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Legislation |
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Acts, Regulations, Notices ..... |
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| Draft FCA Amendment Regulations | |||||||||
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Government Gazette Number 30401 issued 26 October 2007. This is a large document and so has been divided into three sections. |
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| SAGA Submission on Draft FCA Amendment Regulations | |||||||||
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10 December 2007 Click HERE for a link to SAGA's submission on the Firearms Control Act Amendment Regulations as per Notice No. 1325
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| Draft Regulations Notice 1325 | |||||||||
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Click HERE for a link to Notice No. 1325 Firearms Control Amendment Regulations
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| Provincial DFO Contact Details | |||||||||
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2 March 2007 Click Here for a list of Provincial DFO contact details
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| SAGA Submission on Draft Regulations | |||||||||
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19 February 2007 FIREARMS CONTROL ACT AMENDMENT BILL & REGULATIONS - REPRESENTATIONS The South African Gun Owners Association (SAGA) once again welcomes the opportunity to make representations on the proposed changes to the existing regulations. SAGA once again re-iterates its commitment to working with the South African Police Services and the Ministry of Safety and Security to ensure that any legislation applicable to firearms is drafted clearly, and in a workable fashion, and which is not to the detriment of existing firearm owners' rights. When commenting on any proposed changes, SAGA is of the opinion that it has the obligation to point out, not only how to improve on the proposed changes, but to highlight areas of the Act and Regulations which are problematic and which have not been addressed. Service Level Agreements 1 There has been a well publicised incident in the Bloemfontein High Court where the South African Police Services were ordered to process and issue firearm licences. 2 SAGA, and the writer hereof, are aware of at least fifteen other similar court orders compelling the South African Police Services, The National Commissioner, The Minister, and the Appeal Board to do their job timeously. It is quite apparent that these orders, and other court applications which are pending, have been brought about as a result of the frustration of firearm owners and business entities at the administrative failings of the Central Firearms Registry. 3 This is a fact, and is not meant to be critical of any particular individual or organisation. 4 The request has been made by the Arms and Ammunitions Dealers Association in the past, and which was supported by SAGA, that there should be a clear policy which provides guidelines as to how long it should take for a competency certificate, firearm licence renewal, or new firearm licence to be issued. 5 Various statements have been made to Parliament by various police officers about how long it will take to approve licences which are blatantly incorrect if not misrepresentative. 6 Waiting eighteen months for a competency certificate, the renewal of a firearm licence, or the issue of a new licence, is simply unacceptable and is not in accordance with the Promotion of Administrative Justice Act. 7 The fact that the High Court has seen fit to issue court orders confirming this supports this fact. 8 If the South African Police Services were to concede that the challenges that they face exceed their capacity, and if they were to give undertakings to deal with backlogs within a stated time period, court cases would be avoided and good will generated between firearm owners, the police and the Firearms Control Act. 9 Conversely, a failure to acknowledge the needs and rights of firearm owners will only lead to an escalation of conflicts between the firearm owners and the South African Police Services where the South African Police Services cannot comply with their statutory obligations to firearm owners. 10 We have stated the above merely to illustrate that the position of dealing with firearm licences has worsened since the last series of submissions made by the South African Gun Owners Association. The fact that, for example, only approximately three hundred licences for renewal have been approved in Limpopo Province is confirmation of low service and performance levels. 11 Two examples will suffice to illustrate these problems. 12 The first one is the ongoing problems that have been experienced with the SAP350(a) and SAP350(b) forms, i.e. the returns sent to the Central Firearms Registry by firearm dealers. 13 Notwithstanding the requirement that the dealer submit regular returns, these returns are neither processed timeously nor are the information utilised to update the Central Firearms Registry computer. The fact that the number of dealers has decreased from seven hundred to less than one hundred with a corresponding decrease in the workload, illustrates the Registry's difficulty in complying with simple administrative tasks. 14 This then results in endless and unnecessary queries in the issuing of licences from dealers who have the firearms in their possession, but are not reflected as such on the computer. 15 Marc Drinn of Harold J Drinn, telephone number 031 3011325, will provide supporting documentation in this respect. 16 Secondly, virtually every application that is submitted to the Central Firearms Registry is either lost, or has documentation lost from it. 17 As a result, administrative personnel at the South African Police Services firearm registration centres spend an inordinate amount of time obtaining duplicate copies of documentation that they, or the Central Firearms Registry, has lost. This leads to delays in the obtaining of licences and a duplication of an extensive amount of work. 18 The simple reason for this is that no common checklist exists that the public, as well as the administrative personnel of the South African Police Services, can utilise to check that all applications are complete. No explanation can be found however as to why complete applications disappear with clockwork regularity. 19 A final serious omission from the Regulations, and this has been drawn to the attention of the South African Police Services previously, is that no provision is made in the Regulations for a returning resident or citizen to temporarily import a firearm purchased overseas. 20 This is leading to unnecessary prosecutions and confiscations of firearms. Competency Certificates 21 Yet again no provision has been made for persons who are not citizens or permanent residents to obtain a competency certificate. It is the policy of the South African Police Services that, even in order to obtain a Section 21 permit to possess a firearm, one needs to be in possession of a competency certificate. 22 The Act does not specifically mandate the police to require the possession of a competency certificate, and the result of this policy is that non citizens (e.g. persons who come to South Africa on a work permit) who wish to shoot recreationally, or competitively, are prevented from obtaining permits to keep their firearms. 23 Furthermore, they are granted temporary import permits but when these import permits expire, they are forced to hand in their firearms to the South African Police Services as they cannot extend these permits because they cannot obtain a competency certificate. These firearms are then confiscated by the South African Police Services. This is both unlawful and unconstitutional. The writer has examples of how this process has worked. Delegation of Powers downwards 24 When the Firearms Control Act was originally promulgated, the intention was to delegate a great deal of the responsibility for licensing, particularly background checks, down to police personnel on the ground. 25 It was argued that policemen on the ground would be best placed to assess a person's suitability to possess a firearm, and the Act was designed around this concept. 26 Unfortunately, decision making has been centralised, leading to many incorrect decisions (some of which have been successfully challenged in court), and which negates much of the hard work done by police officers at firearm registration centre level. Authority to grant licences, competency certificates and permits must be delegated downwards to provincial or even firearm registration centre level. Existing licences 27 SAGA re-iterates its view that existing licences must be recognised as valid indefinitely unless the holder thereof disposes of the firearm or is otherwise declared incompetent to possess a firearm. General Comments 28 The definition of a person in good standing in respect of an accredited association needs to be examined. 29 We would suggest that the definition of a person in good standing be defined as someone who "conforms to the aims and objectives of the Act". 30 Other matters that should be dealt with, within the new regulations, and which have not been addressed, are that the authority to certify safekeeping facilities in terms of Regulation 86 as being compliant with the SABS standard should be delegated not to the Registrar but down to the designated firearm officer. 31 Provision needs to be made for re-licensing of firearm parts already in possession of existing firearm owners. Cap and Ball Revolvers 32 No provision or mention has been made of the issue of cap and ball revolvers in the regulations. 33 Notwithstanding that much was debated about this particular issue in Parliament, the South African Police Services have deemed it fit for reasons best known to themselves to ignore this issue. 34 SAGA, collectors, and dealers have ample evidence in their possession that these objects could previously be purchased and possessed without a licence. What is implied in the manner of the amendments and the Regulations is that possession of these objects will become illegal and punishable by law. 35 This is going to lead to injustice and hardship, and possible damages claims against the South African Police Services for unlawful arrest. 36 We have affidavits in our possession where Director Bothma personally indicated that licences were no longer necessary for percussion or cap and ball revolvers, and we also have examples of licences where the Central Firearms Registry cancelled percussion or cap and ball revolvers after the implementation of the new Act. This area needs to be urgently addressed. Validity Period of Competency Certificate 37 Notwithstanding that the various organisations raised the issue during the Portfolio Committee process, no clarity has been achieved in the Regulations as to the precise validity period of competency certificates. 38 As the regulations currently read, it appears that a person must renew their competency certificate on an ongoing basis according to the validity of each category of licence, i.e. two, five or ten years. This will merely serve to increase the already unacceptable administrative burden of the South African Police Services. 