1 The South African Gunowners' Association (SAGA) welcomes the' opportunity to democratically participate in the process of formulating legislation.

2 SAGA is the largest all-purpose firearm organisation in Southern Africa and a Founder Member of the United Nations accredited World Forum on the Future of Sport Shooting Activities. SAGA represents a complete cross-section of the firearm fraternity - individual firearms owners, dealers, collectors, hunters, sport shooters, clubs, associations and even non-firearm owners.

3 As a background to these representations, w~ must point out that, despite the positive claims of the SAPS, the current implementation of the Act has resulted in an administrative crisis in the

Central Firearms Registry. We urge the Minister and the Portfolio Committee to take this opportunity in considering the amendments to do a review of the entire Act, and use the Minister's consultative committee to establish a forum to .identify administrative problems and to draft the necessary amendments to the Act to deal with such problem areas in a holistic manner.

4.Existing Licences - Renewal vs Audit

4.1 The first version of the current Amendment Bill made provision for recognition of all existing licences and the deletion of the requirement to renew licences. This proposal would have simplified the full implementation of the Act and would thus have enjoyed general firearm owners' support because it would have protected existing rights. We are .led to believe that this provision was withdrawn for fear of claims for:- compensation for firearm licences that are not renewed. The Constitution and _the Act clearly allow anyone who believes they are entitled to compensation to apply for compensation.

Deleting this requirement is going to have little or no effect on those people who want to claim compensation. However if the existing rights are recognised and an audit is

4.2 According to Director Phuti Setati, the SAPS spokesperson, only 140 000 re-license applications were received for the first re-licensing period that ended in March 2006. We estimated that 600 000 should have been received by the SAPS during the same time period, so there is less than a 25% compliance rate. In the year ending December 2006 there are approximately 600 000 business licences that need to be renewed and 600 000 more personal licences for the period March 2006 to March 2007. If the renewal process is maintained the SAPS are going to be unable to comply with the

Promotion of Administrative Justice Act in processing these applications. An audit process, which will confirm the existence of the firearms and the correctness of the information contained on the Central Firearms Registry's database, and where

appropriate updating and correcting of such information, will vastly simplify the task of the SAPS. This task can be delegated downwards to the designated firearm officer level and will accordingly avoid the centralisation of functions and the administrative backlog that have resulted from this.

4.3 Furthermore, should an audit process be adopted, this will avoid multiple burdensome prosecutions that will need to be conducted through the Magistrates against firearm owners who have not renewed their licences. We doubt that the Ministry of Justice could process hundreds of thousands of administrative offences for failure to renew a firearm licence. If an audit process is adopted, which recognises existing licences, and protects them, compliance levels will be increased and the criminal courts will not be overburdened with administrative prosecutions.

4.4 Deeming all existing licences to be valid would reduce the number of compensation claims and would also generate goodwill amongst the firearm owning public. The initial purpose of the renewal of licences was to audit and issue new licences and not to institute a complete re-licensing process. The manner in which the police have applied and interpreted the legislation is ultra vires. Compensation provisions as they currently stand in Section 134, 135, 136 and 137 allow anyone who has been refused a licence under the new Act, to apply for compensation, regardless of whether the law remains as is, or is changed to acknowledge existing licences.


5.1 We believe that the Act, through the competency criteria contained in Section 9 effectively licences the person. Greater focus should be placed on licensing the person and simply registering the firearm.

5.2 The focus in controlling firearms should be on competency of the person, not on the firearm itself. It's people that commit crimes with firearms.

5.3 The Promotion of Administrative Justice Act 3 of 2000 was passed to give effect to Section 33 of the Constitution Act 108 of 1996. This Act has been deemed by our High Court to apply to firearm licence applications.

5.4 The cumbersome and burdensome nature of the current re-licensing process has meant that the South African Police Services cannot comply with the provisions of Section 3 of the said Act (procedurally fair administrative action) nor can they comply with Section 5, which deals with reasons for administrative action.

