This is a report by the Executive Sponsors mandated to prepare a

Transcription

1 Annex 4 Draft Policy on the Control of Firearms in South Africa Report to the Minister for Safety and Security Proposed Ministerial Policy on the Control of Firearms in South Africa Introduction This is a report by the Executive Sponsors mandated to prepare a comprehensive policy and NCPS programme to reduce the proliferation and availability of firearms in South Africa. They are: Dr BL Fanaroff representing the Secretary for Safety and Security. Deputy National Commissioner MJA Bester representing the National Commissioner of the SA Police Service. This report considers the recommendations contained in several reports to the Minister and the Department and makes recommendations to the Minister for a comprehensive Ministerial policy on the control of legal and illegal small arms and ammunition. Comprehensive Programme This Policy document forms part of a comprehensive programme to reduce the proliferation and availability of legal and illegal firearms in South Africa. The availability of firearms is a major contributor to the stock of illegal firearms in South Africa is a result of the flows of small arms which resulted from the struggle over apartheid (primarily firearms supplied by the apartheid government) and the numerous conflicts which have taken place in the sub-continent in recent years. However, as is TCP SERIES: VOLUME III 289

2 argued below, we believe that the major source of illegal firearms in recent years is theft and loss from private owners and the State within South Africa. The components of the comprehensive strategy to reduce the proliferation and availability of firearms (Annexure 3) include the following: Research Policy New legislation Business Process Re-engineering of the Central Firearm Register (CFR) and upgrading of its information management systems Implementation plan for the legislation and the programme SAPS operations to enforce the new controls and to trace and recover illegal firearms Aregional strategy to reduce proliferation and flows of small arms. This is essential if proliferation is to be controlled in South Africa A short-term communication strategy focusing on SAPS members, members of Parliament and other target groups concerning the passage of the proposed legislation through Parliament A short-term communication strategy to inform SAPS members and members of the public about the re-licensing process A medium to long-term programme to change the public s attitude towards firearms and the use of firearms, with a view to making firearms socially unacceptable in society as a whole and in particular within certain key target groups, such as young men. The Culture of Violence Sir Thomas Thorp in his report states that the efforts to control firearms in South Africa will not be successful unless there is a substantial effort at the same time to begin changing the culture of violence, which is so prevalent. The need to begin investing substantially in programmes to combat the culture of violence is also emphasised in the Review of the NCPS which has been tabled to the NCPS Committee of Directors General. Although the programme to control the proliferation and availability of firearms has components that begin to address this problem, it is essential that more emphasis and more resources be put into the medium-term programmes which are required to break the cycle of violence. 290 TCP SERIES: VOLUME III

3 Background History of the Policy Process The De-Caris and Duncan Reports and the Joint Investigation Team (JIT) In 1995 the Cabinet instructed the Minister for Safety and Security to conduct an in depth audit of State arms. In response to this, the National Commissioner appointed a Joint Investigation Team (JIT) to audit all State owned firearms and to find those which had been lost, stolen or misplaced. In 1997, the Minister established a committee chaired by Adv. R De-Caris (SAPS Legal Services) to make recommendations for a policy to control legal firearms. This committee presented its report (Annexure 1) to the Minister in July Also in 1997, the Minister established a committee chaired by Ms Sheena Duncan to investigate allegations of mismanagement, impropriety and inefficiency at the CFR, which is administered by the SAPS. This investigation submitted its report (Annexure 2) to the Minister on 30 April (This response of the CFR to the report is attached as part of Annexure 2). The Minister s Committee (including the Minister for Safety and Security, the Secretary for Safety and Security and the National Commissioner of the SAPS) considered these reports together with the draft National Firearm Plan of the SAPS, which focused on the policing of illegal firearms, in July The Minister decided that it was not feasible or advisable to formulate policy on legal firearms separately and in isolation from the policy and policing plan on illegal firearms. He therefore instructed the Secretariat for Safety and Security to prepare a comprehensive programme to reduce the proliferation of firearms in South Africa. He instructed Dr B L Fanaroff to manage the drafting of a comprehensive Policy on firearms and ammunition in the Department for Safety and Security. NCPS Programme to reduce the Proliferation of Firearms A strategy to reduce the proliferation of firearms was presented to the Cabinet on 13 November 1997 and to the Inter-Governmental Forum on 17 TCP SERIES: VOLUME III 291

