Firearms Control Bill: discussion

Meeting report

SAFETY AND SECURITY PORTFOLIO COMMITTEE
5 September 2000
FIREARMS CONTROL BILL: DELIBERATIONS

Relevant documents:
Firearms Control Bill [B34-2000]
Policy Document for the Control of Firearms in South Africa
Summary of submissions: Key legal and technical issues raised during the public hearings
Department Draft of Alternative Provisions for the Firearms Control Bill

SUMMARY
The Department took the committee through some proposed amendments to the Bill in response to submissions made at the public hearings. Some important suggested changes are:
- that clauses 15 to 17 of the Bill be combined so that the categories for firearm licences for self-defence, occasional hunting and occasional sports-shooting would be combined into one clause.
- that clauses 18 and 19 be combined so that the category on firearm licences for dedicated hunting and sport-shooting will be regulated in one clause.
- that the period of validity of a competency certificate be extended from two years to three years.
- that an airgun with a calibre exceeding 0.22 be included in the definition of a firearm. All other references to airguns would then be deleted.
- the clause dealing with antique firearms be deleted and the definition would date them from 1900 rather than 1870.

The ANC were not in favour of combining the categories for possession of firearm licences suggested by the Department. The Chairperson commented that the categories must not be mixed together simply to achieve administrative convenience. The real aim of the Bill is the proliferation of firearms. This must always be borne in mind as every other aim is a secondary aim. The committee did not make any conclusive decisions.

In the afternoon session, the Department's capacity to relicence existing licence holders was debated at length. The Democratic Alliance were in favour of a flexible approach to the relicencing procedure whereas the ANC were in favour of it being implemented as soon as possible. Secondly the committee agreed that "as soon as is practicable" in Clause 33 gave the Registrar far too much leeway in terms of time in establishing a central firearms database. The clause was amended as such.

MINUTES
Introductory comments
The Chairperson highlighted the questions that the committee would have to answer before they could pass the Bill. These are:
1) Is the Bill practically implementable? This related to whether there were enough resources in terms of personnel and finances to implement the Bill?
2) Will the Bill meet constitutional requirements?

The Preamble
Before the committee discussed the Department's Draft of alternative provisions, Mr Geldenhuys (NNP) suggested an amendment to the Preamble. He referred to the phrase ''and whereas the increased availability and abuse of firearms and ammunition has contributed significantly to the high levels of violent crime in our society'' and asked that the word "availability" be deleted. He motivated his point by saying that there was evidence that firearm density in other countries had no impact on crime and many of the submissions had refuted the relationship between the availability of firearms and violent crime. In SA, since 1995 there had been a decrease in the murder rate while there had been an increase in firearm availability.

Mr Booi (ANC) disagreed with this. He said that the availability of firearms has contributed to crime.

Mr Ndlovu (IFP) suggested that they define ''availability''. As it was used in the Preamble it could be interpreted to mean that everyone who has a firearm is liable to commit a crime. What they were really referring to in the Preamble was the availability of illegal firearms. Therefore they should define the word.

Mr Booi agreed that the use of the word could be considered ambiguous. He said that he would concede to Mr Ndlovu's suggestion to define ''availability'' but not to Mr Geldenhuys's suggestion to remove it. Mr Geldenhuys said that he would agree to the IFP's suggestion.

Mr Swart (DP) commented that the Bill is a major instrument in fighting firearm crime. However, he emphasised that it is only part of a strategy, it is not the only instrument. Some control over firearms is necessary but the real problem was the proliferation of illegal firearms. Private firearm owners are not a big part of the problem.

Mr Ndlovu said that one cannot make laws for illegal firearms because one cannot bring that illegality into the government. They can only draft legislation regulating legal firearms. Therefore the definition of ''availability'' and ''abuse'' as they are used in the Preamble must relate to legal firearms.

The Chairperson said that the Bill is aimed at the proliferation of firearms in the country. That includes legal firearms. They want to make it hard for anyone to get hold of firearms, even legal firearms. There is a relationship between legal and illegal firearms, no matter how small.