5.5 As a result of this we are aware. of a number of review actions against the South African Police Services and the Appeal Board in terms of Section 6, where the' decisions are

5.5.1 Procedurally unfair;

5.5.2 Influenced by an error of law;

5.5.3 Took into account irrelevant considerations:

5.5.4 Were not rational; or

5.5.5 Consisted of a failure to make a decision,.

5.6 The inability of the South African Police Services to comply' with the Promotion of Administrative Justice Act, is ample evidence that the Firearms Control Act needs to be simplified and the administrative procedures need to be dramatically reduced.


6 In order to ensure that the process of drafting and implementing legislation' is administratively and procedurally fair while being is realistic and implementable, we suggest that the regulations to give effect to the amendments be drafted at the same time and that they be published for comment in order that the amendment process be speeded up,' and that the Act be amended and new regulations be drafted as soon as possible.


7.1 There is a presumption in South African law against legislation being retrospective, ie. it operates from the date of promulgation onwards. As the Firearms Control Act currently stands, the effect of the Act and amendments is that they are being applied retrospectively and are infringing or taking away existing rights.

7.2 The principal problem of retrospectivity is contained in the renewal of existing licences. If an audit was merely undertaken, and all existing licences were deemed to be valid, issues relating to retrospectivity would be dramatically diminished.


Definition of Ammunition

8 A primer cannot constitute ammunition. If the desire is to regulate primers, then primers should be defined separately and regulated separately. To define a primer as. ammunition is. contradictory and artificial.

Definition of Muzzle Loading Firearm .

9 We believe comprehensive submissions dealing with this issue are being made by the collectors associations and private individuals. However, put simply, the proposed definition will provide that only single shot rifles fall into the special category relating to black powder/muzzle loading firearms. This will exclude cap and ball revolvers and other types of firearms that are not single
shot , for example a double barrelled rifle or shotgun, or what are known as Cape guns.

9.1 No mechanism is created in the amendments whereby people who are already in legal possession of cap and ball revolvers can legitimate them. They will automatically become criminals once.the amendments are passed. This is not good law and unless corrected will be open to legal challenge.

9.2 The Explosives Act contains a separate set of regulatory requirements that a person needs to comply with should they wish to obtain a black powder permit. This involves a criminal record check, a safe inspection and registration of the muzzle loading firearm that will be dischargin~the black powder.

9.3 Adequate control mechanisms exist within the Explosives Act to control muzzle loaders without the need to over-regulate them in terms of the Firearms Control Act.

9.4 No evidence has been presented (and we believe no evidence exists) of the abuse of black powder firearms in crime in particular. If this is so, then there is no purpose that the legislation seeks to achieve, and the amendments are therefore baseless.

9.5 We have difficulty with the restrictions on the projectiles which may be used in muzzle loaders. Most muzzle loading firearms utilise conical shot, or jacketed shot, as well as lead balls. Furthermore, "pure lead" balls are rarely -used because- pure lead is too soft and is usually mixed with other metals (such as antimony, tin, etc) to make it harder.


10.1 We believe that there is no evidence that the regulation of silencers will reduce crime and propose that the South African Police Services be called upon to provide statistical data and information to back up their desire to regulate silencers.

10.2 We estimate that over 500 000 silencers have been commercially manufactured in South Africa in recent years and an unknown number of homemade ones are in use. We consider it a sheer waste of resources for the SAPS to take on the burden of processing 500 000 applications for permits - especially as they have not been able to140 000 fireman re-licensing applications within a reasonable time. This amendment would merely drive the manufacturers of silencers out of business and would criminalize otherwise law-abiding citizens without any real legal or lawful purpose being achieved.