39 We would suggest that competency certificates be made valid for the equivalent period of the longest licence validity period for firearms possessed by that person; e.g. if that person has firearms for dedicated collecting or hunting purposes, the competency certificate be valid for ten years. If a person only has a firearm for self defence, the competency certificate should be valid for a period of five years. Competency Certificate for muzzle loaders 40 The period of one year granted to persons who possess muzzle loaders to obtain a muzzle loading competency certificate is too short. The unit standard for muzzle loaders, as well as training material for such unit standard needs to be approved by SAQA and SASSETA and there are procedures involved in doing so that will take some considerable time to complete. The end result will be that firearm owners may be placed in a situation where it is impossible for them to obtain a competency certificate for muzzle loaders within the year time period. We suggest that the time period be one year from when practical training materials are made available as approved by SASSETA. Accreditation of Professional Hunting Associations (Regulation 5) 41 This regulation needs to be visited in its entirety. 42 Clearly, there is confusion in the minds of the South African Police Services between what constitutes a dedicated hunter, and what a professional hunter is. 43 A dedicated hunter, simply put, hunts for pleasure, and a professional hunter hunts to earn a living. 44 Bearing this in mind, the requirements for a professional hunter cannot be the same as that of a dedicated hunter. Section 20 which deals with business licences, as well as Regulations 21 and 22, clearly determine how business licences should be dealt with. 45 In addition to this, the Professional Hunters Association of South Africa has no capacity to create and enforce one course for its members, particularly bearing in mind that there is different provincial legislation applicable at present, used to qualify a professional hunter in that particular province. 46 The requirements of bona fides to remain a professional hunter, as well as participation in professional hunting activities and record keeping, are all requirements of a dedicated hunter status, and not a status for business purposes. 47 Furthermore, professional hunters' permits are not issued indefinitely, but have expiry dates and are subject to renewal. This section needs to be removed and redrafted to accord with the requirements of Section 20 and the Regulations giving effect to Section 20. Collectors' Association 48 Removal of "international association" from Regulation 6 is not welcomed. It removes the discretion of a collector from joining an association of his choice. This is contrary to the freedom of association provisions of the Constitution. 49 Furthermore, there is a principle problem with the drafting of the Regulations. The requirements of historical, technological, scientific, educational, cultural, commemorative, investment, rarity, thematic or artistic value determined by the association should all be individual or alternative characteristics. 50 In other words, the Regulations should allow the categorisation by a collectors' association of a firearm as collectable if it possess one or more of those characteristics. The Regulations are drafted such that they are all inclusive i.e. that a firearm has to have all of those characteristics because it is not worded in the alternative. Accreditation of Official Institutions 51 The South African Police Services are the enforcers of the Act and Regulations. 52 As such, they have an obligation as law enforcers to exercise the utmost good faith to the public in enforcing the legislation. To exempt the South African Police Services from the requirements of possession a competency certificate is irrational. SAGA requires that all official institution employees who are issued firearms be deemed and declared competent by the South African Police Services in accordance with the general requirements of the Firearms Control Act. Licence to possess a firearm 53 SAGA objects to the extension of the prohibited criteria for the licensing of a firearm to include restricted firearms. 54 As has been noted previously in representations to the South African Police Services, in the absence of any concrete evidence to the contrary, that restricted firearms (as opposed to State firearms) as used in serious crimes, there is no reason to impose the same conditions on restricted firearms as that of prohibited firearms. To do so is irrational and prejudicial to the property rights of persons who possess restricted firearms. 55 Furthermore, the manner in which this Regulation is worded is ultra vires in that it now effectively bans the licensing of certain firearms as collectable firearms, where they were not previously licenced as collectable firearms. Examples of this would be the LM series of South African made firearms, Ruger mini 14s, AKs and no doubt many other types of firearm that are current production firearms, including numerous current production semi automatic 22 rifles. This is the incorrect procedure to adopt as the Act specifically provides that the Minister must expressly gazette his intention to ban or restrict certain types or categories of firearms. 56 The manner in which this regulation is worded conflicts with the Act and constitutes Regulation by stealth, see Section 4(3) of Act 60 of 2000. Storage of Firearms and Ammunitions (Section 67) 57 This Regulation needs to be clarified. 58 There is an inconsistency with the requirement for a dealer to use secure locking devices for firearms held by them on behalf of third parties, but not in respect of their own stock. Regulation 86 59 Regulation 86 requires the insertion once again of "or" after each of the provisions marked A to E, i.e. they are not meant to be all inclusive but mutually exclusive. 60 SAGA reserves the right to add further comment to the Regulations, as and when the need may arise. 61 SAGA also suggests that, as a matter of urgency, proper hearings be convened with the Portfolio Committee to address the issues raised in this representation. Yours faithfully
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| Draft Regulations | |||||||||
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18 January 2007 The first draft of the Regulations to the Amendment Act have been made public. SAGA is studying them in detail and will report back to members as soon as possible. Click on the link to download a Pdf file DRAFT REGULATIONS
PROPOSED AMENDMENTS TO THE FIREARMS CONTROL REGULATIONS, 2004 The Minister for Safety and Security intends to review and amend the Firearms Control Regulations, 2004. A draft Firearms Control Regulations, 2007 is hereby published for general information and comment from interested parties. INFORMATION NOTE: This is merely a working document which is used to obtain the input of interest groups. The finalization of the draft Firearms Control Regulations, 2007 will ultimately be done after the consultation process has been concluded. NO PART OF THE CONTENT OF THIS DOCUMENT OR ANY ALTERATION THEREOF MAY BE CONSIDERED AS A COMMITMENT TO THE FINAL PROVISIONS OF THE REGULATIONS. Kindly note that this is a working document. Certain technical corrections with regard to the numbering, spacing and general layout still need to be done. Any comments, contributions or proposals on
the Regulation may be submitted on or before Monday , 19th February 2007
in writing to Director P Van Vuuren at one of the following addresses:
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| Final Amendment Bill | |||||||||
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11 September 2006 Herewith the final Amendment Bill that just has to be signed by the President. Firearms Control Amendment Bill See also SAGA News: Firearms Control Amendment Act taken from Magnum Magazine, November 2006
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| Hearing Presentations | |||||||||
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Presentations at the hearings on the Firearms Control Amendment Bill to the Portfolio Committee on Safety and Security. Friday 11 August 2006: Wednesday 16 August 2006: The committee will now deliberate on the issues.
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| Amendment Bill | |||||||||
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The Firearms Control Amendment Bill as received on 9 June 2006 - CLICK HERE. SAGA Summary of the Bill CLICK HERE Any person who or
organisation, which would like to make written submissions to the
Committee, may do so by no later than 10 July 2006.
CLICK HERE for the version of the Amendment Bill on which the July 2006 SAGA NEWS was based
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| Submission on Draft Amendment Bill | |||||||||
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Trustees; RK Anger, BM Shaw, JI Welch, DL
Kirton We have noted that the draft amendments published in the above Government Gazette are merely proposals. We welcome this opportunity to provide further constructive input with a view to improving the Act and to reduce the acknowledged difficulties experienced with the proper interpretation of and implementation of the Act. We are committed to ensuring that the implementation of the Act is fair, that the contents of the Act itself are both lawful and constitutional and to ensure that the legitimate rights of law-abiding firearm owners are protected. SAGA's mandate is to ensure that firearm owners are not in any way prejudiced by legislation that either contravenes the Constitution or in any way removes existing rights. Preliminary Comments General Principles 1 SAGA will oppose any limitation of the existing rights of firearm owners, or any potentially unconstitutional amendments. 2 The Act, whatever its ultimately provisions, must be applied consistently and objectively. This necessitates that there be an open, disclosed policy -- developed in conjunction with the firearm community -- that will serve as a guide to how the Act is to be interpreted and applied. This policy must be adhered to by the SA Police Services and be such as to enable firearm owners to understand their rights and their obligations. The Minister is respectfully referred to Chapter 10 of Act 108 of 1996, more specifically Section 195(1)(e),(f),(g) in this regard. 3 SAGA records, to date hereof, that there has been no disclosed policy and no consultation with the firearm community relating to the development or disclosure of a policy to interpret and implement the Act, notwithstanding repeated requests. 4 It is however quite clear that policy guidelines are being used by the SA Police Services in, not only assessing applicants for firearm licences (for example the unlawful application of the principle of need to applications other than self-defence) but also in dealing with appeals. SAGA has concluded this on the basis of continued and ongoing common "reasons" given for the refusal of licences and for upholding such refusals on appeal. 5 SAGA has also noted with concern that appeals are refused, not on the basis of the original reason given by the SA Police Services, but for other reasons. It is the Appeal Board's task to decide whether or not the decision of the SA Police Services was lawful and reasonable or not. To find other reasons for the refusal of an appeal is, in SAGA's opinion, exceeding the mandate of the Appeal Board. It also appears that the Appeal Board has become part of the policy-making machinery of the SA Police Services: this compromises the independence and role of the Appeal Board and must be stopped immediately. 6 The independence and integrity of the
Appeal Board must be safeguarded because of the requirements of Section 34
