Firearms Control Bill, first draft

Items of historical interest.

Moderator: GenMod

Firearms Control Bill, first draft

Postby wrm » Thu, 2009-04-30 10:42

This is the first draft of the FCB to be released to the public, in 1999.

BILL.DOC (338 K Word document)

And here is SAGA's comment on that draft of the FCB.

FIREARMS CONTROL BILL

SUBMISSION ON BEHALF OF SOUTH AFRICAN GUNOWNERS ASSOCIATION (SAGA)

With the support of a vast number of lawful firearm
owners and other concerned South Africans SAGA objects
to the Firearms Control Bill. The main grounds for the
objection appear from what follows but SAGA requests
an opportunity to address the Portfolio Committee orally
and reserves to itself the right to raise further
grounds and to expand on its reasoning at the hearing.

1. BACKGROUND

1.1 On 24 April 1997 Mr Sydney Mufamadi, the erstwhile
Minister for Safety and Security, announced in
Parliament that his Department was of the view that a
progressive policy was needed which would contribute
to a drastic reduction in the number of firearms in
circulation; that a committee had been appointed to
undertake research into and to make recommendations
for a new firearms policy, and that the committee had
been tasked to investigate stricter measures for obtaining
firearm licences.

1.2 The committee consisted of Mr Peter Gastrow - the
director of the Institute for Security Studies and
former member of Parliament - other staff members of
the Institute, and three police officers, only two of
whom had some knowledge of firearms. Given the
importance of its task and its members’ lack of
expertise, one would have expected the committee to
consult widely with local firearms organisations,
owners and dealers. This was not to be. We do not know
what research the committee did but, for reasons which
were never revealed, it rejected all offers of expert
assistance from firearm organisations.

1.3 Two years passed before the committee produced a
report. The full document was not disclosed and we
don’t know what policy recommendations it contained
but the committee’s legislative proposals stunned the
entire firearms industry. Apart from entirely
unrealistic provisions relating to the sale, repair
and use of firearms and ammunition the proposals were
mainly to the effect that

all existing licences would lapse after a prescribed
period of time;

every existing licensee who did not re-apply to be
licensed would lose his firearm(s);

those who did re-apply would have to pass competency
tests (including psychometric tests) and would only be
able to acquire licences for the strictly
circumscribed use of a limited number of firearms;

and

all new licences would have to be renewed at regular
intervals.

1.4 If adopted the proposals would inevitably bring
about that a large number of lawful owners would lose
their arms. This, and some of the impractical and
wholly unreasonable effects of the proposals, evoked
an outcry from dealers, gunsmiths, collectors,
hunters, sportsmen and every firearm organisation in
the country. Assurances by the Department’s spokesmen
that the proposals were merely points for discussion
fooled no-one. Firearm owners expressed their dismay
in the media, scores of petitions were signed and
thousands of angry protesters took to the streets of
cities like Pretoria, Cape Town and Durban.

1.5 This is how matters stood when the 1999 general
elections took place. Mr Mufamadi lost his portfolio
and later, when questions were asked in Parliament, it
emerged that the new Minister knew very little (if
indeed anything) about the Gastrow proposals. A
departmental team was then tasked to draft a firearms
policy. Within months a document was prepared,
submitted to Cabinet and approved, but carefully kept
from the public eye. To this day it has not been
disclosed.

1.6 Thereafter the drafting of legislation commenced
and eventually, during the third week of November
1999, the Firearms Control Bill was released. It was
published in the Government Gazette on 3 December
1999.

1.7 The Bill embodies a drastic departure from the
existing system. In essence it incorporates the
principles of the Gastrow proposals: five years after
the legislation comes into operation every existing
licence will lapse; within that period every licensee
must dispose of any firearms in his or her possession
in excess of the number that he or she may lawfully
possess in terms of the Act and any arm not so
disposed of may be forfeited to the State unless it is
re-licensed under the new system of what may
conveniently be called SPECIFIC-USE LICENSING; but
each applicant and every application for a licence
will have to meet the new requirements; if a licence
is granted it will have to be renewed every five or
ten years depending on its type and the licensee may
only use the firearm for the purpose for which it has
been licensed.

2. LACK OF TRANSPARENCY

2.1 It is difficult to understand why there has been
so much secrecy about the proposed legislation. The
Gastrow committee was appointed without any
consultation with interested parties; then the
committee refused to consult with local experts; and
eventually the secretariat of the Department refused
to reveal the committee’s full report. Judging by the
new Minister’s amazement when he was questioned in
Parliament, it must have been kept even from him. But
the policy document which was prepared on his
instructions, has also been kept under wraps and,
until the drafting of this document, the Minister has
not heeded SAGA’s requests for a copy. The result is
that SAGA and other affected parties simply do not
know what the Government’s firearms policy is. Nor, it
would seem, do politicians who are not Cabinet members
know what it is. How does one reconcile this with the
express enjoinder in s 195(1) of the Constitution that
the public must be encouraged to participate in
policy-making?

2.2 It is all very well to say that interested parties
have an opportunity to air their views now. The point
is that they had no input in the formulation of a
policy which, with Cabinet approval, has now been
embodied in draft legislation. It is hardly likely
that any suggestions will be entertained which entail
a departure from an already adopted policy. The Bill
shows a remarkable resemblance to the Gastrow
proposals and Government knows how these proposals
were received. Its reluctance to disclose its policy
creates the impression that it is not prepared to face
a public debate thereof.

2.3 The situation has been aggravated by the fact that
many important aspects have been left to be dealt with
in Ministerial regulations which will only be
promulgated after the adoption of the legislation. In
effect therefore we don’t know what Government policy
is and we don’t know how the Minister is going to fill
in all the gaps in the Bill. To say that this is
highly unusual in a democratic and supposedly open
society is an understatement.

