“The Right to Life”
Section 11 of the Constitution (Right to Life) vs. Act 60 of 2000 (FCA)
Annexure A: Copy of The Bill of Rights
Annexure B: FCA 60 of 2000
Annexure C: Narrative from Mr Kgosimore (Department of Criminology, University of the North)
Annexure D: Copy of Replying Affidavit Case No: 13963/2011 in the North Gauteng High Court
Consultation and Investigation Conducted
a.Media (television, newspapers and internet)
b.Various focus group forums
c.Personal experience as licensed firearm owner
d.The author (retired) of the previous CFR Procedure of the SAPS
e.Friends and family experience/assistance
I, Mr Phillip de Kock, a South African Citizen by birth, with ID No: XXXXXXXXXX hereby wishes to present an alleged infringement of The Bill of Rights as afforded to me under the Constitution Sec 38 (a), which reads “Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.” for relief by the court.
It is with grave concern that I have taken note and also experienced first-hand the implications of Act 60 of 2000 (Firearms Control Act), which I believe is an infringement/threat to Section 11 “The Right to Life” of the Bill of Rights, with specific reference to the following:
The manner in which the new FCA was enforced by the Executive, in which the consultative processes were circumvented/neglected
The manner in which the new FCA failed scrutiny within the Judiciary by being suspended by Mr Justice Prinsloo in the case of SA Hunters and Conservation Association
The inability of the Legislative/Executive authority to explain/justify it’s application, interpretation or execution as found in the case of The Saga Trust.
The lack of consideration and planning prior to the new FCA being introduced
The contradiction of the new FCA to the Constitutional “Right to Life” as a non-derogable right under Section 11.
The lack of consideration in the ability of the administrative system to cope with the enforcement of the new FCA with the resultant infringement and unlawful contravention of Section 33 of the Constitution and Section 3 of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000)
The intended policy proposal entitled "Winning the War Against Crime," in which the Democratic Party intends pressing for the amendment of the Constitution in order to have the rights of the victims entrenched there-in is in further contradiction to the new FCA, which seeks to infringe on a victim’s right to life.
The proposal that the victim be empowered (as a crime-prevention strategy) which appears in the National Crime Prevention Strategy document (1996:65) may be taken as an acknowledgement on the part of the government that the victim needs to be recognised, which sadly is not entrenched in the Constitution.
The extent to which “The Right to Life” as contained in the Constitution has been protected, as tabled in the category of non-derogable rights, is in it’s entirety, and thus can NOT be subject to any sub sequential laws or conditions.
Considering the “Interpretation of the Bill of Rights” Sec 39(1a) “a court, tribunal or forum *must promote the values that underlie an open and democratic society based on human dignity, equality and freedom”, which have all been infringed by the new Act by:
Treating citizens without human dignity through threats of persecution, lack of administrative experience, extensive administrative and compliance requirements.
Inequality through discrimination between those in society who have the means to financially fight the injustice vs. those who are unable to do so.
Depriving society of the freedom to make a choice regards the manner in which to pursue a desire (sport/recreation) or defend their “Right to life” (self-defence).
Considering the “Interpretation of the Bill of Rights” Sec 39(1), “a court, tribunal or forum must consider international law”, it has also become evident that the numerous attempts at increasing the onerous requirements and process of obtaining a firearm legally have NOT been considered, as well as the fact that it has not deterred the unlawful use of firearms against victims now left without the ability to protect their “Right to Life” but rather increased the incidents (300% increase in Australia).
Considering the “Enforcement of Rights” Sec 38“, anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.” It has become clear from the numerous legal cases currently in progress and individuals, forums, stake holders who have successfully won cases that this right is not being considered by the Legislature, Executive or Judiciary when anyone is persecuted unlawfully under the new FCA.
Considering the enforcement of Act 60 of 2000 by the authorities appear to have adopted a set of terms and conditions not even prescribed by the infamous Act, which has resulted in the “Registrar” having implemented a consideration of applications resting on the opinion of the relevant official as the new FCA remains quiet on the following crucial aspects:
What should happen if the original reason for acquiring a firearm changes? This leaves future enforcement of this new FCA open to further confusion and interpretation reliant on opinion.
“Self-Defence” is an internationally recognized term with no ambiguity, which in the modern world and especially the RSA has a very high likelihood of being able to defend oneself against an attack of an armed nature or overwhelming force. Why are applicants now required to explain the level of crime prevalent in the country to an officer of the Law?
There are no guidelines provided in the Act regarding the “extent” or “need” that should exist in the country or to the individual that it would consider as justifiable. The consequence has been that this adjudication has now been left to the opinion of the relevant official, which has varied as vastly as there are officials.
The terminologies of “occasional” and “time to time” contained in the new FCA is again without guidelines and again open to interpretation as to the extent of the motivation that would appease the relevant official.
The “competency’ pre-requisite is understood but the manner in which the Act prescribes as sufficient is sadly incompetent and serves no purpose other than to add to the administrative burden of the process. It does not allow recognition to extensive training obtained by individuals, for example in the armed forces, which could be used to ascertain an individual’s competency. Due to the varied nature and circumstances of attacks it would be impossible to truly ensure competence, which remains the responsibility of the individual.
