CHAPTER SIX

REGULATION OF ARMAMENTS PRODUCTION AND TRANSFER

AREAS OF REGULATION AND CONTROL

Government control of defence related industries is effected at the national level through legislation, national policy, rules and regulations and via the legislature in terms of its legislative, oversight and budgetary functions. Regulation and control functions can be grouped under the following six headings:

• International arms control regimes and mechanisms.
• National arms control.
• Transparency.

Rationale for Regulation

As a responsible member of the international community, South Africa is committed to maintaining integrity in the manufacture, production, possessing and trade of armaments. Comprehensive and responsible regulation of many of defence related industry products is necessary. The following considerations underscore the requirement for regulation:

• The nature of the products produced and the potential dangers posed by the uncontrolled development, production, manufacture and trade of armaments.
• Government’s commitment to non-proliferation, disarmament, restraint and effective arms control.
• Cognisance of the fact that government can directly influence the viability of the domestic defence related industry.

INTERNATIONAL ARMS CONTROL REGIMES AND MECHANISMS

Defence related industries are subject to limitations and controls stemming from the government’s policies on non-proliferation, disarmament and arms control. In terms of these policies, South Africa is a member, aspires to membership or supports various international bodies and conventions which promote various types of controls.

South Africa exercises a dual process of control for purposes of non-proliferation of weapons of mass destruction and of other arms and related dual-use capabilities that could be used in the development and production of weapons of mass destruction and/or conventional arms. Various international agreements and regimes aim to control the transfer and use of certain types of weapons and related technologies and to build confidence and international transparency in the trade and transfer of such weapons and technologies.

Non-Proliferation and Disarmament of Conventional Armaments

UN Register for Conventional Arms. This Register is a confidence-building mechanism in terms of which member states are required to reveal imports and exports of some seven categories of major weapons systems. The Register is voluntary in character and recognizes the States sovereign right to provide data at various levels of transparency. South Africa participates in the Register by reporting on an annual basis.

Convention on Prohibitions or Restrictions on the Use of Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects (CCW). (Also known as the Certain Conventional Weapons Convention or the Inhumane Weapons Convention). This Convention has four protocols in terms of which the use of certain conventional weapons is regulated, such as non-detectable fragments, land mines, booby traps and other devices, incendiary weapons and blinding laser weapons. South Africa became a State Party to the CCW on 13 March 1996 and handed in its Instrument of Ratification to be bound by the revised Protocol II and new Protocol IV on 26 June 1998.

Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction. On 26 June 1998 South Africa deposited its Instrument of Ratification of this Convention at the Office of the Secretary General of the United Nations. The Convention will enter into force after 40 ratifications. In terms of the Convention, State Parties will be obligated not only to ban the use of anti-personnel mines but also to ensure their destruction. With the final phase of the destruction of its stockpiled anti-personnel mines in October 1997, South Africa fulfilled the destruction obligation in terms of this Convention.

Non-Proliferation of Delivery Systems of Weapons of Mass Destruction

Missile Technology Control Regime (MTCR). Member countries of this Regime control missile related technologies and equipment that could be used in the development and manufacture of unmanned delivery systems (ballistic or cruise missiles) for nuclear, chemical and biological weapons. South Africa became a member on 13 September 1995. MTCR controls are implemented by the South African Council for the Non-Proliferation of Weapons of Mass Destruction.

Chemical and Biological Non-Proliferation and Disarmament

Chemical Weapons Convention (CWC). South Africa ratified the Convention on 13 September 1995. The Convention prohibits the development, production, acquisition, retention, stockpiling, transfer and use of chemical weapons. It further applies a strict international control mechanism on scheduled toxins, chemicals and chemical precursors. It also regulates the production, processing and consumption of chemicals that possess properties of chemical warfare agents or can be converted into chemical warfare agents. Most of these are dual-use, in that they have legitimate commercial uses. The CWC requires States Parties to make regular declarations on specified military and industrial activities in the chemical field, including the declaration of riot control agents. Declarations are verified through on-site inspections by inspection teams operating from the headquarters of the Organisation for the Prohibition of Chemical Weapons (OPCW) in The Hague, which administers the CWC. The South African Council for the Non-Proliferation of Weapons of Mass Destruction (NPC) is the national authority for the implementation of the Convention. The Non-proliferation of Weapons of Mass Destruction Act (Act No. 87 of 1993) is the enabling legislation. The South African Ambassador to the Kingdom of the Netherlands is South Africa's Permanent Representative to the OPCW.

Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (BTWC ). South Africa has been a State Party to this Convention since 1975. Although the Convention prohibits biological weapons, it does not provide a mechanism to verify States Parties' compliance. The so-called BTWC Ad Hoc Group has been mandated to negotiate a verifiable compliance protocol to the Convention which is expected to be completed by the year 2000. South Africa, on a voluntary basis, participates annually in the exchange of information and data on biological capabilities and facilities in conformity with the standardized procedure as agreed by the United Nations General Assembly. The South African Council for the Non-Proliferation of Weapons of Mass Destruction regulates the implementation of the Treaty in terms of the Weapons of Mass Destruction Act.