3. COMMENT

The main areas for comment are

the system of specific-use licensing,

the fact that existing licences will lapse with a
consequent loss to existing licensees,

the unacceptable levels of control over the use of
firearms and ammunition,

the purpose of the legislation, and

the constitutional validity of some provisions.

3.1 The system of specific-use licensing

3.1.1 The essence of the system is that a firearm
licensed for one purpose may, with minor exceptions,
not be used for other purposes.

3.1.2 Such a system cannot serve any useful purpose.
On the contrary, it is ill advised and
counterproductive. The principle seems to have been
adopted that arms licensed for hunting may also be
used for sports-shooting and vice versa but, for
reasons best known to the devisers of the scheme, may
NOT be used for self-defence. This matter will be
reverted to later in another connection but it is
necessary to say unequivocally at this stage that such
a prohibition is entirely indefensible. It flies in
the face of the principle of the common law relating
to self-defence which only requires the defensive
measure taken to be commensurate with the threatened
danger. Moreover, on what moral or other grounds can
it ever be suggested that, merely because it has not
been licensed for that purpose, a firearm readily at
hand cannot be used to ward off a life threatening
unlawful attack? Whatever may happen to the rest of
the Bill THIS ASPECT OF THE LEGISLATION REQUIRES VERY
SERIOUS RECONSIDERATION.

3.1.3 In any event, as has been seen and will be
illustrated in greater detail later, the avowed aim of
the legislation is to reduce the number of legally
possessed firearms. This can be achieved (though the
idea is not supported) through a simple limitation on
the number of firearms that any person may possess.
That specific-use licensing is neither necessary or
conducive to that end is self evident. Under the
present system many people own a single shotgun or
rifle which they use for the occasional hunt or
sports-shoot, and on which they also rely for
self-protection should the need arise. However, under
the proposed system occasional hunters and
sports-shooters (and dedicated hunters and
sports-shooters as well) who are in need of a
self-defence arm will have to apply for a self-defence
licence too. If it is granted every single one of them
will own at least one firearm which they could well
have done without.

3.1.4 The devisers of the scheme do not seem to
realize that firearms are used for purposes other than
the ones dealt with in the Bill. Many owners
(particularly of .22 rifles and pistols) are not
hunters or sports-shooters but simply like
occasionally "plinking" at inanimate targets. The Bill
does not cater for this entirely harmless pastime.

3.1.5 Attention is drawn to s 157(1)(bb) which enables
the Minister to make regulations prescribing the
declaration of persons as dedicated collectors,
hunters and sports-shooters. It is not clear what
purpose such a declaration will serve or whether it is
indeed necessary under a system of specific-use
licensing. But it cannot be supported if the intention
is that the Minister’s regulations may require more of
an applicant for one of the licenses in question than
is expected of him in terms of the Act itself.

3.2 Existing licences and licensees

3.2.1 It stands to reason that existing licensees will
lose the rights pertaining to their licences if the
legislation is passed; and that an undeterminable
number of them will also lose at least some of their
firearms.

3.2.2 These were the very reasons why the Gastrow
proposals were so vehemently opposed. Many licensees
are taking an extremely hardline stance and the
Committee should take cognizance of the ground swell
of resentment which exists all over the country. The
possession of firearms, whether it be for
self-protection, hunting or sports-shooting or for the
sheer pleasure of owning beautiful or historic
examples of the gunmakers’ craftsmanship, has become
part of the South African culture. In saying this we
do not only have a particular section of the community
in mind because we have long passed the stage when
members of certain race groups were not allowed to
obtain licences.

3.2.3 One often hears about firearms inherited from
relatives or friends with which the owners are not
prepared to part for all the money in the world. Many
of them are no longer in use but are still
immaculately maintained. The prospect of losing
firearms like these has raised the hackles of many
owners. And rightly so. In some cases the loss will be
more sentimental than real but it is this very type of
loss that no money can compensate. In other cases
there will be a substantial pecuniary loss as well and
one would at the very least have expected a provision
in the Bill for proper compensation. But that
expectancy is dashed by ss 146(2)(c) and (5). What the
owner will receive in the absence of agreement, is an
amount determined by the Registrar in accordance with
the Minister’s guidelines which have to be established
in consultation with the Minister of Finance taking
into account inter alia the financial constraints on
the State and its ability to pay all claims for
compensation. And to add insult to injury s 161(3)
provides that any forfeited firearm which the
Registrar regards to be of special value need not be
destroyed but shall become the property of the State!
(One may well ask why the State would want to own
firearms like these and what will become of them as
State property.)

3.2.4 In a recent radio interview one of the draftsmen
of the Bill claimed that the Minister has expressed
the wish not to alienate Afrikaners (who are, quite
wrongly, supposed to be the people who mostly own
inherited firearms) and has given instructions to
ensure the protection of their rights in the
legislation. The draftsman did not reveal that the
only consolation offered in s 160 read with s
157(1)(ee) of the Bill is a PERMIT to possess firearms
inherited from certain relatives, issued in the
Registrar’s discretion, SUBJECT TO SUCH TERMS,
CONDITIONS, RESTRICTIONS AND DIRECTIONS AS THE
MINISTER MAY PRESCRIBE!

