The PPC hearings -- FCA Amendments -- The big picture

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The PPC hearings -- FCA Amendments -- The big picture

Postby Brett Nortje » Tue, 2006-08-22 10:56

Dear Comrades

Revolutionary greetings.

Molon Labe!

It seems everyone has lost sight of the big picture as the farcical 'amendment' of the Firearms Control Act plays itself out. The Institute for Security Studies is responsible for cutting and pasting various gun laws from across the world into the unimplementable Bill. They got loads of taxpayer-money for it. If the ANC led Parliamentary Portfolio Committee was really intent on properly conducting the people's business the first question Chairperson Ms Sotyu should have asked the ISS' Guy Lamb is: "where is the cash?" Surely the only business Parliament has left with the ISS is to convince it to do the honourable thing and give back the money it got for drafting the unimplementable Act which has caused such chaos and administrative collapse?

Instead, everyone plays out the charade that it is business as normal. ANC Committee members listen politely as Lamb prattled on about prescribing eye tests for gun owners! No jokes. Lamb's hubris is such , he has such an arrogant, coercive, intrusive world view that he is advocating the state reach into my life and force me to get my eyes tested to retain possession of what is mine. Lamb is too obtuse to take a minute to look through the grounds for unfair discrimination in S9 of tthe Constitution. Sheer and utter hubris! The committee's hubris must be contageous.

Reality check!

The single most convincing submission to the Parliamentary Portfolio Committee was made by the 600 000 refuseniks, who shunned the renewal charade. That is right. The figures are in. Non- compliance during the first round of renewals (which everyone knows is confiscatory in intent) is higher than 75%. How could that not be the dominant, overwhelming theme of the hearings? In 2005, 600 000 gun owners told the Department for Safety and Security they can take their "strict measures to control the ownership of guns" and shove it. It was a feat of incredible bravery, considering the fact that they had been bombarded throughout the year with lies and misinformation.

Amendment of the Act is not the product of any kind of audit. No-one knows what can be salvaged or what the damage is. The Committee is completely in the dark regarding the extent of the chaos and collapse following the unsuccessful attempt to implement the Act. Regardless, oblivious to the reality of the spectacular failure of implementation, they dive in to create more busiwork. It is a recipe for disaster.

Roy Jankielsohn, while Democratic Alliance spokesman on safety and security said neither the government nor civil society were prepared for the Act when it was launched by Safety and Security Minister Charles Nqakula on July 1 1994: "The police are struggling to implement it. Only a fraction of those who have to renew have done so because the bureaucratic process is so costly and time consuming."

The first round of proposed amendments ripped the guts out of the Act, drastically reducing the administrative burden on the police, not least by abolishing relicencing. The second round of amendments leave the Act substantially unchanged except that muzzleloading firearms are re-regulated. My local DFO tells me there has been no known abuses of muzzleloaders. The point though, is that it is unimaginable that the legislator applied its legislative mind, and came up with the first round of amendments, then applied its mind some more and came up with the second round of amendments, the implication being that the ISS made a spectacular mess cutting and pasting the de-regulation of muzzleloading arms and nowhere else. That is not the legislative failure that needs to be addressed. Anyone believing that is the fix for the FCA is delusional. The collapse in implementation of the FCA has nothing to do with 150-year-old guns or their clones. The whole thing stinks to high heaven.

THE ROAD TO THE PARLIAMENTARY PORTFOLIO COMMITTEE HEARINGS ON AMENDMENTS TO THE FCA

""1994 .......In the months leading up to the elections, Peter Storey, then a Bishop of the Methodist Church of Southern Africa, began to articulate his concern that easy access to and excess of guns in our society was one of the biggest threats to our emerging democracy. Just the gut feeling that guns were beginning to dominate the scene in every way. That's all." The response to this threat was the 'gun free South Africa' campaign...."" (Adéle Kirstendrivel p3 - The Role of Social Movements in Gun Control: An international comparison between South Africa, Brazil and Australia - Centre for Civil Society Research Report No. 21) That is the kind of Shamanism that gave birth to the FCA.

More reality.

According to S 205 of the Constitution the objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. On the face of it, the police have no power to issue licences or permits or regulate the possession of firearms. That is the objective reality.

"Firearms law 'destined to flop'" by Hugo Hagen" The Citizen 19 Sept 2005, "Firearm control in SA is failing dismally - DA", The Citizen July 22 2005, etc, etc, etc, refers: On 30 June 2004 Minister for Safety and Security, Charles Nqakula released a gloating media statement. Minister Nqakula said: "It was alleged that the full implementation of the Firearms Control Act, 2000 and the Regulations would result in numerous difficulties or chaos...." "The Court after hearing arguments,
dismissed the application with costs, i.e. costs on an attorney-client scale in order to display the displeasure of the Court...." "It is clear that in the period preceding the application misinterpretation and incorrect information has been spread through the media, in an attempt to derail the implementation process...."

