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SAGA Bulletin |
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Taken from Magnum Magazine |
Contents:
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| August 2008 | |
In Conflict with 'The Law'? By Martin Hood Shock! Horror! You've just opened your concealed handgun safe and found that your Colt Government Model is not where you thought it was. A frantic search through your main safe and where ever else you might have stored/hidden it turns up negative. You know that 'losing' a firearm is a very serious offence, so good citizen that you are (or try to be), you take yourself down to the SAPS to confess your sins. Wrong. Especially when in a state of (mild?) panic. Settle down and think before making a sworn statement of any kind. Let me explain. Section 120 of the Firearms Control Act specifies that it is an offence to lose a firearm or have it stolen from you while it was not on your person, directly under your control, or in a locked safe. To an ordinary SAPS member, this strict (literal) interpretation of the Act means just that - you have committed a serious offence and he will happily accept your 'admission of guilt' which can lead to a criminal conviction and a declaration of unfitness. However, it isn't necessarily so. There is a broader view and many prosecutors will acknowledge this and withdraw charges if an attorney draws this fact to their attention. The standard approach of the police is incorrect. I've dealt with this previously, but the principle is that a self-incriminating statement cannot be used against you - unless you were warned of your rights before making that statement and you were aware that such a statement could incriminate you. The right against self-incrimination is a constitutionally enshrined right. Unthinking (or undertrained) police officers and some prosecutors however, inadvertently or deliberately, overlook this fact. So, before you report a firearm lost, stolen or destroyed, obtain legal advice on the wording of your statement. More important is the police and prosecutorial interpretation of Section 120(8). Strict liability or a strict interpretation of legislation - unless specifically provided for in such legislation - has no place in South African law and the following principles apply. The current wording of Section 120(8) is very similar to the old Act, and section 120(8)(b)(2) of the Act itself acknowledges the requirement of reasonableness - this requirement is almost always overlooked or 'forgotten' by the police. The effect of the reasonableness requirement however radically changes a person's potential guilt. Some examples of cases dealt with in terms of the old Act (Arms & Ammunitions Act 75 of 1969) may suffice and here I will use the cases of State vs Robson, State vs Hattingh, and State vs de Klerk. In the de Klerk case, the firearm was locked in a car. Due to the specific circumstances, the presiding High Court Judge ruled that locking a firearm in a car in such circumstances was not unreasonable and de Klerk was therefore found not guilty of the negligent loss of a firearm. It follows that - although it is not to be encouraged - the practice of locking a firearm in a car may not constitute an offence. So, do not plead guilty to an offence before obtaining proper advice. The other two cases also provide interesting reading. In one case the accused put his firearm in his briefcase in his own office, put the briefcase into a drawer, and locked his office. The firearm was stolen but he was found not guilty because his steps were found to be reasonable in the circumstances. In the other case the accused, who worked in an open workshop, in full view of his workmates, placed his firearm into his lunch box and closed it but did not lock it. His firearm was stolen and he was deemed to be negligent and convicted accordingly. The principle is that you are not automatically guilty if you lose a firearm or if it is stolen or destroyed. Your innocence or guilt must be assessed in terms of the prevailing circumstances and whatever facts the State can prove against you. The same applies if your safe keys are used by an unauthorised person to gain access to a safe and remove firearms. Charges have been withdrawn after representations were made to the prosecution showing that the keys were hidden where no one had a 'reasonable' chance of finding them. The keys were found and firearms were stolen by a trusted member of the household or an employee. The prosecution deemed the actions of the accused to be reasonable - in such circumstances. So please be aware of your right to legal advice and do not plead guilty to an offence in terms of Section 120(8) before you obtain such advice. A section 102 enquiry is an administrative enquiry set up to determine your fitness to possess firearms. Your rights in such an enquiry are contained in Section 102(3). I have had a number of cases that make me believe the procedure adopted by the SAPS is a deliberate one but it is incorrect. The person subject to such an enquiry has the (very important) right to request the Registrar to call any person who made a statement to appear before the Registrar to be cross-examined to test the evidence he/she may have given in the statement. However, the police seem to believe that all that is necessary to institute a Section 102 enquiry is a sworn statement to the effect that a person is inclined to violence or abuses drugs or alcohol, or is a danger to himself or a third person, or a final protection order in terms of the Domestic Violence Act has been granted against him, or has failed to take the prescribed steps for the safekeeping of a firearm, or has provided misleading information to the police. If they receive a statement containing any of the above allegations, the police can and generally do institute a Section 102 enquiry and then have a discretion to declare a person 'unfit to possess' which has enormous ramifications for a firearm owner. Although guidelines are provided in the Act, it has been my experience that the police accept the contents of affidavits - without calling on its maker to confirm the facts - and more seriously, without allowing the 'accused' the fundamental legal right to challenge their accuser and cross-examine him/her. The police then give more weight to such statements than to the oral evidence of the 'accused' who is present at the enquiry and who is subject to the enquiry. This is a complete misunderstanding and misapplication of the law of evidence. We have a principle in our law that the best evidence is oral evidence tested under cross-examination - any other forms of evidence are, generally speaking, regarded as lacking the evidentiary weight of tested oral evidence. I have had examples of section 102 enquiries where a person was declared unfit when the record was not a certified record and did not accurately reflect the evidence of the witness. 'Evidence' that was not specifically intended for a Section 102 enquiry (typically affidavits given in domestic violence matters) is frequently used by the police despite the fact that the complaint had already been dismissed by the court. The police are obliged to consider all 'evidence' submitted but must allow a person (the 'accused'?) reasonable opportunity to advance reasons why they should not be declared unfit. The enquiry must give due thought to the matter and must be satisfied that the person is indeed unfit before so deciding. It seems to me however, that the police are too quick to declare a person unfit and simply accept such affidavits without due regard to the rights of the 'accused'. This is extremely problematic because the Appeal Board is not sympathetic to procedural irregularities. It is extremely difficult to obtain a proper record of proceedings in Section 102 enquiries because the police do not keep a proper record even though the law obliges them to do so. I have a case on hand where a Superintendent indicated that an enquiry was held in the absence of a person (which is not provided for in the current form of the Act) and proceeded to declare the person unfit. There is no record of the proceedings and it is quite clear that an enquiry was not conducted. (You would like to think that the SAPS would do the 'right thing' and dismiss this particular officer for reasons of dishonesty. I am not holding my breath.) Unfortunately the probability is that persons subjected to a Section 102 enquiry will be declared unfit. In the circumstances prevailing at present, it is critical that you insist that a proper record of proceedings be kept - if possible record such proceedings for yourself. Try to obtain legal representation - an attorney or advocate is more able to insist that the SAPS adhere to proper procedures. The reality of the situation is that an ordinary member of the SAPS is not equipped to properly exercise the discretion granted him in terms of the Act and is not equipped with the relevant training and understanding to apply the legal principles necessary justly to enforce the provisions of the FCA. I am also of the view, that Section 102 enquiries may be declared unconstitutional because they allow a legally untrained person to alter the legal status of a person. This power to declare a person unfit and change their status is a power that normally only a High Court has jurisdiction to exercise.