3.2.5 The question is: Why must existing licences come
to an end? Why must properly licensed firearms be
forfeited at all? Faced with these questions in an
earlier radio interview a spokesman for the Department
(who was also a member of the Gastrow committee)
claimed that, unlike most white licensees, members of
other racial groups have been issued with licences
despite their lack of training in the safe handling of
firearms. Whether this a correct statement of fact, we
do not know. But if it is indeed correct, the fact
that there are those who have undeservedly obtained
licences cannot justify the hardship to competent and
responsible firearm owners. If a police spokesman is
prepared to make such a claim, surely the police must
know or must be able to find out who the people
concerned are. WHY MUST ALL OTHER LICENSEES SUFFER?

3.2.6 But this is not the reason which Mr Mufamadi
advanced. His statement in Parliament to the effect
that a reduction in the number of lawfully possessed
firearms is desired has never been repudiated. Mr
Mufamadi did not disclose what he sought to achieve by
such a reduction; nor has the Department since
revealed its aim. Unless there is a purpose of which
we do not know we must assume that the often heard but
lame argument has been adopted that a smaller number
of legally possessed arms must necessarily bring about
that there are less that can be stolen and
subsequently used in the commission of crime. We will
deal with the flaws in this argument later. Suffice it
to say at this stage that the most probable outcome of
the legislation will be an INCREASE in the number of
ILLEGALLY possessed firearms.

3.2.7 It will in any event be impossible for any
licensee to know before the lapse of the five year
period what number of arms he will be entitled to
possess, and indeed whether he will be entitled to
possess even one. So what is he supposed to do? If he
has not disposed of a particular arm and it is not
re-licensed, he will be in unlawful possession
thereof. THROUGH NO FAULT OF HIS OWN HE WILL
IMMEDIATELY BE COMMITTING A CONTRAVENTION OF S 3 WHICH
CARRIES A POSSIBLE SENTENCE OF 15 YEARS’ IMPRISONMENT
! AND AFTER CONVICTION FOR UNLAWFUL POSSESSION HE WILL
PROBABLY NEVER BE GRANTED A LICENCE AGAIN!

3.3 The unacceptable levels of control

3.3.1 Bearing in mind that the legislation is aimed
inter alia at the control of legally possessed
firearms, elaborate regulatory provisions must be
expected. It is understandable eg. that it is for the
Minister to prescribe the contents of applications for
competency certificates and licences, the nature and
content of the required supporting documentation, the
fees payable and the forms which have to used for all
the different purposes. One can also appreciate the
need for the power to regulate the trade in and the
manufacture and repair of firearms and ammunition.
That there must be a measure of control is unavoidable.

3.3.2 But the Bill goes much too far in granting power
to the Minister and the Registrar. The following are
examples of the unacceptable levels of control.

(a) A list of PROHIBITED firearms which may not be
possessed or licensed at all appears in s 4(1). At
least two items (firearms of which the caliber or
barrel length has been changed without the permission
of the Registrar) do not deserve a place in the list.
Scores of rifles have been modified in either of or
both these ways. Many hunters find it convenient to
use short barrelled rifles in the bush; and many
others use rifles of which the caliber has, for
various reasons, been changed. There are eg. many
303's around which have been fitted with so-called
sporting barrels, and probably even a larger number of
target rifles which have been re-barrelled to a
caliber more suitable for hunting. It must be realized
that shooters, having once found a dependable action,
think nothing of having the barrel length or caliber
changed. Arms of which the caliber has been changed
have been re-licensed and there is no reason why they
should be prohibited. What the particular relevance of
the barrel length of a rifle is, is in any event a mystery.
Of even greater concern is the fact that the Minister
will be authorised under s 4(2)(a) to prohibit any
other type of firearm in addition to those already
listed. Moreover, in terms of s 14(1)(b) he may also
extend the list of RESTRICTED firearms. It is
difficult to understand why additions to the two lists
cannot be affected in the normal manner by way of
amendments to the Act. In both cases the notice in the
Gazette must be preceded by its submission to the
Speaker and the Chairperson of the NCP for tabling in
Parliament. The intention must plainly be to give
Parliament an opportunity to debate the Minister’s
decision before it is put into operation and, if this
is so, one cannot understand why the Act cannot simply
be amended from time to time as and when additions
become necessary. Amendments like these should be few
and far between and should not add unnecessarily to
Parliament’s burden.

(b) For reasons which are not apparent, an equally
important power is treated differently. In terms of s
150(1) the Minister may, if he considers it necessary
in the interest of public safety or the maintenance of
law and order,
(i) by notice in the Gazette, prohibit or regulate for
a specified period and within a particular area the
supply and transportation of firearms and ammunition;
and
(ii) by written notice, direct all or particular
persons within a particular area, or any particular
dealer or manufacturer, To surrender all firearms or
ammunition, or all firearms or ammunition of a
particular class, within their possession.
Comparable provisions appear in s 33 of the 1969 Act
but s 33(1)(b) makes it plain that firearms and
ammunition must be surrendered FOR TEMPORARY
SAFEKEEPING ONLY. The Bill omits this important
qualification. Is this an oversight? If not, why has
the qualification been omitted? Surely the intention
cannot be to bring about the FORFEITURE of the arms
and ammunition that must be surrendered. Or is it?
In any event, the powers conferred by s 150(1)
constitute very serious violations of rights with
far-reaching implications and are of doubtful
constitutional validity. And, even if they pass the
constitutional barrier, the violation of rights is so
important that there is no reason why the Minister
should not at the very least follow the procedure
described in ss 4(2)(a) and 14(2) by delivering the
notice to the Speaker and Chairperson of the NCP for
tabling in Parliament.

