Regulations must be interpreted in the context of the Act

September 1st, 2020
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National Commissioner of Police and Another v Gun Owners of South Africa (Gun Free South Africa as Amicus Curiae) (SCA) (unreported case no 561/2019, 23-7-2020) (Schippers JA (Maya P, Zondi and Plasket JJA and Eksteen AJA concurring))

In the case of the Gun Owners of South Africa, the appellants, the National Commissioner of Police (the Commissioner) and the Minister of Police (the Minister of Police) appealed against an urgent interim issued by Prinsloo J in the High Court, which prevents the South African Police Services (the SAPS) from applying, implementing and enforcing various provisions of the Firearms Control Act 60 of 2000 (the FCA).

Gun Owners of South Africa (GOSA), a voluntary association formed to protect the rights of lawful firearm owners in South Africa, in July 2018 launched an urgent application in the High Court against the appellants. GOSA sought an interim interdict, pending the determination of the main application in which it sought the relief set out in parts [A] and [B] of its notice of motion (the main relief).

‘Directing that the SAPS as represented herein by the [first] and [second] respondents be prohibited from implementing any plans of action or from accepting any firearms for which the license expired at its police stations or at any other place, for the sole reason that the license for the firearm expired, and that the SAPS be prohibited from demanding that such firearms be handed over to it for the sole reason that the license for such firearm has expired, and that this order will operate as an interim interdict, pending the further determination of this application as prayed for in paragraphs 3 to 3.4 infra;

3 That this matter then be postponed to the opposed motion roll … for the further determination of the following relief, as prayed for by the applicant:

3.1

[A] That it be ordered that the period of validity of all licenses for firearms that were issued and those that will still be issued in terms of the Firearms Control Act, 60 of 2000, will be extended to the lifetime of the owner thereof, with due regard being had to the remaining and existing provisions of the FCA that limit the right to the owner thereof to possess the firearm,

alternatively,

that by order of court the periods as referred to in sections 27 and/or 24(1) and 24(4) of the [FCA], will be extended, in order for people that hold expired licenses to apply for the renewal thereof.

Further alternatively,

[B]

(a) The first respondent shall withdraw the circular issued by Acting National Commissioner Phahlane on 3 February 2016.

(b) The first respondent shall issue a directive that the information technology system of the Central Firearms Register be restored to a position that it is able to accept applications for renewal of licenses which are late because they are lodged inside the 90 days period envisaged in section 24(1) of the [FCA].

(c) The first respondent shall issue a directive that the information technology system of the Central Firearms Register be restored to a position that it is able to accept applications for renewal of licenses which have expired because the period of their validity contemplated in section 27 of the [FCA] has expired.

(d) Any applications for renewal contemplated in paragraphs (b) and (c) above shall still be subject to the requirement of ‘good cause’ as contemplated in section 28(6) of the FCA.

(e) Any applicant who has lodged an application for renewal and who has prima facie provided good cause in the relevant space provided on SAPS form 518(a), shall be deemed to be in lawful possession of the firearm until his application has been decided.

3.2 Alternatively to prayers 3.1[A] and 3.1 [B] supra, that the first respondent be ordered to provide a comprehensive and detailed security plan to the satisfaction of this honourable court to the court, to ensure that the firearms to be collected by it, for which the licenses expired, will be safe from being lost or stolen from the SAPS …’.

The interdict that was brought to court by GOSA disables the scheme of renewal and termination of firearm licences under the Act, by prohibiting the SAPS from demanding or accepting the surrender of firearms by licence-holders whose firearm expired, because they failed to renew their licences within the timeframe prescribed by the Act. The SCA said that it was clear from the relief sought that GOSA did not challenge the constitutionality of any provision of the Act. That the basis of the relief was an alleged infringement of the right to just administrative action, stated as follows in the founding affidavit made by Paul Oxley, GOSA’s chairperson.

In the main relief Mr Oxley had a clear/prima facie legal right to just administrative action that includes the rights that arise from a legitimate expectation that the authorities would have disposed of a system, which they on previous occasions admitted to as not having the capacity to administer (the provisions of the FCA as they still stand) and because they previously before the court conceded that the relevant limitation has no justification. The legitimate expectation included that –

  • a legislative amendment that came into operation in 2011 in terms of which the period of validity of competency certificates was extended;
  • the fact that SAPS (up to February 2016) accepted applications for the renewal of licences and approved them even though the licences expired. This is an important consideration as the impression and expectation was created that the relevant 90-day period was extended as can be justified through the application of s 24(1) read with ss 24(4), 28(6) and 28(1). For the SAPS to now hold otherwise would be tantamount to a situation of entrapment and deceit and they are bound to impressions that they created also because of the principles of estoppel.

Mr Oxley pointed out that the conduct of the SAPS was, therefore, tantamount to the rescinding of the previous message that the SAPS signalled to the courts, Parliament and the public on the matter too and becomes relevant during the protection of a procedural or substantive interest that is being threatened. He submitted that the reliance of the public on these representations was reasonable as the representations were made verbatim to both the courts and Parliament. That it would be deceitful of the SAPS to now take the position that the public was not being misled on the matter.