4 November 1997 (Annexure 3). A small programme team consisting of personnel from the SAPS and the Secretariat was brought together to work on the implementation of this broad strategy. The Thorp Report The De-Caris, Duncan and JIT reports and the broad strategy which were presented to Cabinet, were reviewed by Sir Thomas Thorp, a judge of the Appeal Court in New Zealand, who chaired the committee which wrote the new firearm legislation and regulations in New Zealand. He visited South Africa for a month in February 1998 through the UN Preparatory Assistance agreement to the NCPS. His report (Annexure 4) was presented to the Secretariat in March His report, and the other reports, were summarised by the Secretariat and the SAPS in the form of a set of recommendations on policy which were presented to the Minister for Safety and Security in May 1998 (Annexure 5). The Minister approved them in principle, and it was agreed that certain recommendations required further research. Policy Drafting In order to provide extra capacity and more flexibility for the Secretariat, the Institute for Security Studies (ISS) was engaged by the United Nations Office for Drug Control and Crime Prevention to assist the Secretariat in the preparation of research, a comprehensive policy document, a draft Bill incorporating the policy, and a regional strategy. Work began on the policy document in February The delay was caused by the need to negotiate financial support for the programme. It was originally intended that the policy document be finalised and approved by the Minister before the drafting of a new statute began. However, given the very tight deadlines to pass legislation during 1999, that was not possible. The drafting of the legislation therefore began when the early drafts of the policy had been considered by the Executive Sponsors. This was done with the approval of the Secretary for Safety and Security. The Policy Drafting Team was composed of members of the ISS, members of the SAPS and a member of the Secretariat. It reported to a Policy Committee comprising Dep Nat Comm M Bester, Dr B Fanaroff, Dir R De- Caris and Ms V Gamba. The Committee experienced some problems during the course of its work due to the work overload on the SAPS caused inter alia by the elections and by Operation Good Hope. 292 TCP SERIES: VOLUME III

5 The Policy Drafting Team began its work by consulting all of the Illegal Firearm Investigation Units of the SAPS for their views on the present legislation (the Arms and Ammunition Act), the Thorp report, the De-Caris report and what they thought should appear in a new statute. The team also took into account research on dockets carried out by the SAPS and the ISS on 787 dockets of firearm-related crimes in three Metropolitan areas. The De- Caris report and the Thorp report, with additional research and advice from Canadian and British experts, formed the basis for the drafting team s work. The report was submitted to the Department in June 1999 (Annexure 6). The Availability and Sources of Illegal Firearms It is very difficult to estimate the size of the pool of illegal firearms in South Africa. However, from the best evidence available to the Joint Investigation Team and the Illegal Firearm Investigation Units of the SAPS, the authors estimate this pool to comprise approximately small arms. From firearms recovered and those used in crime, it can be deduced that the vast majority are handguns. The origin of the pool of illegal firearms The work of the JIT, which is not complete, has indicated that there is a large number of firearms of various types which were distributed by the SA Defence Force and whose whereabouts are unknown. Not all of these will be in the hands of criminals. (For instance, some firearms issued to commandos cannot be traced because the commando members have moved and not notified the SADF or the SANDF of their whereabouts) SAPS firearms have been lost or stolen over the past 9 years. The numbers of firearms missing from parastatals, other government departments and local authorities are currently being audited but are unlikely to be of this magnitude. The number of firearms distributed by, or within, the former TBVC states is difficult to estimate because records are very poor or non-existent. The number of firearms missing from security companies is unknown but a sample audit will now be undertaken by the Illegal Firearms Investigation Units. TCP SERIES: VOLUME III 293

6 There has been a significant increase in the number of (mainly privately owned) licensed firearms reported stolen or lost over the past five years. For 1988, were reported stolen or lost. A rough historical estimate indicates that there are likely to be in the excess of about illegal firearms which were stolen from licensed owners. About home-made firearms were recovered in While it is not possible to estimate the total number of home-made firearms in circulation, this figure for recoveries suggests that it is likely to be in the tens of thousands. It is not possible at this point to estimate the number of firearms illegally imported from Mozambique and other neighbouring states or through the seaports. The South African Secret Service (SASS) indicated that they have very little information in this regard. However, it is estimated that this number is not likely to exceed the total number missing from the State. Note particularly that very few handguns have been found in caches opened by Operation Rachel. This indicates that Mozambique is unlikely to be a major source of handguns. Note also that AK47 rifles were most often recovered and most often used in bank heists, cash in transit robberies etc. during 1996 and However, during 1998 this changed, with a much smaller number of AK47s and a much larger proportion of R4 and R5 rifles being used and recovered. This indicates the success of Operational Rachel and the improved control of borders, as well as that the flare-up in fighting in Central Africa has absorbed firearms from Southern Africa. The (conservative) estimate for the size of the current pool of illegal firearms is calculated by adding State owned firearms missing, stolen from private owners, home-made firearms, illegal imports from neighbouring States, and unreported losses from all sectors. The authors feel that it is unlikely that the pool is much larger than on the basis of the available evidence. The current situation: Inflows into the pool of illegal firearms About firearms of all types were recovered during It is very difficult to know where they originated. Many were clearly stolen from the private sector. Work on this analysis is ongoing. 294 TCP SERIES: VOLUME III

