• Press Release: Business Day 8 October 2003
• Section 49 Judgement - Use of force 21 May 2002
• SITA Workshops
• SAGA Misquoted in Cape Times 3 August 2001
• SAGA Press Release 1 August 2001
• Minister's Press Release 31 July 2001
• News Update 2 July 2001

‘Law is unfair to legal gun owners’By Wyndham Hartley
Parliamentary Editor

Cape Town — Legal gun owners, facing strict control regulations under the Firearms Control Act despite police statistics showing that they are not responsible for gun-related crimes, are likely to challenge the constitutionality of the new law. Legal gun owners are increasingly saying that the statistics show they are law-abiding and yet the law targets them. This has led to threats of Constitutional Court action and massive non-compliance with the law when gun owners are required to reapply for licences and to surrender what the state considers to be surplus weapons.

Quoting the latest crime statistics two weeks ago, National Police Commissioner Jackie Selebi and Safety and Security Minister Charles Nqakcula announced that in the past five years 5310 firearms were reported stolen. However, in the main body of the police report Selebi says that 22 000 guns were reported stolen in 2002-03

South African Gun Owners’ Association spokesman Alex Holmes said yesterday that even Gun Free SA acknowledged that only about 0,1% of all legal guns had been used to commit crimes. Holmes said there was a very high probability of legal action against a wide range of the provisions of the legislation. He said “the confiscation of property and the arbitrary withdrawal of an existing right are certain to be challenged, as are the sections allowing the state to confiscate guns without compensation”.

Holmes said that the association was concerned about the possibility of high levels of non-compliance with the law. “You could well see groups emerging who will oppose the legislation,” he said. Feelings were running high among legal gun owners, particularly because statistics showed they were not part of the problem.

This view was echoed by firearms legal expert Martin Hood who said there was no factual basis to prove that every firearm recovered was once legal.

Freedom Front safety and security spokesman Pieter Groenewald said the latest statistics bore evidence of “ineptitude and incompetence” and gave the impression that the figures were “cooked” Referring to the apparent discrepancy of 5000 guns being stolen in the past five years and the 22 000 said to have been stolen In a year, Groenewald said: “It can justifiably be asked width figure is correct?” Groenewald challenged Nqakcula to reveal bow many firearms were stolen from the police during the same period.

Democratic Alliance MP Paul Swats said that the recovery of illegal firearms was to be welcomed but pointed out that only the accreditation portions of the new law were in effect. He said there also appeared to be no need for the new law since “all these success stories of operation Sethunya have been made under the old law”.

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State v Walters and another
Constitutional Court - CCT2801
21 May 2002

Section 49 the Criminal Procedure Act governs the use of force to carry out an arrest, subsection (2) permitting deadly force in certain circumstances. This latter provision was relied on by Mr EJ Walters and his son when they were charged with murder in the High Court in Umtata for having shot a suspect fleeing from their bakery one night. The prosecution responded that according to a reinterpretation of s 49(1) by the Supreme Court of Appeal (SCA) the shooting was not authorised. In the alternative the prosecution challenged the section's constitutionality. The trial judge disagreed with the SCA decision, held that he was not bound to follow it and upheld the constitutional challenge to the extent that it relates to a fleeing suspect. He then adjourned the case pending confirmation by this Court of the order of constitutional invalidity.

The accused and the prosecution took no part in the proceedings before the Constitutional Court. The Minister of Justice submitted argument that s 49(2) is unconstitutionally wide and contended for the validity of a replacement of s 49 adopted by Parliament but not yet put into operation.

The Commissioner, backed by the Minister of Safety and Security, strongly supported the section in its current form, contending that it conformed to internationally accepted norms. They relied on extensive research abroad and argued that the trial court had unduly limited the use of force; that the amended version of the section errs likewise and that s 49 can be saved by reinterpreting it as requiring proportionality and confining the use of lethal force to serious crimes.