Nqakula also told parliament the Act would be fully in place from July 1. "We have allocated to the firearms control project R63 199 956 to cater for the purchase of 458 vehicles, 1 153 computers, 728 scanners and 573 printers." He repeated the same now-discredited misinformation that night on TV3's Interface. The court case Nqakula was referring to was the unsuccessful attempt by gunowners, gun dealers, professional hunting organisations and the security industry to prevent the implementation of the Firearms Control Act which industry role-players could see was years away from being ready for successful implementation.

To stop the law from coming into operation, gunowners had to prove that President Thabo Mbeki had acted irrationally when he promulgated the new law, because the State would not be able to implement the FCA. A story did the rounds in the legal community that the judge originally assigned to hear the Court challenge was kicked off the case two days before the scheduled hearing and replaced with a judge who had twice unsuccessfully made a bid for a seat on the Constitutional Court.

Business Day, Thursday 11 November 2004: "CAPE TOWN - Government did not consider the economic effect of the Firearms Control Act, and will not consider changing the law if it was found to be adversely affecting certain businesses in the country, Safety and Security Minister Charles Nqakula has said. Nqakula, in reply to a written question from Democratic Alliance (DA) MP Roy Jankielsohn, said: "No economic impact study was done.""

Just before the implementation of the FCA on 1 July 2004 an unsuccessful attempt to avert disaster was made in the Pretoria High Court. Possibly the world's most gullible jurist, Judge Ben du Plessis found no merit in the gunowners' application and criticised its late filing. The judge found that the applicants failed to prove they would suffer irreparable harm if the Act came into effect. Du Plessis awarded a special cost order to "show the court's displeasure" at the "ill-advised" application, "I think the Act means what it means and people must live with it. I am not persuaded that the implementation of the Act is irrational." Du Plessis accepted the argument of the State that interim provisions were in place to deal with matters arising during the transitional period.

Ninety percent of SA’s gun dealers have been driven out of business and lost their livelihoods after the implementation of the Firearms Control Act. That is the reality, Judge Du Plessis.

On 20 June 2005 FF Plus Spokesperson on Safety & Security Mr. Pieter Groenewald issued the following press release regarding the Minister's written answer to a Parliamentary question: "The Minister of Safety and Security, Mr. Charles Nqakula, says he will not compensate legal gun owners for the loss of weapons when licenses are reissued..... The Minister contravenes sec. 137 of the new Act on the Control of Weapons (Act 60 of 2000). This section in the law specifically provides for the compensation of persons who hand in or forfeit their weapons to the State. Sec. 137 (5) of the same Act furthermore places an obligation on the Minister of Safety and Security to introduce, in conjunction with the Minister of Finance, guidelines for the payment of compensation.

The Minister, Charles Nqakula, is busy neglecting his duties and is quite clearly not aware of sec. 137 of the Gun Law,"...." The government in this way deprives legal gun owners of their property rights without compensation. In our view this is a further contravention of sec. 25 of the Constitution which guarantees property rights. Section 25 (1) of the Constitution stipulates amongst others that nobody may be deprived of his/her property and no legal regulation may arbitrarily allow the
dispossession of property," Groenewald said.

Die Burger of 13 October quoted SAPS Commissioner Jackie Selebi: "KAAPSTAD - Geen vergoeding gaan betaal word aan vuurwapeneienaars wat hul gelisensieerde vuurwapens inhandig nie, het die polisiehoof, komm. Jackie Selebi, gister gesê. Selebi het gereageer op 'n vraag deur die DA-LP mnr Roy Jankielsohn in die portefieljekomittee oor veiligheid en sekuriteit."

More than a year ago I applied in the prescribed manner for compensation for several firearms. All I have to show for it is a couple of snotty memos from the CFR saying they are attending to my application. The Minister and Commissioner of the SAPS have effectively carried out a coup d'etat. They are thumbing their noses at the legal and constitutional order.

During November and December editors of The Citizen, Rapport, Nova and Business Day made known their misgivings that all was not well with the implementation of the FCA and called on Nqakula to extend the process. For months, the SAPS had been threatening those who failed to comply with the farce of renewing firearms licences. News24 featured a statement by Captain Thembinkosi Kinana warning gun owners that they would be prosecuted for possession of unlicensed guns.

Back at the Central Firearms Register, Nqakula's bullyboys told Rapport "Ons gaan nie speel nie". (Lui wapeneienaars se tyd is mín by LIZEL STEENKAMP 29/10/2005 ). The CFR threatened to open dockets, arrest and prosecute half a million gunowners who have not yet applied to renew existing gunlicences, even set up special Courts to deal with the massive number of principled gunowners who are set on non-compliance with the FCA, in the biggest display of civil disobedience the country has seen since women were made subject to the pass laws.

