SA Gunowners' Association: We stand for responsible ownership of firearms
DISCUSSION DOCUMENT - HOW TO IMPROVE THE FIREARMS CONTROL ACT AND ITS IMPLEMENTATION
1. SAGA's is of the considered view is that the implementation of the Act has been a dismal failure. Notwithstanding what the South African Police Services may have presented to the Portfolio Committee, the reality is that the Act is an administrative failure. SAGA does not intend at this stage (and notwithstanding what the SAPS may have publicly stated) to challenge the constitutionality of the Act here or in court. SAGA focuses in this presentation merely on the interpretation of, and the implementation of the Act.
2. By way of background, in 1999, SAGA warned repeatedly that the Act would be un-implementable, costly and prejudicial to firearm owners beyond the scope of what the Act states its intentions to be. It is clear that the South African Police Service has extended the scope and meaning of the Act, and has interpreted the Act to mean that its purpose is to reduce the number of licensed firearms in circulation. This is not the purpose of the Act, particularly in respect of existing firearm licences.
3. Commissioner Jacobs stated that SAGA and the author of this representation were opposed to the original set of amendments. The writer wrote an article summarising the amendments and provided his own interpretive comments in the April 2006 edition of Magnum. The writer indicated that there were certain parts of the proposals that were supported by SAGA, particularly those relating to the recognition of existing licences.
4. It is also incorrect that, according to Commissioner Makubela, there are no problems with the implementation of the Act. Firearm owners have not stopped complaining, since the implementation of the Act, about lengthy, unjustified administrative delays in the processing of applications, permits and authorisations. Commissioner Makubela indicated that it should take approximately eight weeks to obtain a firearm licence. This is simply incorrect.
5. We are aware that it was also stated to the Portfolio Committee, that one of the reasons why there are administrative delays is because of incorrect or incomplete documentation. This may well be the case because the documentation is overly complex, but members of the public go to firearm registration centres and- are assisted by members of the South African Police Services in completion of the documentation. The South African Police Services must take responsibility for any inaccuracies in the documentation because they provide the assistance to the members of the public to do so. In Commissioner Makubela's own words "now that they (SAPS) have been trained there were no problems". Commissioner Makubala is clearly accepting responsibility on the part of SAPS, and therefore the completion of documentation should be done correctly. The fact that many documents are rejected by the Central Firearms Registry is indicative of the problem in the completion of the documentation at Firearm Registration Centre level. More training is needed of police officials in these centres to ensure that the documentation is completed correctly.
6. On the' issue of offences, only 140 000 renewal applications were received up until the 31st of March 2006 out of an estimated 600 000 that should have been made. This is less than a 25% compliance rate. There is an obvious message in the low compliance rates: the public does not like this legislation and is refusing or is unable to comply with it. The situation is going to be compounded during the current renewal year because, not only do the same number of individuals once again have to reapply, but a similar number of business firearms will also have to be renewed by the end of December 2006.
7. SAGA has information at its disposal that shows that, notwithstanding the first licensing process ending on the 31st of March 2006, many police stations have not conducted safe inspections for applications that were lodged in December 2005. We have one documented example where a licence application was made, and it took eight months for the South African Police Services to conduct an inspection. This is unacceptable. The provisions of the Promotion of Administrative Justice Act must be complied with by the SAPS. The lengthy administrative delays are clearly not in compliance with this Act and are going to impose the Minister and the Portfolio Committee.
8. The South African Police Services have stated publicly that it is incumbent upon the public to comply with the legislation, and it is immaterial how long it takes for the South African Police Services to process re-licensing applications or competency certificate applications. This is incorrect. Firearm owners, as members of the public, are entitled to fair and efficient administrative action. The Promotion of Administrative Justice Act 3 of 2000 more specifically Section 3 thereof provides for this. A failure to take a decision is reviewable decision.
9. This legislation was passed to give effect to Section 33 of the constitution.
10. The public have been compelled to comply with the legislation and likewise the South African Police Services should be compelled to deal with administrative processes within a reasonable time. It is for this reason that SAGA, on the 2nd of September 2005, publicly asked the Minister of Safety and Security to make a commitment to a service delivery charter. This request remains unanswered.
11. SAGA repeats its request for a service delivery charter. The fact that the Minister did not give a positive answer and the fact that the South African Police Services are opposed to this, merely compounds their denial of the real administrative chaos that exist within the Central Firearms Registry and at station level. If Commissioner Makubela is of the opinion that it should take six to eight weeks to obtain a license, then SAPS should commit themselves to this through a service delivery charter. SAGA would be prepared to consider more time be allowed than this in the charter, as long as the time period is reasonable.
