ORAL SUBMISSION ON THE FIREARMS CONTROL AMENDMENT BILL (B12 – 2000)
16 August 2006
The Gun Control Alliance (GCA) is a partnership of organisations and individuals that represent various sectors across the country such as religious bodies, health professionals, community and domestic violence prevention organisations, policy research institutes, children's advocacy and service organisations and survivors of gun violence. Alliance members consist of both large national bodies such as the Gender Commission and the Southern Africa Catholic Bishops Conference and small, local community based organisations. The GCA which began in 1999 as signatories to the Gun Control Charter, supports all efforts to reduce gun violence and this includes the strengthening of national gun laws.
The GCA delegation consists of:
Adèle Kirsten, GCA Gauteng
Felicity Harrison, SACBC Parliamentary Liaison Office
Lucy Jamieson, Children’s Institute, UCT
Helene Combrinck, Community Law Centre, UWC
The presentation will focus on four key areas:
Why the law is important
Support for amendments
Oppose amendments, with particular emphasis on the definition of “fit and proper” and the renewal system
Issues for consideration
2. WHY THE FCA IS IMPORTANT
Limiting and controlling the acquisition, possession and use of firearms on the part of civilians is necessary, not only for combating a culture of violence but especially to prevent the diversion of once legally held guns into the illegal market. The FCA plays a critical role in achieving both of these goals by restricting access to firearms by civilians and controlling the illegal trade in firearms. There is now sufficient evidence both in South Africa and across the world that civilian owned guns are routinely misused, stolen or leaked into the illegal market.
It is therefore critical that gun ownership by ordinary citizens be adequately regulated particularly at the national level. South Africa is one of several countries, including Australia, Brazil, Cambodia and Sierra Leone which over the last decade have undertaken significant reforms to regulate and limit gun ownership by its citizens. Strengthening national guns laws at both national and regional level has become the international norm.
The international community has also recognised that the failure to control and reduce guns in the hands of civilians in post-war contexts, can lead to high levels of crime, contribute to the greater likelihood of a relapse into armed violence and can significantly prolong cycles of poverty and jeopardise sustainable development. Controlling and reducing guns in civilian hands is therefore a priority for building peace.
The GCA recognizes the need to review the Firearms Control Act from time to time, to assess its provisions and to refine or strengthen them as the need arises. With this in mind, we support the Firearm Control Amendment Bill (B12-2006), particularly insofar as it promotes and strengthens the existing national firearms control regime. However, it is important that the fundamental principles underlying the Firearms Control Act are in no way weakened or undermined through the amendments proposed in this Bill. These principles are best demonstrated through the introduction of provisions such as the competency certificate, the system of renewals and stronger provisions for the declaration of unfitness. We will focus our remarks on those sections of the Bill in line with the principle of supporting those clauses which strengthen the effective implementation of the law and opposing those clauses which we believe significantly weaken or undermine the law.
3. SUPPORT FOR THE AMENDMENT BILL
There are several sections in the Amendment Bill which the GCA supports. In general these are either additions which have served to clarify or refine the meaning of a clause or the deletion of clauses which were open to misinterpretation or ambiguity, thereby closing potential loopholes. In all instances any amendments that we believe contribute to and enhance the improved implementation of the law are supported.
The prohibition on silencers in Section 3 (a) and (b)
3.2. Competency Certificates
Section 9 (2), which specifies that the competency certificate remains valid for the same period as the validity of the firearm licence to which it relates. This is a welcome addition to the principal Act because it streamlines and therefore improves the implementation of the licensing system by bringing the issuing of the competency certificate in line with the issuing of the firearm licence. This should both ease the burden on the licensing system but also go some way to making gun owners feel that they are not being unnecessarily penalised.
3.3 Declaration of Unfitness
We support the addition of the following clauses under the section on declaration of unfitness.
Section 24(d): the admission of guilt fine.
Because we understand that it will close an important loophole that currently exists.
Section 24 (f): evidence in hearings.
Because it allows the police to consider information not included in the initial complaint. This allows new evidence to be brought forward, collected during the investigation of the complaint, and allows for a fairer and better-informed hearing.
Section 24 (h): non-compliance with notification.
We support this section because where a person has been fairly notified of a hearing and does not attend, it can hold up the process, potentially indefinitely. Proceeding with the hearing allows for better implementation of the law.
These new provisions facilitate the efficient handling of cases, at the same time ensuring fairness and transparency.
3.4. Presumptions: failure to report
The GCA supports the addition of the wording or the dispossession of a firearm in Section 32 (1) and its continued use throughout subsection (1) as it clarifies the powers vested within the South African Police Service in carrying out their duties with regard to the full and effective implementation of the Act. This is particularly important given the high level of loss and theft of licensed firearms.
