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[2010] ZAWCHC 655
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Justice Alliance of South Africa and Another v National Minister of Safety and Security and Others (11206/2008) [2010] ZAWCHC 655 (5 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No.: 11206/2008
In
the matter between:
JUSTICE
ALLIANCE OF SOUTH AFRICA
......................................................
First
Applicant
FALSE
BAY GUN CLUB
.............................................................................
Second
Applicant
And
NATIONAL
MINISTER OF SAFETY AND SECURITY
.................................
First
Respondent
NATIONAL
COMMISSIONER OF SAPS
.................................................
Second
Respondent
APPEAL
BOARD OF FIREARMS
...............................................................
Third
Respondent
MINISTER
OF FINANCE
............................................................................
Fourth
Respondent
JUDGMENT
DELIVERED : FRIDAY, 05 NOVEMBER 2010
SALDANHA,
J
[1]
The applicants, the Justice Alliance of South Africa and the False
Bay Gun Club obtained an order on the 31
st
of August 2009 in this court from Traverso DJP compelling the first
respondent to comply with its obligations under section 137
(5) of
the Firearms and Control Act 60 of 2000 (the Act) by publishing
Guidelines with regard to the payment of compensation
by the state
in terms of the Act.
[2.]
The first respondent claimed that he complied with the order on the
10
th
November 2009 by having published the Guidelines in the Government
Gazette. The Guidelines provide as follows;
“
ESTABLISHMENT
BY THE MINISTER OF POLICE OF GUIDELINES FOR COMPENSATION UNDER
SECTION 137(5) OF THE FIREARMS CONTROL ACT, 2000
(ACTN0.60 OF 2000)
1.
I, Emmanuel Nkosinathi Mthethwa, Minister of Police, with the
approval of the Minister of Finance, establishes under section
137(5) of the Firearms Control Act, 2000 (Act No. 60 of 2000), the
following guidelines for compensation of persons whose firearms
have
been surrendered or forfeited, other than those referred to in
sections 134,135 and 136 of the Act.
2.
These guidelines are not applicable to firearms which have been
voluntary surrendered for destruction to the South African
Police
Service in the period between 1 July 2004 and 30 June 2009 -
(a)
by the lawful owners of such firearms, in accordance with Regulation
94 of the Firearms Control Regulations, 2004; and
(b)
by virtue of a choice made by the person involved, to have the
firearm destroyed and not to sell, donate or otherwise dispose
of
the firearm involved.
3.
These guidelines shall apply to firearms referred to in
section
149(3)
of the
Firearms Control Act, 2000
. Not withstanding paragraph
2 above, I hereby determine that if the Registrar decides that a
particular firearm needs to be kept
by the South African Police
Service for forensic- and other training, research or heritage
reasons; and will therefore not be
destroyed, that the owner whose
firearm
was
voluntarily surrendered for
destruction
must be compensated in accordance with these guidelines. In
such
a case the Registrar must notify the person concerned of the
intention not to destroy the firearm and provide the person
with the
prescribed application form for compensation. Any application for
compensation pursuant to a notification by the Registrar,
as
referred to in this paragraph, must be submitted to the Registrar
within 30 working days from the date of notification by
the
Registrar.
4.
I will appoint a Panel of at least three independent valuators. The
Registrar must have the firearms in respect of applications
where
the applicant is not satisfied with the flat rate valuated by the
Panel. Such applicant for compensation shall be entitled
to
compensation in accordance with the valuation determined by the
Panel, subject to the maximum amount of compensation determined
in
these guidelines for the relevant category of firearm. The costs
incurred to obtain such valuation must be deducted from the
compensation payable to the applicant.
5.
Taking into account the -
(a)
Financial constraints on the State and its ability to meet actual
and anticipated claims for compensation; and
(b)
interests of persons who have applied or may in future apply for
compensation,
6.
I hereby determine that the flat rate and the maximum amount of
compensation paid in respect of a particular firearm may not
exceed
the following:
(a)
in the case of a handgun (pistol or revolver) - R600.00;
(b)
in the case of a rifle (compensation, single shot,
semiautomatic/fully automatic); shotgun (combination, single
shot,
semi-automatic or automatic), or of any other firearm not
mentioned above - Flat rate -R1200.00
7.
The maximum amount of compensation which may be paid in respect of
any firearm, irrespective of an evaluation by the Panel,
shall be
the following:
(a)
In the case of a handgun (pistol or revolver) - R1000.00
(b)
in the case of a rifle (combination, single shot,
semiautomatic/fully automatic); shotgun (combination, single
shot,
semi-automatic or fully automatic), or of any other firearm
not mentioned above - R1200.00.
8.
In the case where compensation is to be paid, such payment must be
effected from the allocated budget of the Department of
Police.
9.
The payment must be effected within 90 (ninety) working days from
the date of determination by the Registrar of the amount
of
compensation, or within the same period after an appeal had been
upheld.”
[3.]
This is an interlocutory application in which the applicant claims
that the respondent has failed to properly comply with
the court’s
order on the grounds that the Guidelines are ultra vires as they
exclude the payment of compensation to persons
who voluntarily
surrendered their firearms to the state for destruction and further
that the amounts provided for in the Guidelines
as compensation are
unreasonably low. The applicants seek the following order;
“
1
Declaring that the guidelines issued by the First Respondent in
Government Notice 1071 in Government Gazette 32701 of November
2009
are ultra vires, inconsistent with
section 137
of the
Firearms
Control Act 60 of 2000
and the Constitution, 1996, and invalid;
2.
Directing the First Respondent to issue new guidelines under
section
137(5)
of the
Firearms Control Act 60 of 2000
by 17 June 2010,
taking into account:
2.1.
the right of persons who voluntarily surrender their legal firearms
to the State to receive compensation; and
2.2.
the right of persons who receive compensation to receive just and
equitable compensation that takes into account the market
value of
the surrendered firearms;
3.