Gun owners to take their case to court. By Christelle Terreblanche

A constitutional court case is looming over the state's inability to process all firearm licence renewals ahead of the month-end deadline, which will criminalise up to 400 000 gun owners. The pending case follows remarks by Phuti Setati, the South African Police Service spokesperson, that those who failed to renew their licences by December 31 would be prosecuted, which could spell jail sentences of up to 12 months for thousands of law-abiding citizens. The deadline was set for the first group of firearm owners - those born between January 1 and March 31 - to renew their licences in accordance with the new act, but owners' associations and opposition parties have warned repeatedly that the police do not have the capacity or training to ensure that all renewals are issued in time.

In answer to a question in parliament, Charles Nqakula, the safety and security minister, stressed that "action would be taken against individuals who neglect or refuse to renew their firearm licences, permits or authorisations. "The SAPS will investigate each case, based on its own merits, and criminal charges will be laid against those in violation of the law," he said, while giving assurances that all possible police infrastructure was being used to ensure that people would be able to renew their licences.

But gun-owner organisations say most gun owners, particularly those in rural areas, and pensioners, have been unable to comply. Martin Hood, the South African Gun Owners' Association (SAGA) spokesperson and legal adviser, said the case would be based on inconsistencies between the new Firearms Control Act (FCA) and regulations issued by the government. "The act said that all licences were valid for five years, which means those existing when the act came in force should really expire only in 2008," said Hood. "This is inconsistent with the minister's regulations, which stipulates that the renewal process had to start this year.

"The regulations can never override the act and cannot say gun owners are committing a criminal offence if they fail to renew their licences through no fault of their own." He said the constitutional challenge would fall away should Nqakula issue a postponement. He claimed that only 10 percent of the estimated 600 000 guns had been re-licensed, and he estimated that at least 150 000 people would not be able to comply in time.

Last month (Sept 2007) Nqakula acknowledged that the act had "many loopholes" and said it might be reviewed to close those, mainly those pertaining to collectors of military-style weapons. Shortly after that, the Democratic Alliance said it presented a report to Nqakula detailing other concerns about the implementation of the act. "Gun owners should not be criminalised because of the government's failure to implement the FCA," Roy Jankielsohn, a DA MP, said.

"Hundreds of thousands of firearm owners have yet to renew their licences. Only a fraction of firearm owners have applied for renewal. In the meantime, Jankielsohn has handed a detailed memo to the minister about the more than 10 problems encountered by those trying to comply, including lack of access to police stations, shortage of money, too few accredited training providers, a bottleneck with appeals to refusals and a lack of police training. "A credible alternative to the current chaos could be an extensive audit of all current firearms, licences and owners," he told the minister. "This would be the most logical step in the first five years, instead of a costly mass renewal process.

"The premise is that the individual has been issued with a legitimate licence to own a firearm by the state and that as long as he or she is a responsible firearm owner, the state should protect this property. Furthermore steps should be taken to make the renewal process more affordable and user-friendly for individuals such as pensioners." This week Jankielsohn said he had still had no reply from Nqakula. Asked for comment, the minister's spokesperson, Trevor Bloem, insisted that the document had reached the ministry by mail only this week.

"There is no response from the minister as the document will have to go through various processes and has been referred to the police," Bloem said. "Once attended to, the reply will come to the minister for his approval and comments. At this stage it is premature to say what his response will be." Hood said thousands of complaints from renewal applicants were streaming into the association daily, with many underpinned by incorrect decisions and responses by the police. "The most common basic complaint is that the police don't have a standardised procedure. Second, that there is corruption in the system itself and third, there is bad training," Hood said.

About 13 cases about bad police decisions and appeal-board failures were pending in the Pretoria high court in addition to the threatened constitutional challenge. "We have also made presentations to the minister and told him in no uncertain terms that the current process was not going to work and we believe he was considering radical amendments based on what we told him, but he has not made a decision on whether to postpone it," said Hood. "Notwithstanding our concerns that this has big potential to turn into a confrontation between gun owners and government, we still want to talk to the minister in a constructive manner and tell him the act won't work without our co-operation."

Published on the web by Sunday Independent on December 3, 2005. The Jankielsohn report on the FCA to the minister. The Firearms Control Act - some facts.

1. Introduction

The Democratic Alliance believes that the control and responsible management of firearms is important in any society and is especially important in a society as violent as South Africa's. Legislation is necessary in order to control the use and possession of firearms. A gun free society would be ideal, but as long as we experience high rates of violent crime and huge resource constraints within the SAPS to deal effectively with crime, our citizens must have an alternative
method of securing themselves, their families, and their property. Furthermore our country has a thriving hunting industry that is important for both conservation and tourism.

The purpose of firearm legislation should however be to control and manage legal firearms and not to disarm law-abiding citizens. In this context the Firearms Control Act (FCA) fails miserably as it targets legal firearm owners and does not adequately address the millions of illegal firearms that remain in the hands of criminals who stalk our streets. Furthermore the current problems surrounding the implementation of this legislation have left firearm owners confused and unaware of what is expected of them. The heavy handed manner in which collectors and museums have been treated confirmed the view that government does not want to regulate but remove legal firearms from society. Together with the disbanding of the commando system, this legislation will leave rural areas particularly vulnerable to criminals, especially to forms of cross border crime such as arson, stock theft, poaching and other forms of violent crime against individuals.

