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[2021] ZASCA 51
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Fidelity Security Services (Pty) Ltd v Minister of Police and Others (1349/2019) [2021] ZASCA 51; [2021] 3 All SA 67 (SCA); 2021 (7) BCLR 718 (SCA); 2021 (2) SACR 1 (SCA) (22 April 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1349/2019
In
the matter between:
FIDELITY
SECURITY SERVICES (PTY) LIMITED
APPELLANT
and
MINISTER
OF POLICE

FIRST RESPONDENT
MINISTER
OF JUSTICE

SECOND RESPONDENT
ACTING
NATIONAL COMMISSIONER
OF
SOUTH AFRICAN POLICE SERVICE:
LIEUTENANT
GENERAL
J
K PHAHLANE

THIRD RESPONDENT
Neutral
citation:
Fidelity
Security Services (Pty) Ltd v Minister of Police and Others
(1349/2019)
[2021]
ZASCA 51
(22 April 2021)
Coram:
PETSE AP, MOLEMELA and SCHIPPERS JJA
and EKSTEEN and POYO-DLWATI AJJA
Heard
:
11 March 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email,
publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 09h45
on 22 April 2021.
Summary:
Firearms Control
Act 60 of 2000 (the Act) – licence to possess firearm –
application for licence to possess firearm
upon termination of
licence previously issued – fresh application for licence by
juristic person – nothing in the language
of the Act precluding
a party whose licence has terminated by the operation of law from
applying for a new licence – appeal
upheld.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Ranchod J sitting as court of
first instance):
1
The application for condonation of the late filing of the record is
granted. The costs
occasioned thereby are to be borne by the
appellant on an unopposed basis.
2
The appeal is reinstated.
3
The appeal is upheld to the limited extent set out in paragraph 6
below.
4        The
appellant is ordered to pay the costs of the appeal up to and
including 05 March
2021, including the costs of two counsel where so
employed.
5        The
respondents are ordered to pay the costs associated with the hearing
of the appeal
on 11 March 2021 jointly and severally, the one paying
the others to be absolved.
6        The order of
the high court is set aside and in its place is substituted the
following:
'6.1    It is declared that the
applicant, Fidelity Security Services (Pty) Ltd, is entitled to apply
afresh for
new licences to possess the firearms listed in annexure D
to the applicant’s notice of motion and the Designated Firearms

Officer responsible for the area in which the applicant’s
principal place of business is situated is directed to accept such

applications and deal therewith in terms of the
Firearms Control Act
60 of 2000
.
6.2     Save for
the aforegoing, the application is dismissed with costs on the scale
as between attorney and
client, such costs to include the costs of
two counsel.'
JUDGMENT
Petse
AP (Molemela and Schippers JJA and Eksteen and Poyo-Dlwati AJJA
concurring):
[1]
The avowed purposes of the Firearms Control Act 60 of 2000 (the Act),
besides the enhancement of the
constitutional rights to life and
bodily integrity, are to: (i) improve control over legally possessed
firearms; (ii) control the
supply, possession, safe storage and use
of firearms; (iii) prevent crime involving the use of firearms; and
(iv) establish a comprehensive
and effective system of firearm
control and management.
[1]
However, the facts of this case demonstrate that these laudable
objectives have not yet been attained to a degree that can inspire

confidence and instil a sense of security amongst the populace.
[2]
In
Minister of
Safety and Security v South African Hunters and Game Conservation
Association
[2018]
ZACC 14
;
2018 (2) SACR 164
(CC);
2018 (10) BCLR 1268
(CC) (
SA
Hunters
) the
Constitutional Court stated that:
'
Gun
ownership is not a fundamental right under our Bill of Rights. It is
a privilege regulated by law. . .'.
[2]
The legislative instrument that regulates gun ownership in this
country is the Act. The preamble to the Act recognises, amongst
other
things, that there has been an 'increased availability and abuse of
firearms and ammunition' in the country which 'has contributed

significantly to the high levels of violent crime' in society; and
that 'the Constitution places a duty on the State to respect,