12. This submission has a number of practical suggestions to assist in the administrative failings of the Act. The most important one is to delete the reference to the Skills Development Act and therefore the need to involve SASSET A in any processes relating to the Firearms Control Act.
13. The Minister of Safety and Security has in fact implicitly agreed to this proposal. In his letter dated the 9th of November 2004, addressed to the Black Gun Owners Association, the Minister stated "to obtain a competency certificate the applicant must be in possession of a training proficiency certificate which is provided by an accredited training provider in the use of firearms" (page 2 paragraph 8). We wholeheartedly agree with the Minister in this respect.
14. The Skills Development Act is designed to create industrial or commercial skills. It is not designed for legislation such as the Firearms Control Act. A simple comparison would be to that of obtaining your driver's licence. The actual driver's test is not a test that has to be a SASSETA approved test, and one is not presented with a SASSETA certificate on completion of -the driver's licence test. This is no different to the training provided by the Firearms Control Act. The administrative processes in obtaining a driver's licence are similar to that contained in the Firearms Control Act but it is obvious that the processes are much quicker to complete because a Sectoral Education Training Authority is not involved.
15. Adequate controls- in the quality of training would remain however if the current status quo in respect of the instructors remain. Instructors should be accredited by SASS ETA and they should be moderated and assessed according to the qualifications Act framework.
THE APPEAL BOARD
16. The Firearms Control Act stipulates that appeals must be dealt with within 80 days, yet the Appeal Board cannot deal with appeals lodged almost two years ago. The work load at the Appeal Board is only going to increase because there are more administrative processes involved in the Firearms Control Act and the refusal rate for new licences and competency certificates is substantially higher.
17. On the issue of the refusal of competency certificates, we are opposed to the granting of wider powers to the South African Police Services to assess competency. The Act is specific as it currently stands in terms of the requirements that an applicant has to meet to be deemed competent. SAGA is happy with this, because the more criteria are specified in the Act, the less discretion the South African Police Services will have. Unfortunately, should a greater discretion be given to the South African Police Services, the exercise of these discretions may be abused or misused. A typical example is where a person does not disclose a criminal conviction as a result either of an innocent mistake on their part, or as a result of the misinterpretation of the Act at station level by a member of the South African Police Services in assisting them.
18. We have on record numerous examples where, and by way example a person who did not disclose a R40,00 admission of guilt fine for failing to display a third party token in 1976, was declared incompetent. He did not believe this constituted a criminal conviction.
19. The South African Police Services have all this information on record and instead of acting in an open and transparent manner, and in accordance with the constitution by allowing the person to explain their mistake or oversight, "they convict such person" of a failure to comply with the Act by refusing their competency certificate. Another example is where a person has had a firearm lost or stolen from them and they do not disclose it, but they have previously reported the lost or theft of that firearm to the South African Police Services. Surely the previous disclosure of such lost or theft of the firearm and the fact that this is on the Police Services record should be sufficient? Many-people do not keep records of previous criminal offences, particularly where admission of guilt fines were paid (if they even understand the court processes involved) and many people do not keep precise records of when they-reported firearms lost or stolen particularly if this event happened many years ago
20. The difficulties that members of the public are experiencing in complying with these aspects of the legislation are compounded and by virtue of the fact that it takes 28 working days to obtain an SAP69 (police clearance) and that members of the South African Police Services refuse members of the public access to information held on the Central Firearms Register about that person. If this information were made publicly available, many of the mistakes that allowed the South African Police Services to refuse licences or competency certificate applications would be avoided and the administration of the Act would be reduced.
21.Another area of the Act that urgently needs to be addressed, is the issue of the granting of competency certificates and licences to persons who are permanent residents or citizens only. The Act makes it clear that a Section 21 permit can be obtained by anyone, particularly a person not in possession of a competency certificate. The purpose of this part of the Act is clearly to accommodate people who are not permanent residents or citizens. The practical reality is, and the policy, that SAPS insist on a person being in possession of a competency certificate in order to obtain a Section 21 permit. This makes the process self defeating because it therefore excludes people that are not residents or who are not citizens.
22. A potentially problematic area that could arise, should the amendments in respect of black powder firearms be passed, is that people who have purchased black powder firearms, who are not residents or citizens, cannot obtain a competency certificate and they will therefore be forced to dispose of their firearm without compensation.
EXISTING LICENCES vs RE-LICENSING
23. The principle of re-licensing itself should be revisited. International examples show that, for example Canada, did not have a centralised Firearm Registry before the implementation of its registration legislation. In South Africa we already have a data-base that controls all firearms. The initial purpose of the renewal of licences was to audit and issue new licences and not to undergo a complete re-licensing process The manner in which the police have applied the legislation, interpreted and supported the legislation is ultra vires, and Parliament must re-visit what it is seeking to achieve in terms of re-licensing versus an audit of licences. Compensation provisions-as they currently stand in Section 134, 135, 136 and 137 allow anyone who has been refused a licence under the new process, to apply for compensation.
