Firearms Amnesty: Follow-up with Ministry & SAPS; Mr Whitfield Letter on Amendment to IPID Act

Meeting report

The previous meeting on the Firearms Amnesty had seen a number of concerns raised by members. New information was also available to the Committee on the amnesty. The Chairperson ceded to the Minister of Police, Mr Bheki Cele, for the presentation.

Remarks by the Minister
The Minister apologised for his absence the previous week. He wished to put some issues in perspective before the presentation. SAPS had requested an amnesty beginning in December and ending in May, which was disrupted by the Covid-19 lockdown restrictions imposed in late March. Half of March and all of April were effectively null and void due to the Level 5 lockdown regulations.

The amnesty was therefore not able to achieve its targeted outcome. SAPS had compared the amnesty to historical amnesties in 2010 and 2005, where figures were much better than the 2020 amnesty. In this regard, SAPS thought it appropriate to request another Amnesty. The Minister stated that SAPS was looking for another amnesty, not an extension. It may have appeared to be requesting an extension given the time of request and the period requested – this was not so. The notice submitted for further approval did not imply this. The Firearms Control Act did not provide for an extension of the amnesty period. This was why SAPS requested a new amnesty period. The lateness of the submission did not give space to members to follow procedures properly in approving the Firearms Amnesty.

The Minister noted some hiccups in the amnesty request. The new request was not changed except from amending the amnesty period request to August 2020 to January 2021 from June to November 2020. Until the request arrived in Parliament the Amnesty could not be approved. He ceded to the National Commissioner to present the SAPS briefing.

Briefing by SAPS
The National Commissioner of Police, General Khela Sitole, introduced the SAPS delegation.

Maj Gen M Mamotheti, Head: Firearms, Liquor and Second Hand Goods Division, SAPS, presented the SAPS proposal on the 2020 Firearm Amnesty. The purpose and background had been covered by the Minister. The presentation was updated with new information the amnesty period. The presentation would also cover legal issues raised in the previous meeting.

As expected by SAPS, during the final month of the amnesty, firearms intake increased to 11 030, a sharp increase. Over and above this recorded number, 17000 firearms were received in total, and some were still being processed. Amnesty firearms made up 86.5% of surrendered firearms, and amnesty ammunition made up 79% of surrendered ammunition.

Gauteng had the highest number of submissions, followed by the Western Cape and KwaZulu-Natal. The stations receiving the most firearms were:
Gauteng: Littleton, Booysens, Graafsfontein, Wierdabrug
KwaZulu-Natal: Hillcrest, Richard’s Bay, Margate
Western Cape: Durbanville, George, Belville

The stations having serious firearm crime problems were not being reached by the amnesty. The same provincial trend was roughly followed by ammunition surrendered, although Western Cape had the highest volume, followed by Gauteng and KZN. 6891 cartridge cases had been submitted to IBIS. 10 704 licence applications were received, of which 147 amnesty-related applications had been finalised.

In terms of comparison of amnesties, the 2019/20 amnesty had received far fewer firearms than previous amnesties. The 2010 amnesty had seen a reduction in the number of contact crimes committed with firearms, and a similar pattern seemed to emerge with the 2019/20 amnesty, although Maj Gen Mamotheti acknowledged this was not only due to the amnesty.

The firearms reported stolen vis à vis the number of firearms surrendered suggests the circulation of illegal firearms remained high. Firearms remained the instrument of choice in the commission of serious crimes. The most common weapons used in household robberies were firearms. Hotspot areas for firearms crimes still had low surrendered figures. The communications strategy would be amended to target these areas.

27 336 firearms were surrendered during the 2019/20 amnesty. The.Covid-19 pandemic and festive season had impacted the reception of firearms.

SAPS requested another Firearms Amnesty be declared for 6 months from 1 August 2020 to 31 January 2021 under section 139(2)(c) of the FCA. 28 stations were recommended for exemption from receiving firearms due to safety concerns.

Lt Gen S Khan, Divisional Commissioner: Legal Services, SAPS, noted that Dr Groenewald had proposed that the draft notice forwarded to Parliament in the previous meeting was unlawful. The notice presented had to comply with S139(1) and (2) of the FCA. The notice did comply with these sections. Regarding Dr Groenewald’s proposal on the NAHSA settlement being included in the notice, she commented that the NAHSA settlement was irrelevant to the extension of an amnesty as this was dependent on the approval of Parliament. It was also agreed that SAPS would circulate an internal directive relating to the NAHSA issue of competency certificates accompanying the submission of an application for a firearms license.

Maj Gen Mamotheti proposed that the declaration of another amnesty would afford communities another opportunity to surrender their illegal and unwanted firearms, which would help curb the proliferation of illegal firearms in circulation.

