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South Africa: Parliament Considering Measure to Outlaw Possession of Weapons in Public Gatherings

(Feb. 19, 2013) <?South Africa's government recently submitted the Dangerous Weapons Bill, 2012, aimed at banning possession of "dangerous weapons" at public gatherings, to the country's Parliament for consideration. (Dangerous Weapons Bill Before Parliament, NEWS 24 (Feb. 12, 2013).) This measure comes on the heels of the Marikana massacre, in which a few thousand mining workers on strike, some of whom were wielding homemade weapons, clashed with police, and 34 of the miners, two police officers, and two security guards were killed. (Aislinn Laing, Marikana Massacre “Could Have Been Avoided,” THE TELEGRAPH (Oct. 22, 2012).) In his appearance before the Parliament’s police committee, the Minister of Police, Nathi Mthethwa, noted that flaunting of weapons in protests is on the rise, and the proposed legislation seeks to put an end to that. (Wyndham Hartley, Mthethwa Asked for Assurances on Dangerous Weapons Bill, BUSINESS DAY (Feb. 13, 2013).)

The legislation prohibits possession of dangerous weapons, firearms, and replicas or imitations of firearms, in certain circumstances. Possession of any dangerous weapon or any firearm, replica, or imitation firearm by a person “under circumstances which may raise a reasonable suspicion” that the person intends to use it for unlawful purpose is an offense and, on conviction, the offender is subject to a fine or a prison term of up to three years. (Dangerous Weapons Bill, 2012, § 2, B37-2012, South African Government portal, (last visited Feb. 13, 2013).

The term dangerous weapon is defined broadly and includes “any object, other than a firearm, designated as a weapon and capable of producing death or seriously [sic] bodily harm.” (Id. § 1.) The legislation stipulates various factors to be taken into account when considering whether a person had an intention to use any of the prohibited items for unlawful purpose including:

a) the place and time where the person is found;

b) the general behavior of the person, including the making of any threat or any intimidating behavior;

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 a drug deal, gang association, or any organized 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. (Id. § 2)

The proposed legislation also prohibits the carrying of dangerous weapons, firearms, and certain other items at public gatherings and demonstrations. It bans participants from carrying air guns, firearms, imitation firearms, or muzzle-loading firearms, as well as any dangerous weapons, unless permits for doing so have been issued by the appropriate authority. (Id. § 4.)

There are concerns regarding the reach of the bill. Some commentators fear that the bill will result in police abuse. Member of Parliament Pieter Groenewald expressed concern that it “would become an instrument of unlawful arrest.” (Hartley, supra.) Others fear that the broad definition of the term “dangerous weapons” would take away the individual’s right and ability to defend him or herself. Dianne Kohler Barnard, a Member of Parliament who supports the legislation, acknowledged that the definition of the term needs to be clarified. Thousands of people, including members of law enforcement, are said to have complained about the fact that the legislation may outlaw defensive weapons like pepper spray. (Id.) However, Mthethwa insisted that the legislation is meant to outlaw bringing weapons to protests and not to render the public defenseless. (Id.)