BRIEFING TO SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS1 November 2006 Cape Town

Issues addressed in the Portfolio Committee for Safety and Security

Comments made on version of Bill as introduced, before amendments were effected by Portfolio Committee

AUDIT VERSUS RELICENSING Some presenters asked for plain audit, and that all

firearms licensed under repealed Act, be retained. Others request audit with competency testing, and

to retain all firearms licensed under the repealed Act.

To replace relicensing process now with audit, would be counter-productive and disruptive. Audit with competency testing differs very little from relicensing process, if firearms limited to numbers of new Act.

Proposal: Retain relicensing process, but confirm policy that existing firearms will be relicensed, subject to the requirements of the new Act (numbers, competency testing and motivation for specific category).

Policy for relicensing should give full recognition for existing ownership, within numbers limitation.

SILENCERS Propose that section 94 of the Act be

amended to include a “silencer”. This will ensure that only persons who

are licensed to own a firearm may be in possession of a silencer:

Section 94 of the principal Act is hereby amended by the substitution for subsection (1) of the following: 

(1) For purposes of this section, ‘firearm part’ means a slide, bolt, [or] breach-block, or a device to muffle or moderate the report of a firearm.

Definition of ammunition primers It was requested that primers on

its own should not be regarded as ammunition.

Even under the repealed Act it was regarded as ammunition.

Primers are needed for reloading purposes and it is believed the position should remain unchanged.

“Dispossession” : Define It is proposed that it be defined as follows:“’dispossession’, for the purposes of section 118,

means to have parted with a firearm in a manner which is in contravention of section 120(10)(a) of the Act, and ‘dispossessed’ shall have a corresponding meaning;

Section 120(1)(a) prohibits the selling, supplying or in any manner giving possession to a person who is not allowed to possess a firearm or ammunition in terms of Act. Present wording of section 118 only covers lost, theft or destruction.

Self Defence / Necessary Defence It was requested that the term used in

section 13, namely “self defence”, should be substituted by “necessary defence” or “private defence”.

As explained the licence is granted primarily for self-defence and if it is used in defence of another person, section 13(4) provides that such firearms may be used for a lawful purpose.

Number of rounds in possessionof Collectors Propose that calibre be defined as

follows: (c) “’calibre’, for purposes of sections

18(1)(b) and 19(3), means cartridge type defined by dimensions and make, mark or model of the ammunition in question.

This will only be applicable to collectors.

Provisional licence

It was asked that provisional approval be given where a deposit needs to be paid in order to have a firearm custom built, or where a firearm is replaced with another, also when a firearm is re-barreled.

It can be dealt with administratively by approving such licence, but only issuing it once conditions have been complied with.

In cases where application is made for import, the approval of import is only done where the license will be approved as well, and can therefore be regarded as provisional approval

Renewal of competency Do not do away with field test. Competency runs with period of validity

of licence. False information is offence. Information except mental capacity,

alcoholism, drug dependency on system Issues such as mental capacity drugs,

alcohol not on our system. Any red lights must be followed up with

field investigation, in same manner as initial application.

Brokering Adequately covered in National

Conventional Arms Control Act.

LOAN / USE OF FIREARM Age limit proposed ) (ISS) eg 18 years Broader interpretation requested of

“immediate supervision” and “stepped age”- 14 years under immediate supervision above 14 years on farm or property not under immediate supervision.

Recommends: “Immediate supervision” should be retained -to allow anything else would bring us in position where we were with permission with letter of owner which was deleted in old Act.

Do not think age limit is necessary- remains responsibility of the owner of firearm-but must be under his immediate supervision.

New Category of licence, namely “professional hunter” Can and should register as

“business in hunting”, because that is what person do.

SASSETA Certificates SAPS acknowledges the problem

experienced with SASETA certificates We will look at Regulations and consider the

deletion for requirement of SASSETA certificate. Take up with SETA/Dept of Labour.

Certificate issued by service provider who is accredited anyway

Administratively SAPS can use service provider certificate and receive SASSETA certificate for record purposes only.

Admission of Guilt Fines See S v Makolane 2006(1) SACR 589 (TPD) Confirms principle that where admission of guilt is

paid, that it is not automatically ground for unfitness.

However, a pattern, or exceptional circumstances could constitute grounds for unfitness.