Granting the Applicants costs, including the costs attendant upon
the employment of two counsel; and
4.
Granting further and/or alternative relief. ”
[4.]
The fourth respondent who was initially not a party to the
proceedings was joined on an unopposed basis as the provisions
of
section 137(5)
require that the first respondent must with the
approval of the fourth respondent establish guidelines for the
payment of compensation.
The
factual and legal context
[5.]
The Act came into force on 1
st
July 2004 and replaced the previous Arms and Ammunitions Act 71 of
1969 (the old Act). The purpose of the Act is set out in Section
2
is to;
“
(a)
enhance the constitutional rights to life and bodily integrity;
(b)
prevent the proliferation of illegally possessed firearms and, by
providing for the removal of those firearms from society
and by
improving control over legally possessed firearms, to prevent crime
involving the use of firearms;
(c)
enable the State to remove illegally possessed firearms from
society, to control the supply, possession, safe storage, transfer
and use of firearms and to detect and punish the negligent or
criminal use of firearms;
(d)
establish a comprehensive and effective system of firearm control
and management; and
(e)
ensure the efficient monitoring and enforcement of legislation
pertaining to the control of firearms.”
[6.]
The Act provides in section 3 for a general prohibition in respect
of the possession of firearms as;
“
No
person may possess a firearm unless he or she holds a licence,
permit
or authorisation issued in terms of this Act for that firearm. ”
[7.]
The Act is more restrictive than the old Act with regard to the
possession and ownership of firearms for the purposes of
self
defence and in that regard section 13(3) of the Act provides that;
“
13.3
No person may hold more than one licence issued in terms of this
section.
”
[8.]
Thousands of people who held firearms in terms of the old Act were
impacted directly upon by these provisions and so as not
to render
their possession of firearms illegal upon the commencement of the
Act a schedule of Transitional Provisions’
were included in
the Act.
[9.]
Schedule 1 of the Transition Provisions provided that where licenses
were granted under the old Act such licenses remained
valid for a
period of 5 years from the commencement of the Act and that the
holders of such licenses were required to apply for
the renewal of
their licenses under the new Act. It further provided that holders
of firearms under the old Act in excess of
the number that may
lawfully be possessed in terms of the new Act were required, in a
lawful manner, to dispose of such firearms.
[10.]
The Schedule further provided that once an application for renewal
of a fire arm license had been made in terms of the Act
such persons
existing firearm license(s) remained valid until the application was
either granted or rejected.
[11.]
It appears that there was a deluge of new applications and renewals
in terms of the new Act which resulted in substantial
delays. An
application was brought in the Northern Gauteng High Court in the
matter of
SA Hunters and The
Minister of Safety and Security Case No. 33656/09 (unreported)
in
which the following relief was obtained;
(i)
“All firearm licenses contemplated in sub item 1 of item 1 of
Schedule 1 of the Fire Arms Control Act (Act 60 of 2000)
shall be
deemed to be lawful and valid pending final adjudication of the main
application.
(ii)
The order shall operate as an interim order with immediate effect
pending final adjudication of the main application relating
to this
case. ”
[12.]
The main application referred to related to challenges that were to
be brought against the constitutionality of various
provisions of
the Act.
[13.]
The applicants in this matter claim that as a result of the
bureaucratic delays in the renewal and granting of new licences
many
firearm owners chose to hand in their firearms to the state rather
than become illegal possessors of firearms. The applicants
also
claimed that they did so “
out
of respect for the law even when it meant giving up their own
property. ”
The
respondents for their part
disputed
this contention and claimed that there was neither any obligation
nor were firearm owners compelled to hand their firearms
over to the
state to dispose of by way of destruction. The respondents claimed
that firearm owners were at liberty to either
dispose of their
firearms by sale to arm dealers or lawfully to any other person or
by donating the firearm(s), or permanently
exporting the firearm out
of the Republic, or by having their firearms decommissioned.
[14.]
The applicants further claimed that many firearm owners who
voluntarily handed there firearms to the state for destruction
sought compensation from the state despite having been informed by
police officers that they did not qualify for compensation
as they
had “voluntarily surrendered” their firearms. The
details of such claims were set out in the main application
by
various individuals who had surrendered their firearms. The
applicants claimed that because there were no Guidelines enacted
in
terms of section 137(5) of the Act they were forced to have brought
the main application for compliance by the first respondent
with the
Act.
[15.]
There were various preliminary challenges raised in the affidavits
such as the
locus standi
of the applicants, the jurisdiction of this court to deal with the
matter, the apparent lack of authority of the Director General
of
the fourth respondent to depose to an affidavit on behalf of the
fourth respondent (the fourth respondent having not confirmed
such
authorization.) At the hearing of the application the parties
informed the court that the preliminary issues were no longer
in
contention save for a claim by the respondent that a constitutional
challenge to any of the provisions of the Act could not
properly be
raised by way of an interlocutory application.
[16.]
The respondents claimed that to the extent that item 2 of the
Guidelines may cause confusion with regard to whether persons
who
surrendered their firearms for destruction outside of the 1 July
2004 - 30 June 2009 period and outside of the situations
referred to
in item 2(a) and (b) of the Guidelines, the Minister was willing to
facilitate an amendment to the Guidelines to
remove such confusion
with the deletion of item 2. Likewise, the respondent claimed that
to the extent that item 3 of the Guidelines
may be construed as
limiting the compensation provisions of section 137 to the firearms
forfeited in terms of section 149(3),
the Minister was agreeable to
amend the paragraph deletion of any reference that suggested that
compensation was restricted exclusively
to the circumstances
described in section 149(3).