Australia Group. The Australia Group is an informal group of countries which endeavours to control all items which could be used in the development and production of chemical and biological weapons. South Africa is not a member of this group, but the South African Council for the Non-Proliferation of Weapons of Mass Destruction decided to implement Australia Group-type controls under the Non-proliferation of Weapons of Mass Destruction Act, given the need to control the transfer of chemical and biological agents and toxins which are as yet not covered by the chemical and biological conventions.

Nuclear Non-Proliferation and Disarmament

Treaty on the Non-Proliferation of Nuclear Weapons (NPT). The NPT was concluded in 1968 and entered into force in 1970. The Treaty established an international framework for preventing the spread of nuclear weapons. Its membership at the beginning of 1997 stood at 187. South Africa became a State Party to the NPT in July 1991. The broad objectives of the Treaty are to:

• prevent the proliferation of nuclear weapons to states other than the five recognised as Nuclear Weapon States in 1968 - namely the United States, the Soviet Union (Russia has since succeeded to these obligations), the United Kingdom, France and China. All other States Parties are required to conclude safeguards agreements with the International Atomic Energy Agency to verify the peaceful nature of their nuclear programs;
• facilitate peaceful nuclear cooperation between Treaty members; and
• work towards nuclear disarmament.

The International Atomic Energy Agency (IAEA). The IAEA as an autonomous intergovernmental organisation was founded by the United Nations in 1957, with the mandate "to accelerate and enlarge the contribution of atomic energy to peace, health and prosperity throughout the world". South Africa is a founder member of the IAEA and, as the most advanced country in the nuclear field in Africa, was a "designated" member of the Agency's Board of Governors (the Agency's principal policy-making body) until 1977. At the June meeting of the Board in 1995, South Africa was again designated to resume a seat on the Board as the designated member for the African region. In terms of the Nuclear Energy Act, (1993), the Atomic Energy Corporation is responsible for implementing the Safeguards Agreement with the IAEA, as required by the Treaty on the Non-Proliferation of Nuclear Weapons, on a national level.

African Nuclear Weapon Free Zone Treaty (ANWFZ). South Africa played an active role in the negotiation of this Treaty, which is also known as the "Pelindaba Treaty" as it was adopted at the Pelindaba headquarters of the Atomic Energy Corporation in South Africa. The headquarters of the African Commission on Nuclear Energy (AFCONE) envisaged by the Treaty is to be situated in South Africa. The Treaty will enter into force upon the date of deposit of the twenty-eighth Instrument of Ratification. South Africa deposited its Instrument of Ratification with the Secretary General of the Organisation for African Unity on 27 March 1998.

Comprehensive Nuclear Test Ban Treaty (CTBT). South Africa actively participated in the negotiations with regard to the conclusion of a CTBT. South Africa signed the Treaty on 24 September 1996. The Treaty establishes a sophisticated network of monitoring stations to verify compliance. It will enter into force after ratification of 44 designated states. The treaty pays for monitoring stations on South African territory at Boshoff, Marion Island and Antarctica.

Nuclear and Dual Use-use Nuclear Export Controls

Zangger Committee. The Zangger Committee, of which South Africa became a member on 21 October 1993, defines and monitors trade in goods and equipment specifically designed for nuclear use. The Nuclear Energy Act assigns the control over Zangger and Nuclear Supplier Group (Part One Items) to the Minister of Mineral and Energy Affairs, which he exercises in consultation with the Atomic Energy Corporation. The Minister may delegate some of his powers to the Atomic Energy Corporation.

Nuclear Suppliers Group (NSG). South Africa became a subscribing member on 5 April 1995. Members of the Group endeavour to control nuclear related dual-use equipment, material and technology. The Nuclear Suppliers Group controls both nuclear material, equipment and technology (Part One) and nuclear related dual-use items (Part Two). Nuclear Supplier Group controls are implemented by the Atomic Energy Corporation (for Part One direct-use nuclear materials and equipment) and the South African Council for the Non-Proliferation of Weapons of Mass Destruction (for Part Two dual-use capabilities).

Other Non-Proliferation and Military Dual-Use Controls

Wassenaar Arrangement. This newly established export control group replaced the former COCOM (NATO alliance export control group). The Wassenaar Arrangement has been established in order to contribute to regional and international security and stability, by promoting transparency and greater responsibility in transfers of conventional arms and military dual-use goods and technologies. The current participating states, through their national policies, seek to ensure that transfers of these items do not contribute to the development or enhancement of military capabilities which undermine these goals, and are not diverted to support such capabilities. South Africa is currently not a member of the Wassenaar Arrangement.

