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Correspondents' Reports

JURIST's South Africa Correspondent is Professor Andries Cilliers. A Rhodes Scholar with law degrees from Stellenbosch, Oxford, and the University of South Africa, he practised as an advocate at the Cape Bar before becoming the first Dean of Law at the University of Port Elizabeth in 1969. He retired in 1993. He is author and co-author of books and articles, on the law of civil procedure and the law of costs in particular.
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[Stellenbosch; Special to JURIST] During the latter half of 2000 the South African Parliament passed the "Firearms Control Bill". It will probably become law early in 2002. Detailed regulations in terms of this bill are in the course of preparation. The relevant government departments organised meetings early in 2001 to which interested parties and members of the public have been invited, to comment on aspects of the regulations already drafted and to make proposals in connection with the regulations generally.

The Bill contains 154 sections and four schedules, dealing, inter alia, with the following matters: competency certificates, licenses to possess firearms; licenses issued to dealers, manufacturers and gunsmiths; the import, export and carriage in-transit of firearms and ammunition; the storage, transport and carrying of firearms and ammunition; the control of ammunition and firearm parts; the declaration of persons as unfit to possess firearms; exemptions; inspection, search and seizure; presumptions; offences, penalties and administrative fines; right of appeal; compensation; special powers relating to amnesties; firearm-free zones; general and transitional provisions.

It is commendable, on the one hand, that the authorities have done much research and have attempted to establish comprehensive legal provisions in connection with the control of firearms. Provisions imposing stringent penalties on lawful owners of firearms who, though negligence, lose their weapons or whose actions are conducive to an increase in crime are also acceptable. On the other hand, there are dangers lurking in certain provisions of the Act.

According to section 2 the purpose of the Act is to --

(a) enhance the constitutional rights to life and bodily integrity;
(b) prevent the proliferation of illegally possessed firearms, and by providing for the removal of those firearms from society and by improving control over legally possessed firearms, to prevent crime involving the use of firearms;
(c) enable the State to remove illegally possessed firearms from society, to control the supply, possession, safe storage, transfer and use of firearms and to detract and punish the negligent or criminal use of firearms;
(d) to establish a comprehensive and effective system of firearm control and management; and
(e) ensure the efficient monitoring and enforcement of legislation pertaining to the control of firearms.

No objection can be raised to (a), (d) and (e). In the case of (b) and (c) the wording of the Act is not clear, in so far as it deals simultaneously with illegal acts as well as legal conduct by the lawful possessors of firearms. This gives rise to legitimate fears by law-abiding citizens that their hiterto-existing rights to possess firearms may be seriously curtailed.

Is the main purpose of the Act is to combat crimes committed with or by means of firearms? The long title of the Act has been reworded. The present one states that it is an Act " (t)o establish a comprehensive and an effective system of firearms control; and to provide for matters connected therewith." No mention is made in the long title to the need to curb crime. A previous version of the long title did so.

The parliamentary debates preceding the passing of this law reflect what is, to my mind, muddled thinking. The Minister of Safety and Security, Mr Steve Tshwete, stated in the National Assembly on 12 October 2000 inter alia the following:

The Bill is not aimed at law-abiding citizens. On the contrary, it embodies their indignation againt firearm violence and sends a strong message that enough is enough . . .. ... The Bill is aimed at strict and efficient gun control, without sacrificing legitimate needs of citizens to possess firearms. Its ultimate goal is to disarm the criminals, without compromising the rights of innocent persons to defend themselves.. . . There are . . . no grounds for any concern that the Bill might disarm honest citizens.

In the same speech, however, the Minister said "In view of the fact that licensed firearms provide a pool of firearms that may be stolen or otherwise acquired illegally by criminals, it is necessary to restrict the number of these firearms by licencing only those firearms for which a legitimate need exits." (Stress supplied.) This argument is reflected in the wording of section 13(2). The heading of section 13(2) reads "Licence to possess firearm for self-defence". Section 13(2) provides:

"The Registrar may issue a licence under this section to any natural person who -
(a) needs a firearm for self-defence; and
(b) cannot reasonably satisfy that need by means other than the possession of a firearm."