[17.]
It appeared that there were four broad issues, amongst others,
identified for determination by the court;
(i)
The proper interpretation of section 136(1) and 137(1) of the Act
and whether the Guidelines were
ultra
vires
the provisions of the Act and
the Constitution.
(ii)
The effect of Section 25 of the Constitution in respect of the
voluntary surrender of firearms for destruction.
(iii)
The reasonableness of the compensation and the question of the
proper allocation of state resources.
(iv)
Whether the constitutionality of any of the relevant provisions of
the Act should
mero motu
be considered and determined by this court.
[18.]
In the applicants founding affidavit and in both the initial heads of
argument and oral submissions by counsel for the applicants
they
emphatically eschewed any challenge of the constitutionality of any
of the provisions of the Act. They submitted though that
the
Guidelines did not comply with the Act if properly interpreted
through the prism of the Constitution of the Republic of South
Africa
and were therefore
ultra vires
and invalid. The applicants claimed that the challenge against the
Guidelines was completely distinct from any constitutional challenge
of the Act and that such an issue was “not part of this
application but stood to be decided by another court in a future
matter”. However during the course of argument (and more
particularly during reply) counsel for the applicants submitted
that
should the court not uphold the applicants preferred interpretation
of the relevant sections of the Act, the court could and
should
mero
motu
exercise its power in terms of
section 172 of the Constitution and raise and determine the
constitutionality of the relevant provisions
of the Act. At the
conclusion of the oral argument the court invited the parties to
address it by way of further written submissions
on the
constitutionality of the various provisions of the Act in contention
and the court subsequently issued written directives
to the parties
which amongst others raised the question as to whether the court
could on the papers before it
mero
motu
raise the constitutionality of
any of the provisions. Each of the parties thereafter addressed the
court in writing on the directives,
amongst other issues.
The
interpretation of sections 136 and 137 of the Act.
[19.]
Central to the dispute between the parties is the different
interpretation accorded by each to the provisions of section 136(1)
and 137(1) of the Act. These differences are to a large measure
reflective of their differing perspectives of the objectives and
purposes of the Act that the state sought to achieve through the
legislation and the consequent constitutionality of the measures
taken in the Act particularly with regard to the payment of
compensation.
[20.]
The purpose and objectives of the Act are informed by it’s
Preamble which declares that the State through the Act sought
to
establish a comprehensive and effective system of firearm control in
which it is recognized that every person has the right
to life and
security including the right to be free from all forms of violence,
and that the adequate protection of such rights
is fundamental to the
well being and socio economic development of every person. Further,
that the state recognized the increased
availability and the abuse of
firearms and ammunition as contributing significantly to the high
levels of crime in South Africa
and that the Constitution placed a
duty on the state to respect, protect, promote and fulfill all the
rights in the Bill of Rights.
[21.]
From the general prohibition in section 3 (referred to above) of the
Act in respect of the possession of firearms, the legislation
deals
extensively,
inter alia,
with
the application processes for various types of firearms and
authorization to posses firearms, the carrying of firearms, the
control of ammunition and firearm
parts,
exemptions, the declarations of persons as unfit to possess firearms,
the
inspection
of firearms, provisions relating to the search and seizure of
firearms, presumptions in respect of offences in which
persons are
charged with the unlawful possession of firearms, offences, penalties
and administrative fines, the organizational
structures, the right to
appeal in respect of applications, special powers relating to
amnesties, firearm free zones and general
provisions relating to the
Act.
[22.]
The circumstances in which compensation is payable in respect of the
forfeiture, seizure and the surrender of firearms and
the application
for such compensation is dealt with in chapter 19 of the Act.
[23.]
Section 134 thereof deals with the circumstances where no
compensation is payable in respect of firearms and ammunition
forfeited
to the state and provides that;
“
(a)
if the relevant licence, permit or authorisation
was
cancelled
in terms of this Act because the holder of the licence had
contravened or not complied with a provision of this Act or
a
condition specified in that licence, permit or authorisation; or
(b)
if the holder of the licence, permit or authorisation became or was
in terms of section 102 or 103 declared unfit to possess
a firearm. ”
[24.]
Section 135 of the Act provides for circumstances where no
compensation is payable in respect of firearms and ammunitions
seized
by the state;
“
135
(1) No compensation is payable to a person from whom a firearm or
ammunition was seized by the State if-
(a)
no licence, permit or authorisation had been issued for such firearm
or ammunition to that person in terms of this Act; or
(b)
the firearm or ammunition
was
for any other reason
unlawfully in the possession of that person.
(2)
The lawful owner of a firearm
or ammunition lost or stolen as a result of his or her negligence is
not entitled to claim compensation
if such firearm or ammunition is
subsequently seized by the State from another person”.
[25.]
Section 136 which is directly in contention in this matter provides
that no compensation is payable where firearms are destroyed
by the
state and provides that;
“
136
(1)
The Registrar may in respect of any firearm or ammunition seized by,
surrendered
to or forfeited to the State, issue a notice in the Gazette stating
that it is the intention of the State to destroy that firearm
or
ammunition.
(2)
Any person who has a valid claim to the relevant firearm or
ammunition may, within 21 days after the publication of the notice
in
the Gazette, make representations to the Registrar as to why the
firearm or ammunition should not be destroyed.
(3)
If the Registrar is satisfied, after consideration of any
representations contemplated in subsection (2), that a valid claim
to
the relevant firearm or ammunition has not been proved, the firearm
or ammunition may be destroyed and no compensation will
be payable to
anyone in respect thereof’, (my underlining)
[26.]