NATIONAL ARMS CONTROL LEGISLATION

Government control of armaments and related equipment is effected at national level in six separate areas. Each area has its own set of enabling legislation and resulting structures. The six areas of government control at national level are:

• Conventional armaments.
• Weapons of Mass Destruction and Dual-use items.
• Firearms, Ammunition and Teargas.
• Explosives.
• Nuclear Related Technology.

Duplicate and overlapping responsibilities appear in all of the above Acts. Section 26 of the Import and Export Control Act, 1963 (Act 45 of 1963) further contributes to possible manipulation and interpretation of control measures. Customs and Excise legislation (Act 91 of 1964) bears witness to major shortcomings in respect of control measures regarding armaments as controlled in the Armaments Development and Production Act, 1968.

Table 6.1: National Arms Control Legislation, Control Structures and Responsibility

Note
It should be noted that a certain amount of duplication and overlapping of responsibilities appear in the above Acts.

CONVENTIONAL ARMAMENTS

Governing Legislation

Armaments Development and Production Act (Act 57 of 1968). This provides, inter alia, for the existence of Armscor, its mandate, role and functions. The Act also provides for control of the import and export of conventional arms (The authority for approval in this regard rests with the Minister of Defence who is advised by the National Conventional Arms Control Committee).

Control Structure : The National Conventional Arms Control Committee

Purpose. The National Conventional Arms Control Committee (NCACC) evaluates, against national considerations, applications for the research, development, manufacturing, marketing, contracting, export, import and transit of armaments. The purpose of the National Conventional Arms Control Committee is to exercise political control over arms trade and transfers. The import and export of conventional weapons into South Africa and the transit of such arms through South Africa to neighbouring or foreign states shall be subject to control.

Defence Related Industries Policy. The National Conventional Arms Control Committee was mandated by Cabinet to formulate this White Paper for the defence related industries. However, no single government organisation has overarching responsibility for policy for these industries. This situation has led to fragmented formulation of policy on this issue by government, leading to uncertainty in both government and industry.

NCACC Authority & Control. The National Conventional Arms Control Committee is vested with the political authority and control over the export, marketing, import, conveyance in transit, development and manufacture of armaments, as well as the authorisation of a local entity to enter into contractual negotiations concerning conventional arms with another entity outside South Africa. The National Conventional Arms Control Committee controls the trade and transfer processes to ensure that arms trade and transfer policies are not unduly influenced by commercial interests and pressures, and that the guidelines, principles and criteria are observed. Members of the National Conventional Arms Control Committee consist of Ministers and Deputy Ministers appointed by the President.

The National Conventional Arms Control Committee is empowered to implement Government policies on arms transfers and to protect and promote national economic and security interests related to trade in conventional arms. The National Conventional Arms Control Committee is required to report on a regular basis concerning the control and regulation of conventional arms and on the rendering of services to the Cabinet and Parliament.

The functions of the National Conventional Arms Control Committee include the implementation of management and control processes to register companies that manufacture and develop armaments; to prescribe rules and criteria to effect conventional arms control and the rendering of services related to conventional arms; to regulate the transfer of armaments through the authorisation of permits and to conduct investigations into any trade relating to conventional arms or services.

Government will support the export initiatives of armament manufacturers by permitting industry to contract and honour obligations which have been duly approved in terms of the conventional arms control system. Government however reserves the right to prohibit or withdraw such support should it be in conflict with, or irreconcilable with international or national interest at any given time.

The National Conventional Arms Control Committee secretariat is referred to as the Directorate of Conventional Arms Control (DCAC) and is located in the Defence Secretariat. The Directorate of Conventional Arms Control is responsible for implementing the processes and procedures decided on by the National Conventional Arms Control Committee. Permit processing is conducted by the Directorate of Conventional Arms Control. The process consists of departmental scrutiny by several Government departments; recommendation by a committee of Directors-General and a final decision by the National Conventional Arms Control Committee.

Conventional Arms Trade Control Process

Applications for arms export authorisation require a full process of assessment and scrutiny, based on the following four levels:

Directorate of Conventional Arms Control. At an initial level, a Processing Unit in the Ministry of Defence administers and processes applications for prescribed conventional arms trade. This is attended to by the DCAC.

Departmental Review. At the second level, designated government departments receive certain applications individually for review and assessment in accordance with prescribed criteria.

Scrutiny Committee (SC). At the third level a Scrutiny Committee, consisting of the Secretary for Defence and the Directors General of the Department of Foreign Affairs, South African Secret Service and Trade and Industry, scrutinises inputs which have been collated by the Processing Unit and submits a recommendation to the National Conventional Arms Control Committee (NCACC).

National Conventional Arms Control Committee (NCACC). The fourth and last level of political oversight is conducted through the National Conventional Arms Control Committee, consisting of several ministers and deputy ministers, with a chairperson with no line function responsibility for the industry or exports. The Minister of Defence is responsible for the issuing of permits as prescribed by section 4[c] of the Armaments development and Production Act, 1968 (Act No 57 of 1968 as amended).