The amicus also submitted substantial research material, including analyses of police crime statistics and studies of the use of force by and against police officers in the execution of their duties. Stressing that s 49 covers the use of force by anybody effecting an arrest, not only police officers, the amicus submitted that it should be struck down as a whole, the order being suspended for a month for the replacement section to be put into operation.

The judgment (by Justice Kriegler on behalf of a unanimous court) analyses the power to use force, including the use of a firearm, given by the section to persons lawfully carrying out an arrest. Because this power encroaches on the rights to life, human dignity and bodily integrity guaranteed in the Bill of Rights, the judgment examines the balance between these basic human rights and the interests of an effective criminal justice system. Regarding the use of a firearm, the judgment endorses the conclusion of the SCA that s 49(1) must be interpreted as generally excluding the use of a firearm unless the suspect (a) poses an immediate threat of serious bodily harm to the arrester or to someone else; or (b) is reasonably suspected of having committed a serious crime involving or threatening such harm. Read in this way, s 49(1) is constitutionally justifiable and the order by the trial court declaring it partially invalid is therefore not confirmed.

The Constitutional Court finds, however, that s 49(2) authorises the use of deadly force for arrests in circumstances that are so wide as to be constitutionally unjustifiable, for example an arrest for a trivial offence like shoplifting or for a serious but non-violent one like fraud. This subsection is therefore struck down in its entirety. Because s 49(1) covers the use of force generally and because the replacement section can be put into operation virtually immediately, the order of invalidation takes effect immediately, but does not affect past conduct.

The judgment tabulates the main points regarding the use of force by police officers (and others) in carrying out arrests thus: A(a) The purpose of arrest is to bring before court for trial persons suspected of having committed offences. (b) Arrest is not the only means of achieving this purpose, nor always the best. (c) Arrest may never be used to punish a suspect. (d) Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest. (e) Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used. (f) In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed; the force being proportional in all these circumstances. (g) Shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances only. (h) Ordinarily such shooting is not permitted unless the suspect poses a threat of violence to the arrester or others or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest, whether at that time or later. (i) These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person.

The judgment also concludes that the trial judge did not have the power to differ from the SCA on a question of constitutional interpretation. He should also have dealt with the constitutional issue only if and when it became necessary for his verdict. As the order of constitutional invalidity does not affect past conduct, the case was referred back for resumption and conclusion on the basis that s 49(2) is constitutionally valid.

Lastly the judgment considers the fact that the new s 49, passed by Parliament in October 1998, has not yet been put into operation by the President. The Act containing the new section gave the President the power to fix the date of its implementation. This power could not lawfully be used to veto or otherwise block an enactment duly adopted by Parliament.  

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Final Functional Review of Firearm Business Processes  

Report from Bruce Shaw:
I have just spent the last two and a half weeks in Pretoria attending the FINAL FUNCTIONAL REVIEW OF FIREARM BUSINESS PROCESSES. These meetings were held at the SITA (State Information and Technology Agency) offices.

Here the modelling (mainly workflow and requirements) of the entire system as completed to date were reviewed with all respective stake holders. There are more than 680 process step models. Attendance was varied from various specialised police and government departments, dealers, gunsmiths, manufacturers, business in all forms (including film production), game-ranchers/rangers, SAAACA, PHASA, CHASA, SCI, SA Jagters, training institutions, security including in-house, all on an as needed basis, with the exception of NFF, and SAGA.
Apart from SITA personnel and certain senior CFR and legal police officials, Alex Holmes and myself were the only people to attend every single session, and were invited to several evening sub-meetings.
Basic requirements for accreditation, competency, licencing and all the rest, were discussed and more details will be made available later. All of this has to be in accordance with the Act and of course the regulations on which Adv Gert Joubert was working in parallel and in conjunction with the whole process.

