Firearms Control Amendment Bill [B12-2006]: deliberations

SAFETY AND SECURITY PORTFOLIO COMMITTEE
25 August 2006
FIREARMS CONTROL AMENDMENT BILL [B12-2006]: DELIBERATIONS

Chairperson: Ms M Sotyu (ANC)

Documents handed out:
Firearms Control Amendment Bill [B12-2006]
Amendments to Firearms Control Amendment Bill (as a result of public hearings)
Domestic Violence proposal (dealing with those subject to protection orders under the Domestic Violence Act)

SUMMARY
The legal drafter of the South African Police Service took the Committee, clause by clause, through the Firearms Control Amendment Bill pointing out proposed changes following the public hearings on the Bill. For example, professional hunting licences were now a separate class of licence and changes had been made to the clause dealing with private collectors as proposed by the South African Gun Association. A substantive amendment had been proposed, both to the body of the Act and the Regulations, to provide that a person who had been served with a protection order in terms of the Domestic Violence Act should have the competency certificate and licence suspended. When SAPS received notice of the protection order, it should ensure that it was referred to the designated Firearms Officer. An amendment suggested by the State Law Advisors was that the Bill should provide that a person could still validly possess a muzzle loader once he had applied for a competency certificate, pending the determination of the application. The issue of the South African Safety and Security Sector Education and Training Authority and provisions to be complied with by security service providers was referred to although it was felt that there was no need to amend the regulations.

Questions raised by members related to further clarity on competency certificates and the definition of fit and proper persons, the provisions for compensation when a weapon was handed in, competency certificates for muzzle loaders, and clarity that cap and ball revolvers were treated separately from muzzle loaders. It was agreed that a new draft would be prepared for discussion and finalisation on the 29 August, and for debate in the National Assembly on 5 September.

MINUTES
The Chairperson announced that she had met with the legal advisors the previous day and certain of the clauses had been amended in line with suggestions made during the public hearings. It was no longer possible to consider any new issues, as the wording would need to be agreed upon at this meeting, and the Bill finalised on 29 August so that it could be debated on 5 September in the National Assembly.

Advocate Phillip Jacobs, Assistant Commissioner: Legal Services, Crime Operations, South African Police Service (SAPS), took the Committee, clause by clause, through the Bill, explaining the proposed amendments that had emerged as a result of the public hearings, as contained in the Amendments to Firearms Control Amendment Bill document.

Clause 1
Adv. Jacobs reminded the Committee that it had been agreed to insert a definition for “calibre”, as set out in AAT. He pointed out that dimensions were common to all descriptions and therefore it would only be necessary to specify the make and mark. This was a technical amendment.

A new definition had also been inserted for “dispossession”.

Adv Jacobs reminded Members that a debate was held on the meaning of “a fit and proper person”. The new amendment was an attempt to link the different issues and round out the definition of competency to possess a firearm by referring to all relevant regulations.

Adv Jacobs also stated that there had been much debate around muzzle-loading firearms. The definition had been substituted with an entirely new definition that removed references to cap and ball revolvers. These would now need to be licensed separately as firearms.

A new definition had been inserted for a professional hunter, and this wording was an amalgamation taken from the different pieces of provincial legislation. Adv Jacobs pointed out that later in the Bill a different category of licence was described for a professional hunter. In all nine provinces nature conservation rulings provided that a person could not hunt unless participating in a hunt organised by a professional hunter and unless accompanied by a professional hunter. Rifles or guns of the professional hunters were considered tools of the trade and therefore required separate licensing.

Clause 2
This had not been amended and therefore stood as in the introduced Bill.

Clause 3
Adv Jacobs reminded members that several points were raised during the hearings about silencers. It had been agreed that silencers were to be regarded as part of a firearm. Therefore Clause 3 in the Bill would fall away altogether.

Adv Jacobs added that the previous discussions may not have considered all the ramifications of declaring a silencer a part of a firearm. In terms of Section 94(4) of the Firearms Control Act, No 60 of 2000, the Minister could prohibit the acquisition, disposal or other use of firearm parts. Any notice would have to be tabled in Parliament 14 days before publication, and would be of full force until withdrawn by the Minister or by resolution of Parliament. The Committee had not wished to support use of silencers for handguns. The Minister therefore should, in terms of this subsection, regulate the selling of silencers. Parliament should therefore take the necessary steps to set this section in motion.

New Clause : Substitution of Section 4(1)(e) of Act 60 of 2000
This clause would put certain limitations on collectors’ firearms. Other limitations were already in force under the Dangerous Weapons Act.

