THE STATE PRESIDENT
1. The Commission of Inquiry regarging the Prevention of Public Violence and Intimidation has the honour to present the report on the illegal importation, distribution and use of firearms, ammunition and explosives.
2. The Commission accepts the findings of the report and agrees with its recommendations.
3. After the Committee's report was drafted a further submission was received from the South African Police. There was no information in that submission which contradicted any of the findings or recommendations of the Committee. Therefore no amendments to the report were considered necessary.
4. The Commission would like to express its gratitude to Messrs L. S. van Zyl and S. M. Roberts for time and assistance which they gave to the Chairman of the Committee, Adv. M. N. S. Sithole.
R. J. GOLDSTONE CHAIRMAN
5 October 1993
To: The Chairman The Honourable Mr Justice R J Goldstone and the members of the Commission investigating Public Violence and Intimidation.
The above committee under the chairmanship of Mr N S Sithole of the Pretoria Bar reports as follows.
1 Background
1.1 On 29 October 1992 the Commission issued a press statement in the following term, inter alia:
"1. The Commission is deeply concerned at the dramatic increase in the number of deaths and injuries amongst leaders and supporters of political parties and organisations and, in particular, the Inkatha Freedom Party and African National Congress, which have been caused by the use of automatic weapons.2. On 10 and 11 December 1992, the Commission will hold public hearings at which it will hear oral submissions on ways and means of curbing the illegal importation of automatic weapons and their distribution and use in South Africa in the furtherance of political violence...
3. Any party in possession of relevant information concerning this matter is requested to furnish it to the Commission...".
1.2 Written representations were furnished to the Commission by (in random order)
1.2.1 the South African Police ("SAP") I; 1.2.2 the African National Congress ("ANC") I; 1.2.3 the South African Defence Force ("SADF") I; and 1.2.4 the Kwazulu Government/Inkatha Freedom Party ("KZF/IFP") I.
In this report these representations are referred to by the capital Roman numeral because, as will appear presently, more were to follow as formal exhibits received by this committee.
1.3 It is necessary to pause here to consider SADF/I in some detail. Attached to it were graphs compiled either from SADF statistics ("SADF STATS") or SAP statistics ("SAP STATS") reflecting the following
"A" (SAP STATS) The sharp increase in 1991 and 1992, compared with previous years, in attacks involving A-47 automatic rifles, grenades and limpet mines, carried out against five categories of targets.
"B" (SAT STATS) By years, the number of persons killed or injured in such attacks (1988 - 1992).
"C" (SADF STATS) By months, weapons found or involved and persons killed or injured (July 1991 - November 1992).
"D" (SADF STATS) By months, the number of persons killed in such attacks (July 1991 - November 1992).
"E" (SAP STATS) The sharp increase in the years 1991 and 1992 of the use of A-Ce.
"F-1" (SADF STATS) By months, the increase in the total number of weapons found or captured (July 1991 - November 1992).
"F-2" (SADF STATS) By months, the number of rifles, mines and handguns found or captured (July 1991 - November 1992)
"F-3" (SADF STATS) An increase in the number of incidents and the changes in the types of weaponry used during the period July 1991 to November 1992 (more particularly an increase of about 150 % since September 1992 in the use of A-Ce and grenades, while the use of stolen weapons such as pistols and revolvers has tended to decline).
1.4 The SADF's submissions respecting these graphs were as follows:
"Ad A) : From 1988 to 1989 there was a decrease in the number of incidents but after the lifting of the ban on certain organisations in February 1990 the incidents increased, thereby indicating more violence and the greater availability of weaponry. Moreover, while there was a noticeable increase in attacks on the staff of the security forces, the greatest increase involved attacks on civilians.
"Ad B" : The use of limpet mines has decreased since 1988. The use of grenades decreased until 1989 but since then has more than doubled. The use of AK-47s has increased dramatically since 1990 and in 1991 it reached enormous ("geweldige") proportions.
"Ad C: " From July 1991 to November 1992 the number of weapons found every month tended to increase, and so did the number of victims. The relative decline since the beginning of 1992 suggests a more sophisticated means of distributing and concealing such weaponry.
"Ad D" : The number of deaths is linked to the number of incidents in which firearms have been used and the availability of such weapons is directly linked to the increase in violence in the Republic.
"Ad E" : Although the use of limpet mines decreased during the period 1988 to 31 August 1992, there was an enormous ("geweldige") increase in the use of AK-47s and grenades during that period.
"Ad F" : Although the number of weapons found and captured has increased, and this suggests greater success on the part of the Security Forces, it is also indicative of the increased importation and availability of such weaponry.
1.5 Arising out of the meeting of the Commission on 10 and 11 December 1992 ("the Commission's December meeting") the Chairman of the Commission issued a statement. The relevant portion of this statement, for the purposes of this committee, reads as follows:
"With the agreement of those parties (SAP, ANC, SADF and KZG/IFP) the Commission will take the necessary steps to urgently establish a Committee of the Commission to investigate ways and means of curbing the illegal importation, possession, distribution and use of firearms and explosive devices in South Africa..." (our italics).
