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Bulletin Archive |
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SAGA Bulletins from past editions of Magnum Magazine |
Contents:
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| December 2006 | |
Some Good, Some Not So Good By Martin Hood After the recent flurry of activity in making written and oral presentations to the Parliamentary Portfolio Committee on the Firearms Control Act Amendment Bill, and monitoring those of the other parties - pro and anti and the SAPS - SAGA's lobbying work has quieted down somewhat. There is no rest for the wicked however, we are still hard at work, this time helping the SA Police Service with the wording of the regulations required to give effect to the amendments. Let it be noted that this is not an entirely altruistic act - it is in our members interest to have the regulations worded as clearly and unambiguously as possible. It is clear that the Minister wants the amendments promulgated as soon as possible after the necessary parliamentary processes have been completed. There appears to have been something of a hold-up in the National Council of Provinces - it asked for a separate report on the amendments and may find it necessary to call for separate hearings or representations before it can endorse the Amendment Bill. (This probably is as a result of Constitutional Court rulings which invalidated certain legislation on the basis that the NCOP had not properly consulted with the relevant 'interested parties'.) Although SAGA's attitudes/perspectives/objectives (and those of other firearm users' associations) are sometimes diametrically opposed to that of the police, when it comes to regulatory issues, we have to, and must, work with the police. The police also tend to see things from 'their side' and need help and assistance in understanding 'our side', and how laws may affect people in the street. We will also make the most of every opportunity to have parts of the existing regulations revisited so we can help to make them less prone to misunderstandings (deliberate misinterpretation?) and more practical to implement. While such changes would be of benefit to firearm owners, by smoothing implementation of the Act and speeding up the processes, no change to the regulations can grant us 'improved' rights. Only an amended Act can achieve that. To be 'good law' an Act of Parliament and its regulations, should be clear and create certainty - so that everyone can know where he or she stands. The present Firearms Control Act and Regulations score a D-minus on this test. We still have a long way to go. There is some positive news concerning policing. In the Western Cape, a forum, in which some high ranking SAPS members serve, has been established and participants have expressed satisfaction with the way things are going. The Forum's meetings with hunters, dealers and other shooting organizations, have created a much greater understanding of the challenges facing firearm owners in the Western Cape. Only time will tell if this trend will continue. I must also record what must be something of a new record for the SAPS. My local police station completed all the formalities for the renewal of a firearms licence - including a safe inspection and a telephonic interview with the licence-holder's wife (who was overseas at the time) - within four hours. That's right, even faster than same day delivery! The party concerned was a businessman who spends only part of his time in South Africa and who was leaving for overseas the day that he lodged his renewal application. What a pleasant experience for someone who spends much of his time complaining about poor service delivery... I was involved in assisting the businessman. The personnel were concerned that, should they not be able to complete the renewal in good time, the man would suffer undue delays and inconvenience. It is nice to be able to record a positive attitude to service delivery. There are however still many negatives. According to the Parliamentary Monitoring Group's minutes (which are not official or necessarily verbatim), in answer to a question put to him, Commissioner PC Jacobs of the SAPS Legal Services told a meeting of the NCOP's Security and Constitutional Affairs committee that "..no empirical evidence existed to support allegations of a slow down in registrations." I wonder what planet Dr Jacobs is on? He apparently proposed that South Africa should follow the British example where guns were used at clubs and then locked up on the club premises. Furthermore, in the SAPS presentation, Commissioner Jacobs made it clear that cap and ball revolvers, in his opinion, have never been legal. This is clearly wrong. SAPS have been allowing the import of cap and ball revolvers without permits. Many of the 'Explosives Permits' necessary to obtain/possess black powder have been issued to people who have 'unlicensed' cap and ball revolvers. There are many other facts and circumstances which support the view that cap and ball revolvers did not need to be licensed after the introduction of the Firearms Control Act. SAGA is greatly concerned about this. And it is not just about cap and ball revolvers. Parliamentary committees, and the house itself, are often given misleading (or blatantly incorrect) information when discussing issues on which they have little direct knowledge. I recall, for example, an MP 'misinterpreting' the amendment to the Arms & Ammunition Act which made it impossible for a licence-holder to permit his wife, son, father, etc, to have temporary use of a firearm. We will be taking this matter further as we believe that Parliament, the maker of our laws, should not accept 'official' misrepresentations. By the time you read this, the festive season will be upon us. Remember to lock up your firearms and prevent unauthorized access. Do not consume alcohol before (or while) handling or using a firearm. Act responsibly at all times and do not give the police or the public cause to disapprove of your conduct as a firearm owner. Return to Newsletter Page or Return to Top of Page
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| November 2006 | |
Firearms Control Amendment Act By Martin Hood As most Magnum readers are no doubt aware, after some lengthy deliberations, the Firearms Control Amendment Bill was passed by Parliament in September 2006 - which does not mean that it is now 'the law'. The State President still has to sign it, and a date (or dates) from which it will take effect must be announced in the Government Gazette. It is unlikely that the steps required will be taken until the necessary regulations have been drafted, discussed and approved. It is more than likely, however, that some parts of the Amendments will become operative before others - the administratively simple, before the more difficult. There has been a tendency in recent times to pass broadly framed legislation as law, and then to put the meat on the skeleton by way of regulations. This is a very dangerous practice because regulations are not subjected to the same close external scrutiny and debate as Acts and Bills - they are merely introduced by the sponsoring Minister. Because of this, regulations are termed subordinate legislation, i.e. they come second to legislation passed by Parliament. Unfortunately, the current firearm regulations (among others) contain some ultra vires provisions i.e. such regulations exceed the powers granted in terms of the enabling legislation. Regulations are supposed to give effect only to the provisions contained in an Act passed by Parliament and the State President. Technically no Minister is permitted to use his regulatory powers to create new laws, but they try and sometimes get away with it. SAGA has been invited to participate in the drafting of the new regulations and will, as far as possible, try to ensure that the drafters stay on the straight and narrow. Many of the multitude of amendments to the Act are purely technical. As I will not be discussing these in any detail, I will mention one policy change that necessitated amendments to the most sections of the Act - the re-regulation of muzzle-loaders. This apparently simple - and in our view, totally unnecessary - change of policy meant that the term "or muzzle loading firearm" had to be inserted after virtually every provision of the Act that mentions the word 'firearm'. The amendments to those sections that specifically deal with collectors are also substantial but, as the National Association of Arms and Ammunitions Collectors (NAACSA) has issued a comprehensive statement on the practical effects of the amendments, I will not discuss these now. (This document will be available on the SAAACA website.) The intention of the police, the manner in which they want to implement the legislation, and how the changes will directly affect firearm owners will become apparent only when the regulations are finalized. I trust that the comments/interpretations which follow are substantially accurate, but must ask you to treat them as 'transitional' for the time being. There is good and bad in the amendments. One has to also take into account the directive given to the SAPS by the Portfolio Committee and the undertakings received from the police as a result of these directives that are not necessarily contained in the legislation. For example, the police have indicated that, with respect to firearm licence renewals, and subject to compliance with the numerical limitations of the Firearms Control Act, the first four renewals will be relatively straightforward and will not require the same treatment as firearms over and above the numerical limitation. We are awaiting written confirmation and clarity as to exactly what the SAPS mean by this, and how it will be communicated down to station level. In addition to this, another positive aspect (there are not many) of the amendments is that the certificates issued by accredited training providers will now be acceptable to the SAPS for the purposes of obtaining competency certificates, i.e. you no longer need a SASSETA certificate to start your re-licensing or competency processes. This was one of the practical administrative changes pushed for by SAGA and other organizations. The SETA certification process caused unwarranted delays, was costly, and did not serve any practical purpose. Our successful pursuit of this 'concession' can be counted as a victory for logic and as a sign that it is sometimes possible to overcome obstinate and irrational opposition. Competency certificates may be renewed at the Registrar's discretion by filling in a declaration that you still comply with the requirements of the Act. This is a positive simplification of the requirements of the Act, but is discretionary. Competency certificates will also be granted for the same period of validity of firearm licences. This is however potentially problematic because a multiple firearm owner may have firearm licences with different periods of validity. This is a good example of an issue that will have to be provided for in the regulations. The Registrar will now no longer have to insist on a "full set of fingerprints". This practical change to "such fingerprints... as the Registrar may require" should make life easier for those who have lost a finger tip. (On the other hand, if he wants to be especially difficult, the Registrar may require you to submit as many sets as he requires to be certain.) All we need to hope now is that the police don't continue to lose fingerprints. The definition of cartridge has been amended to include primers but exclude percussion caps, which fall under the Explosives Act. This has done away with a grey area of the law where one could possess primers without a firearm licence. Now one definitely cannot. On the downside, the Registrar has been granted greater discretionary powers to refuse a competency certificate. Section 9 of the Act is quite specific about the requirements for a competency certificate - in essence the police had to issue a competency certificate if the applicant complied with those requirements. The definition of a "fit and proper person" has been amended to include "any regulations relevant to the competency of a person to possess a firearm in terms of this Act". This means that the Registrar, through the Minister, may pass regulations, without Parliamentary scrutiny, imposing additional conditions for competency. This is a potentially dangerous and prejudicial situation for existing and potential firearm owners. We will monitor this very closely. Although no reason was given for the re-regulation of muzzle-loaders, and although we don't know how many muzzle-loading firearms have been sold since they were de-regulated about two years ago, the police clearly no longer trust citizens to be in possession of them. However, a compromise was accepted. In order to legally possess a muzzle-loader (as carefully defined in the Amendment Act), you must have a competency certificate but no licence is required. Now an official (SA Qualification Authority) separate unit standard will have to be set up so that people can be trained for, and tested against, that standard. It takes quite some time to create and implement a unit standard - any unit standard - so this could become a serious problem. Please note that this compromise applies only to muzzle-loaders as now defined: can fire only one shot per barrel, and which requires the barrel, after the firing of each shot, to be reloaded. This definition includes all muzzle-loading shotguns, single or double-barrelled pistols, etc but was specifically drafted to exclude cap and ball revolvers. For these you will require both a competency certificate and a firearm licence. No special 'transitional provisions' have been made for those currently in unlicensed possession. This problem will have to be sorted out asap. In the mean time, if you, or anyone that you know, is prosecuted or otherwise hassled about their 'illegal possession' of a cap and ball revolver, please give SAGA the particulars and we will endeavour to help. Specific provisions have now been made to cater for the needs of professional hunters. Paragraph 1.3 of the "Memorandum on the Objects of the Firearms Control Amendment Bill, 2006" reads "To provide for a licence to possess 9 firearms for professional hunting" but this limitation does not appear in the Amendment Act itself. All other numerical limits are set out in the Act and it could be dangerous if limitations can now be imposed by regulation. We again await the draft regulations with keen interest. Restricted and prohibited firearms in the possession of collectors will have to be rendered temporarily inoperable but this has to be given effect by the regulations. We are unable to comment any further at this stage. The periods of validity of certain licences have been extended. The validity of licences for self-defence firearms remain unchanged but licences to possess firearms for business purposes as a game rancher and in hunting have been extended from five to ten years, and for business purposes other than game rancher and in hunting, have been extended from two to five years. The powers of the Registrar to declare someone unfit have been extended. The National Prosecuting Authority had indicated that they have been unable to accept admission of guilt fines from firearm owning "petty offenders" because of the need in terms of Section 103 of the Act for the Court to make a determination as to a person's fitness to possess firearms. If an admission of guilt fine was accepted, the matter never effectively went before a magistrate and such determination was not made. The legislature has now seen fit to allow such persons to pay admission of guilt fines and transfer the power to conduct an enquiry, and the responsibility for making such determinations, to the Registrar. Now, the government, the Minister, and the SAPS, all have an unbounded desire/policy to take as many firearms as they possibly can out of private hands. To achieve this, it is almost certain that any and every firearm owner who takes the 'easy way out' - by paying an admission of guilt fine for a 'petty offence' - will be declared unfit. If you are a firearm owner, seek legal advice before you pay any admission of guilt fine. Return to Newsletter Page or Return to Top of Page
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| October 2006 | |