Penalties can be incurred by companies or individuals who disregard or hinder processes related to the control over conventional arms. Individuals and companies have the right to obtain an explanation for decisions taken by the National Conventional Arms Control Committee and to appeal against such decisions.

Control Measures

Principles. Conventional arms control measures are based on the principles of the United Nations Charter, International Law, recognised international arms control systems, including economic, ethical, political, military and security considerations. Such controls will be managed by the National Conventional Arms Control Committee in a manner that ensures a responsible approach to arms transfers. Government affirms:

• that in accordance with the principles of the Charter of the United Nations, it holds the view that the reduction of world military expenditures could have a significant positive impact for social and economic development of all peoples;
• that all sovereign countries have the inherent right of self-defence in terms of the Charter of the United Nations;
• the need to ensure that transferred conventional arms are not used in violation of the purposes of the Charter of the United Nations;
• that excessive and destabilizing conventional arms build-up pose threats to national, regional and international peace and security. Sales to countries in war-prone regions should be continually evaluated and reviewed to limit the possible escalation of regional conflict;
• the need for effective national mechanisms for controlling the transfer of conventional arms and related technologies; and
• its support and commitment to provide data and information as required by the United Nations resolution establishing the Register of Conventional Arms, taking into account national interests.

Effective Arms Control. The National Conventional Arms Control Committee will ensure that South Africa, as a responsible member of the international community, exercises due restraint in the transfer and trade of arms. In order to further the general aim of an international co-operative and common approach to security, Government will promote an effective arms control system, exercise due constraint in the transfer of conventional arms and related technologies by taking the following into account:

• Respect for human rights and fundamental freedoms in the recipient country.
• An evaluation based on the United Nations Universal Declaration of Human Rights and the African Charter on Human and People’s Rights. Due consideration will be given especially to cases where the political, social, cultural, religious and legal rights are seriously violated by the authorities of that country.
• The internal and regional security situation in the recipient country, in the light of existing tensions or armed conflicts.
• The record of compliance of the specific country with regard to international arms control agreements and treaties.
• The nature and cost of the arms to be transferred in relation to the circumstances of the recipient country, including its legitimate security and defence need, and the objective of the least diversion of human and economic resources for armaments.
• The degree to which arms sales are supportive of South Africa’s national and foreign interest.

Transfers and Trade. Transfers and trade will be avoided where it would be likely to:

• be used for the violation or suppression of human rights and fundamental freedoms.
• contravene South Africa’s commitments, in particular its obligations under arms embargoes adopted by the United Nations Security Council and other arms control agreements or responsibilities in terms of internationally accepted custom.
• endanger peace by introducing military capabilities into a region, or otherwise contribute to regional instability and negatively influence the balance of power.
• be diverted within the recipient country or be re-exported for purposes contrary to South Africa’s policies.
• have a negative impact on South Africa’s diplomatic and trade relations with other countries.
• support or encourage terrorism.
• be used for purposes other than legitimate defence and security needs of the recipient country.
• contribute to the escalation of regional conflicts.

Arms Trade Permits

Various types of permits, as prescribed by section 4[c] of Act 57 of 1968, have been instituted to ensure a legitimate mechanism that is essential for a responsible control system. The following permits are required:

Development and Manufacturing Permit. Permits must be issued prior to the development and manufacturing of armaments by the Minister of Defence or by a person authorised by him/her.

Marketing permit. No armaments shall be marketed within or outside the Republic; except under the authority of and in accordance with the conditions stated in a permit issued by the Minister of Defence or by a person (presently the Secretary for Defence) authorised by him/her.

Contracting authorisation. Contracting means the process of entering into a firm commitment by a local entity to supply armaments to another entity outside South Africa. A marketing permit does not constitute an authority to the marketing permit holder to enter into a contractual commitment with another party for the export of armaments, unless such a contract or the acceptance of an order is approved in advance. Contracting authorisation is only applicable when negotiating with foreign entities. In order to enter into contractual negotiations with the purpose of concluding a contract, companies have to apply for contractual authorisation. This contracting authorisation is effected in due consultation with the National Conventional Arms Control Committee, in terms of the prescribed four level assessment and approval process.

Export permit. No armaments shall be exported from the Republic except under the authority of and in accordance with the conditions stated in a permit issued by the Minister of Defence or by a person (presently the Secretary for Defence) authorised by him/her.

Import Permit. No armament shall be imported into the Republic, except under the authority of and in accordance with the conditions stated in a permit issued by the Minister or a person (presently the Secretary for Defence) authorised by him/her.

Transit Permit. No weapons in transit to other countries may be shipped across South African territory without the authority of and in accordance with the conditions stated in a permit issued by the Minister of Defence.

Inspectorate

Role. Cabinet has approved the principle of an independent inspectorate for defence related industries. Such an inspectorate will ensure that all levels of the National Conventional Arms Control Committee process are subject to independent scrutiny and oversight and are conducted strictly in accordance with the principles, policies and guidelines of the National Conventional Arms Control Committee. The inspectorate will make periodic reports to the appropriate parties and parliamentary oversight bodies.

