Critical analysis (iii) The Policy Response

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Critical analysis (iii) The Policy Response

Postby Martin_tu » Sun, 2006-05-28 12:49


The National Crime Prevention Strategy (NCPS) released in May 1996, provides the context to the South African government's adoption of a policy of restrictive gun control. It is this document that designated the "number and easy accessibility of firearms (a)s a major contributor to violent crime." 1

The NCPS was an attempt by the government to provide an overarching framework for the co-ordination of the various departments involved in crime prevention, as well as to rally the population around a common societal vision. In an innovative and progressive approach it sought to draw in the departments of Welfare, Health and Education as well as those departments traditionally involved in crime prevention such as Safety and Security, Correctional Services, Justice and Defence. The NCPS describes a multi-faceted approach to crime prevention consisting of 1) re-engineering the criminal justice process, 2) reshaping community values and education, 3) environmental design and 4) combating transnational crime.2

The major policy shift outlined in the NCPS document is one of a move away from purely reactive crime control to a more proactive stance that aims at crime prevention. This involves a shift away from traditional strategies of increased policing and stricter sentencing that aim to deter an individual with pre-existing criminal intent. Rather, the focus is on an "investment in those spheres which may prevent ... people from becoming criminals." 3

Whilst preventing the formation of criminal intent is obviously a far superior aim than merely punishing offenders, it requires a magnificent feat of social engineering in which "we need to -

1 Inter-departmental Strategy Team, NCPS, 22.
2 Ibid., 51.
3 Ibid., 5-6.

- weave a new social fabric" through "reshaping community values and education" 4 Although, as the old adage states "prevention is better that cure", this is inherently a more long- term process (if it is actually possible at all), a fact that the NCPS readily admits.5

In the short term, the means with which criminal acts are perpetrated, are targeted. Firearms are identified as facilitating the perpetration of crime and thus the availability of firearms as increasing the risk of victimisation.6

As the framers of the NCPS put it "there is little doubt that the large number and easy accessibility of firearms contributes to the high levels of criminal violence in South Africa... A key issue is the ease with which potential criminals can acquire firearms. The availability of firearms is reflected in the number of licensed guns, as well as in estimates of the numbers of illegal weapons in circulation in South Africa." 7

One of the presuppositions underlying these statements is the belief that legal firearms constitute a ready source of arms for the criminal population and decreasing the number of licensed civilian arms would limit the availability of firearms to criminals. Another is that licensed civilian arms are positively associated with high levels of violent crime.
Civilian firearm ownership is seen as intrinsically negative. Unfortunately, no cognisance is taken of the fact that firearms can also be used effectively to prevent the perpetration of crime. As the drafters of the NCPS see it "the fact that a large portion of the citizenry is armed, serves to escalate the levels of violence associated with crime" and "the proliferation of privately owned firearms ... reinforce(s) a culture of violence." 8

The merits and demerits of these specific beliefs undergirding the crime prevention strategy's approach to firearm -related crime, will be examined in some detail in chapters 6 to 8.

4Id. 5 Id.
6 Ibid.. 13.
7 Ibid., 22.
8 Ibid., 22.

Nonetheless, with this logic informing the policy response to violent crime, it is unsurprising that legislators believe that decreasing the number of firearms in civilian hands is likely to diminish levels of violence in South Africa. It is this conviction that gave rise to the Firearms Control Bill in a move to replace existing legislation with a more restrictive firearm policy.

Many politicians, security personnel and advocates of gun control, deem the existing legislation, the Arms and Ammunition Act no. 75 of 1969, to be insufficient and deficient in regulating the use of firearms in South Africa,9 This is despite the fact that ardent Gun Free South Africa lobbyist, Adele Kirsten, herself admitted that existing legislation "is regarded as one of the strictest firearms legislation in the world." She continued that "the law is hardly followed and is proving woefully inadequate in regulating private firearms ownership."10

If the law is "hardly followed" then the fault could possibly lie with enforcement of the law and not the legislation per se. This is certainly the line that the anti-gun control lobby takes in arguing that the existing legislation would, in fact, be adequate if it was properly enforced.11
Despite this assertion, the new Firearms Control Bill was drafted and published in December 1999. After a process of public consultation, a revised version of the Bill was tabled in parliament in May 2000. At the time of writing, the Bill awaits the signature of the President before it is enacted. Until then the Arms and Ammunition Act remains in force.

There are several provisions of the present Act relating to firearms legally owned by private individuals (other than gun dealers, gun smiths etc.) which have come under scrutiny in recent years. Some of the most pertinent provisions are outlined in the following section.

9 Dirk Besdziek, "Into the Breech: Reversing the Proliferation of Firearms in South Africa," in African Security Review vol. 5 no. 6 (1996), 22.
10 Adele Kirsten, "Stopping Gun Violence in South Africa," in Africa News July 1997 ( ... frica.html) (04/11/1999). 11 B. Nixon (June 1996) cited in Besdziek, "Into the Breech," 22.