(c) S 157(1))(zz) is of equally doubtful
constitutional validity. Whereas the preceding
paragraphs of s 157(1) grant the Minister the power to
make regulations relating to a large variety of
specific matters, para (zz) authorises him generally
"to provide for any other matter that the minister may
consider expedient to promote the purposes of this
act". REGULATIONS DO NOT GO THROUGH THE PARLIAMENTARY
PROCESS and in effect para (zz) gives the Minister
carte blanche to rule by decree and to regulate almost
every facet of the firearms and hunting industries,
all sports-shooting activities and indeed every
firearm owner’s use of his arms in whatever way he
deems expedient to promote the purposes of the act! We
realize that a similar provision appears in the 1969
Act but its constitutionality has never been tested.
And, apart from the question of constitutional
validity, s 157(1) already contains such a vast array
of specific powers that it is hardly likely that any
matters will arise which will require para (zz) to be
used. It seems to be nothing but a blanket provision
to cater for any eventuality which is not presently
foreseeable. This does not render it innocuous: in the
wrong hands it is wide open for abuse.

(d) In terms of s 154 the Minister may designate OTHER
STATE OFFICIALS as POLICE OFFICIALS. This is neither
necessary nor advisable. Police officials will have
extremely wide powers of inspection, search and
seizure under Chapters 13 and 14. With additional
training ordinary policemen who are accustomed to
search and seize in terms of the Criminal Procedure
Act will know how to exercise their new powers. But
the same cannot be said of other State officials. Many
of them will probably not even know what to look for
when they conduct a search or inspection. How eg. can
anybody with an imperfect understanding of the Act
conduct an inspection under s 114 or perform his
functions under s 120? Or how can anybody with a less
than good understanding of the relevant provisions of
the Criminal Procedure Act exercise the powers
conferred by ss 115 to 119? Moreover, the probability
of abuse is simply too great to allow other State
officials to perform these important duties. One of
the objections to the legislation proposed by the
Gastrow committee was that the SA Police Service would
not have the manpower or resources to execute its
functions thereunder. The same can rightly be said of
the present proposals. The problem cannot be solved by
harnessing the resources and unskilled manpower of
other departments. Such a step will only lend itself
to abuse and the ever increasing problem of graft and
corruption.

(e) Ss 15(5)(c), 16(6)(c), 17(6)(c), 18(5)(c),
19(9)(b), and 157(1)(n) are farfetched, to say the
least. They authorise the Minister to prescribe the
way in which licensed firearms may be USED. What
purpose are these provisions supposed to serve? Every
firearm will be licensed for a specific use and may
(with minor exceptions) not be used for a different
purpose. What more does the Minister want to
prescribe? Some licensees will be expert users of
firearms. What can the Minister eg. tell a dedicated
sports-shooter who has represented his country about
the use of his gun or rifle? Or what can he tell the
dedicated hunter? Therefore: what need is there for
Ministerial prescriptions in these cases? In the case
of firearms licensed for self-defence the redundancy -
even the foolishness - of such prescriptions is even
more glaring. Can the Minister be presumptuous enough
to tell licensees beforehand how to use their firearms
in emergency situations?

(f) The regulation of sports-shooting does not end
with the Minister’s power to prescribe to shooters how
to use their arms.

(i) In terms of s 18(2) a dedicated sports-shooting
license may only be issued to a dedicated sports
person who is required (by virtue of the definition of
the term in s 1) to be a member of an accredited
sports-shooting association. S 18(3)(b) requires him
to be a member of an accredited sports-shooting club.
(The different wording suggests that membership both
of a club and of an association is required.)

(ii) In terms of s 18(5)(b) the firearm in question
may, apart from hunting, only be used on the premises
of an accredited shooting range.

(iii) The Registrar issues and cancels accreditations
in accordance with the Minister’s regulations (s 9
read with s 157(1)(e)).

(iv) In addition the Minister prescribes the standards
of ranges; the control thereof and the persons
employed thereat; the places where they may be
established; the types of firearms and ammunition
which may be used there; the closure of ranges which
do not comply with his requirements (s157(1)(aa)); and
the information to be kept and supplied annually to
the Registrar by sports-shooting associations and
clubs (ss 18(6)and 157(1)(gg) and (hh)).

(v) He also prescribes the way in which the shooter is
to store, carry and use his firearm(s) and ammunition
(s 157(1)(n)).

(vi) Unless authorised by the Registrar in accordance
with the Minister’s regulations, no licensee may
purchase more than 2400 cartridges during a period of
12 months, and possess more than 200 cartridges for
each licensed firearm (s 97). Shooters who reload
ammunition may not at any time have more than 2.5 kg
of propellant and 2400 primers in their possession (s
48(2)(a)). The Registrar does not seem to have the
power to relax this requirement.

(vii) The Registrar decides whether the shooter may
use more than one firearm (s 18(4)). (S 16(4) is to
the effect that the Registrar may issue "a further
licence or licences" to an occasional hunter or
sportsman. The different wording of ss 17(4) and 18(4)
suggests that no more than one additional licence may
be issued to a dedicated hunter or sports-shooter. Is
this really the intention? If so the result is ironic!
Dedicated hunters and sports-shooters should rather be
in a better position than their occasional
counterparts.)

(g) One reads these provisions with dismay. South
African marksmen (small-bore, full-bore, airgun,
pistol, clay target, silhouette and even black powder
shooters) are fighting an uphill struggle to hold
their own in the international arena. Given our
comparatively meagre facilities they are faring
remarkably well. (South African shooters have won
medals at several recent international events and
during 1999 the full-bore team won the Palma shoot
against teams from countries like England, Germany and
the United States.) But they lack proper facilities
and equipment and some of them are compelled to train
in rather primitive conditions. What they need is
encouragement and assistance, not what the proposers
of the legislation want to dish out to them. To hear
that ranges will have to comply with as yet unknown
standards and may be closed if they don’t, is bad news
indeed because to build, equip and maintain ranges
cost money which many shooters and clubs can ill
afford. I have no doubt that some enthusiasts will
simply give up if the ranges where they have been
training are closed. All of them will simply not be
able to afford the time and money for regular trips to
the nearest accredited ones. It must be realized that
sports-shooting is done on a strictly amateur basis.