Reporting and Information Exchange. The National Conventional Arms Control Committee submits detailed quarterly reports on all arms transfers to the Cabinet. In accordance with the policy guidelines provided by Cabinet, annual reports on armament export statistics are also provided to Parliament and the general public in which the country, category of arms and total value of arms exported in that category during the past year are reflected. The attainment of full arms transfer disclosure is balanced against the need in some instances to be discrete. Government will consider engagement in the following assistance and information exchange:

• assistance in the establishment of effective national mechanisms in accordance with international practices for controlling and regulating the transfer of conventional arms and related technology; and
• information in respect of national legislation and practices in the field of transfers of conventional arms and related technology and on mechanisms to control these transfers.

Product Classification. Conventional arms, products and technologies for which a permit application has been received will be dealt with in accordance with the following product categorisation system.

Category A. Sensitive, Major Significant Equipment (SMSE). SMSE comprises conventional implements of war that could cause heavy personnel casualties and/or damage and destruction to material, structures, objects and facilities. Examples are artillery, bombs, grenades and Armoured Fighting Vehicles.

Category B. Sensitive Significant Equipment (SSE). SSE comprises all types of hand held or hand carried assault weapons of a calibre smaller than 12,7mm. All assault rifles, machine guns, pistols and related small arms and ammunition are included in this category.

Category C. Non-sensitive Equipment (NSE). NSE comprises all support equipment usually employed in the direct support of combat operations that have no inherent capability to kill or destruct, although, if employed in conjunction to SMSE, they could have a multiplier effect. Examples are radars, meteorological stations, radio equipment, support vehicles and aircraft and recovery equipment.

Category D. Non-lethal Equipment (NLE). NLE is limited to purposely designated de-mining and mine clearing and mine detecting equipment, all non-lethal pyrotechnical and riot control products and related equipment. Examples are mine detectors, signal flares, baton rounds and teargas.

Category E. Not for Sale (NFS). NFS items comprise all those defence or related products that are not allowed to be sold, such as anti-personnel landmines.

NON-PROLIFERATION OF WEAPONS OF MASS DESTRUCTION AND DUAL USE ITEMS

Governing Legislation

The Non-proliferation of Weapons of Mass Destruction (Act 87 of 1993). This act covers the transfer of technology, materials, components and dual-use capabilities related to weapons of mass destruction. It also provides for the establishment of the South African Council for the Non-Proliferation of Weapons of Mass Destruction (NPC) which is controlled by the Department of Trade and Industry.

Control Structure : The South African Council for the Non-Proliferation of Weapons of Mass Destruction (NPC)

The South African Council for the Non-Proliferation of Weapons of Mass Destruction (NPC) acts as South Africa’s national authority for the control over all dual-use capabilities.

Dual-use capabilities are defined as those capabilities relating to technology, expertise, services, materiel, equipment and facilities which can contribute to the proliferation of weapons of mass destruction, but which could also be used for other purposes, including conventional military or commercial use. Dual-use items and technologies are controlled in terms of the Missile Technology Control Regime and Part 2 of the Nuclear Supplier’s Group of which South Africa is a member.

The Minister of Trade and Industry is responsible for the South African Council for the Non-Proliferation of Weapons of Mass Destruction, and its members are appointed by the Minister.

Objectives of the South African Council for the Non-Proliferation of Weapons of Mass Destruction.

• To protect the interests, carry out responsibilities and fulfil the obligations of South Africa in accordance with national non-proliferation policy and the provisions of the Act.
• To meet the State’s undertakings regarding international non-proliferation treaties, conventions and regimes to which South Africa is party.
• To advise the Minister on any matter which it deems necessary and which falls in the purview of the Act.

The South African Council for the Non-Proliferation of Weapons of Mass Destruction is tasked to exercise control over the transfer of technology, materiel and equipment which could be used in the production of weapons of mass destruction. This specifically relates to:

Nuclear Weapons Related Materiel and Technology. The Nuclear Suppliers Group Part One, dual use nuclear capabilities, is controlled in terms of the Non-Proliferation Act.

Missile Related Technology and Equipment. South African defence technology and items which could be used in the development of ballistic and cruise missiles (delivery systems) are controlled by the South African Council for the Non-Proliferation of Weapons of Mass Destruction. This relates directly to the Missile Technology Control Regime.

Chemical and Biological Weapons Related Controls. The legally enforces the Chemical Weapons Convention. Although the Biological and Toxin Weapons Convention requires States Parties to implement measures to prevent transfers of biological agents and toxins, the Treaty does not prescribe specific control measures or a list of controlled items.

Control Process of the South African Council for the Non-Proliferation of Weapons of Mass Destruction

Regulations. The regulations in terms of Section 13 of this Act were published on 14 October 1994 as Regulation No R1789 (MTCR) and No R1790 (NSG).

