Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
27 October 2009

Guns kill people (with a little help of the people who own them)

When my father died, a question arose about who of us five siblings would inherent my father’s rifles which he, in turn, had inherited from his father. As the only son in the family who also carries my grandfather and father’s name, I was the obvious choice. Luckily my sister is a big game hunter (don’t ask), so to my great relief she was happy to take over the rifles. I do not want any guns near my house. They are dangerous. They are greasy and dirty. They kill people (and they kill animals too, apparently).

So, for once I fully support a statement President Jacob Zuma has made relating to the high crime rate. After months of tough talk on the need for police to shoot to defend themselves (making dangerous, uninformed and misguided statements as he went along), Zuma told supporters at an ANC Siyabonga (“thank you”) rally at Lenyenye stadium near Tzaneen on Sunday, that the country’s gun laws needed review.

“We are worried that in this country that has so many levels of violent crime, (there are) too many guns in the hands of citizens,” he said. “We need to take a look at the law, at whether we should all have guns.”

I could not agree more. My proposal would be to go the route of the United Kingdom and Japan where private gun ownership is all but banned. Anyone found in possession of a gun and who had not been issued with a special permit to hold the gun, which permit would only be issued in the most extraordinary circumstances, would be guilty of a criminal offense and liable for a mandatory five year prison sentence.

I know that the pro-gun lobby does not like this kind of talk. Guns do not kill people they say. People kill people. Well, yes, people with guns kill other people with or without guns, actually. If we ban all guns and make it almost impossible for anyone to get their hands on a gun, I for one would feel a bit safer. Maybe it’s just me, but not being Chuck Norris or Vernon Koekemoer I would rather take my chances with a guy wielding a bread knife than with a guy wielding a semi-automatic machine gun.

Members of the pro-gun lobby also say – having read too much stuff on the Internet from the pro-gun nutters living in the United States – that limiting or entirely prohibiting the possession of guns would interfere with our constitutional rights. Well, I have re-read the Bill of Rights (the South African Bill of Rights, that is) and I cannot find the right to own a gun anywhere in that document.

The Bill of Rights does include a right to life and a right to freedom and security of the person so I guess at a push one could argue that a ban on the possession of guns would constitute a limitation on one of these rights. I am not so sure such an argument would find favour with our courts. One will have to show that owning a gun makes you safer and protects you against violent crime, something that would be difficult to do. 

As so many people are actually killed by the very guns owned by them or their loved ones and as the statistics on gun ownership and its link to violent crime are highly contested (and often manipulated), a court would not easily buy the counter-intuitive argument of the gun lobby that a society awash in semi-automatic guns is safer than one where guns are banned.

The state would be able to argue (rather persuasively, I think) that by implementing an almost total ban on guns the state is doing no more than fulfilling its obligation to take steps to protect our right to life and security of the person. An almost complete ban on the possession of guns would therefore not limit these rights at all but would, instead, constitute an attempt to enhance and protect these rights.

But even if some gun-happy judge somewhere agrees with the pro-gun lobby that a ban on the possession of guns limits an individual’s right to life and bodily integrity because the ban would be imperfect and would prevent gun owners from defending themselves against criminals wielding not bread knives but semi-automatic rifles, I cannot see how a plausible argument could be made that this limitation would not be justifiable in terms of the limitation clause.

The state would be able to argue that the ban on guns was exactly aimed at protecting ordinary South Africans from violent crime – a manifestly important purpose – and that eradicating guns from society was manifestly aligned with the vision of an open and democratic society based on human dignity, equality and freedom. It would also be able to produce statistics of violent crime in countries awash with guns (the US and Brazil come to mind) compared with countries where gun ownerships is severely limited (Sweden, Japan and Singapore come to mind) to show that a plausible argument could be made that the ban on guns can be effective in bringing down violent crime.

The state would be able to show that in South Africa (awash in legal and illegal guns) there is murder rate per capita of 0.496008 per 1,000 people, while in other countries where guns are outlawed (for example Japan where that rate is 0.00499933 per 1,000 people and in the United Kingdom it is 0.0140633 per 1,000 people) the murder rate is much, much lower.

In any case, even if one cannot prove that a ban on guns would bring down the crime rate, I would still support a ban on guns. The widespread ownership of guns seems to me in conflict with the ethos of the Constitution. It dehumanizes and brutalizes us all when crazies run around with guns and we see guns everywhere around us. It cheapens life and valorises violence. It is a social ill in and of its own, regardless of whether the possession of guns has any influence on the rate at which South Africans kill their children and their wives, their fellow citizens and the foreigners they have taken a dislike to.

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