2. Renewal of firearm licenses

The schedule for renewal is according to dates of birth and will take place as follows:

? 1 January and 31 March in 2005
? 1 April and 30 June in 2006,
? 1 July and 30 September in 2007
? 1 October and 31 December in 2008.

If firearm licences owners do not keep to this schedule they are liable for an administrative fine and it could imply that they are illegally in possession of firearms. The process of renewal that has to be followed is as follows:

? A theoretical test has to be carried out with an accredited training provider in order to qualify for a proficiency certificate.
? Application must be made at a SAPS firearm-licensing centre for both a competency certificate and renewal of the firearm license. Motivation must also be supplied regarding the purpose of the firearm.
? A complete set of fingerprints and two colour passport photos have to be submitted.
? The costs are R70 for a proficiency certificate, R70 for the license, and the costs of training.
? The SAPS then have to carry out safe inspections and do background checks on all applicants in order to determine whether they are fit to possess a firearm.

Individuals who do not wish to renew their licenses may carry out the following other options:
? Sell the firearm to another person who may lawfully possess the firearm.
? De-activate the firearm by a licensed gunsmith.
? Sell the firearm to a licensed dealer or hand the firearm in to such a dealer to be sold on his/her behalf.
? Voluntarily hand in the firearm to the SAPS for destruction.

People who are abroad may renew firearm licenses within 60 days of returning to South Africa. The SAPS should be informed of this so that individuals storing such firearms are given permits to do so in the absence of the owner.

3. The economic implications of the act.

The Act has negative implications for various businesses such as firearm dealers and gunsmiths as well as the film, professional hunting and private security industries. The implementation of the act has already resulted in business closures and the loss of jobs, with the prospect of many more people losing their jobs as more of these businesses are forced to close as result of the FCA. Therefore the act will have a potentially devastating economic impact which appears not to have been properly assessed by the government before it was implemented. The minister for safety and security, Mr Charles Nqakula, replied to parliamentary questions (8 November 2004) on the economic implications of the act by stating that "no economic impact study was done" prior to the implementation of the act and that: "The Firearms Control legislation has made provisions for firearm dealers, the professional hunting industry, the film industry and the private security industry to be regarded as business entities. It is the responsibility of these entities to adapt their business models to comply with the provisions of the Firearms Control legislation and to comply with their social responsibility as South Africans".

The legislation has already impacted negatively on the 554 firearm dealers and 160 gunsmiths in South Africa, Some (?) of whom have already closed their doors. Certain rural provinces have already begun to experience a decline in foreign hunters due to bureaucratic problems and long delays at ports of entry into South Africa.

A further parliamentary reply from the minister (7 October 2005) indicates that since 1 July 2004 a total of 11 038 foreign visitors applied to import firearms into South Africa. Of these 399 were refused because the concerned firearms were either prohibited in terms of section 4 of the FCA, or the applications did not have the necessary supporting documentation as required in terms of Regulation 62(7)(g) of the Firearms Control regulations, 2004.

4. Confusion over statistics

The SAPS Central Firearms Registry (CFR) and the minister have been contradicting each other by giving conflicting statistics and reports to parliament about the manner in which the Firearms Control Act (FCA) is being implemented. In a reply to a parliamentary question (7 October 2005) the minister stated that 3 925 applications for renewals of firearm licenses had been received. The CFR however reported to the parliamentary portfolio committee for safety and security less than a month before ( 14 September 2005) that a total of 18 787 applications for renewals had been received by the SAPS by August 2005.

Furthermore, the minister stated that a total of 1773 applications for new licenses have been received under the FCA of which 392 have been granted and 17 refused. The CFR however reported that 4224 had been received of which 776 had been granted and 37 refused. If discrepancies exist between statistics provided to parliament by the minister and the SAPS, then even crime statistics supplied by the same institutions could be viewed with suspicion.

The minister also indicates that none of the 71 applications for renewal or 38 applications for new licenses under the FCA in the Northern Cape have been processed. At the same time the 446 applications for renewal of licenses in the Free State, 698 in Kwazulu Natal, 191 in Limpopo, and 37 in Mpumalanga have yet to be processed. The CFR reported to the portfolio committee last year (8 September 2004) that 2,5 million firearm owners owned 3,6 million firearms in South Africa. This
implies that an average of 625 000 individuals would have to renew 900 000 firearm licenses every year for the next four years.

Both the minister and the CFR have now denied these statistics saying that it is much less. They are not however able to say how many licensed firearms are owned by individuals in South Africa. The fact remains that the FCA has failed to meet even a fraction of the targeted renewals for 2005. The Minister launched this act before the SAPS or civil society was able to implement it.