Dual-Permits. In some cases, companies might be required to apply for two separate permits (one NPC and one NCACC) for certain dual-use items, in terms of the prescriptions of the Armaments Development and Production Act, 1968 (Act 57 of 1968) and the Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act 87 of 1993). It should be noted, however, that the criteria applied in assessing applications under these two acts are not the same.

Transfers. Each transfer is evaluated to determine the proliferation risk of the particular transfer, taking into account the items involved, the end-use and the end-user.

End-use and End-user Certificates. It should also be noted that certain unique clauses may be required by the South African Council for the Non-Proliferation of Weapons of Mass Destruction control system and that the end-use statement for conventional arms is not necessarily acceptable. In the case of the South African Council for the Non-Proliferation of Weapons of Mass Destruction control system, an end-use or end-user certificate is not always required.

Final Export Control. The South African Council for the Non-Proliferation of Weapons of Mass Destruction only controls the final export of a transfer, but applicants may apply at a very early stage to allow the application to coincide with the marketing and contracting application process at the National Conventional Arms Control Committee.

Inter-sessional Procedures. A procedure exists for temporary exports and other non-sensitive, non-proliferation exports between sittings of the South African Council for the Non-Proliferation of Weapons of Mass Destruction. These are approved by the Chairperson of the South African Council for the Non-Proliferation of Weapons of Mass Destruction and ratified by the Council at its next plenary.

Non-Proliferation Secretariat. The NPS serves the South African Council for the Non-Proliferation of Weapons of Mass Destruction. It is responsible for administering all aspects of the Non-Proliferation Act and its Regulations.

Inspectors

Domestic Inspections. The Act empowers the Chairperson of the South African Council for the Non-Proliferation of Weapons of Mass Destruction to appoint inspectors to ensure that the provisions of the Act are complied with. The inspectors may enter and inspect any premises where controlled goods are kept under a permit. Non-compliance with the provisions of the Act is punishable.

International Inspections. The international chemical, biological and nuclear conventions signed by South Africa make provision for international inspections of facilities. Notice of international inspections is given to the Department of Foreign Affairs by the international treaty organisation concerned.

Interaction with Conventional Arms Control

Interaction Within the Conventional Arms Control System. All applications for permits within the Conventional Arms Control system that have proliferation or dual-use risks, are referred to the NPS. At an early stage, the NPS expresses an opinion on the necessity for a Non-Proliferation Permit. However, it should be noted that it is impossible to determine at this stage if the system under consideration is controlled or may contain certain controlled goods. This responsibility remains with the applicant. The NPS will use this information, in some cases, to approach the applicant and discuss the scope and content or it might question if any suspicion exists whether the system is controlled or might contain controlled goods.

Interaction Within the Non-Proliferation System. The Non-Proliferation System is based on three levels of review. The NPS receives the application and completes a preliminary investigation. The applications are then referred to members of a Control Committee appointed by the South African Council for the Non-Proliferation of Weapons of Mass Destruction. The Departments of Foreign Affairs, Trade and Industry, Mineral and Energy Affairs, the National Intelligence Agency, the South African Secret Service, Military Intelligence, South African Police Service, Customs and Excise and the Directorate for Conventional Arms Control (DCAC) have representation on the Control Committee. The Control Committee considers the preliminary investigation by the NPS and all inputs by its members.

From this, an assessment is made on the proliferation risk associated with a particular application. Based on a consensus decision, a recommendation is made to the South African Council for the Non-Proliferation of Weapons of Mass Destruction. All decisions on applications for permits are communicated back to the Control Committee at its next meeting and then to the Directorate for Conventional Arms Control.

FIREARMS, AMMUNITION AND TEARGAS

Governing Legislation

Firearms and Ammunition Act (Act 75 of 1969). This act controls the manufacture, dealership, possession, repair, import and export of commercial arms and ammunition.

Teargas Act (Act 16 of 1964). This act controls the import and possession of teargas. It does not control the export of teargas.

Control Structures : South African Police Service (Central Firearms Register)

Firearms and ammunition. The South African Police Service (Central Firearms Register) controls the manufacture, possession, dealership, repair, import and export of firearms and ammunition.

Teargas. The South African Police Service (Central Firearms Register) controls the import and possession of teargas. They do not control the export of teargas.

Control Processes

Permits.

Permits Relating to Firearms and Ammunition. The following permits relate to firearms and ammunition.

• Import Permits (individuals and dealers).
• Export Permits (individual and dealers).
• Ammunition Collectors Permit.

Interface with the National Conventional Arms Control Committee. The NCACC has no jurisdiction over domestic transfers of commercial weapons, though an understanding exists between the Minster of Safety and Security and the Chairperson of the NCACC that no commercial weapons will be given an export permit without being reviewed by the NCACC.