Clause 4
Adv Jacobs pointed out that there were several new clauses which would relate to muzzle-loading firearms. This would substitute the words “muzzle-loading” for the previous “antique”.

Clause 5
There were no further amendments to this clause in the Bill, relating to fingerprints to be obtained.

Clause 6
There were no amendments to this original clause in the Bill. This clause related to juristic persons and notification to the Registrar.

Clause 7
This clause also related to accreditation. There was one technical amendment to line 33: Sub-clause (3)(a)(i) would now read “any criterion for accreditation in terms of this Act.

Clause 7(3)(b)(i), line 42 of the Bill, was also being amended in line with the standardisation of wording. Adv Jacobs pointed out that the Bill had listed 30 days, but throughout the Bill the time for notice was now to be stated as “a reasonable time”. Line 44 would however be amended to specify that the time for the response should be “within 30 days”.

Clause 7(4)
This provision related to revocation of accreditation of an organisation or association. It was necessary to have consequences to deal with the transition period, and accordingly the clause in the Bill had been reworded.

Clause 8
This clause was another dealing with the muzzle-loading firearms, and now was to be amended to include words that made it clear that the muzzle loader was held as part of a collection. Adv Jacobs pointed out that collectors would have to have a competency certificate for the muzzle loaders, and there was a matching provision later in the Bill, under the provisions for competency certificates, in Clause 9 (a).

Clause 9
Adv Jacobs pointed a technical amendment, changing the wording of “subparagraph” to “subparagraphs” in line 16, to account for the new subparagraph (iB) to be inserted.

The word “licence” in the Bill would be substituted with “competency certificate” in line 23.

The matching provision to Clause 8, relating to firearms held as part of a collection, was now to be included in a new subparagraph 9(iB).

Clause 10
Certain technical amendments to this clause were purely grammatical improvements.

Clause 11
This clause had now been amended in line with the comments raised by the South African Gun Association (SAGA) in relation to private collectors. Clause 11(a) and (b) were to be substituted by new wording. The criterion for private collections were set out, and where the firearm was approved as a heritage item, the approval was subject to confirmation by the South African Heritage Resources Agency (SAHRA) or its agents.

It was then necessary to insert an additional subclause to state that a firearm could be licensed under this section although it might otherwise be listed as a prohibited or restricted firearm.

New Clause
Adv Jacobs reported that a new section 16A should be inserted in the Firearms Control Act, relating to special licences for professional hunters. It was couched in the same terms as the other licensing provisions, but recognised as a separate class.

New Clause
Adv Jacobs proposed that a new clause be inserted to amend Section 18 of the Firearms Control Act, relating to the holding of rifle grenades, which would need to be deactivated.

Clause 12
There were three purely technical amendments proposed to lines 45, 46 and 48 of this Clause. Clause 12(b) was however amended to include a reference, once again, to rifle grenades. This subclause was also to be amended to state that the weapons may be displayed either in a museum or by an accredited public collector.

Clause 13
Amendments proposed to this clause related to the time periods. The notice period was not stipulated but the holder of the authorisation was now to have 30 days to reply.

Clause 14
There were no further amendments proposed to this clause.

Clause 15
Adv Jacobs reminded members that professional hunting licences were now a separate class of licence. It was therefore necessary to make one amendment to this clause providing for the validity of professional hunting firearm licences.

New Clause
Adv Jacobs reported that a new clause would now be inserted, once again to cater for the separate licences of professional hunters, that would amend Section 91(a) of the Firearms Control Act.

New Clause
Adv Jacobs pointed out that Section 93 of the Firearms Control Act also needed to be amended and it was therefore proposed to add a reference to a professional hunter into Section 93(2)(b) as set out on P. 11 of AAT.

Clause 16
Adv Jacobs indicated that this clause needed to be amended to include a reference to a muzzle loading firearm or ammunition in a collection, and he tabled the new wording on P. 12 of AAT.

Clauses 17, 18, 19, 20
There were no further amendments proposed to these clauses.

Clause 21
Adv Jacobs pointed out that once again this clause had inserted provisions dealing with muzzle loaders, but there was no amendment to the wording of the Bill

Clause 22
Adv Jacobs pointed out that this was another clause relating to the time limits, and, for consistency, no time limit was specified for the giving of notice of withdrawal, but the holder had a period of 30 days to respond.