Amendment Bill Deliberations By Martin Hood Between my writing this and Magnum's appearance on the shelves the Amendment Bill, as finally tweaked by the Parliamentary Portfolio Committee, should have become an Act. Three versions of the draft Amendment Bill were published, the last one obviously superseding the previous two. Although the amendments bore little resemblance to the pro-gun lobby's submissions made from as far back as September 2005. SAGA along with the collectors, hunters, sport shooters, dealers and private individuals made comprehensive written proposals and counter-proposals. After these had been considered, some pro- and anti-gun organizations were invited to make oral presentations to the Portfolio Committee and answer any questions arising. SAGA was one of these organizations. (In some cases this turned out to be something like a TV courtroom drama.) The oral presentations started on 11 August 2006. The Hunters Forum, which includes all the major hunting associations, made a compelling and effective presentation. A number of committee members (including ANC members) told me how impressed they were and said that they now better understood hunters and hunting and how the Bill affected the sport/industry. On 16 August 2006, the collectors, dealers and SAGA had their turn. The collectors too made a professional and compelling presentation that also impressed the Portfolio Committee. The dealers' presentation focused mainly on the lack of service delivery and problems their businesses experienced with the SAPS. SAGA's presentation, discussed the amendments, proposed alternative wordings, criticised the present difficulties with current implementation of the Act, and set out a number of ways to simplify and improve 'service delivery'. The committee allowed anti-gun organizations to make emotional and propagandistic presentations including - raising the minimum licensing age to 25 years and raising the minimum "use under direct supervision" age to 18 years - which would effectively destroy junior sport shooting and hunting. In his proposal that all licensed firearms should be removed from society, a doctor claimed that such action would eliminate 80% of unnatural deaths. I am pleased to report that when cross-examined by the committee he was forced to concede that his 'statistics' mispresented the facts. Unless there have been some behind-the-scenes changes, I am glad to say that none of the proposals made by the anti-gun crowd were accepted by the committee. The Gun Control Alliance wanted the Act to give the police greater powers in domestic violence situations. The committee, as well as the sponsors of this proposal, were somewhat surprised to learn (from SAGA's presentation) that Section 9 of the Domestic Violence Act, which contains many provisions similar to the Firearms Control Act, already adequately caters for situations of domestic violence. Quite clearly neither the police representatives in attendance nor the Gun Control Alliance were really aware of these provisions. When questioned by the committee, a senior police official said that the SAPS were not being told when Magistrate Courts issued a domestic violence order and could therefore not take appropriate action. SAGA has always made it clear that we condemn domestic violence in all its forms. We informed those present that every Magistrate's Court has a domestic violence Magistrate to help victims obtain domestic violence orders. We confirmed that this allows a Magistrate to order the removal of any dangerous weapons, including firearms, from a domestic violence suspect if facts sufficient to justify such an order are brought to his attention. We are aware of cases where the police remove firearms in terms of such orders... and refuse to return them when they should. Victims of domestic violence should speak to their local police station commander or contact the Clerk of the Court at their local Magistrate's Court for further guidance or assistance. Organisations such as POWA (People Opposed to Woman Abuse) are another reliable source of help - their telephone number is 011-642-4345. The strongest influence on the Portfolio Committee's deliberations was, naturally, that of the organization that presented the Bill for consideration and is responsible for its implementation - the SAPS. It is sad and unfortunate that some SAPS representatives are not above 'misrepresenting the facts' in order to achieve their objectives. For example, the SAPS has told the committee that it takes 6 to 8 weeks to obtain a licence and that cap-and-ball revolvers have never been legal, so there is no need for transitional provisions to regularize them. SAGA made comprehensive representations on this issue and stated inter alia that the Chief Inspector of Explosives is issuing permits without requiring applicants to have a licence for cap-and-ball revolvers. The Central Firearms Registry has cancelled licences for cap-and-ball revolvers still in the possession of their (now unlicensed) owners and there have been no prosecutions, or convictions for illegal possession of cap-and-ball revolvers. So how can the SAPS now claim these are illegal? One of the more sensible proposals to speed up 'service delivery' was to eliminate the requirement that SASSETA issue proficiency certificates. The SAPS will now accept certificates issued by accredited instructors - thus cutting out one source of unnecessary delays. Another pragmatic 'short cut' is that applications for the renewal of existing licences will be approved without having to "prove a need". The numerical limits and other provisions of the Act still apply. We had some successes and some failures. We renewed acquaintanceship with some committee members and we believe that there is an increasing respect for what we as a group of organizations stand for as well as for the community we represent. It is of the utmost importance that the firearm community be represented throughout such proceedings - preferably by a variety of individuals who present a united front. The hunting and collecting communities in particular have realised the need to lobby on an ongoing basis. Return to Newsletter Page or Return to Top of Page
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| August 2006 | |
Amendment Bill By MARTIN HOOD Here follows SAGA's submission to the Parliamentary Portfolio Committee on Safety & Security on the latest amendments to the Firearms Control Act. 1. The South African Gunowners'
Association (SAGA) welcomes the opportunity to democratically
participate in the process of formulating legislation. Existing Licences Definition of Ammunition Definition of Muzzle-loading Firearm Silencers Replacement of Juristic Person
(Section 7) Ownership of Firearms by a Trust Cancellation of Accreditation (Section
8) Competency Certificates for
Muzzle-loading Firearms Collectable Firearms (Section 16) Rendering Inoperative Validity of Licences (Section 27) Sale of Muzzle-loading Firearms Export Permits (Section 96) "Dispossession" (Section
118) Additional Licences (Section 119) Section 132 Schedule of Offences CONCLUSION Return to Newsletter Page or Return to Top of Page
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| July 2006 | |
Firearm Control - Last Chance to Act? By Martin Hood On 31 May 2006, the SA Police Service briefed the Parliamentary Portfolio Committee on Safety & Security on the provisions of the revised draft Firearms Control Amendment Bill. The draft Bill is available from the link on the Home page and we suggest that you, as a concerned party, take the time to read it and send your written representations/objections to: The Secretary, Parliamentary Portfolio Committee on Safety and Security, PO Box 15, Cape Town, 8000. We have been assured that, once the Bill is numbered and published in the Government Gazette, invitations to comment will be published in major (Sunday?) newspapers. What follows is not an exhaustive analysis of the Bill's provisions, but it will serve to inform you about some of its likely effects. Only when we have the closing dates for representations will SAGA finalize its 'official' submission - for which your input will be welcome, so send a note (or a copy of your own submission) to SAGA, PO Box 35203, Northway, 4065; fax 031-562-0530; e-mail <saga@saga.org.za>. When the Bill was first published, it was said to embody the recommendations of the firearm community. This was not so - our input was largely ignored. The revised Amendment Bill again takes little cognisance of the input the affected parties prepared at great expense. Indeed, in some respects the requirements of the Bill are now more restrictive than before. I will try to refrain from political commentary, and suggest that you do the same when drafting your representations. Confine yourself to comment on the lawfulness, constitutionality, fairness and practical problems that will arise from its implementation. The most important change from the version published on 24 February 2006 is that Section 24 will not be deleted from the Act. This is the section which requires that all existing licences must be renewed. Government has changed its mind. The scrapping of S24 was one of the few positive proposals contained in the original draft Bill. It appears that this change of heart was caused by fear - the fear of claims for compensation from those who have been refused licences, or from those who have handed in firearms. If the SAPS think that this will eliminate compensation claims, they should think again. Every individual has the right to claim compensation if they believe that they are entitled to it and the Act specifically provides for it. The police originally proposed to remove the relicensing provision from the Act in order to reduce their administrative burden and help make the Act a little easier to implement. SAGA has not changed its mind. We believe that all existing licences remain valid, that statutory recognition should be given to this, and that all that is required to update the Central Firearms Registry's database is a proper audit of firearms. Section 24 must be deleted from the Act because that would benefit licensed firearm owners and the SAPS - a win-win situation for a change. The new Bill deletes the definition of "antique firearm", i.e. "any muzzle loading firearm manufactured before 1 January 1900, or a replica thereof", and inserts a new definition for a "Muzzle loading firearm - a barrelled portable weapon that can fire only a single shot per barrel and which requires after every shot fired the individual reloading through the crown of the barrel with separate components consisting of a measured black powder charge, wad and pure lead ball to enable it to function as a projectile and further primed, with a flint lock or percussion cap". This effectively excludes cap and ball
revolvers from the definition of muzzle loading firearm which implies
that they will need to be licensed. However, no provision is made in the
Bill for this to happen, and the Bill does not state what owners of cap
and ball revolvers must do to legitimate such possession. The definition of "cartridge" has now been expanded to include rim fire and shot cartridges. The definition of "juristic person" has been amended to include trusts. Effectively, should a trust now wish to own firearms, the Trust Deed must specifically provide for such ownership and must specify the purpose for which the firearms are to be owned. The definition of "occasional hunter" has been changed to provide that such a person does not have to be a member of an accredited association. The same applies to the definition of "occasional sports person". This clarity is welcomed as the SAPS can no longer refuse licences for sporting or hunting purposes because the applicant is not a member of an accredited association. Section 3 is to be amended to provide that no person may possess a muzzle loading firearm unless in possession of the "relevant" competency certificate. It is not clear from the Act whether current competency certificates will cover muzzle-loaders or whether a separate competency certificate is required. Those who are in possession of muzzle loading firearms when the amendment Bill comes into effect will have a year from the date of promulgation to apply for that competency certificate. Thereafter, possession of a muzzle loading firearm, without a competency certificate, becomes illegal. Section 4 is to be amended to provide that "a device designed to be attached to the barrel of a firearm in order to muffle the report" becomes prohibited - but that the Registrar may authorize the possession of such a device on application in the prescribed manner. From the Parliamentary presentation it seems the SAPS think that the only legitimate use for silencers is culling by game ranchers. Exhaustive submissions have already been made to SAPS in this respect and these will be repeated to the Portfolio Committee. Silencers have benefits in training, for people who have a hearing deficiency and in the general hunting environment. Section 6 is to be amended to provide that it not be necessary to supply a full set of fingerprints each time one applies for an authorisation permit or licence in terms of the Act. The rationale of this proposal seems to be to reduce the number of fingerprints that the criminal records centre has to process each time a person submits an application in terms of the Act. This is an implicit recognition of the inability of the existing structures to cope with the workload imposed upon them. The proposed amendments to Section 7provide for an easier process to substitute a responsible person in respect of a juristic entity but such replacement must be in possession of a competency certificate. The definition of "juristic person" is extended to include a Trust, subject to the conditions referred to above, and the Trust may only possess firearms as long as the possession is necessary to achieve the stated intended purpose of that Trust. Section 8, the section that deals with
the process of accreditation, will be extended to include a process to
cancel accreditations where the accredited entity no longer qualifies,
or has contravened the terms of the accreditation. The principles of
natural justice and constitutionality are however incorporated into this
proposal and it therefore appears acceptable. As the Act currently stands, a competency
certificate is valid for a period of five years. The proposed amendment
seeks to align the periods of validity of your competency certificates
and licences. Clarity needs to be inserted into the Act to ensure that
the competency certificate remains valid for the licence that is issued
for the longest period. A positive proposal occurs in Section 16 which proposes the deletion of the magazine restriction of five rounds in respect of restricted firearms for dedicated hunting and sports shooting. Collectable Firearms This is extremely problematic because the Heritage Act relates only to artefacts (which includes firearms) of South African origin or value. In other words, the Heritage Agency (a statutory body) is restricted to certifying objects of South African heritage value. This means effectively that if a firearm does not have South African heritage value, it cannot be certified as 'collectable' and cannot be licensed as such. There is also a big question as to whether or not the Heritage Agency has the capacity to comply with the obligation imposed upon them in terms of this amendment. Unless corrected, this amendment will simply destroy firearm collecting in South Africa, other than for South African firearms. Further restrictions are proposed in
respect of the collecting of restricted and prohibited firearms in that
the collectors' association must now certify a person as being qualified
to collect a specific firearm, and prohibited and restricted firearms
must now "undergo such reversible non damaging procedure as may be
prescribed in order to ensure that no cartridge can be loaded into or
discharged from that firearm". Section 19, which deals with firearms in public collections, is to be amended to provide for further restrictions for the display of such firearms. Section 21, which deals with the issue of temporary permits to possess firearms, is to be amended to provide for the cancellation of such permits. The periods of validity of licences have been changed in respect of business firearms for game ranching and hunting from five to ten years, and for businesses other than game ranching and hunting, from two to five years. Section 31 is to be amended to provide
that muzzle loading firearms can only be purchased from a licensed
dealer in arms and ammunition. Furthermore, a muzzle loading firearm can
only be disposed of, if not through a dealer in firearms, in accordance
with any terms and conditions that a designated firearm officer may
impose. Section 102 is to be amended to enable
the Registrar to declare a person unfit to possess a firearm, or muzzle
loading firearm. The procedure to declare someone unfit by the Registrar
remains unchanged. Please note however, that it appears that one can be
declared unfit to possess firearms if one pays an admission of guilt
fine as contemplated in Section 103(6), in respect of any offence
committed in terms of Section 103(1), (2) and (2)(a). A new Section, 102 (2)(A), allows the
Registrar to proceed with a Section 102 enquiry into a person's fitness
to possess firearms, "upon proof that the notice contemplated...