The Minister emphasised that SAPS believed another amnesty would allow it to improve the amnesty performance. 1 gun removed from circulation meant more than 1 life saved. It had been raised by community members that the lockdown precluded them from surrendering firearms.

Discussion
Dr P Groenewald (FF+) agreed with the Minister that the FCA did not provide for extending a Firearm Amnesty. This had been his argument in the previous meeting. He had no principled objection to an amnesty. Regarding his point on the NAHSA court case, he noted the agreement between SAPS and NAHSA on a notice regarding competency certificates. The notice said that if one could prove legal ownership for a firearm, they could apply for a firearm license. This issue was a crucial matter in the NAHSA court case. People could now simultaneously apply for a competency certificate while handing in a firearm. His contention was that the issue of competency certificates should be include in the amnesty conditions.

Dr Groenewald expressed his concern over statistics that showed a decrease in contact crimes. He argued that it was misleading and untrue to argue that the decrease in crime was due to the firearms amnesty, given that the Minister himself had acknowledged that the lockdown had caused a drop in crime. In the previous meeting, SAPS claimed 19500 firearms had been surrendered, and in the new figures, it claimed 27000. He expressed his doubt over the sudden increase in firearms surrendered. He argued that Designated Firearms Officer (DFO) performance was a major issue for the amnesty. He requested a written clarification of the training provided to DFOs.

Mr H Shembeni (EFF) concurred with Dr Groenewald’s point on the lockdown’s effects on contact crimes. He requested clarity on the types of firearms being submitted. He also wanted to know the origin of the firearms, whether they were South African made or foreign. Regarding DFOs, he enquired as to how firearms could be surrendered if DFOs were deployed for street policing during the lockdown.

Mr O Terblanche (DA) appreciated the Minister’s clarification of the firearms amnesty process. As he had stated in the previous meeting, there was no legal provision for the extension of a firearms amnesty. He asked where the Committee stood given its approval of a firearms amnesty extension in the previous meeting, which was not legal and no longer requested by the SAPS. He requested clarity on the period required by SAPS for the amnesty. He noted his disappointment that SAPS had not provided proper documentation for the meeting. In terms of the 10 704 firearms license applications, he expressed his disappointment that SAPS had only finalised 147 applications. Similarly, in terms of the IBIS reception of over 6000 cartridge cases, he was not satisfied that only 33 cases had been finalised. He stated that he was not against an amnesty, but was concerned that amnesties were not providing progress in crime-fighting. He similarly questioned the validity of the crime-reduction statistics, and argued that the 2010 statistics were explained by the 2010 World Cup’s effect.

Mr A Shaik Emam (NFP) requested clarity on what would happen from 31 May to 31 July between the amnesties. He noted that in the settlement with NAHSA there was an expectation that the amnesty would be extended. He wanted clarity on this matter. Less firearms meant less firearm related crime in SA. He admitted that the lockdown likely drove the reduction in contact crimes, but noted that the reduction of the number of firearms in circulation in South Africa would be a positive step. He wanted the Department to explain the process from the reception of a firearm until its destruction, noting that firearms surrendered often found their way into the hands of criminals. He requested SAPS to explain what it had planned to address an increase in alcohol-related crime. He proposed that he would support any measure to reduce the number of firearms in South Africa.

Ms P Faku (ANC) acknowledged the difficulty of circumstances in which SAPS was operating. As much as she appreciated the increase in firearms surrendered, she wanted an explanation of the sudden uptick in submissions. She noted that in an ideal world she would want to live in a firearm-free society. She would approve a new amnesty when the new document was submitted.

Mr A Whitfield (DA) echoed the points made by Dr Groenewald on the presentation of statistics on contact crimes being misleading. He noted that it was key for SAPS to prove whether firearms submitted were used in the commission of crimes, which was one of the goals of the amnesty. He stressed that the performance of IBIS cases finalised had declined by 50% in Q3 of 2019/20, and requested an explanation. He asked whether SAPS could commit to finalising the IBIS processing of all firearms by the time the new amnesty came into force. He highlighted that SAPS had admitted the low rate of submission of firearms in crime hotspots. He wondered whether the amnesty was effective at dealing with criminals with illegal firearms. He asked how many SAPS firearms had been stolen during the amnesty, and how many (if any) amnesty firearms had been stolen during the amnesty period.

Ms Z Majozi (IFP) noted her late entry to the meeting and welcomed any extension of a firearms amnesty. She wanted an understanding of the strategy on firearms being held by foreigners in the country illegally. She requested SAPS to address the issue of illegal use of legally obtained firearms.

The Minister replied that he did have the final documents for approval. He reiterated that the document for approval did not involve an extension, and in fact explicitly noted that the FCA did not provide for extensions of amnesty periods. The timeline made it look as if SAPS was requesting an extension, when this was not the case.