Section 137 which is likewise in contention deals with applications
for compensation and provides as follows;
“
137
(1) A person whose firearm has been
surrendered
or forfeited to the State in circumstances other than those referred
to in sections 134, 135 and 136 may apply to the Registrar
for
compensation in respect of that firearm in the prescribed form.
(2)
On receipt of an application for compensation made in terms of this
section, the Registrar must-
(a)
decide whether or not compensation is payable in terms of this
Chapter;
(b)
if compensation is payable, attempt to agree with the applicant on
the amount of compensation to be paid; and
(c)
if compensation is payable, but no compensation is agreed upon,
determine the amount of compensation to be paid.
(3)
An applicant for compensation may appeal against a decision of the
Registrar made in terms of subsection (2)
(c)
.
(4)
On receipt of an appeal lodged in terms of subsection (3) the Appeal
Board must-
(a)
hear the applicant and the Registrar; and
(b)
determine the amount of compensation to be paid.
(5)
The Minister must, with the approval of the Minister of Finance,
establish guidelines for the payment of compensation, taking
into
account the-
(a)
financial constraints on the State and its ability to meet actual and
anticipated claims for compensation; and
(b)
interests of persons who have applied or may in the future apply for
compensation.
(6)
The guidelines referred to in subsection (5) bind-
(a)
the Registrar when he or she agrees or determines compensation in
terms of subsection (2); and
(b)
the Appeal Board when it determines compensation in terms of
subsection (4).
(7)
A person who is not satisfied with the amount of compensation or the
time or manner of payment as determined by the Appeal Board,
may
approach a court to determine the amount, the time and the manner of
payment of the compensation.” (my
underlining)
[27.]
The applicants submit that the compensatory scheme under the Act
seeks to achieve two important purposes, firstly it acts
as an
incentive to reduce the number of firearms (both legal and illegal)
as intended by the legislature and secondly and more
importantly to
compensate licence holders in compliance with the states
constitutional obligations as contemplated in section 25(1)
of the
Constitution which provides as follows;
“
25
Property
(1)
No one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation
of property.
”
The
applicants further highlighted that specific provision is made in
section 149(3) under the General Provisions of the Act for
compensation to be paid where firearms which have been forfeited to
the State are retained for reasons of special value. Section
149(3)
provides;
“
(3)
(a) Despite subsection (2), the State may retain any firearm or
ammunition forfeited to the State, which the Registrar deems
to be of
special value.
(b)
Any firearm or ammunition retained by the Registrar in terms of
paragraph (a) becomes the property of the State when the Registrar
informs the former owner of the firearm of that fact.
(c)
Subject to Chapter 19, the former owner of any firearm or ammunition
which becomes the property of the State in terms of paragraph
(b) may
apply for compensation in terms of this Act. ”
[28.]
The respondents while accepting that although one of the purposes of
the legislation is the reduction of firearms held lawfully
(under the
old Act) and illegally (in contravention of both the old and new
Acts) deny that the payment of compensation as provided
for in the
Act is to incentivize compliance with the Act but that compensation
is limited to those instances where firearms are
retained by the
state and not destroyed. The respondents strenuously dispute that
where firearms have been voluntarily surrendered
to the state for
destruction, such voluntary surrender amounted to an arbitrary
deprivation of property as contemplated in section
25(1) of the
Constitution and deny that those who do voluntarily surrender their
firearms are entitled to any compensation.
[29.]
It is within this context that the parties contend for their
different interpretations of the relevant sections.
[30.]
Mr. Hodes SC
who
together with
Mr. Katz SC
and
Mr. Simonsz
appeared
on behalf of the applicants submitted that a different meaning
should be attributed to the words “surrendered”
as they
appeared in sections 137(1) and sections 136(1). He argued that as
there were no circumstances set out in the Act with
regard to the
surrender of firearms as opposed to that of forfeiture which is
dealt with in section 134 and seizure in section
135, the word
surrendered in section 136(1) should be construed as part of an
eiusdem generis
with that of the seizure and forfeiture in which, he argued, denoted
a surrender in circumstances of unlawful possession. He
submitted
that in context, “surrendered” in section 136(1) must be
construed as possession of firearms in
unlawful
circumstances
as opposed to
“surrendered” section 137(1) as possession in
lawful
circumstances
as section 137(1) specifically provided for circumstances other than
that referred to sections 134, 135 and 136. (my underlining.)
[31.]
In so doing, Mr. Hodes submitted, a proper meaning is given to the
words surrendered in each of the sub sections. He argued
that
reliance for the contention was to be found in the decision of
Watchenuka and Others v Minister of
Home Affairs
2003 (1) SA 619
CPD,
where
HJ Erasmus J held that;
“
it
is a well-known principle that ‘a statute ought to be
construed that, if it can be prevented, no clause, sentence, or
word
shall be superfluous, void or insignificant’ (per Cockburn J
in The Queen v Bishop of Oxford
(1879) 4 QBD 245
at 261, cited with
approval in Attorney General, Transvaal v Additional Magistrate for
Johannesburg
1924 AD 421
at 436 and S v Weinberg
1979 (30 SA 89
(A)
at 98E). Meaning must be attributed to each of the three sections on
the basis that the Legislature does not intend to enact
purposeless
provisions that have no effect or practical meaning. ”
[32.]
Mr. Hodes further submitted that section 137(1) would be rendered
meaningless unless different meanings were to be given
to
“surrender” in sections 136(1) and 137(1). The court was
therefore invited to accord a meaning to the words “surrender”
in the sections that the applicants claimed would be construed as
consistent with the objectives of the Act and where those in
lawful
possession or ownership of firearms were incentivized to surrender
their firearm(s) to the state for destruction and where
the
surrender would be met with compensation in terms of section 137(1)
and where the state as such would be in compliance with
the
prescripts of section 25(1) of the Constitution.
