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[2010] ZAGPPHC 49
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Spear Security Group (Pty) Ltd t/a Specialised Services Group and Others v Bothma NO and Others (26438/2010) [2010] ZAGPPHC 49 (14 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
NORTH
GAUTENG HIGH COURT. PRETORIA
)
CASE
NO: 26438/2010
DATE:
14/06/2010
IN
THE MATTER BETWEEN
SPEAR
SECURITY GROUP (PTY) LTD
t/a
SPECIALISED SERVICES GROUP FIRST APPLICANT
SERVEST
(PTY) LTD t/a GREMICK SECURITY
(a
division of Servest) SECOND APPLICANT
ARCFYRE
(PTY) LTD THIRD APPLICANT
UNIT
14 SECURITY SERVICES CC FOURTH APPLICANT
SECURITY
INDUSTRY ALLIANCE FIFTH APPLICANT
AND
BRIGADIER
J BOTHMA, N.O. FIRST RESPONDENT
THE
FIREARMS APPEAL BOARD SECOND RESPONDENT
THE
NATIONAL COMMISSIONER
SOUTH
AFRICAN POLICE SERVICES THIRD RESPONDENT
THE
MINISTER OF POLICE FOURTH RESPONDENT
THE
SECRETARY OF POLICE - JENNI
IRISH
QHOBOSHEANE FIFTH RESPONDENT
JUDGMENT
BAM.
AJ
[1]
Firearms, be it the spoken or printed word, in our country,
immediately draws the attention and raises the eyebrows of all and
sundry. The abuse of firearms is of the utmost concern of the
government, the SAPS and so on down the line including the
individual,
whether citizen or foreigner. The reason for everyone's
concern is obvious. Many crimes in our country are currently
committed
by criminals wielding and using firearms randomly.
[2]
Primarily it is the unenviable but undeniable duty of the SAPS to
maintain law and order, but to do so, is no mean feat. It
appears
from the papers in this matter that certain departments of the SAPD
are on the probabilities overburdened and overloaded
with
responsibilities they are entrusted with, including the combating of
crime.
[3]
It seems to be common cause that the Firearms Control Act. Act 60 of
2000. ("the Act"), and the
Firearms Control Regulations
("the regulations") introduced a host of new regulations
and conditions to be complied with,
inter
alia,
when
applications are lodged for the issuing of firearm licences.
[4]
Provision is made in the relevant act for the business venture of
security sendee providers as defined in
section
1
of the Private Security Industry Regulation Act,
2001, Act 56
of 2001
and cf
section
1
"Definitions" of the Act. Provision is further made in
section
20(2)(a)
of the Act for the issuing of a licence to possess a firearm to
security service providers for business purposes.
[5]
The first four applicants in this application are security service
providers. It is undisputed that the said applicants regarding
the
application to possess firearms for business purposes comply with all
the required conditions in the Act and regulations as
well as Act 56
of 2001
{supra).
It
is also common cause that the four applicants have in their employ a
vast number of security officers as defined in
section
1
of the Act.
[6]
The main aim of security service providers is to render a service to
the general public regarding personal safety, as well as.
inter
alia,
for
example to certain financial institutions pertaining to transport and
safekeeping of money. In rendering the services as aforesaid,
the
security service providers, to my mind, render some assistance to the
SAPS in their endeavours to combat violent crime and
to protect the
man on the street.
[7]
It is further common cause that the first to fourth respondents also
have certain other features in common to wit:
1, they
render security services of a wide variety to the general
public,
certain individuals, financial institutions, etc;
2. the
business ventures of the applicants have recently escalated for
various reasons to such proportions that the applicants,
without
being in
possession of the necessary number of firearms, which, on
the papers, are a vast number, will not be able to render the
security
services in terms of
the provisions of contracts they are
parties to and any other contract they intend to enter into.
[8]
Mainly as a result of the oncoming 2010 Soccer World Cup events which
are to take place in the country, it is common cause that
safety of
the general public, as well as other safety issues, are presently of
major concern to both the applicants and the first
to fourth
respondents.
[9]
The first respondent, in his official capacity, is in terms of the
Act empowered to regulate and issue licences for the possession
of
firearms.
[10]
The second respondent is the Firearms Appeal Board established by
section
128
of
the Act. empowered to deal with appeals against decisions of first
respondent.
[11]
The fifth applicant and the fourth and fifth respondents did not play
any role in this application.
[12]
The basis for the first to fourth applicants' application mainly
turns around the averment of the applicants that the first
respondent
did not. in accordance with the provisions of the Act and
regulations, within a reasonable time, decide to issue or
refuse
applications for firearm licences in general as well as applications
referred to as "
section
21
authorisations" lodged by the four applicants. The respondents
oppose the application.