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| July 2008 | |
Further Education & Training By Martin Hood No, I won't be talking about any formal FET courses, this is about some of life's lessons - courtesy of continuing interaction with the courts, the Central Firearms Registry (CFR), the Firearms Appeal Board and, if space permits, Gauteng's Metro police. Let's start with the problems of a law-abiding licensed firearm owner I'll call 'Mr Jones' who in all innocence went along to his local DFO (Designated Firearms Officer) to renew the licences for his five firearms - two handguns, one rifle, and two shotguns. Somewhat unusually, the station accepted his applications (and the fees) and forwarded the applications to Pre-toria. I said 'somewhat unusually' because DFOs are not inclined to accept applications for an 'excessive' number of firearms. Most would have said, "You can't have two handguns, get rid of one" or as Mr Jones did not have 'dedicated' status, "You can't have two shotguns, which one do you want to renew?". Or, even "You can apply to renew one handgun, one rifle and one shotgun". Of course, had the DFO tried to block one or two of the applications, Mr Jones would have been well within his rights to insist that the DFO does not have the authority to "refuse to accept". Anyway, when the renewals reached Pretoria the CFR approved four of the five and refused one. Naturally, they just had to choose the one Mr Jones valued most highly - one of the two shotguns. Being well qualified and in good standing with his association, Mr Jones was quickly granted dedicated status and asked the Appeal Board to review his renewal application as his new status allowed for him to have the second shotgun. The Act allows the Appeal Board the discretion to accept 'new evidence'. The Appeal Board declined the appeal on the basis that Mr Jones did not qualify for a second shotgun licence at the time that he applied and that they could not now remedy his lack of qualification. We can draw two conclusions from this. The first is that the Appeal Board took an extremely narrow approach. Their reasoning cannot be criticized on legal grounds as it is technically correct. However, given the 'right' attitude, the Appeal Board could quite easily have condoned his late acquisition of status and approved the application. This tells us at least two things. The Appeal Board will not come to the assistance of a deserving Appellant and that it will look for reasons not to allow a licence rather than taking a broader view and applying the principles of the Constitution, particularly those that protect private property and demand administrative justice. Those readers who have until March 2009 to renew their existing licences must learn from this. As far as is humanly possible, comply with every letter of the law. Do not expect the SAPS to actually help you to renew your licence/s. Some service members probably will, but if you are serious about your guns, you cannot rely on getting sympathetic attention. And, do not wait until the last minute rush, that's when mistakes are so easily made. In terms of our Constitution, both the SAPS and the Appeal Board are supposed to be guided by publically available policies when making decisions that affect citizens. Such a document would be of great use to all current and potential firearm owners - and smooth the process for all concerned. Despite our best efforts, we have been unable to acquire a copy. Could it be that the SAPS is acting in breach of the Constitution? In the Johannesburg High Court last year, Acting Justice Horwitz issued a judgment ruling that if you dispute receipt of the summons, the Criminal Procedure Act does not allow you to remain under arrest for a traffic fine. The principle is very simple and came about as a consequence of the Plaintiff summonsing the Metro Police for unlawful arrest. He was successful in his action for damages. Despite this, the Metro police are still arresting motorists picked up by their very sophisticated road block system - a photograph of your number plate is relayed to a central database and a siren automat-ically sounds off if you have outstanding fines. It's just about instant and it's amazing to watch them pick on soft targets. It happened to me - a summons had been 'served' on a domestic worker and hadn't been passed on to me. I brought the judgment to the attention of the officers, I disputed receipt of the summons, and asked if I could please go. To paraphrase their response, they said they don't know about the judgment and they don't care about it. What do you do? Resist arrest and get manhandled or shot? Submit to the arrest, spend the weekend in an over-crowded cell, and hope to get out in condition to sue? (I won't go into the potential hazards of such a weekend.) Credit cards are accepted. This shockingly intimidatory tactic must be roundly condemned. (I cannot prove it, but I am almost certain that those law 'enforcement' officers had knowledge of that judgement and weren't going to let it get in their way.) The Professional Hunters Association
(PHASA) recently held its second Wildlife Heritage Gala Evening to raise
funds for the Southern Africa Wildlife College. The college, a
non-profit organisation that trains natural resource managers from all
over the SADC, has been doing a sterling job for the past 10 years but
has a constant battle to fund its activities. Enter PHASA's 'Black Tie'
Gala Evening. The event, MCed by the very humorous Peter Ndoro, was a
resounding success. Two students, Giyani Mngomezulu and Alistone Mwanza,
spoke on the activities that they are involved with in Zambia and it was
heartening to see their dedication to wildlife conservation. The more
such students the college can produce, the better - for the wildlife,
the environment and the future for hunting.
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| June 2008 | |
Duty-bound to Serve and Protect? By Martin Hood With the third tranche just completed, a few observations about the latest round of the relicensing process. Feedback that I and the SAGA office have received is that citizens and police officers are generally better informed but the usual last-minute rush was again characterized by long queues and some short tempers arising therefrom. It is clear that the police are not equipped to deal with the number of applicants they expected. That people, the world over, tend to leave everything until the last possible moment (particularly something as unpalatable and cumbersome as this firearm licence renewal procedure) should have come as no surprise. In places people had to queue for up to 12 hours - some gave up in desperation, and some others eventually found that they were in the wrong queue or at the wrong police station. (The atmosphere in the queues was very unlike that evident in a 'voluntary' queue for, say, concert or test match tickets.) Although few Magnum readers see any real need for the new Firearms Control Act, or like the convoluted regulations and attendant hassles/costs, as law-abiding citizens we have no option but to jump through the hoops that seem custom-made to discourage firearm ownership. In other words, reapply for your licences - and do it in good time. On this year's cut-off day (31 March), I made the point that this process is a contract between firearm owners and the police. The police require us to re-apply within the specified time, then we can require the police to process our applications promptly and efficiently. Fair is fair. In fact the law, in the shape of the Promotion of Administrative Justice Act, requires (demands?) that the SAPS (and all organs of state) perform their duties expeditiously. Even if one accepts that the relicensing process is necessary (which I don't) we have to ask ourselves what is the point of the police taking in all this mass of paperwork and simply not being able to process it within a reasonable time thereafter? Harassment of firearm owners perhaps? I know of police stations where applications have not moved an inch in over two years. Similar cases are regularly brought to my attention. (A senior member of the service once suggested that it should be a criminal offence for a police officer not to deliver speedy service. Many a true word is spoken in jest... we concluded that there would be very few policemen on the ground if this became law.) I am now receiving notifications that appeals that I lodged on behalf of clients in 2004 were successful. Such delays are simply intolerable and are just one indicatorthat our public administration is in very poor shape. Ordinary firearm owners with existing licences are comparatively 'lucky' - the very handing in of your renewal application extends the validity of that licence until a decision is made. This 'concession' constitutes an admission by the SAPS that they are in no position to cope with their (self-imposed) workload. Strange how I felt compelled to say 'lucky'. Lucky has become a comparative term; as in 'lucky' the hijacker took 'only' your bakkie and not your life. Applicants for social grants are not so 'lucky'; they do not get the grant before the decision is made. A mining company cannot open a new mine until permission is given. For just about every 'economic activity' you need at least one permit, licence or other authorization - each stage is an 'opportunity' for bribery and corruption, each delay adds to the cost of doing business, employing staff, investing in assets... Slow administrative action is hugely detrimental to the economic good health of this country. Why then does this waste of time, this hidden cost, this huge factor in our much debated inflation rate not make the headlines more often? I don't think it was touched on in the 'State of the Nation' address; or in a Monetary Policy Committee reasoning for an(other) increase in the interest rate. Within our ambit, the non-delivery of service to the security and hunting industries is a startling example. During the hearings on the Act, the parliamentary portfolio committee instructed Director Bothma to ensure that business applications were processed promptly so that the security industry was not hindered in the performance of its services. What happened? Security companies are not getting licences. Central Firearms Registry requirements make the obtaining of licences difficult and time-consuming. The straw that breaks the camel's back is that the number of licences a security company may obtain is linked to the number of its employees who have valid competency certificates. Sounds reasonable, doesn't it? The process breaks down because the SAPS can't process the applications for competency certificates quickly enough. I am given to understand that, in order to properly serve their clients, security companies are forced to break the law by issuing firearms to competent staff who are not yet certified. This unacceptable practice cannot be condoned. The police who are supposed to be the upholders of the law, through their administrative procedures, are for-cing business to break the law in order to perform the function of the police in protecting citizens. Ironic isn't it? The security industry should ask the courts to force the police to process 'business licences' quickly and in accordance with a disclosed set of rational policy guidelines. The SAPS are getting away with murder (so to speak). They are simply ignoring the fact that they are obliged to perform their functions within a reasonable time and in accordance with established guidelines and policies that are accessible to the public. We need to enforce our rights, not only to ensure fair treatment, but to show the courts and government that the processes of the Firearms Control Act do not work and need to be reviewed. At the same time somebody should budget sufficient time and money to educate our police officers - specifically on the requirements and consequences of the Firearms Control Act. East Coast Radio played a recording of the spokesperson for the Western Cape's designated firearm officer in which he clearly said (threatened/warned?) that if you did not apply to re-licence your firearms, your licences would be cancelled. This statement intimidated many firearm owners into believing that - because they had broken the law - they had to surrender their firearms. I have no idea whether this misstatement and misrepresentation was intentional or a simple display of ignorance, but disciplinary action should be taken against any senior policeman who makes such a wrong and misleading statement. The fact of the matter is that, as the SAPS is the statutory authority charged with enforcing our laws, it should be accountable to any persons who surrendered firearms in the mistaken belief that they had to do so. This was not an isolated example. In a national radio advert the SAPS stated that people had until 31 March to "renew permits, licences or authorisations". This statement was also incorrect - the time period to renew permits and authorisations had already passed when the advert was aired. The requirements for the renewal of permits and authorisations are different to those for licence renewals. Clearly confusion reigns. Think carefully about this: renewing a licence is relatively easy compared to obtaining a new firearm licence. There is both a reason and a purpose for this. The reason is that an outright ban on the private ownership of firearms would have been very difficult, if not impossible, to push through parliament in the circumstances prevailing at the time (1997-2000?). The Firearms Control Act could be prompted as 'reasonable and non-draconian'. The purpose is to make legal firearm ownership as difficult as possible for new entrants to the self-defence, sport shooting and hunting markets. As current owners grow weary of the hassle and cost of relicensing and/or emigrate and grow older and move on to the happy hunting grounds, 'they' hope there will be fewer and fewer firearm owners to object to more and more onerous restrictions. We must not be intimidated into accepting the unacceptable. We must encourage people to enter the shooting world and help them to obtain however many licences they need to engage in whatever legitimate shooting activity they choose. My young son, aged eight, who has accompanied me on many a hunt, came along on his first organized pigeon shoot recently. Towards the end of the shoot, he casually shot two pigeons with a .410 shotgun... surprising me and ratcheting up his interest in becoming a regular 'next generation' wingshooter. (Another thorn in the flesh of the busybodies who keep on trying to impose their wishes on others?) I make this point because we should all be introducing youngsters (our own and as many others as you can manage) to our sports and thus to the discipline and independence they inspire. Without us encouraging the next generation, there will be no next generation of shooters, sportsmen and hunters.