5. The right to appeal

In terms of the FCA everyone whose license is refused has a right to appeal the decision. Although the process is time consuming, the DA urges individuals to use this right if their licenses are refused. There are still many outstanding appeals as a result of the fact that the minister only instituted an appeal board on 3 January 2005, seven months after the Act was launched. The appeal board consists of Justice J.A.M. Khumalo, Ms Z.N. Nhlayisi, Mr S.D. Majokweni and Mr P.A. Mongwe. By July 2005 the backlogs of appeals were standing at 14 365. It is clear that the appeal board will take years to carry out an effective appeal process on all these outstanding appeals. Meanwhile firearms are pilling up in safes of firearms dealers.

6. Mass refusal of licenses

Many applications for licenses have been dismissed with the words "lack of motivation" over the past two years, with no other explanation being offered. In reply to a parliamentary question (7 October 2005) the minister stated that since July 2004 a total of 33 890 licenses had been refused (76%), 9590 granted (21%) and 1209 (3%) still outstanding under the Arms and Ammunition Act (no 75 of 1969). This alarming amount of refusals has strengthened allegations of mass refusals by the CFR.

7. Accredited training providers

The training providers responded more speedily to the act than the SAPD and POSLEC SETA (currently SASSETA). By 14 September 2005, 202 shooting ranges and 225 training providers had been accredited in South Africa. There are still a number of unresolved issues such as confusion relating to acceptable unit standards regarding training. Reports of obstructionism on the part of the SAPS to deal with the matter of accreditation of both training providers and shooting ranges have also been received. In the Free State province the CFR refuse to allow individuals who are part of accredited service providers to provide training in rural areas. This implies that individual firearm owners are forced to travel long distances to obtain the necessary training. Many rural areas do not have accredited training institutions to supply required training to obtain proficiency certificates. The costs of travelling, training and licensing will also make the process unaffordable for many people, especially pensioners. Some local police stations appear to be ignorant of their role in the process of accreditation which caused a number of delays.

8. Amnesty

The amnesty that was recently declared for people in possession of illegal firearms was first declared in October 2004, but had to be withdrawn because the minister did not have parliamentary approval as required by the Act. The first amnesty period ran from 1 January to 31 March 2005. It was then extended for another three months until 30 June 2005. All firearms forfeited in terms of the amnesty are sent for ballistic examination in order to determine whether they were used in any criminal activities. The amnesty does not apply to any crimes committed using the firearm and therefore criminals would obviously not hand in such firearms. These firearms remain on our streets.

In reply to a parliamentary question (26 October 2005) the minister stated that a total of 30 221 firearms had been handed in voluntarily during the amnesty periods. Of these 18 222 were legal and 11 999 illegal firearms. All these firearm underwent ballistic testing and 369 positive connections have been made to case dockets so far.

9. The costs of implementing the FCA

The initial cost budgeted for the implementation of the FCA was R63 million. The Canadian government has however budgeted an equivalent of about R2 billion for the implementation of similar legislation in that country. The costs of implementing the FCA to both firearms owners and the state has not been calculated and is expected to run into billions of rands.

10. Police training

Local police stations are meant to have a designated firearms officer (DFO) with a vehicle to implement the FCA. However these police officials also have other responsibilities such as implementing the liquor legislation as well. In many instances they are unable to assist individuals effectively regarding the various aspects relating to the act. In Paul Roux which I visited, the DFO was taking current licenses away from individuals as they submitted their applications for renewals. This left them without licenses and liable for arrest. Regular police officers have also asked me how they must go about renewing licenses for private firearms. An alarming aspect is that even though police officers handle firearms on a daily basis, they are incompetent to handle private firearms in terms of the FCA and have to complete additional training in this regard.

11. Compensation

Individuals may apply for compensation in terms of section 137 of the FCA. The minister stated in a reply to a parliamentary question (11 October 2005) that an individual may apply for compensation for a firearm that is surrendered or forfeited to the SAPS but not for costs incurred during the application process. No clarity has however been given on criteria used to determine such compensation. Individuals who voluntarily surrendered weapons during the amnesty period were not informed of, or given this opportunity.

12. Conclusion

A credible alternative to the current chaos could be an extensive audit of all current firearms, firearm licenses, and owners. This would be the most logical step in the first five years, instead of a costly mass renewal process. If this is however not acceptable and government is adamant about renewals, then all existing licenses should be accepted for renewal with the exception of those whose owners have proved to be incompetent to own firearms. The premise being that the individual has been issued with a legitimate license to own a firearm by the state and that as long as he or she is a responsible firearm owner, the state should protect this property. Furthermore steps should be taken to make the renewal process more affordable and user friendly for individuals such as pensioners. Safe inspections by strangers should be replaced by an affidavit from the owner and if necessary another credible individual.