[
13] The relief sought by the applicants are as follows:
"1.
That in terms of
section
7(2)(c)
of the Promotion of Administrative Justice Act. Act 3 of 2000.
(hereinafter referred to as 'PAJA'X an order declaring that such
exceptional circumstances exist that it exempts the applicants from
exhausting the internal administrative remedy:
that
the first respondent is ordered to issue
section
21
authorisations
to the applicants for a period of not less than one year for the
firearms set out in annexure 'Al to A4
1
,
annexed to the notice of motion;
3. that
such authorisation be issued within 48 hours;
4.
that the conditions as listed in annexure 'B' to the notice of
motion, together with such further conditions as ordered by
the
honourable court be applicable in respect of the firearms so issued:
5.
that the first, second and third respondents pay the costs of the
applications jointly and severally, the one paying the other
to be
absolved."
[14]
The respondents seek in their counter-application basically in the
form of a declarator, an order as follows:
"2.
that any applicant who intends to apply for a licence to possess a
firearm for business purposes, as provided for in
section
20
of the Firearms Control Act, Act 60 of 2000, or who has already
applied for a licence to possess a firearm for business purposes,
is
not allowed to apply for a temporary authorisation to possess a
firearm for business purposes as contemplated in
section
21
of the
Firearms Control Act, 60 of 2000
; alternatively to prayer 2
above:
an
order declaring that any application for temporary authorisation to
possess a firearm for business purposes as contemplated
in
section
21
of the
Firearms Control Act, 60 of 2000
, may only be issued subject
to each and every condition contained in
regulation
21
of the
Firearms Control Regulations;
an
order declaring that each and every temporary authorisation issued to
an applicant for business purposes prior to this order, be
endorsed
by the first respondent to reflect each and every condition as
provided for in
regulation
21
of the
Firearms Control Regulations;
that
any temporary authorisation issued to an applicant for business
purposes be valid for a period of 3 (three) months, to be reviewed
{sic)
by
the first respondent;
that
the applicants pay the costs of the application jointly and
severally, the one paying the other to be absolved ..."
[15]
It was common cause between the parties that the relief sought both
in terms of the main application and the counter-application
should
be dealt with on an urgent basis. In this regard I wish to remark
that it is for this court to decide whether the application
is urgent
or not. and not for the parties. In practice no party can go beyond
submitting that an application is urgent. However,
upon reading of
the papers I am satisfied that the application is indeed urgent and I
have ruled accordingly.
[16]
1 have overruled the respondents' application that the counter-claim
of the respondents should be heard before the application
of the
applicants. According!)' I have issued the order that the
applications of both parties should be dealt with simultaneously.
The
reasons for my aforesaid ruling are already on record. I have further
ruled that the points
in
limine
raised
by the parties regarding non-joinder and misjoinder should also be
dealt with during the hearing of the main- and counter-claims.
[17]
The applicants (first to fourth) are mainly aggrieved because of as
they aver, the first respondent's failure to make a decision
regarding their respective applications for
section
21
licences, within a reasonable time. I will hereunder refer to the
detail of each applicant's complaints, where it differs. In the
meantime, however, pertaining to the first applicant's complaints,
the first respondent, after the lodging of this application,
indeed
considered, and refused, the first applicant's application for the
temporary authorisation of licences in terms of
section
21
of the Act.
[18]
Section
21
of the Act authorises the temporary authorisation of firearm
licences. The interpretation of this section is in the centre of the
disputes between the parties. The applicants contend that the first
respondent is obliged, in terms of the provisions of the section,
to
authorise the temporary licences applied for by the first to fourth
applicants
in
casu.
The
respondents insist that the said section in their interpretation does
not provide for the authorisation of a temporary licence
to any
person who has already applied for, or who intends to apply for a
firearm licence in terms of the provisions of
section
20
of the Act.
[19]
The respondents accordingly (prayer 2) in their counter-application
indeed seek relief as referred to above, that this court
should make
an order, in the form of a declaratory order, reflecting the
respondents' submission in that regard.
[20]
I deem it apposite to quote the two
sections.
20 and 21
in this judgment:
"20.
Licence
to possess firearm for business purposes
.
-
(1) (a)
A
firearm
in respect of which a licence
may
be
used in
terms
of this section is any firearm other than a prohibited firearm.
(b)
Despite
paragraph (a), a licence in respect of a prohibited firearm mav be
issued to a person contemplated in subsection (2He) but
such person
may only provide a prohibited firearm for using theatrical, film or
television productions and then onlv if the prior
written approval of
the Registrar has been obtained and on such conditions as the
Registrar mav impose.