[33.]
Mr. Olivier
(SC)
who together with
Mr. Varney
and
subsequently also
Mr. Budlender
(SC)
represented the respondents submitted that the term surrender in
section 136(1) had simply to be given its ordinary meaning
and that
in the context of the entire section the circumstances of the
surrender was that where firearms were destroyed and for
which no
compensation was payable by the state. He submitted that
“surrendered” in section 137 (1) clearly meant
firearms
that had not been destroyed in terms of section 136 of the Act. He
argued that there was no tension between sections
136(1) and 137(1)
that had to be resolved by ascribing a different meaning to the
words “surrendered” in the respective
sections. He
submitted that the
Watchenuka
decision (above) was not applicable
as there were no words, clauses or sentences that were rendered
meaningless or redundant with
the application the ordinary
interpretation to the relevant provisions of the Act.
[34.]
In interpreting the relevant sections the court is enjoined by
section 39(2) of the Constitution to promote the spirit,
purport and
objectives of the Bill of Rights. The court has therefore to invoke
the discipline and mandate of the constitution
when applying the
golden rule of statutory interpretation when seeking to determine
the intention of the legislature. This is
done through taking “the
language of the instrument or of the relevant portion of the
instrument as a whole and where the
words are clear and unambiguous
to place upon them their grammatical construction and give it, it’s
ordinary effect;
Venter v R
1907 TS
910
at
913,
referred
to in
JR Ville Constitutional
and Statutory Interpretation published 2000 at 94.
Should
there be a dispute as to the ordinary meaning of the words the
interpretation of the legislation would depend on the context
and
the subject matter of the provisions. There would however have to be
compelling reason for a departure from the ordinary
meaning as
observed by Olivier JA in Ngcobo and Others v Salimba CC; Ngcobo vs
Van Rensburg 1999(2) SA1057 (SCA);
“
The
ordinary meaning should therefore in principle be adopted unless the
context dictates or furnishes very strong grounds for
a different
reading of the intention of the legislature, such as where the
ordinary meaning would lead to an interpretation of
the section
being unreasonable, inconsistent, unjust or where it would lead to
an absurd result. ” More importantly where
the interpretation
would undermine any of the rights enshrined in the Bill of Rights or
is contrary to its spirit, purport or
objectives. ”
[35.]
While the reduction of firearms both legal and illegal is one of the
important purposes of the Act I am of the view that
it does not
appear from the overall objectives and purposes of the Act that the
compensatory regime was meant to act as an incentive
for the
voluntary surrender of legally held firearms. An incentive scheme
with regard to the voluntary handing over of firearms
would have
been dealt with in clear and unambiguous terms by the state such as
it does in amnesty schemes in respect of illegal
firearms. If the
state had intended that the provisions of the compensatory scheme
were to be an incentive scheme as contended
for by the applicants it
would have done so clearly in the language of the Act.
[36.]
In the light of the constitutional imperative with regard to
interpretation of the provisions of section 136(1) and 137(1)
it is
necessary to address the constitutional question as to whether the
voluntary surrender of firearms in the context of the
Act and in the
circumstances described by the applicants amounts to an arbitrary
deprivation of property in terms of section
25(1) of the
Constitution.
Does
the voluntary surrender constitute an arbitrary deprivation?
[37.]
The point of departure between the parties relates in the main to
the meaning to be given to the term “surrendered”
in the
respective provision of the Act. The applicants submit that through
the force of circumstances created under the Act and
its machinery,
in particular, the consequent backlogs and bureaucracy associated
with the processes many firearm holders willingly
choose to uphold
the law and voluntarily surrendered their firearms to the state for
destruction. The applicants also claim that
many firearm holders
also did so because of the restrictiveness of the Act. Further, they
claimed that the new Act had drastically
impacted on the firearm
market and created a limited demand for used firearms. A number of
firearm holders, the applicants claimed
who due to shear “bad
luck” were not able to dispose of their firearms through sale
had therefore surrendered their
firearms to the state for
destruction in contemplation of compensation.
[38.]
Counsel for both parties were in agreement that the test for an
arbitrary deprivation of property as provided in section
25(1) of
the Constitution has authoritatively been dealt with in the decision
of the Constitutional Court in the matter of
First
National Bank of South Africa (FNB)v Minister of Finance 2002(4) SA
768 CC
wherein
the following is stated;
“
[100]
Having regard to what has gone before, it is concluded that a
deprivation of property is 'arbitrary' as meant by s 25 when
the
'law' referred to in s 25(1) does not provide sufficient reason for
the particular deprivation in question or is procedurally
unfair.
Sufficient reason is to be established as follows:
(a)
It is to be determined by evaluating the relationship between means
employed, namely the deprivation in question and ends
sought to be
achieved, namely the purpose of the law in question.
(b)
A complexity of relationships has to be considered.
(c)
In evaluating the deprivation in question, regard must be had to the
relationship between the purpose for the deprivation
and the person
whose property is affected.
(d)
In addition, regard must be had to the relationship between the
purpose of the deprivation and the nature of the property
as well as
the extent of the deprivation in respect of such property.
(e)
Generally speaking, where the property in question is ownership of
land
or a corporeal moveable, a more compelling purpose will have to be
established in order for the depriving law to constitute
sufficient
reason for the deprivation than in the case when the property is
something different and the property right something
less extensive.
This judgment is not concerned at all with incorporeal property.
(f)
Generally speaking, when the deprivation in question embraces all
the incidents of ownership, the purpose for the deprivation
will
have to be more compelling than when the deprivation embraces only
some incidents of ownership and those incidents only
partially.