There is no money in it and participants, even our
national teams, must dig deeply into their own pockets
if they want to compete. All types of ammunition have
become expensive which is one of the reasons why many
shooters buy their stocks or reloading components in
bulk at better prices. Another reason is that it
requires constant practice in order to become and stay
competitive. (While preparing for major competitions,
some shooters use more than the proposed permissible
quantities in a single practice.) Account must also be
taken of the fact that sports-shooters generally are
competent handlers of firearms and ammunition and
that, the more proficient they become, the more
responsible they tend to be. THERE IS REALLY NO NEED
FOR TREATING THEM LIKE BABIES.

(h) The next objectionable provision of the Bill is s
157(1)(i). It empowers the Minister to make
regulations "prescribing CONDITIONS AND REQUIREMENTS
to which competency certificates, licences, permits,
authorisations and endorsements are subject."Failure
to comply with a condition specified in a licence lays
the holder open to the cancellation of the licence and
the possible forfeiture of the firearm to which it
relates. (S 29(2)(b) and (3).)

It is difficult to understand the purpose of these
conditions and requirements or to visualize their
nature. This applies particularly to competency
certificates which are prerequisites for obtaining
licences but serve no further purpose. Since every
applicant must comply with all the requirements listed
in s 10(3) one cannot imagine what further
requirements may be set or what conditions may be
attached to them. Nor is it possible to conceive of
conditional licences. What conditions or requirements
can eg. be attached to a self-defence or a dedicated
sports-shooting licence?

(i) Then there is the Minister’s power to declare
firearm free zones under s 149. Suggestions that there
should be zones where firearms may not be carried were
first heard in this country after people had been shot
at public schools. It was as a result of such an
incident that the Minister of Education said eg. that
firearms should be banned from schools because places
of learning and firearms do not go together. Much as
one would like to support these sentiments, one should
not allow one’s emotions to cloud one’s judgment and
ignore the realities of the situation. Periodic
outcries for strict firearms control are not uncommon.
They often occur when emotions are running high after
tragedies like the random shooting of innocent
civilians and mass family murders. (Incidents in
countries like Australia, New Zealand, Canada and the
United States come to mind.) But it is interesting
that, hard upon the heels of strict firearm control
(including a costly buy-back scheme) instituted in
Australia under pressure of public hysteria as a
result of such an incident, there followed reports of
a man who had wiped out an entire family by gassing
them in their car. The point is that people who are
set upon violent crime will always find ways and means
of attaining their purpose WITH OR WITHOUT FIREARMS.

In South Africa we have unfortunately reached the
stage where the carrying of firearms for protection
against violent and often lethal attacks cannot be
condemned. Go to any co-op or some other place where
farmers are wont to gather. See how many of them are
armed. Can anyone blame them? No, we all know what is
happening around us. And, when they go to town on
weekdays to pick up their children at school or go to
church on Sunday, they don’t leave their pistols at
home because they have to return to their farms -
sometimes after dark - not knowing what to expect. Sad
though it may be, carrying firearms has become a way
of life to them. So what do they do when the school or
church has been declared a firearms free zone? Do they
take their firearms to the local police station which
is more often than not only equipped for the
safekeeping of a few firearms? And what about the not
so law abiding section of the community? Will they not
be aware of the times when there will be ample stocks
of firearms deposited at poorly equipped and badly
protected police stations? Can it really be
anticipated that the ever present criminal element
will obey the prohibition? Will they be deterred by
the Minister’s declaration from taken their arms
wherever they please?

These are the realities of the South African
situation. We dare not create a situation where
criminals remain criminals - armed criminals at that -
and their intended victims have become soft targets.

(j) We turn to ss 126 to 129 where the new concept of
administrative transgressions punishable by the
Registrar is created. In principle there can be no
objection to the creation of a procedure which will
obviate the need of criminal prosecutions for minor
transgressions of the Act or the regulations. But
there are several problems. Firstly, it is said in s
129(2) that the Registrar must follow such procedures
as may be prescribed in exercising a discretion to
impose the sanctions mentioned in subs (1). This is
another example of interested parties having been left
in the dark by relegating an important matter to the
Minister’s regulatory powers. More importantly,
however, there is no provision for the procedure to be
followed by the Registrar in deciding in any
particular case whether an administrative
transgression was committed at all. It cannot be
anticipated that all people who are alleged to have
committed transgressions will admit their guilt and
there must be a procedure to establish it if they do
not do so. THIS PROCEDURE AS WELL AS THE PROCEDURE
REFERRED TO IN S 129(2) SHOULD BE CREATED IN THE ACT
ITSELF.
Secondly, the possible sanctions and maximum
administrative fines listed in Schedule 3 are
excessive. Cancellation of the licence and a
declaration that the person concerned is unfit to
possess a firearm, coupled with a possible R5000 fine
and R10000 for a second transgression for failing to
notify the Registrar of a change of address is grossly
unreasonable.
Thirdly, there should be a right of appeal. It is not
even clear whether the Registrar’s actions in respect
of administrative transgressions constitute the type
of administrative decision envisaged in s 142(1)(d)
for an appeal to the Appeal Board. But the appeal
should in any event be to a court of law and not to a
Board appointed by the Minister.