The manner in which the FCA has been implemented and the confusion among the public over this issue has caused many firearm owners to question the motives of government in this regard. Government is seen to want to disarm law-abiding citizens through a costly process. Many people are angry since some firearms have been in families for generations and are seen to be cultural artefacts. Inheritance is not recognised as a reason to own a firearm. The cultural significance of firearms is ignored by the FCA. Through this legislation government has only increased the potential for civil unrest in South Africa.

We would however encourage all individuals who can afford to do so to apply for renewal of licenses and for new licenses in terms of the act. Should applications be refused then individuals must make use of the appeal process. Lodge appeals to: The Chairperson of the Appeal Board, Private Bag X 811, Pretoria, 0001, Facsimile: 012-353 6036. Any public enquiries regarding renewals or applications for new licenses can be made to the firearms registry call centre at 012- 353 6111.

Roy Jankielsohn MP, DA spokesperson for safety and security.

Gun owners start queueing for licences. By Hanti Otto

Christmas shoppers were not the only ones queueing in Pretoria on Wednesday – a veritable throng formed outside a number of police stations where firearm owners began standing in line from before 6am to renew their licences. Gun owners born between January and March have to renew their licences before December 31 in terms of the Firearms Control Act and some of them on Wednesday waited for as long as eight hours to do so. Asked why they waited so long before they applied, some said there was no guarantee that they would be helped on day 1.

At all the police stations that have firearm licence renewal centres, people were advised to turn up before 6am, although the centres only opened at 7.30am. 'I either have to lie to keep them by saying I hunt or I have to destroy them'. At the Pretoria North police station people queued past the court building next door. Those who were helped within four hours were counted lucky. Although the gates of the centre were officially closed by 7pm, officers were still helping applicants until 10pm.
Officers even took orders for water and soft drinks and had it delivered from nearby shops to the waiting applicants. One elderly woman in the queue was close to tears. She was in possession of her late husband's collection of old rifles.

"This is very traumatic. For 21 years I have been looking after these. It is my property and has sentimental value. Now I either have to lie to keep them by saying I hunt or I have to destroy them. The last time these antiques were used was during the Boer War," she sobbed. 'I will buy a gun on the black market, where it is easier and cheaper'. At the Brooklyn police station officers made a list of the names of the first 130 people and sent the rest home, saying they were only able to help 130 a day.

By 4pm on Wednesday the queue had shrunk to 20 people, most of whom had been waiting since before 6am. At most stations people sat on camping chairs and shared books and newspapers. Some complained about how "ridiculous" the new law was. "They are disarming the innocent citizen, leaving us defenceless against those who have illegal firearms," one man said. Like the others, he did not want to be named, fearing it might jeopardise his renewal application. One woman compared it to a "money-making business", while her husband said: "If my renewal is not approved and my appeal is not successful, I will buy a gun on the black market, where it is easier and cheaper."

Inside one of the centres a police officer patiently explained on the phone what the caller should bring, adding: "Don't forget a chair and a book. And be here by 5am. If not, bring your Bible. You will need something thick to read and a lot of patience." Firearm trainer providers did not have much sympathy. They said people had since June 2004 to renew their licences. They said the public should remember they and the police were also sacrificing their holiday to help the "late-comers".

This article was originally published on page 3 of The Pretoria News on December 15, 2005. It is clear that the meeting the CFR, SAPS Legal Services and the SAPS' political commissars had with the National Prosecuting Authority late last year was a monumental blow to the implementation of the FCA. It appears the Department of Safety and Security went to the meeting to convince the NPA to back them with show trials in the face of more than 90% non-compliance with the licence renewal process.

Apparently the SAPS Legal Services Department and the National Prosecuting Authority recommended the Minister cool it and start abiding by the rule of law. The Minister was warned continuously that the ruinously expensive Firearms Control Act was unconstitutional and unimplementable. After all, the SAPS' legal team admitted the SAPS could not administer the Arms and Ammunition Act in the pleadings in the Hamilton case. He did not listen. The CFR have turned the Minister into a serial jester.

The Minister was forced to issue a statement mid December
tacitly conceding that the threats of prosecution were lies, hyperbole
and bluster, vindicating gun owners' interpretation of the Act.
The lies and threats about lengthy prison sentences by members of the
SAPS were just that. Gun licences for those who do not renew remain valid
until 2009.

The media statement issued by the Minister is a gem.

MINISTRY: SAFETY AND SECURITY

REPUBLIC OF SOUTH AFRICA

EMBARGO: NONE

DATE: 15 DECEMBER 2005

MEDIA STATEMENT BY THE MINISTER FOR SAFETY AND SECURITY ON THE FIREARMS
CONTROL ACT, 2000

The Minister for Safety and Security, Charles Nqakula, today announced
the extension for the application of renewal of firearms licences for
people born between 1st January and 31st March.

Explaining the reasons for the extension the Minister said, "I have
received representations for the extension of the said date, and I
believe that there are numerous persons who still wish to renew their
licences but would not be able to do so before 31 December 2005.