of Act 108 of 1996 which states: 7 The Appeal Board is supposedly "an independent forum or tribunal". However, the independence of the Appeal Board is in question and this must be addressed and remedied immediately in order to restore credibility to the process. The administrative debacle at the Appeal Board also urgently needs to be addressed. 8 There is a concentration of decision-making at the Central Firearms Registry. This has created huge administrative backlogs. Decision-making must be delegated downwards from the Central Firearms Registry to provincial designated firearm officer level and local designated firearm officer level. This will ease administrative backlogs and allow for the more effective implementation of the Act. 9 When the Act was first discussed publicly, and throughout the entire Portfolio Committee process, one of the principal reasons given for the formulation and passing of the Act was to give powers to police at local level to assess a person's suitability to possess a firearm. It was acknowledged that, the Central Firearms Registry was not in the position, based on the information provided in the SAP 271 application forms, to properly assess the suitability of an applicant for a firearm licence. 10 This philosophy is quite clearly embodied in the requirements of the Act by virtue of the fact that designated firearm officers are tasked in terms of the SAP 271 and related documentation to assess an Applicant's suitability to possess firearms and make a recommendation in respect thereof. The powers of local designated firearm officers must be increased to allow for and give recognition to this. 11 SAGA calls upon the Minister to immediately declare a moratorium on the re-licensing process. This should apply until certainty has been restored to the licensing process. 12 Not only do the proposed amendments, if accepted in respect of Section 24 and Transitional Section 11, prejudice those persons born in January, February and March, but they have created the potentially unlawful and unconstitutional environment. Persons born in these months may be refused competency certificates or licences because they are legally obliged to reapply, whereas the seventy-five percent remainder of firearm licence holders will not be subject to such process and risk. This will result in damages claims, and claims for compensation against the Ministry. These can be avoided by a simple administrative process of declaring such a moratorium. Alternative administrative solutions should also be sought so as not to prejudice the past year of re-licensing applications. 13 SAGA also draws to the Minister's attention the fact that Section 149(2)(b) must be complied with and that existing firearm owners who, as a result of information provided by the SA Police Services and the Minister's office have surrendered firearms must be entitled to reclaim those firearms, if not destroyed, because all existing licences remain valid until 30 June 2009. 14 If such firearms have been destroyed, or if the Minister cannot return that property, he must undertake to pay compensation to the rightful owners. No Rationale provided 15 SAGA (and the other established firearm organizations) has found that making constructive comment on the proposed amendments -- particularly those relating to collectors and black powder firearms -- to be extremely difficult because no rationale has been put forward to explain the need for such restrictions. 16 SAGA calls upon the Minister to disclose the rationale and reasons (as he is constitutionally obliged to do) why he has proposed certain of the amendments (which are referred to below) in order that we may provide further and proper comment. We reserve the right to comment further when these reasons are disclosed. 17 The Firearms Control Act was originally proposed as, and has always subsequently been termed, a crime fighting tool. The Ministry, when dealing with amendments, must bear this in mind and amend only those sections that have proved inadequate for this purpose. It is unreasonable and irrational to regulate persons and types of firearms if no harm is perpetrated by such persons and firearms. 18 To ensure its proper implementation, the wording and structure of the Act (and its Regulations) must be simplified to make it accessible and understandable to both police and firearm owners. If this is not done, the Act will continue to lack credibility and compliance levels will not improve. 19 In order to amend legislation there is an established legal principle that there be a harm not addressed by current legislation and it must be shown that an amendment is necessary to deal with such harm or prejudice. The Minister is called upon to explain why, and how, the legislation has failed, what harm has resulted and how the proposed amendments redress such harm. 20 Legislation cannot be amended in a vacuum, it must be amended in a manner that is constitutional, reasonable and rational. 21 The Minister himself has publicly stated that when legislation is not fair then it is not good legislation. SAGA's arguments below will show that the legislation is not fair, that it is restrictive, that it targets a group or groups of people that have not committed any harm, and that do not need any further control. Many of the proposed amendments will not pass constitutional scrutiny. 22 SAGA will also comment on other areas of the Act that require amendment to comply with the abovementioned principles. Section 4 - Prohibited Firearms 23 This section needs to be clarified urgently. Subsection (e) contradicts the deactivation provisions that allow a person to possess deactivated sample of a prohibited device. This must be cross-referred to Section 5(1)(j). 24 The general provision applicable to non dedicated firearm owners limiting possession of ammunition to two hundred rounds must be deleted. Target shooters and wing shooters are particularly prejudiced by this provision. 25 The various hunting and sports shooting associations will provide the specific motivations in this respect. Licences for Business Purposes 26 SAGA has been advised that the licensing process to issue firearms for business purposes, particularly security companies, is subject to a separate business process and is therefore quicker, but the reality is that this is not so. Businesses are being prejudiced and potential employees are not being gainfully employed as a result of the delays in issuing the firearm licences for business purposes. Importation of Firearms 27 Section 73 and Regulation 62 must be amended as a matter of urgency to provide that a returning resident or citizen can obtain a temporary import permit either on arrival or in another manner to be prescribed by the Registrar. Many people are being criminalized as a result of incorrect information provided by the Central Firearms Registry to returning residents who wish to import firearms, resulting in their arrest on arrival in South Africa and the confiscation of their firearms. The information on the SAPS website is contradictory and confusing. 28 There must be a clear policy relating to the issue of Section 21 permits to temporarily possess firearms. 29 The Minister must clearly indicate in terms of this policy whether he intends on following the provisions of the Interpretation Act, i.e. whether the legislation is deemed to be retrospective or not, and in what respects. The Act must be amended to clarify the issue of retrospectivity. 30 As the Act currently stands, it clearly contravenes the Interpretation Act and will be subject to constitutional and judicial review in this respect. 31 A final problem area is that of the involvement of Sasseta and the Skills Development Act. 32 Sasseta's involvement (and its predecessor Poslec Seta) has been a dismal failure. Sasseta is clearly not capable of processing the number of learner achievement certificates required within a reasonable time. The Skills Development Act was incorporated at a very late stage into the regulations without thought being given to how the requirements of the South African Qualifications Act would be accommodated within the prescribed framework and without giving thought as to the technical capability of Sasseta to comply with its mandate. 33 The Skills Development Act has no application in a non industrial environment such as firearm training. We suggest that all reference to Sasseta be removed from the Act, alternatively that Sasseta's involvement be limited to that of accreditation of training institutions and instructors. 34 The issue of training provider certificates for firearm owners should not be subject to Sasseta requirements because the quality controls in respect of institutions and instructors are sufficient. 35 Against this must also be borne in mind the fact that all firearm instructors and institutions have to go through a separate accreditation process with the SAPS in addition to that of accrediting with Sasseta. This seems to be an unnecessary duplication. SPECIFIC COMMENTS Amendment of Definition of Ammunition 36 A primer cannot be deemed ammunition. We suggest that SAPS legal services examine the various international conventions such as the International Air Travel Association Convention that deals with the transportation of arms and ammunition. A primer is quite clearly classed separately. A primer is a component of ammunition and in the absence of the other components (propellant, bullet and cartridge case) cannot be deemed to be ammunition. 37 The definition is illogical and contrary to internationally accepted standards. Antique Firearms 38 This amendment is going to be extremely problematic. Not only will it infringe upon the existing rights of purchasers of antique firearms subsequent to 30 June 2004, but no provision is made in the proposals as to exactly how these firearms are going to be re-licenced, and how possession will be regulated until licences can be issued. 39 The amendment is illogical for two reasons. Firstly, the original legislation reflects the intention of the legislature to deregulate these objects. Subsequent to deregulation, we were not aware of any harm that has resulted from the deregulation of black powder firearms. In the absence of any harm that can be proven and that needs to be remedied by additional legislation, any amendment would be legally unsustainable. 40 Secondly, there is no logic in the fact that an object manufactured before 1 January 1900 need not be regulated and an object manufactured after 1 January 1900 needs to be regulated if they are exactly the same object and are capable of achieving exactly the same purpose. 41 Nitro proofing has no relevance to antique firearms and its inclusion is mystifying and pointless. Brokering Services 42 Quite clearly this is an attempt to bring the Firearms Control Act into line with, amongst others, the Armaments Act. 43 Brokering services by definition has no place in the Firearms Control Act. Not only is the definition so broad as to be potentially struck out for vagueness but it will to lead to unintended adverse consequences. Furthermore, the harm that it seeks to remedy has not been disclosed but there is quite clearly going to be extensive prejudice should the proposal be passed. 44 For example, in the security industry, a responsible person purchasing ammunition on behalf of his employer would be deemed to be a broker. This is illogical and quite contrary to the intention of the legislation. Fit and Proper Person 45 This amendment is to be welcomed if it is intended to give the Registrar a greater discretion to allow people to be declared fit and proper as opposed to allowing a restrictive interpretation. 46 A clear policy however on what is meant to be a fit and proper person must be disclosed. Reference once again is made to Section 195(1)(e) of Act 108 of 1996. Amendment of Section 3 47 This amendment is to be welcomed if it anticipates that recognition is to be given to Arms & Ammunitions Act licences. This appears to be the intention but is also contrary to public statements made by persons in the Minister's office. This has created confusion as to precisely what the intent of the legislation is and what requirements the public has to comply with. Section 4(1)(g) 48 This relates to the regulations of what is commonly termed a silencer. During the drafting of the original Act, proposals were made to regulate silencers but these were removed after representations from various firearm organisations. Once again, in the absence of a harm or mischief that the Minister can prove needs to be remedied, this amendment should not be allowed. 