The application was opposed. The grounds of opposition outlined in the answering affidavit by the Commissioner to mention a few submitted that –

  • what GOSA was seeking was a clear breach of the separation of powers;
  • the main and alternative final relief, which is sought, namely orders extending the validity of expired firearms licenses in a manner inconsistent with the Act, was simply incompetent and also flies directly in the face of the unanimous judgment of the Constitutional Court (CC) in Minister of Safety and Security v South African Hunters and Game Conservation Association 2018 (10) BCLR 1268 (CC), decided on 7 June 2018, in which the CC upheld the system of firearm licencing and renewal, and the criminalisation of possession of an unlicenced firearm;
  • the interim relief sought was plainly incompetent; and
  • the main alternative main relief which GOSA sought are orders overriding of the provisions of the Act.

The Commissioner submitted that the application for interim interdict be refused.

Prinsloo J accepted what was stated in the founding affidavit, the bulk of which contained hearsay and unstained assertions by Mr Oxley, on the basis that he was an ‘experienced deponent who has been involved in these matters for 30 years.’ He also accepted the assertion in the affidavit that the circumstances which led to the application were ‘exceptional’, following the judgment by the CC in the South African Hunters and Game Conservation Association case, upholding the constitutionality of the Act. These circumstances were mainly that the police had started to apply pressure on firearm owners, whose licences had expired to surrender their firearms for destruction, failing which they would be arrested and prosecuted. This apparently caused anxiety among individual licence holders and security personnel.

Prinsloo J also held that the interim order did not violate the doctrine of the separation of powers by prohibiting the executive from carrying out its constitutional and statutory obligations, since it related only to ‘the police and the manner of executing [their] mandate in a more recognised and practical way’. Prinsloo J added that the interim relief was ‘in harmony with the Act and the regulations prescribing the right or the opportunity for the holder of an expired licence to apply for renewal upon good cause shown in terms of Form 518(a)’. Prinsloo J concluded that a proper case had been made out for urgent interim relief, and that GOSA, its 40 000 members and 450 000 other gun users with expired licences, had to be assisted pending the outcome of the main application or ‘perhaps the result of an amnesty being granted’. The judgment granting the interdict was delivered on 27 July 2018.

The SCA pointed out that GOSA’s counsel submitted that the interim interdict was not appealable because it was not final in effect, and the interest of justice did not require that it should be appealable since the doctrine of the separation of powers was not implicated. The SCA said that it was beyond question that the doctrine of the separation of powers was implicated in this case: The interdict instantly prohibited the SAPS from demanding or accepting the surrender of firearms with expired licences in terms of the Act, powers and duties granted to its members by the legislature. The SCA added that according to the answering affidavit, there are some 436 366 firearm licences throughout the country which have expired in terms of s 28(1)(a) of the FCA, as a result of the failure of the owners of those firearms to renew their licences.

The SCA pointed out that there is a real risk that some or many of these firearms, which are now illegally in the possession of their owners, may be stolen or lost and end up in the hands of criminals, which may injure or kill others. GOSA’s contention that this risk is not immediate, serious or irreparable needs merely to be rejected. The SCA said the interim interdict had a nationwide effect and constitutes an impermissible instruction by a court on executive authority, as explained below. The SAPS is prohibited from exercising its powers and carrying out its obligations under the Act. For that reason, the interim order was appealable.

The SCA said the appellants made it clear at the beginning of the answering affidavit that it was impossible to answer Mr Oxley’s generalised assertions concerning the conduct of members of the SAPS, which were devoid of facts or evidence, other than by a general denial. The SCA added that the ‘authentic newspaper reports’, which the courts relied on, are not proof of the truth of their contents. They are hearsay. Further, Mr Oxley, the ‘experienced deponent’ failed to set out facts within his personal knowledge, or any evidential basis, for his assertions and conclusions.

The SCA said that the obligation of the owner to renew a firearm licence could not be clearer. The SCA added that Prinsloo J, however, held that the finding by the CC ‘can be nothing more than obiter remarks’, because ‘it did not take into account the implications of form SAPS 518 A, and the order made did not deal with this issue at all’, is incorrect. The SCA said that regulations must be interpreted in the context of the Act and not the other way around. The SCA pointed out that GOSA failed to demonstrate that the final relief sought, namely a declaratory order to extend the periods referred to in ss 24, 27 and 28 of the FCA, so as to allow the holders of expired licences to apply for the renewal thereof on good cause shown within a period determined by the court, has a reasonable prospect of success. The SCA added that it must be emphasised that a firearm licence comes to an end on the last day of its validity by the operation of the law.

The SCA said that regarding the requirement, GOSA alleged that the SAPS did not have the capacity to process some 450 000 firearms and 60 million rounds of ammunition safely; that ordinary citizens and security companies would be left defenceless; and that the resources of the SAPS were better spent on operational duties instead of ‘mountains of paperwork being created with no real benefit’. The SCA pointed out that the unsubstantiated assertions and opinion by Mr Oxley were outweighed by the harm to the appellants, by far.

The SCA said that in its view, the case falls squarely within the category of cases which the CC has excluded from the protection against adverse costs orders. The SCA added that GOSA brought an application, which without merit, based on assertions and inadmissible evidence, and then insisted on being heard on an urgent basis. The SCA pointed out that the application flouted the most basic rules of litigation. The litigation was conducted in a ‘manifestly inappropriate’ manner, thus there was no reason why costs should not follow result.

The SCA made the following order:

‘Condonation of the late filing of the notice of appeal is granted. The appellants shall pay the costs of that application on an unopposed basis.

The appeal is upheld with costs, including the costs of two counsel.

The order of the High Court is set aside and replaced with the following:

“The application is dismissed with costs, including the costs of two counsel.”’

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2020 (Sept) DR 41.