24. If a mere audit is undertaken this process could be avoided and compensation claims would be dramatically reduced.
25. There are many problems with estate firearms and the current administrative difficulties in complying with the Act. are in essence discouraging heirs from re-licensing estate firearms, which firearms then fall outside of the control net imposed by the Firearms Contro: Act. The Regulations, which are subordinate legislation, conflict with the Administration of Estates Act which is national legislation. The Regulations state that firearms cannot be transferred after the finalisation of an estate yet the Administration of Estate Act imposes an obligation on the executors of an estate to wind up the estate as quickly as possible and give powers to the Master to impose. penalties in the event that the Act is not complied with timeously. It is however impossible to wind up an estate effectively, when it can take up to two years for firearm licences to be granted. We would suggest that the Regulations be amended, to delete the holding up of the finalisation of an estate until such time as the firearms have been transferred. All that should happen is that the firearms be reported to the Central Firearms
Registry and that their existence be detailed in the liquidation and distribution account of the estate. Transfer of the licences can then take place without delaying finalisation of the estate.
HARMONISATION OF LEGISLATION
26. Conflict between the Regulations and the Administration of Estates Act shows quite clearly that the Firearms Control Act has not been harmonised with the existing or proposed legislation. Another example which requires urgent attention is the proposals by the Ministry of Environmental Affairs and Tourism in respect of regulating the hunting industry. In such proposals there exist similar concepts but which has different terminology. A simple example is that of an occasional hunter versus an amateur hunter. Furthermore, if the regulatory proposals from the Department of Environmental Affairs and Tourism are not harmonised with the Firearms Control Act, the regulatory environment is going to become even more complicated, impossibly to comply with and impossible to implement.
27.ln addition to this there will be increased, unintended and inadvertent criminalisation of firearm owners and land owners, should the regulatory regime not be harmonised.
28. The potential conflicts with such regulatory proposals are outside of the scope of this representation, and have merely been drawn to the Portfolio Committee's attention, to ensure that such issues are dealt with prior to the passing of such proposals by different ministries. We would suggest that this particular issue be one of the first issues dealt with by the ministerial consultative committees that the Regulations propose creating, and which SAGA whole heartedly supports.
29. The only statistic made public in terms of the Firearms Control Act, as far as we can determine, is the statistic relative to the number of renewal applications. We received many complaints from press representatives of a simple refusal by the South African Police Services to give statistical data in respect of the number of licences granted under the new Act, the number of renewal applications processed etc. Similar requests by SAGA have also been ingnored.
30. We would suggest that the Portfolio Committee direct the police to supply such facts to give a complete statistical analysis of the number of processes that they have received and completed since the implementation of the Act. This will assist the Portfolio Committee in determining whether SAPS are capable of properly administering this Act and whether these proposed amendments will assist them or whether it will increase their work load.
31.lt is the experience of SAGA that the South African Police Services are not complying with the Promotion of Administrative Justice Act 3 of 2000 and the Promotion of Access to Information Act 2 of 2000.
32. Both of these pieces of legislation were passed by Parliament, to give effect to those provisions of the constitution that guarantee the right of citizens and the fair treatment of citizens by organs of and functionaries of the State. This legislation is similar to many overseas jurisdictions, particularly Canada, from which much of our constitution is derived.
33. The-purpose of the legislation is to create an equal situation between the State and its citizens to ensure that citizens are not unfairly treated by faceless anonymous officials who may abuse discretions or powers granted to them.
34. Put simply the legislation is designed to ensure that any decision that is taken, is taken in a procedurally and administratively fair fashion. The legislation guarantees the person or persons affected by such administrative decision the right to information to assess whether decisions were made properly and fairly, and whether discretion was exercised properly.
35. When assessing firearm licence applications, the South African Police Services do not advise applicants of any potential difficulty with their applications, they merely take a decision without advising the applicant of the need to provide any outstanding information, or of the fact that an adverse decision may be made against them and inviting them to submit argument/factual reasons why such adverse decision should not be made.
36. The nett effect of this is that minor shortcomings in applications (such as the non-disclosure of
an admission of guilt fine) result in a refusal of a licence or authorisation. This in turn generates an appeal which creates more administrative work for the South African Police Services and the Appeal Board, where in circumstances if a query or request for additional information (as is constitutionally. required) had been sent by the South African Police Services to the applicant, the issue may have been clarified and disposed off in a more efficient manner.