(g)
Depending on such interplay between variable means and ends, the
nature of the property in question and the extent of its
deprivation, there may be circumstances when sufficient reason is
established by, in effect, no more than a mere rational relationship
between means and ends; in others this might only be established by
a proportionality evaluation closer to that required by s
36(1) of
the Constitution.
(h)
Whether there is sufficient reason to warrant the deprivation is a
matter to be decided on all the relevant facts of each
particular
case, always bearing in mind that the enquiry is concerned with
'arbitrary
1
in relation to the deprivation of property under s 25.
[39.]
The test in the FNB case recognizes that in appropriate
circumstances and where permissible and in the broader public
interest the state may deprive persons of property without payment
of compensation provided there is an appropriate relationship
between the means and the ends and where the state had provided
sufficient reasons for such deprivation and such deprivation
is not
procedurally unfair. In employing the methodology of the FNB test in
determining whether there exists sufficient reason
for the
deprivation of firearms through voluntary surrender without
compensation the first part of the inquiry relates to
the
relationship between the means employed (the deprivation in
question) and
the
ends to be achieved (the purpose of the measures in question). There
must to be a rational relationship between the voluntary
surrender
and its objectives. The means is the voluntary surrender of the
firearms for destruction which is part of a number
of options
available under the Transitional Provisions of the Act. The
respondents contend that two broad objectives exist, firstly;
the
immediate objective of the transition from the old Act with less
stringent requirements to the new Act with tougher controls.
Secondly, they contend that there is a higher level and a much
longer term objective that includes improving the control of legally
possessed firearm and the prevention of crime involving the use of
firearms and the enabling of the state to remove illegally
possessed
firearms. These objectives, the respondents contend are both
legitimate and important legislative purposes and are
essential for
the well being of the country and in the interest of all its
inhabitants. The applicants do not gainsay these objectives
but
argue that it should not only be the holders of firearms who have to
carry such responsibility and make the sacrifice for
the wellbeing
of all the inhabitants of the country. The respondents correctly
submit though that there is a rational relationship
to be found
between the voluntary surrender of firearms and the legitimate
objectives sought to be achieved by the state.
[40.]
The second inquiry under the FNB test relates to the complexity of
the relationship concerned and entails an evaluation
of the
relationships between th purposes for which the deprivation is made
and the persons whose property are affected thereby.
In this regard
the respondents submit that mindful of the high
level
purposes of the deprivation i.e, the tightening of controls with
regard to the
possession
of firearms, the removal of legal firearms and the combating of
violent crime, the deprivation that emerges for voluntary
surrender
is legitimate. They claim that the relationship between the people
deprived of the possession of their firearms and
the purpose of the
deprivation is of a sufficiently close relationship or connection
and the overall purposes behind the Act.
Those individuals who have
chosen not to subject themselves to the more stringent and
restrictive requirements of the Act voluntary
chose to surrender
their firearms and have elected not to exercise any of the other
options of disposing of their firearms through
sale or by any of the
other measures allowed.
[41.]
The third leg of the inquiry relates to the relationship between the
purpose of the deprivation and the nature of the property.
The
respondents claim that firearms are regarded as highly dangerous and
lethal instruments and South Africa unlike other countries
does not
provide for a right to bear arms but permits its possession and
ownership by statute on very specific conditions. The
respondents
claim that where firearms are typically surrendered for destruction
such items would constitute a slight or insignificant
proportion of
the total assets of the surrendering owner. They claim that the
extent of the deprivation would therefore have
a minimal impact on
the personal autonomy of such firearm owners. They claim that in
cases where a firearm owner surrender firearm(s)
of a high value
there would be a likely case for their preservation and provision is
therefore made for compensation in such
circumstances. The
respondents claim therefore that the deprivation does not impose an
unacceptable heavy burden
upon
or demand exceptional sacrifices from one individual or a small
group of individuals for the sake of the public at large.
For these
reasons the respondents contend that whatever deprivation takes
place is entirely appropriate in the circumstances.
They contend
that besides not only being rational and linked to a legitimate
government purpose the state has also established
a proportionate
balance between the public benefit it serves and any resultant
losses to individuals. The respondents conclude
and correctly so
that there is in effect no arbitrary deprivation of property and
therefore no expropriation that warrants the
payment of compensation
in the circumstances.
[42.]
When considering what meaning should be ascribed to the words
“surrendered” in sections 136(1) and 137(1) I
am of the
view that the ordinary meaning of the words must be ascribed
thereto. The attainment of the overall objectives of the
Act does
not necessitate that different meanings must be given to the words
“surrendered” in the respective sections.
Clearly
stated, the circumstances of the voluntary surrender are inclusive
of both situations where firearms are held either
lawfully or
unlawfully in terms of section 136(1) and where destroyed. In such
circumstances no compensation is payable. Where
however the state
does not destroy the firearms and where such firearms were either
surrendered or forfeited, compensation is
payable in terms of
sections 137 and 149(3) of the Act. I am therefore of the view that
the Guidelines enacted by the first respondent
are not
ultra
vires
the provisions of the Act and
the Constitution.
Reasonable
compensation.
[43.]
The applicant’s further attack on the lawfulness of the
Guidelines is their claim that the state has not provided
sufficient
compensation to be paid to those who are entitled to it under the
Act.
[44.]
The position of the Director General and Accounting Officer of the
National Treasury is established in terms of the Public
Finance
Management Act 1 of 1999 (PFMA.)
