An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Some readers of (or occasional visitors to) this Blog were rather upset when I wrote that I believed the state had both a duty and a right to place severe restrictions on the possession of firearms by private individuals.
“What about our right to life and property!” they shouted. “Without these killing machines we will not be able to shoot and kill the bastards who run around committing crime! How very dare you! The impertinence! Taking away our guns is like taking away our bibles, our boerewors and our rugby heroes!” [No mention of Joost snorting Cat while having sexual relations with THAT woman is allowed either…..]. “Really, next you would force us all to become vegetarians!”
Interestingly, the Institute of Security Studies (ISS) has published some statistics this week which would come in handy if the constitutionality of a law severely restricting the private possession of firearms, is ever challenged in court. As I have argued, although such a law may infringe on some of the rights in the Bill of Rights, the state would almost certainly be able to convince a court that the limitation is justifiable in terms of section 36 of the Constitution because it is reasonable in an open and democratic society based on human dignity, equality and freedom.
In justifying any limitation of rights, the state would be able to quote the following statistics collated by the ISS to bolster its case.
In recent research exploring the dynamics of house robberies and robbers, Dr. Rudolph Zinn of Unisa found that 97% of respondents used firearms in the commission of their crime. More than half of these perpetrators reported personally stealing licenced firearms. Although over the past nine years South Africans have seen a general decline in overall levels of crime, the categories of business robberies, house robberies, and car hijacking have all increased considerably.
Due to their violent and interpersonal nature, government views this “trio” of crimes as disproportionately responsible for citizen perceptions and fear of crime, and has thus prioritized them. It is not surprising that according to the SAPS, firearms were used in the commission of 87% of business robberies, 77% of house robberies and 57% of street robberies in the 2008/09 financial year. Firearms also play a significant role in murder in South Africa. Research into murder trends conducted by the Centre for the Study of Violence and Reconciliation in 2008 found 54% of 1149 murders were committed using firearms.
This trend mirrors data in the National Injury Mortality Surveillance System which show that 53% of murders between 2000-2004 were committed using firearms. It has previously been found that between 1994 and 2003, a staggering 208 090 firearms were lost by, or stolen from licensed gun owners.
The state would therefore be able to argue that because so many firearms have been stolen from licensed gun owners (almost 210 000 over ten years!) and because so many violent crimes were committed with these stolen (but licensed) firearms, it was entirely reasonable and hence constitutional to place a severe restriction on the possession of privately owned firearms. If fewer people were allowed to own firearms, there would be fewer firearms for the criminals to steal. Criminals would have less access to firearms and would therefore not be able to engage in as much firearm-related violent crime.
This seems to me – given the statistics mentioned above – a slam dunk constitutional law argument. Before the gun-lovers go wild with fury, let me just say that this argument is not dependent on showing that the few gun owners who manage to hold on to their licensed firearms, use these firearms responsibly (merely shooting the odd stray dog, say, killing one’s wife and children in self-defense or shooting a dangerous criminal wielding a bread knife).
To pass constitutional muster the state will only have to show that it is reasonable for the state to make a link between a severe restriction on private gun ownership on the one hand, and the need to keep firearms out of the hands of dangerous criminals on the other. These figures show there are at least 208 090 ways in which the state can prove this link.
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