1.6 Thereafter on 13 January 1993 the Chairman of the Commission issued a further press statement appointing this Committee ("the committee":) and requesting any interested party to furnish the committee with written submissions on the following issues:
2.1 Any amendments or additions which should be made to the Arms and Ammunition Act No. 75 of 1969, or any other relevant legislation, in order to prevent the illegal importation, use and distribution of firearms, ammunition and explosive devices;
2.2 Without derogating from the generality of 2.1., whether amendments to the law are desirable regulating:
2.2.1 Without derogating from the generality of 2.1., whether amendments to the law are desirable regulating:
2.2.2 The seizure of firearms, ammunition and explosive devices pending proof that the possessor is in lawful possession thereof".
A further term of reference related to the desirability of regulating the manner in which goods may be packed for transportation into or within the Republic with a view to facilitating the search of such goods or of the vehicles on which they are carries in order to ascertain whether or not the law is being complied with.
1.7 Subsequently, arising out of the aforesaid terms of reference, read with the written submission in Sap I and SADF I, the committee addressed to the SAP and the SADF what may conveniently be called "requests for further particulars". These requests, which were in identical terms, invited particulars with respect to the following:
1.7.1 The needs of the security forces in terms of manpower and equipment in order to prevent the aforesaid illegal importation, distribution and use ("RFP/1").
1.7.2 The need for greater powers of interrogation by the security forces and the imposition of higher penalties with respect to such illegal importation ("RFP/2").
1.7.3 The policy of rewards and its application with respect to such illegal importation, distribution and use ("RFP/3").
1.7.4 Methods of packaging, carrying and transportation of such weapons by those involved in illegal importation, distribution and use ("RFP/4").
1.7.5 The custody and fate of weapons confiscated by the security forces from those involved in such illegal importation, distribution and use ("RFP/5").
2 The committee's modus operandi
2.1 On the first day of the sittings the SAP submitted a comprehensive memorandum (Exhibit "A"), as did the SADF (Exhibit "C"). Having had the benefit of a public holiday within which to consider these documents, both the ANC (Exhibit "B")
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3.2 Second, while the SAP and the SADF were ready with their supplementary written submissions (Exhibit "A' and Exhibit "C") when the sittings commenced, neither the ANC nor the KZG/IFP were similarly ready.
3.3 Third, at the December meeting of the Commission Mr Harris appeared on behalf of the ANC. Before the committee Professor Haysom represented the ANC for the first four days and Mr Spoor for the last two. Before this committee, Professor Haysom expressly abandoned the written submissions relied upon by Mr Harris at the December meeting of the Commission. Instead, he relied upon what was contained in the aforesaid Exhibit "B" (Which nevertheless incorporated some of the earlier contentions).
3.4 The committee was faced with the anomalous situation that the ANC, while publicly acknowledging that it was in ILLEGAL possession of weaponry of all kinds in hidden caches, demanded that the security forces and others in LAWFUL possession of weaponry should give an account of themselves while it declined to do so. Furthermore, while the SAP and the Army offered an explanation of what steps were being taken to obviate any leakage of weaponry, the ANC did not offer any information whatever that might assist the committee with respect to facts relevant to the committee's principal terms of reference. The committee notes that the ANC's demand for an inventory of the weaponry legally in the possession of the SAP, the SADF and the KZG/IFP was accompanied by call for "Transparency" in the matter of the control of firearms.
3.5 Of particular significance respecting the omission of the word "possession" from the committee's terms of reference (other than in 2.2.2) was the fact that the D F Malan Accord between the Government of the Republic of South Africa and the ANC noted specifically (in clauses 5(B)(V) and (vi) the historical fact that the ANC and Umkhonto we Siwe had brought arms into the country and had agreed that a phased process by initiated to facilitate and legalise control over the arms. In argument Mr Spoor contended that the retention by the ANC of its admittedly unlawful possession of its undisclosed weaponry was a political issue beyond the ambit of the committee's field of inquiry, whereas a disclosure and audit of the stocks of weaponry lawfully held by the other parties was a matter properly falling within the terms of reference of the committee. In order to negotiate the difficulty posed by the omission of the word "possession" in the committee's terms of reference both Professor Haysom and Mr Spoor were constrained to contend, first, that both "use" and "distribution" implied "possession", and, second, that once legally used or distributed weaponry had been stolen or otherwise misappropriated such items became "illegal" and therefore the committee (so that argument ran) was entitled to investigate the ways and means by which "legal" could be restrained from becoming "illegal".
3.6 the Chairman ruled specifically that paragraph 27 of Exhibit "B" ("Extension of requirement of competency of security forces") fell outside the committee"s terms of reference. Save as above, the Chairman despite a number of repeated requests, declined to make any further ruling on which further paragraphs of Exhibit "B" fell within and which fell outside the committee's terms of reference. Instead the committee explained to counsel in chambers that it would hear the ANC's submissions and that if the committee intended to rely upon any submission or submissions to which the parties had objected on the grounds of irrelevance, the committee would afford them an opportunity of making further representations, written or oral, at a later date.
3.7 The ANC sought to persuade the committee to accept that its enquiry should embrace the illegal POSSESSION of firearms, ammunition and explosive devices, save for the arms under the control of the ANC to which reference had been made in the D F Malan Accord.
