PRESENTATION ON THE FIREARMS CONTROL ACT AMENDMENT BILL. 2006
1
The South African Gunowners' Association (SAGA) welcomes the' opportunity to
democratically participate in the process of formulating legislation.
2 SAGA is the largest all-purpose firearm organisation in Southern Africa and a
Founder Member of the United Nations accredited World Forum on the Future of
Sport Shooting Activities. SAGA represents a complete cross-section of the
firearm fraternity - individual firearms owners, dealers, collectors, hunters,
sport shooters, clubs, associations and even non-firearm owners.
3 As a background to these representations, w~ must point out that, despite the
positive claims of the SAPS, the current implementation of the Act has resulted
in an administrative crisis in the
Central Firearms Registry. We urge the Minister and the Portfolio Committee to
take this opportunity in considering the amendments to do a review of the
entire Act, and use the Minister's consultative committee to establish a forum
to .identify administrative problems and to draft the necessary amendments to
the Act to deal with such problem areas in a holistic manner.
4.Existing Licences - Renewal vs Audit
4.1 The first version of the current Amendment Bill made provision for
recognition of all existing licences and the deletion of the requirement to
renew licences. This proposal would have simplified the full implementation of
the Act and would thus have enjoyed general firearm owners' support because it
would have protected existing rights. We are .led to believe that this
provision was withdrawn for fear of claims for:- compensation for firearm
licences that are not renewed. The Constitution and _the Act clearly allow
anyone who believes they are entitled to compensation to apply for compensation.
Deleting this requirement is going to have little or no effect on those people
who want to claim compensation. However if the existing rights are recognised
and an audit is
4.2 According to Director Phuti Setati, the SAPS spokesperson, only 140 000
re-license applications were received for the first re-licensing period that
ended in March 2006. We estimated that 600 000 should have been received by the
SAPS during the same time period, so there is less than a 25% compliance rate.
In the year ending December 2006 there are approximately 600 000 business
licences that need to be renewed and 600 000 more personal licences for the
period March 2006 to March 2007. If the renewal process is maintained the SAPS
are going to be unable to comply with the
Promotion of Administrative Justice Act in processing these applications. An
audit process, which will confirm the existence of the firearms and the
correctness of the information contained on the Central Firearms Registry's
database, and where
appropriate updating and correcting of such information, will vastly simplify
the task of the SAPS. This task can be delegated downwards to the designated
firearm officer level and will accordingly avoid the centralisation of
functions and the administrative backlog that have resulted from this.
4.3 Furthermore, should an audit process be adopted, this will avoid multiple
burdensome prosecutions that will need to be conducted through the Magistrates
against firearm owners who have not renewed their licences. We doubt that the
Ministry of Justice could process hundreds of thousands of administrative
offences for failure to renew a firearm licence. If an audit process is
adopted, which recognises existing licences, and protects them, compliance
levels will be increased and the criminal courts will not be overburdened with
administrative prosecutions.
4.4 Deeming all existing licences to be valid would reduce the number of
compensation claims and would also generate goodwill amongst the firearm owning
public. The initial purpose of the renewal of licences was to audit and issue
new licences and not to institute a complete re-licensing process. The manner
in which the police have applied and interpreted the legislation is ultra
vires. Compensation provisions as they currently stand in Section 134, 135, 136
and 137 allow anyone who has been refused a licence under the new Act, to apply
for compensation, regardless of whether the law remains as is, or is changed to
acknowledge existing licences.
PRINCIPALS
5.1 We believe that the Act, through the competency criteria contained in
Section 9 effectively licences the person. Greater focus should be placed on
licensing the person and simply registering the firearm.
5.2 The focus in controlling firearms should be on competency of the person,
not on the firearm itself. It's people that commit crimes with firearms.
5.3 The Promotion of Administrative Justice Act 3 of 2000 was passed to give
effect to Section 33 of the Constitution Act 108 of 1996. This Act has been
deemed by our High Court to apply to firearm licence applications.
5.4 The cumbersome and burdensome nature of the current re-licensing process
has meant that the South African Police Services cannot comply with the
provisions of Section 3 of the said Act (procedurally fair administrative
action) nor can they comply with Section 5, which deals with reasons for
administrative action.