was duly delivered or tendered to the person." What seems to be
intended by this is, where there is no compulsory declaration of
unfitness by a Court (as is currently the case), the Registrar may then
institute an enquiry to declare a person unfit in terms of Section 102.
This means the enquiry may take place in the person's absence. This must
be opposed vigorously. Section 111 is to be amended to allow the search of persons by a police official or any person authorised thereto by the National or Provincial Commissioner. We view this as a contravention of Section 14 of the Constitution. What is of great concern also is the fact that the section allows search and seizure of any firearm, muzzle loading firearm, imitation airgun device or ammunition, without any reason. Section 114 has extended the powers of ballistic testing to include muzzle loading firearms. Mysteriously, the police havechosen not to amend that part of the section that allows them to "otherwise dispose of it (a firearm) in terms of this Act". This still allows the police the power to dispose of a firearm by destroying it when no offence has been committed and without the necessity to return it to its lawful owner. Section 117 will be amended in respect of
presumptions of possession to include muzzle loading firearms. A new section 119(A) is to be inserted into the Act. This deals with presumptions of possession, loss or dispossession in respect of additional licences i.e. firearms where two licences have been issued for the same firearms. What is of concern here is a new concept of "adequate documentary proof of the handing over and receipt of the firearms". This implies that where more than one person is licensed to possess the same firearm (typically a husband and wife), a register will have to be kept to record changes in physical possession between the principal licence holder to the secondary licence holder. This appears to be ridiculous and the rationale for it is unknown. The offences section, Section 120, is
amended to extend the offences involved in firearms, to include muzzle
loading firearms. Section 136 is to be amended to include muzzle-loaders. This section deals with items to be destroyed by the State without compensation being payable. It still stipulates that "The Registrar may... issue a notice in the Gazette stating that it is the intention of the State to destroy..." giving twenty one days for anyone to make claims of such objects. SAGA is of the opinion that the Registrar must issue those notices. This will ensure that the Registrar is obliged to disclose details of what firearms and ammunition he intends to destroy and would thus not be allowed to do so without public scrutiny. Section 149 appears to contain an inherent contradiction. Section 149 states that any firearm confiscated by the State must be destroyed by the State within six months after date of forfeiture or the failure of all possible appeals by the owner of the firearms. Sub-section 2(b) however states that the items remain the property of the owner thereof until its destruction, but sub-section 3(b) states that the muzzle loading firearm, or firearm, becomes the property of the State when the Registrar informs the former owner of the fact that the object belongs to the State if it has any special value. This seems to conflict with sub-section 149(2)(b). The new sub-section 4, states that
firearms may only be destroyed having regard to the provisions of the
National Heritage Resources Act and only with the written consent of the
Registrar. Return to Newsletter Page or Return to Top of Page
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| June 2006 | |
Arms Control or Disarmament? By Martin Hood The presentation on the Firearms Control Act and the proposed amendments given by SAGA's Martin Hood at "Security 2006" a conference presented by the Institute for Strategic Studies of the University of Pretoria on 4 May 2006. As a legal practitioner, it is my duty and responsibility to deal with facts. Facts are then interpreted and conclusions can be drawn from such interpretations. This presentation will argue that, on the basis of the facts provided or, more precisely, the lack of facts, it is clear that the Firearms Control Act 60 of 2000, as amended, hereinafter referred to as "the Act", is part of an incremental process of gradual but steady disarmament of civilians in South Africa. Cheadle Thompson & Haysom Attorneys,
on behalf of the African National Congress (ANC) in 1993, before they
came to power, in a written submission to the Goldstone Commission made
it absolutely clear that the ANC envisaged incremental disarmament of
the civilian population of South Africa, should they come to power, and
that national legislation would be enacted to give effect to this. In brief, the first drafts of the Act were prepared, allegedly, without the then Minister for Safety & Security's consent, and when he was confronted with drafts of the Act, Minister Mufumadi denied any involvement in the proposed Firearms Control Act. This was because when he was appointed Minister for Safety & Security in 1994 he stated the following: "The problem does not lie with licenced firearms, but with illegal firearms. Persons in possession of licenced firearms display a far greater responsibility when using their firearms because they can be easily traced through the Central Firearms Register". Furthermore, during the same parliamentary session, Minister Mufamadi stated in response to the following question, "Whether his department intends to introduce any legislation with a view to: a) restricting the number of licenced firearms in private ownership; and b) bring to an end private licensed ownership of firearms in the Republic". The official reply to each question was a simple "No". The Act was finalised after more than sixty different drafts were created and amended by SAPS Legal Services and Consultants and was passed by Parliament in October of 2000. It however only came into effect during 2003 in respect of the accreditation provisions of the Act and the full Act was implemented in July 2004, after the regulations had been hastily prepared and assented to by the Minister. This occurred amidst a chorus of protests from civil society saying that the Act was too complicated, that the regulations had been rushed and most importantly, particularly in retrospect, because SAPS did not have the capacity to fully implement the Act, both in terms of training, skills, resources and capacity. The initial response to the Act was slow,
particularly in terms of the accreditation and competency procedures and
many people have argued this was because of ongoing resistance to the
Act. The first re-licensing process commenced on 1 January 2005 and was
due to end on 31 December 2005. The response during the first nine
months of the year was slow and this led to increasingly belligerent
threats by the South African Police Services against members of the
public, threatening that non-compliance would lead to prosecution. 1. 15 December 2005 - "After that
date (30 June 2009) a person who has not applied for a renewal of a
licence and has not disposed of a firearm may be prosecuted for illegal
possession of a firearm". If you are confused, don't worry because so too am I. How can I be prosecuted for not renewing my licence when it remains valid? During the same time period, an amnesty for three months was declared from January 2005 to March 2005 and which was subsequently extended until June 2005. During this time (and once again there are confusing figures in this respect), some ninety thousand licensed and legally possessed firearms were handed in, many once again would argue, as a result of the belligerent attitude of SAPS in demanding that people hand over surplus firearms for destruction because they would not be able to re-licence them and they would face prosecution for non-compliance with the Act. If one examines documents used by the
SAPS, e.g. A pamphlet entitled "My Mzantze, Our Country funded by
the European Union" it states that the purpose of the Act is: There is nothing mentioned about preventing or eradicating crime. The Star newspaper of 7 October 2005, nearly half a page out of a two page feature, is devoted to "unwanted firearms and how to dispose of them". In a bulletin issued by the SAPS Communication and Liaison Services, a third of a page is devoted to what one should do when disposing of unwanted firearms. There are many more examples at local police station levels with the emphasis on the surrender of firearms as opposed to the re-licensing of firearms. It is quite clear that the priority of SAPS, in familiarising the public to the provisions of the Firearms Control Act, was to ensure that as many licensed firearms were handed in as possible, as opposed to being re-licensed. Who were the people who handed in their firearms in terms of the amnesty? The old, the infirm and those people who felt that the re-licensing process was designed to be so complicated, and so intimidating so as to actually discourage people from going through the re-licensing process. I will summarise the re-licensing and licensing process a little later on. The police continued with their belligerent intimidatory attacks towards members of the public to coerce the public into surrendering instead of re-licensing their firearms. This was in stark contrast to a number of legal opinions, obtained both privately and from within Government circles, that gave a clear indication that it may be unconstitutional to take away an existing firearm licence, because it was granted for life, and if the person is otherwise competent then one cannot legislate away such right. There was another train of thought within the SAPS and broader Government that made it clear that the transitional provisions of the Act clearly stated that a licence was valid for five years after the date of implementation of the new Act. Only on 15 December 2005 did the Minister acknowledge, as per his press release that: "Any licence which was issued in terms of the Arms and Ammunitions Act, 1969 and which was valid immediately before the date of the commencement of the Firearms Control Act 2000, remains valid for a period of five years from which the date of the Firearms Control Act of 2000 came into operation,1 July 2004…". Only in the dying days of the re-licensing process did the Minister and the police finally admit and reveal that all existing licences remained valid for five years after the date of implementation of the Act, i.e. until 30 June 2009. No explanation has been provided to the public as to why this announcement was only made right at the very end of the first re-licensing period and not sooner. We should now re-examine why the ninety thousand guns were handed in during 2005 and during the amnesty period, as well as the many firearms that were handed in for destruction after the end of the amnesty period by the licensed owners, and after such examination Government's intention becomes clear. The police wanted to intimidate as many people into surrendering licenced firearms before they were forced to admit that these licences would be valid until 2009. This disclosure may have caused many people who handed in firearms not to do so. The situation has been complicated further by virtue of the proposed amendments which I will deal with below, which now propose that existing licences remain valid indefinitely. There is no clarity from SAPS or Government at this stage as to what the implications are for a person who had to re-license their firearm and who is refused one or more of such firearms when someone born after March may keep all their existing licences. Clearly this result is both arbitrary and unreasonable, arbitrariness and reasonableness being the two yardsticks used to determine whether legislation passes constitutional muster. The first re-licensing process was extended by the Minister until 31 March 2006, and during this period the Minister chose to publish a series of amendments (24 February 2006) which, amongst others, proposed to keep all existing licences valid. As an aside, this is the third set of proposed amendments to the legislation, two of which have been passed by Parliament. Before I deal with the amendments, there are two brief points I want to make. The first is from a factual - statistical perspective. I, and I am aware that many members of the media, as well as the organisation that I represent, have asked SAPS for statistics on, inter alia, the following: 1. How many new licences have been issued
in terms of the Firearms Control Act (do not include licence renewals)? The re-licensing process has been characterised by a shroud of secrecy. Notwithstanding Section 33 of the Constitution and the Promotion of Access to Information Act, and the Just Administration Act, the Central Firearms Registry is extremely reluctant to release current statistics on the categories I have just mentioned. It appears that there has been a virtual black-out of information from the Central Firearms Registry since the new Act was implemented. Under the old Act, approximately 120 000 licences were processed per annum. This however came to an end when there was a radical undisclosed change of policy during 2003. This change of policy was admitted implicitly during 2004 in a letter addressed by the Minister, and signed by him, to the Black Gun Owners Association, where he admitted that licence refusals had climbed from an average of 14% during the preceding years to 71% during 2003, but could not provide an explanation for this increase in refusals. Bear in mind that the Arms and Ammunitions Act 75 of 1969 was still applicable at this stage. This increase in refusals could only have come about as a result of changes in (undisclosed) policy and new licensing criteria. However because of the democratic manner in which SAPS operates, these policy changes and licensing criteria have yet to be disclosed and reasons are not properly given for licence refusals (the reasons have been described by Judge Roux, Pretoria High Court, as being "like an automatic teller machine slip"). Licence refusals remain arbitrary and unreasonable. In order to play fair with the SAPS I once again addressed a request to the Central Firearms Registry explaining the need for information for this conference and I have not, as yet, received a response. My conclusion, based upon the secrecy of the Central Firearms Registry and their refusal to provide statistical information is quite clearly not only to cover up their own administrative inadequacies in dealing with the requirements of the Firearms Control Act but it is also to conceal the abysmally low number of new firearm licences that have been granted, and the number of competency certificates that have been granted and refused. A competency certificate is a precursor to being able to possess a firearm licence. At this point, I would like to briefly explain the process of obtaining a licence. One must first be trained by an accredited training provider and one is then given a proficiency certificate. The training provider applies to SASSETA (Safety and Security Electoral Educational Training Authority) for the official SETA certificate which then has to be submitted at a firearm registration centre with an application for a competency certificate. SASSETA is taking anything from three weeks to a year to issue certificates for reasons best known to themselves. As a result of SASSETA's inability to issue certificates, SAPS finally relented and accepted training provider certificates for the re-licensing process, but not for new applications. A competency certificate requires a background enquiry where you are required normally to bring three persons, including your significant other, to the police station to give testimonials on your behalf. Thereafter, a safe inspection takes place and the police officer is expected to make a psychological recommendation as to your fitness to possess firearms. Normally these recommendations are made after you have completed the paperwork, and without your input. Those recommendations are critical, and are, on the part of the police officer, subjective, and they require the police officer to make a professional assessment of someone's ability to possess firearms and such police officer is not equipped with the necessary training to do so. It is significant that psychometric testing was proposed in earlier drafts of the Act and was dropped as a result of expert evidence presented to the