3.8 For good reason the committee rejects the ANC's submissions as to the extent to which the concept of "possession," although used previously, had (save with respect to 2.2.2) been expressly omitted from the committee's terms of reference which in other respects were explicit. Secondly, whatever the Commission's powers of ordering its procedures and manner of collecting information for its authorised purposes, a committee is not in a position mero motu to expand its terms of reference in order to accommodate one or other or even all of the parties. Third, the interpretation of the committee's main terms of reference to include "possession" would undoubtedly have expanded the scope of the committee's inquiry into a comprehensive examination of the state of weaponry, past and present, in the Republic. On the express wording of the terms of reference and in the context of the committee's appointment, this could not have been intended by the commission. The committee accordingly rejects the contentions of the ANc and finds that it is bound by its terms of reference as set forth in the press statement dated 13 January 1993. Accordingly it proposes now to deal with its terms of reference as set forth in the press statement dated 13 January 1993. Accordingly it proposes now to deal with its terms of reference seriatim, as follows.
4 A2.1 : "Any amendments or additions which should be made to the Arms and Ammunition Act No.75 of 1969 ("the Act") or any other relevant legislation, in order to prevent the illegal importation, use and distribution of firearms, ammunition and explosive devices."
4.1 The ANC's submissions in Exhibit "B" Mr Visser for the KZG/IFP handed in a detailed analysis (Exhibit "B"). He divided the paragraphs and subparagraphs in this memorandum into three categories, namely -
(i) those abandoned or withdrawn by the ANC or struck out by the ruling of the Commission (11 items);
(ii) those dealing with "possessions" and "lawful possession" (26 items in Part A and 37 items in Part B); and
(a) those remaining as properly to be taken into the reckoning by the committee (10 items in Part B).
While permitting the ANC to make submissions with respect to those paragraphs and subparagraphs challenged by the other parties, the committee made it clear that this did not necessarily mean that it would attack much or even any weight to any of these submissions.
4.2 On the basis of the analysis advanced on behalf of the KZG/IFP, the submissions in Exhibit "B" which fell properly for consideration by the Committee were the following:
21.1: The presumptions contained in section 32(5)(b) of the Act;
21.2: the validity or otherwise of such presumptions;
23.1: generally, the undesirability of mandatory sentences (see the remarks of the Appellate Division in THOMAS AND BRUCE V THE STATE in Case No. 139/1989);
23.2: the exclusion in s.39(2) of the possibility of a fine;
23.3: the mandatory sentence of 5 years, imprisonment for contraventions of s.32 of the Act (before Parliament at the time that the committee was sitting and subsequently made law);
25.1: the carrying and production of licenses as required by s.9 of the Act as amended by s.4 of Act 117 of 1992;
25.2: the submission that any person bearing arms in a public place must also be in physical possession of his licence in respect of that firearm;
26: the suggested new offence of "dealing";
29.1: the possibility of requiring arms to be "finger-printed" by means of modern technology; and
29.2: the "finger-printing: of cartridges or shells fired from already "finger-printed" firearms.
4.3 The committee, mindful of the objections of the other interested parties to most of the contents of the ANC's Exhibit "B", sets out briefly the contents of Exhibit "B" in order to illustrate those items which the ANC sought to raise but to which objections were lodged. The material portions of Exhibit "B" were divided into Part A ("Long-term goal: a safe and violence-free society") and Part B ("Specific proposals regarding amendments to the Arms and Ammunition Act No. 75 of 1969")
4.4 The introduction to Exhibit "B"
4.4.1 In paragraph 1.6, the ANC expressly disclaimed any intention of addressing the following: "...the specific issues arising out of the possession of arms and ammunition by members of Umkhonto we Sizwe and its members. These issues, which were canvassed at the previous inquiry, fall outside the terms of reference of this inquiry. The African National Congress reiterates
1.6.1 In terms of the D F Malan Accord furnished to the committee (in fact "the Commission") at the previous hearing the African National Congress agreed to suspend the unlawful use of such weapons. The Government acknowledged that the process of placing such weapons and ordinance in the hands of agreed authorities would be one undertaken within the context of an agreement between the parties."
4.4.2 1.6.2 and 1.6.3 dealt with current discussions between the ANC and the Government with respect to the matter of weaponry in the hands of the ANC. In the committee's view, these appear to beg the question of the illegal importation, use and distribution of such firearms etc.
4.5 Part "A" of Exhibit "B", The contents of Part A of Exhibit "B" may be summarised as follows:
1. Longterm goal: a safe and violence-free society. 2. The need for a broad framework of gun control. 3. Additional factors and consideration affecting amendments to the
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5.4.1 There is no need for a new Act. Amendments, if desirable, would suffice.
5.4.2 It was not within the province of the SAP to make submissions with respect to matters falling outside its sphere of jurisdiction, e.g. the Defence Act or the Road Transportation Act.
5.4.3 The SAP would have no objection to an increase in penalties for contraventions of s.25(para. 28.4.1)- (illegal importation, use and distribution).
5.4.4 Subject to consultation and agreement with the Customs and Excise and the Department of Foreign Affairs, existing laws could be amended with a view to inquiring into the separate physical treatment of imported arms and ammunition providing the SAP with powers to open and investigate all imported packages containing arms and ammunition.
5.4.5 Specifically, that consideration be given to the redrafting of the s.9 of the Act so as to provide for the unlicensed temporary possession of arms for the ad hoc purpose (again, this falls outside the Committee's terms of reference).
5.4.6 There should be an investigation into the desirability of a more stringent regulation of the matters contained in s.33 of the Act (the powers which the Minister may exercise in the interests of public safety or the maintenance of law and order or in order to prohibit or restrict the importation or possession of certain articles).