(k) The remarks in the preceding paragraph apply
largely to the Registrar’s power to make declarations
of unfitness under s 107. Here again there is no
provision for the procedure to be followed in order to
decide whether one of the grounds for such a
declaration exists; and provision for a procedure
prescribed by the Minister to be followed by the
Registrar in exercising his discretion to make the
declaration. The procedures should be prescribed in
the Act itself. And again there should be a right of
appeal to a court of law. In addition the power to
declare a person unfit under s 107(1)(g) for any
reason other than the listed ones, is unwarranted.
EVEN THE COURTS DO NOT HAVE THAT POWER UNDER S 108 !

4. THE PURPOSE OF THE LEGISLATION

4.1 Perhaps the most remarkable feature of the Bill is
the emphasis in the Preamble on the constitutional
right to life and personal security. The Preamble
opens with three observations viz
that "every person has the right to life and security
of the person, including the right to be free from all
forms of violence";
that "the adequate protection of such rights is
fundamental to the well-being and to the social and
economic development of every person"; and
that "the Constitution of the Republic of South Africa
places a duty on the State to respect, protect,
promote and fulfil the rights of individuals as
enshrined in the Bill of Rights, including the right
to life and security."

After stating that "the increased availability and
abuse of firearms and ammunition have contributed
significantly to the high levels of violent crime" the
Preamble proceeds to say that it is deemed necessary
to enact legislation which is aimed inter alia at
providing a more secure environment in South Africa in
which there is greater safety and protection for
everyone. The core of the Preamble is thus (1) the
high levels of crime (2) the contribution thereto of
the increased availability and abuse of firearms and
(3) the State’s duty to respect, protect and promote
the right to life and personal security. This is
indeed the sole motivation of the proposed legislation.

4.2 We will deal with the emphasis on the right to
life and personal security but let us first see how
the Bill handles this right.

4.3 As mentioned earlier, every person is entitled at
common law to defend himself or herself against
unlawful attacks by meeting violence with violence -
even with lethal violence in appropriate
circumstances. For this purpose any weapon may be
used; as mentioned before, the only qualification is
that the defensive measure must be reasonably
commensurate with the violence which has to be met.
The Bill does not purport to affect the right of
self-defence but it certainly limits one’s choice of
weapons and one’s right to defend oneself effectively.
We say this for the following reasons:

4.3.1 Under the system of specific-use licensing
NO FIREARM MAY BE USED FOR SELF-DEFENCE UNLESS IT HAS
BEEN LICENSED FOR THAT PURPOSE and
SEMI-AUTOMATIC SHOTGUNS which are by far the most
effective self-protection arms, MAY NOT BE LICENSED
FOR THAT PURPOSE.
Thus, if Mr Smith is attacked and reasonably fears for
his life, he is not supposed to use the firearm which
he may actually be carrying but which has been
licensed for dedicated sport-shooting.

4.3.2 All of us are aware - some more painfully than
others - of the murders, the robberies, the rapes and
similar offences committed daily throughout the
country. We are all at risk because, although numerous
violent crimes are committed on distant farms,
city-dwellers are equally open to attack and have
become victims in spite of all the modern safety
appliances available to them. The average citizen
relates the high levels of crime to his own situation.
He knows that the police cannot possibly protect us
all and that criminals very often use firearms to
murder or subdue their victims. Therefore, and because
he does not know that he will not be next in line, his
natural inclination is to arm himself in similar
fashion in order to be able to defend himself
effectively whenever necessary.

4.3.3 Of all this the proposers of the legislation
seem to be unaware. Moreover, they do not seem to
realize that, from its very nature, the need to defend
oneself is not predictable. We do not know when and
where it may become necessary to do so. This is why
many of us arm ourselves beforehand in order to be
prepared for danger. Yet, in terms of s 15(3), every
applicant for a self-defence licence will have to
satisfy the Registrar, not only that he is personally
(presumably by reason of his peculiar circumstances)
in need of a firearm for self-protection, but also
that his need cannot reasonably be satisfied by other
means.

4.3.4 How does one set about complying with these
requirements? How does one persuade the Registrar of
one’s actual need of a firearm for self-protection
apart from drawing his attention to the violent crimes
committed every day? And how does one establish that
the need cannot reasonably be satisfied by means other
than the acquisition of a firearm? Does one have to
show eg. that installing an alarm system and security
fencing or engaging professional security guards will
not help ? How can one satisfy the Registrar that
these measures will be insufficient until they have
failed and one actually had to face an attack? The
problem is that there is no set standard for complying
with the requirements except the satisfaction of the
Registrar which is as nebulous as can be. Taking into
account moreover that the Registrar will obviously
have to assign the consideration of applications to a
number of delegates and that standards may differ, it
becomes patent that any applicant can only hope for
the best and has no certainty at all that his
application will be successful.

4.3.5 And even if the application is successful the
licensee can never be sure that he will retain the
licence. Five years after obtaining it, he will have
to apply again; and yet again five years afterwards.
Each time he will have to satisfy the Registrar all
over again. In the meantime he must be particularly
careful to do precisely what the Act requires him to
do for, if eg. he happens to lose the licence, the
Registrar may cancel it (and impose an administrative
fine as well) for the entirely human oversight of
failing to notify the authorities of the loss within a
prescribed time and in a prescribed manner. Even more
astounding is the s 15(5)(c) which provides that a
firearm licensed for self-defence may only be used "in
accordance with such regulations as may be
prescribed." IN OTHER WORDS, THE MINISTER WILL TELL
LICENSEES HOW TO DEFEND THEMSELVES!