New Clause
Adv Jacobs reminded members of his earlier comment relating to silencers, when he advised that Clause 3 was to be removed. The reference to silencers was now to be inserted into Section 94(1) of the Firearms Control Act, and the new subsection was tabled.

Clauses 23, 24, 25
There were no further amendments proposed to these clauses.

Clause 26
Adv Jacobs pointed out a technical amendment; the reference to the section on line 47 needed to be amended: The reference to “Section (9)(3)(b)” would need to be supplemented also with a reference to “Section 103(7)”.

Clauses 27, 28, 29, 30, 31
There were no further amendments proposed to these clauses.

Clause 32
This clause related to “dispossession” which Adv Jacobs reminded members was now defined in Clause 1. The clause itself was not amended.

Clause 33
Adv Jacobs reported that it had been decided, after the hearings, to delete this clause altogether from the Bill. It had related to presumptions relating to possession, loss and dispossession of firearms.

Clause 34
This clause contained further references to muzzle loading firearms. It was not amended.

Clauses 35, and 36.
Adv Jacobs merely indicated that Clause 35 followed the proposal that the formal Ministerial Committees be replaced by a more informal consultative forum.

Clause 37
Adv Jacobs reported that it was now proposed to amend subclause (a) by making reference to the muzzle loading firearm competency certificate.

Clauses 38, 39, 40, 41, 42, 43, 44
Adv Jacobs pointed out that all these clauses were amending sections of the Act by making reference also to muzzle-loading firearms.

Clause 45
Adv Jacobs noted the printing error: the word “ammunition” appeared twice in line 7. The amendment deleted the extra unnecessary wording.

Subclause (4)(b) also needed to be amended by the addition of “muzzle-loading firearm or ammunition” consistent with other amendments.

In addition, in subclause (4)(b) the words “any condition which may be” should be substituted for the word “as” in line 16. This was purely a grammatical correction.

Clause 46
Adv Jacobs noted that there was no Clause 46 printed in the Bill. This would be rectified when the next draft was prepared as the numbering would in any event change.

Clause 47
There were no further amendments proposed to this clause.

Clause 48
Adv Jacobs stated that there was an additional proposal, which had not been discussed by the Committee. The State Law Advisors had suggested that there was a necessity to add in two further subclauses, providing, firstly, that the minister could extend the period of application for a competency certificate for a muzzle-loading firearm. Secondly, it was necessary to provide that an applicant who had lodged his application within the prescribed time should be regarded as lawfully in possession of the firearm pending a decision on his application.

Proposed new clause: Insertion of New Section 6(4) and New Regulation 14(10)
Adv Jacobs reported that it was proposed that the provisions of the Firearms Control Act should be more closely linked where applicable with the provisions of the Domestic Violence Act.

He tabled a document headed “Domestic Violence” which contained the proposal. This suggested the insertion of a Section 6(4) into the Firearms Control Act to provide that applications for competency certificates and licences to possess firearms should be suspended when the applicant was the subject of a temporary protection order under the Domestic Violence Act, 1998. Regulation 14 of the present Firearms Control Regulations already provided that a key indicator for refusing a competency certificate would be if the applicant had, within the last five years, been served with a protection order.

Adv Jacobs tabled a proposed new Regulation 14(10). This would provide that the station commissioner of a police station which received a certified copy of a protection order or warrant of arrest must refer it to the Designated Firearms Officer to check whether the applicant had made application for a licence, competency certificate, permit or authorisation.

Adv Jacobs believed that this provision would be correctly placed in the Regulations.

Regulations : SASSETA Certificates
Adv Jacobs stated that the issue of the South African Safety and Security Sector Education and Training Authority (SASSETA) was raised during the hearings. In fact there was no stated requirement for a SASSETA certificate; a security service provider would simply need to comply with the South African Qualifications Authority (SAQA) Act and the Skills Development Act, and be accredited with SAPS and SAQA. He did not believe it was therefore necessary to make any change to the regulations as the matter could be dealt with administratively

Adv Jacobs referred to the further concern raised that the industry of security services was unstable, and that many security service providers had closed their businesses. Section 146 of the Firearms Control Act already made provision for disposal of any weapons if such a business were to close. The licence holder would have to keep the firearms and ammunition in safe custody until they could be disposed of. Furthermore regulations provided that the Registrar must be notified of the date on which the business ceased, and must receive a list, with full particulars, of all firearms. The firearms would have to be disposed of within 90 days, and if this was not possible they were surrendered to SAPS. Adv Jacobs believed that the issue was adequately dealt with already and pointed out that there was a high penalty for non-compliance, which would certain be a strong incentive for the business to comply.