5.5 The general conclusions of the SAP (paras 28.4.10 and 28.4.11) were first that -
"...the present regulatory system in terms of the Act, read with the regulations promulgated under the Act, is basically not flawed";
second,
"practical problems, especially with regard to the control of the illegal distribution of arms and ammunition, does not seem to be as a result of deficiencies in existing legislation, but revolves around the unavailability of sufficient manpower to effect proper law enforcement"; and
third, the SAP referred to problems flowing from -
"...the media and the general public having incorrect perceptions of the type of police-ing tactics which have proved themselves in practice to be most effective in combating these types of criminal actions."
6. The contentions of the ANC
6.1 The committee finds, as indicated earlier (when dealing generally with Exhibit "B") That the ANc was astute to avoid dealing with the importation of any arms or other weaponry. It sought refuge behind the provisions of the D F Malan Accord and sought to direct the investigations of the committee away from what is "illegal" to what is ";ega;." In the result the committee received little assistance from the ANc on this aspect of its terms of reference.
7. The SADF's submission
7.1 In its memorandum the SADF drew a clear distinction between its function and those of the SAP, save only where it was invited by the SAP to play a supporting role in maintaining law and order. Nevertheless, the SADF drew the attention of the committee to the amendment s.3(2)(a) of the Defence Act, 1957, which introduce a new subsection (v) which (when it is brought into force) will broaden the duties of the Defence Force to include the support of law and order and the prevention of crime in the Republic. Nevertheless, the SADF emphasised that its role was essentially a supporting one and that is was not its duty to investigate any crime or alleged crime.
8. The KZG/IFP contentions
8.1 At the outset, the KZG.IFP submitted (correctly, in the Committee's view) that an -
"Enquiry into the illegal importation, distribution and use of automatic weapons will address only part of the problem. It is equally important to investigate the illegal possession of such weapons."
Be that as it may, the committee has already indicated that the question of illegal possession falls outside its terms of reference. The KZG/IFP recorded its regret in 4.4. in the following terms:
"The Committee has made itself largely irrelevant from a point of view of addressing the real cause for concern regarding the thousands of illegal firearms, presently in the country, with which violence and intimidation (and a multitude of ordinary criminal acts) are perpetrated."
Otherwise. with respect to this term of reference, the KZG/IFP made no material submissions.
9. Submissions of the SA Gunowners' Association
9.1 SAGA contended in its written submissions that existing legislation adequately covers the issues mentioned in this term of reference, and in addition referred to -
"...extensive new regulations relating to, inter alia firearms licences, storage and transport of firearms, import and export thereof, gunsmiths and arms and ammunition dealers, etcetera,"
which are at present being drafted by the legal advisers to the Commissioner of Police. These regulations have been discussed with SAGA and interested parties and should in due course to be published in final form for comment.
10. Sundry written representations
10.1 The South African Practical Shooting Association submitted the following with respect to this term of reference.
"...that no amount of legislation will deter criminals. What is necessary is more effective law enforcement. Existing legislation is more than adequate."
10.2 Mr Rance submitted as follows:
"the main source of illegal firearms to RSA from Mozambique through the eastern border, Swaziland and south-eastern Zimbabwe where, reportedly, it costs as little as R120 to buy an AK-47
Undercover government agents should be posted all along our borders where arms are sold and even in adjacent countries like Swaziland and Mozambique, to buy up as many firearms and ammunition as possible even if it means purchasing the entire "loose" arsenal in Mozambique."
He recommended that this measure should be extended to the Namibian, Zimbabwean and Botswana borders and that the co-operation of the United Nations be invoked.
10.3 The South African Arms and Ammunition Dealers Association. In short, this association contended that the existing legislation was adequate: what was required was "Firm enforcement of legislation."
10.4 The submission of the Pretoria Bar. This submission dealt with the SAP cover Honeybadger CC operation, which was intended to infiltrate smuggling operations (which, however, was disclosed by the media and so rendered futile).
10.5 Mr S Galpin This submission contains nothing relevant to this term of reference.
11. Before making recommendations on par. 2.1 of the terms of reference the committee notes briefly the references in the ANC's Exhibit "A" to authorities mainly in the United States writing about gun control and the further authorities referred to in Exhibits 10(a) and 11 handed in by Mr Wepener on behalf of the SAP for the express but limited purpose of informing the committee that experts are divided on the effects of gun control and, further, that gun control in one country will not necessarily have the same result as gun control in another.
12. The committe's recommendation with respect to term of reference 2.1.
12.1 The committee RECOMMENDS -
12.1.1 That no amendment or addition be made to the Act which, with respect to this term of reference, but subject to 12.1.2, contains adequate provisions for seeking to control the importation of illegal weaponry and its use and distribution inn the Republic.
12.1.2 Nevertheless, the committee recommends that those sections of the existing legislation which have not as yet been brought into operation should be brought into operation with the minimum of delay.
12.1.3 Furthermore, with respect to efforts to control the importation, illegal use and illegal distribution of weaponry, the amended regulations referred to by SAGA should be settled and promulgated with the minimum of delay.