Court also stated that present Act, section 103(2) is difficult to understand.

Section 103 of Act did not preclude the use of the procedure set out in section 57A of the CPA, and the accused’s admission of guilt and the imposed fine were in order.

Propose that amendment proposed should be retained.

RELATIONSHIP NCACC There is a perception that all exports will as a

result of the amendment of section 96 have to be channeled through NCACC.

The relevant section of NCACC determines that the NCACC may determine which exports must also be approved by them, and channeled through SAPS to NCACC

Only those determined will be be submitted only aligns the Firearms Control Act with NCACC Act.

There was complaint about the low threshold- that must be taken up with the NCACC.

Definition of muzzle loader Agree definition must be amended: “’muzzle loading firearm’ means- (a) a barreled device that can fire only a single shot per

barrel and requires after each shot fired the individual reloading through the muzzle end of the barrel [or cylinder] with separate components consisting of a–

(i)   measured charge of black powder or equivalent propellant;

(ii)   wad; and (iii)   lead bullet, sabot or shot functioning as a projectile,

and ignited with a flint, match, wheel or percussion cap; or.”.

Definition of muzzle loader Above definition will address miniture

and other muzzle loading canon. See “cylinder” would depend on how we

deal with “cap and ball” revolvers. They were not previously included in

definition of firearm, because not loaded in muzzle, but in cylinder.

Is cumbersome to reload and differs from other muzzleloaders in that it can fire six shots in succession before reloading.

Cap and Ball revolvers

Policy decision needed. Can fire six shots in succession. Is cumbersome to reload. Cannot be compared to modern revolvers and

pistols. Not evidence used in crime- one case where

such bullet found in body. Would probably not be preferred weapon. Poses a greater danger than single shot muzzle

loaders.

Storage of firearm on dealer’s premises Relates to Regulation Do not agree with “problem”.

Weekly returns gunsmiths Relates to Regulations only.

Testing of firearms by dealer/gunsmith accredited range Not aware that this is real

problem. Do not agree that gunsmith use

other shooting ranges to test fire firearms

Competency certificates for muzzle loader Request that any competency

certificate must be acceptable. Collectors/associations willing to

develop specific course. Differ from other firearms. Not in agreement that any

competency certificate be acceptable

Role of heritage association

It was pointed out by collectors that Heritage Agency SAHRA could only play a role in respect of historic value Proposal:

(a) A firearm which may be possessed in a private collection is any firearm approved for collection by an accredited

collector’s association, based upon such historical, technological, scientific, heritage, educational, cultural, commemorative, investment, rarity, thematic or artistic value as determined by the association, or

(b) where a firearm is approved for collection as a heritage item as defined in the National Heritage Resources Act, 1999 (Act No. 25 of 1999), such approval shall be subject to confirmation by the South African Heritage Resources Agency or its appointed agents.

Section 119 additional licence

Requirement of proof of handing over opposed This relates to situation where a husband and wife both

are holders of a licence to posses the same firearm and firearm is lost.

The spouses cannot be obliged to testify against each other.

Proposed documentary proof would mean that spouse will need to document handing over of firearm every time, which is not practical in household.

The value of the proposed amendment in household situation is doubtful and it is proposed to delete it from the Bill.

Competency certificate for collector section 10

Add category “to possess a firearm as public collector

Amend Clause 9 (1) An application for a competency certificate to

possess a firearm, to trade in firearms, to manufacture firearms, [or] to possess a firearm as a private collector in a specific category or to carry on business as a gunsmith must be delivered to the Designated Firearms Officer responsible for the area in which the applicant normally resides or in which the applicant’s business is or will be situated, as the case may be.

Competency certificate for collector section 10

Include in Clause 9 iB possess a firearm as a private collector in a specific category;

Making Inoperable of Restricted Firearms for collection

The idea is to ensure that the process is non damaging.

It is so that collectors are responsible, but possession of automatic weapons by private individuals should be restricted in accordance with the SADC Protocol.

Regulations which will describe process of making firearm inoperable will be drafted through consultation with the Collectors.

SUBMISSIONS: DOMESTIC VIOLENCE

It has been proposed that a section 6(4) should be inserted in the Act, providing as follows:

6(4) Applications for competency certificates and licences to possess firearms will be suspended when the applicant is the subject of a temporary protection order under the Domestic Violence Act, 1998.