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| April 2008 | |
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PART ONE What's not a 'Dangerous Weapon'? In Government Gazette No. 20717 dated 1 February 2008, the SA Police Services published a "Notice for Public Comments" bringing to our attention their draft proposals for regulations to be implemented in terms of the Dangerous Weapons Act 71 of 1968. Schedule 1 of the proposals is quite a long list of "objects, which are in the opinion of the minister, dangerous weapons." I can do no better than to quote from an article in The Star (27 February) headlined "Sweeping weapons ban will leave women defenceless" which reported "Director Selby Bokaba, spokesperson for SAPS legal services said the prohibitions (my emphasis) in the notice amounted to "basically anything that is not a firearm that could cause some kind of harm". (In terms of the Act "'dangerous weapon' means any object, other than a firearm, which is likely to cause serious bodily injury if it were used to commit an assault.") Legislation as sweeping and ill-defined such as the proposed regulations are shocking, unconstitutional, virtually impossible to implement, and most importantly, are subject to abuse by police officers who have not been properly trained either in the legislation or in the proper exercise of the discretion granted them under protection of the Act. Proposals such as these are a recipe for disaster in our current context of a lack of training and a surplus of corruption. Given ample room for discretion, we can expect policemen to take a simplistic approach to "anything that can do any kind of harm" and weapons as dangerous as BB guns and walking sticks will be prohibited in public places as well as, in certain circumstances, for manufacture and transfer. In addition to this the sale of a knife with a blade exceeding 10cm in length is subject to certain restrictions as to the age of the purchaser, where the knife can be purchased and the sale of all such knives will now have to be 'registered'. We are given to understand that some of the prime motivators behind the Firearms Control Act have been involved in these proposals. A brief analysis of the proposed regulations should be available on SAGA's web site by the time you read this. The full notice and contact details for your objections/suggestions/improvements will also be there. Although the first cut-off date (14 March) will have passed, various parties have applied for the date to be extended and we have been told that, within limits, the SAPS will welcome reasoned representations. As responsible citizens, it is up to all of us to point out the pitfalls and recommend alternatives to ensure that the next draft of these proposals contains realistic regulations which can be efficiently implemented - without impinging on the rights and justifiable expectations of ordinary law-abiding citizens and businessmen. At present it is a little difficult to understand what the proposed regulations are designed to achieve. As the wording stands, you could be facing a charge with penalties of a fine or up to two year's imprisonment, because you were in possession of a dangerous weapon namely a breadknife, a brick, a bottle... (anything that could be used to harm or threaten another person) in a public place (waiting for a minibus taxi, riding in that taxi, walking towards your car in a parking lot with your newly purchased boning knife, pepper spray, assegai...). SAGA has joined what is provisionally known as the "Blade, Tool & Sports Goods Forum" which is being made up of a broad cross-section of interest groups to examine the implications, and practical effects, of the proposed regulations and to provide the State with an objective analysis thereof and propose improvements that will make such regulations acceptable to government and citizen alike. Some of the founder members are Cold Steel Inc (a major American knife manufacturer), Ramrod, Cutlery Distribution Group (best known to readers as Sharp Edge), SAGA, Magnum, many of Magnum's current advertisers, as well as parts of the retail industry, particularly hardware and homeware stores. It is up to us to advise the broader
public of these proposals and it is up to us to prevent ill-considered
legislation from going any further than the proposal stage. We must
however, at this stage be constructive in our criticism which will be
logical and reasoned. Unfortunately we do not always enjoy the same
treatment at the hands of (over-zealous?) policemen - as the following
story illustrates. A German film making company had arranged to make a
film in Cape Town that required the use of deactivated and imitation
firearms as props. For fairly obvious reasons, 'real' firearms are
seldom used in films. I am however, advised that four out of five films
made in South Africa require firearm props. The courier company tasked
with sending the 'firearm' props to Cape Town decided to send them by
air, contrary to the instructions of the company that supplies such
items. The props were confiscated at OR Tambo International Airport and
an investigation is pending. This is not the first time that this has
happened, nor will it be the last. And yet another example of why we have to be slow to accept verbal assurances about the letter of the law being applied "with discretion" and that any predictable "unintended consequences" will be of "little consequence" and will not seriously inconvenience anyone. We can take absolutely no comfort from such assurances; we have been given every reason to be on our guard.
PART TWO Trust Misplaced? In the February issue article I highlighted the fact that the SA Police Services were abusing the good faith of 'accredited' associations. I regularly deal with the everyday problems that association members experience in obtaining firearm licences - notwithstanding the so-called 'agreements' their associations have with the SAPS. One example. Although Director Bothma of the Central Firearms Register (CFR) told (promised?) the hunting associations that it would take three months for their members to obtain licences (or be notified that their applications were refused), in an affidavit in a court case he certified this takes a year. No guessing which period is more likely. My February article elicited an (surprisingly?) affirmative response from readers who confirmed that their associations were very reluctant to "rock the boat" by pushing for their members' rights and tackling the CFR head on - in court if necessary. It seems that, when the going gets tough, the mere intimation that one's accreditation could be 'reviewed' can be enough to 'settle' a dispute. I'm not sure about you, but I have words for that, words like 'intimidation' or 'blackmail' or 'victimization' ...all of which are unconstitutional. I can understand such an association's dilemma. Its paid-up members have expecta-tions; but the association is facing the big 'accreditation' stick wielded by Big Brother - a bullying policeman. Yes, I know very well that many police service members strive to deliver good service and who actually assist licence applicants and the various accredited associations. The problem however, is that these individual service members can do little to change the overall attitude of the SAPS. You may recall that SAGA is not an 'accredited association' in terms of the FCA. Our bona fides as an association representing the interests of firearm owners, however, are not in question; we are 'recognized' by various government departments, parliament, the print and electronic media, etc, etc. We did not seek FCA accreditation because we are not the kind of association that can exercise control over its members, and also because we could not in good faith undertake to support the blanket 'non-proliferation' objective of the FCA. This means that we have no vulnerable 'accreditation' that someone can take away (or threaten to take away) at the stroke of a pen. This doesn't mean we are always welcome. For many years now, SAGA has sat on, and made many positive and intelligent contributions to, a technical committee of SA Bureau of Standards. For some reason, early this year we were a week late in responding to a request that we confirm/amend the particulars of our representative - a patently minor oversight. Then, due to other urgent commitments I was unable to attend the first 2008 meeting of that committee. It is not unusual for committee members to miss an occasional meeting. However there was something unusual about this meeting... For reasons which became immediately clear, the SA Police Services put in one of their rare appearances at this meeting. They immediately demanded that because SAGA was not represented on that day that we be struck off the committee roll. They also claimed that because we were not accredited with the SAPS we had no right to serve on this committee in the first place. It seemed that the SAPS expected to get away with this poppycock. That was not going to happen. Some other committee members, mainly the representative of the SA Arms & Ammunition Dealers' Association (SAAADA), forcefully pointed out that the SABS is an independent body and that it and the SAPS have no legal relationship with one another; that accred-itation with the SAPS is not a prerequisite to being represented on a Technical Committee of the SABS and that any interested party or entity that has a stake in the objectives of the committee should be represented. The representative of the SAPS then demanded that Gun Free South Africa be represented. Apart from giving the SAPS a second voice on the committee, it is difficult to imagine what positive contribution or expertise such a representative could bring to the work of the committee. When it comes to fighting for a fair and just Act and the fair and just implementation of that Act, SAGA's strategy has been to select relatively well-defined issues and challenge them, either in our name or in the name of third parties, at the Appeal Board and if necessary in the High Court. We believe that we have a better chance of 'winning' if we take on narrowly defined single issues, especially those of an administrative nature. The Lazarides decision, although not a 'SAGA' case, is a good (and high profile) example of an unfair administrative action being overturned, but there are plenty of others. Like some other attorneys, I have obtained