49 Furthermore, silencers have a number of uses in different environments: 49.1 Firstly, in training, particularly for those who have not been exposed to firearms previously, the muffling of a report from the discharge of projectile is an essential training aid, and it also aids the safe discharge of firearms; 49.2 Secondly, it is essential that older hunters or shooters, who may suffer from tinnutis, be allowed to use silencers to prevent further damage to their hearing. 49.3 Thirdly, culling, and problem animal control, is often done using silencers and many farmers insist that hunting be done in certain environments with the use of silencers so as not to traumatise or affect other animals. 49.4 Fourthly, a pregnant woman cannot be trained other than by the use of a silencer for fear of injuring her unborn child. 50 Finally, the word "device" is potentially confusing. There are many attachments put on barrels that are not silencers, such as muzzle brakes and flash hiders. Section 7 51 The intent behind this proposed amendment is to give recognition to the fact that there is a need to speed up the process of changing responsible persons, particularly in relation to security companies. This amendment is welcomed. Section 9 52 This extremely problematic amendment must be seen against the fact that many people have criminal convictions of a petty nature, and subsequent to their conviction and full disclosure of such conviction, they have been granted firearm licences under the Arms & Ammunitions Act. Implicitly they have been deemed fit by the Registrar to possess firearms. The effect of the wording of this amendment is that someone will be disqualified for life from obtaining a competency certificate if they have one of the category of offences referred to in Section 9. If they are prevented from obtaining a competency certificate, they will be prevented from renewing and or keeping their existing licences. This is clearly wrong and, we would suggest, an unintended consequence of the proposed amendment. 53 It furthermore contravenes the principle of rehabilitation and paying one's debt to society through conviction and punishment and the handing down of an appropriate sentence by a court. Should this amendment be effected, this would take away existing rights and will no doubt be subject to legal challenge. It is not in compliance with Section 36 of the Constitution nor, we would suggest, does it comply with the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000. 54 The proposal to amend sub-section 4 of Section 9 is potentially good. However an anomaly exists in that it is irreconcilable to delete 3 and then create life disqualification from obtaining a competency certificate while sub-section 4 accepts the time period of unfitness imposed by a judge or magistrate. Section 3 appears to be all the more irrational and unreasonable in the light of the proposed amendment to section 4. Section 10 55 However, in principle, the amendment of Section 10 and the abridging of the competency procedures are to be welcomed, but there must be a policy framework in place that determines how police officers must exercise their discretion in granting of competency certificates. Section 16 56 This amendment is welcomed. However there is an irrational anomaly between sports shooters who may possess restricted firearms where collectors now appear not to be able to possess similar functional restricted or category B firearms. This is anomalous and this anomaly appears throughout the proposed amendments in respect of collectable firearms. It will be argued that such proposals are irrational, unreasonable and prejudicial to a defined class of persons and collectors. Section 17 57 These amendments are objected to in the strongest possible manner. Section 17(1)(8)(ii) requires all firearms in private collections to be made inoperable. No definition is given of what "made inoperable" means, and the mechanism to do so is delegated to regulations that can be passed without public scrutiny and are within the discretion of the Minister. This is unacceptable in view of the potential negative impact it may have on private collectors, the value of whose firearms may be totally destroyed. We are of the opinion that this is deactivation under another name, is unacceptable for reasons of historic, heritage, technical and collector value. It also constitutes an unlawful, unconstitutional, unreasonable and irrational deprivation of rights granted to collectors under legislation that was proposed by, and accepted by, the same department that is now seeking to amend such legislation. 58 In the absence of any specific harm that needs to be remedied, these inexplicable provisions will be subject to legal challenge. 59 In addition to this, the removal of the clause that allows collectable firearms to be discharged, where it is legal to do so (Section 17(4)) is unreasonable. This constitutes a further unreasonable limitation on property rights. 60 Recognition must be given to the fact that collectors, generally speaking, have much better safekeeping facilities (approved by SAPS) than the average person, and they are not public collectors. There is also confusion in the mind of the drafters of these proposals as to the difference between public and private collectors, and public and private museums. 61 Regulation 17(2) is not acceptable because it constitutes an unreasonable limitation of existing firearm rights. 62 Of additional concern to SAGA, although it may just be careless drafting (which is repeated throughout the Act in certain respects), is the fact that in Section 17(2) the additional words do not include the words "restricted firearm" and in 17(3)(c) "semi automatic" is used instead of restricted. This latter instance is serious because it could be taken to apply to all self-loading pistols instead of what we believe is intended to be limited to restricted or self-loading rifles, carbines and shotguns. Section 18 - Ammunition and Private Collection 63 Likewise we repeat many of our objections and principles to Section 17 for Section 18. 64 This will destroy ammunition collecting because any tampering with ammunition, breaking open of packets, etc, will destroy the collectable value of ammunition. This will contravene the National Heritage Resources Act and constitutes an unreasonable restriction on individual rights. 65 Furthermore, it is inexplicable that if the ammunition is deactivated as required, why the ammunition then needs a licence because it is no longer ammunition. 66 To address any security concerns (if that is indeed the rationale) we suggest that collectable ammunition must be contained in a safe that complies with regulation 86 and leave matters at that. Section 19 67 Our objections are similar to those in respect of Section 18. There is no need to store moving parts of a public collector's collection separately in respect of restricted firearms and the confusing use of "semi automatic" instead of "restricted" continues. Unintended consequences would flow from this confusing intermixing of terminology. 68 What is even more perplexing is that the clause permitting use (of the inoperable firearm) on an accredited shooting range has been retained. This is extremely confusing. Section 22 69 This minor amendment is to be welcomed because it gives recognition to the fact that persons under the age of twenty-one are theoretically entitled to be granted firearm licences. 70 De facto however, the SA Police Services have adopted the approach that no persons will be entitled to obtain a competency certificate (and therefore a licence) before they reach twenty-one. 71 This will potentially destroy junior shooting sports. This comes at a time when our South African Clay Target Shooting Team achieved fantastic success at the Commonwealth Games against stiff international competition. 72 Provision must be made for a policy that clearly spells out when a person under the age of twenty-one will be entitled to obtain a competency certificate, and therefore a licence. The SAPS clearly misunderstand the provisions of Section 21 read with Section 9 and 10 of the Act. Section 72(A)(i) 73 This section is completely unacceptable. It gives judicial powers to the Registrar (which he/she may not exercise properly) and allows him to openly contravene Section 22 of the Constitution which states "every citizen has a right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law". 74 For the Registrar to accept statements on oath that have the effect of depriving somebody of their ability to earn a livelihood, and to allow the person so affected only to make written representations, is unlawful and unconstitutional. 75 The Registrar is assuming the function of a judicial official and that contravenes Section 34 of the Constitution. This function should be removed from the Registrar as it is inevitable that it will be (and has been) abused. 76 It must be drawn to the Minister's attention that there have been many attempts under the Arms & Ammunitions Act to suspend a dealer's licence, and in certain instances it has taken in excess of two years for the Registrar to make a decision as to whether or not to uplift the suspension. The consequences of this unlawful and tragic action are obvious. Such dealers were forced to close their business. 77 Furthermore, there are no guidelines to how the Registrar should exercise these powers, nor is any limitation specified in the proposed amendments as to how long the Registrar can suspend the licence and the time period within which he must make a decision. Section 102 78 The proposed amendment to sub-section (f) clearly contravenes the concept of the independence of the judiciary. 79 A judicial officer has a discretion as to how to exercise his judicial function and, should he choose to accept an admission of guilt fine, should the offender pay such admission of guilt fine, guilt has been admitted, sentence has been imposed, and the offender has complied with such sentence. Society's requirements have been complied with, in that the offender be punished appropriately and thereafter the offender, in the absence of evidence to the contrary is deemed to be rehabilitated. 80 Now, not only is the Registrar given the power to usurp the authority of the court, but the principle of double jeopardy has been introduced into the Firearms Control Act and a person can be punished twice for the same offence by two separate entities. This is clearly unconstitutional. 81 It is furthermore of concern to SAGA that the Registrar can proceed with a hearing on the merits of a matter -- based upon an unsubstantiated allegation that may or may not be properly made under oath and in the absence of the person who is the subject of the complaint. This will be open to abuse, particularly in circumstances where the SAPS do not properly carry out their obligation to take reasonable steps to locate the subject of the Section 102 enquiry. If a person is temporarily absent from their residence and the police officer does not find them, the enquiry can take place in such person's absence, without calling the complainant to give evidence and the person may be declared unfit without him even knowing about it. This is clearly unacceptable and unconstitutional. 82 These proposed amendments also give more power to the already excessive powers granted to the Registrar. Section 103 83 We would prefer that this amendment be deleted in its entirety. A judicial officer is far better trained and capable of making a determination of whether a person is fit to possess a firearm or not because they are trained in the law of evidence and how to assess an accused legal responsibility. The ability to determine fitness to possess a firearm, where criminal charges are laid, must remain with the judicial officer, and should not be transferred to the Registrar. A judicial officer exercising criminal functions must apply the criminal onus of proof of guilt beyond reasonable doubt, whereas the Registrar (if he is even qualified to do so) may apply a different onus of proof. This will lead to inconsistency and unfairness and is therefore irrational and unreasonable. Section 109 84 The addition of sub-section 8,