protect, promote and fulfil the rights in the Bill of Rights'.
[3]
This is an appeal against the decision of Ranchod J sitting in the
Gauteng Division of the High Court,
Pretoria (the high court), in
terms of which he dismissed, with costs on a punitive scale, an
application by the appellant, Fidelity
Security Services (Pty) Ltd
(Fidelity), against the respondents, in which extensive relief was
sought. Although more will be said
about the high court's reasons for
dismissing the application later, in essence it held that the
application was, in the light
of the Constitutional Court's judgment
in
SA Hunters
, ill-conceived, hence the punitive costs order.
Subsequently, on 12 November 2019, the learned Judge granted leave to
appeal to
this Court.
[4]
During May 2016 Fidelity instituted legal proceedings against the
first respondent, the Minister
of Police, the second respondent,
the Minister of Justice, and the third respondent, the
Acting National Commissioner,
South African Police Service (the
Commissioner) in which the following extensive relief was sought:
'1         Declaring that the
directive of the National Commissioner, dated the 3
rd
of
February 2016, attached as Annexure
"A"
to the
Notice of Motion, is in conflict with the Regulations of the
Firearms
Control Act 60 of 2000
, more specifically, those contained in
Government Gazette 26156 of 26
th
March 2004, and contained
in SAP518(a) on page 170 thereof; alternatively
2          Declaring the
directive of the 3
rd
of February 2016 as an administrative
act and declaring it in conflict with
Section 33
of Act 108 of 1996;
alternatively
3          Declaring
Section 24
and
28
of the
Firearms Control Act 60 of 2000
to be in
conflict with Section 33 of the Constitution and therefore
unconstitutional by virtue of the fact that no provision is
made for
the submission of late applications.
4          Ordering the
Third Respondent in his capacity as the Registrar of Firearms
to
accept late renewal applications of the Applicant for the renewal of
the firearm licences listed in the Schedule attached as
Annexure
"B"
.
5          Alternatively
ordering that the Third Respondent accepts new SAP271 application

forms for the firearms listed in Annexure
"B"
.
6          Ordering the
Third Respondent to amend or vary, insofar as it may be necessary,

the firearm registration system in the Central Firearms Registry to
allow the submission of SAP271’s by an existing owner,
licenced
in that owner’s name.
7          Directing the
Respondents to receive and process Section 21 permits for
the
possession of the firearms in Annexure
"B"
from the
date of lapsing of the licence until the date of the issue of a new
licence.
8          Interdicting
and restraining the Respondents and any person in the employ
of the
First Respondent, alternatively the Second Respondent, from
confiscating the firearms set out in Annexure
"B"
,
pending the finalisation of applications for the licences in Annexure
"B"
.
9          That the
Respondents pay the costs of this application, in the event of

opposition only.'
[5]
The proceedings were instituted against the following backdrop.
Fidelity is a security service provider,
registered with the Private
Security Industry Regulatory Authority.
[3]
It is one of the largest security service providers in the country
with a national footprint. It has 60 offices in major cities
and
towns countrywide. Its principal place of business is in Roodepoort.
Given the nature of its core business, possession of firearms
is
indispensable in order for it to operate effectively. Thus, it is
licenced to possess some 8500 firearms. Section 7 of the Act
provides
that if a juristic person like Fidelity wishes to apply for a
licence, permit or authorisation in terms of the Act, it
must
nominate a natural person to apply on its behalf.
[4]
The section further stipulates that the person so nominated must be
identified on the licence, permit or authorisation as the responsible

person who, for the purposes of the Act, is regarded as the
holder of the licence issued to a juristic person. At the material