37. However the SAPS complicate matters further in that they do not provide reasons for their
decision once they have taken a decision. The writer has literally requested on hundreds of occasions before appeals have been lodged for reasons why a decision has been made and the writer has yet to receive an adequate answer to any such requests. These requests for reasons will all be made available to the Portfolio Committee if requested.
38. The Appeal Board is also responsible for similar administrative shortcomings in that it often issues letters merely confirming the decision of the National Commissioner without providing reasons why such decisions were made.
39. The effect of the failure of the South African Police Services and the Appeal Board to comply with the constitution and legislation derived from the constitution is that firearm owners are treated unfairly, and in a prejudicial manner. The Appeal Board currently has numerous court cases against it (some of which have been- resolved positively in favour of firearm owners) and the probability is that there will be numerous more court cases. In one court case alone, the South African Police Services have been ordered to pay R900 000,00 in storage fees in respect of the refusal of a particular permit for the import of ammunition. This is tax-payers' money, and clearly this amount, as well as amounts ordered as payment of legal costs, show clearly that there are administrative shortcomings the outcome of which has been upheld by the High Court. The Public Finance Management Act obliges State officials to be responsible for their expenditure, and makes State officials potentially personally responsible for abuse of public funds. If the current administrative abuses continue there is no prospect that firearm owners can expect to be treated fairly. This urgently needs attention and guide lines must be derived and police officials must be educated as to the requirements of the constitution, The Public Finance Management Act and Act 2 and 3 of 2000.
REVISITING THE PURPOSE OF THE ACT
40. The Firearms Control Act has always been considered as a crime fighting tool, ie it is to prevent crime. Perhaps now is a time for the South African Police Services to disclose to the Portfolio Committee how much crime has been prevented by the implementation of the Firearms Control Act and how many crimes have been solved after the implementation of the Firearms Control Act utilising the mechanisms contained in the Firearms Control Act. Naturally these statistics should exclude administrative contraventions of the Firearms Control Act by lawful firearm owners.
41. The reality is that the Firearms Control Act has not been used as a crime fighting tool but it has been used as a tool to restrict firearm owners' rights and has done nothing to prevent or solve crimes.
42. The context, in which the Firearms Control Act was passed, some six years ago, has changed.
43.An international comparison shows some startling contrasts. Canada, which introduced its central firearms legislation at the same time has now decided to repeal the legislation after its implementation has been a dismal failure. The Portfolio Committee is surely aware "that much input was received from Canadian sources in the drafting of and implementation of the Firearms Control Act.
44. The Brazilian Government held a national referendum on firearm ownership and 67% of Brazilians voted in favour of keeping the right to own firearms.
45. Independent research is showing that civilian ownership of firearms reduces crime and does not increase or contribute towards crime. In this respect research by John Barnes at the Washington Policy Centre, which is a non-profit public policy research and education organisation, has proved this.
46.ln America, which is the country that keeps the best statistics, it is quite clear that civilian ownership of firearms reduces crime.
47. At the same time the current US Government has refused to renew certain restrictive firearm decrees of the previous administration of President Clinton.
48. Bogata in Columbia once had a murder rate higher than South Africa. However in a telephonic interview with Radio 702 on the 6th of July, the ex-Mayor of Bogata who was here in South Africa giving advice to Government on how to limit crime indicated that the manner in which violent crime can be reduced is to increase citizens' access to resources, upgrade housing and roads and public transport. He made no mention of restrictive firearm controls in Columbia in any way reduced crime. He focused on the human factor and giving recognition to human dignity to reduce crime.' This approach worked successfully in Columbia and similar approaches need to be adopted in South Africa.
49. SAGA can provide many other positive suggestions to reduce the administrative burden in the administration of the Act.
50. Firstly, it is unnecessary that fingerprints from an applicant be taken every single time the applicant undergoes a process stipulated in terms of the Firearms Control Act. The Act should be amended to allow the Registrar to keep a set of fingerprints on record and to maintain the database of such fingerprints either in conjunction with the criminal record centre or as part of a criminal record centre.
51. Secondly, there is no need to conduct a safe inspection each time a licence or permit application is submitted. The original amendments recognised this by allowing an applicant merely to submit a statement confirming that the information that the South African Police Services have on record is still correct. The deletion of the proposals to delete Section 24 and the use of a statement to confirm information creates the distinct impression that South African Police Services wish to create more administrative work for themselves, and not less, and therefore the amendments are not designed to streamline an improve the Act but are designed for other purposes.
52. The police have the power to conduct the inspections and we would suggest that random pre-arranged inspections should be conducted to ensure that there is compliance with the Act.
MARTIN HOOD: SAGA's Legal Advisor