SAPS and the Portfolio Committee that psychometric testing would not work. The response of the SAPS seems to have been to allow police officers to test and evaluate a person's fitness to possess firearms without the legislative authority to do so. Only once you have been granted a competency certificate are you then fit to apply for a firearm licence renewal. At this point, I would like to move on to the amendments simply by stating that the implementation of the Act has been extremely problematic, to be polite, and has been riddled with inconsistent application of the Act, and unconstitutional application of the Act, intimidation of firearm owners, partly because of a lack of proper training given to the SAPS, but most probably because of a policy, written or otherwise, encouraged by senior management within the SAPS to discourage people from obtaining or re-licensing their firearms. I will certainly with pleasure, during the question session, give examples of how the Act has been applied and how courts have intervened to overturn the conduct of the SAPS. Appeal Board Section 34 of the Constitution states: "Everyone has the right to have any dispute that could be resolved by the application of law decided in a fair public hearing before a court, or where appropriate another independent and impartial tribunal forum". The Appeal Board is appointed by the Minister for Safety & Security in a closed process and it has been made clear to us that the Appeal Board is in fact drafting policy and making policy decisions relating to the issue of firearm licences. The Appeal Board is neither impartial nor fair. It also does not give reasons for its decision, simply stating when an appeal is refused "the Appeal Board has decided to uphold the decision of the Commissioner". Proposed Amendments The amendments were quite broad and comprehensively deal with many aspects of the Act. The Minister publicly stated that the amendments were proposed to close loopholes in the Act. This should tell us something about what the intentions were regarding the amendments. It is certainly not a facilitation of licensing, but rather imposes greater restrictions. I have chosen to focus on a few selected areas of the proposed amendments. The first one is search and seizure. It is simply proposed that the SAPS powers of search and seizure are to be extended to private residences, without any restriction. The person searching the residence does not even need to be a police officer, it can be someone nominated by the Registrar of firearms. Section 14 of our Constitution says: "Everyone has a right to privacy which includes the right (a) not to have their personal home searched". The next proposed amendment is in respect of the granting of competency certificates. If you have a criminal conviction (involving drugs, alcohol, firearms or violence, etc, as specified in section 9 of the present Act) and were not sentenced to a period of imprisonment without the option of a fine, five years after your conviction this offence should no longer be taken into consideration for 'competency' purposes. This is a normal process in all Western countries that recognise a person's punishment and rehabilitation. SAPS don't like this and have proposed to change the competency requirements so that any criminal conviction can be used against you regardless of how long ago it was and what changes you have experienced in your life over a period of even thirty or forty years. A simple example that I am dealing with is the person who forgot to mention he paid an admission of guilt fine of R40,00 in 1976 for not displaying a third party token and now has been charged for a criminal offence for not disclosing his criminal conviction and has been refused his competency certificate. These abuses are widespread and it is clear that SAPS have a need or a requirement not to deem persons competent because the argument then is created that if you are competent to own firearms, you should own firearms because you have a legitimate expectation of being granted a licence. The amendments have shifted the focus away from the actual granting of the licence to the examination of whether a person is competent or not and the requirements for competency have been radically tightened. The third aspect that I want to briefly look at is that of collectable firearms. The amendments propose that all collectable firearms should be rendered inoperable. This is akin to being allowed to own a motor vehicle but not drive it. Collectors are amongst the most responsible, if not the most responsible, group of firearm owners in the country for a variety of reasons. They do not commit crimes with their firearms, and on the occasions when the police have tried to take action against collectors for alleged offences, the police have had charges frequently dismissed. Now the Minister wants to render their firearms inoperative. It is clear from the shroud of secrecy hovering over the Central Firearms Registry, the undisclosed licensing policies and decision making processes, the inability or unwillingness of the Appeal Board to comply with their legal mandate, the interference in policy issues and the general misapplication of the Act, that the Firearms Control Act is not only not working, but that the politicians are agitating for more restrictions on licensed firearm owners to decrease the number of licenced firearms in this country. How does this relate to the security industry? Very simply as follows. There are more security guards in this country than police and many police stations rely upon private security companies to provide security to the police stations. Private security companies patrol residential properties more than the police services have the capacity to do and static guards protect and control access to a multitude of buildings including the majority of government buildings. A high percentage of security guards are armed or need access to firearms but the current Act has not facilitated the issue of new firearm licences. Finally, this year is the year in which the largest single group of firearm owners need to re-license their firearms i.e. business firearms, and security officers who possess firearms for business offices need to be granted competency certificates to be in possession of such firearms. There is no indication at this stage as to the ability of SAPS to comply with this legal requirement and this will no doubt necessitate at the dying stages of this particular process some form of extension or amendment to the Act. My final comment is that at all times before, during and after the creation of the Act, the Act was promoted as a crime-fighting tool. How many crimes has this Act prevented and how many crimes has it solved? I eagerly await the SAPS response. FCA UPDATE: AMENDMENT BILL PROGRESS While there has been no official news about the progress (or lack thereof) of the Amendment Bill and it has mostly been quiet on the media front, the backroom boys are being kept quite busy. Unofficial feedback is that the volume and length of the representations received from the public and firearms/hunting/shooting associations was much greater than anticipated and accordingly it has taken much longer to analyse them and prepare a comprehensive summary for ministerial consumption. Well done to all those who took the time and made the effort to express their views and opinions on this important subject. There is a downside however: at the conference at the Institute for Strategic Studies, it was said that the Minister is displeased with the threats of claims for compensation flowing from the adverse consequences of the proposed amendments on those people who are January, February and March babies and who may be refused licences, and from those who have handed in firearms because they believed that they had no option but to do so. SAGA views this attitude with alarm, scepticism and concern. Government painted itself into the corner in which it now finds itself. It is now clear that government cannot continue to punish firearm owners (for this is what it is in reality) as the result of its own ineptitude. If you surrendered a firearm because you
believed you had no other option, or if you know someone that did so,
please refer them to Section 149(2) of the Firearms Control Act which
states "any firearm or ammunition forfeited to the State in terms
of this Act This means effectively that anyone who handed in a firearm is entitled to claim it back in light of the Government's change of attitude. Go and do so immediately. It now seems unlikely that the Amendment Bill will be presented to Parliament during May 2006 as originally intended. Watch this space, or SAGA's website, for news on the Bill as things develop. Return to Newsletter Page or Return to Top of Page
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| May 2006 | |
Challenging the Bill By Martin Hood Only a masochist could call the past month 'pleasant'. The draft Firearms Control Amendment Act has dominated activities within the firearms fraternity as organisations geared up to respond - in as constructive as possible a manner - to the proposed amendments. It was gratifying, however, to note the high degree of interaction and co-operation between different sections of the fraternity during the two United Firearms Forum meetings held to co-ordinate our efforts to protect the rights of all firearms owners. The first meeting - attended by
hunters, sports shooters, collectors, SAGA, dealers, professional
hunters, trainers, etc - agreed that our individual associations'
submissions to the Minister, the Parliamentary Portfolio Committee and
to the SAPS Legal Advisors should be guided by eleven mutually agreed
points. These are: At the second meeting (held at this year's AIM Show), robust debate took place between the organizations as to how the amendments should be approached. One must always bear in mind that the specific interests of hunters for example are not the same as collectors. In the case of the 2006 Amendment Bill, collectors seem to be bearing the brunt of Government's apparent desire for further restrictions. It is a matter for concern that the amendments do not give any indication as to the rationale or reasons why such oppressive restrictions are necessary. In our submission on the Bill, SAGA emphasized that this lack of cogent reasons - besides other obvious unconstitutional elements - may mean that the proposed amendments are unreasonable and irrational and would therefore not pass constitutional scrutiny. Only time will tell how the Minister reacts to these comments. At all the recent meetings with various associations it was extremely pleasing to see the level of participation in debate - clearly the established firearm organizations are devoting a great deal of time and energy to educating their members and informing them on what the amendments mean (or could mean) and on developments in firearm law in general. This is a far cry from ten years ago when SAGA was about the only organization actively and continuously engaged in challenging government and the SAPS in respect of firearm ownership matters. Today, all of the organisations have committees or representatives to deal specifically with the challenges and burdens we face under new legislation. A positive development (no lawyer jokes please!) is the fraternity's increasing involvement of legal professionals. It is quite clear that our organizations have recognized the growing need for professional advice, not only so that they can advise their members, but also to enable the organizations/associations to properly interpret and apply the legislation. This is essential in the absence of any assistance from the SA Police Services in forming a policy on how the Act is to be interpreted and applied. The Minister has said that the proposed amendments will be passed through parliament in May. This is of grave concern to SAGA because we believe that the amendments are badly formulated, infringe many rights, and that 'panel beating' them - into even a moderately acceptable shape - will require time and a great deal of work. Let me reiterate that SAGA is opposed to the Firearms Control Act in principle - because it regulates a sector of the population that does not need more regulation... indeed licensed firearm owners are probably the most law-abiding segment of society. However, when opposing certain provisions of the Act and the manner in which it is drafted, interpreted and applied, we have to participate in a lawful manner. Notwithstanding our personal objections, the Act is the law and has to be obeyed. SAGA therefore negotiates with Government and offers the expertise and knowledge it has in order to improve the law while still challenging Government, and the SAPS, where appropriate. The large number of firearm owners who remain ignorant of their rights and obligations is another matter of great concern. With the end of the second licensing deadline, the SAGA office was once again swamped with frantic, last minute queries, predominantly from non-members. It is amazing how people can find SAGA when they need them in a great hurry, but are not prepared to pay the minimal R70 membership fee. SAGA has a proud twenty-one year history of protecting your rights, at relatively little expense to members. SAGA's ongoing existence depends upon fee-paying members. Make sure that your friends, family and neighbours know about us and join and support SAGA. SAGA's stand at this year's AIM Show was bustling and busy for the entire duration. Much information was available for members, not only on the new amendments, but in respect of their general obligations in terms of the Firearms Control Act. Well done and thank you to the Durban crew who came up to Johannesburg to run the stand and to the local volunteers who offered their assistance. It seems that shooting, hunting, firearm associations are now offering more services to members and at the show the Bushveld Conservation Bureau, and the SA Defensive Pistol Association were not only recommending and encouraging SAGA membership but also making SAGA membership compulsory for their members. (For further information on these organisations, or a club near you, phone Francois de Klerk of the Defensive Pistol Association on 083-708-7220 or Neil Jones on 083-655-0348 for problem animal control hunting opportunities and advice.) By the time you read this, the time for the initial representations on the Firearms Control Act amendments will be long past. A copy of SAGA's submission is available on our website. SAGA co-ordinated the collation of the submissions made by various associations and has distributed them to Government functionaries, the Portfolio Committee on Safety & Security, and others on behalf of the United Firearms Forum. We don't want anyone who could influence the content of the Bill in its passage to becoming an Act to be able to plead ignorance about the very valid concerns of the firearm fraternity. Next month I will try to bring you further news of developments - watch this space. Return to Newsletter Page or Return to Top of Page
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| April 2006 | |
FCA - Proposed Amendments By Martin Hood By its very nature a Bill or draft Bill
is subject to changes. These changes may come about as a result of a
rethink within the Ministry concerned, its legal advice, the debates and
inputs to the Portfolio committee, representations of the 'interested
parties', the general public, political parties, media reaction, etc,
etc. When the government of the day enjoys an outright political
majority, however, changes seldom result from the debates in Parliament
itself - our MPs are seldom free to vote with their consciences, they
have to toe the party line. The SA Gunowners' Association (SAGA - not
to be confused with GOSA) has always maintained an informal liaison with
the SA Police Services, government, as well as other firearm
organizations and interest parties (political or otherwise). Practical
politics (and firearm ownership) necessitates these contacts and it
happens across the world with all governments. In the United States of
America for example it is a recognized profession to be a 'lobbyist'. When we at last had sight of the
Amendment Bill we were, to put it mildly, very disappointed - in fact
some of the proposals are horrifying, and others seem to be totally
pointless. We are aware of no evidence of crime
being committed with black powder muzzle-loaders nor of any other abuse.