2.1 The Arms and Ammunition Act no. 75 of 1969

The Arms and Ammunition Act allows for anyone over the age of sixteen, and not otherwise disqualified, to hold a firearm licence. Children under the age of sixteen may use a firearm if supervised by someone over the age of twenty-one who is in lawful possession of a firearm.12

At present there is no limitation on the number of firearms an individual can own. Firearm licences do not have to be renewed and remain valid, "until the possession of the arm is permanently transferred by the holder thereof to any other person" or until the holder of the licence is declared unfit.13

Section 12 of the Act stipulates that individuals will be declared unfit to possess a firearm if they have been convicted of unlawful possession of a firearm and if they have been convicted of any offence in which a firearm was used. However, this declaration of unfitness may be circumvented by payment of an admission of guilt fine, which would then allow the individual to lawfully possess a firearm licence.14

The Act requires that firearms be stored in safe and secure facilities. Negligent loss or theft of a firearm constitutes a punishable offence. Anyone found guilty of such an offence may be found unfit to possess a firearm.l5 The Act also requires lost, stolen or destroyed firearms to be reported within twenty-four hours of their loss being apparent16

Section 38 allows licensed firearm owners to carry the firearm on their person as long as it is completely concealed and always under their immediate control.17

12 McKenzie, "Domestic Gun Control Policy," 12.
13 Ibid., 20. 14 Id.
15 Besdziek, "Into the Breech," 27.
16 Ibid., 21.
17 Ibid., 28.

Section 39 delineates the penalties for illegal possession of firearms with a maximum sentence often years imprisonment for illegal possession of commercial arms and twenty-five years for arms of a military nature.18 The minimum sentence is five years. Possession of a firearm without a licence makes one liable for a fine of R12 000 and/or a maximum of three years in prison for a first offence or five years for a subsequent conviction.19

One of the most severely criticised clauses of the Act, Section 8 (1), allows licensed firearm owners to lend their firearms to others. This obvious loophole made it possible for those who would ordinarily not qualify for a licence to be in legal possession of a firearm. Alternatively, a buyer could take possession of the firearm before his/her firearm licence had been approved.20

An amendment passed by Parliament prior to the 1999 elections stipulates that licence holders can only lend their guns to other licence holders. The person borrowing the gun may only use the gun on land, which belongs to or is occupied by the person who holds the licence for the gun in question.21

Of paramount importance is the question of which party carries the burden of proof and the issue of justification for possessing a firearm. Under current regulations, in general, all citizens essentially have a "right" to possess a firearm and the onus is effectively upon the state to prove that any particular person is unfit to possess a firearm. General self-defence is the most common reason given for gun ownership and constitutes a suitable justification for obtaining a licence to possess a firearm.22

18 Ibid., 24.
19 McKenzie, "Domestic Gun Control Policy," 12.
20 Besdziek, "Into the Breech," 22-23.
21 McKenzie, "Domestic Gun Control Policy," 12. 22 Besdziek, "Into the Breech," 26.

2.2 The Firearms Control Bill B34-2000
The Preamble to the Firearms Control Bill 23 sets out the rights held by the people of South Africa that this Bill intends to uphold.

It states that "every person has the right to life and security of person, which includes among other things, the right to be free from all forms of violence." It also asserts that the "increased availability and abuse of firearms ... has contributed significantly to the high levels of violence in our society" and that the "Constitution places a duty on the state to respect, promote and fulfil the Bill of Rights."

Chapter 2 Section 3 of the Bill places a general prohibition on the possession of a firearm without a licence, permit or authorisation issued in terms of this Bill once enacted. All licences issued under the previous Act remain valid for a period of five years from the date of commencement of the Act. The Bill is retroactive in that persons issued with licences under the previous Act may be declared unfit under the new act.

Section 4.3 (a) of Chapter 2 grants the Minister the right to declare any firearm of a specific type illegal if it is in the interest of public safety or "desirable for the maintenance of law and order." This clause is concerning, as the Minister could utilise this provision to disarm the population systematically, by decree. Whilst this is undoubtedly not the intent of current legislators, the less democratically inclined could exploit this provision at some point in the future.

Chapter 4 Section 8 stipulates that licences and permits must be applied for through the Registrar and can only be granted to those holding a prescribed competency certificate. Chapter 5 Section 11 sets out the qualifications for the competency certificate. 23

All the information presented in this section is taken directly from The Firearms Control Bill B34-2000 (Revised Version) as published in the government Gazette No. 21193 of 19 May 2000.

A certificate may only be issued to a person over the age of eighteen years who is a South African citizen or permanent resident. They must be "a fit and proper person to possess a firearm" and will be disqualified if they are mentally unstable "inclined to violence", dependent on narcotics or other intoxicating substances or have been convicted of a firearm offence or other offence specified in the Act. Competency certificates expire two years after their date of issue.