residential premises, is rejected. There is ample authority that has
already been to the Constitutional Court that states: The authorities in this respect are Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001(i) SA454 (CC) and Bernstein v Bester 1996 (2) SA751 (CC). 85 Not only is the granting of this power to a police officer unconstitutional, but to give the power to the Registrar to delegate it to a person, who is not a public official, is incomprehensible. It is irrational and unreasonable. Section 118 and Section 119(a) 86 The issue of reverse onus has already been comprehensively dealt with in the Constitutional Court case S vs Mbatha and S vs Prinsloo. 87 No matter how these presumptions may be worded, they are unconstitutional and they must be rejected. The State has an obligation to properly investigate alleged criminal offences and they cannot escape their responsibilities by diminishing what they have to prove in order to secure a conviction. 88 Furthermore, we suggest that Section 119(a) is clumsily worded and is therefore confusing. If it is confusing, it is vague and therefore may be struck out and made void for vagueness by a court. Section 132 89 Whilst we have long urged the Minister to establish a consultative committee or forum, we prefer the original wording of the Act because a committee has more legal standing and authority than a consultative forum. 90 We would regard a consultative forum as having less practical ability to assist the Minister. 91 Whilst we are committed to consultative processes in principle (and the concept of a consultative forum) we suggest that the Minister retain the right to form such a committee. Section 149 92 We have no difficulty with this proposal in principle other than to draw to the attention of the Minister that there is no National Heritage Authority, it is the National Heritage Agency. Amendments to Schedule 1 of the Principal Act 93 Our understanding of the amendment proposed here is that the five year limitation on the validity of Arms & Ammunitions Act licences is deleted and it is implied therefore that all Arms & Ammunitions Act licences remain valid indefinitely. 94 If this is the intention of the proposed amendment then this amendment is supported by SAGA. SAGA also supports the requirement to obtain a competency certificate as is periodically required. We suggest, however, that, from a logistical point of view, the period of the validity of a competency certificate be considered for a period longer than five years. Section 1 of Schedule 1(2) 95 Twenty-four hours is too short a time period within which to surrender a firearm. Schedule 4 96 It is unacceptable that penalties should be decided upon after the publication of the draft amendments. The potential penalties are subject to exactly the same constraints that the Act and regulations are, i.e. they must be reasonable and rational to pass with constitutional muster. Either the penalties must be drafted and disclosed, or separate consultation must take place for this. 97 Whilst SAGA remains committed to constructive engagement with Government and providing constructive input into improving the Firearms Control Act, it is SAGA's respectful opinion that these amendments, besides not embodying the practical suggestions made by the firearm organisations, have been drafted in a hurried manner, without proper thought as to the correct wording and the consequences. These amendments can only be made workable with meaningful engagement with all role players. 98 It is essential therefore that further, much more comprehensive consultation, and more time be allowed to consider the far-reaching effects of these amendments and to ensure that the wording correctly reflects the intention of the legislature whilst at the same time remains reasonable and constitutional. Martin Hood
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| Letter to Minister | |||||||||
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8 March 2006 The Honourable Minister for Safety and Security Dear Sir, FIREARMS CONTROL ACT : PROPOSED AMENDMENTS / GOVERNMENT GAZETTE NO. 28545 We refer to the above Government Gazette published on 24 February 2006. We are busy formulating our written response to the proposals which will be forwarded to the stipulated address and person in due course. However, we are of the opinion that until the amendments have been finalised, it would be appropriate to place a moratorium on the re-licensing process. The purpose of this letter is to motivate to the Honourable Minister why such moratorium would be appropriate. We have been made aware of specific examples where there is potential prejudice to firearm owners born in January, February or March of any particular year, and who are obliged to re-licence their firearms on or before 30 March 2006. Besides the obvious potential prejudice of that 25% of the population having to undergo and pay for the re-licensing process, and take the associated risks of having some, if not all of their licences declined, there is much greater potential prejudice to multiple firearm owners who own in excess of four firearms. For example, we are aware of a specific situation where a person owns eleven firearms and has applied to have these licences renewed but, in doing so, he was not yet declared a dedicated hunter or collector. He had applied for and been granted dedicated collector status in a collector's association in category B because he has a self loading firearm. He will therefore be obliged to apply to have his firearms re-licenced as a collector. If he does not become a collector, he is at risk of having firearms in excess of the general four limitation contained in the Act refused. However, with the proposed amendments published in Government Gazette No. 28545, if he applies to have his firearms licenced as collectable firearms he now is at risk of having all of his firearms "rendered inoperative". We believe the potential prejudice is obvious in these circumstances, compared to someone who birthday is, for example, in October, November or December of any given year, who will retain all their existing licences issued under the Arms and Ammunitions Act and will not lose or be refused any licences. It is for this reason that we believe that it will be in everybody's best interests that pending (hopefully fruitful) negotiations and consultations over the proposed amendments, the moratorium is declared to avoid such prejudice and the potential complications that will arise from such prejudice. We would like to urge that a meeting take place with the Minister and SAGA representatives as a matter of urgency, and before 31 March 2006, in order to discuss issues arising out of the proposed amendments. Could your office please advise the writer when such a meeting can be scheduled. We await your positive response.
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| SAGA's Preliminary Comments | |||||||||
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SAGA's Preliminary Comments on the PROPOSED FIREARMS CONTROL ACT AMENDMENTS In a draft Bill released in Government Gazette No. 28545 dated 24 February 2006, the Government is proposing radical changes to the Firearms Control Act and has invited public comment by 31 March 2006. Please ensure that as many 'interested parties' as possible are made aware of the importance of their submissions. In view of the urgency of the matter our comments have been prepared in haste and should be regarded as 'preliminary'. The electronically released Gazette contains errors/omissions - we will update our copy as soon as the government releases any corrections. Please note, however, that the Bill is a draft working document (the law has not yet been amended), and should be used only for information on which to base your input/representations. See end for submission information. (Please send SAGA a copy of your representations for record keeping purposes.) The gazette contains a mixed bag of good and bad. Although it appears that all existing licences will be accepted as valid - subject to the owner obtaining a competency certificate - it also appears that the intention is to give the SAPS much greater (excessive?) discretion and power e.g. to refuse to issue competency certificates among other things. We must stress that, although 'old' licences may remain valid if the proposed amendments pass through Parliament unchanged, those who are scheduled to renew by 31 March 2006 are still required to do so. Of course the possibility of this change has already led to confusion and accusations of discrimination against those born during the first quarter of the year. As far as we can see, the only fair way of resolving the issue would be for the Minister to extend the deadline for licence renewals to a date after the Bill will have been fully debated and passed in whatever form is finally found practical and acceptable. Until he does, you know what is expected of you. In general, the amendments will further restrict/control firearm owners while giving further powers to the police. The proposals themselves are completely silent on how to deal with the administrative chaos that has resulted from the implementation of the Act. Furthermore, in order to give effect to the proposed changes, more regulations will be needed, thus complicating the situation even further. The changes that have been proposed relating to the validity of existing licences also will create greater confusion as to the processes involved in becoming competent and the validity of existing licences and competency. The proposed changes include: 1. Black Powder Firearms The definition of antique firearms has been changed to cover only firearms manufactured before 1 January 1900 that are not nitro proofed or have been altered to fire a cartridge. Replicas will therefore have to be licensed. 2. Juristic Persons The Act definition of juristic person will be amended to prevent Trusts from owning firearms; this will effectively eliminate the last remaining manner in the Act to inherit firearms. 3. Cartridges The definition of cartridge has been extended to include rimfire and shotgun cartridges. 4. Occasional Hunter and Occasional Sportsperson These definitions have been amended by the deletion of "but who is not a member of an accredited hunting [sporting] association". This means that, if you are an occasional hunter or sport shooter, you may be forced to become a member of an accredited hunting or sports shooting association. 5. Section 4 - Prohibited Firearms This will now require the Registrar to issue a permit for possession of a silencer. 6. Section 8 - Accreditation This is to be amended to provide a procedure for cancellation of accreditations by the insertion of a new section: Section 105(a). 