many favourable court orders for clients whose applications have been poorly dealt with by the SAPS/Appeal Board - either by way of lax administration or less-than-thoughtful decision-making. One reason for our selecting administrative issues is the 'assistance' provided by the Promotion of Administrative Justice Act (PAJA). Our courts are becoming increasingly frustrated with the State's inability to comply with its obligations to treat citizens fairly and reasonably. If an administrative shortcoming is placed before a judge, the issue has relatively little to do with firearms, but a great deal to do with the (unjust and inefficient) way the State treats its citizens. The single biggest litigant, for example in the Pretoria High Court, is the State. Organs of State are predominantly being taken to court as defendants or respondents and High Court judges are increasingly aware of the inability (or reluctance) of the State to do what it is supposed to do. Because these administrative-type challenges are not direct attacks on the validity/constitutionality of the Firearms Control Act, they are quicker and less expensive to conclude than multi-faceted matters of principle. However each decision so reached contributes to the build-up of legal precedent which will help us be more certain of what we should expect from the SAPS and in turn tell the SAPS how they should be treating this country's citizens. As we should all know, however, wars are seldom fought on only one front, so SAGA's attention is not focussed entirely on individual, single-issue matters. We regularly survey the field to assess whether taking on other issues (individual, multi-faceted, or class-action) would somehow further our cause (aka your cause) - whether we win or lose in the court of public opinion, the Appeal Board or the Law Courts. Contrary to public perception, judges are very much part of society (quite a few are known to be gun owners, hunters and/or collectors) and each has his/her own set of values. Judges sometimes take 'the easiest [just] way out' simply because a case doesn't warrant an exhaustive examination of all possible 'angles'. Just before completing this article I had a discussion with a colleague who wanted to take the CFR on review for not processing his competency application in nine months. I sympathized with his frustration (so far mine has taken ten months), but he was astounded to hear that the majority of competency applications take longer than a year. This is unacceptable. The only way to force the CFR/SAPS to provide decent service is to carry on taking those officials responsible for processing our applications to court. A judge recently assured me that you can sue the decision-making (or decision-avoiding) individual - in his/her personal capacity - and recover costs from his own pocket. This is particularly so in the case of 'repeat' or 'habitual' offenders.
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| February 2008 | |
Constitutional Imperatives? By Martin Hood South Africa's much-lauded Constitution makes it very clear that the powers of the State are limited - primarily to ensure that all citizens receive fair, equal, impartial... treatment at the hands of the State and officialdom. To 'guarantee' this basic democratic principle, Section 32 (access to information) and Section 33 (administrative justice) were incorporated into the Constitution and the National Assembly was obliged to enact appropriate legislation to give effect to these Sections. And so it is that we now have the 'Promotion of Access to Information Act' (PAIA) and the 'Promotion of Administrat-ive Justice Act' (PAJA). The second is by far the more important, not only for firearm owners, but for all ordinary citizens. In a mythical 'ideal world', neither Act would be necessary because all State officials would be willing and even anxious to be held accountable for their actions; they would bend over backwards to be fair and would happily provide whatever information citizens need. In the 'real world', more often than not, officialdom finds such provisions burdensome, and that citizens' requests for reasoned answers and information are a time-consuming 'nuisance'. Such an attitude towards an 'imposed' duty can make it very difficult for citizens to interact with government departments that think they are doing you a favour by even listening to such requests. The Promotion of Administrative Justice Act is far-reaching in its jurisdiction. It supposedly guarantees citizens 'fair treatment' by the State and, in some circumstances, obliges the State to provide legal assistance to a citizen to enable him to enforce his rights. The principle of PAJA is relatively simple. Any citizen's interaction with the State must be fair, reasonable, objective and transparent. Principles and policy must be consistently applied and everyone will be treated equally - regardless of who we are, our religion, sex, ethnic origin, etc. So much for the high-minded theory - firearm owners are regarded as a class of persons different to everybody else and therefore require 'different' (unequal) treatment. Chapter 10 of the Constitution deals with Public Administration and contains a number of the constitutional imperat-ives our civil service is required to fulfil. I have selected some which are particularly important for firearm owners at present. Hear this: "efficient, economic and effective use of resources must be promoted"; "services must be provided impartially, fairly, equitably and without bias"; "people's needs must be responded to and the public must be encouraged to participate in policy making". The section goes on to state that public administration must be accountable, transparent and information must be provided in good time. Sounds wonderful doesn't it? No wonder our Constitution is so highly praised, worldwide. Unfortunately however, there is a huge gulf between the spirit and the reality, so much so that I sometimes think that the SA Police Service has either not been told that our Constitution has such provisions, or has been told that they do not apply to the service. Although I have said this before, it is worth repeating. Someone is teaching policemen that they can/must insist that a person makes a statement if there is some form of incident that necessitates a criminal investigation. This is contrary to the Section 35 provisions that everybody has the right to remain silent, not just somebody who may have, or is suspected of, committing a crime. (In this context, giving a written statement is 'speaking'.) I have related previously where people, who go to report a lost, stolen or destroyed firearm, are bullied into incriminating themselves and are subsequently charged with a criminal offence. Fortunately most courts do not accept this evidence and the end result is that the charges, if they go to trial, are dismissed. However, there is much more. Litigation against the SAPS and the Minister for Safety & Security arising out of the Firearms Control Act is on the increase. Besides the Lazarides decision, the Minister is being taken to court for simple administrative shortcomings in the licensing process. Reviews for not taking decisions in good time are common and so too are reviews for making incorrect decisions. The Minister and the Appeal Board are then represented by the State attorney and private advocates, often a senior and a junior advocate - seemingly regardless of the costs involved. While I suspect that this is done to intimidate firearm owners and discourage us from trying to insist on our rights, my question now is: Where in the SAPS/Minister/Appeal Board's budget does all this money come from, and who controls this budget? The State has no 'right to remain silent' on this matter, it is accountable to us citizens and taxpayers whose money is so used, and must answer such questions. Who decides that private advocates should be instructed and paid for as opposed to provision being made to pay compensation to people who have to lawfully dispose of their firearms? Who decides which is a priority? Where is the accountability? My biggest bugbear however is the question of policy. Firstly, there is no disclosed set of policy guidelines which we can access to determine for ourselves whether we qualify to be issued with a firearm licence for a specific purpose. We must not forget that firearm ownership is a right, which is regulated by and prescribed by law. The Firearms Control Act confers upon appropriately qualified persons the right to be granted a firearm licence. What the Act does not specify is the policy that the SA Police Service uses to determine a person's suitability. The policy must be disclosed and it must be reasonable, objective and constitutionally lawful. It is clear that a policy of some kind is being used by SAPS and the Appeal Board and we can (safely?) deduce certain aspects of it from decisions of the police and the Appeal Board. However, I have not been able to obtain any form of 'policy document' from either the Central Firearms Registry or from the Appeal Board. Some recent examples illustrate this. The first is from an 'old Act' appeal, which was refused because the reason stated for refusing the licence in the first place was simply given as "Not recommended by local profile". Attempts to obtain clarity on what this means were unsuccessful. When the matter was taken on review in the High Court, the decision to refuse the firearm licence was set aside and a punitive cost order was awarded against the Appeal Board. This happened because the authorities would not come to court and explain what "not recommended by local profile" means. If, as is reasonable in the circumstances, we assume that the SAPS had some information which 'justified' the refusal of that licence to that applicant, then from the SAPS's reluctance to provide an explanation, we can only assume that the information was unlawfully obtained or otherwise not capable of withstanding judicial scrutiny. The fact of the matter is however that while the SAPS and the Appeal Board stood by this 'reason' neither could justify relying on it. Almost everyone who has been refused a
licence was given one of two classic 'reasons' - "insufficient
motivation" or "not convinced of need". Although these
were used while the 'old' Act was in force, they continue to be given as
'reasons' for refusals in terms of the new Act, albeit puffed up with