Mr Swart repeated that the Bill is only part of a strategy, it is not the whole approach. He wondered whether they could objectively discuss the public hearings or whether the majority party would be bound by the Policy Document for the Control of Firearms in South Africa. He believed that the Chairperson had just answered that question.

The Chairperson replied that no submission or presentation had "been lost''.

General Viljoen (FF) objected to the way the committee was tackling the Bill. He said that they ''can[not] go clause by clause yet''. They should first get familiar with the policy on which the Bill is based and these broad issues are contained in the Policy Document. Therefore that document, which he noted that he had ''only received now'', must be considered before the Bill.

The Chairperson did not think that they should discuss the policy document separately. It is only meant to assist them. The Bill must not contradict the policy. Then they must change either the Bill or the policy.

Draft of alternative provisions for consideration (formulated by the Department)
Adv Kok went through the proposed amendments prepared by the Department as a result of submissions from the public.

Clause 1 Definitions
Airgun (clause 1 (ii)) - Adv Kok said that after discussions with a technical group, they had decided to regulate airguns with a 0.22 calibre or higher. If this proposal is accepted then these airguns will be included under the definition of a firearm and all other references to airguns in the Bill will be deleted.

Mr Swart asked if they could not rather refer to a No 1 airgun (instead of referring to the calibre). This would make the Bill easier to read as terms like No 1 and No 2 airgun were commonly used.
Adv Kok replied that the technical team had said that they must refer to the calibre because there was a whole range of firearms between a No 1 and a No 2 airgun.

Ammunition (clause 1(iii)) - the word propellant has been removed.

Antique firearm (clause 1(iv)) - here the date has been changed from 1 January 1870 to 1900. The definition excludes dangerous firearms which are not muzzle-loading. Homemade firearms are not included in the definition of replica.

Mr Geldenhuys said that the Bill did not regard an antique firearm as a firearm yet the Bill regulates antique firearms. He asked ''Why regulate?'' There is no relationship between an antique firearm and the commission of crime. He also commented that a replica cannot be an antique so there was a contradiction. He pointed out that they must guard against over-regulating. Ideally, antique firearms should be deleted from the Bill.

Adv Kok explained that the Department proposed that there be no regulation of airguns and antique firearms. However, in order for them to do this they must define it to know what precisely must be excluded.

General Viljoen also noted his concern about over-regulation. No 1 and 2 airguns should not be licenced. For antique firearms one does not even get ammunition anymore so it is not worth the effort or the cost to regulate them.

Firearm (clause 1(xii)) - a few technical amendments were made to this clause:
- In subclause (a) the words ''or compressed gas'' was deleted.
- In (b) ''fire'' and ''or'' was deleted. ''Discharge'' was added before the word rim-fire. The word ''pin-fire'' ammunition was added as suggested in the hearings.
- In (d) ''specially dangerous airgun'' was deleted and the following was added ''Device manufactured to discharge a bullet or any other projectile of .22 or higher calibre at a muzzle energy of more than 8 joules (6ft-1bs), by means of compressed gas and not by means of burning propellant''.

Mr Swart commented that (a) and (d) of the definition seem to be a duplication. He asked why they were not combined. Adv Kok said that this would make them more difficult to read. The way it was now (a) dealt with firearms and (b) dealt with airguns. It was practical to keep them separate.

The Chairperson noted that (d) was consequential and the committee accepted this.

Mr Geldenhuys noted that subclause (e), dealing with the licencing of certain parts of the firearm and which had raised much debate, did not contain any proposed amendment.

Adv Kok said that the international trend is to require licencing of parts of the firearm such as the barrel. The barrel should be licenced in terms of the Bill and in terms of policy. It must also be marked with a number. The Department thinks that it is both possible and practicable to do this.

Juristic person (clause 9(xvii) - the definition is now broad. It makes it possible for a club or a partnership to apply for a firearm.

