Magistrate Tears Into FCA Amendment Bill

The comments below were compiled by a Magistrate who wishes to remain anonymous. They submitted it to the Civilian Secretariat for Police, and very kindly made it available for publication. It is a superb summary of everything that is wrong with the FCA Amendment Bill.

COMMENTS ON THE DRAFT FIREARMS CONTROL AMENDMENT BILL, 2021 GOVERNMENT GAZETTE NO. 44593 DATED 21 MAY 2021

INTRODUCTION

1. Comments are hereby provided in accordance with the Invitation for Public Comments on the Draft Firearms Control Amendment Bill, 2021 (the Bill).

2. It is of great concern that the Bill was published as a mere working document.

3. My comments are specifically directed to the following aspects which the Bill seeks to amend:
   • Deleting of licencing of firearms for self-defence.
   • Reduction of licence period to five years.
   • Reduce number of allowed licences.
   • Limit ammunition per licence.

DISCUSSIONS

Bill of Rights

4. Although firearm rights (private persons, police services, defence force, intelligence services) are not recognized by the Constitution per se, the following constitutional rights, of which the applicable section appears in brackets, which rights are the cornerstone of democracy in South Africa, should be considered to protect firearm rights:
   • The State must respect, protect, promote and fulfil the rights as contained in the Bill of Rights (section 7(2)).
   • The Bill of Rights applies to all law and binds the legislator, the executive, the judiciary and all organs of state (section 8(1)).
   • Everyone has the right to life (section 11).
   • Everyone has the right to freedom and security of the person which inter alia includes the right to be free from all forms of violence from either public and private sources (section 12(1)(c)).
   • Everyone has the right to bodily and psychological integrity, which inter alia includes the right to security in and control over their body (section12 (2)(b)).
   • The Bill of Right does not deny the existence of any other rights or freedoms that are recognised or conferred by the common law, customary law or legislation, to the extent that they are consistent with the Bill (section 39(3)).

5. The Legislator itself acknowledges the Bill of Rights in justifying the licencing and possession of firearms for inter alia self-defence (see section 13 of the Firearms Control Act, 2000) in the Preamble of the Firearms Control Act, No. 60 of 2000 where it is clearly states “Whereas every person has the right to life and the right to security of the person, which includes, among other things, the right to be free from all forms of violence from either public and private sources” and “Whereas the adequate protection of such rights is fundamental to the well-being and social and economic development of every person” and “Whereas the Constitution places a duty on the State to respect, protect, promote and fulfil the rights in the Bill of Rights”.  It furthermore inter alia indicates in section 2 of the Firearms Control Act, 2000 that the purpose of the Act is “to enhance the constitutional rights to life and bodily integrity”.

Police

6. The constitutional 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 – see section 205 (3) of the Constitution.

Criminal Procedure Act, 1977

7. Section 49 of the Criminal Procedure Act, 1977 (CPA) provides police officers with legal justification to use force in carrying out arrests, and includes the rules governing the degree of force to be used as well as the circumstances in which such force may be employed, even deadly force which inter alia means force that is likely to cause serious bodily harm or death and includes shooting a suspect with a firearm.

8. Section 42 of the CPA determines that a SA citizen has the right to arrest a certain category of suspects while the section also allows the right of force to secure compliance from such a suspect. Section 47 of the CPA determines that a police officer may call upon a private person to assist in arresting any person, while failing to assist creates a criminal offence.

Self-defence

9. A person may act in terms of South Africa’s common law in self-defence, and the act is therefore lawful if force is used to repel an unlawful attack which has commenced or imminently threatening upon a person’s or somebody else’s life, bodily integrity, property or other interest which deserves to be protected. The grounds of justification for self-defence have ancient roots throughout the historical development of the criminal law, worldwide as well as in South Africa.  It has always remained firmly entrenched as one of the best-established defences that can be raised.

10. The Bill of Rights protects your right to life and bodily integrity. This means that nobody, including Government, can try to end your life. It also means that Government should take appropriate measures (a positive duty) to safeguard life by making laws to protect you and, in some circumstances, by taking steps to protect if your life is at risk.  Government should also consider your right to life when making legislative decisions that might impact on you in danger or that affect your life expectancy.  The police has a positive duty to protect you and if they don’t act to protect you, they are in breach of the Constitution.  This is fortunately the de facto position in South Africa. On the other hand deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary in defence of any person from unlawful violence or in order to prevent the escape of a person lawfully detained.

