Comment: Dangerous Weapons Draft Bill

[garyh@info-logic.co.za]

Comments can be emailed to Major General PC Jacobs at jacobspc@saps.org.za <mailto:jacobspc%40saps.org.za> by no later than 3 October 2011.

The Bill is also here: www.pmg.org.za/bill

STAATSKOERANT, 2 SEPTEMBER 2011 No.34579 3

GENERAL NOTICE

NOTICE 606 OF 2011

DEPARTMENT OF POLICE

DRAFT DANGEROUS WEAPONS BILL, 2011

Following the decision of the Constitutional Court in the matter of S v Thunzi
and S v Mlonzi (Case CCT/81/09), the Minister of Police intends to introduce
a draft Dangerous Weapons Bill, 2011, to Parliament, in order to repeal and
substitute the Dangerous Weapons Acts in operation in the areas of the
erstwhile Republics of South Africa, Transkei, Bophuthatswana, Venda and
Ciskei, and to provide for matters connected therewith.

The attached draft Bill is hereby submitted for public comments, in order to
finalise it for submission to Cabinet to obtain approval to introduce the Bill to
Parliament.

Interested persons are invited to submit written comments on the draft Bill
within 30 days from the date of publication of this notice to:

Postal Address:

Major General PC Jacobs
Legal Services
South African Police Service
Private Bag X94
PRETORIA
0001

Street Address:

Room No. 340
3rd Floor
Presidia Building
255 Pretorius Street
Cnr. Paul Kruger and Pretorius Street
PRETORIA
0001

E-mail: jacobspc@saps.org.za

4 No.34579 GOVERNMENT GAZETTE, 2 SEPTEMBER 2011

REPUBLIC OF SOUTH AFRICA

DANGEROUS WEAPONS BILL

(As introduced in the National Assembly (proposed section 75); explanatory summary of

Bill published in Government Gazette No. . ............. of .............
2011)

(The English text is the official text of the Bill)

(MINISTER OF POLICE)

[B -2011]

STAATSKOERANT, 2 SEPTEMBER 2011 No. 34579 5

BILL

To provide for certain prohibitions and restrictions in respect of the import,

possession, manufacture, sale or supply of certain objects; to repeal and

substitute the Dangerous Weapons Acts in operation in the areas of the

erstwhile Republics of South Africa, Transkei, Bophuthatswana, Venda and

Ciskei, as those Republics were constituted immediately before 27 April 1994;

and to provide for matters connected therewith.

Definitions

1. In this Act, unless the context otherwise indicates-

'dangerous weapon' means-

( a) any object, other than a firearm made or modified to be used-

(i) to injure or disable a person; or

(ii) to cause a person to fear that someone will be injured or disabled by

that use; or

(b) any other object possessed or carried, which is likely to cause serious bodily

injury if it was used to commit an assault;

'firearm* means a firearm, a muzzle loading firearm or an airgun as defined in

section 1 of the Firearms Control Act, 2000 (Act No. 60 of 2000);

'gathering' includes any assembly, concourse or procession of any number of

persons;

'Minister' means the Cabinet member responsible for policing;

*replica or Imitation of a firearm' includes any object or any toy gun, soft-airgun

"BB" gun or paintball gun that resembles a real firearm to such a degree that it is

likely to be mistaken for a real firearm and without any distinguishing colour or

feature to indicate that it is not a real firearm.

Prohibition of the possession of dangerous weapons, firearms and certain

other objects

2. ( 1 ) Any person who is in possession of or carries-

( a) any dangerous weapon; or

(b) any replica or imitation of a firearm,

under circumstances which may raise a reasonable suspicion that the person

6 No. 34579 GOVERNMENT GAZETTE, 2 SEPTEMBER 2011

intends to use the dangerous weapon or replica or imitation of a firearm for an

unlawful purpose shall, unless he or she can provide a reasonable explanation for

* his or her possession or the carrying thereof, be guilty of an offence and liable on

conviction to a fine or to imprisonment for a period not exceeding three years.

(2) When considering whether an explanation referred to in

subsection (1) is reasonable, the place and time where the person is found, the

general behaviour of the person, the manner in which the dangerous weapon or the

replica or imitation of a firearm is carried or displayed and the lawfulness of the

presence of the person at or in the place where he or she is apprehended, shall be

taken into account.

(3) In this section an explanation that a dangerous weapon or a

replica or imitation of a firearm is possessed or carried for private defence is not

regarded as a reasonable explanation in circumstances where such weapon or

replica or imitation of a firearm on reasonable grounds may pose a real danger or

threat to any other person at or in a public place.