(2)
The
Registrar may issue a licence in terms of this section to-
(a)
a
security service provider:
(b)
a
person who is accredited to provide training in the use of firearms:
(c)
a
person who is accredited to provide firearms for use in theatrical,
film or television productions:
(d)
a person who is accredited as a game ranger:
(e)
a
person who is accredited to conduct business in hunting:
or
(f)
anv person who is accredited to use firearms for such other business
purpose as the Registrar may determine.
(3)
A
licence issued in terms of this section must specify the business
purpose in respect of which it is issued.
(4)
A
firearm in respect of which a licence was issued in terms of this
section mav onlv be used as specified in the licence.
(5)
(a)
The
holder of a licence issued in terms of this section mav
only
provide a firearm for use by another person subject to such
conditions as may be prescribed.
(b)
A
security service provider which holds a licence to possess a firearm
for business use may only provide a firearm to a security
officer in
its service who holds a competency certificate.
(6)
Everv
holder of a licence issued in terms of this section must-
(a)
keep a register of all firearms in his possession containing such
information as mav be prescribed; and
(b)
store and transport the firearm as mav be prescribed.
(7)
The
holder of a licence issued in terms of this Act must, at the
request
of a police official, produce for inspection-
(a)
anv
firearm and ammunition in his possession or under his
control;
and
(b)
everv licence issued in terms of this section
.
21.
Temporary
authorisation to possess firearm. -
(1)
The
Registrar may issue a temporary authorisation to
possess a firearm
to anv person, including a non-citizen -
(a)
for
such period as the Registrar mav determine: and
(b)
subject
to such conditions as mav he prescribed and
imposed bv the
Registrar.
(2)
The
Registrar mav at anv time withdraw an authorisation if
anv
condition contemplated in subsection
(1)(b)
is
not
complied with.
(3)
The
office of the Central Firearms Register must keep a
record
containing such information as may be prescribed in
respect of all
authorisations issued in terms of this section.
(4)
The
Registrar must submit an annual report to the Minister
containing
such information as mav be prescribed in
respect of all
authorisations issued in terms of this section.
(5)
A
firearm in respect of which an authorisation has been
issued
in
terms oi'this section ma\ be
use
d
uni\-
(a)
if
the Registrar bv endorsement on the authorisation
permits such
use: and
(b)
in
accordance with such conditions as may be
prescribed and imposed
by
the
Registrar.
A
firearm in respect of which an authorisation has been
issued in
terms of this section mav be disposed of onlv with
the
written consent of the Registrar subject to such conditions as he or
she mav impose.
"
[21]
I have already ruled that this application is urgent. The applicants
motivated their contention for the urgency of this application
by
referring to their need for the firearms in order to comply with the
provisions of security service contracts they have already
entered
into and such contracts they intend to enter into. It was undisputed
that the applicants' motivation in this regard was
largely incited
and inspired by the oncoming soccer events.
Interpretation
of section 21
[22]
To my mind
section
21
provides for a temporary licence in circumstances where licences are
needed by any individual or juristic person for a short or
relatively
short period of time.
In
a recent decision the Supreme Court of Appeal again emphasised what
approach is needed in interpreting a statute. See
Fish
Hoek Primary School v GW
2010(2)
All SA 124 (SCA) at par [6] page 127, where PONNAN JA remarked as
follows:
"The
'cardinal rule of construction of a statute' as STRATFORD JA put it
in
Bhyat
v
Commissioner
of Immigration:
is
to endeavour to arrive at the intention of the law giver from the
language employed, in the enactment ... in construing a provision
of
an Act of Parliament the plain meaning of the language must be
adopted unless it leads to some absurdity inconsistency, hardship
or
anomaly which from a consideration of the enactment as a whole a
court of law is satisfied that the legislature could not have
intended.
'"
• In determining what the intention of the legislature
was, the usual rules of interpretation apply.
In
casu,
however,
the court had to determine more specifically what exactly the plain
meaning of the language used was.
[23]
Mr Rip SC, appearing for the applicants with Mr Snyman. submitted
that a temporary authorisation for a firearm licence in terms
of this
section, does not disqualify or exclude any category of individual or
corporate body. I agree with Mr Rip.
[24]
To my mind the legislature could have had no other intention but to
provide for the lawful possession of a firearm where the
issuance of
a permanent licence is not required, eg foreigners for hunting or
sport activities or where for some or other reason
a delay in issuing
the permanent licence may occur, for whatever the reason, including
compliance with requirements such as the
possession of a valid
identity document, the acquisition of a competency certificate, etc,
and in circumstances, as
in
casu.
where
the applicant is in urgent need of a firearm(s), for lawful purposes.