4. AMENDMENTS OPPOSED
Section 1(e): insertion of “fit and proper person”
The Amendment Bill proposes to restrict the current definition of ‘fit and proper’ by removing the discretionary power granted to the police when considering competency certificate applications.
In line with the underlying principles of the Act, one of which is to raise the barrier for firearms ownership to ensure that only the most responsible citizens are allowed to possess and use firearms as specified under the terms of a specific licence and period, the inclusion of Section 1 (e) cannot be supported as it goes against this principle. The requirements for competency certificates as prescribed in Section 9 of the principal Act are vital in determining if a person is a suitable candidate to own a firearm. It is, therefore, important that the police are given the ability to assess if a person meets the criteria set out in the Act and we believe that the proposed amendment will limit their ability to make such an assessment.
This discretionary power should not be diminished as the police need to apply it if circumstances arise which are not covered in section 9 (2) (a) through (s). The criteria set out in this section cannot possibly cover each and every circumstance that arises, and section 9(2) (c) should therefore not be amended to allow SAPS to fairly respond to the exceptional cases. We therefore oppose this amendment and recommend that it be deleted, retaining the wording in the principal Act.
4.2. Renewal of competency certificates: background checks
Section 10A (5)
The introduction of background checks in the principal Act was an important step to ensure that a person who applies for a licence to possess a firearm is ‘fit and proper’ to do so and he/she has no impediments which would potentially endanger themselves, their families or society at large.
The underlying rationale for establishing a system of renewals is a recognition that firearm owners’ behaviour, attitudes and material and social conditions change over time. Therefore, in order to map the possible changed circumstances between the granting of the first competency certificate and its renewal, it is important that background checks are done when firearm owners apply for a renewal of their competency certificates. Changes in circumstances may not be picked up by the police unless a background check is undertaken. As with the initial granting of a competency certificate, it is critical that the police once again check all relevant records available to them, including station records, criminal records and other relevant registers, and that they interview people who know the applicant.
The inclusion of section 10A (5) will undermine the checks and balances provided by the renewal system. It is of vital importance to ensure the integrity of the firearms licensing system by conducting regular renewals which enable the police to determine if the same conditions exist when the competency certificate and firearms license were first issued. Background checks, safe inspections, interviewing neighbours and family members remain important indicators of whether or not any individual remains fit and proper to be in the possession of a firearm. Under no circumstances must this provision be weakened, as it will substantially undermine the efforts of the police in ensuring that those at risk of either hurting themselves or others are not in the possession of a firearm.
We therefore oppose sub-section 10(A) 5 because it would allow the police to grant an application to renew a competency certificate without having done any background check on the applicant.
4.3. Renewal of competency certificates: training
Section 10A (7)
The GCA recommends the deletion of this section as likewise with Section 10A (5) it undermines one of the central purposes of the renewal system which is to ensure that any change in circumstances is noted and appropriately acted upon.
We oppose this section because it would allow licence holders to renew their competency certificates without having taking any refresher courses on the law or practical gun use. It is critical that licence holders keep up to date with changes in the law relating to firearms. This could be done when they are renewing their competency certificates. After only two years of implementation the FCA has undergone several amendments, this Bill being one of them. Firearm owners need to be aware of these changes and how it affects both their responsibilities and duties regarding compliance.
Ongoing training on the use of and proficiency with a firearm are essential particularly with regard to safe keeping requirements in the home. This would contribute to building and encouraging responsible and accountable firearm ownership in the country.
One of the key principles of the FCA is the principle of registering the gun and licensing the person. This is a cornerstone of the principal Act and must not in any way be compromised. By establishing a system in which every gun is registered to a properly licensed owner, the state creates a system of accountability for legal owners, and registration provides an incentive for them to obey the rules of a licensing system.
The system of renewals therefore is an integral part of the licensing and registration system which makes provision for the legal gun owner to reaffirm his/her responsibility for the firearm registered in his/her name or be given an opportunity to explain why he or she should no longer be accountable for its whereabouts. Such explanations may include a lawful transfer, theft (supported by a police report) or voluntary surrender (supported by evidence).
Firearm license renewal requires that genuine need for the continued ownership of the firearm must be proven again. Once a licence to possess a firearm is granted, permission to own said firearm must not last forever. Imposing a limited duration on a gun license provides for the following:
- regular confirmation that the licensed owner is still qualified to have a firearm
- an incentive for complying with licensing
- an incentive for acquiring a new license when the old license expires
Any amendments which alter the principle of the renewals system will ultimately undermine the effective implementation of the law and its desired impact of reducing the flow of weapons in South Africa. The GCA believes the above mentioned amendments are not in the interest of achieving this goal.
5. ISSUES FOR CONSIDERATION
The GCA would like to propose the following, additional amendments to the law.