On the question of reduction, the Minister agreed that the reduction of contact crimes did not necessarily speak to the firearms amnesty explicitly. The statistics provided were not meant to claim this. However, the removal of one gun from the community meant one person safer. The reduction of firearms in the hands of the community would make South Africans safer. This claim was based on the success of the 2010 amnesty, not the 2019/20 amnesty. He disputed Mr Terblanche’s claim that the 2010 World Cup had reduced contact crime. He noted that 2011/12 had even fewer murders than 2010/11. The work and commitment of the police led to the reduction of serious crimes. If the reduction in contact crimes was due to the 2010 World Cup, crime statistics would have not been lower in 2011/12 (when there was no lockdown or World Cup).

The Minister said that, whether legal or illegal, firearms killed. It would help if there were fewer firearms in circulation in South Africa, regardless of whether they were legal or not. Getting firearms out of circulation was always a positive outcome. Besides amnesty, SAPS was doing a lot of work on retrieving illegal firearms used in the commission of serious crimes. The previous weekend, there had been an exchange of fire with a notorious criminal in Diepsloot, and in his house SAPS had found 11 firearms. The firearms amnesty would not stop SAPS from hunting firearms used in the commission of crimes.

The Chairperson wanted clarification from the Minister on when he was the National Commissioner of Police.

The Minister replied that he was Commissioner from July 2009 to November 2011. This was why he knew the statistics on the reduction of murders. In 2010/11 there was a 2000-case reduction in murders. He noted that the reduction in these cases was due to the commitment of all members of police.

Gen Sitole clarified that during the period mentioned by Mr Whitfield, the IBIS system was down due to a systems fault, and the IBIS contract expired and continued on a month-to-month basis. The fault in the system reduced the performance of IBIS.

He apologised and clarified that SAPS had no intention to mislead the Committee, and that the statistics were not meant to imply that the reduction in crimes was caused by the amnesty.

Regarding the presence of DFOs in police stations, he clarified that DFOs had been withdrawn from deployments to be available in stations to receive firearms. DFOs would be prioritised at hotspot stations. Where members received reports on DFO lack of performance he would deal with them personally.

He requested the right to submit written reports on the types of firearms received and the SAPS and amnesty firearms stolen. He clarified that SAPS had not as yet received any reports on the theft of amnesty firearms.

Gen Sitole wished to give assurance that amnesty firearms were held in safe locations.

Lt Gen S Masemola, Deputy National Commissioner: Policing, SAPS, made it clear that a number of firearms of all types had been received. SAPS was consolidating the report on the full period for submission to the Committee.

Regarding the large increase in submissions in the last week of May, Lt Gen Masemola stated that this was likely due to the public being aware of the imminent expiration of the amnesty period. Once SAPS had all the figures it would make the report available to the Committee.

Only 147 license applications had been finalised due to the ballistics issue and the laborious nature of granting firearms licenses.

He acknowledged the issue of hotspot stations receiving low numbers of firearms, and proposed that SAPS would target its strategy to root out illegal firearms in these communities.

Gen Sitole added that if a firearm was involved in the commission of a crime, the court would determine the process for its confiscation or destruction. SAPS could also, in terms of S102 of the FCA, confiscate or remove firearms licenses.

Dr Groenewald requested the Committee receive the notice of request referred to by the Minister as soon as possible. He disputed the Minister’s claim that firearms kill, noting that the major issue was illegal firearms. He proposed that SAPS should focus its strategy on illegal firearms, specifically those in the hands of criminals. He noted the Minister deserved credit for his performance as National Commissioner, but felt that the World Cup had helped police performance because of the increased visibility of police. He noted that this trend of increased police visibility had reduced crimes during the lockdown too. He was worried about Gen Masemola’s statement that SAPS was still counting firearms, noting that the system should be automated and give immediate data.

Mr Terblanche agreed that firearms killed, but they also protected. He conceded that there was no World Cup in 2011, but countered that there had also been no amnesty. Of the 27306 firearms handed in, he enquired as to how many had been connected with crimes committed. He expressed concern over the directive issued by the police preventing firearms owners from requesting license renewals.

Ms Majozi reiterated her question on the strategy for locating illegal firearms in the hands of foreigners in the country illegally. 

Mr Shaik Emam wanted to know if SAPS could clarify what percentage of firearms received were either from the security industry or those stolen from SAPS. He submitted that there were 2 types of illegal firearms: those not legally procured and those legally procured but stolen, and requested a breakdown of statistics in this regard.

Ms Faku reiterated her question on the strategy to increase performance of the amnesty in hotspots. She appreciated that no firearms had been reported stolen from police stations.

The Chairperson noted that the previous Firearms Amnesty had ended on the 31st of May, and SAPS was requesting a new amnesty beginning on the 1st of August. She requested clarification on what would happen during June and July. She indicated to members that the Firearms Amnesty request notice was still with the Speaker and would be circulated to members when the Speaker had released it.