(4) The Minister may from time to time by notice in the Gazette and

subject to such terms, conditions, restrictions, directions or exemptions as may be

specified in such notice or as may be provided for therein, prohibit any person or any

person belonging to any class of persons specified in such notice, from being in

possession at any time or during any period so specified and either generally or at or

in any place or area so specified or at a specified gathering or at any gathering

belonging to any class specified in such notice, of any object belonging to a class,

type, kind or category of object which, in the opinion of the Minister, is a dangerous

weapon and which is specified in such notice.

(5) The Minister may, notwithstanding anything to the contrary in

any law contained, from time to time by notice in the Gazette and subject to such

terms, conditions, restrictions, directions or exemptions as may be specified in such

notice or as may be provided for therein, prohibit any person or any person

belonging to any class of persons specified in such notice, from being in possession

at any time or during any period so specified and either generally or at or in any

place or area so specified or at a specified gathering or at any gathering belonging to

any class specified in such notice, of any firearm, or a replica or imitation of a

firearm, in general or any firearm, or a replica or imitation of a firearm, belonging to a

class, type, kind or category specified in such notice.

STAATSKOERANT, 2 SEPTEMBER 2011 No. 34579 7

(6) Any person who is in possession of any object, firearm or replica

or imitation of a firearm in contravention of the provisions of any notice issued in

terms of subsection (4) or (5), shall be guilty of an offence and liable on conviction to

the penalties prescribed in subsection (1 ).

(7) The Minister may at any time by notice in the Gazette amend or

repeal any notice issued in terms of subsection (4) or (5).

Prohibition of the import, manufacture, sale or supply of dangerous weapons

and replicas or imitations of firearms

3. (1) The Minister may from time to time by notice in the Gazette

prohibit the import, manufacture, sale or supply of any object belonging to a class or

kind of object which in his or her opinion-

(a) is a dangerous weapon; or

(b) is a replica or imitation of a firearm,

and which is specified in such notice.

(2} The Minister may by notice in the Gazette and subject to such

conditions as he or she may determine, exempt any person or class of persons

specified in such notice, or any person or class of persons other than any person or

class of persons so specified, either generally or under such circumstances as may

be so specified and either indefinitely or for such period as may be so specified, from

the operation of any or all of the provisions of any notice issued in terms of

subsection (1 ).

(3} Any person who imports, manufactures, sells or supplies any

object in contravention of the provisions of any notice issued in terms of subsection

(1 ), shall be guilty of an offence and liable on conviction to a fine or to imprisonment

for a period not exceeding three years.

(4) For the purposes of subsections (1} and (3), 'sell' includes to

offer for sale, to keep for sale or to keep in a place where goods are sold, offered or

kept for sale.

(5) The Minister may at any time by notice in the Gazette amend or

repeal any notice issued in terms of this section.

8 No. 34579 GOVERNMENT GAZETTE, 2 SEPTEMBER 2011

Transitional provisions

4. Any notice issued under the Dangerous Weapons Act, 1968 (Act No. 71 of 1968),

before the coming into operation of this Act, shall remain in force as if issued under this

Act, until amended, repealed or substituted by the provisions of this Act, and the operation

thereof is from the date of the coming into operation of this Act, made applicable to every

area which immediately before 27 April 1994 formed part of the territory of the Republic

of-

(a) Transkei;

(b) Bophuthatswana;

(c) Venda; or

(d) Ciskei.

Repeal of laws

5. The laws specified in the Schedule are hereby repealed to the extent

indicated in the third column thereof.

Short title and commencement

6. This Act shall be called the Dangerous Weapons Act, 2011, and comes into

operation on a date determined by the President by Proclamation in the Gazette.

STAATSKOERANT, 2 SEPTEMBER 2011 No.34579 9

Schedule

LAWS REPEALED BY SECTION 5

No. and year of law I Short title Extent of repeal

Act No. 71 of 1968 Dangerous Weapons Act, 1968 The whole

I

Act No. 71 of 1968 (Transkei) Dangerous Weapons Act, 1968 The whole

Act No. 71 of 1968 (Venda) Dangerous Weapons Act, 1968 The whole

Act No. 71 of 1968 (Ciskei) Dangerous Weapons Act, 1968 The whole

Act No. 28 of 1982 (Bophuthatswana) Dangerous Weapons Act, 1982 The whole

10 No.34579 GOVERNMENT GAZETTE, 2 SEPTEMBER 2011

MEMORANDUM ON THE OBJECTS OF THE DANGEROUS WEAPONS BILL,

2011

1. BACKGROUND AND PURPOSE

1.1 The Constitutional Court, in S v Thunzi and S v Mlonzi (Case CCT 81/09) ("the

Thunzi case"), found the applicability of section 4 of the Dangerous Weapons Act,