"I have accordingly signed today, a Notice for publication in the
Gazette, in terms of which the date is extended with three months until
31 March 2006," Nqakula said.

Discussions were held by the South African Police Service and the
National Prosecuting Authority on the validity of licences issued under
the Arms and Ammunition Act, 1969, and especially in cases where a
person would fail to apply for the renewal of a licence. There is
consensus that the position in this regard is as follows:

Any licence which was issued in terms of the Arms and Ammunition Act,
1969, and which was valid immediately before the date of the
commencement of the Firearms Control Act, 2000, remains valid for a
period of five years from the date on which the Firearms Control Act,
2000, came into operation (1 July 2004), unless such licence is
terminated, cancelled or surrendered in terms of the Firearms Control
Act, 2000.

The holder of a licence to possess a firearm in terms of the Arms and
Ammunition Act, 1969, must, before 1 July 2009, in a lawful manner
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 Firearms Control
Act, 2000.

Any person who was obliged to apply for his or her licence by a date
determined by the minister, and who fails to so apply, and applies after
such date for renewal, might be liable for prosecution for such failure,
depending on the circumstances of such failure. Such prosecution will
however, be restricted to the failure to renew the licence within the
stipulated period, and not for the illegal possession of a firearm. A
person who does not apply for renewal of a licence within the period
determined, because he or she wants to legally dispose of the firearm in
question, may be legally in possession of such firearms until 30 June
2009. After that date a person who has not applied for renewal of the
licence and has not disposed of the firearm may be prosecuted for the
illegal possession of a firearm.

Licence holders who wish to terminate or cancel their licences by for
example selling the firearm or surrendering it to the South African
Police Service, may do so until 1 July 2009.

The other time-frames determined for renewal of licences issued under
the Arms and Ammunition Act, 1969, still apply.

Then, after vindicating gun owners' position in December, the Minister
announced he was ordering changes made to the Act in January:

"Deficient Arms Act to be changed" by Kim Helfrich, The Citizen, January
18 2006

"SAFETY and Security Minister Charles Nqakula admitted there were
difficulties with the Firearms Control Act , and said he would table an
amendment to the controversial legislation by May.

Delays of up to a year in renewing firearm licences, and the
unacceptable backlog in appeals estimated to number about 6 000, were
not only causing concern among legal firearm owners but also harming the
arms and ammunition sector.

Only 200 arms and ammunition dealers are estimated to still be operating
nationally out of more than 600 three years ago.

During a ministerial consultation on the contentious law at the Police
College in Pretoria yesterday, Nqakula was told that “indifferent
service and arrogance” at firearms control centres had contributed to
the problem.

“By extending the date for renewal to the end of March you have only
moved the problem three months further along,” a representative of the
Arms and Ammunition Dealers’ Association said.

“To have to wait up to 18 months for an appeal to be heard or a licence
to be renewed is totally unacceptable,” said SA Gun Owners’ Association
spokesman Martin Hood.

A representative of the Black Gun Owners’ Association suggested the
Minister look at paying people to hand in illegal weapons, which he said
were “much more of a problem than legal firearms”."

This was Business Day's reaction

"Welcome reprieve

SAFETY and Security Minister Charles Nqakula has very sensibly
extended the first period for the relicensing of legal firearms by
three months. This means that those 500000 or so people who were
required to reapply for their licences have until March 31 to go
through the process instead of being forced to try to meet a December
31 deadline.

The bottleneck was predicted a year ago. The Central Firearms
Register and the apparatus needed for competency tests and dedicated
firearms officers were nowhere near ready last December and are
little better placed this December.

Remember there are about 2,5-million legal gun owners. Assuming that
their birthdays are spread evenly throughout the year, this means
that about 500000 have to reapply for their licences every year over
four years.

The first such period was this year for those whose birthdays were in
January, February or March. Only about 64000 have reapplied, meaning
there are at least 400000 outstanding. But as the three-month
extension granted last week starts to tick away from January 1, it
must be remembered that the next batch of 500000 will step up to the
counter, and so it will carry on for the third and fourth years.

It was most unfortunate that police officials started threatening
those who have failed to reapply this year with prosecution and a
possible one-year jail term. This had the potential to create a
massive new class of criminals at a time when the criminal justice
system is only just coping with those who have committed far more
serious crimes.

Thankfully, Nqakula listened to the advice of the National
Prosecuting Authority that all valid licences should remain valid
until June 30 2009 and that, if they had not re-applied by then, gun
owners would be guilty of an administrative offence and not a crime.

Less welcome is the possibility, if not probability, that Nqakula has
been getting bad advice from the South African Police Service. For
example, it is reliably understood that the period of grace was to be
six months and was cut to three on the advice of the police. Even
more alarming is the fact that for almost a year the police have been
telling the minister that the relicensing process is succeeding.
Indeed a disbelieving parliamentary committee has questioned progress
at regular intervals throughout the year.