additional verbiage. The Appeal Board and SAPS are now being obliged to file opposing papers, notwithstanding their frequent reluctance to do so. I have a number of incidences on file where the State attorney has been embarrassed by his client's failure to promptly provide answering papers in review applications. In one matter the presiding Judge threatened the State attorney concerned with a personal cost order against him because of his client's failure to provide court papers. The request for a postponement in those circumstances was granted only after the State attorney provided an affidavit explaining his client's dilatoriness. Such delays are so frequent that it seems to be routine policy. As any delay is expensive for litigants (and taxpayers who fund the defendants), most of whom are not persons of financial means, such attempts to financially exhaust an applicant constitutes an abuse of the court process and is detrimental to the administration of justice. Clearly such a policy/tactic would be both unreasonable and unconstitutional. In recent court papers, both of which deal with licences for self-defence, there has clearly been a shift in approach to the granting of such licences. Initially, the SAPS refused most self-defence applications, but these refusals were often reversed by the Appeal Board. In one instance a litigant, who resides in a rural area with high levels of crime, wanted a shotgun for self-defence. The high crime levels were confirmed by his neighbours, but the Appeal Board confirmed the SAPS's refusal because, in their minds, there had been no significant increase of crime in the area. The fact that there were frequent murders and armed robberies did not seem to be sufficient reason to justify the existence of a firearm for self-defence. While the provision is in force, applicants have to accept they must 'prove a need' for a self-defence firearm (please note that 'proof of need' applies only to self-defence firearms), yet 'need' remains undefined. The second example which is currently before court involves a handgun for self-defence. The applicant in my opinion has set forth more than adequate reasons to be granted the licence - extensive travelling, the operation of an informal cash store on weekends, etc. In their wisdom, the Appeal Board decided that he had not demonstrated that he could not adequately protect himself by other means: "insurance, burglar bars, burglar alarms, dogs, armed response and other means of physical security". It appears that the reasoning of the Appeal Board is that if you can afford every possible other means of physical security, you have no right to be granted a licence for a self-defence firearm. This is clearly unlawful and irrational. This ignores the fact that physical security is limited to one location and that it cannot be transported with you when you leave your residence or business, hence it being irrational. This reasoning is certain to be questioned and analysed by the High Court. SAGA is keeping a close eye on this case which is of importance to all firearm owners. The need and obligation for the SAPS to have - and to make public - a transparent, objective policy on firearm licensing is becoming more and more obvious and important. SAGA will continue, and increase, its pressure to bring this issue to a head. SAGA has a very broad mandate in what it should do to protect and uphold firearm owners' rights. As a founding member of the World Forum, and thus in contact with similar associations world-wide, SAGA is up-to-date with anti-gun 'happenings' in the United Nations and elsewhere. SAGA is a centre for the collection and further dissemination of relevant information to those who can best use it in the interests firearm ownership rights. SAGA acts as an interface between civil society, government, firearm owners and their organizations. When 'uncomfortable' action is necessary, SAGA is the association most likely to stand up and 'take the flak'. This sometimes makes us rather unpopular in some quarters - despite the fact that we present our arguments in as calm and rational a manner as possible.
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| January 2008 | |
State of the Nation By Martin Hood I know that there are 'good news' stories
out there on the firearm front. I have been told about DFOs who have
gone an extra mile to solve a problem. I have even heard of licence
applications being processed far more speedily and efficiently than
expected. I have personally been treated fairly (and patiently) by
policemen and women who are trying to implement the legislation to the
best of their ability. While I try to be objective and dispassionate, this continual immersion in the mire of all these problems has made me somewhat cynical - a condition which makes the wearing of rose-tinted spectacles distinctly impractical. If you feel that, in the comments which follow, I am 'accentuating the negative' and perhaps being unduly harsh, I ask for your understanding and forgiveness. Because the regulations are still in a state of flux (subject to negotiation/amendment) I will not dwell on them at any great length. In this regard however, I must repeat the axiom that there are "none so deaf as those who do not wish to hear". Lest there be any mistake about it, let me put on record that, despite protestations to the contrary by the CFR, it is a demonstrable fact that, for a specific period, the SAPS treated cap-and-ball revolvers as 'off-licence' items. The SAPS quite happily cancelled licences for them in the full knowledge that the owners were retaining these revolvers for their collections and/or for sport and recreation. The SAPS also stood by and 'allowed' these revolvers to be imported and sold without permit or restriction. So, when the draft Amendment Act redefined the term 'muzzle-loader' specifically to treat such revolvers as ordinary firearms, we pointed out to the SAPS (and to parliament's portfolio committee) that this would 'criminalize' everyone currently (and legally) in possession of unlicensed cap-and-ball revolvers and that practical provision should be made to regularize their position. The CFR told parliament that, as firearm licences "have always been required" for cap-and-ball revolvers, there was no need to make any such special provisions. As far as the CFR is concerned, anyone with an unlicensed cap-and-ball revolver will be (note, not 'may be') prosecuted. By deliberately(?) and effectively turning a blind eye to the situation and not making practical provisions to correct matters, the CFR has compounded the problems that the public and the SAPS will soon be facing. If the Public Prosecutor agrees with the CFR's interpretation, I await the outcome of the first court cases with great interest. I believe that such action would constitute persecution of the innocent. 'Negotiations' with politicians and the SAPS (and politics within the SAPS) are fraught with peril. We, and other associations, do so in good faith but quite regularly find that faith to be misplaced. Political considerations often outweigh rational ones and bureaucracy takes precedence over pragmatism. When it was first proposed that 'competency' testing should be a requirement and that this be done in terms of the Skills Development Act and thus under the supervision of the SA Qualifications Authority, we and most other associations had serious reservations about the desirability and practicality thereof. It was pushed through but it wasn't long before it became evident that things were not going according to plan despite the various bodies having spent a great deal of time, effort and money to design courses and set standards. I think it was the hunters' associations who first approached the SAPS with the object of taking the SETAs out of the loop for the 'dedicated' hunter courses and training. (SETAs are the Sector Education & Training Authorities set up in terms of the Skills Development Act to develop the skills of the workforce.) SAGA was in favour of this proposal and of training becoming self-regulatory under the control of the recognized and accredited associations. However, SAGA does not support the proposed regulation that the Registrar be given the power to approve (or reject) the training courses for dedicated hunters and sportsmen. And so it was that negotiations in good faith had the unintended consequence of handing, on a plate, more power to the already too powerful CFR. We have somehow managed to replace a lesser evil with a potentially greater one. In 'fair exchange' for all the work they have done and the responsibilities they now have loaded onto their shoulders, the associations expected the SAPS to accept their recommendations in good faith. The principles behind this approach are sound: a member of an accredited association discloses (to his association's committee responsible for this function) his reasons for wanting/needing a specific firearm licence and the purpose for it. The committee has direct knowledge of the applicant's activities and character and all the expertise necessary - in all probability, more than the SAPS - to assess the suitability of the firearm for the purpose required. If this committee now endorses the application, there should be no reason for the CFR to question the endorsement. I believe that this approach is in keeping with the principles embodied in the Act. (The CFR still has the duty to ensure that the applicant meets all the other requirements of the Act, it cannot delegate such authority to the associations.) Now, we know that the SAPS refuses to disclose their licensing criteria. This is almost certainly because, if they do so, it will no longer be quite so easy for them to refuse the licence of an applicant who meets all the criteria. When I wrote to ask the director of the CFR to clarify what is meant by 'sufficient motivation' he replied that it is 'self-explanatory'. Clearly the CFR does not wish to part with any information that may assist an applicant to comply with its requirements. Back to my 'hunting association' example. Despite the 'gentleman's agreement' that the SAPS would accept the associations' endorsements, the CFR has refused to licence many of the firearms so endorsed. If there were 'only a few' I would be prepared to concede that mistakes can happen and that the applicant can appeal against the refusal, albeit with the associated costs and delays. However the