13 Ad2.2.1: "... Whether amendments to the law are desireable regulating ... the carrying and production of firearm licences"
13.1 The SAP
13.1.1 In short, prior to 1988 the holder of a licence had to produce his firearm and his licence to a policeman within a reasonable time. Section 9 of the Act was amended in 1988 to provide inter alia as follows:
"Any person having an arm in h is possession shall at all times have in his actual possession the licence or other authority to possess the arm and if he si a competent person, his certificate of competence, and shall produce the licence authority or certificate of competence, as the case may be, immediately at the request of a policeman."
However SAGA requested the Minister of Law and Order to amend the regulations to provide for the production of a certified copy of the licence as being sufficient. No doubt unwittingly the amended section 9 created a potential situation for making criminals of law-abiding citizens. Accordingly after extensive negotiations, the 1992 amendment of the Act was introduced to make the Act "user-friendly" by providing that any person in a public place in
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13.6 In the light of the aforegoing the committee RECOMMENDS that the Act be amended to provide for what is set forth in par 13.4(a), (b), (c) and (d) above (the submission of the KZG/IFP)
14 Ad2.2.2: Whether amendments to the law are desirable regulating the seizure of firearms, ammunition and explosive devices and proof that the possessor is in lawful possession thereof
The committee's analysis of the various representations, its findings and its recommendations with respect to term of reference 2.2.1 are applicable mutatis mutandis to this term of reference.
15. Ad2.3: The desirability of regulating the manner in which goods may be packed for transportation into or within the Republic and with a view to facilitating the search for such goods
15.1 SAP
15.1.1 In SAP I (pars 2.1.5 - 2.1.6) the SAP cited certain practical problems that had been experienced when searching loaded vehicle for illegal weaponry. It suggested that -
"Wetgewing behoort daargestel te word wat 'n verpligting op vragvervoerders plaas om goedere so te laai dat vragte geredelik nagegaan kan word" (p.50).
15.1.2 The SAP went on to quote s.2 of the Road Transportation Act, 1977 (Act No. 74 of 1977), and the provisions of par (g) A, which empower the Minister of Transport to prohibit the conveyance of goods which are loaded on a goods vehicle in a specified manner from a specified date. The SAP also referred to s.3(1) of that Act, which gives general powers to the National Transport Commission to investigate any matter relating to road transportation, but pointed out that no regulations had been promulgated to regulate the manner in which goods have to be packed when transported. The SAP accordingly recommended that the committee recommend to the Minister of Transport that the subject be investigated by the National Transport Commission after consultation with interested parties. The SAP nevertheless conceded that it would "be difficult to find a practical solution."
15.1.3 In 5 of Exhibit "A" it produced excellent photographs of how illegal weaponry is conveyed.
15.2 The ANC The ANC made no submissions with respect to this term of reference.
15.3 The SADF
15.3.1 While again repeating that it did not really fall within the province of the SADF to deal with an Act administered by the Department of Transport, the SADF nevertheless again made brief reference to sophisticated specialist equipment which is apparently now available and which can be used to detect weapons, ammunition or explosives on a vehicle and recommended that the attention of the Department of Transport be drawn to this aspect of regulating the loading of goods vehicles. The unusual problems contemplated here are those referred to in 2.1.5 of SAP I (p.5), where heavy vehicles transport very large loads of loosely packed products (e.g. vegetables, citrus, etc.). It will be obvious that the labour involved in removing such loads to find out whether weaponry lies buried under them presents serious problems in terms of time and effort.
15.3.2 That such sophisticated apparatus exists or is in course of development and refinement appears from Exhibit 12, which was a letter dated 14 April 1993 addressed to the committee by manufacturing and Aeronautical Systems Technology. One of the problems dealt with in their letter is that -"... weapons are also smuggled into the RSA via border posts and transport which can't be searched due to traffic density or the type of cargo carried. The weapons are then transported to the PWV area, sometimes via a few road blocks, without being detected".
The writer of the letter contends that the CSIR is well qualified to consider this problem and to identify, analyse, evaluate and develop solutions by applying such high technology as radar, infrared devices and lasers.
15.4 The representations of the other interested parties
None of the other interested parties could offer any useful comment on this term of reference, except that the SA Gunowners' Association observed that the question of smuggling has taxed man's ingenuity for centuries.
15.5 It will be seen from the above t hat the committee received very little information regarding ways and means by which illegal weaponry can effectively be detected on or in motor vehicles. Nevertheless the Committee RECOMMENDS as follows.
15.5.1 That the SAP and The SADF should communicate with the Department of Transport with a view to ascertaining what sophisticated equipment is available for detecting illegal weaponry transported on or in motor vehicles, be they heavy lorries, combis or ordinary motor cars.
15.5.2 If such sophisticated equipment is available to ascertain what regulations (if any) could properly be promulgated by the Department of Transport to facilitate the use in collaboration with the SAP and the SADF of such sophisticated equipment wherever it would be most usefully employed for the purpose of endeavouring to detect the presence of unlawful weaponry in motor vehicles.
15.5.3 With respect to the aforegoing recommendation the committee is conscious of the fact that it is highly unlikely that it would be possible for the Department of Transport to frame regulations which would effectively control the loading of vehicles so as to facilitate inspection for the purpose of detecting the transportation of illegal weaponry. Nevertheless, the Department of Transport may be able to promulgate regulations which could serve to complement the powers which the SAP already have under other existing legislation.
16 The committee turns now to the "Requests for further particulars" (as they have been called) that were addressed in similar terms to the SAP and the SADF. In order to distinguish these terms of reference from those dealt with previously, the committee has identified them in 1.7 by the prefix "RFP" followed by the number of the item.
