement.
27.ln addition to this there will be increased, unintended and inadvertent
criminalisation of firearm owners and land owners, should the regulatory regime
not be harmonised.
28. The potential conflicts with such regulatory proposals are outside of
the scope of this representation, and have merely been drawn to the Portfolio
Committee's attention, to ensure that such issues are dealt with prior to the
passing of such proposals by different ministries. We would suggest that this
particular issue be one of the first issues dealt with by the ministerial
consultative committees that the Regulations propose creating, and which SAGA
whole heartedly supports.
STATISTICAL DATA
29. The only statistic made public in terms of the Firearms Control Act, as
far as we can determine, is the statistic relative to the number of renewal
applications. We received many complaints from press representatives of a
simple refusal by the South African Police Services to give statistical data in
respect of the number of licences granted under the new Act, the number of
renewal applications processed etc. Similar requests by SAGA have also been
ingnored.
30. We would suggest that the Portfolio Committee direct the police to supply
such facts to give a complete statistical analysis of the number of processes
that they have received and completed since the implementation of the Act. This
will assist the Portfolio Committee in determining whether SAPS are capable of
properly administering this Act and whether these proposed amendments will
assist them or whether it will increase their work load.
ADMINISTRATIVE JUSTICE
31.lt is the experience of SAGA that the South African Police Services are
not complying with the Promotion of Administrative Justice Act 3 of 2000 and
the Promotion of Access to Information Act 2 of 2000.
32. Both of these pieces of legislation were passed by Parliament, to give
effect to those provisions of the constitution that guarantee the right of
citizens and the fair treatment of citizens by organs of and functionaries of
the State. This legislation is similar to many overseas jurisdictions,
particularly Canada, from which much of our constitution is derived.
33. The-purpose of the legislation is to create an equal situation between the
State and its citizens to ensure that citizens are not unfairly treated by
faceless anonymous officials who may abuse discretions or powers granted to
them.
34. Put simply the legislation is designed to ensure that any decision that is
taken, is taken in a procedurally and administratively fair fashion. The
legislation guarantees the person or persons affected by such administrative
decision the right to information to assess whether decisions were made properly
and fairly, and whether discretion was exercised properly.
35. When assessing firearm licence applications, the South African Police
Services do not advise applicants of any potential difficulty with their
applications, they merely take a decision without advising the applicant of the
need to provide any outstanding information, or of the fact that an adverse
decision may be made against them and inviting them to submit argument/factual
reasons why such adverse decision should not be made.
36. The nett effect of this is that minor shortcomings in applications (such as
the non-disclosure of
an admission of guilt fine) result in a refusal of a licence or authorisation.
This in turn generates an appeal which creates more administrative work for the
South African Police Services and the Appeal Board, where in circumstances if a
query or request for additional information (as is constitutionally. required)
had been sent by the South African Police Services to the applicant, the issue
may have been clarified and disposed off in a more efficient manner.
37. However the SAPS complicate matters further in that they do not provide
reasons for their
decision once they have taken a decision. The writer has literally requested on
hundreds of occasions before appeals have been lodged for reasons why a
decision has been made and the writer has yet to receive an adequate answer to
any such requests. These requests for reasons will all be made available to the
Portfolio Committee if requested.
38. The Appeal Board is also responsible for similar administrative
shortcomings in that it often issues letters merely confirming the decision of
the National Commissioner without providing reasons why such decisions were
made.