The Minister noted that many initiatives were put in place to improve policing before and after the 2010 World Cup. The SAPS Tactical Response Units were introduced around this time to plug gaps in on the ground enforcement response. Visible policing was also important. The police also improved the power of its vehicle fleets. It would be ungracious to suggest that 2010 did nothing but much more was involved in improving policing. A tracking team was introduced by SAPS to be devoted to finding criminals.

Between June 1st and July 31st there would be no amnesty, so owners would be best served by waiting until 1st August.

He agreed that illegal firearms in the hands of criminals were largely not handed in during amnesties. At the next meeting, he would provide data on SAPS retrievals of illegal firearms in the hands of criminals.

Legal firearms were accepted but could still create dangerous situations where they were not handled correctly.

Gen Sitole made it clear that the amnesty notice had been submitted the morning of the 3rd of June.  

He noted that, from police stations, not a single firearm had been reported stolen from those submitted. IBIS had linked 8 firearms to crimes so far, which would be investigated.

As firearms were submitted at stations, they were processed manually, then moved up to national level where they were inputted to the system. SAPS did not wish to publicly clarify what kinds of firearms it had in its possession due to security risk, not because it did not know which firearms it had.

SAPS was using the National Crime Combatting Strategy to address illegal firearms. The NCCS had 5 pillars, one of which was a focus on firearms, especially illegal ones.

SAPS proposed it would provide an answer to Mr Shaik Emam on illegal firearms in writing.

Maj Gen Mamotheti stated that a new circular rescinded the directive on license applications on the 11th of May.

Gen Sitole appreciated the Committee’s emphasis on visible policing, and noted the introduction of the Safer City pilot initiatives focusing on hotspots, especially the Cape Metro.

The Chairperson thanked SAPS and the Minister. The Committee would only be able to approve the new amnesty when the notice had been referred to the Chairperson of the Portfolio Committee and tabled.

Mr Whitfield Letter

The Chairperson raised that Mr Whitfield had submitted a letter requesting an amendment of the IPID Act to allow the Committee to appoint the IPID executive. The existing IPID Amendment Bill was with the President at the moment, which complicated the process.

Mr Whitfield questioned the appropriateness of the executive’s presence during the discussion.

Deputy Minister Cassel Mathale proposed the executive leave the Committee.

The Minister was not opposed to leaving but was not sure whether the meeting was closed or not.

The Chairperson saw no reason why the Executive or SAPS should be excused from the meeting.

The Minister noted his concern that Mr Whitfield was requesting a closed committee meeting and that this might violate the law.

The Chairperson noted that the meeting was open to the public and media, and as such had to be open to the executive as well should they wish to be present.

Mr Whitfield was happy to have the executive present, and proposed this might help them explain why they had operated outside the law for 3 months on the nomination process. He noted that the IPID Amendment Bill had been sent to the President in 2019 and was awaiting signature. This amendment confined itself to the Minister’s capacity to remove the Executive Director as per the Constitutional Court order.

In spite of request from the Committee to the Deputy Minister for an update on the nomination process, it had not received any information. Mr Whitfield asked whether the Minister was granted an extension, and if so by whom and in terms of which Act. He questioned whether it was legally permissible for a Committee to extend this deadline, as had been done in a previous committee meeting. He enquired whether the failure of the Minister to meet the legislated deadline could be open to legal action.

This all hinged on independence: Mr Whitfield did not believe that the executive should have the power to nominate or appoint the head of an independent body like IPID.

He quoted from the McBride vs Minister of Police (2016) Constitutional Court case: “To my mind the state of affairs creates room for the Minister to invoke partisan political influence to appoint someone likely to pander to his whims or is sympathetic to the Minister’s political orientation”.

Mr Whitfield believed the Committee had the duty to insulate IPID from any political interference. He was not making accusations, but believed that the executive should be divorced from the appointment of the IPID head.

During the Fifth Parliament, the Committee was presented with a comprehensive draft amendment bill that did not address the nomination process. The letter was comprehensive, and in the interests of IPID doing its job without fear or favour to curtail abuses by members of the police

The Chairperson noted that the letter submitted by Mr Whitfield had serious legal implications and it would not be appropriate to discuss the letter without an historical perspective, legacy report and a legal opinion on the letter. IPID and the CSP would also need to give input on the matter. She did not think the Committee had sufficient information to discuss the matter.

Mr Whitfield thanked the Chair for her consideration, and requested an indication of when the Committee would be able to deal with the report.

The Chairperson noted that she always attempted to have a follow-up for members as soon as possible. She would also call a meeting for approval of the Firearms Amnesty when documents were received.

The meeting was adjourned.