17 RFP/1 "The needs of the security forces in terms of manpower and equipment...."
17.1 The submission of the SAP
17.1.1 This is dealt with in section 2 of the SAP's Exhibit "A", which sets forth particulars of the existing permanent and temporary firearms units in the 10 regions of the SAP, which are manned by some 240 members of the Force.
17.2.2 A special section is at present investigating the function of the existing firearm units and the creation of further such units as a matter of urgency to ensure that there is adequate manpower and equipment to combat the illegal importation of weaponry. It is estimated that this investigation will be completed by about the end of May 1993, by which time it should be possible to quantify what the SAP requires.
17.2 The submission of the SADF
17.2.1 This was set forth in detail in paragraph 18 of the SADF's Exhibit "C". After repeating that the primary duty of the SADF in this regard is the protection of the borders of the Republic, the memorandum acknowledge the role of the SADF in supporting the SAP, particularly with respect to manning border posts, road blocks, cordons, searches and patrols. At present the SADF does not have any specific prior requirements in order to enable it to discharge its obligations. But, again, the memorandum acknowledges that the situation in the Republic may deteriorate.
17.2.2 In approximate terms the manpower made available daily by the SADF to assist the SAP in recent years has varied as follows:
1989: 2 814 persons 1990: 5 628. 1991: 7 821. 1992: 6 968.
17.2.3 The SADF estimates that on the basis of part-time service for between 12 and 60 days per year it would require between 85 000 and 100 000 persons to keep say 7 000 part-time members of the Force available to assist the SAP on every day of the year. The cist in 1992 with respect to salaries alone was of the order of R31,2 million exclusive transport, rations, clothing, weapons and other equipment. On average, the SADF estimates that about R40 per person is required for factors other than salaries. With respect to equipment the SADF furnished a long list of requirements, namely:
1. Conversion of vehicles into armoured vehicles for such duties; 2. 300 motorcycles 3. 300 road block sets; 4. 7 000 bullet-proof suits ("stelle lyfpanser") 5. Some 7 000 riot helmets ("onlushelms"); 6. 60 megaphones (at say R4 000 a unit); 7. 500 radio telephones; 8. 200 tape recorders; 9. 700 spotlights; 10. 700 floodlights; 11. 700 assorted video cameras, still cameras and Instamatic cameras; and 12. further detection apparatus and also trained dogs (a very serious need).
17.3 In the absence of any submission or evidence disputing what is set forth in 17.1 and 17.2 the committee find that the security forces are best qualified to assess their requirements at the present time of escalating violence and lawlessness in the country, and accordingly accepts their submissions. 17.4 The committee RECOMMENDS -That a priority urgent attention be given to the funding of the requirements both of the SAP and the SADF with respect to the provision of sufficient equipment to stem the illegal importation of arms from outside the Republic and their use and distribution within it.
18 "RFP/2": "The need for greater powers of interrogation by the Security Forces and the imposition of higher penalties."
18.1 The submission of the ANC
18.1.1 Although not directly in point, in par 21 of Part B of the Exhibit "B" the ANC set out the resumption at present contained in s.32(5)(b) of the Act. In short this provides that -
"...if it is proved that the accused has been in contact with a person who has or had in his possession an article referred to in subsection 1(a), (b), (c) or (e) or that the accused had at any time been on or in any premises, including any building, dwelling, flat, room, office, shop, structure, vessel, aircraft or vehicle or any part thereof on or in which such an article is found, it is prima facie proof that the accused:
(i) knew that the person was in possession of such an article; or (ii) knew that such an article was on or in such premises; and (iii) failed to make a report contemplated in paragraph (a)...". (i.e. to a policeman)
18.1.2 The ANC went on to submit that these presumptions violate accepted principle of justice and are bound to lead to and have led to absurd results and miscarriages of justice and submitted strongly that the presumptions are not required.
18.1.3 Notwithstanding this objection in principle to "presumptions," paragraph 26 of Exhibit "C" suggested a new offence, "dealing," as being appropriate in connection with the dealing in an smuggling of firearms not only across international borders but also in respect of the conveyance of illegal firearms per se. Accordingly it recommended that -
"A specific presumption should be created to provide that any person found in possession of more than two illegal firearms shall be deemed to be "dealing" in firearms, unless the contrary is proven."
18.2 The submission of the SAP Neither the SAP nor the SADF made any direct representations with respect of this term of reference. 18.3 The submission of the KZG/IFP
18.3.1 The KZG/IFP stated in par. 9.7 of their Exhibit "D/2" that there appears to be no need for additional legislation to curb the unlawful possession of firearms other than the possibility of considering the amendment of the Act by creating a presumption that the possession of a certain quantity of unlicensed firearms or ammunition by any one person would give rise to a presumption that such persons is a supplier or distributor of unlicensed firearms or ammunition, and a further presumption that where the accused conveyed any unlicensed firearm, ammunition etc it shall be presumed that he dealt in such unlicensed firearms, ammunition, etc, unless the contrary is proved.