This provision contains the unacceptable premise that a firearm is not necessarily required for purposes of self-defence.

Another Government spokesman spoke in the same vein. Mr Maluleke George, the chairman of the Portfolio Committee on Safety and Security, is reported as having said: "This bill has nothing to do with criminals. It is a waste of time to make laws to stop criminals. The purpose of this bill is to make it as difficult as possible for people to own licensed firearms and to reduce the number of firearms already licensed." The spirit of this statement is reflected in the present short title of the Act, quoted above: primarily firearm control, not the curbing of crime.

The Government is adamant that the present provisions of the Act will not be amended in the near future. Defects in the Act cannot, however, be rectified by means of regulations under the Act, as they are of a subsidiary legislative nature and must fall within the ambit of the Act. It is possible that some very fundamental provisions may be established by means of regulation, as all fundamental provisions are not contained in the Act itself.

A very important objection against the regulations is that the enabling section (section 145) enables the Minister of Safety and Security to make regulations by notice in the Government Gazette "generally with regard to any other matter which it is necessary or expedient to prescribe in order to achieve or promote the objects of this Act." This gives the Minister carte blanche to "supplement" the Act itself.

According to section 120(1) a person is guilty of an offence if he or she contravenes or fails to comply with any provision of this Act; condition of a licence, permit or authorization issued or granted by or under this Act or any provision, direction or requirement of a notice issued under this Act. The "Act" in this context includes the regulations: section 1. Schedule 4 provides for penalties up to 25 years' imprisonment.

The effect of provisions such as those mentioned above is that a single contravention of any legislative provision or administrative injunction relating to firearms can turn a hitherto law-abiding citizen into a criminal straightaway, and subject him or her to severe penalties.

A further controversial aspect of the Act is the introduction of so-called firearm-free zones (section 140). In this respect the Minister may, after consultation with certain persons, by notice in a Government Gazette declare premises or categories of premises to be firearm-free zones, if it is --

(a) in the public interest and;
(b) in accordance with the objects of this Act.
Unless authorised to do so in terms of a notice issued under section 140(1), no person may -- (a) allow any firearm or ammunition to be in a firearm-free zone;
(b) carry any firearm or ammunition in a firearm-free zone; or
(c) store any firearm or ammunition in a firearm-free zone.

The effect of the above-mentioned provisions is that the Minister may by regulation render the lawful owners of firearms criminals. Assuming that the Minister will act bona fide in terms of these provisions, the practical difficulties involved in making certain premises firearm-free zones are formidable.

Various provisions of the Act require re-registration of all firearms in the country. This fact in itself is an indication that even law-abiding citizens (possibly an appreciable number of them) will lose their firearm licences. This is in contrast with some of the words of the Minister in Parliament, quoted above.

Many role players are opposed to many stringent provisions of the regulations. Collectors of firearms, members of shooting clubs and hunters all have objections against severe restriction of the number and type of arms and ammunition that may be legally possessed. Gunsmiths, gun dealers and manufacturers have objections peculiar to their trade. This has become obvious at various public meetings.

A serious problem arising from the present draft regulations is that a firearm which is not under the "direct control" of the person legally entitled to possess it, must be stored in a safe or strongroom complying with certain standards laid down by the South African Bureau of Standards. At this stage consensus in respect of the standardisation of safes seems a virtual impossibility. The difference between control and "direct control" is also not clear.

The provisions relating to the transportation and storage of firearms will be very difficult to implement. Particular examples include the storage of firearms and ammunition in transit in motor cars and aeroplanes, as well as carrying or transporting firearms through firearm-free zones.

The most serious problem arising from the above legislation is the possibility of the arbitrary curtailment of the right of citizens to bear arms, and the serious implications this may have for the exercise of self-defence by law-abiding citizens.

Professor Andries Cilliers
JURIST South Africa Correspondent

Stellenbosch, SOUTH AFRICA
April 6, 2001

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