7 Over the past five years, firearms have been recovered firearms, (or 82 a day), were reported stolen or lost during 1998, mainly from the private sector. There is believed to be substantial under-reporting of theft and loss of privately owned firearms because of the penalties for negligent loss in the Arms and Ammunition Act. The survey of licences currently being carried out by the Department for Safety and Security with the ISS will provide the first reliable estimate of the under-reporting. It is estimated by the Illegal Firearms Investigation Units and the JIT that approximately firearms are being lost per annum by the SAPS, about 600 per annum by the SANDF and about 1000 per annum by other government departments and local government. The number being lost from parastatal organisations is believed to be relatively low. Note that the SANDF often does not report firearms which are missing to the SAPS or to the CFR, but deals with them internally. This is unacceptable and proposals to rectify it are contained in the draft Bill. The improved border controls, together with the development of the war in the DRC, are believed to have led to a substantial decrease in the number of firearms coming across the border from Mozambique and other neighbouring states. This is confirmed by the change in the firearm of choice used in bank heists, cash-in-transit robberies and similar armed robberies. Nonetheless, it is essential that the regional policy to reduce proliferation and the flow of small arms in the region be completed and implemented in co-operation with the other countries in the region. This will take place as a component of the NCPS Firearm Programme. Given that handguns are the firearms most commonly used in crime, it is likely that most firearms used in crime originate from the private sector. There is some evidence from the docket research carried out by the SAPS and the ISS to support this conclusion. In 1998, 57% of all murders and 80% of all attempted murders were committed with handguns, which are the most common type of firearms being licensed. It is therefore very likely that the theft and loss of privately owned firearms is the largest source of new illegal firearms. All sources of illegal firearms must therefore be effectively controlled: thefts from the private sector and the State, illegal importation, home-made firearms etc. TCP SERIES: VOLUME III 295

8 The Issuing of Licences and the Conduct of Appeals New firearm licences are applied for at the rate of approximately per month to the CFR. This figure also includes a large number of firearms transferred between existing firearm owners. A table shows the number of licences issued since 1994: Table 1: Firearm licences issued in South Africe 1994 to 1998 YEAR NO OF LICENCES ISSUED Of these applications, approximately per month are approved by the CFR. Of those rejected, the Appeals Board subsequently approves approximately 28%. The majority of the licences have been issued for handguns (see Table 2 below). Recently, most of these handgun licences have been issued to previously disadvantaged groups. Note that approximately 3,5 million of the above-mentioned firearms are licenced to approximately 2,4 million individuals. The remainder is licensed to legal persons such as security companies, state departments, dealers, etc. The conduct of appeals has raised concerns, some of which are covered in the Duncan report (Annexure 2). The Appeal Board allows new evidence to be presented which was not presented in the original application. No clear criteria have been set down for the conducting or adjudication of appeals. The composition of the Board has always been unrepresentative of the population and of the range of interest of the population. It is therefore 296 TCP SERIES: VOLUME III

9 Table 2: Firearms registered at the CFR TYPE OF FIREARM NUMBER Pistols Rifles Revolvers Shotguns Combinations Light machine guns 179 Carbines 80 Humane killers 48 Home-made firearms 13 Pen flair 2 Machine guns 2 TOTAL urgent that changes be made to the composition of the Board, its rules of procedure and the criteria for adjudication. Change in the Nature of the Market for Legal Handguns The market for handguns has changed dramatically. Over the past two years, the cheap Norinco (China) and Lorcin (USA) handguns have taken over nearly half of the market, from virtually nothing in This indicates that a huge number of new firearm owners are going for these cheap handguns. Note that there may be steps in the USA to prohibit Lorcin guns because of quality problems, so they are probable being dumped in the RSA. The huge increase in the number of cheap (800-R1000) handguns cannot be good for the reduction in the proliferation of firearms, and the Minister should consider steps to reduce the imports of these guns. If the recommendation to limit the number of firearms, which can be possessed for self-defence is carried into law, there will be a flood of second-hand firearms onto the market, and that may in itself destroy the low-cost imports. In terms of the current Act (Arms and Ammunition Act, Section TCP SERIES: VOLUME III 297

10 1) the Minister has the power to ban imports of certain types of firearms. It is likely that such a step would be politically problematic. The draft Bill requires all imported firearms to meet certain standards (as laid down by the Department for Safety and Security in consultation with the SA Bureau of Standards). This may be a more satisfactory method of limiting these cheap imports. Ongoing Research A survey of licence holders is presently being conducted to ascertain: The integrity of the CFR database. The number of missing firearms which have not been reported. The initial results of the survey indicate serious problems with the integrity of the CFR database, insofar as addresses, firearm identifying data and other data are often incorrect. This confirms the urgent need to re-licence all firearms (in both private and State hands) in order to ensure that the database is correct and the whereabouts, ownership and identifying data of all firearms are correct and up to date. It also confirms the need for the Business Process Reengineering (BPR) of the CFR. The Legislative Process Ateam comprising the SAPS, the Secretariat for Safety and Security and the ISS has been responsible for the drafting of a new Bill. This team has reported to the Executive Sponsors. The original deadline of 30 June 1999 could not be complied with by the team. A deadline of 30 July 1999 was accordingly agreed. Consultation Although there have been ongoing informal and formal meetings with Gun Free SA and the SA Gun Owners Association (SAGA), these groups have not been formally consulted during the legislative drafting process, nor have the documents been made available to them. 298 TCP SERIES: VOLUME III

11 The Provincial Heads of Secretariats have been informed of the process, but have not yet been consulted on the documents. This is true also of the other departments of government. This process has been driven by the tight time deadlines. Both groups will be consulted on the legislation prior to it being tabled in Parliament. The national departments will be consulted in a formal process agreed on by the NCPS Directors General on 15 July 1999 prior to the submission of the Bill to the Cabinet. Previous legislation In July 1998, the Department tabled amendments to the Arms and Ammunition Act to deal with Section 8(1) of the Act. After opposition from Opposition parties, the draft amendment was withdrawn and an undertaking was given to the Parliamentary Safety and Security Committee that no further piecemeal legislation would be placed before them. They would be given a completely re-written statute. In the event, requests from the SAPS and the Western Cape government led to the Department for Safety and Security tabling an amendment to Section 8(1) (loan of a firearm) which was approved in March It went through with good and wide multi-party support. The process from here The draft policy has been handed to the Executive Sponsors, who make their final recommendations to the Minister in this memorandum. The proposed Policy is submitted to the Minister for approval. The draft Bill was presented to the Department on 31 July The Department will consider the Bill, make certain technical changes which may be required and present the Bill to the Minister for approval. A Cabinet memorandum will be submitted for consideration and signature by the Minister. The Bill will be published for public comment as soon as the Cabinet has approved it. The Minister is requested to assist the Department to move the Bill through the parliamentary machinery, to ensure that it is passed TCP SERIES: VOLUME III 299

12 Objectives of the Policy and the New Legislation Given the facts set out above, the objectives should be as follows: To make the owners of firearms directly accountable for their firearms. To ensure that the whereabouts of all privately owned and State owned firearms are known at all times. To reduce crimes committed with firearms. About 50% of murders and over 79% of armed robberies take place with firearms. The UNISA Institute for Social and Health Sciences National Non-natural Mortality Surveillance Study revealed that firearms are responsible for 30% of all non-natural deaths. This figure exceeds that for any other individual cause. Since it is estimated that approximately non-natural deaths occur in South Africa each year, this amounts to some being killed annually with firearms. In Soweto, as an example, over 70% of homicides are committed with firearms. Over 170 police officers are murdered with firearms each year. Handguns are used in most of these crimes. To dramatically reduce firearm-related crime and lethal violence in the RSA. To change the attitude of the public to firearms, and especially the attitudes of young men and boys. To reduce the flow of firearms in the sub-continent. To address the easy availability of firearms as a major contributor to the prevalence of violent crime and especially of lethal violence. To reduce the availability of all types of firearms. To reduce the numbers of legal and illegal firearms. Theft and loss of privately and State owned firearms is the major source of illegal firearms. The number of illegal firearms must be reduced by substantially increasing the recoveries by the SA Police Service and the SA National Defence Force. At the same time, the sources of new illegal firearms must be cut off. This implies stricter controls and a reduction in absolute numbers of privately owned and State owned legal firearms. To address the irresponsible use of licensed firearms as an increasing contributor to firearm violence, especially homicide, attempted murder and aggravated assault. Responsible firearm ownership must be enforced and must become the dominant culture. (Knowledge of and competency in the use of firearms is a part of this requirement. However, there is no research available to the best of our knowledge which indicates that 300 TCP SERIES: VOLUME III

13 normal, non-specialist training in the use of firearms greatly enhances either the responsibility or the ability of a user to defend him or herself. Training can improve knowledge of and compliance with the law and may avert unintentional injury. The effects on crime are less clear). To increase the powers of the police to investigate, confiscate and arrest with a view to a successful prosecution, without infringing on the constitutional and human rights of individuals. This refers particularly to the rights of the police to search for and confiscate firearms and ammunition and to prosecute for possession. The Constitutional Court rejected presumptions similar to those relied on by police and prosecutors on the possession of illegal firearms. For these reasons, it is necessary to increase the controls on and to reduce the proliferation of both legal and illegal firearms. One aspect of the general strategy to achieve the objects set out above is therefore a new Act. This is, however, only one part of a comprehensive strategy which includes policing, regulation and public education. Recommendations for the Ministerial Policy These recommendations are based on and amend the report submitted by the Policy Drafting Team (Annexure 6) and are the joint recommendations of the Executive Sponsors. Annexure 6 incorporates the results and recommendations of the earlier reports and is therefore used as the reference document. Principles Advice to the Minister The Secretary for Safety and Security is the primary adviser to the Minister for Safety and Security on all policy matters. Principle of compliance versus enforcement The recommendations are as far as possible based on the principle that it is far more cost-effective to encourage and achieve compliance than to rely on enforcement. Enforcement is much more expensive and is not always effective. Too much emphasis on rigour may compromise compliance, TCP SERIES: VOLUME III 301

14 particularly for existing firearm owners. Therefore, in principle, emphasis should be placed on getting firearm owners into the system so that they can be appropriately managed. If they are not in the system, they cannot be controlled except through enforcement, which is difficult at the best of times. In view of the limited resources available, it is preferable to focus on the licensing of the firearm owner rather than focusing excessively on the type of firearm and making the licensing process too complex. Principle of putting the burden of proof on firearm owners The recommendations include a proposal for a two-tier system of licensing: first licence the owner, then licence the firearm. The burden of proof is on the owner to demonstrate that he is a fit and proper person to possess a firearm. The checks which the Registrar of Firearms and the SAPS are required to carry out should be minimised. Focus on handguns Although most crimes are committed with handguns, automatic firearms should also be prohibited to civilians due to their use in high profile crimes eg transit robberies. The focus should, however, remain on the control of handguns. Focus on handguns Although most crimes are committed with handguns, automatic firearms should also be prohibited to civilians due to their use in high profile crimes eg transit robberies. The focus should, however, remain on the control of handguns. Destruction of firearms recovered, forfeited or handed in In principle, firearms which are recovered by the SAPS or the SANDF in the course of operations and which are forfeited to the State, or are handed in by owners who are prohibited from or do not wish to continue their ownership, should be destroyed in order to avoid them from coming back into circulation. Note that firearms which are required for the purposes of on-going investigations or prosecutions will be retained until such time as it is confirmed that they will no longer be required for these purposes. 302 TCP SERIES: VOLUME III

15 In order to facilitate cross-referencing, the order of recommendations is more-or-less maintained as in Annexure 6: however, a more logical clustering of the recommendations is set out below. The recommendations fall into the following groups: 1 Vigorously enforce laws regarding offences relating to the misuse of firearms Declaration of unfitness The SAPS operational strategy must be properly resourced and must enjoy recognition. It must be based on performance management. 2 Reduce the chance that those who are a risk to themselves or others will have firearms. 3 Reduce illegal firearm trade by making it easier to detect illegal possession, trace firearms to owners, control sales and reduce theft. Classification and registration Control of lending Controls on manufacture, sale and distribution Penalties for trafficking and possession of unlicensed firearms Amnesty 4 Reduce ability to use illegal firearms. Controls on ammunition 5 Reduce access to firearms where the risk outweighs the utility Prohibited firearms and ammunition 6 Promote a culture of safety and norms of non-possession and focused policing Firearm free zones Education and training 7 Reduce international abuses and human rights violations Control brokering Import, export (and in-transit) 8 Provide appropriate administrative and technical support Registrar CFR database Advisory council The need for a new Act The existing Act regulating firearms and ammunition is the Arms and Ammunition Act No 75 of This Act has been amended on several TCP SERIES: VOLUME III 303

16 occasions. It is complicated and fragmented and both police and prosecutors find it difficult to read and to use. If the legislation is to play an important role in the control and reduction of the proliferation and availability of small arms, it should be readable and easy to understand and use. The consolidation and extension of the powers of the police to investigate, confiscate and arrest must be increased within the limits of the Constitution. It is also necessary to make the regulatory framework for legal firearms clearer and more consistent. Certain sections of the Act, such as those on disqualification and offences, are not strong enough. The criticism has been made that the weakness of the current Act lay in the failure of the police to implement it effectively, rather than the weakness of the Act itself. While there is truth in this, for the reasons set out above it is recommended that the Act be completely rewritten. RECOMMENDATION 1: A NEW ACT That a completely new Act be drafted, to be called the Firearms Control Act. Sections of the old Act which remain valid should be incorporated. Register of Firearms The Central Firearm Register The current Act requires the Central Firearms Register to maintain a register of all licences issued. Criticisms have been raised concerning the operations, integrity and efficiency of the systems at the CFR. A Business Process Re-engineering project is being undertaken to ensure that the CFR is able to carry out all the functions assigned to it in the new legislation efficiently and effectively. This will look at the optimisation of business processes, the information management required to support these business processes, the information technology required, and the human resources which are necessary. The CFR in its current form will not be able to carry out the functions required for it. It is planned that the changes should take 304 TCP SERIES: VOLUME III

17 place in phases. Phase 1, ensuring that systems are available and working to carry out the basic functions of registration required in the legislation, must be completed as soon as possible after completion of the BPR. A period of twelve months after completion of the BPR is at this stage considered a suitable target, in order to allow the Act to be implemented quickly. If this is not done and if the public do not see clear and effective action in the short term, the credibility of both the Act and the programme will be seriously damaged. The BPR study will inter alia make recommendations on the organisation and structure of the CFR. Registration and licensing is not a core police function, and should, therefore, not be carried out by trained police officers, except in those specific areas for which expertise is required. The results of the BPR will, however, be of primary importance to the final decision. In particular, the BPR will consider whether the CFR can be established as a focused business unit or agency within the Department. Two preferred options were available for the location of the firearm register: The National Commissioner: SAPS should continue to be the Registrar of Firearms and the CFR should continue to report to him. The Secretary for Safety and Security should be the Registrar and the CFR should report to him. In both cases, the legislation should be drafted in such a way that the Registrar is empowered to appoint such persons and to do such things as will allow the CFR to carry out its statutory functions as efficiently and effectively as possible. It was agreed to recommend the first option, with the following conditions: The location, structure and organisation of the CFR to be finally determined when the results of the BPR study are available and approved. However, for the purposes of continuity the CFR will continue to report to the National Commissioner: SAPS at least until the basic systems required to implement the new Act are in place and operational. The Registrar will a appoint a Chief Executive Officer. This person will be a highly skilled manager, preferably one who has experience of the transformation of a large organisation. The CEO may be chosen either from within the SAPS or from outside the SAPS. The staff of the CFR TCP SERIES: VOLUME III 305

18 will be augmented according to the skills profile required and will not be restricted to members of the SAPS or the civil service. Duties and obligations of the CFR The duties and obligations of the CFR should be set out in the Act, with as much as possible in the form of regulations rather than in the body of the Statute. They should be as follows: Firearms in legal, private non-state possession: The CFR should be required to keep and maintain a register of all firearms in legal non-state possession. The following minimum information is required to be included in the Register: The national identity number, name, physical and postal address, date of birth and gender of the person in whose name the firearm is registered. A photograph of the person in whose name the firearm is registered, as submitted on the application for a licence. The type of firearm (such as pistol, rifle, etc), the type of action (such as semi-automatic, pump action, bolt action, etc), the make of firearm (eg Beretta, FN, Browning, etc), the model of firearm (such as 92FS, 75, etc), the serial number of the firearms, the calibre of the firearms (eg as 9 mm, 9 mm Parabellum, etc), and any other inscriptions, consisting of numerals or letters, on the firearm that can assist the SAPS in identifying the firearm later. Particulars of the licence or special permit granted, renewals of the licence, suspension, cancellations or surrender of that licence or special permit. The original application forms plus required attachments submitted for both the Competency and Possession licences. Life cycle i.e. previous owners and particulars. Firearms in State Possession: The CFR should be required to keep and maintain a register of all firearms in legal State possession. This includes all machine-guns, assault rifles, shotguns, pistols and revolvers. The following minimum information is required to be included in the Register: The State Department under whose control the firearm is, or in whose safekeeping or legal possession the firearm is. The type of firearm (such as pistol, rifle, etc), the type of action (such as 306 TCP SERIES: VOLUME III

19 semi-automatic, pump action, bolt action, etc), the make of firearm (eg Beretta, FN, Browning, etc), the model of firearm (such as 92FS, 75, etc), the serial number of the firearms, the calibre of the firearms (eg as 9 mm, 9 mm Parabellum, etc), and any other inscriptions, consisting of numerals or letters, on the firearm that can assist the SAPS in identifying the firearm later. Particulars of the movement, transfer, sale, destruction, etc of the firearm, (to be reported to the Registrar within 30 days of such an action taking place). The Act should make the reporting of loss and/or theft of firearms from State armouries compulsory and within the same parameters as for those in legal non-state possession. Administration of a Register: The CFR should be responsible for the processes and administration of the register as prescribed in the Act, and within the powers and functions as delegated by the Registrar. As such the CFR should develop and maintain: An accurate and up-to-date information database for use by investigating officers prescribed in the Act and within the powers and functions as delegated by the Registrar. An administration system (both electronic and archival) to implement and support the policy on control of firearms in South Africa. A research section, which should be responsible for continuous research into matters informing the firearms policy and technical aspects that impact on the administration and control of firearms. A Public education section which should be responsible for the research and provision of training and testing curricula and public information and education material. Designated officers and resources: The Act should make provision for the appointment and allocation of the personnel and resources needed to implement the approved recommendations in such a manner as the Registrar sees fit, and to ensure that the intentions of the Government and the Legislator are met in an effective manner. This will require the Act to make reference to the appointment by the SAPS of Designated Firearm Officers, who will be responsible for carrying out the regulatory functions of the SAPS which form part of the Act. Their functions will not be spelt out in detail in the Act. TCP SERIES: VOLUME III 307

20 Integrity of the CFR Database The integrity of the database is in doubt following the Duncan report. A survey of 2000 licensed firearms is currently being undertaken by the Department of Safety and Security to check the physical location and identity of all firearms against the information listed in the CFR database. This will be the first accurate check of the integrity of the database and it will also allow the first accurate estimate of the under-reporting of lost and stolen privately owned firearms. State-owned Firearms Stolen and lost State-owned firearms area a major source of illegal firearms. State-owned small arms must therefore also be regulated by the new legislation and must be registered with the CFR. Audit and re-issuing Process for all small arms It is not possible to effectively control firearms unless the State possesses accurate information regarding the location, ownership and identity of all firearms. There are problems with the current Firearm Register (see above). It will therefore be necessary to audit all firearms which are currently licensed and re-issue licences in the new format. This process will require all information that is required in the new system of licensing regarding a specific firearm, but will not require the owner to undergo the strict scrutiny which the new licensing process demands. The cost of the new licence to existing licence holders in this audit and re-issuing process should also be less than the cost of a new licence. These measures are intended to ensure that the maximum number of firearm owners enters the new system, by not making the re-licensing process too arduous. The aim of the auditing and reissuing process for all legal, privately owned firearms is therefore: Upgrade the integrity of the database of the CFR. Ensure that the ownership and whereabouts of firearms are known. Ensure the creation and maintenance of one uniform licensing system. Enhance the effective control of firearms in South African. Encourage the responsible management of firearms in the country. The audit and re-issuing process must have as its objective the replacement of all existing licences and permits with a uniform new licence. These existing documents include: 308 TCP SERIES: VOLUME III

21 The current licence; The licence pasted into, or contained within, the old identity document. TBVC State licences; Licences issued in the former South West Africa; The old Magistrates licence ( 2 shilling licence ). Cost of the licence Currently the CFR charges R50 per licence issued. This amount was determined some ten years ago and has never since been reviewed. In terms of Treasury Instructions S.1. the tariff charged should be reviewed on an annual basis. It is proposed that the cost of a licence should be sufficient to cover the cost of the processing of the application and the issuing of the licence, and should contain a component to cover the costs of the research, monitoring and evaluation functions of the CFR proposed below. The major part of the cost of operating the CFR should therefore come from users. RECOMMENDATION 2: REGISTRATION OF FIREARMS 1 It is recommended that the National Commissioner be appointed as the Registrar of Firearms in the new legislation, at least until the results of the BPR study at the CFR can be considered by the Department and the Minister. The Registrar will have executive command over the CFR. 2 The CFR will be upgraded to ensure that it is able to carry out the duties assigned to it by law efficiently and effectively. The legislation will provide for the Registrar to do such things as are necessary to ensure that the CFR is able to operate effectively and efficiently and to carry out all the assigned functions and duties, including the appointment of staff (who should not be limited to SAPS or civil service members). 3 The basic systems required by the CFR must be in place as soon as possible after completion of the BPR. A period of twelve months after completion of the BPR is at this stage considered a suitable target. 4 Thereafter, an auditing and re-issuing process will be done on all licensed firearms. This once-off process for firearms already licensed will not be as exhaustive as the full new licensing or re-licensing process. However, it will provide the basis for the re-licensing process. TCP SERIES: VOLUME III 309

22 The auditing and re-issuing process In the application for this, the applicant should be required to provide only the following: Supply all the information prescribed in the Act in the prescribed manner and form, and ensure to the best of his or her ability that it is true and correct Complete the applications forms which are obtained from the Designated Officer who is based nearest to the applicant s place of domicile Submit an acceptable form of proof of physical residential address and a postal address Submit recent photographs in the specified format Submit a certified copy of his or her identification document The Designated Officer must do the following: Issue the required forms to the applicant Check that all required forms are correctly completed. Check that all required information has been provided Take a set of fingerprints of the applicant and submit them to the Criminal Record Centre for a check on any criminal history of the applicant and any pending cases Check whether the applicant has been declared to be unfit Physically check the firearm against the information contained in the application forms. Forward the complete application to the CFR The cost of auditing and re-issuing process It is proposed that the cost involved in the auditing and re-issuing process be dealt with in such a manner as not to be seen as a stumbling block in encouraging current licence holders to buy into the process. Consideration can be given to introducing a system of staggered payment depending on the number of firearms to be licensed by an individual or a period in which such re-licensing will be done free of charge by the State. Communication An extensive communication process will be required to inform the SAPS members and the public of their duty in respect of the auditing and re- 310 TCP SERIES: VOLUME III

23 issuing process. This should be costed and provided for in the MTEF of the Department for Safety and Security. Duration of the auditing and re-issuing process This should take place over three years from as soon as the implementation of the recommendations of the BPR are completed, in a manner similar to that for the Driver s Licence. It should begin as soon as the upgraded basic systems are ready at the CFR. The SAPS has proposed that this deadline be twelve months from the completion of the BPR of the CFR. 5 Holders of unlicensed firearms will be given amnesty to apply for a licence in terms of the new licensing system during this process with the provision that stolen and prohibited firearms will not be licensed but will be confiscated. 6 Persons who wish to surrender legal or illegal firearms may do so. These firearms will be forfeited to the State. All such firearms may be ballistically screened and holders of firearms which have been used in crimes may be prosecuted. 7 Persons who fail to comply with the auditing process and are thereafter found to be in possession of unaudited firearms should be declared unfit for possession for possession for life and ownership of the firearms should be forfeited to the State. This will be treated as illegal possession in terms of the Act. 8 All new applications, from a date to be determined, will be required to comply with all aspects of the new licensing process. 9 The upgrading of the CFR is fundamental to the successful implementation of the new legislation. Exact costs will be available from the BPR study and should be met from the fiscus and the revenue from licence fees. 10 The cost of a licence should reflect the actual cost to the State, in keeping with the principle of Masakhane. This will ensure that the CFR and the licensing process are substantially self-financing. It is likely that a residual amount will still be required from the fiscus. Permission will be required from the Treasury to allow the operation of a trading account and the retention all revenue. 11 The duties and obligations of the CFR should be as set out above. 12 The appointment of designated officers of the SAPS should be TCP SERIES: VOLUME III 311