A legal quagmire is also in the process of developing. At issue are
constitutionally entrenched property rights and the withdrawal of
legally held rights without any offence being committed.

Already some in the process may have a legal claim. Consider those
who responded to the threat of criminal prosecution, now ruled out by
the minister, and handed their firearms in to the police without
compensation. They have good reason to feel aggrieved now that it has
been ruled that their licences would have remained valid until mid-
2009 and that the offence would have been administrative.

Section 25 of the constitution says that no law may permit arbitrary
deprivation of property. It further says that no property may be
expropriated without compensation and that compensation should
be "just and equitable, reflecting an equitable balance between the
public interest and the interests of those affected".

Another legal principle is that which says a legal right cannot be
withdrawn without an offence having been committed. So, it is
arguable that unless a gun owner demonstrates incompetence or breaks
the law, there are no grounds to refuse his reapplication.

Given that illicit gun-dealing appears to be on the rise as a result
of the act and that few legal gun owners commit crimes with their
weapons (as opposed to guns that are stolen from legal owners and are
then used in crime), the relicensing process seems to be needlessly
wasteful of valuable resources.

Guns must be controlled because they are instrumental in profound
misery and suffering. But we must concentrate on the guns that do the
harm. Let us hope that the period of grace will be used to consult
further with the industry and that the changes to the law promised by
Nqakula will iron out the practical difficulties being experienced
and the legal wrangles being predicted.

If we don't get this right, the system will break down and benefit
only those who use guns illegally."

http://www.businessday.co.za/articles/o ... BD4A130602


The renewal date extensions were attributed to representations
the Minister had received "at the last Firearms Consultative Forum
between the Minister and stakeholders".

The Firearms Consultative Forum was oblivious to what should, to any
reasonable person, have been its core preoccupation: That during 2005,
600 000 ordinary gun owners of South Africa, who are not gun collectors,
or part of the hunting Afrikaner elite, or sport shooters, told the
Minister - under threat of the direst consequences, bombarded throughout
the year with lies and misinformation- that he could take the Firearms
Control Act and shove it. By simply refusing to re-licence their guns.
By 2009 (just before the World Cup) 2 500 000 gun owners will have told
the Minister to stick his Act.

At the end of February the Minister for Safety and Security published
proposed amendments to the Firearms Control Act that would have seen
half the Act being deleted. The outstanding feature of those amendments were the
concessions to the gun industry. The guts would be torn out of the Act
to make it easier for dealers to do business.

The Minister was not playing Father Christmas out of a sense of charity.
It is common cause that implementation of the Act has been a spectacular
failure and that there is a massive campaign of civil disobedience
underway which saw 600 000 gunowners refusing to re-licence their
property in 2005.

The first step in amending the Firearms Control Act is obvious. Audit
the implementation of the Act to establish how great the damage has been
and how much can be salvaged.

The Minister, however, reacted like a petulant child to the lukewarm
reception his proposed amendments received.

With the exception of four or five sections all the current Firearm
Control Amendment Bill is concerned with is the re-regulation of
muzzleloading antique arms. The Amendment Bill is nothing but an
elaborate scam designed to try and redirect attention from the
managerial failings of Minister Nqakula.

I asked a Designated Firearms Officer whether he had heard of any abuses
of muzzleloaders since de-regulation. Not one case of abuse of a
muzzleloader is known.

In May the Canadian Government announced that it was abolishing
the Firearms Registration Act, (the blueprint for the FCA).

According to the Canadian Minister the legislation was costing the
Canadian taxpayer billions of dollars, it was cumbersome, ineffective
and impossible to enforce properly.
It took away too many police resources from their primary task,
that of crime prevention, law enforcement and protection of the public.
While the Canadian Government was announcing that it is abolishing their
Firearms Registration Act, (the blueprint for the FCA) SA's Cabinet announced
that it had approved Amendments to the Firearms Control Act and that the
Amendment Bill was being sent to Parliament.

We know that, for the ANC, there is no such thing as an 'objective
reality'. The original circumstances necessitating amendment of the gun
laws are still waiting in the wings. Angry gunowners are not going to be
distracted from the issues by media farces.

Same cancerous growth. Canada's Government opted for radical amputation
while South Africa's leadership announced it will stick on a band-aid
and kiss the patient's booh-boohs to make it better.

Actions have consequences. The political commissars and mandarins of the
Central Firearms Register and Department for Safety and Security have
burnt up all the goodwill and credibility they might have enjoyed among
gunowners.where their television screens show defiant, good, upstanding
citizens

The time has come for the Minister to take Ministerial Responsibility for the failed implementation of the Act, fire the top management of the CFR and resign himself. It is time for President Thabo Mbeki to get serious about this issue and personally intervene.

It is time for YOU to speak up.



B Nortje
Brett Nortje
 
Posts: 2
Joined: Fri, 2006-03-10 21:11

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