The "urgency and need" in any application
should be dealt
with on its own merits.
[25]
Mr Rip pointed out. what is common cause, that the first respondent
in two matters which were recently dealt with in this division
where
the applicants were security service providers and the first
respondent cited as first respondent in both cases, entered
into a
settlement agreement with the applicants, which were subsequently
made orders of court. The circumstances, according to
Mr Rip SC. in
both cases are materially the same as in this case. The aforesaid
settlement agreements entailed that the applicants
in those cases
were granted authorisation for the temporary possession of firearm
licences in circumstances where the security
service provider
applicants were already licensed firearm owners in terms of the
provisions of
section
20
of the Act (and they were in urgent need of the licences on the same
basis as the applicants in this case). See in this regard
the
unreported case of
Fidelity
Security Services v Director J J Bothnia and 3 Others
North
Gauteng High Court case no 9096/2010 dated 10 March 2010 as well as
the case of
SBVServices
(Pty) Ltd
v
Brigadier
Bothma NO and Others
(reference
not available). These settlements, Mr Rip SC argued, are directly in
conflict with the respondents' present attitude
and interpretation of
the provisions of
section
21
of the Act; in accordance with which the first respondent now refuses
to grant temporary authorisations to the applicants. Mr Rip
SC
further submitted that the first respondent is absolutely wrong with
the present interpretation.
[26]
In developing her argument regarding the present interpretation of
section
21
of the Act that no provision is in fact made in the section for
persons who have already obtained licences in terms of
section
20
.
Ms Ellis, appearing for the respondents, submitted that the first
respondent, in settling the aforementioned matters, which act
is an
administrative act in terms of PAJA. acted "irregularly"
and that the settlement and subsequent court orders were
"unlawful".
It was therefore submitted that this court in granting prayer 2 of
the counter-application, the declarator,
would ensure that the effect
of the said two cases would be that both the settlements and
subsequent court orders would become
null and void. In other words
the granting of prayer 2 would have the effect that the court orders
in the settled cases would be
substituted by the declarator and that
the contents of prayer 2 of the counter-application would henceforth
be enforceable and
become "law". The fact that the
applicants in the mentioned cases were not before this court Ms Ellis
submitted that
there would be no prejudice to either of the parties.
Especially pertaining to the applicant SBV Services (Pty) Ltd Ms
Ellis informed
the court that permanent licences have now been issued
substituting the temporary licences issued in terms of
section
21
of the Act. The order of this court in that regard would in practice
have no effect on the company SBV Services, at all.
[27]
The argument further entailed that the first respondent, in entering
into the two settlement agreements, mistakenly conceded
that the
provisions of
section
21
of the Act included authorisation of temporary licences to licence
holders in terms of the provisions of
section
20
.
[28]
• It was further contended on behalf of the
respondents that the first respondent was entitled in law to rectify
his "irregular" administrative settling of the said two
matters by approaching a court for a declaratory order in a manner
and process adopted by first respondent in this case. I was referred
to certain authorities in support of the aforesaid submission
of
which I mention a few:
Pepcor
Retirement Fund & Another v Financial Service Board & Another
2003
6 SA 38
(SCA);
Rajah
v Rajah (Piy) Ltd & Others
1961
4 SA 403
(AD) and
Trans
Air (Pty) Lid
v
National
Transport Commissioner
1977
3 SA 785
(AD).
The
principle emanating from the aforesaid decisions, with respect, is
clear. Whenever an administrative officer empowered to
make an
administrative decision subsequently discovers that the decision is
wrong and bad in law, the said administrative officer
is entitled to
apply to a court for the rescission of the "irregular"
decision.
Whether
the first respondent's "settling" of the two matters were
indeed an administrative act is to my mind not clear
at all, I am
not persuaded that the said "decisions" of first
respondent fit the definition of administrative action
as envisaged
by PAJA. See in this regard
Ntshangase
v MEC: Finance Kwa-Zulu Natal and Another
2010
(2) All SA 150
(SCA). The administrative act in this matter
comprises the settlement of a matter before court involving the
interpretation of
a statutory provision. I do not deem such "action"
an administrative action which is reviewable as contended by the
respondents.
[29]
Although I may be wrong in the aforesaid regard, to my mind the
following issues, however, militate against the respondents'
application for a declaratory order in their counter-application:
(a)
The "irregular" settlement agreements resulted in orders of
court. This court has no jurisdiction to review the orders
of the
other courts; this court is also not a court of appeal.