Mr
Ellias Lesetja Kganyago
the
incumbent deposed to an affidavit on behalf of the fourth
respondent. Kganyago pointed out that in terms of section 216(1)
of
the Constitution the National Treasury is required to prescribe
measures to ensure both transparency and expenditure control
in each
sphere of government. Kganyago claimed that as such an important
concern of the National Treasury was to ensure that
the system of
compensation for the surrender of firearms is economically viable
and that it met the requirements of efficiency
and expenditure
control as contemplated by the PFMA. He stressed that the provisions
of the Constitution, the PFMA and section
137(5) (a) of the Act not
only required an assessment of the potential monetary outlays by the
state as to whether it could afford
such expenditure but also an
assessment of the spending in the light of existing financial
obligations of the state, fiscal policy
and the states current and
longer term budgetary priorities. The impact of any such expenditure
on the fiscus and the ability
of the state to meet such financial
obligations also had to be considered. Kganyago claimed that
compensating firearm owners
who had voluntarily surrendered their
firearms would not only be contrary to the provisions of the Act but
would also not be
economically sensible or viable and would
undermine fiscal policy. By using the number of firearms that had
been surrendered
between the 1 January 2005 to the 31
st
March 2009 as 178 975, (including both handguns of which 50 113 were
rifles) and which had been destroyed, Kganyago projected
the cost
that would have been incurred by the State had it paid out
compensation at either the flat rate or maximum amounts prescribed
for in the Guidelines to all of those who had surrendered their
firearms.
[45.]
Kganyago claimed that it would be difficult to have accurately
estimated the market related value of the firearms that had
been
voluntarily surrendered during the period and which had been
destroyed since it would have involved
attaching
a specific value to each of the firearms. Such a task he claimed
would have amounted to a massively burdensome undertaking
both
administratively and in financial terms. He claimed though that for
the purposes of determining the potential financial
implications the
state employed a method of calculation that used a “market low
average” and a “market high
average”. The market
low average was determined at a R1000.00 for handguns and R4000.00
for rifles. The market high average
was determined at R2500.00 for
handguns and R7500.00 for rifles. Using these figures he projected
the estimated cost that the
state would have been incurred in the
payment of compensation. He submitted that in order for the state to
have paid compensation
based simply on market value the State would
have had to obtain funds from within the existing police budget and
which would
have had a direct and deleterious consequence on the
delivery of safety and security services. He also compared the
various projected
amounts against budgeted line items in various
parts of the police budget as a demonstration of the comparative use
of resources
based on a voluntary compensation model.
[46.]
The applicants for their part submitted that the value of many of
the handguns and rifles that had been surrendered would
have
exceeded that provided for in the Guidelines. They claimed that
although it was difficult to estimate the exact market value
of the
firearms surrendered, based on the evidence available to them, a
fair market average would be R2000.00 for hand guns and
R5000.00 for
rifles. These amounts they claimed were considerably more than the
maximum rate allowed for in the Guidelines. They
submitted that the
maximum limits set by the guidelines were disproportionately low and
fettered the exercise of the panel’s
discretion as provided
for in the Guidelines. They claimed that the low maximum amount
provided for in the Guidelines would create
a risk that some people
would receive no more than token compensation where they had owned
expensive firearms. They claimed though
that while they did not
contest that it was necessary for the respondents to be guided by
the financial constraints of the state
as provided for in section
137(5)(a) such a consideration had to be balanced against the
interests of the persons who were entitled
to compensation under the
Act as provided for in section 137(5)(b). The applicants contend
that the balancing of such interest
had also to take into account
the
market value
of the firearms in the determination of appropriate amounts of
compensation, (my underling) [47.] While Kganyago does not set
out
the detail of the actual method used by the state in determining the
amounts in the Guidelines he claimed that when doing
so the state
had taken into account its obligations under the Act, the PFMA and
the Constitution. He also explained the use of
the relative market
values used by the state in the determination and the overall impact
of the amounts on the budget of the
Police Services. In considering
his explanation and the factors that were taken into account it does
not appear in my view, that
the amounts determined in the Guidelines
are to be found as been unreasonable and nor does it amount to an
arbitrary deprivation
of property for the reasons already dealt with
earlier.
[48.]
A related question with regard to the reasonableness of the amounts
was that of the allocation of state resources. While
the respondents
relied on the judgment of the Constitutional Court in the matter of
Soobramoney v Minister of Health,
Kwazula Natal
[1997] ZACC 17
;
1998 (1) SA 765
CC
with
regard to the justification of the states allocation of resources
the applicants claimed that an increase in the amounts
in Guidelines
with regard to compensation (including all of those who had
voluntarily surrendered) would amount to no more than
one percent of
the entire police budget.
[49.]
Mr. Hodes submitted that this was not a policy decision but rather
one that dealt with the proper use of state resources
as required in
terms of the Act and the Constitution. In the light of my findings
that the amounts in the Guidelines are not
unreasonable it is not
necessary for me to determine whether there has in fact been a
proper allocation of state resources. However
it could hardly be
argued that the allocation of budgets for compensation for those who
surrendered or forfeited their firearms
under the Act raises a
question of the progressive realization of the more pressing socio
economic rights and needs under the
Constitution. Moreover in a
context of where firearm owners had voluntarily surrendered their
firearms to the state for destruction.
The
Registrar’s discretion
.
[50.]
The applicants claimed that when exercising a discretion in terms of
section 137(2)(a) as to whether compensation is payable
or not the
Registrar is not assisted by any guidelines in the exercise of the
discretion. The applicants contend that when an
exercise of
discretion affects rights such as the right to property it is not an
unbounded discretion but an exercise that must
properly beguided by
the legislature. In this regard reliance was placed on the decision
of the Constitutional Court in
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another & Others v Minister of Home Affairs and Others;
Thomas
and Another v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC)
“
We
must not lose sight of the fact that rights enshrined in the Bill of
Rights must be protected and may not be unjustifiably
infringed. It
is for the Legislature to ensure that, when necessary, guidance is
provided as to when limitation of rights will
be justifiable. It is
therefore not ordinarily sufficient for the Legislature merely to
say that discretionary powers that may
be exercised in a manner that
could limit rights should be read in a manner consistent with the
Constitution in the light of
the constitutional obligations placed
on such officials to respect the Constitution. Such an approach
would often not promote
the spirit, purport and objects of the Bill
of Rights. Guidance will often be required to ensure that the
Constitution takes
root in the daily practice of governance. Where
necessary, such guidance must be given. Guidance could be provided
either in
the legislation itself or, where appropriate, by a
legislative requirement that delegated legislation be properly
enacted by
a competent authority.