4.3.6 ALL THIS DOES NOT TALLY WITH THE PROFESSED
INTENTION TO HONOUR, PROTECT AND PROMOTE THE RIGHT TO
LIFE AND PERSONAL SECURITY. It is difficult to see how
the proposers of the legislation can even try to
justify the prohibition against defending oneself with
a weapon licensed for another purpose. What earthly
purpose can it serve? Moreover, how can it be
justified that licences issued in respect of
self-defence firearms remain valid for five years only
whereas those issued in respect of dedicated
sports-shooting and hunting endure for ten years? Or
that semi-automatic shotguns may be licensed for
dedicated sports-shooting but not for self-defence?
Unjustifiable differentiation like this shows how
arbitrary the legislation is and that, despite all
their protestations in the Preamble, THE PROPOSERS ARE
PAYING LIP SERVICE TO OUR RIGHT TO LIFE AND PERSONAL
SECURITY. IN FACT THEY DO NOT HONOUR ITS PROTECTION
AND PROMOTION.

4.4 This is not where the matter ends. We mentioned
earlier that it is said in the Preamble that the
legislation is aimed inter alia at providing a more
secure environment in which there is greater safety
and protection for everyone. According to s 2(b) one
of its purposes is to prevent crime involving the use
of firearms. From other parts of the Preamble and s 2
it emerges that the idea is to prevent the
proliferation of illegally possessed firearms and to
remove them from society. But it is clear that in the
proposers’ eyes the prevention of the proliferation of
illegally possessed arms and their removal from
society go hand in hand with strict control over
legally possessed arms. In s 2(c) eg it is expressly
stated that the purpose of the legislation is to
prevent the proliferation of illegally possessed
firearms by providing for the removal of those
firearms from society and by improving controls over
legally possessed firearms. They believe (so spokesmen
for the Department persistently explain) -
that crimes involving the use of firearms can be
prevented by curbing the proliferation of illegally
possessed firearms, and removing them from society, and
that this can be achieved through improved control
over legally possessed firearms.

4.4.1 The first proposition is plainly correct. THE
SECOND, HOWEVER, IS NOT. As a general observation one
may say at the outset that control over legally
possessed firearms already exists in the form of the
1969 Act and that a change should only be considered
if there is a real likelihood that it will have a
significant effect on the high levels of crime.

4.4.2 Although it is not spelt out in the Bill the
underlying argument is known to most of us viz that
strict control over legally owned firearms is
necessary to prevent them from being stolen and thus
from becoming capable of illegal possession and
criminal use. One gets the impression that the
proposers have not followed the debate on the Gastrow
proposals because the argument has been publicly
refuted time and again. The following must be borne in
mind:

(a) Crimes are often committed, not with stolen
firearms, but with ones acquired in other illegal
ways. We all know that firearms derived from other
illegal sources are readily available and that many
people who want to acquire them for criminal purposes
have their own ways of getting them. One of the
draftsmen stated recently on the radio that stolen and
lost firearms outnumber those illegally smuggled into
the country. We find this astounding because we were
always told in the past that reliable statistics are
not available mainly because the number of stolen and
lost firearms is unknown since all thefts and losses
are not reported. Have these statistics suddenly
become available? But, more importantly, the statement
implies that the authorities know the number of
firearms that enter the country illegally. IT IS
SIMPLY NOT POSSIBLE TO KNOW THIS. Smuggled firearms do
not enter the country through the border posts and are
not faithfully declared. It would be interesting to
see the relevant figures and their verification.

(b) Conversely, every stolen firearm is not put to
criminal use. We know eg. that, while some sections of
the community were precluded in the past from
obtaining licences, many of them acquired stolen
firearms and kept them illegally because they felt
themselves threatened and armed themselves for the day
when their fears might realize.

(c) Accepting, nevertheless, that at least some
violent crimes are committed with stolen or lost
firearms the question is: from whom are they stolen or
by whom are they lost? It is no secret that firearms
are being stolen almost at will from policemen and the
National Defence Force or cannot be accounted for.
That murders and armed robberies are often committed
with military type automatic firearms is equally
notorious. It is hardly likely that these arms could
have been stolen from or lost by private owners.

(d) Firearms are often stolen or lost through no fault
of their possessors. In many cases the possessors are
killed or coerced to surrender their arms. It would be
most revealing to learn how many licensees have been
charged during the last five years or so under s39(1)(k)
of the 1969 Act for the culpable loss of firearms.

(e) The point about the considerations mentioned in
(a), (b), (c) and (d) is that, whereas the legislation
is mainly aimed at control over private arms, we do
not know what proportion of stolen privately owned
arms are used for criminal purposes. ONE CANNOT SIMPLY
ACT ON THE ASSUMPTION THAT STRICTER CONTROL WILLHAVE
AN EFFECT ON THE LEVELS OF CRIME. Before it can be
said that the legislation will have a meaningful
effect it is necessary to know (bringing each
component into account) what percentage is committed
with firearms stolen or lost from private ownership
due to the culpability of the legal possessor.

4.4.3 Bearing in mind that the idea is to prevent
firearms from being stolen, the success of the scheme
must depend primarily on the nature of the control
measures. It is in this regard that the legislation is
particularly offensive. Provisions ensuring safe
storage and conveyance will certainly assist but
already appear in the existing legislation and have
not been successful for lack of effective enforcement.
Will the new measures fare any better? The answer is,
firstly, that they cannot be successful without a
special effort at effective enforcement which no
legislation by itself can possibly achieve. Secondly,
we do not know what the new measures will be because
s89 provides that firearms and ammunition must be
stored and carried or transported in accordance with
such regulations as may be prescribed. We will have
to wait and see what the Minister says.

