THE DANGEROUS WEAPONS BILL (B37-2012) PRESENTATION TO PORTFOLIO COMMITTEE OF POLICE

CIVILIAN SECRETARIAT FOR POLICE 1

CIVILIAN SECRETARIAT FOR POLICECIVILIAN SECRETARIAT FOR POLICE

THE DANGEROUS WEAPONS BILL(B37-2012)

PRESENTATION TO PORTFOLIO COMMITTEE OF POLICE12 February 2013

CIVILIAN SECRETARIAT FOR POLICE

BACKGROUND

• This bill was prompted by the judgment in the matter of State v KW Thunzi & S Mlonzi v The State (Eastern Cape Division of the High court, Mthatha, Case No. 213749).

• The court declared the applicability of section 4 of the Dangerous Weapons Act, 1968 (Act No 71 of 1968) in the Transkei region unconstitutional and referred the matter to the Constitutional Court for

confirmation.


BACKGROUND

• In terms of the said section 4, provision is made the imposition of minimum sentences which are applicable to offences involving dangerous weapons and are committed in an area to which the Minister of Justice and Constitutional Development has made sentences applicable.

• On 5 August 2010, the Constitutional Court declared Government Notice R. 409 (Transkei) published Government Gazette No. 4601 of 7 March 1976 to inconsistent with the Constitution and hence invalid.


BACKGROUND

• The Constitutional Court set the Government Notice aside.

• In terms of this Government Notice, the provisions of section 4(1) and (2) of the Dangerous Weapons Act, 1968 (SA) was declared to be applicable to the former Republic of Transkei.

• On 10 November 2010, a Government Notice withdraw Government Notice R. 409 (Transkei) in order to give effect the Constitutional Court’s order was published in the Government Gazette.


BACKGROUND

• The Constitutional Court called for the rationalisation of Dangerous Weapons Acts applicable in South Africa as well as in all the former TBVC States. It should be noted that the Constitutional Court did not declare the contents of the Act, except for the notice relating to sentencing in particular areas unconstitutional. The Act was, however, adopted in 1968, and it was important to review the contents thereof in terms of present needs of the community and policing.

• The Constitutional Court required the Speaker of the National Assembly, the Chairperson of the National Council of Provinces and the Minister of Justice an Constitutional Development to notify the Court of the legislative steps taken in fulfillment of the above.


WAY FORWARD

• The Dangerous Weapons Act was found to be outdated and this necessitated the drafting of the new Dangerous Weapons Bill.

• This new Bill takes into account constitutional principles as well as present policing needs in respect of the possession and carrying of dangerous weapons.

• Dangerous weapons account for a huge number of violent crimes committed in the country. It should, however, be kept in mind that it is not in essence the use of a weapon in an offence that needs to be addressed as these are already criminalised through offences such as assault, attempted murder, and murder, etc. and the use of a weapon and causing wounds, etc. are taken into account in sentencing the offender. The Act need to address the mere carrying or possession of a weapon under circumstances which indicate that the dangerous weapon is intended to be used for the commission of an offence.


OBJECTS OF THE BILL

THE BILL SEEKS TO:

•Repeal and substitute all existing legislation regulating dangerous weapons in the Republic with a single set of legislation in that regard applicable to the country as a whole;

•To provide for uniform legislation that will apply throughout the Republic;

•Prohibit the possession of dangerous weapons, firearms, or replicas or imitation firearms in public, with the intention to use it for an unlawful purpose; and

•Subject to certain exceptions, prohibit the carrying of-

- firearms and objects which resemble firearms,

- dangerous weapons and objects likely to course injury or damage to property at a demonstration or gathering.


OTHER LEGISLATION

• The Act was drafted, taking cognisance that it need not duplicate what is being addressed, but does relate to other laws, for example:• The Firearms Control Act, 2000, allows for the carrying under certain circumstances

of a licensed firearm in public. The Constitution quarantees peaceful and unarmed protest. The Firearms Control Act, 2000, does not regulate the carrying of a firearm during public gatherings and protests whilst in terms of the Dangerous Weapons Act, 1968, there is a cross referencing and regulation of the same. It was regarded more user-friendly to amend the Regulation of Gatherings Act, 1993, as the requirement regarding the carrying of weapons during public gatherings was regarded more strict than the mere possession, like that of possession of a firearm in terms of the Firearms Control Act, 2000. It was regarded more user-friendly to include the prohibition regarding the carrying of dangerous weapons in the Regulation of Gatherings Act, 1993.