Occasional hunter (clause 1(xx)) - the concept of intent has been included. It means that someone may qualify as an occasional hunter if he intends to participate in hunting activities. This was done so that the applicant will not need to demonstrate that he is already participating.

Mr Geldenhuys asked if the practical implications of this would mean that everyone in SA who wants a firearm will qualify as an occasional hunter? Will it be restricted by the regulations? Adv Kok replied that there will not be automatic qualification but an evaluation of the motivation of intent.

Mr Geldenhuys asked what yardstick would be used to determine what an occasional hunter is.
Adv Kok said that there would be a discretion - implying a value judgement - which could be structured in the regulations.

Mr Booi asked if they should not make this decision now.
Adv Kok said that any regulations made are a mandate given to the Minister. The Department had tried to balance the Bill's length with its detail and the rest would be in the form of regulations. The committee can set prerequisites for the Minister when making these regulations. What goes into the regulations or into the actual Act is a policy decision which rests with the Committee.

The Chairperson said that by inserting "intends'' they have opened it up. The ANC felt that having regard to intent would present a problem because there would be no certainty.

Mr Swart said that intent can be properly dealt with in the regulations. For him the problem was that if they left it as it was then it would be a practical impossibility to implement because if you have no firearm then you cannot be a hunter. This means that you cannot show intent. The problem is that you need a firearm to qualify to get a firearm.

Mr Ndlovu said that if one left it to discretion, the matter became subjective and corruption could then be a problem.

Adv Kok replied that the judgement will be made by the Registrar or some delegate. Administrative justice has to be adhered to so arbitrary decisions will not be allowed. The Constitutional Court will declare arbitrary decisions invalid and the party will also have recourse to ordinary courts. The rationale for inserting ''intends'' is to counter the current problem where a person who has no firearm but who wants to go hunting occasionally must be under the supervision of someone with a licence before he gets his licence. They were trying to accommodate this problem.

The Chairperson asked what was wrong with that scenario. Adv Kok replied that not everyone knows someone who will take them hunting. Whether they wanted to accommodate this person or not was a political decision.

The ANC said that ''intends to do so'' could be removed in a future draft.

Private collector (clause 1(xxvi)) - the words ''or ammunition'' were added to accommodate the person who collects ammunition but not firearms.

Imitation firearm (clause 1(xvi)) - Mr Swart raised this definition for discussion as there was no alternative formulation for it. He said that they must be careful of the way it is defined because the way it is now it includes even a toy. Even a wooden stick can ''have the appearance'' of a firearm.
Adv Kok replied that certain toys are excluded but they must be very accurate imitations.

The Chairperson said that the reason for including imitations was that some imitations look like real firearms and not everyone knows the difference between the two. Adv Kok suggested that they could draft a more descriptive definition of imitation firearm which they will present for debate.

Specially dangerous airgun (clause 1(xxxiii)) has been deleted. There was no discussion on this.

Clause 4 Prohibited firearms
A few deletions have been made to this clause. There was no discussion.

Clause 5 Devices not firearms for the purposes of this Act
The deletions include ''antique firearm'' in clause 5(1)(e) and ''airgun'' in clause 5(1)(f).

Adv Kok said it was a drafting mistake that both subclauses had been removed. He said that subclause (e) (antique firearm) should stay and subclause (f) (airgun) should be taken out. He explained that an antique firearm should be specifically listed in this exclusion. Failing to do this would have the effect of ''making it a firearm''. Mr De-Caris disagreed that this was a mistake. He said that these two have already been excluded elsewhere in the Bill. If they were included here too it would simply be a duplication. He suggested that both be taken out.

Clause 6 Antique firearms and Clause 7 Airguns
The Department suggested that these clauses be deleted.

Clause 11 Application for competency certificate
In subclause 11(2) the words ''where a person has not previously obtained a competency certificate, a competency certificate may only be issued to such person if he or she - '' have been inserted. This means that the requirements listed in 11(2) only apply to someone who has not previously obtained a competency certificate. This clause is now more flexible because the person does not need a competency test. It can be a more expeditious process to get a repeat certificate.