(b)
The alleged irregular settling of the said matters emanated from the
first respondent's {now changed) unilateral interpretation
of
section
21
of the Act. (1 do in any event not agree with the respondents'
present interpretation to which I will again refer to herein below.)
(c)The
applicants in the said two matters were not cited or joined to these
proceedings before court; their rights would surely
be affected and
they have the fundamental right to be heard.
[30]
The applicants, not surprisingly, took a point
in
limine
of
misjoinder and submitted that the respondents should have joined
Fidelity Security Services (Pty) Ltd and the SBV Services (Pty)
Ltd
(the applicants in the aforesaid settled matters), as well as other
parties who may be affected by such a declarator}' order.
[31]
The applicants in this matter based their arguments regarding the
point
in
limine,
non-joinder,
on the issues mentioned in the paragraph above.
[32]
The authorities referred to by Ms Ellis, quoted above, with due
respect, do not support the respondents' argument, the main
problem
being that this court is not empowered to interfere with the court
orders of another court.
[33]
It therefore follows that the applicants should succeed with their
point
in
limine
of
non-joinder of the interested parties, and that the respondents'
counter-application, prayer 2 thereof, should fail.
[34]
The applicants, one corroborating the other, furnished overwhelming
evidential material proving that the first respondent,
for reasons
that are not clear, nor properly explained by the respondents, failed
to consider and decide to grant or refuse applications
for firearm
licences, within a reasonable time. Proof of delays of up to two
years is part of the papers. The said delays caused
many an applicant
for the licencing of firearms to resort to other remedies. Mr Rip SC
referred me to the judgment in the
Fidelity
Security Service v Director J.J Bolhma & Others (supra)
where
PRINSLOO J, as far as it concerns the delay in the office of the
first respondent regarding the issuing of firearm licences
for
extended periods of time up to two years, made several disturbing
remarks about the cause of the delay. I have read the decision
of my
brother PRINSLOO J. It is clear from his remarks that he was very
much perturbed by the unexplained reasons for the delay
in issuing or
considering applications of licences in the office of the first
respondent. To say the least, I am amazed that applications
for
firearm licences were delayed in the office of the first respondent
for periods of time up to two years. No reasonable explanation
for
the said delays was advanced by the first respondent in this regard.
To my mind these delays are totally unacceptable. I will
say more
about this situation in the offices of the first respondent herein
below.
[35]
Provision is made in the Act for appeals against decisions of the
first respondent to the Firearms Appeal Board, the second
respondent.
No provision is, however, made in the Act for an appeal against the
first respondent's failure to make a decision within
reasonable time,
which failure is termed by the applicants as "deemed refusals".
In this regard, it is the second respondent's
contention not to have
jurisdiction.
[36]
The applicants in relying on the provisions of the Promotion of
Administrative Justice Act, Act 3 of 2000 ("PAJA"),
submitted that exceptional circumstances, provided for in
section
7(2)(b)
exist in this matter, entitling applicants not to follow the internal
remedy of appeal to second respondent as provided for in
the Act.
This was conceded by respondents pertaining to the second, third and
fourth applicants. No such concession was made by
the respondents in
regard to the first applicant due to the fact that the first
respondent has, in the meantime, made decisions
regarding the
section
21
temporary authorisation applications by the first applicant.
[37]
In arguing the applicants' right to approach the court directly,
instead of following the internal (appeal) remedy, Mr Rip
SC
submitted as follows:
"
The
exceptional circumstances the applicants rely upon are twofold,
namelv:-
•
that
the administrative capacity of the second respondent to deal w
f
ith
appeals against refusals bv the first respondent of section 21
authorisations is so chaotic and impinged that a decision
cannot be
expected
within a reasonable time, at the very least not before eight months
or more. By such time, the period within which the
firearms would be
required has greatly passed and the applications would almost have
become irrelevant.
Secondly,
that the second respondent has indicated bv way of appeals that have
served before it previously in respect of deemed
refusals that it
does not consider itself to have jurisdiction to hear such appeals
because according to them, since there is no
mention of a deemed
refusal in the
Firearms Control Act, such
a deemed refusal can
therefore not be appeaied against. Furthermore. Mr Mongwe. the
chairman of the second respondent has already
in the affidavits filed
bv him on behalf of the second respondent clearly shown and stated
that he does not believe that any of
the applicants are entitled to
receive temporary authorisations and that he agrees wholeheartedly
with the refusal of the first
respondent be deemed or otherwise do
not grant
section 21
authorisations to the applicants. In such
circumstances, it is clear that it is not open or possible for the
court to follow a
process wherebv the applicants are expected to
appeal to an appeal authority that was already sided with the
principal administrator
and clearly would be biased and have already
made a decision on that matter.