1.0.3 In addition to this, a number of firearms have been manufactured to incorporate integral silencers. The De Lyle carbine (and replicas thereof) is one example, and the writer has a licensed .22 pistol that has been converted to have an integral silencer - this firearm cannot be discharged without its silencer attached. If a permit were refused, this would constitute the deprivation of lawfully possessed property. Because of the practical difficulties involved in policing and administration, at the very least, all existing silencers should be exempted. As such legislation should not be retrospective, if silencers are to be regulated, the provisions should apply only to new silencers.

1.0.4 Lawful uses of silencers include;- a) culling; b) training; c) general use by persons who have hearing impairments.

Replacement of Juristic Person (Section 7) 11

11.1 The requirement of this proposed amendment is unrealistic. Competency certificates

take in excess of a year to obtain including the SASSET A procedure so it is unreasonable to expect a person who needs to become a responsible person to be in possession of a competency certificate. The legislation should state that the responsible person should apply for a competency certificate. Alternatively the SAPS should be compelled to assess an application for a competency certificate (and any other licence or authorisation) within a. specified time period in order that those who wish to become a responsible person, will know how long it will take for them to be granted such competency certificate.

11.2 Other countries, such as Mozambique, have legislation that states quite simply that, if a decision is not made within a specified time, that the permit or authorisation is deemed to be granted.

Ownership of Firearms by a Trust

12 The amendment which allows a Trust to possess valuable firearms is to be welcomed.

Cancellation of Accreditation (Section 8) 13

13.1 This is a practical amendment and is welcomed. However, as we believe that the compulsory forfeiture of firearms is unconstitutional, in, such circumstances compensation must be provided. For example, it would be unjust for an association, such as a hunting 'association, which owns firearms for training purposes, to be compelled to dispose of its firearms if its accreditation is cancelled due to the misconduct of one of its representatives.

13.2 The effect of this is to penalise an innocent association both financially and in other ways, and we suggest in such circumstances that either compensation should be made, or mechanisms provided whereby the association is not penalised as a result of the unlawful conduct of one of its representatives.

14 Competency Certificates for Muzzle Loading Firearms

14.1 SAGA does not believe that it should be necessary to be in possession of a specific competency certificate designed to permit possession of muzzle loading firearms. If it is deemed necessary to further regulate muzzle loading firearms, we propose that any 'competency certificate be sufficient for this purpose. This will obviate the need to first generate new unit standards for muzzle loading firearms-a time-consuming process because it will have to be approved by the South African Qualifications Authority and implemented by SASSETA.

14.2 It will not be possible to do this within the one year suggested grace period, and should the South African Police Services recognise any other competency certificate, as the proposed amendments currently stand, they themselves will be guilty of not complying with the Act as amended.

15 Collectable Firearms Section 16)

15.1 The proposed amendments' in respect of this section are strongly opposed by collectors. The Portfolio Committee's attention is drawn to Regulation 5, which stipulates precise requirements for the licensing of a collectable firearm. Once again, in the absence of evidence as to why the current regime is' not acceptable, the proposed amendments will serve no lawful purpose and therefore fail constitutional muster.

15.2 Furthermore, and notwithstanding the fact that the South African Heritage Resources Agency does not have the resources to comply with the obligations imposed upon it in terms of the Firearms Control Act, in terms of the enabling legislation, its mandate is limited to heritage objects of a South African nature. As the vast majority of collectable firearms under licence are not of South African origin or nature, the effect of the amendment would be that these would no longer be deemed to be collectable. Many collectors would thus be forced to dispose of valuable firearms. This contravenes the property rights clause in the constitution and therefore would be unlawful and unconstitutional.

16 Rendering Inoperative

16.1 The proposed amendments exclude the South African Defence Force, South African Police Services and other Government agencies. If civilians are to be obliged to render their restricted firearms temporarily inoperable, then these Government departments/agencies - the principal source of the restricted firearms used in violent crime - should be subject to similar restrictions.

16.2 In the event that the surrendering of restricted firearms is necessary, we suggest that the working parts merely be removed and stored in a separate safekeeping device. This proposal however is offered without conceding that such a legislative step is necessary or will achieve any objective.