5.5 As a result of this we are aware. of a number of review actions against the
South African Police Services and the Appeal Board in terms of Section 6, where
the' decisions are
5.5.1 Procedurally unfair;
5.5.2 Influenced by an error of law;
5.5.3 Took into account irrelevant considerations:
5.5.4 Were not rational; or
5.5.5 Consisted of a failure to make a decision,.
5.6 The inability of the South African Police Services to comply' with the
Promotion of Administrative Justice Act, is ample evidence that the Firearms
Control Act needs to be simplified and the administrative procedures need to be
dramatically reduced.
REGULATIONS
6 In order to ensure that the process of drafting and implementing legislation'
is administratively and procedurally fair while being is realistic and
implementable, we suggest that the regulations to give effect to the amendments
be drafted at the same time and that they be published for comment in order
that the amendment process be speeded up,' and that the Act be amended and new
regulations be drafted as soon as possible.
7 RETROSPECTIVITY
7.1 There is a presumption in South African law against legislation being
retrospective, ie. it operates from the date of promulgation onwards. As the
Firearms Control Act currently stands, the effect of the Act and amendments is
that they are being applied retrospectively and are infringing or taking away
existing rights.
7.2 The principal problem of retrospectivity is contained in the renewal of
existing licences. If an audit was merely undertaken, and all existing licences
were deemed to be valid, issues relating to retrospectivity would be
dramatically diminished.
SPECIFIC COMMENTS
Definition of Ammunition
8 A primer cannot constitute ammunition. If the desire is to regulate primers,
then primers should be defined separately and regulated separately. To define a
primer as. ammunition is. contradictory and artificial.
Definition of Muzzle Loading Firearm .
9 We believe comprehensive submissions dealing with this issue are being made
by the collectors associations and private individuals. However, put simply,
the proposed definition will provide that only single shot rifles fall into the
special category relating to black powder/muzzle loading firearms. This will
exclude cap and ball revolvers and other types of firearms that are not single
shot , for example a double barrelled rifle or shotgun, or what are known as
Cape guns.
9.1 No mechanism is created in the amendments whereby people who are already in
legal possession of cap and ball revolvers can legitimate them. They will
automatically become criminals once.the amendments are passed. This is not good
law and unless corrected will be open to legal challenge.
9.2 The Explosives Act contains a separate set of regulatory requirements that
a person needs to comply with should they wish to obtain a black powder permit.
This involves a criminal record check, a safe inspection and registration of
the muzzle loading firearm that will be dischargin~the black powder.
9.3 Adequate control mechanisms exist within the Explosives Act to control
muzzle loaders without the need to over-regulate them in terms of the Firearms Control
Act.
9.4 No evidence has been presented (and we believe no evidence exists) of the
abuse of black powder firearms in crime in particular. If this is so, then
there is no purpose that the legislation seeks to achieve, and the amendments
are therefore baseless.
9.5 We have difficulty with the restrictions on the projectiles which may be
used in muzzle loaders. Most muzzle loading firearms utilise conical shot, or
jacketed shot, as well as lead balls. Furthermore, "pure lead" balls
are rarely -used because- pure lead is too soft and is usually mixed with other
metals (such as antimony, tin, etc) to make it harder.
Silencers
10.1 We believe that there is no evidence that the regulation of silencers will
reduce crime and propose that the South African Police Services be called upon
to provide statistical data and information to back up their desire to regulate
silencers.
10.2 We estimate that over 500 000 silencers have been commercially
manufactured in South Africa in recent years and an unknown number of homemade
ones are in use. We consider it a sheer waste of resources for the SAPS to take
on the burden of processing 500 000 applications for permits - especially as
they have not been able to140 000 fireman re-licensing applications within a
reasonable time. This amendment would merely drive the manufacturers of
silencers out of business and would criminalize otherwise law-abiding citizens
without any real legal or lawful purpose being achieved.