Teargas. The following permits relate to teargas:

• Import of Teargas.
• Possession of Teargas

Licences. Licences are required for the manufacture, dealing and repair of firearms and ammunition. These are specifically:

• Manufacturing licence (a factory licence is also required from the Department of Labour).
• Dealers license.
• Gunsmith licence.
• Individual fire arm licences.

Inspections

Import and Export. SAPS inspections are done by border control police, who inspect all imports and exports of firearms and ammunition. This is done in conjunction with Customs and Excise.

Manufacture. Inspections relating to the manufacture of firearms and ammunition are conducted jointly with local police, the Central Firearms Register and the Department of Labour (factory licence). Applicants must demonstrate adequate training, experience and competence before being granted a manufacturing licence.

EXPLOSIVES (COMMERCIAL AND MILITARY APPLICATIONS)

Governing Legislation

Explosives Act (Act 26 of 1956). This act controls the manufacture, storage, transport, import and export of explosives.

Control Structure : South African Police Service (Inspectorate of Explosives)

Manufacture. The manufacture of explosives within licenced factories is currently delegated to and controlled by the Department of Labour.

Explosives Controls. The dealership, import, export and transport of explosives is controlled by the South African Police Service (Inspectorate of Explosives). Some explosives and propellant constituents are also controlled under the Non-proliferation of Weapons of Mass Destruction Act.

Mining Industry. The use of explosives on mines (diamond/gold etc) is controlled by the Department of Mineral and energy Affairs, specifically the Government Mining Engineer.

Control Processes

Permits. Permits are required for the following:

• Import of explosives.
• Export of explosives.
• Transport of explosives.
• Blasting Permits.
• Permits relating to Special Permissions (e.g. testing of explosives, transport of samples) and applications for exemptions to the Act.

68. Licences. The following categories of licences have to be obtained:

• Magazine licence.
• Dealer’s licence.
• Mixing/manufacture licence (Manufacture outside a licenced factory, such as mixing of explosives on site).
• Vehicle licence (Licences for vehicles specially designed to convey and transport explosives).

Inspections

Manufacture. An inspection is conducted by the Department of Labour prior to the granting of a Factory Licence.

Explosive Related Inspections. Inspections relating to permits and licences for explosives are conducted by the South African Police Service Inspector of Explosives at national and regional level.

NUCLEAR AND RELATED MATERIEL AND TECHNOLOGY

Governing Legislation

The Nuclear Energy Act (1993). This act regulates the peaceful use of nuclear materials and related activities.

Control Structure : Atomic Energy Corporation (AEC)

The Act establishes the Atomic Energy Corporation, defines it as the National Nuclear Authority and makes the Atomic Energy Corporation responsible for the implementation of International Atomic Energy Agency (IAEA) Safeguards. In terms of the Act the Minister authorises the production, import and export of nuclear materials and related equipment.

Control Process

Nuclear Non-proliferation. Nuclear non-proliferation is implemented in South Africa through the implementation of the International Atomic Energy Agency Safeguards Agreement by the Atomic Energy Corporation and the authorisation by the Minister of the import and export of nuclear materials and equipment relating to the Zangger and Nuclear Suppliers Group Part One lists.

Nuclear Related Dual-use Materials and Equipment. Dual-use items are regulated under the Nuclear Suppliers Group Part Two by the South African Council for the Non-Proliferation of Weapons of Mass Destruction in terms of the Non-proliferation of Weapons of Mass Destruction Act.

POLICY ISSUES

Fragmentary Legislation. The currently fragmented legislation governing the development, manufacture, marketing, transit, import and export of armaments and dual-use or related material and goods, needs to be synthesised and consolidated to provide a clear and coherent legislative framework for the defence related industries.

Fragmentary Control Structures. The diverse departmental responsibilities for regulation of arms trade need to be synthesised and consolidated to streamline regulation, afford greater accountability and provide easier definition of responsibility.

INTEGRATED NATIONAL ARMS CONTROL STRUCTURE

77. Arising from the two policy issues identified above, the NCACC has taken the decision to integrate national arms control structures, thus harmonising current arms control legislation, structures and processes into one process. The following arms transfer processes will integrated into the structure in a co-ordinated and harmonised manner:

• Legislation.
• Policy/Guidelines.
• Bureaucratic processes/procedures.
• Permits.
• Database, reporting and information exchange.
• Infrastructure.
• Personnel.
• Ministerial oversight and accountability.
• Monitoring and compliance.

This integrated structure will be competent to issue permits, ensure compliance and undertake monitoring actions concerning armaments. The following permit authorisation should resort with the structure:

• Import permits.
• Export permits.
• Transit permits.
• Manufacturing permits.
• Advance marketing permits.
• Marketing permits.
• Contracting permits.

LEVEL 1: NATIONAL CONVENTIONAL ARMS CONTROL COMMITTEE (NCACC)

Ministerial oversight and accountability will take place via the NCACC as established to oversee arms transfers. The membership of the NCACC will consist of a chairperson appointed by the President from a non-line function department and Cabinet Ministers and Deputy Ministers similarly appointed by the President.