5.1. Section 6: Competency certificates, licences, permits and authorisations:
Recommendation: Insert a new section 6(4) that reads:
“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 (No 116 of 1998)”
The GCA recommends that all applications for competency certificates and licences should be suspended when the applicant is the subject of a temporary protection order. Police officers, magistrates and community organisations agree that relationships tend to be highly volatile and potentially violent immediately after a temporary protection order has been issued.
The mere existence of a temporary protection order indicates that a court is sufficiently convinced that violence may occur. However, it is an interim, emergency measure, which does not allow for response from the accused. Thus, by itself, should not be sufficient grounds for formally denying an application. It seems reasonable, however, that it be grounds for suspending the application for a competency certificate or for a firearm licence for further investigation by the police.
We do not believe that this poses undue hardship, because the temporary protection order is finalised within a two-week period. Once the court decides on the protection order, depending on the court’s decision, the application should continue the application process or be denied.
5.2. Section 9(2): Competency certificates
We have two suggestions under this section.
5.2.1. Recommendation: Amend section 9(2)(a) by deleting “21” and replacing it with “25” to read:
“is  25 years or older on the day the application is received by the Designated Firearms Officer”
The GCA supports raising the age from 21 to 25 years.
5.2.2. Recommendation: Add a new section 9(2)(e) that reads:
“is not the subject of a permanent protection order under the Domestic Violence Act (No 116 of 1998)
Studies by the Medical Research Council show that the presence of guns in the home is a major risk factor in domestic violence. Their study of intimate femicide in 1999 showed that firearms were used in between a quarter and a third of all intimate partner murders, and that four out of five of these weapons were legal. Guns were also used in 80% of multiple family slayings.
The presence of a permanent protection order shows that the court has received convincing evidence that domestic violence is about to occur or is occurring in a relationship. Given the high risk, this should serve as sufficient grounds to refuse a competency certificate.
5.3. Section 33: Conditions imposed on dealers
Recommendation: insert a new section 33 1(A)
“requiring gun dealers to gain community approval before opening premises in that area”
Guns, like liquor, pose serious risks to a community. As with liquor outlets, communities should have some say, then, regarding whether firearm dealers should be able to open shops in their area. The law should set this requirement in place.
Similar to the Liquor Act, this might require a prospective gun dealer to apply to the DFO at the nearest police station to open a gun dealership. The application might be forwarded to the local community police forum for its approval. If approved the application would be forwarded to local civic associations, church bodies and other relevant role players with a special interest in the matter. Should these bodies approve the application, a notice would then be posted on the intended premises, giving a specified period during which the public could comment on the application. If no complaints were received, the dealer would be allowed to open premises.
Section 140 of the FCA is an innovative measure which has to date not been implemented. The notion of creating safe spaces has been an idea now transferred to many different contexts and situations around the world, from Sierra Leone to El Salvador and the Solomon Islands.
It is therefore a great pity that the SAPS have failed to make full use of the Firearms Free Zones provision in the Act. There are hundreds of self-declared Gun Free Zones (GFZs) throughout South Africa – in schools, churches, government buildings, health clinics, sports centres and even shebeens and taverns. We would urge the Portfolio Committee to use this opportunity of reviewing amendments to the principal Act to ensure that this existing provision is fully implemented and that the Minister makes it a priority to declare all schools as firearm free zones as well as all those GFZs that have already been declared, giving communities the protection of the law.
In the foreword to the Act, the late Minister Steve Tshwete says that the ‘ sound implementation of the Act will further enhance the ability of the South African Police Service to serve and protect the community, and will ultimately bring about a safer South Africa.’ Therefore in amending the Act, government must look at ways in which the law can be strengthened to enable the SAPS to best implement its provisions. If government is committed to reducing both the proliferation of firearms in our society and combating violent crime, resources need to be allocated to put in place mechanism and systems that make the FCA work, rather than tying to alter the underlying policy that informs this law.
The principal Act is a sound law which needs to be implemented as efficiently and effectively as possible. The GCA would like to commend the Portfolio Committee for your hard work in making sure that the best possible legislation is maintained and improved in order to deal effectively with preventing, combating and reducing gun violence in South Africa.
GUN CONTROL ALLIANCE
Johannesburg: Box 31532 Braamfontein 2017 (011) 403 4590(p) (011) 403-4596 (f)
Cape Town: Box 12988 Mowbray 7700 (021) 686-1302 (p/f)
 Buchanan, Cate and Mireille Widmer (2006), RevCon Policy Brief: Transitioning to Peace. Guns in civilian hands. Centre for Humanitarian Dialogue, Geneva.
 Kirsten et al (2005), Islands of Safety in a Sea of Guns: Gun Free Zones in South Africa’s Fothane, Khayelitsha and Diepkloof. A working paper of the Small Arms Survey, Geneva.
 Firearms Control Act no 60 of 2000, pg xii - xiii