refusals I know of, are not a few isolated examples. There are too many and they come from across the board - hunting firearms, sport shooting firearms, and collectable firearms. For example, one of the reasons given for refusing a shotgun licence was that the applicant already had 'sufficient' shotguns of the same calibre. As you probably know, there are a multiplicity of shotgun types for different disciplines and types of hunting. The applicant fully 'motivated' his need for the specific shotgun, his (accredited) association assessed his needs and endorsed his application. Why have this extra 'filter' and a gentleman's agreement if it can so easily be disregarded by one party? It seems clear that the CFR has the (undisclosed) policy of limiting the number of firearms it will license to any individual - which policy is not provided for in terms of the Act. I believe this 'policy' is even more stringently applied to 'sport shooting' firearms - particularly when it comes to applications by dedicated sportsmen for self-loading firearms. Of all the associations, the collectors have probably done the most to improve the image of collecting amongst politicians and policemen alike. They have succeeded in having the legislation clarify what constitutes a collectable firearm, what characteristics a firearm should have in order to be classified 'collectable' and who qualifies to be declared a collector. The SAPS has thanked them for all the help and expertise they put into this. The collectors' associations also put forward a mechanism (or formula) to facilitate the licensing of collectable firearms and the CFR apparently agreed to this - verbally. Guess what. Despite this 'arrangement', and despite collectors having jumped through all the hoops of certifying their firearms, being categorized, being members in good standing, etc, etc, some of them are also being refused licences. It seems to me that, after 'negotiating' an arrangement and doing everything you can to honour it, the only thing you will be able to depend on, is that your mutually beneficial arrangement will be dishonoured whenever it suits the SAPS. This is surely enough to turn the most trusting person into a cynic. SAGA is not immune to this. We also make representations to the SAPS and negotiate (or try to negotiate) improvements to the Act and Regulations. Some of the improvements we have proposed would have actually helped the police implement the legislation - while making life a little easier for our members (and all firearm owners, members or not). We accept the need for legislation and regulation; but we do not accept that we be over-regulated or that firearm owners (or would-be owners) should be treated as untrustworthy subjects instead of worthy citizens. We also cannot accept the attitude that firearms are an 'evil' to be rooted out at all costs. We do not have to accept bad service, we do not have to accept being treated as second-class citizens, and we certainly do not have to accept that firearm licences or competency certificates should take a year or more to be granted. Our various associations should try to be more 'hard nosed' when dealing with the SAPS. If the SAPS are reluctant to commit an 'arrangement' to paper, we must try harder to keep them to their verbal commitments. And we should not be shy about displaying our anger when they disregard honest recommendations. We should all demand more accountability from the police. As regular readers will know, SAGA endeavours to facilitate interaction between firearm-related associations as well as to properly represent the interests of our members - law-abiding citizens who own firearms but whose interests are not directly represented by any other association. While trying not to impinge of the 'territory' of any other association, when standing up to be counted on matters of principle, we are fighting on behalf of all firearm owners. I trust that whatever criticisms I have aired here will be considered constructive and that SAGA's cordial relationships with all pro-firearm organisations will not be affected. At a recent, multi-national conference on small arms and light weapons I attended on behalf of SAGA, the Director of the CFR proudly stood up and made it perfectly clear that there is not enough control over firearms in Southern Africa and that he is striving to achieve greater control. Was Director Bothma just making a 'political' statement geared to win the applause of all the anti-gun organizations at the conference? Somehow I don't think so. He has almost nailed his colours to the mast. I say almost because he did not make it perfectly clear that what he really wants is more control over licensed citizens. After all; his department is not responsible for catching the criminals who use firearms to commit violent robberies, all he can 'control' is us. And, if that's his attitude, there is very little reason to expect much progress to be made with negotiations that involve his department. However, negotiate we must. We must also explore every possible avenue to protect our rights; we must continue political lobbying. We must always be on our best behaviour when carrying and using firearms - we need the support of the general public and should not give those actively opposed to firearm ownership any ammunition to use against us. I hope and trust that, depending on when you read this, the holiday break will refresh (or will have refreshed) your spirits and you will be fighting fit to face the challenges that 2008 will present.
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| December 2007 - Two | |
United Nations Listens Statement of the Honorable Bob Barr at the United Nations General Assembly 62nd Session, First Committee, 26 October 2007 By Bruce Shaw Mr Chairman, my name is Bob Barr and I am
here representing the World Forum on the Future of Sport Shooting
Activities (WFSA). This is the second year in which the WFSA has been
asked to make a presentation to the First Committee. We once again
appreciate the invitation and commend the body for the inclusion of NGOs
in its deliberations. WFSA associations have a cumulative membership of over 100 million hunters and sport shooters. In addition, our associations represent nearly all the major firearms and ammunition manufacturers in the world. I have spoken favorably of today's NGO participation and I should like to expand on that point with special reference to the WFSA. Mr Chairman, the vast majority of the estimated 875 million small arms in the world, are owned by civilians. These hundreds of millions - and it is hundreds of millions - of law-abiding hunters, sport shooters, collectors and other firearms owners are the people for who the WFSA speaks. My comments today will focus on the proposed Arms Trade Treaty (ATT) process envisioned by Resolution 61/89, and the soon-to-be appointed group of government experts, or GGE, on ammunition under Resolution 61/72. Mr Chairman, I will become more specific as regards both of these issues, but I should initially like to point out that as presently conceived, civilian firearms owners and civilian ammunition manufacturers are more at risk than any of the other groups to be impacted by the results of these effort. The Arms Trade Treaty The WFSA believes that, apart from shared concerns regarding the wrongful use of small arms (criminal use, oppressive government action, terrorist acts, etc.), the ATT effort remains at this point inappropriately broad, unfocused, nebulous and inconsistent. Numerous parties have made statements to the effect that an eventual ATT would somehow prohibit transfers of arms which would facilitate "bad" acts such as those noted above. The same parties have acknowledged the right of states to manufacture and transfer arms for legitimate purposes. How these two positions are to be reconciled has not been addressed in even a threshold manner. Failure to resolve this contradiction will continue to present an insurmountable problem from the standpoint of the WFSA. It will also militate against any hope for success in curbing wrongful use. A treaty that is no more than an exercise in "gesture politics" would be a wasted opportunity; a result that would be in no one's interests. In addition, the WFSA finds that many groups (NGOs) with a simplistic, anti-firearms domestic political agenda essentially view "gun control" for its own sake, and take no recognition of the wide range of lawful and legitimate uses to which firearms are put in the civilian context. These groups have adopted the ATT as a vehicle for their political agendas. If the ATT is perceived - as it is already coming to be even at this early stage - as part of a means to further such domestic political agendas, it will present the same fundamental and insurmountable problems as the Programme of Action before it. This would represent a decidedly anti-firearms agenda the WFSA could not accept. As in the past, of course, the WFSA is committed to engaging in a positive dialog and exercise, to affirm and represent the interests of legitimate civilian users of firearms with arguments that are intellectually robust and based on sound evidence. Mr Chairman, despite assurances and rhetoric to the contrary, civilian firearms are still included within ATT efforts. This is evident from a reading of the documents themselves, as well as from numerous government and NGO statements. Legal civilian firearms should not be with-in the scope of the ATT; and until this exclusion is unequivocally and clearly implanted, we must oppose the current effort. We are pleased to note, however, the
proceedings of the conference entitled, 'An International Arms Trade
Treaty: Building Consensus and Making It Work', held at the Royal
College of Defense Studies, Seaford House, London, on 5 June 2007.
Paragraph 15 of that document provides, in part: This widely-accepted formulation
represents a realistic and positive step towards productive
understanding, and is welcome. To gain support, however, an ATT would
not only need to eschew absolutely any concern with domestic laws,
regulations and legislation, but also guarantee both the legitimate
international commerce in, and movement of, civilian arms and the right
of individual private civilian owners of firearms to transport them
internationally for legitimate purposes. The WFSA also should call
attention to the undesirability of the creation of a new UN bureaucracy.