The NCACC will meet as required by the Chairperson. A secretariat for the NCACC will be provided from the processing unit.

Functions. The NCACC is responsible for the following functions:

• Political oversight and responsibility for all arms control matters.
• Political Guidance and Direction to the other levels of the structure, aimed at assisting bureaucrats with lower-level decision making.
• Approval of Extraordinary Transfer Permits in those special or non-routine cases or where exceptional circumstances dictate.
• Review all permits approved by the second level structure.
• Approval of the Annual Report to Parliament.

82. Inter-sessional powers. The Chairperson should be vested with intercessional powers to deal with urgent applications.

LEVEL 2: ARMS CONTROL COUNCIL

Membership. An Arms Control Council will be established to review and approve permits as approved by the NCACC. The Members of the Council should be appointed by the Chairperson in consultation with the President. The membership should consist of the following:

• A Chairperson who is appointed in his/her private capacity as an independent party.
• An Inspector-General who is responsible for the Councils inspectorate functions, and is appointed as an ex-officio/non-voting member.
• The Director General, or a delegated Deputy Director General, from the following departments:
• Department of Defence.
• Department of Trade and Industry.
• Department of Foreign Affairs.
• Department of Finance.
• Department of Safety and Security.
• South African Secret Service.

 

• Experts may be included from the following fields, and who cannot delegate their responsibilities:
  • Chemical Expert.
  • Biological Expert.
  • Dual-use Expert.
  • Small arms and ammunition Expert.
  • Explosives, Pyrotechnics or Teargas Expert.

The Council should meet once per month with the secretariat provided from the third level structure. The Chairperson should be vested with intercessional powers to review urgent permits.

Functions. The Council should have the following powers:

• Approval of permits as authorised by the NCACC.
• Making recommendations to the NCACC on extraordinary cases.
• Presenting a monthly report to the NCACC on all permits approved, as well as country trends and regional profiles.
• Recommending policy, legislation, processes and procedures to the NCACC.
• Responsibility and oversight of the Processing Unit.
• Presentation of an Annual Report to Parliament, once approved by the NCACC.

LEVEL 3: DEPARTMENTAL REVIEW

A Departmental Review Committee, comprising of nodal points from the intelligence structures and the Departments of Defence, Foreign Affairs and Trade and Industry, will review all applications in order to assist the Council in its decision making. This close inter-departmental co-operation will occur through the establishment of an Interdepartmental Review Committee.

LEVEL 4: ARMS CONTROL DIRECTORATES AND PROCESSING UNITS

Structure. The processing unit level of the national arms control structure should be situated within the Defence Secretariat, reporting directly to the Chairperson of the NCACC. The processing unit should be comprised of the following sub-structures able to process and evaluate applications for import, export, transit and manufacturing permits:

• A sub-structure capable of doing research, formulating policy and proposing legislation.
• A sub-structure capable of ensuring compliance within industry to arms control agreements, legislation and regulations and can undertake monitoring actions.
• A sub-structure capable of evaluating and processing applications that concern Weapons of Mass Destruction and Dual-use (Part Two).
• A sub-structure that is capable of processing applications that concern Conventional Armaments.
• A sub-structure that is capable of co-ordinating the submission of applications to the NCACC relating to the import, export and transit of commercial weapons and ammunition, but not including the Central Firearms Register.
• A sub-structure that is capable of evaluating and processing applications that concern teargas, explosives and pyrotechnics.

The processing unit should have a centralised and integrated information system with a centralised and integrated database. Processing units should be competent to fulfill the following functions in order to process and evaluate applications:

• Providing the Secretariat for the NCACC and Arms Control Council.
• Processing all permit applications and providing a centralised nodal registration point.
• The referral of all applications to the Arms Control Council and if so required, to the NCACC, and the issuing of permits for approved applications.
• Undertaking research on all arms control issues.
• Preparation of policy inputs to role playing departments of arms control and compliance.
• Assisting the Department of Foreign Affairs with preparing South African reports to International Treaties and Regimes as required, in line with South Africa’s international obligations and undertaking information exchange with the arms control structures of other countries..
• Preparing and presenting monthly reports to the NCACC and the annual report to Parliament on behalf of the Arms Control Council.
• Liaison with the Inspectorate and the monitoring of end-use, end-user and end usee certificates, as well as arranging visits on behalf of International Inspectors.

INSPECTORATE

An independent inspector with the competence to investigate all arms control matters should be appointed by the NCACC. The Inspector will be accountable to the NCACC and be an ex-officio member of the Council. The functions of the Inspector will include:

• Monitoring the activities of the Arms Control processing and evaluation units.
• Monitoring the activities of South African defence related industry companies.
• Responsibility for ensuring compliance with South African law and international obligations.
• Liaison with the Auditor-General.

Contents   |    Chapter 1   |    Chapter 2   |   Chapter 3    |   Chapter 4   |    Chapter 5   |   Chapter 6   |   Chapter 7