"
[38]
I am in agreement with Mr Rip SC. and. after having considered all
the facts, and in view of the concession made by the respondents
in
this regard pertaining to second, third and fourth respondents, I am
of the opinion that the applicants are indeed entitled
to approach
this court directly on the basis of the existence of exceptional
circumstances required in terms of
section
7(2)(b)
of
PAJA.
[39]
I am not persuaded that the first respondent's decision regarding the
application for the
section
21
authorisations lodged by the first applicant, dated 30 April 2010.
avails the first respondent regarding the issue of exceptional
circumstances discussed above, as provided in PAJA. As remarked above
the refusal of the application of the first applicant by
the first
respondent occurred after the first applicant had already signed the
founding affidavit and launched this application.
[40]
In so far as the grounds given by first respondent for the refusal of
the
section
21
authorisations
lodged by the first applicant. Mr Rip submitted that the said reasons
are without any foundation. In this regard
he submitted as follows:
Whilst
the respondents received a notification on assignment of the new
responsible person for juristic person, the SAPS 521H
form and
registered same on 29Julv 2009. the first respondent now claims that
because according to information received from
the Private Security
Industry
Regulatory
Authority that the responsible person is not linked to the company
that on such basis the application is for some or
other unexplained
reason not good. Nowhere in the Act or regulations can it be found
that there is any requirement that the responsible
person be linked
to the company. In anv event, the first applicant denies that he is
not linked to the company and states that
this is an irrelevant
consideration. In all other respects, the first respondent has dealt
with the first applicant on the basis
that the deponent. Winkler, is
the responsible person. In fact the first respondent continued
issuing firearm licences to the
first applicant subsequent to the
date of appointment as Winkler, as the responsible person as appears
from their own affidavit.
On what basis Winkler can be good enough
to be the responsible person for the issuing of firearm licences bv
the first respondent,
but now suddenly is not good enough for the
purposes of issuing section 21 temporary authorisations is not
understood in fact
or in law
.
It
is submitted that this reason is not rationally or legally connected
to the decision and cannot stand.
The
second reason given is that the specific period has not been stated.
It is clear that the period that was requested was that
the
authorisation be from date of issue for a period of twenty four
months. The period is easily determinable and quite clear.
The
problem is that one cannot apply for a specific period due to the
administrative incompetence and incapacity of the first
respondent.
The next reason given is that details regarding the particularity of
the specific security officers will be issued
with a specific
firearm and the document to prove that the security officers has
successfully undergone the prescribed training
and testing, is not
being given.
It
is clearlv impossible to ever give such information. Security
companies work with a mvriad of security officers, whom regularly
change employment. The applicants are restricted as to whom they can
give firearms on the basis of whom can be registered as security
officers under strict regulations applicable to such persons. Clearlv
and obviously at all times, as the first respondent is well
aware,
onlv security officers whom are properly registered as security
officers can ever be placed in possession of a firearm and
all of
those persons can onlv be registered as security officers when thev
have complied with all the required training applicable
to their
position and the firearm which they are in possession of. Again such
reasoning is irrational and cannot be connected to
the decision.
The
next reason given is that no documentary proof is being given as to
whom a security service will be rendered by the first
applicant,
namely a certified copy of a contract or contracts. Such is not a
requirement of the Act in the first instance. Furthermore,
it has
been clearly indicated that due to the upsurge in crime and the
situation around the Fifa World Cup 2010 that numerous
opportunities
has arisen where security services are required and that the
applicants are approached for security services on
a constant basis.
It is not possible to enter into a contract when one does not have
the firearms available in order to service
such contract. The first
respondent wants to place the cart before the horses. It is clear
that such is an unreasonable request
and reason given for the
refusal of the authorisation. is not rationally connected to its
decision and capricious and arbitrary.
The next reason is the
alleged fact that one can apply in terms of section 20 for a firearm
licence. It has been shown categorically
that these applications
have taken years to be dealt with and there are many outstanding
licences. In this regard, the court
is referred to the numerous
judgments that had been filed of record in the present matter
wherein the chaos and the delays in
the administration of firearm
licence applications had been cleariv set out. In particular the
judgment of PRINSLOO J in the
Fidelity
matter
is referred to.
The
last reason is given that the applicants have not provided
comprehensive motivation inclusive of substantive documentary proof
attached thereto, which must contain all the necessary-elements to
substantiate the purpose for which the firearms arc required.