Mr Chairman, we are all aware that a GGE on the proposed ATT will soon
begin its work. The WFSA is concerned that the ATT GGE will not be
representative of that previously mentioned group which could be most
affected by any eventual treaty - the hundreds of millions of law
abiding civilian firearms owners. We cannot have confidence that the
legitimate rights, interests and views of these many civilians will be
properly represented in the process, unless and until there is a formal
mechanism for them to register their concerns and ensure their
inclusion. Governments and "government experts" will be
primarily interested in protecting and promoting the interests of
governments (including maximum control of firearms), not of
civilian citizens or the industry. Conclusion
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| December 2007 - One | |
World Forum Debates By Bruce Shaw The South African Gunowners' Association (SAGA) and the World Forum on the Future of Sport Shooting Activities (WFSA) met in Palermo, Italy, on 4 and 5 October 2007, to plan joint or multilateral initiatives designed to protect the future of private firearm ownership and use and to counter the manifold attacks (covert and overt) on such rights as we have. SAGA was a founding member of the World Forum which was formed in 1997 and is an officially recognized United Nations non-governmental organization, or NGO. SAGA trustee, Bruce Shaw was our representative at this meeting of the World Forum whose 38 member associations include most of the major hunting and sport shooting organizations and the firearms and ammunition manufacturer associations. The WFSA Board meets twice a year. In two days of meetings the WFSA Executive Committee evaluated the various threats to the international firearms community. These include the United Nations, the European Union, changing environmental regulations, regional groups such as the Organization of American States, dedicated special-interest anti-gun groups, and, in addition, international airlines which are resisting the carrying of hunters' firearms. The WFSA Executive Secretary for the
Americas, Thomas Mason, reviewed for the group the United Nations'
extensive future programme on "small arms and light weapons",
its term for firearms. The UN will have eight weeks' worth of
conferences and meetings on firearms and ammunition during 2008. These
include a Group of Government Experts (GGE) on international regulation
of ammunition and also a major international conference at the UN
headquarters in New York in July. The WFSA Board was also briefed on the situation in the European Union by WFSA Executive Secretary for Europe, Vito Genco. Genco described the way that Europe has become a breeding ground for the developments of new directives on firearms possession, firearms and ammunition control, environment protection and hunting guidelines. The fact that the 27 States are allowed to regulate these complex matters in their own national legislation does not help the EU effort to adopt uniform criteria. Traditions are different. Security is driven by local conditions. The European Union is nevertheless trying vigorously to bring together the laws of member states, such as we see in the present efforts to amend the very important and recent Directive on Firearms 91/477 to implement the UN Protocol on Illicit Trafficking on Firearms, which in turn supplements the United Nations Convention against Transnational Organized Crime. "Regulation is being laid upon regulation," he said. Regarding this specific directive, European WFSA members have argued to the EU authorities that the fact the directive will have provisions dealing with civilian firearms possession in the EU internal market is an entirely different matter from the transnational traffic of military products. Genco mentioned that in accordance with the principle of better legislation, the current revision process should be used not only to adapt the directive to the UN protocol, but also to bring to the directive the improvements that are needed. The following topics are part of the current discussion at the trilateral meeting of EU Commission-Council of Ministry and Parliament: this covers categories of firearms, age limits, convertible weapons, the firearms pass, and the marking of firearms. Genco also described a WFSA workshop on shooting ranges, held just prior to this WFSA meeting, titled: "Lead Reclamation, Backstops and Sound Reduction". WFSA's Environment Sub-Committee is playing a central role as an information clearing house, where top experts from all over the world gather on a regular basis to present and discuss the best management solutions and the most sophisticated developments and science concerning the responsible care of the environment. The advantages of the collaboration between all involved parties worldwide have been acknowledged by a panel of regulators, hunters and sport shooting associations. Three workshops have been held on different environmental topics, all with great success. This latest workshop was another milestone on the road toward sustainable shooting activity. Dr. Dick Peddicord (USA) said: "It was most informative, and I learned things that I'm already putting to use. I consider it a privilege to have been invited to participate. I hope my contribution was helpful." Major Frank Compton (UK) said: "As ever at such gatherings, I came away with an increased understanding of the environment and safety on and around shooting ranges. Of particular interest was the description of the noise reduction measures." The WFSA runs global initiatives to drive continuous improvements in health, safety and environmental performance, and to listen to and to talk with its stakeholders. The WFSA cooperates with governments and organizations in the development and implementation of effective regulations and standards, and to meet or go beyond them. The WFSA Board also took the initiative on several other projects. At the request of Safari Club International, the WFSA will begin a major project on the airline transport of firearms. Incidents where hunters and shooters have difficulties transporting their firearms on airlines are on the increase. Recently, American Airlines announced it might not transport firearms to Europe because of the United Nations Firearms Protocol. Both Safari Club and WFSA officials pointed out this is a misapplication of the UN Firearms Protocol. The WFSA Board appointed a working group on the airline matter to be led by the NRA of America. Other WFSA projects include a future workshop called the "Environmental and Economic Benefits of Hunting". A working group has been established to lay the groundwork for this workshop, possibly to be held as soon as in 2008. On the more academic side, the Board established a working group to counter claims by the international anti-gun think-tank based in Geneva known as the "Small Arms Survey" (SAS). PROTELL, the Swiss shooting association (named after the Swiss patriot William Tell) and Herman Suter, its representative to the WFSA, will lead this effort. The Board also planned for a WFSA appearance before the UN General Assembly, First Committee, in late October. Every year, as part of its disarmament agenda, the UN General Assembly discusses what it calls "small arms" and we know as firearms. The WFSA is one of a select few NGOs that are allowed to speak before the body. The WFSA Board also made decisions regarding its annual meeting in Nuremberg, Germany at the European equivalent of the SHOT Show known as "IWA" (a German acronym for "Sporting Goods Show"). The meeting will be on 14 March 2008, and this year's theme will be "Hunters and Sport Shooters: Partners in Freedom". LIST OF ATTENDEES Sidebar
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| November 2007 | |
A Few Brave Men By Martin Hood In October's special "Stop Press" notice (page 87) I promised to discuss the High Court decision in the matter of Lazarides versus the Chairman of the Appeal Board and Others. (The Court ordered that Mr Lazarides be given the licence he had applied for.) First some background information. During 2003, Lazarides (a well-known and respected collector of military firearms) applied to license a 50 calibre Browning barrel made by Musgrave. His application was made before the Arms & Ammunitions Act of 1969 was repealed and replaced by the new Firearms Control Act which came into effect on 1 July 2004. His application was refused as was his subsequent appeal to the Firearms Appeal Board. Lazarides then asked the Pretoria High Court to review the decision of the Firearms Appeal Board. However, Acting Judge Ismail dismissed this review application on the basis that it was not the duty of the courts to overrule discretionary administrative decisions and that only in extreme circumstances can a judge intervene. (This ruling was widely reported and indeed, criticized, in legal journals.) According to Lazarides' legal advisors, Judge Ismail did not take into account the provisions of the constitutionally important Promotion of Administrative Justice Act. Lazarides then lodged an application for leave to appeal against the decision of Judge Ismail. His application was granted and a full bench of the Pretoria High Court then heard the appeal in August 2007. Note that the decision of a full bench (three judges) is extremely authoritative and single judges are bound by such rulings and must use the guidance so provided when appropriate.) This means that this particular judgement is of interest not only to firearm owners, but to everyone who is subject to administrative decisions. The judgement reaffirmed the principle that, where it deems it necessary, a court can interfere in, review and set aside a decision of a functionary (an administrative official) on the grounds provided for in the Promotion of Administrative Justice Act (PAJA). Indeed, the aims and objectives of PAJA, which was promulgated to give effect to Section 33 of the constitution, are to 'guarantee' that citizens receive due, proper and fair administrative action. The judges made a number of interesting comments about the conduct of, and the decisions of, the Appeal Board, the Minister for Safety & Security, the Commissioner of the SA Police Services and the Commanding Officer of the Central Firearms Registry. Although the licence application was made in terms of the Arms & Ammunitions Act 75 of 1969, the terminology used in the judgement reflects the terminology in the new Firearms Control Act and its regulations. The importance of this to collectors and other firearm owners is that the decision cannot be 'written off' as applying only to old Act applications and appeals. This decision has validity to the current legislation in terms of the processes adopted and the reasons provided for administrative decisions. Some of the important principles that flow from this judgement are as follows. Firstly, should the Firearms Appeal Board simply reaffirm a decision of the Central Firearms Registry (acting for the National Commissioner), the Board will be bound by the reasons given by the CFR. It also means that such decisions by the Appeal Board are subject to judicial review - the Board will be required to give proper reasons for its decision to reaffirm that of the CFR. Many appeals are merely dismissed (out of hand?) on the basis that the Board agrees with the CFR's decision without stating why it does so. In dealing with the Firearms