1.0.3 In addition to this, a number of firearms have been manufactured to
incorporate integral silencers. The De Lyle carbine (and replicas thereof) is
one example, and the writer has a licensed .22 pistol that has been converted
to have an integral silencer - this firearm cannot be discharged without its silencer
attached. If a permit were refused, this would constitute the deprivation of
lawfully possessed property. Because of the practical difficulties involved in
policing and administration, at the very least, all existing silencers should
be exempted. As such legislation should not be retrospective, if silencers are
to be regulated, the provisions should apply only to new silencers.
1.0.4 Lawful uses of silencers include;- a) culling; b) training; c) general
use by persons who have hearing impairments.
Replacement of Juristic Person (Section 7) 11
11.1 The requirement of this proposed amendment is unrealistic. Competency
certificates
take in excess of a year to obtain including the SASSET A procedure so it is
unreasonable to expect a person who needs to become a responsible person to be
in possession of a competency certificate. The legislation should state that
the responsible person should apply for a competency certificate. Alternatively
the SAPS should be compelled to assess an application for a competency
certificate (and any other licence or authorisation) within a. specified time
period in order that those who wish to become a responsible person, will know
how long it will take for them to be granted such competency certificate.
11.2 Other countries, such as Mozambique, have legislation that states quite
simply that, if a decision is not made within a specified time, that the permit
or authorisation is deemed to be granted.
Ownership of Firearms by a Trust
12 The amendment which allows a Trust to possess valuable firearms is to be
welcomed.
Cancellation of Accreditation (Section 8) 13
13.1 This is a practical amendment and is welcomed. However, as we believe that
the compulsory forfeiture of firearms is unconstitutional, in, such
circumstances compensation must be provided. For example, it would be unjust
for an association, such as a hunting 'association, which owns firearms for
training purposes, to be compelled to dispose of its firearms if its
accreditation is cancelled due to the misconduct of one of its representatives.
13.2 The effect of this is to penalise an innocent association both financially
and in other ways, and we suggest in such circumstances that either
compensation should be made, or mechanisms provided whereby the association is
not penalised as a result of the unlawful conduct of one of its
representatives.
14 Competency Certificates for Muzzle Loading Firearms
14.1 SAGA does not believe that it should be necessary to be in possession of a
specific competency certificate designed to permit possession of muzzle loading
firearms. If it is deemed necessary to further regulate muzzle loading
firearms, we propose that any 'competency certificate be sufficient for this
purpose. This will obviate the need to first generate new unit standards for
muzzle loading firearms-a time-consuming process because it will have to be
approved by the South African Qualifications Authority and implemented by
SASSETA.
14.2 It will not be possible to do this within the one year suggested grace
period, and should the South African Police Services recognise any other
competency certificate, as the proposed amendments currently stand, they
themselves will be guilty of not complying with the Act as amended.
15 Collectable Firearms Section 16)
15.1 The proposed amendments' in respect of this section are strongly
opposed by collectors. The Portfolio Committee's attention is drawn to
Regulation 5, which stipulates precise requirements for the licensing of a
collectable firearm. Once again, in the absence of evidence as to why the
current regime is' not acceptable, the proposed amendments will serve no lawful
purpose and therefore fail constitutional muster.
15.2 Furthermore, and notwithstanding the fact that the South African Heritage
Resources Agency does not have the resources to comply with the obligations
imposed upon it in terms of the Firearms Control Act, in terms of the enabling
legislation, its mandate is limited to heritage objects of a South African
nature. As the vast majority of collectable firearms under licence are not of
South African origin or nature, the effect of the amendment would be that these
would no longer be deemed to be collectable. Many collectors would thus be
forced to dispose of valuable firearms. This contravenes the property rights
clause in the constitution and therefore would be unlawful and
unconstitutional.
16 Rendering Inoperative
16.1 The proposed amendments exclude the South African Defence Force, South
African Police Services and other Government agencies. If civilians are to be
obliged to render their restricted firearms temporarily inoperable, then these
Government departments/agencies - the principal source of the restricted
firearms used in violent crime - should be subject to similar restrictions.
16.2 In the event that the surrendering of restricted firearms is necessary, we
suggest that the working parts merely be removed and stored in a separate
safekeeping device. This proposal however is offered without conceding that
such a legislative step is necessary or will achieve any objective.