Notwithstanding this, the amendments propose to make it necessary to
licence modern replicas of muzzle-loaders. In other words, the exemption
fought for and granted in terms of the new Act would now fall away. No
explanation is given as to why modern replicas should be re-regulated
when originals manufactured before 1900 do not require a licence. Both
objects can achieve the same purpose in exactly the same way. Something
seriously seems to be amiss (if not sinister) in the thinking on this
issue - it certainly is not logical. The Bill proposes that collectors should have the number of cartridges that they can possess without a special permit reduced from 200 to 10. Again the reasoning behind this is inexplicable and absent. Cartridge collecting is very specialized and if you take the lifespan of a cartridge such as the .308 Winchester, there are many hundreds of different manufacturers and types of cartridges. This proposal will effectively destroy cartridge collecting. Provision will now be made to enable the Registrar to cancel the accreditation of associations and other bodies - something the Registrar has threatened to do, but has been unable to do in the absence of a specific procedure. This follows a number of other increased powers that have been granted to the Registrar that should be of great concern. The Registrar's powers to refuse a competency certificate will be increased to extend beyond the current provisions of Section 9 of the Act that allows you to apply for a competency certificate if you have been convicted of a certain category of offences (basically related to violence, alcohol or drugs) after the expiration of the five year period after your sentence has been completed, and subject to you not having served a prison sentence. This provision did not suit the SAPS because a number of competency certificates have been refused to those who paid admission of guilt fines or who had criminal convictions dating back longer than five years. Both of these types of convictions should not have been taken into account in assessing competency, but they have been and have resulted in the refusal of competency certificates. The Registrar now wants to delete the
five year time period so that he may utilise criminal convictions that
are older than five years after completion of sentence. This means that
the anomalous and possibly unlawful situation will arise where people
who have previously been granted firearm licences (and by implication
therefore being declared fit to possess firearms) may now lose their
firearm licences because of a conviction going back longer than five
years. This is very sinister indeed, particularly when one reads that
the Registrar has requested increased powers to hold Section 102
enquiries to determine a person's fitness to possess a firearm. The
current procedure is that, when someone makes allegations against you in
a formal enquiry, you have the right to be present and to cross examine
that person as to the correctness of their version and to introduce and
lead evidence of your own. These are established aspects of criminal
procedure that are embodied in most Western legal systems. In the past, police officers could only enter your premises with your permission if they had reason to believe that an offence was being committed or is about to be committed. The practical effect of this was that if a police officer came to your house and requested entry you were entitled to refuse - until the police officer had obtained a warrant. This will no longer be the case, the Registrar wants police officers to have the power to enter into any residential premises without a warrant. There are many other proposed technical changes to the Act all of which give the Registrar a wider discretion in terms of the issue of permits and wider discretion to impose conditions attached to such permits. Against this backdrop, the proposed deletion of Section 24 pales into insignificance. Section 24 is the section that introduced the re-licensing process. It has been proposed that this section be deleted and that all existing licences remain valid for the life of the licence-holder or until he/she disposes of the firearm, or becomes otherwise unfit. Coupled with this proposal however is the requirement that one must obtain a competency certificate every five years and an expedited procedure is suggested in order to do so once your initial competency has been granted. Remember however that the Registrar has unfettered power to refuse to issue a competency certificate. In essence the police are not making any concessions. It has always been SAGA's attitude that once you have been granted a licence, that licence is valid for life - to remove it by way of a re-licensing process or any other general process is unconstitutional. We hope that the 'proposed amendments' are in fact just another starting point for discussions, consultations and negotiations. If they are, and if the Minister is genuine in his desire to see the Act work and to be reasonable to law-abiding firearm owners, then the Minister must stop listening to those who want to remove (or dilute) firearm owners' rights without considering the constitutionality and enforceability or administrative fairness of these procedures. SAGA will take every opportunity to represent your rights and to help the Minister see the errors (unintended consequence?) in the proposals and to substitute them with amendments that are constitutional, reas-onable, implementable and most import-antly fair to gun owners. Important Note: Please ensure that you and/or your club/association makes full use of this opportunity - despite the very short notice. SAGA members on our Email Network will be kept up-to-date with important developments, otherwise watch our web site. Return to Newsletter Page or Return to Top of Page
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| March 2006 | |
Feedback from the Minister by Martin Hood The much-vaunted "Meeting with the
Minister" took place at the Pretoria Police College on 17 January
2006. I have mixed feelings about the outcome, or perhaps I should say
the lack of positive outcome. After Commissioner Makhubela's brief introduction, the Minister took centre stage. He didn't have a prepared speech and spoke off-the-cuff and was often more frank and forthright than I expected. He expressed concern about the gloom on the faces of the representatives of firearm owners and said he wanted and expected interaction from all firearm organizations because there was a need to accommodate "both sides". He made reference to weaknesses and loopholes in the Act and spent considerable time on the need for an Amendment Bill. He indicated that policy requirements necessitated amendments but would not be drawn to disclose either policy or specific amendments. He reaffirmed however that, although his department had examined all our submissions, not all of our proposals would be provided for in the Bill. He did assure us that there would be time for all interested parties to submit comment on the Bill and that all such comment would be considered. He called upon civil society to buy into
government's vision of a society that was peaceful, stable and
prosperous - a call no reasonable person could object to. Law-abiding
firearm owners, however, do not see that sacrificing their right to own
firearms would contribute to the objective in any way - quite the
contrary in fact. The Minister went on to say that legislation is never
static and that the next amendments would not necessarily be the last. Verbal reassurances were again given that
the Firearms Control Act was not designed as a measure to punish legal
gun owners, because if this were the case, the FCA would be bad law and
would not constitute what the Minister termed "democratic
practice". Unfortunately, it seems that SAPS thinking and
understanding of the FCA is widely divergent from that of the firearm
community, which regards this legislation as unconstitutional, punitive
and misguided. Although the Minister did not say this in the meeting, after the proceedings closed, he made even more important concessions. During an interview with Radio 702 he admitted that members of SAPS have been arrogant in the manner in which they had treated members of the public with firearms and said that this was unacceptable. He acknowledged that the SAPS lacked the capacity to process applications timeously and that there had been unwarranted and unfair delays. Whilst this may give rise to some cautious optimism in the sense that these statements go far beyond what any official has previously admitted, much work still needs to be done. We have to prove to the Minister that these problems are ongoing, are systemic - they flow inherently from the design of the legislation - and that they will not go away simply by providing more time for implementation. Far more radical changes are necessary to the legislation to make it acceptable, effective and workable. Judge Khumalo of the Appeal Board then
gave a brief address on the operation of the Board. This is the first
time I am aware that the judge has done so publicly and is to be
welcomed, because interaction with the Appeal Board has up until now
been extremely limited and difficult to say the least. If the Judge's
willingness to engage with us is an indication of a more open-door
policy, it is to be commended and nurtured. The representative of the SA Heritage Resources Agency gave a brief speech dealing with heritage objects and explaining the role of heritage firearms. Heritage firearms fall principally within the domain of the Collectors' Association and, because it is such a specialized area for firearm owners, I suggest that, should you require help, contact the National Collectors Association (NAACSA) which can also be helpful with queries about the importation or export of old firearms, or any queries relating to collecting activities. In her brief address, the CEO of SASSETA, Violet Penxa, said little more than that SASSETA faced serious challenges with service delivery and asked for our support. It is of serious concern to me however that SASSETA has developed an extremely close relationship with the SA Police Service. SETAs are supposed to be independent, and to serve their industry. SASSETA apparently has a "Memorandum of Understanding" with SAPS - but no such undertaking with firearm trainers. It has thus sacrificed its independence and is just an 'add-on' to SAPS. Which must surely operate to the detriment of firearm owners? Dr Jacobs from SAPS Legal Services indicated that the Amendment Bill would be published in approximately a month's time (mid-February) and six weeks would be afforded for comment thereafter. Until the Bill is published it would be unwise for me to speculate on its contents. While quite lively, the question and
answer session which followed was conducted in an exemplary fashion and
your representatives observed all appropriate protocols when expressing
their dissatisfaction with the manner of the implementation of the
legislation. SAGA called on the Minister to make - and
disclose - a proper policy concerning the issuance of licences of all
types. We again informed the Minister that it was unacceptable for
applicants (or appellants) to be made to wait for a year or longer for
licences to be issued. The Minister responded by conceding that mistakes
had been made and that improvements would be made to the system. Perhaps the most important of the 'concessions' made by the Minister, was that he agreed that compensation can be claimed - and will be paid in 'appropriate circumstances'. The issue of how compensation can be claimed, and for what, will be canvassed in a separate article. The Minister closed the meeting by calling on the firearms community to continue to engage with his department to consult and to find an end product that is acceptable to all. He also called for tolerance and patience on the implementation of the Act and conceded that some 'unintended consequences' may have arisen from certain of the practices of the SA Police Services. These would be addressed. After the meeting lunch was held and representatives of the various organizations were afforded an opportunity to speak informally with the Minister and the other representatives present. Feedback from these organisations was that the approaches made and suggestions proffered were cordially received. SAGA has been specifically invited to meet with the Minister to find solutions for some of the concerns we raised. We will press for this to take place as soon as possible. We strive to ensure that what we do is in the interests of all firearm owners - we do not seek 'special concessions' for anyone. Return to Newsletter Page or Return to Top of Page
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| February 2006 | |
Extension & Meeting by Martin Hood As anticipated, the Minister for Safety
& Security has announced a three month extension, until the end of
March 2006, of the initial relicensing period. In light of the
particularly dismal response by gun owners to the relicensing
requirements, not many people were surprised by this. At the time of writing, it was said that
about 64000 renewal applications had been received - we are not sure
whether 64000 individuals had applied to renew an unknown number of
firearm licences, or whether a far lower number of individuals had
applied to renew the 64000 firearms they want to keep. Does that make
this a $64000 question? It has been estimated that between 400 000 and
600 000 individuals were due to renew their licences by 31 December
2005. If we take the 'best' figures, only some fifteen percent of
affected licence-holders had applied to renew. Among the suggested
reasons for this low response are: Everyone who cares enough to know something about all the hassles involved and the likelihood of their renewal applications being turned down anyway, will understand why so few gun owners have been anxious to join the queue to comply. The police services have not been equipped, both in terms of resources and training, to properly carry out their obligations in terms of the Firearms Control Act. SAGA has received numerous complaints of aggressive and bullying treatment, ignorant or contradictory advice, poor service delivery, including long queues and being turned away from firearm registration centres because there were too many people. The Minister's press statement in the
context of this chaotic situation bears examination. The text reads as
follows: There had been some differences of
opinion about the validity period of licences issued in terms of the
'old' Act. SAGA, and other firearm organizations and individuals, have
long claimed what the Minister's statement now acknowledges and there is
open suspicion about the motive for delaying the
announcement/acknowledgement until the last moment before the first
'deadline' was due to expire. A similar situation exists for many of the firearm owners who handed in their renewal applications prior to the announcement by the Minister. Those who may have been, or still may be, refused a licence renewal and will then have to dispose of such firearm in the manner prescribed in the Act. Had they merely not applied to relicence the firearm, they would be entitled to possess that firearm legally for a further three and a half years. The Minister has invited the firearm organizations to meet with him on 17 January 2006. We presume this is a 'follow-up' to the meeting held in September 2005. We have not been provided with an agenda, but the meeting should be rather interesting, we intend to press for explanations and practical concessions. The Minister has said that there will be changes and amendments to the Act, but he has not disclosed any details. We expect that some of the amendments may substantially alter the current legal position for firearm owners and recommend that, before handing in applications for licence renewals, you keep an eye on the press and our web site for comment and enlightenment. It is surely going to be another 'interesting year' for gun owners. Return to Newsletter Page or Return to Top of Page
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| January 2006 | |
