Heritage Cases

On 21 May 2021 the Civilian Secretariat for Police (CSP) published, for public comment, the (Draft) Firearms Control Amendment Bill [the draft Bill], with a 45 day public commenting period, and accompanied by a Socio-economic Impact Assessment (SEIA) (SAPS 2021a, 2021b, 2021c). The draft Bill will replace the Firearms Control Amendment Bill (2015) and aims to strengthen the Firearms Control Act (2000). Police Minister Bheki Cele argued the draft Bill in support of 3 main principles (SANews 2021): o Crime prevention; o Policy principles of non-proliferation of firearms in South Africa (‘Gun Free’ principles); and o The strengthening of firearms and ammunition licencing regulation. Publication of the draft Bill for public comment was met by a spate of early outrage from concerned organizations, lobby- and interest groups, and individuals; - in short, by civil society at large. Early opposition referenced the legal process followed: A 2012 draft of the Bill having had been shelved in 2015, following extensive public consultation, tailed by a 2018 draft, deferred before it made it into the public domain (Bateman 2021; De Wet 2021; Mack 2021), after which the 2021 draft Bill, described as - “More radical, more restrictive, quite potentially more unconstitutional, and more shocking than the industry expected” (Newzroom Afrika 2021) was published for comment. Preferential Stakeholder Engagement and the quality of research informing the draft Bill have been raised as serious concerns. And with similar preferential or selective treatment feared to be applied, pertaining to the Public Participation Process (PPP) (Newzroom Afrika 2021; Paratus 2021a). The central and primary civilian concern raised in opposition to the draft Bill, which amongst others, intends to ban self-defence as a valid reason to apply for a firearms licence, is, as reasonably expected, self-defence: A citizenry envisioned vulnerable and defenceless against high and ever-increasing crime rates in South Africa, with a licenced firearm deemed by many a last line of defence. Concerns raised extended to inequality between the protection of ordinary citizens and that of political elites. Not only SAPS resource constraints, but alleged nefarious political agendas in police- and related industry conduct contest public trust in the draft Bill (Bateman 2021; Big Daddy Liberty 2021; Cameron 2021; Kleder 2021; Mack 2021; Morning Shot 2021a; Newzroom Afrika 2021; Paratus 2021a; Venter 2021). Many fear the draft Bill, without any mitigation measures proposed, aside from the SEIA’s vague and insufficient “public education,” to result in an increase of firearms in illegal possession, - an industry that do not comply with unpopular legislation (Morning Shot 2021; Venter 2021). Public view holds the draft Bill as, if not a violation of, a serious impediment to the Constitutional right to life and safety (Big Daddy Liberty 2021; Morning Shot 2021a). Impact of the draft Bill will not be limited to self-defence and will result in a ripple-effect, affecting a number of industries, with those industries inferred to so be most affected, preliminary summarised as (Bateman 2021; Big Daddy Liberty 2021; Business Insider SA 2021; EDC for the EDG 2021; De Wet 2021; Mack 2021; Newsroom Africa 2021; Paratus 2021a): 1) Restrictions of fire-arms for purposes of general self-defence; 2) Concerns raised with reference to self-defence, specifically applicable to women (and children), and Gender Based Violence (GBV); 3) Negative impact and decline / demise of the Private Security Industry (PSI), including the training in firearms and firearms dealing industries; 4) Negative impact and decline / demise of the sports-shooting and hunting industry, including wildlife- and conservation research; 5) Negative impact and decline / demise of the private eco-tourism industry, including accommodation and wildlife conservation; and 6) Abolishment of the firearms collecting industry. The principle of public dispossession, instilled through the adoption of poorly researched and consulted legislation such as the draft Bill, was voiced as a major concern (Big Daddy Liberty 2021; Newzroom Afrika 2021; Venter 2021). o Recommendations: 1. On 21 May 2021 the CSP published, for public comment, the draft Bill, with a 45 day public commenting period. It is herewith recommended that SAHRA instructs the Police Minister, Bheki Cele, to withdraw, with immediate effect, the draft Bill, and with the withdrawal to be executed prior to expiration of the 45 day public commenting period. 