FIREARMS CONTROL BILL (XX-00)

Summary

The SACC strongly supports the Firearms Control Bill as a crucial component of a strategy to halt gun violence and to protect constitutional rights to life, security, and freedom from violence. We take this opportunity to raise concerns about the criteria for the issuing of a competency certificate; accreditation of training institutions; controls on the export of firearms and ammunition; the criteria for the issuing of firearms permit to an employee of an exempted official institution; the procedure and criteria associated with a declaration of unfitness to possess a firearm; certain transitional provisions; and several technical drafting matters. We also propose the establishment of a government buy-back programme during the transitional period to reduce the number of firearms in circulation.

1.0 Introduction

1.1 The South African Council of Churches (SACC) is the facilitating body for a fellowship of 24 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and some Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.

1.2 The SACC strongly supports new legislation to control the proliferation of guns and gun violence in our society. As Christians, we believe that all human beings are created in God's image and are equally worthy of respect and dignity. We are called to affirm the value of life and to work to ensure that all of God's people can realise and enjoy Christ's promise of "life abundant". Yet in virtually every community across South Africa, we have seen how violence—and gun violence in particular—have undermined security, robbing people of their right to live free of fear.

1.3 Our congregations witness the destruction wrought by firearms on a daily basis. All too frequently, our ministers are being called upon to conduct funeral services for victims of gun violence—even young children. Current data indicates that firearms kill 33 people each and every day in South Africa, and this figure has been rising steadily in recent years. Poor communities are typically the most vulnerable to gun violence. In situations of domestic violence, the ready availability of firearms places women and children in even greater jeopardy. Contrary to the common belief that guns enhance safety, South Africa's recent experiences confirm evidence from other jurisdictions: the proliferation of firearms correlates strongly with an increase in violence and insecurity.

1.4 The existing apartheid-era Arms and Ammunition Act is clearly inadequate to address the problem. It is necessary to introduce a much more extensive and effective system of control over gun ownership and use.

1.5 The SACC strongly supports the Firearms Control Bill as a major improvement on the existing legislation. We particularly endorse:

• the introduction of certificates of competency (as defined in sections 10-11) as an additional measure to ensure responsible gun ownership;
• the restriction on the total number of firearm licences that may be held by an individual (sec. 16(5));
• the provisions for the regular renewal of licences (secs. 25, 36, 52, and 67);
• the establishment of a central firearms database (sec. 31);
• the prohibition of unlicensed dealing in firearms (sec. 32); and
• the provisions for the establishment of firearm free zones (sec. 149).

1.6 Our endorsement of the bill in not unqualified, however. We have reservations about several aspects of the legislation including:

• the criteria for the issuing of a competency certificate;
• the effectiveness of controls on the export of firearms and ammunition;
• the criteria for the issuing of firearms permit to an employee of an official institution;
• the procedure and criteria associated with a declaration of unfitness to possess a firearm; and
• certain transitional provisions (the sanction of disposal of excess firearms by private sale during the five-year transitional period, exemption from training on renewal).

2.0 Criteria for competency certificates

2.1 Competency certificates are an extremely valuable innovation that should prevent many unstable, violent, or unsuitably trained people from obtaining firearms in the first place. Section 10(3) contains an extensive list of requirements for which an applicant must meet to demonstrate her or his competency to possess a firearm. These deal primarily with demographics (at least 18 years old and a South African citizen or permanent resident), knowledge (successful completion of prescribed tests and training), and behaviour (mentally stable without a record of crime or violence).

2.2 Our concern is with the third of these categories. Two types of criteria are used to assess an applicant's psychological competency: vague, subjective concepts ("fit and proper", "stable mental condition", "not inclined to violence") and objective data concerning the applicant's criminal record. It seems unlikely that an applicant would be denied a competency certificate on the basis of the subjective criteria alone, so an applicant's criminal record is likely to become the determining factor in assessing psychological competency. Consequently, the list of disqualifying offences must be all the more finely tuned.

2.3 We agree that conviction for any of the offences listed (violent offences--including domestic violence, offences involving a firearm, fraud, and alcohol and drug-related offences) should all disqualify a person from receiving a competency certificate. However, we are concerned that, in terms of section 10(4) only convictions that earn a sentence of more than six months imprisonment without the option of a fine constitute "offences". Any conviction for a violent or firearms-related crime should render the perpetrator ineligible to obtain a firearm. We therefore recommend the deletion of section 10(4)(a).

2.4 Similarly, while we endorse the disqualification of individuals who have been the subject of a final protection order in terms of the Domestic Violence Act, we also feel that, as a precaution, individuals should not be permitted to obtain firearms when they are the subject of a temporary restraining order. However, since temporary protection orders are issued without a right of reply, a temporary protection order should not become a long-term disqualification unless it is subsequently confirmed by a permanent order. We therefore recommend the insertion of a new clause 10(3)(m2):

(m2) is not the subject of a current temporary protection order issued in terms of the Domestic Violence Act, 1998, or a similar temporary restraining order issued in terms of any other legislation, in or outside of South Africa.

3.0 Training and accreditation

3.1 We appreciate the fact that applicants for competency certificates will be required to demonstrate that they have completed the prescribed training and tests on the safe handling of a firearm and the relevant provisions of legislation [secs. 10(1)(n)-(p)]. We also note that the Registrar is empowered to issue and cancel accreditations [secs. 9 and 132(d)] while the Minister is authorised to regulate the accreditation process. However, we are unable to find any provision in the bill requiring that testing and training be done by an accredited institution. Such a provision is too important to leave to regulations. We suggest that it be incorporated into sections 10(1)(n)-(p):

(n) has successfully completed the prescribed test on knowledge of this Act, as administered by an accredited institution;
(o) has successfully completed the prescribed training and practical tests regarding the safe handling of a firearm, as administered by an accredited institution;
(p) has, if applicable, successfully completed the prescribed training and practical tests for firearms dealers, manufacturers, gunsmiths, security officers or other persons who use firearms in the course of their business, as administered by an accredited institution;

3.2 Section 21(6) allows the holder of a business licence to "provide a firearm for use by another person subject to such conditions as may be prescribed by regulation". The wording of this provision seems dangerously broad. It appears to give holders of business licences a blanket authorisation to allow others (including, presumably, people who do not yet have competency certificates, let alone firearm licences) to use firearms, while giving the Minister to limit that right through regulations.

3.3 We would favour the opposite approach—one that enables business licence holders to provide firearms to others only where they are explicitly permitted to do so by regulations. The provision should therefore be amended to read:

(6) The holder of a licence issued in terms of this section may provide a firearm for use by another person only to the extent prescribed by regulation and subject to such conditions as may be prescribed by regulation.

3.4 We presume that section 21(6) is also the provision that would enable an unlicensed person to handle a firearm in order to receive the firearms safety training required for a competency certificate application. However, this is not clearly spelled out. It may facilitate understanding of this complex legislation if an additional schedule were added containing a flow chart explaining the steps in the competency-licensing-renewal process and noting the sections of the bill applicable at each stage.

4.0 Export controls

4.1 Section 78 prohibits the export of firearms or ammunition from South Africa without an export permit issued in terms of this legislation. Section 80(3) further requires that the National Conventional Arms Control Committee (NCACC) approve such exports before a permit may be issued.

4.2 In its submission to this Committee, the Coalition for Defence Alternatives (CDA) applauds the NCACC's written criteria for approving arms exports but notes that the implementation of these principles has been lax. The SACC shares CDA's concern in this regard. We, too, would prefer to see a complete prohibition on arms exports and the conversion of the domestic armaments industry to peaceful civilian purposes.

4.3 At a minimum, however, we would wish to see the NCACC's guidelines codified as binding criteria to be applied in assessing applications for export licences. We would also support the creation of an independent commission, controlled by representatives of civil society, to rule on applications for weapons export licences.

5.0 Firearm permits for employees of "official institutions"

5.1 In terms of Chapter 11 of the bill, the SANDF, SAPS, Department of Correctional Services, intelligence services, and state arms acquisition agency are "official institutions" and are exempt from most provisions of the legislation.

5.2 Section 103(2) enables the head of each of these bodies to issue permits to its employees, authorising them to possess and use a firearm owned by the institution. Section 103(8) requires only that the head of the institution be satisfied that the employee is a "fit and proper person to possess that firearm" and that he or she has completed the prescribed training and test for the safe use of the firearm.

5.3 Thus, an individual could legally obtain a permit to use a firearm belonging to an official institution, even if he or she is deemed unfit or incompetent to possess a firearm in terms of other provisions of the legislation. To avoid this scenario, we recommend that section 103(8) be amended to read:

(8)The head of an Official Institution may only issue a permit in terms of subsection (2) is he or she is satisfied—
(a) that the employee has not been declared unfit to possess a firearm in terms of sections 107 or 108;
(b) that the employee meets the eligibility criteria for a competency certificate, as stipulated in section 10(3); and
(c)that the employee has successfully completed any additional prescribed training and prescribed test for the safe use of the firearm.

6.0 Declaration of unfitness

6.1 Chapter 12 enables the Registrar or the courts to declare a person unfit to possess a firearm. We fully support this concept, but do not believe the Registrar's powers should be wholly discretionary. Section 107(1) says that the Registrar may declare a person unfit in certain circumstances (a final protection order is issued against the person in terms of the Domestic Violence Act, mental instability, negligence with a firearm, threatening behaviour, etc.). We believe that, when any of the listed conditions apply, the declaration of unfitness should be automatic. We would therefore wish to see the opening of section 107(1) amended to read:

(1) The Registrar must declare a person unfit to possess a firearm if—
...
(g) the Registrar determines that person is for any other reason no longer a fit and proper person to possess a firearm.

6.2 Section 108(1) lists a series of offences which, upon conviction, will cause a perpetrator to be declared unfit to possess a firearm. Section 108(3) requires a court which convicts a person of certain crimes--listed in Schedule 2 of the bill--to consider whether that person should also be declared unfit to possess a firearm. All declarations of unfitness lapse after five years in terms of section 108(7).

6.3 The assignment of offenses to the two lists—those requiring an automatic declaration of unfitness and those which require judicial review to determine fitness—seem somewhat odd. For example, an offence involving dishonesty that earns a sentence of a year or more without the option of a fine will result in an automatic declaration of unfitness, while a conviction for rape or terrorism only triggers a judicial review. Inexplicably, murder is omitted altogether (although murder convictions would be covered under section 108(1) if they involved the illegal use of a firearm or resulted in a sentence of one year or more without the option of a fine).

6.4 We recommend that murder, culpable homicide, terrorism, and rape be added to the list of offences in section 108(1) that merit an automatic declaration of unfitness on conviction. Furthermore, we believe that those convicted of any of the offences listed in section 108(1) should be permanently barred from owning a firearm. Consequently, we propose that section 108(7) be amended to read:

(7) After a period of five years from the date of declaration of unfitness to possess a firearm has elapsed, a person who has been declared unfit to possess a firearm in terms of section 107(1) or section 108(3) may apply for a new competency certif-icate, licence, authorisation, or permit in accordance with the provisions of this Act.

7.0 Transitional provisions

7.1 Item 1(2) of the Transitional Provisions listed in Schedule 1 requires individuals who possess an unlawfully large number of firearms to dispose of them in a lawful manner within five years. However, it also suspends the section 32 requirement that such weapons be sold through a licensed dealer.

7.2 While we recognise that any vendor (whether a private seller or a dealer) will be subject to severe penalties in terms of section 130(11)(a) if he or she sells a firearm to an ineligible person, we believe it would be preferable for all weapons sales to take place through licensed dealers at the earliest practicable moment. Consequently, we would support the deletion of item 1(2)(b) of Schedule 1.

7.3 Furthermore, we are concerned that this approach will not reduce the total number of firearms in circulation in our society. Such a reduction should be a key priority of this legislation. We therefore propose that gun owners who currently possess more than the lawful number of weapons be required to surrender their excess firearms to the State, with compensation (as per the provisions of Chapter 19).

7.4 It may be argued that such a buy-back programme will place an unworkable financial burden on the state. However, this would not be a one-off expense, not a long-term drain on the fiscus. We note that the government has recently raised loans totalling R30 billion to underwrite the purchase of weapons. We submit that a firearm buy-back programme would be a much more socially beneficial expenditure.

7.5 Item 11 regulates the renewal of licenses issued under the old Act. Subitem 11(3) states: "For the purposes of this item, section 10(4)(o) does not apply." There is no section 10(4)(o) in the bill. If this clause is instead meant to suspend section 10(3)(o)—which requires prospective licence holders to complete training in the safe use of a firearm— then we would propose its deletion. Many current gun owners would undoubtedly benefit from such training.

8.0 Technical matters

8.1 Section 1 defines an "imitation firearm" as "anything that has the appearance of a firearm whether or not it is capable of operating as such" [emphasis added]. This would mean that all firearms are also imitation firearms—a nonsensical proposition. We propose instead:

"imitation firearm" means anything that has the appearance of a firearm but is not capable of operating as such.

8.2 Sections 7(3) and 7(4) say essentially the same thing. One or the other should be deleted. If the more precise wording in 7(4) is retained, then a similar construction should be considered for the parallel provision in section 6(5).

8.3 Section 130(10)(c) criminalises the making of "any statement or representation knowing it to be false or believing it to be true". Presumably this should be amended to read "or believing it not to be true".

8.4 "Occasional sports persons" appear to be inadvertently omitted from the list of affected categories of persons in section 157(1)(bb).

9.0 Conclusion

9.1 We thank the Committee for this opportunity to present our concerns and urge the prompt enactment and implementation of this vital legislation.