D-Day Approaches... by Martin Hood As regular readers (and almost everyone who follows the news in whatever medium) will know, the first phase of the re-licensing process is scheduled to end at midnight on D-Day, Deadline Day, aka 31 December 2005 - about five weeks after this was written but only two calendar weeks after this issue will first appear on the streets. As things stand, this deadline applies to all licensed firearm owners who were born during any January, February or March. If you number among them, and are also one of the thousands and thousands who have not yet started the relicensing process, please pay very careful attention. There seem to be some differences in opinion as to what will happen at the end of December. There are those who think, with some justification, that the Minister for Safety & Security will simply have to announce some form of extension of time for laggards to comply with the re-licensing process. This cannot be ruled out, such things have happened before, and have happened within hours of yet another firm denial that such a step would be contemplated. And it has happened because it was the only thing a 'reasonable man' could do. (One only has to think of the driver's licence and Promotion of Access to Information booklets debacles as pertinent of examples, but there are others.) It seems clear that there has been an absolutely abysmal response by gunowners to the official campaign waged to convince them to re-licence their firearms - or lose them. Is this because the message hasn't reached enough firearm owners? Is it that the audience doesn't understand the import-ance of the message? Is it that firearm owners are deliberately engaging in passive resistance because they resent being treated like recalcitrant subjects instead of free-willed citizens? Or is it just that South Africans are notoriously slow about coming forward? I don't have a ready answer. I do seem to remember that after what must have been the most concerted (and multi-million expensive) public-awareness campaign (by the State, political parties, NGOs, candid-ates, talk shows, public meetings, posters, ad nauseam) in South African history - register to vote in our first all-embracing democratic elections - some pundits calculated that thousands upon thousands of potential voters were still blissfully unaware that there was going to be an election and that it was important for them to participate. Another thing that could happen after 31 December 2005, is that the SA Police Services will endeavour to carry out its oft-repeated threat to apprehend and prosecute those persons who have not complied with the re-licensing requirements. I call this the intimidatory approach. As law enforcement and the 'control' of (licensed?) firearms are police priorities, we cannot rule out such a possibility. No matter how impractical it may appear to be, there are police officials and politicians who would relish such an opportunity to 'teach gunowners a lesson' by confiscating firearms and declaring the owners 'unfit to possess' or charging them with whatever statutory offences they find. In theory, this should be a simple enough
operation - after all, the SAPS has (or is supposed to have) our
addresses and details of all our firearms. (I wonder what they'll call
it ... 'Operation Big Bang? Or, Damp Squib?) That's in theory. Where
would they lock us up? Where would they store all those valuable
firearms? What if they simply selected a manageably few scapegoats for
very public arrest? Would such 'selection process' be fair and
constitutional? So many questions... Now on to more practical matters. Please
do all you can in the last remaining days before the expiration of the
deadline to ensure that friends, family and friends of family, including
the elderly (who have been specifically targeted by the SAPS to hand in
their firearms) go and try to re-licence their firearms. Even if your
documentation is incomplete, the simple fact that you want to keep your
firearms and have come forward in the spirit of compliance, should mean
that you will be given better treatment and a fairer hearing than those
who have no intention of complying. The United Firearms Forum (an association of associations) has been working rather well - particularly in co-ordinating the submissions on the implementation of the Act as called for by the Minister. That said, the follow-up meeting promised for November has not yet been held. If that is because the Minister is taking our submissions very seriously and debating the practical issues contained therein with his legal advisors and the Central Firearms Registry, that could be a 'good thing'. If the delay is simply because the Minister (or his officials) didn't like what we had to say, then that's a 'bad thing' - for us and for democratic administration. I found it interesting that more and more 'black' radio stations have been asking SAGA to comment and provide information for their listenership - not only on the Act and the re-licensing process but also on what SAGA itself is doing for firearm owners. Although this may perhaps be seen in a positive light, it could also be because government may have noticed that black gunowners have been particularly slow in complying - a senior firearms trainer recently told me that of the approximately 2000 people he had trained this year, only two were black. This is a very serious problem that needs to be addressed as a matter of urgency. During the imbizos for the training industry that SASSETA held in various centres, it was plainly stated that there are not enough previously disadvantaged trainers, including women. The CEO of SASSETA went so far as to say that she wants 54% of trainers to be female. This may be a noble goal, but it is unrealistic to expect it to be reached in the short or even medium term. SAGA's admin office will be closed between 16 December and 16 January 2006 so we must ask that you fax or email only very urgent queries during this time. (Sanet has really earned her holiday with her new little daughter this year). We will, however, try to keep our web site up-to-date with developments as they arise. Visit it regularly and keep your less computer-active friends informed. Finally, we wish you all a peaceful and crime-free Christmas season... and stress-free relicensing where applicable. Return to Newsletter Page or Return to Top of Page
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| December 2005 | |
Gun-free Propaganda By Martin Hood As I have already reported, SAGA has sent
the Minister written proposals designed: Such steps would protect the rights already granted to existing firearms owners, thus avoiding potential constitutional challenges in this respect. The Minister has been called upon to withdraw the notice which promulgated the dates for re-licensing, and to postpone the re-licensing process indefinitely. While I would not 'make book' on the odds of our proposals being carefully considered and accepted, it seems obvious that some kind of postponement or other relief is needed... despite recent police denials of such a possibility. Such a step would not be easy to implement and its consequences would also be rather complex. For example, what happens to someone who has already applied to renew his licences and some, or all, of his licences have been refused? What happens to those who have been refused competency certificates but have not been declared unfit to possess firearms? Concrete and practical solutions need to be urgently sought to provide an equitable solution to all the real and potential problems. This can only be achieved by constructive engagement with Government at the highest level. In the meantime trouble seems to be brewing at the Appeal Board. We have had an increasing number of complaints about the backlog of appeals (some dating back to 2003) and about the Appeal Board not answering its telephones and correspondence and most disappointingly 'losing' files containing many many pages of documents prepared (often at great expense) by applicants in support of their appeals. And this despite the appeals being registered on the system as having been received. We are trying to conduct an audit of selected appeals to determine our course of action in this regard so, if you have long outstanding appeals (in excess of a year) and you can prove that your appeal has been lodged with the Appeal Board, please would you forward details to the SAGA office as soon as possible, and confirm that SAGA can utilize this information to tackle the problem. On 25 October 2005, the day after the failure of the Brazilian 'gun ban' referendum, Gun Free South Africa released a 120 page document entitled "The Proliferation of Firearms in South Africa, 1994-2004" to representatives of some of the media and a few guests. I attended on behalf of SAGA and did not see any representatives from the SAPS or government. The author, Margie Keegan of GFSA delivered a slide presentation on the paper and answered the few questions arising. So far, the local media have not given the event or the content of the paper, which was commissioned and funded by the Oxford Committee for Famine Relief (better known as Oxfam), very much coverage. I have not had time to study the lengthy document so the following (hastily prepared) comments are based mainly upon the oral presentation. I must put on record that GFSA did concede that this paper was more an historical study than a comprehensive research study. Let's hope that no one later tries to give it undeserved weight by labelling it a "research paper". The study seems to have been focussed on finding (and proving) a causal link between the legal ownership of firearms and increasing levels of violence in South Africa. If this was its quest, it failed dismally. Indeed it appears to support much of what SAGA has been saying for a long time - the root causes of violence are poverty, unemployment, family disruption, poor education, etc, etc. In its stated objectives, the Firearms Control Act (and the State's firearm control policy) fails to address these issues. It is easy to point to various causes of violent crime, but it is far more difficult to propose practical or politically 'easy' solutions. Unfortunately, apart from making broad generalized statements and calling for moral regeneration programmes and the strict implementation of the Firearms Control Act, the paper lacks detail on how to reduce criminal violence. A disturbing, but not new, recommendation is that sales of guns and/or ammunition be taxed and that such revenue be used to support victims of crime. While giving help to victims of crime may be a noble idea, the suggested tax is simply a thinly veiled excuse to price firearms and ammo beyond the reach of ordinary citizens. The study confirms the involvement of ex-liberation combatants in organized crime and gives details of certain ex-liberation and State firearms that have been used in serious crime. These include AK47s, SKSs, Tokarev pistols, R4s, Z88/Beretta 92s and others. Not one semi-automatic civilian version was mentioned, nor was any data presented to show that civilian-owned, military-style firearms are used in the commission of violent crimes. It soon became clear that, although GFSA wanted to prove that possession of legal firearms leads to increased crime, they were unable to jump the hurdle of dealing with illegal imports from Mozambique, the loss of control over State firearms, and firearms possessed by liberation movements which remain illegally cached or in circulation. What I found quite interesting, was that GFSA saw fit to acknowledge that about 60% of lost/stolen firearms are recovered and that many of those stolen from civilians are not stolen as a result of negligence but are stolen, for example, in robberies. The study reports that guns are part of a culture - particularly that of white males arising out of military service - and claims that many males require or desire firearms not for self-protection but as part of proving or re-affirming their masculinity. Once again these tired old contentions were put in the form of conclusions. Emotional and illogical conclusions like this would not stand up to proper analysis and should be regarded as propaganda targeted at denigrating firearm owners. Gun Free South Africa was asked why it was that in America, where one in two households had firearms, the violent crime rate was only four per 100 000; whereas South Africa - with lower firearm ownership figures - has a violent crime rate of 302 per 100 000 (GFSA data). This they could not explain, and they could not argue with SAGA's contention that the existence of firearms does not lead to increased crime. The presentation failed to link legal possession and ownership of firearms to any element of violent crime, other than vague references to domestic violence and a femicide study recently published by GFSA. What was interesting in the question and answer section was that even members of the media, known to be sympathetic to the anti-gun cause, picked on and pointed out contradictions in the presentation. One question, from a representative of BBC, asked why GFSA seemed to tolerate civilian ownership of firearms because they stated that "the Firearms Control Act will take firearms away from violent people" and that this was in contrast to the name "Gun Free". GFSA then acknowledged that they look forward to "...a time when there is no civilian ownership of firearms in the Republic of South Africa." So there you have it, in unequivocal terms. When they talk about taking guns out of criminal hands, they actually mean they want all guns taken out of everyone's hands. Return to Newsletter Page or Return to Top of Page
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| November 2005 | |
What does SAGA do for me? Because there are ongoing, sensitive discussions with police and government flowing from the general meeting held in September - from which nothing concrete has yet materialized - this report is going to be somewhat more abstract than usual. Unlike organizations that represent
specific firearm interests such as hunting or collecting, SAGA efforts
are geared toward protecting the rights and interests of the whole
spectrum of firearm owners - including those who for a variety of
reasons are not actively involved in club or association activities. SAGA by definition has never been in a position to offer (apart from our Public Liability insurance) tangible benefits to its members - benefits such as the shooting competitions, shooting ranges, training courses, etc, that more participative organizations can arrange. Most of these organizations can now offer (in fact have to offer) a new range of 'benefits' in terms of the new Act. At great expense, they now play a primary role in the training for and conferring of 'dedicated' status for their members and have certain concomitant duties to report back to government on their members' continuing participation and membership. Some people, particularly those who are
not active members of SAGA often ask "What does SAGA do for
me?" We can seldom come up with the kind of answer that the
questioner desires - something concrete. Much of what we do is difficult
to quantify. For example, when the first drafts of the Act appeared at
the end of 1998, SAGA actively helped form and finance the National
Firearms Forum - which spent some R750 000 on a campaign to educate the
media about firearm matters in an endeavour to obtain fair and balanced
reporting on the critical issues. This access to the media, however, did not come easily or cheaply. Monitoring the media, and maintaining contact with what is going on to ensure our voice is heard, takes and a great deal of time and effort. Has your 'investment' in SAGA membership paid off? How do you measure the dividends? Part of the pay-off became evident when, for the first time ever, SAGA had a televised debate with the Minister for Safety & Security about the Firearms Control Act. SAGA's representatives have had face to face meetings with the Minister. Furthermore, SAGA was at the forefront of discussions relating to the drafting of the regulations after the Act was finalized and is once again involved in proposals to amend the Act and regulations. Another little known aspect of our activities is in the international arena. SAGA has ongoing contact with organizations such as the National Rifle Association and the British Shooting Sports Council and is a full member of the international, United Nations accredited, World Forum on the Future of Sport Shooting Activities (WFSA). SAGA's reps thus have attended some (and our voice has been heard at other) critical UN meetings/conferences at which firearm issues have been debated. In 2003, SAGA hosted a general meeting of the World Forum in Cape Town. Such membership and contacts help develop and solidify important international contacts and recognition for SAGA and its activities. An example of how SAGA can work for you
flows from a Gallery article in the October 2004 edition of Magnum.