It is
quite clear that the purpose for which the firearm is required is
for the providing of security services. The applicants
also all
filed substantial motivations with their applications, which are
annexed to the papers and wherein their business practice
and needs
and actions are clearlv set out. The first respondent is well aware
of the activities of the applicants and the first
applicant in
particular, in that it has granted firearm licences to these parties
in the past and knows very well what the business
of the applicants
are and what the purpose of the firearm is. Again, this reason is
without anv rational connection to the decision,
is arbitrary and
capricious and without any merit.
What
is however, clear when one reads the counter-application and the
affidavits filed by the first respondent in the present
application
is that the first respondent is not going to issue and does not
intend issuing any section 21 temporary authorisations.
The reasons
that had been given in this letter or in his letter of refusal dated
30 April 2010 are merely straws that had been
grasped at to try and
justify the overall policy that he has put in place to refuse all
section 21 temporary authorisations to
security service providers.
When
one considers the above approach, then it is clear that the first
respondent's decision is reviewable, stands to be set aside
and that
the court must place its own decision in the place of the first
respondent.
In
respect of the second, third and fourth respondents no reasons have
been given considering that we are dealing with a deemed
refusal,
but it is with respect clear that such section 21 temporary
authorisations will not be granted bv the first respondent
in light
of the policy and actions that I have set out and described above.
"
[41]
Having had regard to all the evidence in this application, and
counter-application, and after having considered all the submissions
made by counsel for the respondents, I am of the opinion that Mr Rip
SC is correct and justified in making the aforesaid submissions.
[42]
The first respondent refused the first applicant's
section
21
applications. In this regard MrMongwe, chairman of the second
applicant, as pointed out by Mr Rip SC, has already, in his capacity
as chairman of the second respondent, associated with first
respondent's considerations for having refused the applications,
in remarking that the applicants should not be entitled to the
granting of the applications. I agree with Mr Rip SC in this regard.
[43]
I am accordingly of the opinion that the applicants succeeded in
proving that they are entitled to approach this court for
the relief
sought.
[44]
I deem it relevant to record that nowhere in the papers could I find
any indication that the applicants, for some or other
unknown reason
or hidden agenda, intended to work against the respondents or the
SAPS in general or to obstruct or hinder the SAPS
in the performance
of their duties or interfere with the SAPS in any way. It is
unescapable, to my mind, to find that the applicants
at all relevant
times intended to assist the SAPS in some or other way in the
combating and prevention of serious crimes.
[45]
I appreciate that the respondents, specifically the first respondent,
are concerned about the random licensing of firearms,
the control of
firearms, the safekeeping thereof and
per
se
the
risk of any person being in unlawful possession of a firearm. After
all it remains the SAPS's responsibility to control all
licensed
firearms. I am. however, convinced that the evidential material
adduced by the applicants, which I accept, should allay
the
respondents' fears in that regard as far as the applicants are
concerned.
[46]
Annexure "A" to the notice of motion regarding the first to
fourth applicants' list of firearms which they have applied
for
authorisations in terms of
section
21
.
as it appears on the court file, seemed to be incomplete, in that the
fourth respondent's list was apparently misfiled. However,
in view of
the reference to the said firearms in the founding application and
annexures of the fourth applicant, which were not
disputed by the
respondents, there should be no question that the respondents are in
fact in possession of the said list. I considered
it expedient to
require the parties, without appearing in court, to furnish me with
the said list, for incorporation in annexure
"A". It now
forms part of annexure 'A". (This was supplied to my secretary
by the fourth respondent's attorneys
of record.)
[47]
• Regarding the conditions referred to in annexure "B"
to the notice of
motion,
it is clear that it overlaps with the conditions referred to in
regulation
21
of the Regulations. After having compared and considered both I
prefer the more eloquent wording of the regulation and intend to
make
the order accordingly. The conditions 1 have in mind are therefore
reflected in annexure "B". I did not deem it
necessary to
add any further conditions to it. I deliberately excluded the
condition reflected in
regulation
21
and
section
21
of the Act regarding the qualification of the competency certificate
in view of the fact that it would, in the circumstances, be
nothing
more but a time consuming exercise to obtain such a certificate in
that the conditions reflected in annexure "B"
do provide
for. temporarily, every material safety and control issue pertaining
to the firearms in question.
•
Accordingly
respondents' alternative prayer to prayer 2 should also be dismissed.
Any application for a competency certificate
would in itself have
frustrated this application.
[48]
• I am satisfied that the applicants have, on the
probabilities, proved that all security officers in their
employment
would comply, as far as their training, competency, security, etc are
concerned, with the conditions in that regard,
as required by the Act
and Regulations.
