By: Conway P. Evertson
By now, the date for submissions on commentary to the controversial Firearm Control Amendment Bill, 2021 (“the draft Bill”) has closed. Yet the dust is not about to settle as we are dealing with a very tall order pertaining to public and civil society concerns. These are debates which can continue for very long periods, meetings being held can go far into the night and it still remains a very contentious yet serious topic around the braai fires.
There are major concerns not just amongst those for the rejection of the draft Bill but also amongst those for the implementation of the proposed draft Bill. Objectively, the latter are trying to argue their point with the support they might have but, overwhelmingly, there’s a huge outcry from those against the proposed draft Bill that their rights are being infringed upon. Exciting times one could say but, for whom? Various questions were asked, whether you are pro the draft Bill or against it.
The South African Police Service argues that there’s a need for them to strengthen gun control hence the proposed amendments. It’s very clear that the Firearms Control Act of 2000 (Act 60 of 2000) in its current format is not suitable for the citizenry of this country, according to those responsible for the draft Bill.
Suddenly, they ignited some excitement which prompts an organization such as Gun Free South Africa, to precariously lobby in their favour. Siding with the Minister of Police Bheki Cele in this regard makes you an accomplice in denying most South Africans their constitutional right.
During an interview with eNCA’s Naledi Moleo on the 2nd August 2021, Adele Kirsten of Gun Free South Africa, acknowledged her support for the draft Bill and described it as “most significant,” going further by saying, “less guns, less dead people”. Ironically, she mentioned, “no evidence exist that a gun will protect you.”
Many people will disagree with this especially in a country like South Africa which has a huge crime rate. We have a massive amount of illegal firearms circulating in the country, something which the South African Police Service is continuously failing to address. How can we trust them to uphold our most basic constitutional right when their computerized firearms register that is responsible for keeping track of over half a million firearms is not functional?
A critical comment made by Kirsten is “that the South African Police Service is addressing the circulation of illegal firearms and that ballistic sampling of ammunition and firearms are making the police jobs easier.” When this is happening and how it’s happening is anyone’s guess, taking into account that the computer system known as PCEM (Property Control and Exhibit Management) which manages forensic exhibits in the police laboratories and strong rooms, has been shut down due to a dispute over non-payment.
This is not the first incident of its kind between Saps and Forensic Data Analysts (FDA), the company who developed and owns the system. The matter was heard in court nine times before with the ruling, always in favour of FDA. This is a clear indication what it is we are sitting with, incompetence. In the same breath we highlight the one of many instances where firearms are stolen from police stations and army bases, most recently in Tsineng in the Northern Cape.
We are sitting with dysfunctional and failing Saps, an organization demonstrating a gross lack of leadership infiltrated by criminality, corruption and most significantly, the huge amount of infighting between Bheki Cele and national commissioner, Khehla Sithole.
Crime statistics released on Friday, 20th August 2021, reveals a significant increase in several crime categories. Cele attributes this to the various lockdown levels which he purposefully diverts all accountability from himself. Contact crimes show a massive increase of 60.6% such as murder, attempted murder and assault.
He fails to mention and typically omit the statistics on farm murders which are a bigger percentage to murder statistics. Furthermore, he again fails to mention the number of firearms stolen from police stations and the number of illegal firearms seized in the crime statistics – which contributed towards murder, attempted murder and assault cases.
Gang-related killings and cash-in-transit heists are committed with illegal firearms yet, he fails to mention the numbers of illegal firearms seized. He swims against the stream with this draft Bill and in the processes attempts to drown civil society with him in the process. It’s evident that Cele is using these crime statistics to mislead civil society in a failed attempt to hide his incompetency.
He is failing this country in terms of not only the Constitution, but also the priorities as set out in the NDP which speaks of – “In 2030, people living in South Africa feel safe at home, at school and at work, and enjoy a community free of fear.” It goes further, “The police service is well resourced and professional, staffed by highly skilled officers who value their work, serve the community, safeguard lives and property without discrimination, protect the peaceful against violence, and respect the rights to equality and justice.“
Firstly, the police service is not well resourced, not professional at all taking into account poor services rendered. Secondly, Firearms stolen from police officers, the police gross failure in protecting the citizenry against violence is a human rights violation. In a failed state as ours, the priorities set and outcomes expected in the NDP shall remain a wishful myth.
During October 2014, the Civilian Secretariat for Police Service commissioned independent researchers from the school of governance department at Wits University to determine what effect the Firearms Control Act of 2000 (Act 60 of 2000) had on crime and violence. Their mandate was to focus on the period 2000 to late 2014, which essentially meant over a period of 15 years.
On completion, a document of 178 pages was submitted in 2015 and concluded that Act 60 of 2000 had no effect on crime and violence. According to Gideon Joubert of Gun Owners South Africa, this was an excellent independent research. Speaking on the report’s conclusion to eNCA on the 5th August 2021, Joubert said that, “it was recommended to the authorities that:
- Fewer than 5% of crimes committed are relevant to the Firearms Control Act of 2000
- They recommended against further firearms law restrictions being imposed
- Authorities to shift their misplaced focus to tightening gun laws to policing
- They found that stronger policing brings crime levels and violence levels down.
- The absence of policing increases crime levels and violence levels.”
On the recent violence in KwaZulu-Natal and parts of Gauteng, Joubert said “communities were left to fend for themselves and relied on their own firearms to protect themselves. The same communities had to coordinate their own safety structures.”
On a question that illegal firearms were confiscated from security companies, Joubert added that “the police were diverting the attention away from them.” He explained the process further by saying, “all directors and security personnel must register their firearms whether you’re a security company or security service provider with the Private Security Industry Regulated Authority (PSIRA) meaning: all personnel issued with firearms must have a Business Purpose Competency Certificate.
