SAGA's SUBMISSION

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

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

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

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

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

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) -

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 s 39(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 WILL HAVE 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 s 89 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.