18.4 Increased penalties were supported by the SAP and the KZG/IFP. The ANC made no specific submission with respect to higher sentences, but it strongly opposed mandatory sentences upon conviction. In particular the ANC opposed a Bill to amend the Act to provide for a mandatory sentence of 5 years for the contravention of s.32 of the Act - "Prohibition of unauthorised importation, supply or possession of certain firearms or classes of articles" (including machine guns or machine rifles). Having regard to the D F Malan Accord and the apparent omission in any legislation of which the committee is aware of an indemnity provision for admitted but undisclosed possession this is hardly surprising.
18.5 The ANC's objection was based upon the general proposition laid down by the Appellate Division in Thoms and Bruce v the State Case No. 139/1989, which judgment was delivered on 30 March 1990, and in which the court held as follows:
"The infliction of punishment is pre-eminently a matter for the discretion of the trial court. That court should, as far as possible, have an unfettered discretion in relation to sentence which is a cherished principle which calls for constant recognition. Such a discretion permits of balance and fair sentencing which is a hallmark of enlightened criminal justice. The second, and somewhat related principle is that of the individualisation of punishment, which required proper consideration of the individual circumstances of each accused person. This principle too is firmly entrenched in our law.
The mandatory sentence runs counter to these principles. It reduces the court's normal sentencing function to the level of rubber stamp. It negates the idea of individualisation. The morally just and the morally reprehensible are treated alike. Extenuating and aggravating factors both count for nothing. No consideration, no matter how valid or compelling, can affect the question of sentence and harsh and inequitable results will flow from such a situation. Consequently judicial policy is opposed to mandatory sentences."
18.6 The committee notes the submissions made by various interested parties with respect to the stricter enforcement of the law. By implication this includes a need for the imposition of higher penalties. Further more, on the basis of the contents of Exhibits 10(a) and 11 it would appear that this has been the trend elsewhere, certainly in the United States of America. In this regard the ANC submitted that the object of gun control legislation should be "fair" and that the failure properly to discriminate between different offences discredits this framework. In particular s.39(2) of the Act as it stands at present excludes the possibility of a fine and this can lead, and has led, to injustices. In particular, the ANC was greatly concerned about the mandatory minimum sentence of 5 years imprisonment then under consideration in Parliament.
18.7 The committee was in two minds with respect to mandatory sentences. On the one hand it is an undisputed fact that attacks involving AK-47 automatic rifles against different categories of targets escalated most alarmingly, particularly in 1991 and 1992. It is also accepted by everyone that Mozambique is the most prominent source of these weapons. The committee predicts that statistics for 1993, when these are ultimately compiled, will probably show an even greater increase in the incidence of violence caused through the use of these weapons. There are also indications that, unless drastic measures are taken to curb the inflow of AK-47s from Mozambique, in particular, the problem may reach critical proportions. Even if a political settlement were to be achieved in the very near future, that problem, like poverty and deprivation, would remain with us for a long time. If it is also accepted that crime flourishes in a society where there is poverty and deprivation, it is not difficult to predict that AK-47s will continue to play a major and inevitably destabilising role in the new South Africa.
18.8 There is therefore a very strong tendency to support measures of every nature, including mandatory sentences, which could serve to deter people from illegally acquiring weapons of that nature. In this respect the certain knowledge that the illegal possession of an AK-47 would result in a mandatory sentence may be perceived as a deterrent which would militate against the acquisition thereof from whatever source. It could be said, justifiably, that only the guilty have anything to fear in this regard. On the other hand, there are a number of very convincing arguments against the introduction of mandatory sentences (see Exhibit "B" and 18.5 and 18.6 above). Although the issue was not debated fully before the committee, it is aware that empirical evidence supports the view that mandatory sentences do not have the desired effect on the would/be criminals that the mandatory sentence is supposed to deter. Examples which spring readily to mind are the death sentence and the former narcotics legislation. Taking into account the nature of society as it exists in South Africa today, the reality is that very few, if any, of those who are bent on following a criminal path are likely to be deterred by the threat of a mandatory sentence (if such a threat were to be generally known throughout the country) should they acquire a weapon (apparently for very little money) in order to use it for illegal purposes. It is absurd to suggest that a peaceful citizen needs an automatic rifle for the purposes of self-protection or sport.
18.9 Notwithstanding the fact Parliament has legalised the mandatory sentence the committee states its views in case in the future they might be of some relevance should this issue come under review. On balance the committee prefers the application of the principles enunciated by the Applellate Division (18.5 above) to a mandatory sentence.
18.10 In the light of the aforegoing any RECOMMENDATION would be of academic interest only.
19 "RFP/3" "The policy of rewards..."
19.1 The submission of the SAP The SAP dealt with this term of reference at length in Section 3 of its Exhibit "A". It gave the history of its intensive campaign during 1990 against unlicensed weaponry. This campaign was dependent in part upon information obtained from informants in return for rewards. Such a reward is only paid with respect to weapons actually recovered that results in a prosecution. The scale of rewards is approved by the Treasury and is subject to maxima depending on the items recovered. Informants are protected and efforts are made to ascertain the provenance of such weapons. Precautions are taken against abuse by any informant of the present system of rewards. Thus, the maximum amount payable for an AK-47 is R6 000, and even where a conviction does not follow the interception of an AK-47 can lead to a reward. The SAP's submission went on to deal with the steps taken to publicise the reward system by means of media statements on a regular basis and by the distribution of posters in various regions. Examples of such posters were annexed to its memorandum. Generally, the SAP contends that the system of rewards has proved to be effective.