4.4.4 But this is not the main objection. In line with
the ill-conceived Gastrow proposals, the Bill goes
much further. It also limits the NUMBER and USE of
firearms that may be legally possessed and sets all
kinds of conditions to be complied with before
firearms may be licensed. THESE PROVISIONS CANNOT
POSSIBLY HELP TO PREVENT THE THEFT OF FIREARMS.

4.4.5 Bearing this in mind, can it really be said that
the legislation will achieve the removal of illegally
possessed firearms from society? The answer is plainly
no; it will achieve the removal of hitherto legally
possessed arms. IN EFFECT PARLIAMENT ITSELF WILL
CREATE THE ILLEGALITY AND THEN PRIDE ITSELF ON HAVING
REMOVED "ILLEGALLY" POSSESSED ARMS FROM SOCIETY!

4.4.6 There is no getting away from Mr Mufamadi’s
statement that a drastic reduction of legally
possessed firearms must be achieved. In the absence of
any subsequent repudiation by the present Minister we
must accept this to be the real reason for the new
measures. As we said earlier we must also accept that
the argument has been adopted that a smaller number of
legally possessed arms must necessarily bring about
that there are less that can be stolen and
subsequently used in the commission of crime. The fact
of the matter is simply that, provided he takes care
that his arms are at all times safely stored and
conveyed, IT MAKES NO DIFFERENCE WHETHER A LICENSEE
OWNS ONE OR TEN FIREARMS. The Department is well
aware, no doubt, of the thousands of licensees who own
several arms and have not lost one, and of those who
owned a single arm which has been stolen. Experienced
policemen know full well that multiple owners
generally take much better care of their arms than
those who own only one.

4.4.7 The Department is no doubt also aware of the
attempts in other countries to reduce the incidence of
violent crime through a reduction of the number of
licensed firearms. It should also be aware of the
astronomic costs involved in such an exercise, and of
the fact that the attempts have generally failed and
have only brought about an increase in the number of
illegally possessed arms. This was predictable because
owners who had hitherto been in lawful possession
turned to unlawful possession on account of the very
insistence on strict measures to obtain licences. We
must face the fact that people who perceive the need
to own forearms will acquire and keep them illegally
if they are discouraged from possessing them legally.
This is what experience has taught us.

4.4.8 We mentioned earlier that the sole motivation of
the legislation is the high levels of violent crime,
the contribution thereto of the availability and abuse
of firearms, and the State’s duty to honour, protect
and promote the right to life and personal security.
But we have indicated that the legislation will in
fact NOT honour the right in question because it will
disable us from defending ourselves effectively.
Whether any one of us will obtain a licence for
self-defence will depend on the discretion of a State
official and, if any one of us obtains a license, the
Minister will tell us by regulation how we are to use
the arm.

5. CONSTITUTIONAL VALIDITY

SAGA is of the view that a number of provisions of the
Bill infringe upon fundamental rights enshrined in the
Constitutional and are invalid.

5.1 We have dealt with the way in which the Bill
infringes on the right to defend oneself effectively
against unlawful violent attacks which is a plain
concomitant of the right to life and the right to be
free from all forms of violence.

5.2 The legislation entails the limitation of several
other fundamental rights. We mention the following as
the most glaring examples:

(a) The right to property which is infringed inter
alia by the termination of all existing licences with
the resultant loss of an indeterminable number of
firearms without adequate compensation; by the
diminution of the value of firearms and equipment
which the mandatory disposal under Item 1(2) of
Schedule 1 will entail; by the prescriptive way in
which the use of firearms is dealt with in the
legislation, and by the fact that owners will not be
entitled to alter, repair or even destroy their arms
if they wish to do so.

(b) Freedom of association: The legislation is
designed to force persons to associate with accredited
firearms organisations without affording them the
freedom of choice not to join, and deprives them of
the right to freely form other associations.

(c) The right to privacy which is infringed by the
extensive powers of search and seizure under Chapter 14.

(d) The right to a fair trial which is infringed by
the host of presumptions in Chapter 15, by the
creation of administrative transgressions to be tried
and punished by the Registrar, and by the Registrar’s
power to declare persons unfit to possess firearms.

5.3 The ultimate question will be whether the
limitation of these rights is reasonable and
justifiable in an open and democratic society based on
freedom, equality and human dignity. It is a question
which the proposers of the legislation will have to
answer, not only to the Constitutional Court, but, in
conscience, also to every law abiding citizen. The
ironic part of the legislation is that the Preamble
wants to tell us in effect that every citizen, and
particularly every firearm owner, must suffer the
violation of his rights for the common good so that
greater safety and protection can be afforded to
everyone. We have shown that, apart from there being
no reason to believe that the legislation can do so
any better than the 1969 Act, IT WILL IN FACT LEAVE US
IN A WORSE POSITION AS FAR AS OUR RIGHT TO PROTECT
OURSELVES IS CONCERNED.

6. CONCLUSION
SAGA’S PROPOSAL IS THAT THE BILL BE SCRAPPED BECAUSE
IT IS FLAWED TO THE EXTENT THAT IT CANNOT SIMPLY BE
RESHAPED BY MINOR AMENDMENTS. WHAT THE DEPARTMENT
OUGHT TO DO, IS TO FORM A PROPER WORKING RELATIONSHIP
WITH FIREARMS ASSOCIATIONS AND SOUTH AFRICAN EXPERTS
AND TO FIND SOLUTIONS TO WHATEVER PROBLEMS IT MAY HAVE
WITH THE ENFORCEMENT OF THE EXISTING LEGISLATION IN
THIS WAY.
[x]No Guns [x]No Rights [x]No Future [x]No Way
wrm
 
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