11. It is logical in view of the above that one has the constitutional right to protect your rights and enforce those rights as contained in the Bill of Rights.

12. The 2003 ISS National Victims of Crime Survey concluded that South Africans are much more fearful of crime today than before 1998. This growing panic has prompted a wide range of self-protective measures, including many people arming themselves in anticipation of a criminal encounter. Fact is that circumstances created by the Police in South Africa confused citizens when they can and cannot use their firearms to defend themselves.  If they are on the side of caution, they could lose their lives.  If they are on the side of violence, they could lose their liberty.  This situation poses dangers of its own.  Fact is that our law’s, especially the common law, allows you to defend yourself and another person against an imminent unlawful attacks.  The common law defence is often confused by the police with the statutory provision contained in the CPA.  Self-defence is an universally accepted principle that persons may protect themselves from harm under appropriate circumstances.

13. The rules relating to self-defence presuppose that the police authorities, whose task it is to protect the citizens from unlawful attacks, function reasonably adequately. The factual position in South Africa is that the functioning of the police and other state security services have deteriorated to such an extent that inter alia their capacity to protect citizens adequately from unlawful attacks from criminals is seriously reduced and almost non-existent. Without dwelling into well-known facts and statistical data in this regard, the following aspects are inter alia of utmost importance:

• The murder figure in South Africa is five times higher as the world’s average with 500 000 citizens been murdered since 1994 by means of stabbing, strangling, beating, kicking and shooting. During the last three years there were 50 765 murders committed in South Africa.  An average of 55 murders are committed per day.  Less than 12 of these killers were arrested.
• The drastical increase in violent crimes.
• The far flung, remote and isolated areas in South Africa where the Police are not within reach.
• The unacceptable high and ever escalating crime rate and the almost non-existent guilty verdicts due to poor investigations, e.g. robbery, farm attacks, murder and rape.
• The scope of corruption, inefficiency and poor management in the Police Service of which only a small percentage is reported on.
• The involvement of police officers in the corrupt and irregular assistance to criminals to obtain firearm licences.
• The police has already acknowledged that they do not have the capacity and competency to protect South Africa citizens from crime.
• The corrupt protection of criminals by police officers.
• The chaos in the central firearm register and accompanying processes and incompetency to manage a sound system as required by the Constitution and legislation.
• The constant loss of firearms (own and confiscated firearms to be destroyed) by the police and army. According to statistics provided by the Police, inter alia to Parliament, the South African Police Services lost more than 26 025 firearms during the period 2005 to 2017 while they lost more than 10 million ammunition cartridges during 2019 and more than 500 000 during 2018.  In 2011 the South African Defence Force admitted the loss of more than 82 000 firearms.  These figures do not include firearms lost by the Metro Police.
• The abuse and misuse of firearms by police officers themselves in committing crime, such as murder.
• The National Commissioner has admitted in Parliament that discipline management in the Police is in shambles. Fact is that the South African Police is as unprofessional, moribund, corrupt and incompetent service.  The Police service is driven to the brink of disaster with a lack of accountability.
• South Africa becomes more dangerous by the day with a police service that fails its citizens.

14. The following issues pertaining to the possession of firearms should be taken into account:

• The majority of injuries and deaths caused by the use of firearms are caused by illegal firearms in the hands of criminals. This includes mainly firearms stolen from the police and other security services, hand-made firearms and firearms of which licences have been obtained  by means of corrupt activities.  The recent attack at a market in Welkom with machine guns is only one of many such occasions.
• There are more illegal firearms in circulation in South Africa than legally licenced firearms. Less than 3% of citizens in South Africa are legal firearms owners.
• The statistical data of persons killed or injured by the use of firearms viz-a-viz other means, e.g. sharp objects, blunt objects, knives, pangas, home-made weapons, knobkieries, etc.
• The statistical data where firearms were used to kill persons in self-defence and how many of these persons were prosecuted for not complying with the requirements and rules of private defence. Statistics in this regards are wilfully withheld from the public.
• Illegal possession of firearms and illegal trade in firearms are mainly caused by the theft of firearms from the police and army for which they cannot even account for as a result of poor management and no effective records.
• The deleting of licencing of firearm for self-defence will not reduce the escalation of illegal firearm possession.
• It is a well known fact that many persons in South Africa survived an assassination attempt because they had a firearm on hand.
• Heist in transit is executed with military weapons, explosives and automotive rifles and not with firearms for self-defence.