7. Section 9 - Competency Certificates It may appear that the proposed deletion of subsection 3 is innocuous but this is one of the most sinister amendments. Sub-section 3 deals with the requirements of competency and states that anyone who has been convicted of an offence specified in section 9, and has completed their sentence more than five years previously, is entitled to be deemed competent. The deletion of this part means in essence that the SAPS can deny you a competency certificate for any misconduct which resulted in a criminal conviction, specified within the parameters of Section 9, no matter how trivial, longer than five years ago. This means that applicants for a competency certificate, even if they have existing licences may be deemed incompetent as a result of a conviction much older than five years, and which took place prior to them being granted licences under the Arms & Ammunition Act. The effect of this proposal is to vastly increase the powers of the Registrar to deem people incompetent and appears to be one of the cornerstones of the proposed amendments. This is not an improvement but a blatant removal of rights. 8. Competency certificates remain valid for a period of five years. The renewal of a competency certificate appears to have been simplified by providing for a statement under oath that an applicant for a competency certificate still conforms to the competency requirements of the Act, to renew a competency certificate. However, more power has been granted to the Registrar to institute an enquiry into a person's competency, notwithstanding their ongoing compliance with the Act. 9. A further punitive provision has been introduced which states that anyone who makes a misrepresentation or false statement shall be guilty of an offence and liable to a fine or imprisonment not exceeding five years. 10. For sports shooters there is limited good news in that the magazine capacity limitation of five rounds on a semi automatic shotgun has been removed. COLLECTORS 11. The proposals relating to collectors are the harshest in the Act. All collectible firearms have to be "rendered inoperable" in accordance with the prescribed specification. It is clear that the police do not want collectible firearms to be used because they have deleted the provisions confirming that the owner may discharge collectible firearms where it is safe and lawful to do so. This, in effect, means that collectible firearms must be deactivated, yet they still need to be licensed. 12. Ammunition collectors are affected in a similar manner. All 'collected' ammunition will have to be deactivated by having propellant and primer removed in the prescribed manner. The number of rounds that a person may collect as an ammunition collector is now reduced from two hundred to ten rounds per calibre. 13. The apparently good news is that Section 24 is deleted which means that - if the Bill is passed - there will be no need to renew firearm licences; all existing firearm licences will remain valid unless the licence-holder does not comply with the Act, or is otherwise deemed incompetent. (Let me repeat however, that at this stage, the Minister is insisting that those who are due to renew by 31 March 2006 should still do so.) 14. Section 103 which deals with declarations of unfitness by a court has been expanded to give more powers to the Registrar to declare a person unfit even if a court has made a determination on a person's guilt by allowing the payment of an admission of guilt fine. This seems to amount to a situation of double jeopardy i.e. double punishment. 15. More important is the fact that the Registrar can now declare a person unfit at a Section 102 enquiry in the absence of the licence-holder at such enquiry, and may do so on the basis of a written complaint against the licence-holder. The Registrar may consider any other information or evidence at his disposal to make such declaration. Put simply, you may be declared unfit in your absence and without the power to cross-examine the complainant who has laid the complaint against you. 16. A new section has been added to the Act, Section 105(a), which deals with the procedure to remove accreditation from an accredited association. This will now allow the Registrar to carry out his threats to de-accredit organizations who do not uphold Section 2 of the Act. 17. Section 109, which deals with the provisions relating to entry into premises, has been extended now to include residential premises, i.e. the police now have the right to inspect your home without a warrant. 18. If you are charged with the offence of losing, failing to report the theft, etc of a firearm, and fail to produce that firearm within seven days of being requested to do so, there is now a presumption that firearm has been lost, stolen, destroyed, etc. 19. A slightly more positive aspect is contained in Section 132 of the Act that allows the Minister to establish an informal consultative forum to deal with matters arising out of the Act. 20. The Appeal Board's powers have been extended in terms of Section 133 by allowing them to issue subpoenas for a person to give evidence or produce documentary evidence at an appeal. 21. Complaints have been raised about the destruction of valuable heritage firearms, and the Act now proposes that no destruction take place without the consent of the Registrar and in accordance with the National Heritage Act. 22. The transitional provisions are to be amended by the deletion of the five year validity period, i.e. should these amendments be passed, no firearm licence shall remain valid until the end of June 2009. A firearm licence will automatically terminate upon expiry of the time period - still to be specified by the Minister - for that particular licence-holder to obtain a competency certificate. Should you not apply for your competency certificate within the stipulated time period, you are obliged to hand over your firearms to the police services within twenty-four hours. NOTE: Please note that these are draft amendments and the brief comments provided are provisional and may be subject to change depending upon the final form of the amendments. Keep an eye on the press and our website for 'breaking news'. Submission Information See also Letter to Minister above
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| SAGA Press Release | |||||||||
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For Immediate Release: 28 February 2006 DISTURBING AMENDMENTS TO THE FIREARMS CONTROL ACT The South African Gunowners' Association (SAGA) has noted with disappointment the proposals contained in the lengthy and complex draft Amendment Bill published in Government Gazette No 28545 of 24 February 2006. Many of the representations made by SAGA (and other directly concerned parties) have been ignored and the Registrar of Firearms is to be given greater powers to, amongst other things, declare persons unfit and to refuse to issue competency certificates to firearm owners without reason. Whilst some of the proposals relating to the ongoing validity of existing licences are to be welcomed, the so-called concessions have only come about as a result of the South African Police Service's inability to implement the Act with any degree of fairness and efficiency. The Bill contains no substantial provisions to deal with the present lack of consistency in the application of the Act; the administrative bungling that followed its introduction; and the unwarranted delays that legal firearm licence-holders have experienced in their attempts to comply with its terms and to have their formal appeals dealt with. Those who study and collect firearms for reasons of their historical, cultural or technological importance, or scarcity, etc will be among those most severely affected by these proposals - 'collectible' firearms will now have to be rendered inoperative (and therefore rendered valueless). Although some attempt is being made to streamline implementation of the Act, the current proposals will in fact require even more complicated regulations. This in turn will lead to more confusion amongst the public relating to their obligations and the consequences for non-compliance with the Act. The proposals contradict the Minister for Safety & Security's notice (Gazetted as recently as 21 December 2005) in that existing licences will no longer remain valid until end June 2009, but will automatically terminate upon the expiry of a period (or periods) yet to be determined by the Minister for such licence-holders to obtain competency certificates. SAGA will continue to engage with Government in its endeavours to ensure that any amendments are simple, easy to understand, are capable of proper implementation, and do not prejudice existing firearm owners rights.
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| Amendment Bill | |||||||||
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The Firearms Control Amendment Bill has been released. Gazette Number 28545. CLICK HERE FOR A LINK TO THE AMENDMENT BILL The Minister for Safety and Security made the following statement: Minister of Safety and Security to
introduce the Firearms Control Amendment Bill in Parliament no later than
May The draft Firearms Control Amendment Bill was published for public comment in the Government Gazette on 24 February 2006. (Pretoria, Vol No. 488, Gazette No. 28545 dated 24 February 2006, Notice No. 314 of 2006,) This came about as a result of consultative meetings between the Minister for Safety and Security, Mr Charles Nqakula, and various stakeholders on the implementation of the Firearms Control Act, 2000. At a meeting held in January 2006, Minister Nqakula indicated that he would introduce the Bill in Parliament, by no later than May 2006. It is of vital importance to take note that the draft Bill contains mere proposals which are published in order for the wider public to submit comments, on or before 31 March 2006. The draft Bill does not affect the existing legal position and therefore it is essential that all legal firearm owners must still comply with the existing provisions of the Firearms Control Act, 2000. The Bill should not be viewed as placing a moratorium on the renewal of firearms licenses issued under the repealed Act. Firearms owners who wish to renew their licenses, permits and authorisations issued under the repealed Act, must strictly comply with the periods determined by the Minister for such renewal. Holders of such licenses, permits and authorisations issued under the repealed Act, and who were born during 1 January and 31 March, must still apply for renewal of their licences, permits or authorisations not later than 31 March 2006. The following main proposals are made in the Bill: * The periodic renewal of firearms licences will be substituted by the periodic (five-yearly) obtaining of a competency certificate and the auditing of the firearms belonging to a legal firearms owner. Instead of applying for individual firearms, it will only be necessary to apply for a competency certificate every five years. * The limitation of the number of firearms, which may be possessed under the new Act in respect of defined categories, will only apply to new applications in terms of the present Act. The restriction in numbers will therefore not be applicable to firearms, which were licensed under the repealed Act, and of which the licenses are renewed. Owners of firearms which were licensed under the repealed Act will be able to re-license such firearms after obtaining a competency certificate, within the scheduled time-frames. * It is proposed that "replicas" of muzzleloaders must be removed from the definition of "antique firearms" and in that in future such "replicas" must also be licensed. * The definitions of "occasional hunter/sportspersons are amended in order that such persons may also belong to accredited organisations. * The Bill will enable prosecutors to determine admission of guilt fines in respect of minor offences without it resulting in the offender being automatically declared unfit to possess a firearm. The Registrar may, however, independently still conduct an enquiry to determine whether a person who paid Admission of Guilt still remains fit to possess a firearm. * All collected firearms must be made inoperable. Furthermore, private collectors are in terms of the Bill obliged to place the moving parts of semi-automatic and prohibited (automatic firearms) in safekeeping at a place which is separate of the firearm concerned and which is acceptable to the Registrar of Firearms. The number of cartridges, which may be collected, is also reduced. * An amendment to the effect that "a shotgun manufactured to fire no more than five shots in succession without having to be reloaded", can be licensed to a dedicated hunter or dedicated sports person, as the present limitation is inhibiting South African Sports persons to compete internationally. * Provision is made to control the brokering of firearms. The draft Firearms Control Amendment Bill is available on the South African Police Service (SAPS). website http://www.saps.org.za Comments on the Bill can be submitted on or before 31 March 2006, to the following address: Director P Van Vuuren Legal Services: SAPS Private Bag X 302 Pretoria 0001 Email: Pikkie1@webmail.co.za Fax: (012) 309
