2007 Opened with a number of challenges and developments facing firearm owners. On top of the list is the draft Regulations that was recently circulated to give effect to what will be the Firearms Control Amendment Act of 2007.Our current Government does not have a successful track record of drafting or enforcing its Regulations and is more often than not on the receiving end of adverse judgments from both the Constitutional Court and the High Court when it comes to such executive decrees. My perception is, that the courts are becoming somewhat frustrated with Government's attempts to centralise power within the executive and Government's inability or unwillingness to comply with the requirements of our constitution.
A further concern, before I give specific pointers and criticisms of the proposed Regulations, is quite simply the degree of non-compliance by the police and the public with some of the Regulations. I place the blame of non-compliance squarely at the doors of the Ministry of Safety and Security and the police, who have neither educated the public in the requirements of the Regulations, nor have the capacity themselves to enforce the Regulations. A simple example is Regulation 86 in respect of public buildings. All buildings that store firearms on entry must be in possession of a Section 86 permit.
Relatively little of the proposed Regulations have much applicability to firearm owners in general. Parts deal with collectors, muzzle loading firearms and professional hunters.
Some of the biggest omissions in the Regulations deal with muzzle loading firearms. No provision has been made to regulate cap and ball revolvers and no clarity has been given on the status of these objects. The police representatives in Parliament indicated these objects have always been illegal and must be licensed, but unfortunately for them the conduct of SAPS in allowing imports without import permits and telling dealers that licenses were not necessary, mitigates against this statement. All such statement did was to mislead Parliament about the legal status of cap and ball revolvers.The difficulty that we have however is that possessors of cap and ball revolvers can not be left in limbo. Sooner or later someone will be prosecuted for illegal possession of these objects even though at one time they were legal to possess without a license and subsequently no provision was made to legitimate these objects. This is a specific area that SAGA is addressing in its representations. Suggestions had been made that an amnesty be declared for persons with cap and ball revolvers in order to allow such possessors to license the firearms. The difficulty with this quite simply is that an amnesty clearly means that a person has done something wrong, has broken the law, and now is seeking Government's permission to condone their breaking of the law.
People who purchased or possess cap and ball revolvers haven't broken the law and therefore don't need Government's condonation and amnesty to legitimate their possession of cap and ball revolvers. A paradoxical situation indeed. I certainly do not want Government to give me amnesty where I did not break the law. It also concerns me whether my application I make for amnesty will be used against me thereafter.It is clear that one must be in possession of a competency certificate to possess a muzzle loader as per the new definitions of muzzle loader in the amendments because a muzzle loader is now defined as "a barelled device that can fire only a single shot, per barrel, and requires after each shot fired the individual reloading through the muzzle end of the barrel with separate components consisting of a (i) measured charged of black powder or equivalent propellant; (ii) wad; and (iii) lead bullet, sabot or shot functioning as a projectile, and ignited with a flint, match, wheel or percussion cap;."
A competency certificate for muzzle loaders however requires the drafting and promulgation of a Unit Standard which Applicants must be instructed on and pass in accordance with the provisions of Section 9 but no such Unit Standard exists. SAGA hopes to convince government to be reasonable and to only promulgate those provisions relating to competency for muzzle loaders after the Unit Standard has been finalised otherwise those of us who possess muzzle loaders will once again be put in a position where, as willing as we may be to comply with the legislation, it will be impossible for us to do so.For collectors there are some surprises in store. On the one hand, some of the submissions of collectors have been accepted, the most progressive being the expansion of the criteria for collecting to include themes, above and beyond the requirements of historical, technological, scientific, heritage and educational characteristics to include commemorative firearms, investment firearms, rarity, thematic or intrinsic value firearms. However when dealing with Government, progress always comes with a sting in the tail. In this case it is the extension of requirements that previously only applied to prohibited firearms (fully automatic firearms such as machine guns) to now cover restricted firearms as well. There are additional criteria specified in Regulation 15 that previously only applied to prohibited firearms that now apply to restricted firearms.
The reading of the Regulations for collectors are quite complex but put simply, any restricted firearm that was previously licensed as a collectable firearm, ie under the old Act by a bona fide collector, or a renewed in terms of the new Act or licensed in terms of the new Act prior to the promulgation of these amendments, is exempt from these requirements. Any restricted firearm that has not previously been licensed as a collectable firearm, if purchased by a collector and if application is made to license that firearm as a collectable firearm it must then comply with the criteria stipulated in Regulation 15. As the wording currently stands, a prerequisite is that production of that firearm must have been discontinued for at least 10 years. This effectively (and intentionally by the police?) prevents any of the LM series of South African made firearms from being licensed as collectable firearms if not so licensed, and would apply equally to AK47 types because they are currently still in production. I have a suspicion that these are the type of firearms specifically targeted by this amendment. However the wording of the Regulations is not precise and it may be that this can be changed with the simple addition of the word "or".This will then do away with this specific restriction.Professional Hunting
It appears that the drafters of the legislation, and possibly through no fault of their own, do not fully grasp the role of a professional hunter vs an outfitter and dedicated hunter. The Regulations have been drafted to fit a professional hunter into the same level as a dedicated hunter. This clearly cannot be so, because a professional hunter earns a living from his profession where as a dedicated hunter hunts for reasons such as pleasure and enjoyment.Because of this possible misunderstanding the requirements that apply to a dedicated hunter have been applied to a professional hunter, ie compliance with the Skills Development Act, membership of an accredited association, and ongoing assessments by that accredited association as to the professional hunter's capacity to advance the objectives of the Act and to comply with the objectives of the Act specifically in respect of being a professional hunter.
The Professional Hunters Association at this stage neither has an approved Unit Standard, nor the capacity to monitor the activities of all professional hunters. In the absence of a Unit Standard, and in the absence of provision being made for recognition of prior learning by existing professional hunters if the Regulations are promulgated in their current form, this may have the effect of making all professional hunters operate illegally. I doubt that this was the intention of the drafters when drafting the Regulations but urgent attention will have to be given to it by the Professional Hunters Association and Hunters Associations.
If anyone is ever in doubt about the police's lack of capacity to comply itself with the Act, one merely needs to look at the proposed amendments to Regulation 12 that deals with the accreditation of an official institution. Official institutions are defined in Section 95 of the Act, amongst others as the SAPS itself and Correctional Services.
The existing Regulation 12 requires that any person issued a permit to possess a firearm (by an official institution) can only do so if they hold a valid competency certificate. The proposed amendment now states that the person being issued a firearm must simply have completed the prescribed training and testing, ie no competency certificate is required.