Chapter 6 Sections 13 and 14 of the Bill relate to the licence to possess a firearm. A separate licence is required for each firearm. More than one person residing on the same premises may hold a licence for a particular firearm.

Section 30 stipulates that a licence issued for the purpose of self- defence is valid for 5 years unless the gun is a restricted firearm. In that case, the licence is valid for two years. A person may hold one licence for a non-automatic shotgun and one for a non-automatic handgun. A person may hold one licence for a semi-automatic or other restricted firearm, provided that he or she can show that a "normal" shotgun or handgun would be an insufficient means of self-defence. In order to qualify for a self-defence firearm licence, one must demonstrate that one needs the firearm for self-defence and that there is no other reasonable recourse.

Whilst a system of renewable licensing does make it easier for the state to keep track of licensed firearms, it also provides a platform for the state to deny the licence renewal. The burden of proof is shifted onto the licence holder to prove that he/she still requires the firearm for self-defence and that he/she has complied with all the prescribed regulations (Section 27). It also appears that general self-defence may no longer constitute suitable justification for obtaining a firearm licence. The potential licence holder may be required to prove (hat he or she are in immediate danger arising from a specific threat to their person that cannot be averted except by means of legal firearm ownership. Thus an individual could be denied a licence to protect himself or herself from a general threat, such as rampant crime and violence, or a specific threat that has not yet arisen. 39

Section 25 closes a gap in the previous legislation that allowed a licence holder to lend a firearm to another person. Here a person over the age of twenty-one may allow another person to use the firearm under their immediate supervision for the purpose of hunting, practice on a range or sporting purposes. Section 32 requires that lost or stolen firearms be reported to the Registrar within twenty-four hours.

Chapter 9 is concerned with the carrying of firearms. It states in Section 87 that a firearm may only be carried in public places in the gun's case, in a holster attached to the person, or in a rucksack or similar holder. The gun must be completely covered and the holder must be able to exercise effective control over the weapon.

Chapter 11 exempts Police, Correctional Services personnel, members of the SANDF and other official institutions' personnel from the provisions of this Act other than sections 112 and 150. Employees of official institutions still need to obtain a permit to possess a firearm controlled by the institution. Members of the SANDF do not require permits to carry military weapons when performing official duties.

Chapter 12 Sections 105, 106 and schedule 2 specifies those conditions under which a person may be declared unfit to possess a firearm, Persons who may be declared unfit:

• Those having had a final protection order issued against them in terms of the Domestic Violence Act.

• People who have expressed the intent to injure or kill themselves or others with a firearm.

• On grounds of mental instability, inclination to violence or dependence on narcotics or other intoxicating substance.

• Individuals who have provided false information required in terms of the Act.

• People who have failed to take the prescribed steps for the safekeeping of a firearm.

• Persons who have been convicted in court of:
- Unlawful possession of a firearm or ammunition, A firearms related offence, 40

Any offence involving dishonesty or violence, for which the accused was sentenced to imprisonment for a period of not less than twelve months without the option of a fine, - High Treason, Sedition, Sabotage, Terrorism, Public Violence, Arson, Intimidation, Rape, an offence involving the dealing of drugs or the abuse of drags or alcohol, or offence in terms of the explosive act, kidnapping, child stealing, culpable homicide, extortion, conspiracy, incitement, or attempt to commit any of the above offences.

Should a court declare a person unfit to possess a firearm, that person must surrender all firearms, licences and certificates within twenty-four hours. The person has the right of appeal. The declaration of unfitness to possess a firearm is valid for five years.

Chapter 16 Section 123 details punishable offences in terms of the proposed act. It is an offence to cause injury to a person or property through the negligent use of a firearm. It is an offence to handle a gun while under the influence of a narcotic or intoxicating substance. A person may also not give control of a firearm to a person they know to be mentally ill or intoxicated* It is an offence to "wilfully point a firearm at any person" or discharge a firearm in a public place. Firearms must be locked in a safe or strong room when not under the owners direct control or on his or her person. It is an offence to lose the weapon through negligence. One may not use the firearm to commit an offence or prevent the arrest of oneself or another.

Chapter 20 Section 1143 makes provision for gun free zones. 3.


Thus, it can be seen that the Firearms Control Bill differs in significant ways from current legislation regulating legal firearm ownership in South Africa. Of particular importance is a shift in the burden of proof and the (implicit) lack of recognition of general self-defence as a justification for legal firearm possession. Despite the fact that civilian gun ownership is not explicitly prohibited by the Bill, the Bill definitely removes the "right" of firearm ownership from the population. The state is given the power to grant or deny the "privilege" of firearm ownership at its discretion.
"I'd rather have a gun and not need it than vice versa."
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