We agree that it is of the utmost importance that reporting of such order be related to pending applications for firearms licences and competency certificates, permits and authorizations.

Protection order- interim/final See section 9 of Domestic Violence Act

116 of 1998 9         (1) The court must order a

member of the South African Police Service to seize any arm or dangerous weapon in the possession or under the control of a respondent, if the court is satisfied on the evidence placed before it, including any affidavits supporting an application referred to in section 4 (1), that-       

  

Protection order- interim/final

(a)     the respondent has threatened or expressed the intention to kill or injure himself or herself, or any

person in a domestic relationship, whether or not by means of such arm or dangerous weapon; or       

(b)     possession of such arm or dangerous weapon is not in the best interests of the respondent or any other person in a domestic relationship, as a result of the respondent's- (i)     state of mind or mental condition;           (ii)     inclination to violence; or           (iii)     use of or dependence on intoxicating liquor or

drugs.

Protection order- interim/final

 Section 6(6) of the Domestic Violence Act provides that:

(6) The clerk of the court must forthwith in the prescribed manner forward certified copies of any protection order and of the warrant of arrest contemplated in section 8 (1) (a) to the police station of the complainant's choice.  

DOMESTIC VIOLENCE

Regulation 14 of the present Firearms Control Regulations of 2004, provides that a key indicator for refusing a competency certificate application is whether in the past five years the applicant has been served with a protection order in terms of the Domestic Violence Act, 1998, or visited by a police official concerning allegations of violence in the applicant’s home.

PROPOSAL DOMESTIC VIOLENCE

That the Firearms Control Act Regulations be amended by inserting a new sub-regulation 14(10), which should provide that:

“14(10)Whenever a certified copy of any protection order or a warrant of arrest contemplated in section 8 (1) (a) of the Domestic Violence Act is received at a police station, the station commissioner must refer it to the relevant Designated Firearms Officer, in order to determine whether it relates to any application for a licence, competency certificate, permit or authorization received by him.”

Imitation firearms It is correct that there is an anomaly that any

person may be in possession of a deactivated automatic firearm, but not of an imitation of such firearm which also cannot fire ammunition.

Section 2 of the Dangerous Weapons Act provides that Any person who is in possession of …any object which so resembles a firearm, that in the circumstances under which such person is in possession thereof, it is likely to be mistaken for a real firearm, shall be guilty of an offence, unless he is able to prove that he had at no time any intention of using the object for any unlawful purpose.

Imitation firearms Dangerous Weapons Act provides for

such possession in respect of all firearms. Propose that provision relating to

imitation in FAC Act be amended: (e) any imitation of any device contemplated

in paragraph [(a),](b), (c), or (d); (a) relates to “automatic firearm”. Show Committee recent request for

import of “imitation BB guns”

Possession of rifle grenades Include in Clause 12 the rifle

grenades- this will have effect that rifle grenades may be possessed by collectors and only if deactivated.

This proposal was included in the Bill

Disposal of ammunition by collectors

Amend Clause 16, to include ammunition in collection, in other words, a collector may donate or sell ammunition without intervention of a dealer: subject to conditions to be prescribed.

EXTENSION OF VALIDITY PERIOD OF BUSINESS LICENCES

Concerns were expressed about security companies which cease to exist and securing firearmsSECURITY SERVICE PROVIDERS EXTENSION OF VALIDITY OF LICENCE FROM TWO TO FIVE YEARS

Section 146 of the Act provides that: If a person who holds a licence issued in terms

of section 20 or who holds a licence, permit or authorisation contemplated in Chapter 7 or 8, ceases to carry on business for any reason, the firearms and ammunition in possession of that person must be kept in safe custody by the person and at the place designated by the Registrar, until they are disposed of as prescribed.

CONCERNS SECURITY COMPANIES

Regulation 102 provides that such business must notify Registrar in writing of the date on which the business will cease to carry on business, and a detailed list with full particulars of all firearms and ammunition in his or her possession. He must dispose within 90 days after having ceased to carry on business of the firearms and ammunition. Extension may be granted after period expire, the firearms and ammunition must be immediately surrendered to the SAPS.