•
In
comparison with what is commonly known about crimes committed with
unlawful firearms, and dealing in unlawful firearms, it appears
that
the SAPS does not have a clean record. The respondents in this matter
did not furnish proof of any incident where the unlawful
use of
firearms was involved and connected to the applicants, in rebuttal of
the applicants' contention in that regard. On the
probabilities it
appears that the safe keeping of and control over firearms by the
applicants are of a high standard.
[49]
Regarding the period of time to be attached to the issuing of the
temporary authorisation of the licences in terms of
section
21
of the Act I am of the opinion that a period of six months should
suffice. This could also be an incentive to the first respondent
to
avoid delays in the consideration of permanent licences.
substituting
the temporary licences, if applied for. In this regard. I again
remark, in passing, that the delays in the offices
of the first
respondent pertaining to the considerations of applications for
firearm licences, are of concern. This case before
me is but one of a
series of cases in which courts of this division have made findings
and passed remarks in that regard, criticising
the situation.
However, the continuing situation has apparently not been
satisfactorily addressed.
[50]
I am not convinced, nor inclined, to order the endorsement of
licences in terms of the fourth prayer of the respondents'
counter-application.
I see no reason why the first respondent cannot
mero
motu
endorse
any new licence, excluding the licences in question in this case, by
attaching to the licence any applicable condition.
The first
respondent does not need a court order to do this.
[51]
Regarding costs, it was submitted by Mr Rip SC that the second
respondent should also be ordered to pay the costs of the first
and
third respondents. This submission is based on the fact that the
second respondent, in the words of Mr Mongwe, the chairman
of the
Appeal Board, associated itself with the first respondent's approach
regarding the refusal of the
section
21
authority for licences for the possession of a firearm, applied for
by the first applicant, to wit that applicants are not entitled
to
such licences.
[52]
Regarding the involvement of the fifth applicant as well as the
fourth and fifth respondents I was not requested by the parties
to
make any order.
[53]
I have considered whether the differences in the founding affidavits
of the applicants are material or not. To my mind the
differences
regarding detail of the applicants' respective versions are of no
concern. What they do have in common, and that is
relevant and
material, are the complaints lodged at the respondents, mainly the
first respondent, for not considering the applications
for the
issuing of firearm licences timeousiy and for refusing to. in the
circumstances, issue temporary licences in terms of the
provisions of
section
21
of the Act.
[54]
I wish to record that I do appreciate the contribution by counsel for
the parties in the form of proper and thorough heads
of argument
furnished to me as well as their oral argument in court.
Therefore
mv finding is as follows:
A.
The applicants succeed with the main application and the following
orders are made:
1.
The applicants' point
in
limine,
regarding
the non-joinder by the respondents of other parties whose interests
are at stake [including Fidelity Security Service
(Pty) Ltd; see
Fidelity
Security Services
v
Director
Bothma & Others
North
Gauteng High Court case no 9096/2010 dated 10 March 2010 re a
settlement order] is upheld.
2.
In terms of section 7(2)(c) of the Promotion Administrative Justice
Act, Act 3 of 2000, it is declared that such exceptional
circumstances exist that it exempts the applicants from exhausting
the internal administrative remedies provided for in the Firearms
Control Act, Act 60 of 2000 and the
Firearms Control Regulations
pertaining
to the
section 21
authorisations referred to in paragraph
3 hereinbelow.
3.
That the first respondent issues authorisations provided for in
section 21
of the
Firearms Control Act, Act
60 of 2000 to the first
second, third and fourth applicants respectively as reflected in
annexure "A" hereto.
4.
That the period of validity of the authorisations mentioned in
paragraph 3 above, which period should appear on the respective
authorisations, should be six months to be calculated as from the day
of authorisation.
5.
That the aforesaid authorisations be issued before 12:00 on Tuesday 8
June 2010.
6.
That the conditions listed in annexure "B" to this order
are applicable to the
section 21
authorisations referred to in 3
above.
7.
That the first, second and third respondents pay the costs of the
application including the costs of two counsel jointly and
severally
the one paying the other to be absolved.
B.
1. The respondents' point
in
limine
regarding
misjoinder of the second respondent is dismissed.
2. The respondents' counter-claim is dismissed.
3. That the first, second and third respondents are ordered to pay
the costs, consequent upon the employment of two counsel,
jointly
and severally the one paying the other to be absolved.
A
J BAM
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
26438-2010
HEARD
ON:
FOR
THE APPLICANTS:
INSTRUCTED
BY:
FOR
THE RESPONDENTS:
INSTRUCTED
BY: