Judicial Matters Amendment Bill & Courts of Law Amendment Bill: consideration; Firearms Amnesty: SAPS briefing

Meeting report

Judicial Matters Amendment Bill

Mr Sarel Robbertse, State Law Adviser: Department of Justice, said that the Judicial Matters Amendment Bill sought to amend several laws which hampered the smooth administration of justice. He declared that the Bill was ready for adoption and requested the Committee to adopt it.

Members adopted the Bill after Mr G Michalakis (DA, Free State) expressed the Democratic Alliance’s right to raise its reservations on the Bill when it was presented in Parliament.

Courts of Law Amendment Bill

Mr Robbertse recalled that concerns raised on the Courts of Law Amendment Bill (Courts Bill) had already been addressed by the Department of Justice and Constitutional Development (DoJ &CD) at the Portfolio Committee on Justice and Correctional Services. These concerns had been raised by the Law Society of South Africa (LSSA) on sections 57 and 58 of the Bill, and by First Rand Bank on section 55(A) and 65.

The LSSA had complained that clauses 5 and 6, which placed a duty on the Magistrates Court to act in terms of the National Credit Act and its regulations when considering a request for judgment based on a credit agreement, placed the court in ‘an invidious position’ as it would be unable to ‘consider the circumstances of the judgment debtor at the time the credit agreement was entered into.’ The LSSA had also complained that clause 9, dealing with the 25% cap on Emolument Attachment Orders (EMOs), was unconstitutional. This was because the 25% cap would impede the judicial oversight functions of the Magistrates Court, and would lead to unfair outcomes for creditors in situations where the affluent could afford to pay more than 25% of the judgment debt. Finally, the LSSA had complained about the proposed 5% commission recovered by a garnishee order, arguing that the judgment creditor should be allowed to recover it from the judgment debtor.

First Rand Bank had expressed concern over the use of mandatory language in section 55(A), and the fact that a judgment debtor would not be able to provide the judgment certificate contemplated in section 65J(2C). It had proposed amending section 65J(10)(b) to make it less onerous for an employer of a judgment debtor to pay a debtor’s additional costs and interest, where an employer unreasonably failed to deduct or stop an EMO.

Members unanimously adopted the Courts of Law Amendment Bill.

Draft Notice: Declaration of Amnesty in terms of the Firearms Control Act

Lt Gen Sehlahle Masemola, Deputy National Commissioner: Policing, introduced the delegation from the South African Police Services (SAPS).

Maj Gen Jaco Bothma, Head: Firearms, Liquor and Second Hand Goods Control, said that the Draft Notice on the Declaration of Amnesty in terms of section 139 of the Firearms Control Act No. 60 of 2000 sought to reduce the availability of firearms, which contributed greatly to crimes in South Africa. Previous amnesties had yielded significant success. The amnesty exercise of 2005 had yielded 80 454 firearms, and the amnesty of 2010 had yielded 42 329. A six-month amnesty period encouraged more firearms surrenders than shorter periods. The amnesty was proposed to take off from November 2017 for both licensed and unlicensed gun-holders. It targeted:

• Possessors of stolen firearms;
• Possessors of illegal firearms unlawfully imported or smuggled into South Africa;
• Possessors of inherited firearms;
• Defaulters of gun licence/permit renewals;
• Persons declared unfit to possess firearms, but who had failed to surrender firearms in their possession;
• Possessors of firearms whose import permits or authorisation had lapsed;
• Persons with valid firearm licences who wished to surrender their firearms.

SAPS officials had put in place mechanisms for public awareness of the amnesty, and for ensuring that surrendered firearms were properly documented and, where appropriate, destroyed.

Discussion
 
Mr Michalakis wondered whether criminals would hand in their firearms and, accordingly, whether the proposed amnesty would bring down the rate of crime in South Africa.

Mr M Chetty (DA, KwaZulu-Natal) asked the SA Police Service (SAPS) what disposal measures it would take to ensure that surrendered firearms did not end up in criminals’ hands, as had happened in KwaZulu-Natal.

Ms T Mokwele (EFF, North West) asked whether the amnesty would still allow the SAPS to combat criminals. She said that police officers sometimes used firearms to commit crimes, and that insufficient psychological support was offered to them. She echoed Mr Chetty’s concern that surrendered firearms could be used to commit crimes, given that police officers were tempted to compromise their principles.

Mr J Mthethwa (ANC, KwaZulu-Natal) asked if surrendered firearms would be forensically checked to see if there had been used in committing crimes. He asked about SAPS’s proposed method for compelling criminals to surrender firearms, commenting that criminals rarely participated in firearm amnesty exercises. He cited the high rate of car hijacking in KZN involving fully armed criminals.

Mr D Monakedi (ANC, Limpopo) asked whether surrendered licensed firearms would be destroyed, and the circumstances under which an application for amnesty may be refused. He also asked if SAPS officials were tightening up the process of firearms licensing. He gave the USA as an example of where legal owners of firearms went on shooting rampages. He requested a report on the amnesty process.

The Chairperson remarked that criminals were not likely to give up their weapons.

Lt Gen Masemola responded that the amnesty process was usually preceded by nation-wide enlightenment campaigns which were complemented by increased crime fighting measures, such as stop and search, raids, etc. These campaigns and raids put pressure on criminals to surrender arms. He acknowledged that in some cases, surrendered arms had ended up in the hands of criminals. This was largely due to the decentralised nature of previous amnesty exercises. There were 1 144 police stations, and this number made it difficult for centralised collation of firearms. SAPS would ensure that surrendered firearms were stored in nine locations only. Firearms would be tested, and firearms not involved in crimes would be immediately destroyed. Firearms involved in crimes would be kept for further investigations. However, courts did not really require firearms to be produced in court, so firearms involved in crimes would be kept in provincial storage, taken to courts from there, and returned to storage after court proceedings.

He said that the six months period for the firearm amnesty was to encourage more people to surrender guns. Criminals who surrendered firearms may still be held liable for crimes they had committed with the firearms.

Police involvement in crimes was a social problem that went beyond institutional failures in the SAPS. In any case, firearms issued to police officials were well documented. All surrendered arms would be ballistically tested. Surrendered firearms whose licences had expired would be given a window period of 14 days to apply for licensing, failing which they would be destroyed after forensic testing, or secured in provincial storage facilities if they had been involved in crimes.

Mr M Mhlanga (ANC, Mpumalanga) sought clarity on the application procedure and whether people who surrendered guns would be allowed to apply for licensing during the amnesty period.

Maj Gen Bothma responded that no formal application needed to be made before a firearm could be surrendered, and surrendered firearms may be the subject of licensing.

Mr Mthethwa said there had been several complaints about difficulties in obtaining licences. He asked if licensing rules were flexible enough to reduce the high rates of litigation over firearm licensing.

Ms Mokwele sought clarity on the fate of firearms which, though not involved in crimes, had no serial numbers.

Lt Gen Masemola replied that all firearms were tested and traced for serial numbers. If no serial number was found for a surrendered firearm, it would be assigned a serial number.

The Chairperson asked if the Declaration could be adopted.
 
The Declaration was adopted by the Committee, except for the DA Members.

Adoption of Minutes

The Committee adopted the minutes of 14 June 2017.

The meeting was adjourned.