15. World-wide statistical data proved that in the 20^th Century more than 56 million defenceless people were rounded up and exterminated by persons in countries using gun control, e.g.- the Soviet Union established gun control in 1929 and from 1929 to 1953 20 million dissidents were rounded up and murdered; Uganda established gun control in 1970 and from 1971 to 1979 300 000 persons were rounded up and exterminated; Cambodia established gun control and from 1975 to 1977 1 million educated people were rounded up and exterminated, etc.

16. It is clear that Gun Free South Africa (GFSA) is totally ignorant of the factual position in South Africa. According to their own statistical data, less than 24,13% persons murdered daily are shot dead, not by law abiding citizens and persons in possession of legally licenced firearms, but criminals without a firearm licence or illegal licences.

17. The irrefutable fact is that the police and other state security services duty to protect citizens from unlawful attacks from criminals is non-existent as a result of inter alia factors referred to above. It is in such event that the field of applications of private defence should be broadened, affording private citizens greater scope to protect themselves from unlawful attacks.  The right to private defence play a very important role in South Africa.

18. The mere fact that a person is allowed to possess a firearm for self-defence is per se an astronomical deterrent to criminals. One shudder to think what the scope of attacks will be on law abiding citizens if the licencing of persons to possess firearms are deleted.

19. The deleting of the licencing of firearms for self-defence involuntary raises the question why police officers and security staff rendering security to inter alia politicians should carry firearms if it is not in self-defence.

Obiter Remarks

20. Section 13 (2) of the Firearms Control Act, 2000 specifically determines that a licence may be issued to any natural person who “needs a firearms for self-defence”. The view is held that the specific use of the word “self-defence” is flawed.  Self-defence may include punch, kick, physical principles, strategies and tactics to physically stop a person from hurting you, debilitating that person and make sure the person is no longer a threat to you.  Defence to the term implies that one is already in physical trouble just by virtue of it’s definition.  The view is held that the phrase “self-protection” better defines the goals of avoiding crime and violence than self-defence and to protect your rights as contained in the Bill of Rights.  Self-protection is defined as protecting oneself from unlawful physical and other harm.  It goes beyond physically jumped, beaten and possibly killed.  It includes awareness, observation, keep you safe and prepared if an emergency situation happens where one may act in self-defence- see paragraphs 9 to 11 supra.

CONCLUSION

21. The mere deleting of licencing of firearms for self-defence will inter alia have the following results:

• Citizens will totally be left at the mercy of circumstance in a criminal South Africa.
• Restrict the right to protect oneself and your family.
• It is once again the punishment of law abiding citizens which forms the majority of the SA population.
• Law abiding citizens will be the vulnerable majority without any rights to protect themselves from or against cruel and unscrupulous criminals.
• Law abiding citizens will have to surrender their legal firearms, but the criminals will not, which has been proved by the firearms amnesty periods as criminals will hold on to their guns.
• Citizens’ right to participate in certain sport is restricted because they are limited to the number of firearms and ammunition.

22. The current Firearms Control Act, 2000 has enough safety control measures, requirements and processes if managed correctly and effectively. The Police has unfortunately proved that they are not competent to manage the said Act. The Police cannot even manage its constitutional obligations and other lawful functions, while the envisaged amendment to the Firearms Control Act will place an additional burden on the Police.

23. The envisaged amendments to the Firearms Control Act are insane, irresponsible, irrational and reckless. The conclusion is involuntary made that there is an attempt to disarms honest and law-abiding citizens and to get rid of the disaster in inter alia the police firearm register. The reduction of the licence period and other amendments will inevitably aggravate this position.

24. I accordingly strongly reject the proposed amendments to the Firearms Control Act, 2000. 

Submitted to Paratus by a Magistrate. Published by Gideon Joubert.