In this article, a contributor specified the requirements imposed by
Director Bothma relating to handgun hunting. Director Bothma's
requirements are not in accordance with the Act and are ultra vires
the Act. You are permitted to possess one handgun for self-defence and
another handgun for occasional sports shooting or hunting as per the
Act. Director Bothma (and for that matter any other police officer) has
no right to interpret the Act in any other way. SAGA is continually working, mostly behind the scenes, on the issues and practices which cause, or will soon cause, problems for firearm owners of all kinds - from the one gun pensioner, to the 20 gun hunter/sport shooter/collector who also needs the means to protect his or her family. However, we need to know the kind and the extent of the problems you face (big or small) and the red-tape obstacles you have to overcome to access your rights. This means we need feedback. If you are a member you have a voice, and if you are not a member join, not only to have that voice but to proudly say that you are a member of SAGA and thus playing an important part in protecting your rights. Finally, we would like to thank all the clubs and associations who encourage their members to become members of SAGA. Some even make SAGA membership compulsory - we love their enthusiasm and we need all the members and support we can get, but SAGA is in fact a "voluntary, non-profit, non-political association of concerned law-abiding firearm owners." That said, if a club or association wants their members to also be SAGA members we will not dictate otherwise and will gladly make the necessary arrangements. Contact details for our administrative office are: PO Box 35203, Northway, 4065. Phone 031-562-9951; fax 031-562-0530; email saga@saga.org.za IMPORTANT REMINDER: Return to Newsletter Page or Return to Top of Page
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| October 2005 | |
Meeting the Minister When SAGA was invited to attend a meeting to discuss the implementation of the Firearms Control Act with the Minister for Safety & Security, Mr Charles Nqakula, we eagerly accepted. In fact we were quite excited at the prospect of another chance to get to grips with the top brass. (Yes, we know he is a civilian and doesn't wear brass, but he has the rank to get things moving.) And yes, we knew that other 'interested parties' were invited, but we didn't really expect that over 60 delegates from the firearms fraternity would be gathered in Pretoria on Friday, 2 September 2005. And, there was more than enough government (or quasi-government) representation - three members of the Appeal Board, SAPS legal advisors, the Minister's spokesman, SAPS Divisional Commissioner Makhubela (who is to retire shortly), Director Jaco Bothma of the Central Firearms Registry, SAPS spokesmen, SASSETA (the Seta into which the now defunct Poslec Seta has been absorbed), the SA Bureau of Standards, SAHRA (Heritage Agency), PSIRA (Private Security Industry Regulatory Authority), etc, etc. It seems clear that our messages are
getting through and that the Minister is making absolutely certain that
no one could accuse his meeting of not being fully representative. Which
is fine for some purposes, like PR, but it proved difficult to get down
to cases when such large numbers are involved and there isn't a detailed
pre-planned agenda to work to. The Minister said that this meeting, which he termed a 'summit', was the start of a process to ensure mature dialogue and discussion and that he intended to establish provincial forums where relevant issues could be discussed. He asked the delegates for their comments on this proposal and for their suggestions on how to improve/facilitate the implementation of the new set of laws. This provincial forum suggestion did not find favour, the associations present (perhaps suspicious of a divide-and-rule approach) said that they would prefer the Minister deal with issues of common importance with a forum comprised of representatives of the national bodies en bloc. It became evident that the Minister would prefer not to form the Ministerial Committee envisaged in terms of Section 132 of the Act - which is a pity because he did call for nominations, and we are aware that he received a very positive response. All of civil society, including those of opposing viewpoints, would like to see the Minister-ial Committee formed. Throughout his introduction the Minister
stressed that he required input from the floor and reiterated that the
Act was not designed to disarm civilian firearm owners, and it was not
designed to be anti-democratic in removing or affecting people's rights.
He stressed however that civilian firearm owners must be prepared to act
within the legislative framework as promulgated, and to exercise
responsibility in the use and upkeep of their legal firearms. The
Minister confirmed that we could propose amendments to 'improve' the Act
and that some such amendments were already being planned. In summary, the Minister's presentation was well received and interaction followed. We were rather disappointed with some of the responses from the floor. Our time was very limited and too many delegates wasted the opportunities on offer by thanking the Minister for convening the meeting; asking for special 'deals' for their members, and generally trying to curry favour with the Minister. It is all very well to be polite, we were after all courteously received, but there are limits. And one of these limits is surely not to 'knock' a fellow firearm owner's interest. One individual went so far as to say that handguns are the weapons most commonly used in crime and as such they must be dealt with differently to sporting and hunting rifles. I had to restrain myself from standing up to remind him that nearly all hunters and riflemen also own handguns - for sport, hunting or self-defence purposes. This attitude is extremely disappointing. Most national associations have already agreed to stand together and oppose the divide-and-rule tactics employed by the Police Services. I must ask all SAGA members, and Magnum readers, to please make sure that your clubs and associations understand the simple fact that if we do not stand together, all our rights and privileges will be whittled away - until we all have nothing. The Minister was told of the difficulties being experienced by international hunters when they come to South Africa and the loss of revenue that resulted. He seemed genuinely surprised by this and expressed concern and anxiety to invest-igate the circumstances. Fortunately, research and statistics are available to back up the points made by the Professional Hunters' Association of South Africa and Safari Club International. The Minister acknowledged the administrative difficulties currently experienced both at station level and at the Central Firearms Registry in Pretoria. Ironically, most of the associations - with the notable exception of SAGA and the Arms Dealers' Association - had no one who was prepared to stand up and directly criticize the police. However, the Minister himself indirectly indicated that he was aware that there are many more problems than were being drawn to his attention. SAGA and the Dealers' Association pulled no punches in indicating that there had been a complete failure in service delivery and that these issues must be urgently addressed. SAGA went one step further and indicated specific areas of deficiency as well as suggesting means to improve these areas. The Minister asked that we put our suggestions/criticisms in writing so that the next meeting - to be held in October or November - could deal with them in a constructive manner. Lunch followed, where there was interaction between delegates and members of the Appeal Board, Police Legal Services, and other functionaries, and was conducted in an atmosphere of mutual goodwill and co-operation. At an informal post-lunch post-mortem, the United Firearm Forum agreed that this long overdue meeting had been beneficial and that, despite all the practical and ideological problems with, and reservations about, the Act we should co-operate with government and police services as far as possible. A number of proposals to address the current chaotic state of affairs are being prepared for the Minister and police legal services. We hope to provide a comprehensive report back on these proposals once they have been given to the Minister and acknowledged by him. If we are left out of the process, our voice will not be heard and our rights will not be protected. A warning-cum-plea. It is both surprising and worrying to find how many firearm owners have taken so few (if any) steps to acquaint themselves with the legislation. Many firearm owners (particularly non-members) assume that they are fully entitled to phone SAGA's office and get as much free advice as they need. Answers to most of their questions are clearly contained in the Act or are covered by information on SAGA's web site, particularly in the FAQ section. We would like to have the resources to research everybody's questions in great depth, but we don't and some of the questions we get are a 'big ask' - particularly when the questions come from those who have not bothered to read up on the subject. If you are a legal firearm owner, you are going to have contact with the police whether you like it or not - start that contact by visiting your firearm registration centre and obtaining the information that is necessary to comply with the Act and to relicense your firearm. Your local DFO has pamphlets or leaflets on the subject. It is a firearm owner's responsibility to acquaint himself with the legislation and comply with it, no matter how he feels about it. The Act and the regulations are available to download from the page Act & Regulations. Download them, read them and acquaint yourself with them. Return to Newsletter Page or Return to Top of Page
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| August 2005 | |
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Ex unitate... In
the June issue of Magnum I described some of the proceedings at
this year’s Aim Shooters Show held at Kyalami in March. Another
significant event took place during the show. Virtually all the major
national shooting associations attended an informal meeting initiated by
SAGA to discuss how best we could coordinate our efforts to obtain
better service from the SAPS and press for fair treatment for all
firearm owners. The
organizers of the Aim Show kindly provided the necessary accommodation
and services for delegates from, amongst others, the SA Sport Shooting
Federation, National Association of Collectors of SA, the Security
Industry Alliance, Professional Hunters, Agricultural Unions, Black Gun
Owners Association, the dealers’ association, and, of course, SAGA
(who minuted the proceedings). Those present agreed to establish a
co-operative and consultative body through which issues of mutual
interest could be discussed and where joint action could be agreed upon.