3333 Issued by: Department of Safety and Security 27 February 2006
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| Renewal Dates Extended | |||||||||
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Ministry for Safety and Security Press Statement for Immediate Release 21 February 2006 During December 2005, the Minister for Safety and Security Charles Nqakula extended the 31 December 2005 cut-off date for relicensing of firearms licences issued under the repealed Arms and Ammunition Act, 1969, to persons born between 1 January and 31 March of any particular year. The date was extended until 31 March 2006. At the last Firearms Consultative Forum between the Minister and stakeholders, an appeal was made to the Minister to extend the 31 December cut-off date also in respect of the consecutive years (2007-2008) to 31 March of each year. The Minister, at the meeting, agreed to the request and indicated that a Notice to that effect would be published in the Government Gazette. That Notice was published in the Gazette Monday, 20 February 2006. Therefore cut-off dates for relicensing of licenses issued under the Arms and Ammunition Act, 1969, are now as follows: Date of birth: 1 January - 31 March Firearms licenses issued under the repealed Arms and Ammunition Act, 1969, will cease to be valid on 30 June 2009. For more information please call Trevor Bloem @ 082 778 3561 or Hangwani Mulaudzi @ 082 555 3505
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| Renewal Extension | |||||||||
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15 December 2005 MEDIA STATEMENT BY THE MINISTER FOR SAFETY AND SECURITY ON THE FIREARMS CONTROL ACT, 2000 The Minister for Safety and Security, Charles Nqakula, today announced the extension for the application of renewal of firearms licences for people born between 1st January and 31st March. Explaining the reasons for the extension the Minister said, "I have received representations for the extension of the said date, and I believe that there are numerous persons who still wish to renew their licences but would not be able to do so before 31 December 2005. "I have accordingly signed today, a Notice for publication in the Gazette, in terms of which the date is extended with three months until 31 March 2006," Nqakula said. Discussions were held by the South African Police Service and the National Prosecuting Authority on the validity of licences issued under the Arms and Ammunition Act, 1969, and especially in cases where a person would fail to apply for the renewal of a licence. There is consensus that the position in this regard is as follows: Any licence which was issued in terms of the Arms and Ammunition Act, 1969, and which was valid immediately before the date of the commencement of the Firearms Control Act, 2000, remains valid for a period of five years from the date on which the Firearms Control Act, 2000, came into operation (1 July 2004), unless such licence is terminated, cancelled or surrendered in terms of the Firearms Control Act, 2000. The holder of a licence to possess a firearm in terms of the Arms and Ammunition Act, 1969, must, before 1 July 2009, in a lawful manner dispose of any firearms in his or her possession in excess of the number that he or she may lawfully possess in terms of the Firearms Control Act, 2000. Any person who was obliged to apply for his or her licence by a date determined by the minister, and who fails to so apply, and applies after such date for renewal, might be liable for prosecution for such failure, depending on the circumstances of such failure. Such prosecution will however, be restricted to the failure to renew the licence within the stipulated period, and not for the illegal possession of a firearm. A person who does not apply for renewal of a licence within the period determined, because he or she wants to legally dispose of the firearm in question, may be legally in possession of such firearms until 30 June 2009. After that date a person who has not applied for renewal of the licence and has not disposed of the firearm may be prosecuted for the illegal possession of a firearm. Licence holders who wish to terminate or cancel their licences by for example selling the firearm or surrendering it to the South African Police Service, may do so until 1 July 2009. The other time-frames determined for renewal of licences issued under the Arms and Ammunition Act, 1969, still apply.
For more information please call: See also SAGA Year End Message for comment
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| Gazette Update | |||||||||
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29 September 2005 After many complaints and submissions, the Minister has published a Gazette that states that people not able (for specific listed reasons), to apply to renew their firearm licences within the prescribed time, may do so subject to their application being lodged before 31 December 2008.
Notice in terms of Item 11(1)(a) of Schedule 1 to the Firearms Control Act, 2000 (Act No. 60 of 2000) I, Charles Nqakula, Minister for Safety and Security hereby determine in terms of Item 11(1)(a) of Schedule 1 to the Firearms Control Act, 2000 (Act No. 60 of 2000), the period within which a natural person who is subjected to the circumstances provided for in the Schedule and who is the holder of a licence, permit, certificate or authorization in terms of the Arms and Ammunition Act, 1969 (Act No. 75 of 1969), must apply for a licence, permit, certificate or authorization in terms of the Firearms Control Act, 2000 as set out in the Schedule. Signed: C NQAKULA SCHEDULE A natural person who - (a) is the holder of any licence, permit, certificate or authorization to possess a firearm, which was issued in terms of the Arms and Ammunition Act, 1969 and which was valid immediately before 1 July 2004; and (b) is able to prove to the satisfaction of
the Registrar that he or she was, for the applicable period provided for
in Government Notice R.974 dated 20 August 2004, due to - unable to lodge an application as provided for in the said Government Notice, must, subject to the provisions of Item (11)(1)(c), apply for the corresponding licence, permit, certificate or authorization in terms of the Firearms Control Act, 2000, within the renewal period of 90 days after he or she, as the case may be - (a) returns to the Republic; or
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| UFFSA Meeting with CFR | |||||||||
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24 June 2005 SAGA
QUERIES PRESENTED TO DIRECTOR BOTHMA OF THE CFR 1.
Obtaining of record of Section 102 enquiries for appeal purposes.
Does the Promotion of Access to Information Act 2 of 2000 apply or
not? What is the procedure
for obtaining a copy of the record. 2.
How is the CFR database going to be updated e.g. 12 gauge shotgun 114607
when firearm is in fact a self loading rifle. 3.
What is the policy going to be in respect of the issuing of import permits
for arms or ammunition where the import permit was originally issued but
it expires before arrival of the goods into the Republic. 4.
What is the policy concerning the granting of licences where a criminal
conviction exists taking into account Section 9(2)(f).
What will the position be where a person has a criminal conviction
but has previously been granted a licence under the old Act.
Numerous examples have been given where a person was granted a
licence and subsequently was refused a licence as a result of criminal
conviction that existed at the time of the granting of prior licences –
example available. 5.
Confusion surrounding renewal of licences versus new licences.
The police stations are confused as to what certificate is required
for what purpose and DFOs are unsure as to when they should accept a
training provider certificate as opposed to a Poslec-Seta certificate. 6.
What steps are SAPS taking to publicise the renewal process.
The print media is complaining to SAGA that they are not receiving
any information about the renewal process. 7.
Is SAPS going to send out written licence renewal notifications to last
known addresses? 8.
In terms of Section 25 of Act 60 of 2000, licence owners are required to
notify SAPS of a change of circumstance and / or address. We have examples where registered letters were sent to
Central Firearms Registry and the requisite 30 day time period has passed
with acknowledgement of receipt being sent.
What is the correct procedure and why are SAPS not responding? 9.
Clear definition of a collectors theme is required from SAPS because
collectors are being refused licences in circumstances where clearly
themes exist. Examples to be
provided if necessary. 10.
What is the anticipated time, assuming documentation to be correct, for: 11.
What is the anticipated time period that it will take for competency
certificates to be issued assuming documentation to be in order? 12.
What precisely is the difficulty in losing documents at the Central
Firearms Registry? We are
unofficially advised by officials within the Central Firearms Registry
that due to the move from Volkstem Avenue to Silverton, much documentation
is merely being archived and because of a lack of personnel the files are
not filed in order and there is not enough staff to check whether there
are outstanding issues in respect of the files moved. 13.
Why are so many documents being lost, and what can applicants do to ensure
that this does not happen? 14.
What is the anticipated average time period for an accreditation to take
place assuming everything is in order? 15.
Why is there a difference in time periods between when an application
(under the old Act) is lodged at a police station, and when according to
the SAPS 301 it was received at the CFR?
Some of these time periods exceed 6 months. 16.
Will it be policy that if a person has had a firearm stolen, and even if
there was no criminal investigation or charges that that person must
provide a letter from the investigating officer confirming there was no
negligence in the loss of the firearm. 17.
What will the position be in respect of a person who is charged with the
negligent loss of a firearm but the charges were withdrawn or such person
was acquitted? 18.
We have received numerous complaints about Linden police station from the
capability of the designated firearm officer down to the fact that there
is insufficient physical space for the official’s to conduct their work
activities. 19.
How do we assist in improving the quality of service delivery from Linden
police station? SAFEKEEPING
REGULATIONS 20.
We have received complaints from persons who have heavy freestanding safes
that cannot be lifted other than by mechanical means that SAPS have
insisted that the safe be bolted in, and if it not possible to be bolted
that a smaller more vulnerable handgun safe be installed.