• Furthermore, the South African Schools Act, 1996, provides for a prohibition of any dangerous object, including knives and firearms at a school premises, making it unnecessary to have specific other legislation addressing schools, although the Act will automatically apply to schools as well. Published under GN 1040 in GG 22754 of 12 October 2001[with effect from 12 October 2001] as amended by GN R1128 in GG 29376 of 10 November 2006


PROHIBITION OF POSSESSION OF A DANGEROUS WEAPON

• The definition in this regard is limited to: “any object, other than a firearm, designed as a weapon and capable of producing death or serious bodily harm.

• The possession and carrying of an unlicensed firearm is criminalised in terms of the Firearms Control Act.

• The definition of “dangerous weapon” in the Act is very wide. The Notices in terms of the Act enables the Minister to even extend the ambit of the Act, the present Notices in terms of the Dangerous Weapons Act, 1968, prohibits basically any item were severely criticised: it included, a tyre, a spade and various other garden tools, etc. The present Act imples that a person needed to prove his or her innonece in Court. Should a person use any of those items in an offence such as assault, it would in any event be criminalised.

• The Act therefore intends to criminalise the carrying of items that have been manufactured as weapons and capable of causing death or serious bodily harm. A huge number of persons submitted for example that pepper spray is being carried for self-defence and this prohibition is not intended to address such items.

• The prohibition is the linked to circumstances which could raise a reasonable suspicion that the dangerous weapon is possessed or carried with the intention to use it commit for an unlawful purpose.


CLAUSE BY CLAUSE ANALYSIS

• “Dangerous weapon” is defined in clause 1 as “any object, other than a firearm, designed as a weapon and capable of producing death or serious bodily harm”

• Clause 2(1) prohibits the possession of dangerous weapons, firearms or replicas or imitation firearms and provides that any person who is in possession of any dangerous weapon or any firearm, replica or imitation firearm under circumstances which may raise a reasonable suspicion that the person intends to use the dangerous weapon, firearm replica, or imitation firearm for unlawful purposes, is guilty of an offence.



• Clause 2(2) provides for factors which must be taken into account in determining whether a person intends to use the dangerous weapon, firearm, replica or imitation firearm for an unlawful purpose.

These factors are the following, but not limited to:(a) The place and time where the person is found;(b) the general behaviour of the person, including the making of any threat or intimidatory

behaviour;(c) the manner in which the dangerous weapon, firearm, replica or imitation firearm

is carried or displayed;(d) whether the possession of the dangerous weapon, firearm, replica or imitation

firearm was within the context of drug dealing, gang association or any organised crime activity; or

(e) whether the person in whose possession the dangerous weapon, firearm, replica or imitation firearm was found, was at the time part of a group of persons who were also in possession of dangerous weapons, firearms, replicas or imitation firearms.



• Clause 4 amends the Regulation of Gatherings Act, 1993 (Act No. 205 of 1993), in order to provide for a prohibition on the possession of-

• air guns, firearms, imitation firearms, muzzle loading firearms or any object which resembles a firearm and that is likely to be mistaken for a firearm; and

• any dangerous weapon or other object likely to cause injury to a person at a gathering or demonstration.

• There is a prohibition in the Bill, in line with the Constitution, on the carrying of any weapon (by a participant) during an assembly (gathering), demonstration and picketing. The Bill, however, does not affect the possession of and carrying of a licensed firearm in the prescribed manner under other circumstances.



• The possession of dangerous weapons including firearms, during gatherings and demonstrations is prohibited in line with the Constitution, in terms of which unarmed protest and demonstration is recognised.

• Exceptions which may be allowed under certain conditions are in respect of cultural, religious, purposes and historical enactments.

• In the Dangerous Weapons Act, 1968, there is a power for the Minister of Police to prohibit the manufacture or sale or supply of dangerous weapons. This provision was never used since 1968 and of the main criticism against the Bill was the wide powers of the Minister of Police. This section has therefore not been taken up in the Bill.


DEPARTMENTS/ BODIES/ PERSONS /CONSULTED

• This Bill was drafted by a Task Team consisting of officials from both the Department of Police (Police Service and Secretariat) and the Department of Justice and Constitutional Developments;

• Public comments elicited through the publication of the Bill in the Gazette; (some 2 300 comments received). The Task Team worked closely with the State Law Advisers in scrutinising the comments received and to develop a new draft taking into account the comments. The State Law Advisers certified the Bill as being Constitutional.

• The views of the State Law Advisors, who assisted in finalising the draft after the public consultant process;

• The National Prosecuting Authority.


FINANCIAL IMPLICATIONS

• Only incidental costs pertaining to implementation, such as informing

the public and police officers, will be incurred.


PARLIAMENTARY PROCEDURE

• This Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.

• It is not necessary to refer this Bill to the House of Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act as it does not contain provisions pertaining to customary Law or customs of traditional communities.


THE END

• Secretary of Police

THE DANGEROUS WEAPONS BILL (B37-2012) PRESENTATION TO PORTFOLIO COMMITTEE OF POLICE

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