Clause 12 Competency certificate
The competency certificate is now valid for three years and not merely two years as before.

Gen Viljoen asked why the period was increased only to three years. It places a financial burden on citizens and an administrative burden on the police to comply with this. The financial impact on the citizen will be more bearable if the competency certificate runs for a longer period.

Mr Goniwe (ANC) commented that practicality was not the overriding issue. The most important consideration was that the person must be fit.

Adv Kok said that that the purpose of competency testing was to determine the fitness to own a firearm generally. The period for which the competency certificate would be valid was a policy issue. They had decided to increase it from two to three years because the Security Officers Board submission stated that it would present a practical difficulty for them to review the certificate every two years and three years is more practical. To make a change more substantial than three years would require a policy choice by the Committee.

Clause 15 Licence to possess a firearm for self-defence, occasional hunting and occasional sports-shooting (Clauses 15 to 17 have been combined into one clause)
Adv Kok said the reasoning for this alternative formulation was to streamline the existing categories. Many submissions had indicated that they would prefer to use a rifle for self-defence. In terms of the tabled Bill, it appeared as if they would then have to acquire an additional firearm for self-defence besides a firearm for hunting. If the categories are combined, the person only needs to get one firearm for both hunting and self defence.

Mr Geldenhuys commented that the categories related to specific use principles and suggested that they licence the owner and register the firearm (with no restrictions). He pointed out that multiple firearm owners were more responsible than other owners. He also asked if the word ''may'' in ''the Registrar may issue a licence …'' in Clause 15 (2) should not be changed to ''shall'' because the licence must be issued if all the requirements listed there has been met. He wanted to know what the position would be regarding visiting hunters and sports shooters.

Adv Kok replied that visiting hunters obtain permits not licences. On the ''may'' issue, Adv Kok explained that ''may'' should be retained to keep the element of discretion. There could be a situation where the licence will be refused.

Mr Swart commented that combining Clauses 15, 16, and 17 does not change the Bill except that it is now clear that one can use any weapon for self-defence. This is important because many submissions seemed to misunderstand this, thinking it would be illegal to use the wrong firearm for self-defence.

Adv Kok agreed saying that even lawyers who had participated in the hearings had been confused about this because of the way the tabled Bill had been drafted. The fact is that the common law allows self-defence with any weapon and this right cannot be taken away.

The ANC did not like the clauses combined. They said that the result would be that one would end up not knowing why a person had a particular firearm. This could create serious problems.

Clause 18 Licence to possess a firearm for dedicated hunting and sport-shooting
Clauses 18 and 19 have also been combined in the alternative draft.

Gen Viljoen did not see why a distinction was made between occasional and dedicated hunters and sportspersons.

The ANC did not approve of this combination either. The Chairperson commented that they must have clear control. Categories must not be mixed together simply for the purpose of administrative convenience. The real aim of the Bill which is the proliferation of firearms must be borne in mind. Everything else is secondary.

Adv Kok reminded the Committee that if they did not combine the clauses then they will have to licence more firearms per person. The point of the Bill is to reduce firearms. If someone wants to hunt then he will get a firearm for hunting and a firearm for self-defence. If they combine the clauses then the person only needs to get one firearm because the one which he is going to use to hunt with he is also going to use for self defence.

Clause 23 Licence to possess firearm for business purposes
Clause 23(2) has an additional subclause (d) which reads, ''a person who is accredited as a game rancher''. This was to accommodate certain submissions asserting that these organisations differ from other business organisations that need firearms. They claimed that subclause (e) (''a person who is accredited to conduct business in hunting'' does not cover them.

Schedule 1 Phasing in of licencing provisions to certain categories of existing licences
Two possible formulations were provided for discussion: one drafted by the Department and the other by pro-firearm lobbyists.

The Department's formulation
Instead of compelling the Registrar to licence existing firearms within 5 years, the Minister can be given the power to extend the 5 year period for either some or all of the categories. The Minister will then be able to determine when the Registry will be ready to relicence in accordance with the capacity of the Firearms Registry. This will create flexibility.

Pro-firearm lobbyists formulation
Existing licences should not necessarily be renewed. Here the Minister would not be able to require existing firearm owners to relicence their firearms (unless it was in the interest of public safety, or to maintain law and order).

Mr Geldenhuys asked if the drafts provided for an audit of firearms without relicencing them. He asked what the cost difference of this would be. Adv Kok said that such an alternative had not been drafted.

General Viljoen noted that he favoured the idea of priority relicencing of firearms. As there was a relationship between crime and handguns, they should start with relicencing handguns first. They could then relicence the others later.

Summary of Submissions: Key legal and technical issues raised during the public hearings
The committee proceeded to look at Clauses 24 to 31 commented on by organisations during the public hearings and summarised by the Department in its document titled "Key legal and technical issues raised during the public hearings". [These issues had not been accommodated by the Department's Draft of Alternative Provisions for the Bill.]

Clause 24 Temporary authorisation to possess a firearm
Gen Viljoen asked why the Safari Club International's concern that the Bill does not provide for lending of firearms at short notice, was not accommodated.

Adv Kok replied that a person cannot lend a firearm but he can get temporary authority to possess one. Further, if persons are members of the same household they can obtain a multiple licence for the same firearm. In this way they can lend to each other. The Department believes that no practical consideration necessitated a change in policy.

The minority parties commented that this would ''chase away the tourists'' as the need to borrow a firearm was not provided for.

Mr Goniwe said that SA does not want to chase away tourists but it is not so desperate for revenue that it is prepared to abandon laws. The aim is to control firearms and it is dangerous to allow short term lending because you are giving a stranger a firearm with no controls on it. The government should be able to keep track of the owner, where he is and what he is doing with the firearm.

Mr Swart pointed out that Clause 25 solves the problem and therefore there was no need for a debate. Clause 25 provides that someone can loan their firearm to another as long as the person they loan it to is under their supervision.

Mr De Caris said that they had discussed this issue with PHASA (Professional Hunters of South Africa) who indicated that they were happy with this clause.

Adv Kok said that the only lending concern which was not met is the instance where someone was on a farm with a professional hunter (not a hunting farm) and the person wanted to borrow a firearm and walk on his own without supervision. This concern had not been met.

The Chairperson told Gen Viljoen that he can draft a neater formulation of this if he wishes.

Clause 25 Holder of licence may allow another person to use firearm
This clause relates to the age issue. The ages at which someone may obtain a licence - which will be dabated on by the Committee - are 18, 21, or 25.

Mr Geldenhuys said that 18 years should be the age throughout the Bill. An 18 year old who wanted a firearm, first had to get a competency certificate. This in itself encompassed the requirement of responsibility.

Mr Booi disagreed with making 18 the acceptable age. He said that it might be alright for an 18 year old to acquire a licence for himself but it was not desirable for an 18 year old to be an instructor for example.

The Chairperson noted however that there would be exceptions to whatever age they decide upon. For example an 18 year old can be a policeman and in this situation he will obviously need a firearm. When they choose an age they must focus on an age that is generally acceptable rather than focusing on specific situations.

Gen Viljoen said that in his culture they teach their children and grandchildren to shoot from an early age. He asked if this would be accommodated.

The Chairperson replied that cultural diversity cannot always be accommodated. They would leave this for discussion by parties.

Mr Goniwe noted that he was concerned about discrimination on the basis of age. An 18 year old can vote. If he is not allowed to have a firearm, will he be able to go to the Constitutional Court and claim discrimination on the basis of age.

Clause 26 Identification marks on firearms
The committee discussed subclause 5: "no person may erase, alter or in any other manner tamper with the manufacturer's serial number or any other identification mark on a firearm".