The process is one of the steps leading towards an integrated electronic system of evaluating applications for any type of “firearm warrant”, where the term means any licence, permit or authorisation that is used under the Firearm Control Act. Whilst the idea is to have the system fully electronic, there have to be manual procedures in place to cater for mainly rural areas. The electronic system encompasses complex subsystems such as interfacing with the AFIS (Electronic fingerprinting system) and with the ICJS (Integrated Criminal Justice System) and other internal departments.

The work done was extremely valuable and I felt that we contributed with constructive criticism where required.
I left with a good positive working relationship with all the official parties, and thank them for their co-operation.

General Information about the Workshops:
SITA, in consultation with the SAPS, have modelled the process of the firearm control environment to meet the requirements of the Firearms Control Act, No. 60. In order to ensure these models are functional and constitutionally correct, various parties were identified to assist with the final review of the process step models at workshops to be held in Pretoria, from 17 September to 2 October 2001.

Participants listed include:
SAPS Units      Central Firearms Register
                        Systems Management and Support
                        Criminal Record Centre
                        Illegal Firearm Unit
                        Ballistics
                        Interpol
                        Border Police
                        Legal Services
                        Station Commissioners
                        Firearm Appeal Board
Security Officers Board
SA Hunting and Game Conservation Association
Confederation of Hunting Associations of South Africa
Pretoria Weapons and Ammunition Association
SA Practical Shooting Association
Clay Target Shooting Association
National Treasury
National Firearms Forum
Khuseleka
National Director for Public Prosecutions
Arms and Ammunition Dealers Association of South Africa
SAGA
South African National Defence Force
South African Correctional Services
Association of Firearm Manufacturers of South Africa
Gunsmiths Guild of South Africa
Pretoria Metal Pressings
Department of Foreign Affairs
South African Revenue Services
Department of Trade and Industry
South African Bureau of Standards

The processes on the agenda for discussion are:

Accreditation
Licencing – competency certificates, licence applications, licence renewals
Circulation of lost, stolen and found firearms
Dealers, Manufacturers and Gunsmiths
Import/Export, Transport and in-transit Permits
Declaration of Unfitness
Appeals

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The Editor,
Cape Times

The report “Gun body to take Tshwete to court” by Gustav Thiel in today’s edition (3 August) is substantially incorrect and misleading to say the least. The report concentrates on, and claims that our case against the Minister is based upon, “corrupt practices” within the firearm licensing procedures.

When we do have evidence of corruption, we take the matter up with the correct authorities rather than waste time and scarce resources by taking the Minister to court. So, we try to do our bit to stamp out corrupt practices, which have been a longstanding problem within firearm (and other) licensing procedures and corruption is (or should be) a matter of serious concern for all honest citizens.

BUT corruption has nothing at all to do with our present efforts to obtain from the Ministry for Safety & Security their official policy concerning the granting/ refusing of firearm licences and to compel it to give applicants sound and proper reasons for decisions to refuse firearm licences. And this lack of the ‘fashionable’ transparency – which is tantamount to the withholding of Constitutional rights – should be another matter of serious concern for all South Africans.

At this point I must stress that the SA Gunowners’ Association or ‘SAGA’ (please note correct name and acronym) accepts the need for proper licensing procedures. We certainly do not want firearm licences issued to those who should not have them – the criminally inclined, the emotionally or mentally unstable, wife-beaters, etc, etc.

I did not tell your reporter that “stupid reasons” were already evidence of corruption or that the reasons given were “not legitimate” – in fact I told your reporter that I had not seen the refusal letters and referred him to Mr Martin Hood for furthers and betters.

Yes, my information is that the so-called “reasons” for refusing licences proffered by the Central Firearms Register often sound more like “excuses” and do not furnish licence applicants with sufficient information on which they could reasonably be expected to base their appeals against such administrative decisions. And, yes, it does appear that there is a discriminatory pattern in refusals at present – which should be a matter of concern for every good citizen, whether firearm owners or not.

For your information: As the necessary regulations have not been finalized, the new legislation (Firearms Control Act, No 6 of 2000) has not yet come into operation.