17 Validity of C1cences (Section 27)
17 The proposal in this section to increase the period of validity of
licences, is to be welcomed. This will
alleviate some of the administrative burdens of the Act.
18 Sale of Muzzle Loading Firearms 18
18.1 SAGA welcomes the proposed amendment to restrict the sale of and transfer
of muzzle loading firearms to licensed dealers in arms and ammunition. This
will act as an additional control mechanism on the distribution of muzzle
loading firearms which will render additional legislative restrictions on
muzzle loading firearms unnecessary.
18.2 We agree that permits should be obtained for the import of muzzle loading
firearms -subject to the process being straightforward and streamlined. We are
however opposed to the need for obtaining an in transit permit, because this
will unnecessarily restrict visitors on their way through South Africa to hunt
with muzzle loading firearms in nearby countries.
40 Export Permits (Section 96) 19
19.1 No distinction is made between temporary exports and permanent exports. An
example of a temporary export permit would be a person who wishes to hunt in
Namibia, Botswana, Zimbabwe, etc for a short time. Their export permits
typically are obtained by submitting the required documentation to the local
firearm registration centre and are quick to process. Should the National
Convention arms Control Committee (NCACC) be required to approve a temporary
export permit, this could take three to six months and will have the .effect of
barring persons from hunting outside the borders of the Republic of South
Africa, because temporary export permits are normally only valid for 90 days.
19.2 If the export permit that has to be vetted by the NCACC, is a permanent
export permit, what lawful purpose will this amendment achieve? In the absence
of any explanation this requirement should be disregarded.
20 Unfit to Possess
20.1 We are opposed to the granting of any additional powers to the
Registrar. The existing powers granted to police officials to enquire and
declare a person unfit to possess firearms are frequently abused. Ordinary
police officials are not trained legal persons and few of them understand
concepts such as the onus of proof, and how to admit and assess evidence. The
effect of the proposed amendments, where payment of an admission of guilt fine
is made, is to give additional powers to the Registrar to enquire into the
fitness of persons to possess firearms.
20.2 We are concerned that this will constitute "double jeopardy - if a
person admits his guilt and pays the fine, he has served his sentence and the
punishment is finalised. To allow the Registrar then to assess a person's
fitness to possess firearms will constitute double jeopardy.
20.3 The amendment in Section 103, which creates the non-automatic declaration
of unfitness by payment of admission of guilt fines, is to be welcomed. This
will certainly ease the administrative burden of the National Prosecuting
Authority.
"Dispossession" (Section 118)
21 There is no definition of what constitutes "dispossession". This
will make the interpretation of the Act difficult as, as it stands, it is
extremely vague. Once again, in the absence of any indication of the purpose of
this" particular amendment, it serves no lawful purpose. This section in
itself " constit~tes reverse onuses, and this has already been declared
unlawful in the constitutional case of S vs Prinsloo I S vs Mbatha.
Additional Licences (Section 119)
22 The proposed amendment creates a situation where the holder of a licence and
additional licences must now keep a register to provide "adequate
documentary proof of the handing over and receipt of a firearm". There is
absolutely no reason for this requirement and it serves no lawful purpose.
It-is- inconceivable that such persons who live in the same premises, must keep
a register to record the handling out or use of a firearm to either one or the
other.
Ministers Forum (Section 132)
23 We welcome this proposed amendment, and urge the Minister to form such a
forum urgently. SAGA is well-placed and anxious to play a constructive role.
Schedule of Offences
24 Some of the amended penalties contained in the schedule appear to be
excessive. Section 20(5)(b) for example has a penalty of 25 years without any
apparent reason or justification. The SA Police Services should explain the
rationale behind the severity of the proposed penalties and what objectives
they will achieve.
CONCLUSION
SAGA is as committed as it has always been since its establishment in 1985 to
providing its input and expertise to
the State in its endeavours to obtain fair, reasonable, and practical
legislation and to protect both the interests of its members and of society at
large.
MARTIN HOOD: ATTORNEY LEGAL ADVISOR
14 August 2006