The difference in validity periods for same firearms obtained for different reasons makes no sense and again adds to the confusion and administrative burden. How does a competent person become incompetent with a firearm because it was obtained for self-defence, but would still be competent if the same firearm was obtained for occasional sport?
Should the license/competency expire due to unforeseen reasons and the individual is required to defend him/herself, would it be considered as an unlicensed firearm? Placing any form of validity restriction on a license for a firearm, after it has been supplied makes no sense as the individual is entrusted with the responsibility to consider another’s “Right to Life” but not with the responsibility to decide when the firearm is no longer required?
The Right to Life cannot be determined by a fire arm licence status, but will be supported by allowing every person the freedom in reasonably being able to protect this right.
The ambiguous nature of Act 60 of 2000 and above inadequacies has also resulted in the “Registrar” being in contravention of Section 3 of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000), which reads “It is within the scope and duty of the Designated Firearms Officer/Registrar to request any additional information they deem necessary in order to reach a fair and objective decision, before summarily dismissing any application on the grounds of insufficient motivation”. Ultimately this has resulted in Firearms Control Officers now making judgement on the support or rejection of every applicant’s constitutional “Right to Life”.
Considering Section 33 of the Constitution “the right to lawful, reasonable and procedurably fair administrative action” it is clear that this right has also been grossly infringed through the inability of the SAPS to conduct applications within the times provided in Schedule 1 of the new FCA.
The SAPS issued an internal administrative directive stating that the licenses under the old Act remains valid, which does not have the force of Law and which can be withdrawn at any time without notice to the public. This would see further persecution of licensed firearm owners as stated by the Head of the Central Firearms Register and Mr Bergenthuin in a television interview, in direct infringement of several constitutional rights.
The numerous contradictions in the interpretation of the new Act within the SAPS as expressed in internal directives, public interviews, responses in litigitation cases and varied opinions of rejections can leave no doubt as to the unenforceable nature of this new FCA.
Further support of the confusion and unlawful conduct by the “Registrar” is found in the reasons supplied in the rejection of applications, where mind to matter was not applied or lacking due to incompetence, to consider a few:
“Insufficient motivation supplied” – no one is obliged to prove “Right to Life” nor does the new FCA stipulate such a requirement.
“Convince the Registrar of a Need” – freedom of choice and “Right to Life” does not need proof nor does the new FCA clarify this requirement.
“Reason for a Specific firearm selected” – freedom of choice, personal preference and the new FCA do not necessitate this requirement.
“Did not indicate Where you intend to hunt” – evolving societies and changes in circumstances make it impossible to satisfy this question nor is it required by the new FCA.
The very nature of the reasons supplied above and the fact that an Independant Appeal Board has overturned 61% of the rejected applications questions the competence of the “Registrar” to objectively adjudicate applications.
The fact that the Legislative have remained silent on this matter further supports the suspicion that the new Act has been put into law without cosideration of due dilligence or following the required policy making procedures, which would have provided all stake holders with the opportunity to comment.
Finally, the extensive costs incurred with public funds to attempt implementation (FCR, Staff, Documentation and Resources) and defend litigation in defeating the ends of justice can be considered as fruitless expenditure, which would require further investigation as it would have been unlikely that these costs were budgeted for at the time of release of the new Act. This does not include the costs incurred by individuals and /or stakeholders:
Who had to forcably dispose of their property,
Incur additional costs in acquiring competency and new licenses or
Legally defend their “Right to Life”
Conclusion
“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.
In modern society the use of a firearm, or overwhelming force to deprive someone of this right by criminal elements is well entrenched and an international phenomenon. It is thus irresponsible and unconstitutional to deprive any person from their freedom of choice in defending this right with the most suitable means available, which happens to be a firearm.
Should this constitutional right not be protected and individuals unlawfully deprived of exercising it through unreasonable rejection or administrative incompetence, the following consequences will become prevalent:
Accountability by the Legislative, Executive and Judiciary organs of the state for consequential harm to every person who has been denied this right domestically and internationally for human rights violations.
Individuals will seek other means to protect their “Right to Life” as a constitutional and basic human instinct, regardless of the consequences as failure to do so could result in their extinction.
Individuals exercising “The Right to Life” under international law with perceived “unlawful” means thus defeating the purpose of the new FCA completely and resulting embarrassment to the RSA legislature in the international arena.
Failure of the people by the Legislative, Executive and Judiciary in enforcing this fundamental constitutional right will have far reaching implications on ALL other rights and a breach of trust for all Laws to follow.
Continued future endless litigation that would again require justification by the Legislative authority, which it can ill afford.
As a concerned law abiding citizen it is my contention that Act 60 of 2000 should be struck from the Law completely as UNCONSTITUTIONAL and an infringement/threat to several Constitutional rights as discussed in this document, as no amendment or alteration would support “the Right to Life”, which is the essence the threat being imposed by this new FCA.
I respectfully request that this matter be addressed as a matter of urgency and with the respect it deserves as the cornerstone of our society.
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