Each spokesman present gave a brief outline of the major concerns and
the position of his/her association. In May a follow-up meeting was held
at the headquarters of the SA Hunters & Game Conservation
Association at which the “United Firearms Forum of South Africa”
was formed. The UFFSA is not a formal association with a bank account,
binding constitution, etc – it is intended as an ideas and information
exchange. The UFF has at its core a simple ‘policy document’ the key
components of which stress co-operation on issues of mutual interest
whilst respecting the independence of member associations. UFF delegates
report back to their various councils on matters arising from the
forum’s deliberations and plans of action. The
first joint action agreed upon was to undertake a survey of individual
members to determine what common problems of an administrative and/or
practical nature are being experienced by firearm owners as a result of
the implementation of the FCA. The collectors, dealers, and SAGA quickly
compiled comprehensive lists/summaries of typical problems and the UFF
met with SAPS at their Divisional Headquarters in Pretoria on 24 June
2005. The SAPS was represented by Director Bothma, Supt Govender, and
Director Van Vuuren (Legal Services). The meeting was long and
exhaustive. SAGA tabled a comprehensive letter and supporting
documentation detailing practical problems. A copy of the letter can be
viewed at this LINK
but the essential elements of the complaints were: 1.
Incomplete or bad training of Designated Firearm Officers. (DFOs) The
dealers’ association also provided a comprehensive report, the salient
points of which were: 1.
Bad service delivery. The
Security Industry Alliance indicated that it is busy drafting a handbook
containing guidelines (an ‘Idiot’s Guide’) on how applications
should be completed. This handbook, which will include a list of
frequently asked questions (and the answers) will be submitted to the
SAPS for approval. General
comments at the meeting related to the delays in the accreditation of
training providers and shooting ranges. A newly-formed training
providers’ association, the Gauteng Training Provider’s Association
(represented by André Pretorius) forcefully argued for the removal of
annual range licensing fees because of the high cost involved. The
objectives of the Problem Animal Control Association of SA (PACASA), a
member of the Confederation of Hunting Associations of South Africa,
were outlined by Neil Jones. As the association is shortly to “go
national” he asked whether this would make membership of this
association compulsory for those farmers/landowners who wanted to
license firearms for “vermin control purposes”. Director Bothma said
that membership of PACASA would not be compulsory in such circumstances.
(Let it be noted however that those who wish to engage in vermin hunting
simply as a sporting opportunity combined with a service to the farming
community, could well benefit from membership of such an accredited
association.) Collectors
once again expressed strong concerns about the costs of re-licensing
large collections. The SAP271 application form has space for 25 firearms
and the Act says the cost is R70,00 per application, not per licence.
Various practical difficulties experienced were raised – especially
problems with DFOs who do not understand the provisions of the Act
and/or who impose (or try to impose) their own ‘unofficial’
requirements. Other
issues raised by collectors were the numbering of firearm parts and
components and how this should be done. (Police documentation clearly
provides for details to be provided, but this becomes impossible where
firearms and all their components are not numbered.) The
Collectors’ Association, through the able voice of Carvel Webb also
requested that all the associations should be consulted about any
amendments proposed for the Act – and be given due time and
opportunity to make proper representations. It
was made clear that certain amendments to the Act are being considered
(some are currently with the Minister), but details could not be
divulged to us at this time. I can’t see any reason why such
amendments should be considered a ‘State Secret’ but, while it may
be unwise to speculate, I suspect that the regulation of certain air
rifles and black powder firearms could be under review. We hope that
some of the proposed amendments will prove sensible and practical, but
the very fact that they are cloaked in secrecy is cause for concern. The
Black Gun Owners’ Association (BGOA) stated their case clearly and
simply: If the processes are not made easier and less costly, numbers of
good citizens may have little option but to report their firearm as
‘stolen’ ... or will acquire adequate tools for personal and family
protection by ‘unofficial’ means. The SAPS will therefore lose
control of such firearms. Certain police officers present appeared to be
surprised by this confrontational statement – notwithstanding the fact
this attitude/demand has been made during a couple of very public (and
televised) demonstrations by the BGOA. The
meeting was adjourned on the basis that a comprehensive response would
be provided by the SA Police Service. I hope to have details for my next
report. We expect that some significant consequences will flow from this
meeting. This is the first time that all these associations had met
jointly with the SAPS. We presented a unified front and expressed
commonality of concern and support for each other. While the various
associations may never be in total agreement on every aspect of firearm
licensing and ownership, this united front should overcome the “divide
and rule” tactics employed (with some success) by the SAPS and sundry
politicians. All
the UFF member associations have proposed representatives to sit on the
Ministerial Advisory Committee – provided for in terms of section
132(1) of the Act. Invitations for candidates for this (long overdue)
committee were advertised by the Minister in the Sunday press at the end
of June, but the qualifications and/or experience expected of committee
members was not published. We trust that the Minister will make full and
constructive use of the collective knowledge and wide firearms
experience of forum members. Most previous offers of help were largely
in vain; political considerations have (so far?) clearly outweighed the
rational and practical... Who will accept responsibility for the chaos
that has resulted? All
UFF member associations will be calling on the Minister to ensure that
the SA Police Services issue written renewal notifications to firearm
licence holders who are expected to renew their licence this year (and
then thereafter). Despite the publicity that has been devoted to this
issue, there are obviously huge numbers of firearm owners who remain in
blissful ignorance about what demands/responsibilities the new Act and
Regulations places on them. A
great part of resolving our difficulties with the Act – its
implementation and administration – revolve around dealing with small
problems before they become big problems and, of course, identifying the
big problems... and trying to devise practical solutions for all the
problems. SAGA
continues to be actively involved in addressing such issues. This does
not mean that we have or will compromise your rights in any way.
Although the Firearms Control Act contains much (principle and detail)
that we do not agree with and cannot actively support, we have to
respect Parliament’s sovereignty and its right to pass laws. The
Firearms Control Act is now one of the laws of the land and will remain
so until we (that includes you) can convince Parliament to change it to
something we can actively support and respect. In
the mean time, SAGA will use every lawful means at our disposal to
protect your constitutional rights and to demand administrative
transparency, consistency and efficiency. You
can contribute meaningfully to this process by sending us proper details
of any problems that you may have experienced with firearm
licensing/competency certification/etc. But you should be prepared to
identify yourself, the DFO, police official, give the date, etc – in
writing. The SAPS say that they have had any number of ‘general
complaints’ but that they are unable to take corrective action without
sufficient detail. We all know that the very real potential for
‘retaliation’ can be sufficient to intimidate all but the bravest.
But unless some of us do stand up, it will become more difficult for all
of us to obtain just and fair treatment from those who have the
‘power’ to decide what is good for us. Return to Newsletter Page or Return to Top of Page
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| June 2005 | |
Show & Tell Although the organizers of the AIM Show held at Kyalami in March this year invited the head of the Central Firearms Register, Director Jaco Bothma, to lead the presentations given by the SAPS on the Firearms Control Act, he delegated this duty to members of his staff. Which is a great pity - I and many other firearm owners were itching to question (cross-examine?) him directly on a number of matters of great concern to members of the firearm owning public as well as dealers, security firms, etc. The first presentation was chaired by Superintendent Wepener of the CFR who was forthcoming and honest in his answers and appeared to genuinely want to help firearm owners comply with all the new rules and regulations. (After quite a few 'difficult encounters' with other police officials, I found his approach refreshing and encouraging.) Supt Wepener started by saying that there were still many firearm applications outstanding in terms of the Arms & Ammunitions Act, which was contrary to what Director Bothma told the SA Arms & Ammunition Dealers Association in December 2004 when he promised to establish a National Dealers Forum to deal with such issues. Needless to say the Dealers Forum has not as yet been formed. Supt Wepener indicated that the Appeal Board had in turn told the SAPS that all outstanding appeals would be finalized by the end of March 2005. Usually reliable sources had informed me that the Appeal Board had over 30 000 appeals awaiting attention, but Supt Wepener took issue with me on this and said that there were only about half that number. If there are indeed 'only' 15 000 outstanding appeals, I am still greatly concerned that the Board, under pressure to get up-to-date with its work, will not have the time and resources to properly scrutinize each appeal. Time will tell. In any event, preliminary feedback indicates that the Board seems to be merely upholding the CFR's decisions to refuse licences. Supt Wepener also addressed us on
Competency Certificates and indicated that less than 2 000 applications
for Competency Certificates had been received and of these about 10% had
been approved. He indicated however that work on processing the
Competency Certificates had only started in January 2005 notwithstanding
that people had applied from July 2004. No explanation was given for
this. Self-Defence For the collectors out there, Supt
Wepener said that it was now necessary for you to describe all the
firearms that you have, give details of all the 'themes' in your
collection, specify the value of your firearms, and compare the firearms
to each other to show that the firearms that you have or want to obtain
will fit into a defined theme. It doesn't appear that one can start a
new theme based upon the information provided. Strange indeed, even
though the legislation clearly provides for this. Relicensing Supt Wepener revealed that there are approximately six million files at the Central Firearms Registry's Veritas Building - which are in the process of being moved to an undisclosed location in Silverton. Could this explain why so much paperwork is 'disappearing' in Pretoria? He did not say how the files are being moved, whether it is being done alphabetically or by date of birth, but it appears that the files are being removed without them being checked to see whether there are any outstanding applications or appeals. Maybe this explains why many appeals do not appear on the system and why firearm applications and fingerprints constantly disappear. Wepener admitted that there are problems because of the move and asked us to be patient. A general discussion ensued after this and it is worth noting that the police are well aware of at least some of the problems at police stations. However, your problems at a police station can only be remedied if the CFR is advised in writing of what the problem is and is then prepared to take corrective action where appropriate. Applicants are encouraged to make use of the CFR's Help Line which now appears to be working properly and fairly informative. The telephone number is 012- 653-6111. The next day's presentation was addressed
by Superintendent Prinsloo, the Designated Firearm Officer for Gauteng,
who told the audience that, in his opinion, the legislation is good and
that firearm owners got off "relatively lightly" - he clearly
knows on which side his bread is buttered. It was however very
disappointing to find that an officer whose job is to 'serve and
protect' law-abiding firearm owners was so openly anti-firearm. I will
not spend much time on his presentation, listening to his
misrepresentations and/or misunderstanding of the law was so frustrating
it made my blood boil - and I said so, so strongly that I doubt I'll
ever get another licence. Shortly after the Show, SAGA and other
interested parties were invited to a three day seminar/workshop to
discuss redrafting the Unit Standard for civilian firearm training for
handgun, rifle and shotgun. The need for a redrafting became clear only
after pressure from a number of different organizations had made it
clear to the powers-that-be that the then current Unit Standard was
based on a security industry standard and was entirely inappropriate for
civilian firearm ownership and the purposes envisaged in the Firearms
Control Act. The various Unit Standards (including those for dedicated
hunters and sports persons) should have been accepted and in place before
the promulgation of the Firearms Control Act, but because of the haste
with which the Act was implemented these mechanisms and systems did not
exist at the time of implementation. Then there is the bad news. It has come
to SAGA's attention that the new Appeal Board has taken a radically
different approach to assessing appeals to that of its predecessor. In
the past, there was a fairly well-established body of jurisprudence
(decisions) that enabled an appellant to obtain a fair assessment from
their legal advisor as to whether one would be successful or not.
However it appears that the new Appeal Board simply does not understand
either the old Act (Arms & Ammunitions Act) or the new Act. Of the
981 appeals dealt with by the end of March, 776 were refused and only
161 upheld - a success rate of approximately 20%. In the past the
success rate was above 80%. This quite clearly shows a new, much
stricter, policy of assessing appeals. The entire shooting community is becoming increasingly frustrated with the extended delays and the lack of accessibility and transparency in the various processes we are required to comply with. It's tough going out there and it is anyone's guess what will happen when the thousands upon thousands of 2005 renewal applications (each with 50 pages of supporting motivation) start flooding into Pretoria - will the CFR be in the market for some extra storage space? And some extra, well-trained, staff - all of whom I assume will have personally passed through the whole licensing process. Return to Newsletter Page or Return to Top of Page
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