17 Validity of C1cences (Section 27)

17 The proposal in this section to increase the period of validity of licences, is to be welcomed. This      will alleviate some of the administrative burdens of the Act.

18 Sale of Muzzle Loading Firearms 18

18.1 SAGA welcomes the proposed amendment to restrict the sale of and transfer of muzzle loading firearms to licensed dealers in arms and ammunition. This will act as an additional control mechanism on the distribution of muzzle loading firearms which will render additional legislative restrictions on muzzle loading firearms unnecessary.

18.2 We agree that permits should be obtained for the import of muzzle loading firearms -subject to the process being straightforward and streamlined. We are however opposed to the need for obtaining an in transit permit, because this will unnecessarily restrict visitors on their way through South Africa to hunt with muzzle loading firearms in nearby countries.

40 Export Permits (Section 96) 19

19.1 No distinction is made between temporary exports and permanent exports. An example of a temporary export permit would be a person who wishes to hunt in Namibia, Botswana, Zimbabwe, etc for a short time. Their export permits typically are obtained by submitting the required documentation to the local firearm registration centre and are quick to process. Should the National Convention arms Control Committee (NCACC) be required to approve a temporary export permit, this could take three to six months and will have the .effect of barring persons from hunting outside the borders of the Republic of South Africa, because temporary export permits are normally only valid for 90 days.

19.2 If the export permit that has to be vetted by the NCACC, is a permanent export permit, what lawful purpose will this amendment achieve? In the absence of any explanation this requirement should be disregarded.

20 Unfit to Possess

20.1 We are opposed to the granting of any additional powers to the Registrar. The existing powers granted to police officials to enquire and declare a person unfit to possess firearms are frequently abused. Ordinary police officials are not trained legal persons and few of them understand concepts such as the onus of proof, and how to admit and assess evidence. The effect of the proposed amendments, where payment of an admission of guilt fine is made, is to give additional powers to the Registrar to enquire into the fitness of persons to possess firearms.

20.2 We are concerned that this will constitute "double jeopardy - if a person admits his guilt and pays the fine, he has served his sentence and the punishment is finalised. To allow the Registrar then to assess a person's fitness to possess firearms will constitute double jeopardy.

20.3 The amendment in Section 103, which creates the non-automatic declaration of unfitness by payment of admission of guilt fines, is to be welcomed. This will certainly ease the administrative burden of the National Prosecuting Authority.

"Dispossession" (Section 118)

21 There is no definition of what constitutes "dispossession". This will make the interpretation of the Act difficult as, as it stands, it is extremely vague. Once again, in the absence of any indication of the purpose of this" particular amendment, it serves no lawful purpose. This section in itself " constit~tes reverse onuses, and this has already been declared unlawful in the constitutional case of S vs Prinsloo I S vs Mbatha.

Additional Licences (Section 119)

22 The proposed amendment creates a situation where the holder of a licence and additional licences must now keep a register to provide "adequate documentary proof of the handing over and receipt of a firearm". There is absolutely no reason for this requirement and it serves no lawful purpose. It-is- inconceivable that such persons who live in the same premises, must keep a register to record the handling out or use of a firearm to either one or the other.

Ministers Forum (Section 132)

23 We welcome this proposed amendment, and urge the Minister to form such a forum urgently. SAGA is well-placed and anxious to play a constructive role.

Schedule of Offences

24 Some of the amended penalties contained in the schedule appear to be excessive. Section 20(5)(b) for example has a penalty of 25 years without any apparent reason or justification. The SA Police Services should explain the rationale behind the severity of the proposed penalties and what objectives they will achieve.


SAGA is as committed as it has always been since its establishment in 1985 to providing its input and  expertise to the State in its endeavours to obtain fair, reasonable, and practical legislation and to protect both the interests of its members and of society at large.


14 August 2006