24 mentioned in the Act and their functions should be set out in the Regulations. Classification of Firearms and Firearm Licences The most dangerous firearms will be prohibited for possession by private individuals. Other firearms will be classified according to their use, and different licensing conditions will apply to each category. Certain items (such as captive bolt guns used in abattoirs and safety devices for sailing) will not be classified as firearms. Antique firearms (that is those manufactured before 01 January 1900 which do not discharge rim fire or centre firearm ammunition) should not be licensed. However, they should be sold only through dealers who must maintain a register with information about the owner and the firearm. The use of the firearm will be regulated in line with the control measures on other firearms. Airguns fall into three groups: Those which discharge a projectile with muzzle energy greater than 8 joules (6 foot pounds), will be classified as firearms and will be subject to the same control measures as other firearms. Those which discharge a projectile with muzzle energy between 0.7 joules (0.5 foot pounds) and not more than 8 joules (6 foot pounds) may only be sold by dealers, (who must keep a register) and may not be sold to any person under the age of 18 years. Those which discharge a projectile with muzzle energy less than 0.7 joules (0.5 foot pounds) will not be regulated. Firearms and devices to be licensed: All handguns, pistols, revolvers (except as specified above). Dangerous airguns (ie those discharging a projectile with muzzle energy above 8 joules (6 foot pounds). Shotguns. Rifles (except as specified above). A tranquilliser firearm (a firearm designed for use in tranquillising, immobilising or administering vaccines or medication to an animal). 312 TCP SERIES: VOLUME III

25 Silencers or sound suppressers The possession of silencers or sound suppressers should only be allowed where the Registrar has issued the requisite permit. Prohibited firearms: Certain types of firearms will be prohibited and no licences will be issued for their possession. These include: All firearms capable of firing more than one shot on a single depression of the trigger; Any firearm which has been converted to automatic or where the bore, calibre or barrel length or serial numbers have been altered without the written permission of the Registrar. The Minister may, by notice in the Government Gazette, declare any firearm to be a prohibited firearm, and must notify both Houses of Parliament. The prohibition must operate with retroactive effect, in so far as firearms which are lawfully owned before the coming into force of the prohibition will also be prohibited. The Minister should set a period in the Regulations to the Act of one year after the audit and reissuing process, during which owners of prohibited firearms are required to render their firearms permanently inoperable or to surrender them to the State. In accordance with the Constitution, where such a firearm has been both licensed and lawfully owned, the State will be required to pay compensation. It is estimated that this could cost the State in the order of R10 million. Note that many of these firearms are automatic firearms but have been registered as single shot firearms and are therefore not lawfully owned. RECOMMENDATION 3: CLASSIFICATION OF FIREARMS 1 Firearms should be classified according to their intended use and their capabilities. 2 Certain firearms, such as full-automatic rifles/ machine guns, should be prohibited for possession by civilians. TCP SERIES: VOLUME III 313

26 3 The Minister should have the power to declare classes of firearms to be prohibited but must table the notice before both Houses of Parliament. A list should be included in the Regulations published with the Act when it is promulgated. Prohibition should be retroactive and be implemented over a 1 year period. 4 Certain restricted firearms may be made available to civilians (i.e. persons or institutions who have a legal persona) or security companies (or companies with security functions) for special circumstances and by special licence from the Registrar. 5 Airguns which discharge a projectile with muzzle energy rate greater than 8 joules (6 foot pounds), will be classified as firearms and will be subject to the same control measures as other firearms. Those which discharge a projectile with muzzle energy rate between 0.7 joules (0.5 foot pounds) and not more than 8 joules (6 foot pounds) may only be sold by dealers, who must keep a register and may not be sold to any person under the age of 18 years. Those which discharge a projectile with muzzle energy rate less than 0.7 joules (0.5 foot pounds) will not be regulated. 6 All the firearms listed above in private possession should be licensed and in state possession should be registered at the CFR. RECOMMENDATION 4: CATEGORIES OF FIREARMS AND LICENCES Category 1: prohibited to civilians. Allowed only for military and law enforcement officials. Category 2: restricted use. These are Category 1 firearm which may be used where the life or property of a person is in grave danger and the Registrar is satisfied that the firearms normally provided for civilian use will not provide adequate protection. This will also apply to institutions providing security services registered with the appropriate authorities. Only semiautomatic rifles, carbines and shotguns can be licensed. Shotguns with drum magazines and firearms designed to fire non-lethal crowd control ammunition can also be licensed in this way. Special motivation will be required by the Registrar. Category 3: includes firearms for civilian use. 314 TCP SERIES: VOLUME III