39. The effect of the failure of the South African Police Services and the
Appeal Board to comply with the constitution and legislation derived from the
constitution is that firearm owners are treated unfairly, and in a prejudicial
manner. The Appeal Board currently has numerous court cases against it (some of
which have been- resolved positively in favour of firearm owners) and the
probability is that there will be numerous more court cases. In one court case
alone, the South African Police Services have been ordered to pay R900 000,00
in storage fees in respect of the refusal of a particular permit for the import
of ammunition. This is tax-payers' money, and clearly this amount, as well as
amounts ordered as payment of legal costs, show clearly that there are
administrative shortcomings the outcome of which has been upheld by the High
Court. The Public Finance Management Act obliges State officials to be
responsible for their expenditure, and makes State officials potentially
personally responsible for abuse of public funds. If the current administrative
abuses continue there is no prospect that firearm owners can expect to be
treated fairly. This urgently needs attention and guide lines must be derived
and police officials must be educated as to the requirements of the
constitution, The Public Finance Management Act and Act 2 and 3 of 2000.
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REVISITING THE PURPOSE OF THE ACT
40. The Firearms Control Act has always been considered as a crime fighting
tool, ie it is to prevent crime. Perhaps now is a time for the South African
Police Services to disclose to the Portfolio Committee how much crime has been
prevented by the implementation of the Firearms Control Act and how many crimes
have been solved after the implementation of the Firearms Control Act utilising
the mechanisms contained in the Firearms Control Act. Naturally these
statistics should exclude administrative contraventions of the Firearms Control
Act by lawful firearm owners.
41. The reality is that the Firearms Control Act has not been used as a crime
fighting tool but it has been used as a tool to restrict firearm owners' rights
and has done nothing to prevent or solve crimes.
CHANGING CONTEXT
42. The context, in which the Firearms Control Act was passed, some six
years ago, has changed.
43.An international comparison shows some startling contrasts. Canada, which
introduced its central firearms legislation at the same time has now decided to
repeal the legislation after its implementation has been a dismal failure. The
Portfolio Committee is surely aware "that much input was received from
Canadian sources in the drafting of and implementation of the Firearms Control
Act.
44. The Brazilian Government held a national referendum on firearm ownership
and 67% of Brazilians voted in favour of keeping the right to own firearms.
45. Independent research is showing that civilian ownership of firearms reduces
crime and does not increase or contribute towards crime. In this respect
research by John Barnes at the Washington Policy Centre, which is a non-profit
public policy research and education organisation, has proved this.
46.ln America, which is the country that keeps the best statistics, it is quite
clear that civilian ownership of firearms reduces crime.
47. At the same time the current US Government has refused to renew certain
restrictive firearm decrees of the previous administration of President
Clinton.
48. Bogata in Columbia once had a murder rate higher than South Africa. However
in a telephonic interview with Radio 702 on the 6th of July, the
ex-Mayor of Bogata who was here in South Africa giving advice to Government on
how to limit crime indicated that the manner in which violent crime can be
reduced is to increase citizens' access to resources, upgrade housing and roads
and public transport. He made no mention of restrictive firearm controls in
Columbia in any way reduced crime. He focused on the human factor and giving
recognition to human dignity to reduce crime.' This approach worked
successfully in Columbia and similar approaches need to be adopted in South
Africa.
FINGERPRINTS
49. SAGA can provide many other positive suggestions to reduce the
administrative burden in the administration of the Act.
50. Firstly, it is unnecessary that fingerprints from an applicant be taken
every single time the applicant undergoes a process stipulated in terms of the
Firearms Control Act. The Act should be amended to allow the Registrar to keep
a set of fingerprints on record and to maintain the database of such
fingerprints either in conjunction with the criminal record centre or as part
of a criminal record centre.
51. Secondly, there is no need to conduct a safe inspection each time a licence
or permit application is submitted. The original amendments recognised this by
allowing an applicant merely to submit a statement confirming that the information
that the South African Police Services have on record is still correct. The
deletion of the proposals to delete Section 24 and the use of a statement to
confirm information creates the distinct impression that South African Police
Services wish to create more administrative work for themselves, and not less,
and therefore the amendments are not designed to streamline an improve the Act
but are designed for other purposes.
52. The police have the power to conduct the inspections and we would suggest
that random pre-arranged inspections should be conducted to ensure that there
is compliance with the Act.
MARTIN HOOD: SAGA's Legal Advisor