It is part of the National Qualification Framework (NQF) with regular inspections and a tightly regulated industry.” If the Saps failed to exercise existing law as what the case was, how will tighter restrictions make any difference? On the current draft Bill, he says, “Saps are saying that they want this new law in place because legal firearms are most at risk of being stolen and lost by individuals”. Having listened to Joubert, one cannot come to a better conclusion that the police failed the citizenry and failed to uphold Section 205 of the Constitution in particular ss205(3) which states that;
“The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.”
If one looks at the above and what the Bill proposes, and what is expected from the police, it’s very clear that civil society is appalled by the proposal and it can be seen as irrational and immoral.
A senior female law enforcement officer in Cape Town and a mother of two, doing duty in some of the most notorious gang infested areas of the Western Cape has raised her concerns on the substance of the draft Bill. She added, “With the increase of crime and violence, it is evident that law breakers have no respect for the law. There has been an increase in firearm attacks and murders and gang related incidents.
In her view, the draft Bill affects ordinary law abiding citizens. She points out that there are basically just two points in the draft Bill that she has a major problem with:
- “…; to provide that no firearm licenses may be issued for self-defence purposes”, “I think that this is insane given the high crime rate in South Africa. Criminals who possess many unlicensed and illegal firearms.”
- “…; to provide for the reduction of the number of ammunition that a licensed firearm holder may possess,” “A licensed firearm holder should be allowed to stock up on ammunition given the increased crime rate in our country.”
Approaching a retired Saps Brigadier and a former colleague to comment, was meticulously due to him being a former station commissioner at two vastly different police stations territorially, in terms of crime and in particular violent crimes: one being on the Cape Flats in Manenberg. It’s an area notoriously known for gun violence between rival gangs.
He started by saying that “he wishes he could say in all conviction, we reached a stage in South Africa where there’s no need for a person to own a firearm for private defence.”
“As we know, the responsibility for self-defence is primarily incumbent upon the individual. Secondly, it goes to the state. Our government has not proved itself as yet to secure the safety of myself and others. We live in one of the most violent countries in the world. Many crimes are committed with firearms. The risk to disarm law abiding citizens like myself is too high. There is no proof in our country that violent gun culture derives from legal private possession but instead, from unlawful criminal possession.” he remarked.
In his opinion, he strongly believes and suggests that “private firearms for self-defence should be allowed and that current legislation should stand.”
More interestingly, are the uncharacteristic draft Bill in terms of the substance and the processes followed. With reference to substance, it’s the elimination of removing firearms in its totality for self-defence which will have far more reaching consequences for civil society. When dealing with substance, the primary concerns of the citizens are:
- The removing of firearms for self-defence
- The security industry access to firearms
- Limitations on the number of firearms people can own
- Limitation to age
- Limitation to the amount of ammunition a person can have with certain limitations from 200 rounds to 100 rounds
- The elimination of a class of collectors
There are no guarantees that the above proposed changes will happen with any alternatives such as proper policing or improved administration.
The process followed by the Civilian Secretariat for Police Service is of equal concern. The Centre for Risk Analysis (CRA) through their Chief Operating Officer, David Ansara, had an interesting discussion with Martin Hood of MJ Hood and Associates, who is also a firearm law specialist.
According to Hood, “no consultations were done with civil society especially around the need for these proposals. The Minister of Police and the Civilian Secretariat for Police Service mentioned that they have done their research and that their proposals are, in terms of the research, justifiable. However there’s a reluctance to provide the details of the research in order for it to be analyzed.” Hood went further by saying there’s “also a requirement for a Socio Economic Impact Assessment. It’s a study of the impact of any proposed legislation. It is believed that in this case, the impact assessment was done before the proposal was finalized.”
Having ignored the Socio Economic Impact Assessment, it’s important to note those affected by it such as:
- The impact it will have on the security industry
- The ammunition, arms dealers and trading industries
- The impact on the training industry
- The impact on shooting ranges
Hood describes the above as “four categories of economic activity.” Additionally, he identified three of the above which have numbers attached to them viz:
- License dealers alone total 809
- Licensed shooting ranges total 900
- Training Institutions and trainers total 700
“It is likely that they will cease to exist once these proposals are accepted. We cannot afford this in a time where we have a poor economy, and in a recession. Bheki Cele fails to comply with the National Development Plan. In its regulated compatibility, the National Development Plan speaks of a civil society free of crime and violence and the safety of every person guaranteed.”
The question asked by most people is whether the Bill can be challenged constitutionally.
“There are difficulties but the implications of the process can be challenged with proper consultation. Legal opinion has it that one cannot challenge the constitutionality of a Bill, it must become law first. Once it becomes law it can be taken to court and ultimately the constitutional court. There could be constitutional challenges should the Bill be accepted in its current unchanged form.” he added.
Martin Hood identifies as the principle one being:
- “a right to life”
- “a right to security and integrity of the person”
Even if the hundreds and thousands of submissions from civil society are ignored and/or not taken seriously, it’s obvious that litigation is inevitable and once started, can unfold over a number of years.
Conway Evertson is a former Director of Community Safety, a Senior Lecturer (Criminal Justice), Forensic Expert (SAPS), Head Investigations (IPID) and an Infantry Instructor (SADF).
The Constitution of the Republic of South Africa, 1996
eNCA News. SABC. eTV, Cape Town.2 Aug. 2021. Television.
Centre for Risk Analysis. Johannesburg. 17 June 2021. Television