Appeal Board's decision, in paragraph 19 of the judgement, the learned judge writes: "It is also stated in... the answering affidavit that the Appeal Board merely refused the appeal and thus confirmed the decision of the [Commissioner]. If that is correct, and I have grave doubts about that, then it follows logically that the reasons relied upon by the [Commissioner] became the reasons of the Appeal Board on which it based its decision. Consequently I have difficulty in understanding how, in law, the Appeal Board could have based its decision on other grounds than those on which the [Commissioner] had based [his] decision." Paragraph 26 of the judgement reads: "The respondents [Appeal Board, CFR, Commissioner, etc] do not allege in their papers why the [Commissioner] and the Appeal Board had concluded that the application was not adequately motivated. I venture to suggest that they are unable to do that. It is difficult to think of something more that [Lazarides] could have said to motivate why he would have liked to be issued with a licence for the arm. The picture is clear: one has a collector who has the financial means to purchase such a scarce highly capable and excellently manufactured arm which falls within his peculiar field of interest and which will enhance his collection. What more must he say?" A number of significant points arise from that paragraph. Firstly, it is insufficient for the CFR/Appeal Board to simply say that an application is 'not adequately motivated' and thus refuse the licence or dismiss an appeal. They must spell out why they believe the application is not sufficiently motivated. In other words, the CFR must inform the applicant in what respect/s his application falls short of whatever standard is used to assess applications. What is of great interest to collectors is the acknowledgment of the variety of factors which make a firearm 'collectible' - its financial value, scarcity, excellence of manufacture as well as its 'fit' with the collector's field of interest, and how it would enhance a collection. In the next para (27), the judgement continues: "In my view the only inference to be drawn from the aforegoing is that the [Commissioner] and the Appeal Board have failed to apply their minds properly to the facts or had acted capriciously in coming to the above conclusion. In my view they clearly erred." Noting that the Appeal Board had stated that the firearm did not fit into the appellant's collection, the judgement (in para 28) says: "…[i]t is incomprehensible why the [Commissioner] and the Appeal Board came to the conclusion that the arm does not fit into the appellant's collection. The details of the wide variety of weapons that the appellant has, are also known to the respondents. The [Commissioner] has issued licences for them." And continues (in para 29): "The [Commissioner and the Appeal Board] have not explained in their papers why [they] had come to the conclusion that the arm does not fit into the appellant's collection." It is clear that the CFR/Appeal Board must state why a firearm does not fit into a collection as opposed to simply stating that it does not fit into the collection. So, on the submission that the arm did not 'fit into the collection', the judgement continues (para 31): "In my view this reason for refusing the application holds no water. In the absence of an explanation therefor one can only conclude that the [Commissioner/Appeal Board] have sucked it out of their thumbs. [They] have evidently not applied their minds to the facts of the matter. There is in my view, no basis for their conclusion." Coming from a judge, these are relatively harsh words and constitute severe criticism of the actions of all the respondents. The Commissioner/Appeal Board had also offered as a reason/justification for refusing this licence that "the firearm is not suitable for commercial use," but (in para 33) the court refuted this by stating: "Once again the [Commissioner/Appeal Board] have not even tried to justify their conclusion in this regard. In the absence of such evidence the inference can be drawn that they are unable to do so." Thus, in the face of a proper fully detailed motivation, the SAPS is expected to fully substantiate any and every reason they proffer for refusing a licence. Part of the legal argument raised by Lazarides' team was that there was an unwritten, unofficial or undisclosed policy in place that prevented this type of firearm being licensed by private individuals. The respondents paradoxically denied that such a policy existed but quoted from this policy! The response of the judges (para 39) to this was: "The wording of the letters suggest, prima facie, that the policy or 'directive' was applied rigidly as if no exception would be made. Such an approach would in principle, be wrong and would lead, in itself, to the court setting aside the decision not to grant a licence to the appellant. Such an approach would give rise, at least prima facie, to the inference, if not presumption, that the [Commissioner/Appeal Board] sought to achieve, and impose, a ban on this type of arm without it having been banned in terms of section 33(2) of the Act. In such a case [their] decisions would have been motivated by, and founded upon, an ulterior purpose and would be flawed to such an extent that the court will set it aside." This comment deals with, what I term the 'blanket ban' approach to firearms. If the police refuse to license a certain type of firearm, without considering the specific circumstances of each and every applicant, such an approach would be flawed and would be motivated by an ulterior purpose. It should be set aside on review. In response to the Appeal Board's assertion that the refusal of a licence for collecting purposes does not constitute any form of prejudice, the judgement noted (para 44) that: "This statement, or allegation, does not merit serious consideration. It is utterly without merit." In other words, if you are refused a firearm licence, particularly for collecting or sport shooting purposes you are prejudiced and this may give rise to grounds for a review. In dealing with the concept of "judicial deference and the setting aside of the functionary's decision" the judges noted while, in principle, the judiciary is required to defer to a functionary's decision, especially if that functionary has expertise in the particular field, there is an important qualification to that principle. So, in para 49, the judgement says, "Before a court of law defers to the expertise of a functionary and a decision made by him/her it must be clear that the reasoning of the functionary is not flawed but that it is impeccable." This means that the decisions of administrative officials must be made and reasoned in an impeccable fashion. In other words, if it can be shown that a firearm licence application was not properly considered, and a refusal not rationally explained, the courts may review such decision. The effect of this is (should be?) to impose a greater onus on the SA Police Services to provide proper reasons for their administrative decisions. The full bench therefore ordered as
follows: Given the scathing remarks made about the Commissioner/Appeal Board's arguments and actions, one must wonder why the Commissioner/Appeal Board/State employed both senior and junior counsel to contest the matter. A justly determined Mr Lazarides felt so strongly about his treatment that he did the same - this made the whole affair an extremely costly exercise, particularly for taxpayers who have no option but to fund the State's legal expenses. It seems as if the SAPS/CFR now routinely brief senior and junior counsel to oppose such matters. (On behalf of clients, I have now obtained a number of court orders against the Commissioner/Appeal Board/et al.) Such expensive opposition has not been merited and is (in my opinion) a fruitless and unnecessary expenditure of taxpayers' money. Why do they persistently refuse to accept that they make some poor decisions? I believe they have ulterior motives. No matter what costs are involved, they cannot afford to have the courts investigate the issuing/refusal of licences - because they know that the whole process (and their attitude) is fundamentally and constitutionally flawed. It is only through the actions of a few brave men - those who have the means and the determination to challenge the State - that we are slowly developing a body of court decisions and evidence that exposes the licencing process as unfair, biased and discriminatory. If we continue to successfully challenge the decisions of the SAPS and the Appeal Board, we can expect that the courts will find it necessary to instruct these bodies to 'shape up or ship out' - with very serious cost consequences for those individuals who do not properly and rationally consider licence applications. Unfortunately, and because justice costs money, the time may be coming for a class action.
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| October 2007 | |
Lost, Stolen, or Destroyed? By Martin Hood Every year a significant number of privately owned firearms are ‘lost, stolen, or destroyed’ (LSD), which is not good news, but why is it that very few licensed owners are convicted for ‘losing’ their firearms? Well, if you lose a firearm because you were negligent, that’s an offence; if you were an innocent victim of circumstance and negligence was not involved, then there is no case against you. As the SAPS generally release only the total number of all ‘lost, stolen or destroyed’ firearms it is difficult to say how many were ‘lost’ and how many of that subcategory were lost because their owners were careless, inebriated or otherwise irresponsible. As can be expected, the media, the anti-gun lobby and a number of police spokesmen would like the general public to believe that all the ‘losses’ occurred because all firearm owners are (criminally?) irresponsible. This attitude may then be reflected in the treatment you receive if and when you have to honour your legal obligation to report the loss, theft or destruction of a firearm (within 24 hours of becoming aware of any such ‘loss’) – this can be an extremely stressful and frustrating process. If your well-secured home is forcibly broken into, your gun safe torn from the wall and removed along with sundry other possessions, your report should be fairly straightforward. If you and your family are held at gun point and you follow the stand-ard SAPS advice by handing over the safe keys with minimum eye contact and no resist-ance, your report of the firearm loss, being an almost incidental matter, should also be straightforward. In such cases there is usually enough hard evidence to dispel any suspicion that your ‘negligence’ (or your non-adherence to the many safekeeping provisions of the Firearms Control Act) contributed in some way to the LSD of the firearm/s. As an aside. If burglars remove the safe and/or its contents, but not the firearm you keep hidden in your living room for fast retrieval, it is not beyond the realms of possibility that the SAPS would charge you for not having stored that firearm in the safe. However, ‘negligence’ or ‘non-compliance’ is sometimes a ‘contributory factor’ in the ‘loss, theft or destruction’ of firearm/s. When reporting such an LSD, the Firearms Control Act (FCA) requires that your statement outlines the circumstances of the LSD of such firearm. This
creates a legal ‘difficulty’. | |