Discussion
Mr V Ndlovu (IFP) indicated his support for the provisions on Domestic Violence.

Adv Jacobs thanked Mr Ndlovu for his support.

Ms D Kohler-Barnard (DA) asked for clarity whether a separate competency certificate was required for owners of muzzle loaders.

Adv Jacobs replied that because muzzle loaders differed from other firearms a separate competency certificate would be required.

Ms Kohler-Barnard asked, on a point of clarity, whether training and competency certificates were not two separate issues. The question of competency considered whether an individual would be likely to inflict injury or whether the individual had the emotional maturity and understanding to take responsibility for the firearm. This would be a subjective decision based upon a person’s character. The training to handle the weapon was another issue and would be different for different weapons.

Adv Jacobs confirmed that “competency” would relate to personality, and there were training processes too. The actual process was practical training on the weapon, followed by the process to get the certificate (finger-printing, character checks etc) the decision on competency was therefore the final stage.

Adv Jacobs added that the relevant institutions had given an assurance that they would be willing to develop a training course for muzzle-loaders.

Ms A van Wyk (ANC) asked if there was a distinction between “fit and proper person” and “competency”

Mr Jaco Bothma (Director: Firearms and Liquor Control, SAPS) clarified that in order to have a competency certificate, one must be considered a fit and proper person. Part of this assessment as fit and proper related to having undergone the necessary training. The competency related to competency to possess the firearm, but each competency certificate would state which firearm was covered by the certificate. A person given a certificate under one category – such as handguns – would have to apply for a further certificate in respect of rifles.

Ms Kohler Barnard also asked for further clarity on the issue of compensation for people relinquishing their weapons.

Adv Jacobs explained that there were different processes for getting rid of excess weapons. A person who no longer wished to have a firearm and handed it in voluntarily would not receive compensation. A person selling his firearm to someone else would obviously also not receive compensation over and above the selling price. Compensation would depend on different circumstances and it would only really be determined after 30 June 2009 when the relicensing process had been completed. Until then no person would usually be forced to get rid of a firearm. The National Director of Public Prosecutions had confirmed to the National Commissioner of Police that licences obtained under the old Act would be valid until 30 June 2009.

Mr Groenewald asked if a person who had purchased a firearm but then could not obtain a competency certificate was likely to get compensation.

Adv Jacobs pointed out that the competency certificate would probably only be refused to a person who had been subjected to an order under the Domestic Violence Act and he would not think that compensation would apply there because the person would never be competent to have a firearm. There might be some problems if a person had been restrained but the Court had not specifically declared that person unfit to possess a firearm, through some administrative error. Once again, he would not think that compensation could apply.

Ms Kohler Barnard reminded members that the issue of collectors had been raised in the public hearings, and there was some doubt whether they would be clearly separate from museums.

Adv Jacobs believed that the collectors were now adequately dealt with in the Bill.

Ms Kohler Barnard also commented that during the hearings there were many complaints about the lengthy, and sometimes arduous process, to obtain licences, and the many instances of rejections that might have been due to incompetence of those doing the paperwork. She enquired whether these problems would still arise under the new system.

Adv Jacobs replied that the new Bill made provision for extension of validity and the linking of competency certificates to the validity of the licence would hopefully ease the situation.

Mr P Groenewald (FF+) asked Adv Jacobs if a new draft would be circulated before members took a final decision on the Bill.

Adv Jacobs replied that he would immediately be working on this and would try to provide a document that clearly indicated where further changes had been made, with the numberings corrected also.

Mr Groenewald felt that the definition of a muzzle loader was still to be dealt with as a question of policy at the next meeting. He also pointed out that the question of retention of licences, in respect of a presently licensed firearm, would need to be finalised.

Adv Jacobs pointed out that the definition of a muzzle loader had actually now been finalised; the only outstanding issue was that of a cap and ball revolver and it had been recommended that these weapons not be included under muzzle loaders.

Ms Kohler Barnard referred to Clause 48, and enquired whether the phrase “or cap and ball revolver” should not be included as it was also a collectors’ item.

Adv Jacobs replied that cap and ball revolvers were in fact never included with antique firearms. This wording should not be inserted as Clause 48 was intended only to deal with muzzle loaders, and cap and ball revolvers were not regarded as muzzle loaders.

The Chairperson stated that the final version of the Bill would be presented at the meeting on 29 August for approval by the Committee before being debated in the National Assembly on 5 September.

The meeting was adjourned.