”
[51.]
The respondents for their part submitted that these remarks was of
no application in the matter as the decision to be made
by the
Registrar did not impact negatively on a constitutional right nor
was it an exercise of a discretionary power. The respondents
submit
that the only discretion vested in the Registrar in terms of section
137(2) is with regard to the amount of compensation
to be paid or
not. The decision as to whether the compensation is to be paid is a
factual enquiry determined as to whether a
firearm was destroyed or
not in terms of section 136. As to whether a firearm is to be
destroyed or not is a decision made on
the basis of whether there is
any value or utility to the state in retaining the firearm. The
respondents correctly contend that
in the circumstances of the
exercise of this decision it is not required (as per the Dawood
decision) for guidelines either from
the Act or the Guidelines.
The
Constitutionality of the various provisions of the Act.
[52.]
Both parties correctly contend that in certain circumstances the
court may on its own raise the constitutionality of a legislative
enactment, see
Director of Public
Prosecutions , Transvaal , Minister of Justice and Constitutional
Development and Other
2009 (4) SA 222
CC
where
the following was held;
“
34]
The supremacy clause of the Constitution declares that the
Constitution is the supreme law; any law or conduct that is
inconsistent
with it is invalid.
Like
other branches of government, the judiciary must uphold and protect
the Constitution.
And
s 8(1) of the Constitution provides that the Bill of Rights is
binding on the judiciary as well as on the legislature and
the
executive. In addition, s 39(2) provides that when interpreting any
legislation, every court must promote the spirit, purport
and
objects of the Bill of Rights. In the light of these provisions of
the Constitution, a court cannot enforce a law that is
inconsistent
with the Constitution. It follows that a court may raise, of its own
accord, the
unconstitutionality
of a law that it is called upon to enforce.
23
And we added that 'there might be circumstances where a court is
obliged to raise the matter on its own and require full argument
from the parties'.
[53.]
See also the remarks in
of
Moise v Greater Germiston Transitional
Local
Council: Minister of Justice and Constitutional Development
intervening 2001(4) SA 491 CC at para 19;
[54.]
Counsel for the respondent submitted that as an ordinary rule
“Courts should observe the limits of their powers. They
should
not constitute themselves as the overseers of laws made by the
legislature. Ordinarily, therefore, they should raise and
consider
the constitutionality of laws that are properly engaged before them
and where this is necessary for the proper resolution
of the dispute
before them”
Director of
Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development and Other, para 39.
[55.]
Respondent submit that there is no good reason to depart from this
ordinary rule and that if the court was to raise any
constitutional
matter it would be necessary for such matter to be defined with
precision and that the parties be allowed to place
before the court
any requisite factual material or policy considerations that they
may wish to raise in defence of the constitutionality
of the Act.
[56.]
In as much as I have found that the interpretation to be accorded to
the provisions of section 136(1) and 137(1) does not
amount to an
arbitrary deprivation of property there does not appear to be any
further constitutional issues in this application
that require
determination by me. I am therefore of the view that the relevant
provisions of the Act which have been specifically
dealt with in
this application do not raise constitutional issues other than that
already considered in the context of section
25(1) of the
Constitution.
[57.]
The Guidelines provide that where an applicant for compensation
challenges the amount awarded either as the initial amount
or any
amount determined by the panel and where such panel has to consider
such appeal the applicant would be liable for the
costs of the
panel. The panel is established as an independent body by the state
in terms of the Guidelines. It is not a panel
in which any of the
applicants for compensation participated in choosing. Applicants for
compensation would in all probability
also resort to the use of
their own experts when challenging the amount determined by the
panel and would carry the costs of
such expert evidence themselves.
In the circumstances it is unfair to saddle such applicants with the
further costs of the evaluation
by the states panel of valuators.
Such a charge would also amount to a deterrent by those who seek to
challenge the amounts initially
determined by the panel and would
defeat the very purpose of access to an appeal process. In the
circumstances I am of the view
that the guidelines are unfair and
therefore unlawful in so far as they require applicants to pay the
costs of the valuation
by the independent panel where the valuations
are challenged.
Costs
[58.]
The applicants have submitted that given the public interest in the
nature of the issues raised in the matter, that if unsuccessful,
they should not be saddled with an adverse costs order. In this
regard they relied on the decision in
the
matter of
Biowatch Trust v
Registrar, Genetic Resources and Others 2009(6) SA232.
[59.]
I am satisfied that applicants have indeed raised important public
interests issues. Moreover the challenge has highlighted
the need
for the first respondent to facilitate in his own words various
changes to the Guidelines so as to remove any confusion
caused
thereby.
[60.]
In the circumstances no order of costs is made against the
applicants in this matter.
In
the circumstances the following order is made;
(i)
The provision of Paragraph 4 of the Guidelines published by the
respondents which provides that the costs incurred in obtaining
the
valuation must be deducted from the compensation payable to an
applicant is declared unlawful
(ii)
That the fourth respondent is to take appropriate steps within 60
days of this order for the deletion of item 2 and the clearing
up of
any confusion caused by item 3 in the Guidelines.
(iii)
Save for the above, the relief sought by the applicants is
dismissed.
(iv)
No order is made as to costs.
SALDANHA J