1968 (Act No. 71 of 1968) (Transkei) (''the Dangerous Weapons Act (Transkei)"),

which is similar to section 4 of the Dangerous Weapons Act, 1968 (Act No. 71 of

1968) (''the Dangerous Weapons Act (South Africa)"), in the area of the former

Republic of Transkei only to be unconstitutional. The Constitutional Court, in the

Thunzi case, required the Speaker of the National Assembly, the Chairperson of the

National Council of Provinces and the Minister of Justice and Constitutional

Development to notify the Court, by 8 November 2011, of the legislative steps that

have been taken in fulfilment of their undertaking to rationalise the Dangerous

Weapons Acts of the former Republics of South Africa, Transkei, Bophuthatswana,

Venda and Ciskei.

1.2 A small joint task team comprising of officials of the Department of Justice and

Constitutional Development and the Department of Police drafted the Dangerous

Weapons Bill, 2011 ("the Bill"), for promotion during the 2011 Parliamentary session.

Except for section 4 of the Dangerous Weapons Act (South Africa), read with section

4 of the Dangerous Weapons Act (Transkei), which was the subject of the Thunzi

case, the remainder of the Dangerous Weapons Act (South Africa) is being

administered by the Minister of Police.

1.3 The Dangerous Weapons Act (South Africa) and related legislation still in force

in the areas mentioned in paragraph 1.1, are outdated and it is proposed that a new

Dangerous Weapons Bill be introduced, taking into account Constitutional principles

as well as present policing needs in respect of the possession and carrying of

dangerous weapons and related issues. A huge number of murders, robberies as

well as other violent crimes are being committed annually with dangerous weapons

such as knifes, but also with replicas or imitations of firearms which cannot be easily

distinguished from real firearms.

STAATSKOERANT, 2 SEPTEMBER 2011

2. PROVISIONS OF THE BILL

2.1 Clause 1:

No. 34579 11

"Minister'' is defined as "the Cabinet member responsible for policing". A definition of

"replica or imitation of a firearm" is provided for in the Bill. "Dangerous weapon" is

defined to mean-

(a) any object, other than a firearm made or modified to be used -

(i) to injure or disable a person; or

(ii) to cause a person to fear that someone will be injured or disabled by

that use; or

(b) any other object possessed or carried, which is likely to cause serious bodily

injury if it was used to commit an assault.

The other definitions in the Bill remain unchanged, except for the definition of

"firearm" which is now defined to include "a muzzle loading firearm or an airgun".

2.2 Clause 2:

2.2.1 Clause 2(1) provides that any person who is in possession of or carries any

dangerous weapon or any replica or imitation of a firearm under circumstances

which may raise a reasonable suspicion that the person intends to use the

dangerous weapon or replica or imitation of a firearm for an unlawful purpose shall,

unless he or she can provide a reasonable explanation for his or her possession or

the carrying thereof, be guilty of an offence and liable on conviction to a fine or to

imprisonment for a period not exceeding three years.

2.2.2 Clause 2(2) provides that when considering whether an explanation referred

to in subsection (1) is reasonable, the place and time where the person is found, the

general behaviour of the person, the manner in which the dangerous weapon or the

replica or imitation of a firearm is carried or displayed and the lawfulness of the

presence of the person at or in the place where he or she is apprehended, shall be

taken into account.

2.2.3 Clause 2(3) provides that an explanation that a dangerous weapon or a

replica or imitation of a firearm is possessed or carried for private defence is not

regarded as a reasonable explanation in circumstances where such weapon or

replica or imitation of a firearm on reasonable grounds may pose a real danger or

12 No.34579 GOVERNMENT GAZETTE. 2 SEPTEMBER 2011

threat to any other person at or in a public place.

2.2.4 Clause 2{4) retains the powers of the Minister of Police to prohibit, by notice

in the Gazette, the possession during certain time periods and at or in certain places

or gatherings specified in the notice of objects specified in the notice and which are

in the opinion of the Minister dangerous weapons.

2.2.5 In clause 2{5) the powers of the Minister of Police to prohibit, by notice in the

Gazette, the possession during certain time periods and at or in certain places or

gatherings specified in the notice of firearms or a replica or imitation of a firearm are

also retained.

2.2.6 Clause 2(6) provides that any person who is in possession of any object,

firearm or replica or imitation of a firearm in contravention of the provisions of any

notice issued in terms of subsection (4) or {5), shall be guilty of an offence and liable

on conviction to the penalties prescribed in subsection ( 1 ).

2.2. 7 Clause 2(7) provides that the Minister may at any time by notice in the

Gazette amend or repeal any notice issued in terms of subsection (4) or (5).

2.3 Clause 3:

Clause 3(1) retains the Minister of Police's powers to prohibit the manufacture, sale

or supply of specified objects by notice in the Gazette which are in the opinion of the

Minister dangerous weapons, with the difference that the Minister will now also be

empowered to issue such prohibition in respect of the import of such objects and

objects which are a replica or imitation of a firearm.

2.3.1 Clause 3(2) provides that the Minister may by notice in the Gazette and

subject to conditions, exempt any person or class of persons specified in such

notice, or any person or class of persons other than any person or class of persons

so specified, either indefinitely or for a specified period, from the operation of any or

all of the provisions of any notice issued in terms of subsection (1 ). In terms of

clause 3(5) the Minister may at any time by notice in the Gazette amend or repeal

any notice issued in terms of this section.

STAATSKOERANT, 2 SEPTEMBER 2011 No. 34579 13

2.3.2 Clause 3(3) provides that any person who imports, manufactures, sells or

supplies any object in contravention of the provisions of any notice issued in terms of

subsection (1 ), shall be guilty of an offence and liable on conviction to a fine or to

imprisonment for a period not exceeding three years.

2.4 Clause 4:

Clause 4 provides for a transitional measure which keeps in force the existing

notices issued under the Dangerous Weapons Act (South Africa), until amended,

repealed or substituted. The existing notices were issued only under section
2 of the

Dangerous Weapons Act (South Africa) and prohibit the possession of firearms or

replicas thereof at specified gatherings or at or in public places; the possession of

certain dangerous weapons at specified gatherings or at or in public places and the

possession of firearms and dangerous weapons at or in any place under the control

of the South African Railways Commuter Corporation.

2.5 Clause 5:

Clause 5, read with the Schedule to the Bill, repeals in whole, all the Dangerous

Weapons Acts presently in force in the areas mentioned in paragraph 1.1.

3. DEPARTMENTS/BODIES/PERSONS CONSUL TED

The Bill was drafted by a Task Team consisting of officials of both the South African

Police Service and the Department of Justice and Constitutional Development.

4. FINANCIAL IMPLICATIONS FOR THE STATE

Only incidental costs pertaining to implementation, such as informing the public and

police officers.

5. PARLIAMENTARY PROCEDURE

The South African Police Service is of the opinion that the Bill must be dealt with in

accordance with the procedure established by section 75 of the Constitution of the

Republic of South Africa, 1996, since it contains no provision to which the procedure

set out in section 7 4 or 76 of the Constitution applies.

[Emilio]

I swore never to post here again on ban-o-philic Gunsite with ban-o-phile mods, but this is an emergency :)

I would suggest (?) that you do a submission stating that in light of the fact that the FCA requires that you prove a need for a SD firearm and that you have to prove how non firearm methods (eg stun guns and Pepper spray etc) can not be utilized (thus proving your need for a Firearm), the "Proof of need" aspect of the FCA must fall away for SD applications if the DW Bill goes through.


We must state on all SD Firearms applications "Cannot utilize non-lethal,non-firearm methods for SD, due to DW Bill" as motivation for SD. They must switch the FCA to a shall issue law or drop the DW bill. It will require selling out non gun owners if we go this route (which is downright rude).

However, we can use the FCA as leverage to stop the DW Bill?

Or is my logic a complete FAIL????

[Llen]

Brilliant!!!

[F a n i e]

the FCA requires that you prove a need for a SD firearm

“The Right to Life” is a fundamental constitutional right that is protected in it’s entirety from which there can be no deviation by the legislative, executive or judiciary and any attempts to do so would be unlawful.

Act 60 of 2000 should be struck from the Law completely as UNCONSTITUTIONAL and an infringement/threat to several Constitutional rights, no amendment or alteration would support “the Right to Life”, which is the essence the threat being imposed by this new FCA.

The problem is many make big money out of the FCA and doens't want to fix it. As long as it is there it paves the way for many other ridiculous laws.

Talk to the legals.

[Jack]

Well said Emillo

[F a n i e]

Act 60 of 2000 (FCA) has nicely paved the landing strip for a host of cripple laws that now will be 'legal' enough to pass.

Start at the root of the problem, no use to try and resolve the issue by clipping at the leaves and twigs. It will keep growing faster than you can trim.

The problem is still those that want to make money out of these laws and doesn't want them to go away.

[Paul]

I see the circular firing squad is forming up again...

Sigh...

[F a n i e]

Yep. What you will sow you will harvest. Wasn't me who made it so, it's just one of those uncomfortable facts of life.

[FrankH]

Normally instigated by the same people.

[F a n i e]

LOL, same attackers too.

I swore never to post here again on ban-o-philic Gunsite with ban-o-phile mods, but this...