During SONA President Ramaphosa let it be known that his government is desirous of passing legislation further controlling the ownership and use of firearms in SA.

Government has the power to do so, provided it paints within the lines created by the Constitution itself. Where to draw that line on firearm control is the topic considered here.

After WWII the victorious allies set about creating a world order in which peace and security of nations would be the new order. The United Nations Organisation was established with a view to setting up a world in which the private use of firearms would be superfluous other than for sporting purposes. The Universal Declaration of Human Rights followed and, until recently, and despite the Cold War, the planet has enjoyed a period of fairly secure peace and sustained progress marred by localised conflicts which have been contained and have ended except in Ukraine, where Russian “special operations” carefully disguised as an invasion threaten peace in Europe, in the Middle East where the conflict between Hamas and Israel appears to be quite intractable and in parts of Africa where coups and invasions have occurred in recent years. China threatens Taiwan, the USA wants Greenland and the world is currently less safe than at any time since 1945 when WWII ended.

It took SA until 1994 to join the mainstream of the post WWII world order. The apartheid regime was regarded as a pariah state and one of the objectives of the new (current) constitution was, according  to its Preamble to:

“Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations”

The Constitution includes a Bill of Rights as its second chapter. It provides in section 7(2) that

“The state must respect, protect, promote and fulfil the rights in the Bill of Rights”

Unlike the US Constitution, the SA Constitution does not include an express right to bear arms or to own firearms privately. There are however several rights which those who wish to own firearms may invoke should they elect to assail the constitutionality of any new legislation aimed at so controlling firearm ownership as to make it impossible for ordinary citizens, or even those employed in the private security industry, to own firearms.

According to section 2 of the Constitution the new firearm control law will have to be consistent with the Constitution itself, failing which the new law may be struck down as invalid. In part the section reads:

“Law or conduct inconsistent with it [the Constitution] is invalid and the obligations imposed by it must be fulfilled.”

The following rights, in the order in which they are recorded in the Bill of Rights are arguably relevant to the right to own firearms:

9(2) Equality includes the full and equal enjoyment of all rights and freedoms

10 Everyone has inherent dignity and the right to have their dignity respected and protected.

11 Everyone has the right to life

12 (1) Everyone has the right to freedom and security of the person which includes the right …

to be free of all forms of violence from either public or private sources

12(2) Everyone has the right to bodily and psychological integrity which includes the right to security in and control over their body

21(1) Everyone has the right to freedom of movement

28(2) A child’s best interests are of paramount importance in every matter concerning the child

30 Everyone has the right … to participate in the cultural life of their choice, but no one exercising [this right] may do so in a manner inconsistent with any provision of the Bill of Rights

33 Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

The limitation of these rights and indeed all rights conferred by the Bill of Rights is, as per Section 36 of the Bill of Rights, allowed in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

Such new legislation as may be under contemplation has to be in a form that can jump through the hoops created in the provisions of the Constitution quoted above. Any limitation of existing rights that are consonant with the Bill of Rights has to be a limitation that is reasonable and justifiable.

Parliament, in weighing the merits of any draft legislation presented to it by the national cabinet, will have to consider whether the “reasonable and justifiable” test is passed by the provisions of the draft. In doing so, Parliament will have to make the reasonable decision of a reasonable decision-maker in the circumstances.

Exactly how to do so is fraught with dangers and difficulties that have been litigated in the past in contexts not unlike firearm control.

The unanimous decision of the Constitutional Court in the Rail Commuters Action Group case spelt out how to go about putting in place reasonable measures. Justice O’Regan put it thus:

“[88] What constitutes reasonable measures will depend on the circumstances of each case.  Factors that would ordinarily be relevant would include the nature of the duty, the social and economic context in which it arises, the range of factors that are relevant to the performance of the duty, the extent to which the duty is closely related to the core activities of the duty-bearer – the closer they are, the greater the obligation on the duty-bearer, and the extent of any threat to fundamental rights should the duty not be met as well as the intensity of any harm that may result.

The more grave is the threat to fundamental rights, the greater is the responsibility on the duty-bearer.  Thus, an obligation to take measures to discourage pickpocketing may not be as intense as an obligation to take measures to provide protection against serious threats to life and limb.  A final consideration will be the relevant human and financial resource constraints that may hamper the organ of state in meeting its obligation.

This last criterion will require careful consideration when raised.  In particular, an organ of state will not be held to have reasonably performed a duty simply on the basis of a bald assertion of resource constraints.  Details of the precise character of the resource constraints, whether human or financial, in the context of the overall resourcing of the organ of state will need to be provided.

The standard of reasonableness so understood conforms to the constitutional principles of accountability, on the one hand, in that it requires decision-makers to disclose their reasons for their conduct, and the principle of effectiveness on the other, for it does not unduly hamper the decision-maker’s authority to determine what are reasonable and appropriate measures in the overall context of their activities.”

In the case then under consideration the Rail Commuters had sued the commuter rail authorities and the police (each of which stoutly contended that the legal responsibility for safety on trains was that of the other) because of the vulnerability of rail commuters to ever burgeoning violent crime of all sorts while using commuter rail facilities in and around Cape Town.

The court decided that the responsibility for the safety of rail commuters was that of the rail authorities. The case has spawned a cottage industry of litigation mounted by commuters who are injured or killed on trains due to criminal activity which occurs due to the negligence of the rail authorities in their provision of security services.

The judgment quoted from above was cited with approval in the seminal Glenister Two decision in which the apex court ruled that parliament needed to make “the reasonable decision of a reasonable decision-maker in the circumstances” when amending the laws against serious corruption in SA.

In any litigation that flows from any unwanted amendments to the regulatory regime that applies to firearm ownership in SA, it will be possible for public interest litigants to raise the various section of the Bill of Rights listed above in support of their contentions that the new legislation is neither reasonable nor justified in our open and democratic order. The approach adopted by the courts in the Glenister and Rail Commuters cases referred to above will inform the way in which the issue is dealt with in such litigation as may be necessary.

The circumstances that pertain in SA today as regards the bodily and psychological integrity of ordinary folk, the high rate of violent crime, the vulnerability of the isolated, the elderly and young children to the ravages of gangsters and other criminals who wield illegal firearms daily, all militate against depriving those who protect their bodies and minds with firearms of the right to do so. In addition, those who belong to organisations of gun-owners or hunters or target shooters could invoke their cultural rights to so belong. Many nervous gun-owners owe their equanimity and psychological integrity to the presence of a firearm in their homes or with them in their cars or both.

Paul Hoffman SC is a director of Accountability Now.