19.2 Submission of interested parties None of the other interested parties submitted any submissions with respect to this system of rewards
19.3 In the light of the aforegoing, the committee RECOMMENDS that the system of rewards be retained on its present basis.
20 "RFP/4": "Methods of packaging, carrying and the transportation of firearms etcetera...".
This has already been dealt with in 15.1 and 15.3 above and the committee has nothing further to add to what it has said already save to comment that Section 5 of Exhibit "A" consisted of excellent photographs depicting the manner in which the smuggling of illegal weaponry has been taking place.
21 "RFP/5": "The custody and fate of weapons confiscated by the Security Forces..."
21.1 In Exhibit "A" the SAP gave the committee meticulous details of the procedure currently in force with respect to the disposal of confiscated weapons. Upon a careful examination of this procedure the Committee is satisfied that it is unnecessary to burden this report with particulars of a procedure which is both lengthy and elaborate. The procedure is calculated to ensure that where a confiscated firearm ought not properly to be restored elsewhere, it is eventually melted down at the Iscor Steelworks. The committee is satisfied that, in the absence of reliable evidence to the contrary, this procedure is being adhered to and RECOMMENDS that it be adhered to for the foreseeable future.
21.2 The SADF, for its part, merely indicated that where members of its forces confiscated weapons these were handed over to the SAP with the minimum of delay.
21.3 Neither the ANC nor the KZG/IFP made any comment in this regard.
22.4 Nevertheless, a matter which occasioned some concern in the minds of the committee was the production of copies of newspaper reports suggesting that confiscated weapons were in fact disposed of by the authorities to members of the public. More particularly there was reference to 200 AK-47 automatic rifles which had so been disposed of. After taking instructions, Mr Wepener, for the SAP, assured the committee that each of these weapons could be and would be accounted for. Furthermore, no person can be in lawful possession of an automatic rifle or machine gun save by virtue of a permit issued by the Minister. Whenever any such weapons is to be disposed of to a member of the public a certificate from a gunsmith is required certifying that the weapon has been 23 Recapitulation of recommendations
Terms of Clause Recommendation reference
2.1 4 12.1.1 That no amendment or addition be made be made to the Act which, with respect to this term of reference, but subject to 12.1.2, contains adequate provisions for endevouring to control the importation of illegal weaponry and its use and distribution in the Republic.
12.1.2 Nevertheless, the committee recommends that those sections of the existing legislation which have not as yet been brought into operation should be brought into operation with the minimum of delay.
12.1.3 Furthermore, with respect to efforts to control the importation, illegal use and illegal distribution of weaponry, the amended regulations referred to by SAG should be settled and promulgated with the minimum of delay.
2.2.1 13 13.6 The Act should be amended to provide for what is set forth in paragraph 13.4(a), (b), (c) and (d) above.
2.2.2 14 14 See: 2.2.1 mutatis mutandis
2.3 15 15.1.1 The SAP and SADF should communicate with the Department of Transport with a view to ascertaining what sophisticated equipment is available for detecting illegal weaponry transport on or in motor vehicles, by they heavy lorries, combis or ordinary motor cars.
15.5.2 If such sophisticated equipment is available, to ascertain what regulations (if any) could properly be promulgated by the Department of Transport to facilitate the use in collaboration with the SAP and SADF of such sophisticated equipment wherever it will be most usefully employed for the purpose of seeking to detect the presence of unlawful weaponry in motor vehicles.
RFP/1 17 17.4 That as a priority urgent attention be given to the funding of the requirements both of the SAP and the SADF with respect to the provision of sufficient equipment to stem the illegal importation of arms from outside the Republic and their use and distribution within it.
RFP/2 18 18.10 In the light of the oforegoing any RECOMMENDATION would be of academic interest only.
RFP/3 19 19.3 In the light of the aforegoing the committee RECOMMENDS that the system of rewards be retained on its present basis.
RFP/4 20 20 No recommendation.
RFP/5 21 21.1 "It (the existing procedure) be adhered to for the foreseeable future".
24. Conclusion In concluding this report the committees acknowledges that, as contended by both the ANC and by KZG/IFP, albeit seen from different points of view, the terms of reference of the committee were narrow and, further, that numerous assumptions made in the course of the representations were not tested by the leading of oral evidence and the cross-examination of witnesses. Nevertheless, the committee draws some consolation from the fact that the problems with which it was taxed have confronted mankind for thousands of years. It may be remembered that (according to Ernest Sutherland Bates The Bible Designed to be read as Literature - London: William Heinemann Limited p.405) it was the voice of Micah and Morashite which "was probably the first voice in the Western world to announce the dream of universal peace." At about the time of the conquest of the kingdom of Samaria by the Assyrians in 722 BC a new prophet arose in the land. After a sombre (and familiar) warning of the advent of a God of righteousness who (to quote Bates again) ..."would chastise the sins of priests and princes by the overthrow of the national power" it was the prophet Micah who foresaw an era of redemption in these words:
"...And they shall beat their swords into plow-shares, And their spears into pruninghooks: National shall not lift up a sword against nation, Neither shall they learn war anymore. But they shall sit every man under his vine And under his fig tree; And none shall make them afraid..."
In the present time of public violence and intimidation in the Republic and in a world of barren rhetoric the committee is disposed to enquire: "What vine? And where the fig tree?"
N M S Sithole Chairman
L S van Zyl Member
J S N Roberts Member