Why are SAPS not aware of Regulation 86(8) and why is it not being
applied? 21.
How are licences going to be issued for business purposes and what is the
expected time period. 22.
There remains confusion about the ammunition limitations.
When will SAPS issue an instructions to DFOs as to how to interpret
and implement the ammunition limitation.? 23.
We have numerous examples of where persons have attempted to correct
information on the CFR computer, such as the stolen or sold firearms or
cancelled licences and SAPS standard response is they will not change the
information and it is the responsibility of the alleged licence holder to
be responsible for a firearm that they do not have. How does one change information on the SAPS computer? SECTION
102 ENQUIRIES 24.
DFOs do not understand that an affidavit, without being proven and
confirmed by the deponent thereto, does not constitute evidence as
challenged. Furthermore, DFOs
are accepting the contents of affidavits without them being challenged or
proven and are declaring people unfit in these circumstances.
Have SAPS officials been trained in respect of the onus of proof
and if so, how have they been trained to interpret and apply the use of an
affidavit. Yours
sincerely Read
in conjunction with SAGA News,
August 2005 taken from Magnum magazine for an update on
activities.
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| Gazettes Update | |||||||||
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13 May 2005 The Government Printer have only the Regulations gazettes in stock. SAGA is following-up on a reprint of the Act and Amendment Act. The Regulations can be ordered at R5
each from:
(1) Firearms Control Act - Gazette No. 22214 You can also access the gazettes electronically from the links below.
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| Meeting with the Minister | |||||||||
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A meeting took place between SAGA representatives and the Minister for Safety and Security at the Minister's office in Cape Town on Thursday 19 August 2004. This meeting followed from the television debate between Martin Hood and the Minister on Interface at the beginning of July. The intended purpose of the meeting was to advise the Minister of the numerous problems, both big and small, that have arisen from the implementation of the Firearms Control Act and to provide suggested solutions. The Minister received our representatives in a cordial fashion and the meeting took place in an atmosphere of openness and frankness. It was decided that the Minister will form the Consultative Committee referred to in Section 132 of the Act as a matter of urgency. This committee will involve all stakeholders to identify problems and to formulate proposed solutions. The Minister regarded the situation as urgent and we expect more developments shortly.
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| Breaking News | |||||||||
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30 June 2004 16:30 The Pretoria High Court today dismissed our application for an urgent interdict to halt the implementation of the Firearms Control Act. It will thus be in force from midnight tonight. Although
the firearm fraternity can take some comfort from certain verbal and
written assurances from the SAPS, such as the attached Press Release from
Senior Superintendent Andrew Lesch, those who have ammunition in excess of
the new limits and those in possession of firearm parts that now have to
be licensed, should take steps to protect themselves from prosecution by
applying, in writing, for the necessary exemption and/or licence. We are considering our options and strategies and will try to issue a more comprehensive statement in the near future.
MEDIA STATEMENT BY THE SAPS DIVISIONAL COMMISSIONER, CRIME PREVENTION :
DIVISIONAL COMMISSIONER WILSON MAKHUBELA : 27 June 2004 STATEMENT
REGARDING THE IMPLEMENTATION OF THE FIREARMS CONTROL ACT, 2000 - ACT 60 OF
2000 The
Minister for Safety and Security has announced that the Firearms Control
legislation will be implemented on 1 July 2004. The
South African Police Service has been preparing for the implementation of
the Firearms Control Act and Regulations and I am convinced that we are
able and ready to implement the Act. The preparation for the I
want to set the record straight by providing the correct information on
the implementation of the Firearms Control legislation. *
All licences, permits and authorisations issued to possess a
firearm in terms of the Arms and Ammunition Act that are valid on 30 June
2004 will remain valid until they are renewed in terms of the Firearms
Control Act, 2000 unless they are withdrawn for any legal reason. From
1 July this year all new applications for a firearm licence will be
evaluated in terms of the provisions of the Firearms Control Act and
Regulations. Every person who applies for a firearm licence will have to
obtain a competency certificate, the person must first complete a basic
training course at an accredited training institution, after which the
SAPS will complete a background assessment and issue a competency
certificate to a successful applicant. A competency certificate will be
valid for a period of five years from the date of issue. In
terms of the Firearms Control Act, 2000, all existing firearm licences
will have to be renewed. The South African Police Service will call up
persons to renew their firearm licences that were issued in terms of the Arms
and Ammunition Act by end of 2004. Individuals will have to renew their
current firearm licences according to schedule, which is linked to a
person's month of birth as indicated below; Date
of birth Renewal period All
institutions that own firearms, including security service providers, will
be called up to renew their firearm licences from 1 July 2006 to 31
December 2006. It is important to take note that companies may continue to
issue company firearms to employees who do not have a competency
certificate under the following conditions; *
As long as the firearms are licenced in terms of the Arms and
Ammunition Act Enquiries
: Snr. Supt. Andrew Lesch, 082 779 8710 |
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| Current Update | |||||||||
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3 July 2004 The SAPS have updated their website and have now included a number of the forms and instructions (pdf files) CLICK HERE |
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| New Legislation | |||||||||
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List of New Legislation Firearms Control Act No. 60 of 2000 Firearms Control Amendment Act Regulations to the Firearms Control Act Proclamation: Commencement of the Firearms Control Act Notice of Renewal Periods for licences, permits, certificates and authorisations Notice: Firearm-free zones for schools and learning institutions Compulsory Specification for Small Arms Shooting Ranges Commencement of certain sections of the Firearms Control Act Accreditation Regulations Licence Fee Changes and Deregulation of Airguns
Some of the legislation is also available from the
government website in pdf format (see links).
Firearms Control Amendment Act No. 43 of 2003 Click
Here
Regulations to the Firearms Control Act Click HERE
to download the Regulation Gazette in
English (pdf file) Proclamation: Commencement of the
Firearms Control Act Notice of Renewal Periods for licences,
permits, certificates and authorisations Compulsory Specification for Small Arms Shooting Ranges
Notice: Firearm-free Zones for schools and
learning institutions (updated 30/6/04)
Commencement of certain sections of the
Firearms Control Act CLICK
HERE Accreditation Regulations CLICK
HERE Licence Fee Changes and Deregulation of Airguns
CLICK HERE Printed copies of some of the legislation can be obtained at a cost of R5.00 per copy from the Government Printing Works in Pretoria on telephone (012) 334-4507, 334-4510, 334-4509 or in Cape Town on telephone (021) 465-7531. |
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| Legislation Updates | |||||||||
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Proclamation: Commencement of the Firearms Control Act 28 May 2004 In terms of section 154 of the Firearms
Control Act, 2000 (Act No. 60 of 2000), I hereby determine 1 July 2004 as
the date on which all the remaining sections of the said Act, which have
not yet been put into operation, shall come into operation. Notice of Renewal Periods for licences,
permits, certificates and authorisations Main extracts: 1. Existing licence to possess a firearm 1
January to 31 March
1 January 2005 to 31 December 2005 (b) A juristic person who is a holder of any licence to possess a firearm, which was issued in terms of the Arms and Ammunition Act, 1969 and which was valid immediately before 1 July 2004, must apply for the corresponding licence in terms of the Firearms Control Act, 2000, within the period 1 January 2006 until 31 December 2006. 6. Certain existing authorisations and
permits Compulsory Specification for Small Arms Shooting Ranges Firearm-Free Zones at Schools and
Learning Institutions Government Gazette No. 26472, dated 18 June 2004 contains a notice of extension for comment on Firearm-Free Zones: Notice is hereby given that the date for comment on the Minister for Safety and Security's intention to declare all schools and learning institutions as firearm-free zones in terms of section 140 of the Firearms Control Act, 2000 (Act No.60 of 2000), which was published in Government Gazette No. 26305 of 7 May 2004 (Notice No. 749), is extended until 31 August 2004. Notice: 7 May 2004 The Minister hereby gives notice of his intention to declare all schools and other learning institutions, including institutions for higher education and Universities, as firearm-free zones, in terms of section 140 of the Firearms Control Act, 2000. The consequences of the declaration of a
firearm-free zone are, that without authorization of the Minister, no
person may - Any interested or affected party or person,
and the public in general, is invited to comment on the Minister's
intention to declare all schools and learning institutions as firearm-free
zones in terms of section 140 of the Firearms Control Act, 2000. Comments must be received not later than 18 June 2004. |
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| Legislation in Parliament | |||||||||
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Access to Parliamentary Committee information is made possible by the Parliamentary Monitoring Group (PMG) free of charge on their website at www.pmg.org.za Please note: these minutes are not 'official' or verbatim but do provide a record of the meetings. PMG Minutes on Firearms: Security
& Constitutional Affairs Public Accounts South African Police Service: hearing – 30 Oct 2002 Safety & Security |
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| Legislation Archive | |||||||||
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To view SAGA involvement in the firearm legislation please CLICK HERE To view the old Arms and Ammunition Act No. 75 of 1969 CLICK HERE
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