The Department said that the National Firearms Forum submission stated that it is sometimes necessary to reprint the number on the firearm and that the dealer should be allowed to do this. The dealer is not allowed to change the identification number of the firearm, only to reprint the actual number.

Clause 4(1)(g) of the Bill provides that the number can be removed with the written permission of the Registrar but this would be too time consuming. The Department suggested adding to subclause 5: ''with intent to change the identity of the firearm for unlawful purposes''.

The committee agreed to this.

Afternoon session:
Clause 27 Renewal of firearms licences
The Chair asked why there were no proposed amendments formulated in response to submissions made on this clause. Adv Kok stated that a need exists for current licences to be renewed as many licence holders are negligent or reckless.

Gen Viljoen felt that not all licence holders are reckless and therefore everyone should not be retested. The Chair asked how one distinguishes between good and bad licence holders. Gen Viljoen replied that one way would be to look at an individual's past criminal record.

Mr Booi asked the Department to give their view on this issue. Adv Kok stated that they were in favour of relicencing existing licence holders but that practically speaking it would be a daunting task, as capacity is always an issue.

The Chair asked Adv Kok why there should be a problem with its implementation. On the 24 August the National Commissioner had told the committee that the resources are available to relicence existing firearm owners immediately.

Mr Swart (DP) stated that he agrees with the Department that flexibility is required.

The Chair stated that the Department must make a proper analysis of whether they have the capacity or not. The committee needs to be clear on the issue of capacity as relicencing is fundamental to this Bill.

Adv Kok categorically stated that they do have the capacity but, from a legal drafter's point of view, provision is made for flexibility to allow for unforeseen circumstances. The Chair asked Adv Kok not to alarm the committee if capacity is not really an issue.

Mr Swart asked the Chair if he really believed that the capacity exists to process ± 700 000 relicencing applications per annum and this figure does not include current applications. He emphasised the need for flexibility in allowing the Department to perform this task.

The Chair stated that if the capacity exists, it should no longer be an issue. Mr Booi agreed with him on this point.

Clause 28 Notification of change of address
The Department explained that the clause provides for a licence holder to inform the Registrar of a change of address within 30 days of it happening. However the Department suggested including a provision in 28(2) providing for the Registrar to inform the individual of receipt of such notification within 30 days of receiving it. The committee agreed to it.

Clause 29 Notification of change of circumstances
The clause provides for the licence holder to inform the Registrar of a change in circumstances within 30 days of it occurring. The Department suggested that a 30 day period be included in the clause within which the Registrar has to inform the licence holder of receipt of such notice. The committee agreed to it.

Clause 30 Period of validity of licence or permit
The Chair felt that the two year validity period for a "restricted firearm" was too long. He preferred it to be one year subject to renewal. The Department stated that the two year period is a compromise and that they believe it to be fair enough. They added that it is up to the Registrar to monitor these periods to check whether they are appropriate.
The Chair accepted their explanation.

Clause 31 Termination of firearm licence
The Department has amended the notice period in 31(3) from 14 days to 30 days in order for the licence holder to make written submissions as to why his licence should not be cancelled. They have also included a subclause 31(7), which provides for a current licence to remain valid until an application for renewal has been considered.

Department Draft of Alternative Provisions for the Firearms Control Bill
The Department reverted to this document on reaching Clause 33:

Clause 33 Central firearms database
The Department suggested deleting the phrase "as soon as practicable" . Mr Booi agreed that the word "practicable" is too vague. Adv Kok stated that they had used the word "practicable" because it would be difficult to determine when exactly the information systems of the database will be up and running.

Mr Swart emphasised that the whole Bill depends on the central database, therefore a time frame needs to be spelt out. The Chair agreed that this section is too vague. Mr Booi pointed out that there already exists a central database, all that is needed is it to be upgraded so he did not see a problem with delays.

The Chair stated that the committee would not leave this clause as it is. He agreed to Adv Kok's suggestion of adding the words "and maintain". Thus it would read:
"The registrar must establish and maintain such central firearms database as may be prescribed.

The meeting was adjourned for the day.