2. It is herewith recommended that SAHRA requests a Heritage Impact Assessment (HIA) as compulsory heritage compliance requirement to the ‘Planned Development’, the draft Bill. o The requested HIA is argued as a stand-alone HIA, to be called for in terms of the National Heritage Resources Act, No. 25 of 1999 (HRA 1999), Section 38 – Heritage Resources Management. o With reference to the NHRA 1999, Section 38(1), it is argued that the draft Bill will: 1) Impact (have effect) on a surface area, the extent of which will be the geographical extent of South Africa [with reference to the NHRA 1999, Section 38(1)(a) – 38(1)(d)]; and 2) Where reasonably inferred / known impact on heritage resources, as defined and protected by the NHRA 1999 will occur, with inferred resource impact preliminary summarized as - “The legislation [NHRA 1999] requires that all heritage resources, that is, all places or objects of aesthetic, architectural, historical, scientific, social, spiritual, linguistic or technological value or significance are protected. Thus any assessment should make provision for the protection of ALL these heritage components, including archaeology, shipwrecks, battlefields, graves, and structures over 60 years, living heritage and the collection of oral histories, historical settlements, landscapes, geological sites, palaeontological sites and objects” (SAHRA 2007); thus notwithstanding the NHRA 1999, Section 38(1)(e) necessity for a category of development provided for in Regulations by SAHRA or a PHRA, but in accordance with resources directly protected by the NHRA 1999, and in order to ensure protection of the National Estate (NHRA 1999, Section 3) in accordance with the general principles for heritage resources management, as per the NHRA 1999, Section 5, in general, and with specific reference to the NHRA 1999, Section 5(7)(a) – 5(7)(f). o It is recommended that the HIA: -  Include at minimum a comprehensive Desktop study; and  The Phase 1 component of the HIA be focussed on, though not limited to, the NHRA 1999, Section 38(3): (d) An evaluation of the impact of the development on heritage resources relative to the sustainable social and economic benefits to be derived from the development; (e) The results of consultation with communities affected by the proposed development and other interested parties regarding the impact of the development on heritage resources. o The purpose of the HIA is to inform: - 1) The HIA provides heritage specific information on a proposed development to SAHRA, mandatory responsible for the implementation of the NHRA 1999, and as Competent Authority with reference to Section 38 – Heritage Resources Management, for purposes of responsible decision making; and 2) The HIA should be made available to Interested & Affected Parties (I&AP) during the 45 day commenting period (re-submission of the draft Bill), and including during the full Public Participation Process (PPP) of the draft Bill, for purposes of public evaluation and comment. NOTE 1: SAHRA retains the right to diverge the HIA to PHRA level, be it to provincial or smaller geographic units, such as district- or local municipal level, or any other defined cultural or heritage units for HIA management purposes. NOTE 2: The heritage category ‘Objects’ is with reference to the draft Bill reasonably inferred to be limited to ‘firearms collections.’ SAHRA have, with publication of the draft Bill, and in compliance with the legislated process, published a notice to the effect of the temporary suspension of the processing of all heritage firearms (see NHRA 1999, Section 32) export permits, pending the outcome of the draft Bill. ‘Firearms collections’, as per the definition of heritage objects, or otherwise, should be included in the HIA, with such information inferred to be obtainable from SAHRA (heritage objects) and SAPS (living heritage) respectively. NOTE 3: It is requested that SAHRA makes available for purposes of HIA, upon request, the Cultural Heritage / Conservation Management Plan (CMP) of SAPS as per the Regulations (2017) in terms of the NHRA 1999, Section 9, for cultural heritage resources, the maintenance and conservation of which is the responsibility of State Departments and supported bodies, and thus so applicable to SAPS. Should no such SAPS CMP exist, is it requested that SAHRA instructs the SAPS to commission the relevant CMP, - and for the CMP to be made available, timeously and upon request, for HIA purposes. NOTE 4: SAPS heritage education and awareness: It is at present unknown whether SAPS follows a formal or informal heritage education program, or if such program is managed in-house, or outsourced / consulted. It is herewith requested that SAPS submits to SAHRA, in accordance with the NHRA 1999, Section 51(5)(a), 51(5)(b) and 51(5)(g), information on SAPS heritage education, formal or informal, managed in-house or outsourced / consulted, and for this information to made available by SAHRA, upon request, for HIA purposes. This report is made to SAHRA, mandatory responsible for the implementation of the NHRA 1999, directly on SAHRIS, and without any contact with the accused’s office.