I trust that you will find space to correct the wrong impressions created by your article. I take this opportunity to propose that you make space available for an (800-1000 word) op-ed piece to set out our position vis-à-vis the new Firearm Control Act or such other firearm-related subject/s as you deem of interest to your readers.

Yours sincerely,
Ron Anger
Trustee  

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This has regrettably resulted in the institution of legal action to obtain details of the new policy against the Ministry of Safety and Security, which is currently opposed by the minister. 

Numerous licence applicants requested reasons for the refusal of their licences, as this is a basic right of all applicants - to be told of the reasons for the refusal of their licences - and such requests have almost universally been ignored or in circumstances where answers were provided, they were unsatisfactory in the manner detailed by the DA in their press release.   

The Minister has just filed an official notification of his intention to oppose the obtaining of a court order to disclose the licencing policy. This shows that the Police believe that they are above and beyond the law and that they do not recognise the basic right of applicants to reasonable and transparent administrative action.

The Central Firearms Registry has also issued a directive instructing the police and dealers to ignore recently promulgated sections of the Firearms Control Act and in the process has assumed that it has the authority to overrule Parliament.
We regard such actions as clearly designed to prevent the public having access to the licencing policy and procedures which takes place in an arbitrary and unreasonable manner and with a total disregard for applicants' rights.

A further series of applications to compel the provisions of the licencing policy in specific instances are planned in due course.  

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We received a total of 317 submissions this year. By far most of them pleaded for the right to possess, bear and use firearms (237). Most of the proponents in this regard mention that the Constitution provides for self-defence, but does not state how one may do so. Various people explain their personal circumstances, such as living on remote farms, smallholdings, etc; working in "rough" areas, having been hijacked, raped and brutalised in other ways, and generally feeling unsafe. Submissions that relate to this aspect include requests for the enshrining of the right of presumption of innocence until proven guilty (9), and to be protected from abuse from police and other officials of the state (2), which lead to the public's homes and persons being searched without a court warrant (4). Some of the submissions combine these aspects. The right to self-defence to be defined and fleshed out was also a popular request (7).

The feeling that criminals are treated better than victims of crime is stated by several people. Requests in this regard include that of prisoners to earn their keep; long-term prisoners not to be granted parole; criminals' rights to be limited while serving their sentences, including that of not being allowed to vote, that rapists be castrated, and that the death penalty be re-instated (26).

In addition, there are submissions requesting that Chapter Nine bodies should be more transparent and more accessible to the public, while another submission states that the appointment of Chapter Nine commissioners,
the size, performance and efficacy of the Commissions are fraught with problems (Mr JM Hargovan's submission).

The issue of multilingualism is mentioned in two submissions, one of which requests that the Khoi, Nama and San languages be recognised as official languages.
Only one submission re HIV was received, requesting that the disease be made notifiable.
Other submissions request that certain rights be enshrined in the Constitution, or that the existing provisions in that regard be put into practice. These include the right to privacy at all times, non-discriminatory taxation, fair legislation, the right to hold intellectual property.

Political requests and suggestions include provisions regarding traditional and indigenous leaders, Khoi-San property rights to be included in section 25(7), MP's to have the right to make known candidates for each constituency before each election, permanent residents to be given the right to vote, Ministers not to amend laws unilaterally, etc.
One person (Mr AB Augustine) requested that the public be educated about the Constitution, and another person asked that amendments to the Constitution be relayed to the public, and that the Constitution booklet be reprinted to include all amendments.
The Free Market Foundation sent in a 48-page submission, touching on several aspects, including the Bill of Rights, Security Services (Police), traditional communities, accountability, property rights, the rule of law, provincial and local government, separation of powers, and transparency. It is well documented, and deserves in-depth research. I will therefor make available a summary of that submission separately, at a later stage.

Vanette van Huyssteen
Committee Secretary: Constitutional Review Committee"

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