times, Fidelity's responsible person was a certain Mr Sarel Gerhardus
Yssel.
[6]
Section 3 of the Act, which is titled 'General prohibition in respect
of firearms and muzzle loading
firearms,' provides that no person may
possess a firearm unless he or she holds a licence, permit or
authorisation for that firearm
issued in terms of the Act.
[5]
Section 6(2), in turn, provides that subject to s 7 no licence may be
issued to a person without a relevant competency certificate.
Section
27 in turn makes provision for periods of validity
[6]
of various types of firearms listed in column 2 thereof.
[7]
Sections 24 and 28, which deal with renewal of firearm licences and
their termination respectively,
need to be set out in full because of
their centrality in this appeal. First, s 24 provides:
'(1) The
holder of a licence issued in terms of this Chapter who wishes to
renew the licence must at least 90 days before the date
of expiry of
the licence apply to the Registrar for its renewal.
(2) The
application must be—
(a)
accompanied by such information as may
be prescribed; and
(b)
delivered to the Designated Firearms Officer
responsible for the area in which the applicant ordinarily resides or
in which the
applicant’s business is, as the case may be.
(3) No
application for the renewal of a licence may be granted unless the
applicant shows that he or she has continued to comply
with the
requirements for the licence in terms of this Act.
(4) If an
application for the renewal of a licence has been lodged within the
period provided for in subsection (1), the licence
remains valid
until the application is decided.'
[8]
Second, s 28 reads:
'(1) A
licence issued in terms of this Chapter terminates—
(a)
upon the expiry of the relevant period
contemplated in section 27, unless renewed in terms of section 24;
(b)
if surrendered by the holder of the licence to the
Registrar;
(c)
if the holder of the licence becomes or is
declared unfit to possess a firearm in terms of section 102 or 103;
or
(d)
if it is cancelled in terms of this Act.
(2) The
Registrar may, by notice in writing, cancel a licence issued in terms
of this
Chapter if
the holder of the licence—
(a)
no longer qualifies to hold the licence; or
(b)
has contravened or failed to comply with any
provision of this Act or any condition specified in the licence.
(3) A notice
contemplated in subsection (2) may only be issued if the Registrar
has—
(a)
given the holder of the licence 30 days’
notice in writing to submit written representations as to why the
licence should
not be cancelled; and
(b)
duly considered any representations received and
all the facts pertaining to the matter.
(4)
(a)
If a notice contemplated in subsection (2) is issued, the former
holder of the licence must dispose of the firearm in question
through
a dealer or in such manner as the
Registrar may
determine.
(b)
The disposal must take place within 60 days after
receipt of the notice.
(5) If the
firearm is not disposed of within 60 days, it must be forfeited to
the State and the former holder of the licence must
surrender it
immediately at such place and in such manner as the Registrar may
determine.
(6) Any
period contemplated in this section may be extended by the Registrar
on good cause shown.'
As
is to be expected, the various licences issued to Fidelity's
responsible person expire on different dates. It is therefore
necessary,
given the large quantity of the firearms in Fidelity's
possession, that effective control systems and measures must be put
in place
by the responsible person to keep track of the termination
date of each licence.
[9]
Mr Yssel left the employ of Fidelity on 1 February 2016 and
Mr Johannes Cornelius Wentzel succeeded
him on the same date.
When Mr Wentzel took over from Mr Yssel, he discovered that the
licences of some 700 firearms had not
been renewed and consequently
terminated by the operation of law as contemplated in s 28 of the
Act. On 18 April 2016
Fidelity belatedly attempted to
'renew' the licences that had already terminated. But the Designated
Firearm Officer at the Florida
police station refused to accept the
late applications for renewal. This was in compliance with circular
27/5/2/1 (the circular)
issued by the Commissioner on 3 February
2016.
[10]
The most crucial parts of the circular, for present purposes, are
paragraphs 4 and 8. They read:
'Applications
for renewal of firearm licences must be lodged at least 90 days
before the expiry of the licence. Applications for
renewal may,
however be considered if the application is lodged in less than 90
days, in which case reasons for the late application
must be provided
on the application form.
In the case
where a person want[s] to renew or apply for a licence, but the
validity of the licence has already expired, the person
must be
informed that he/she is not anymore in lawful possession of the
firearm and that the firearm must be surrendered to the
nearest
police station.'
[11]
Consequently, the police steadfastly refused to budge when Fidelity
persisted in its quest to submit its 'renewal'
applications in
respect of terminated licences. It then consulted its attorneys who,
on 22 April 2016, addressed a letter to the
Minister of Police and
the Commissioner. It is convenient to quote relevant parts of this
letter. They read:
'3         Fidelity has many
thousands of firearms licenced in its name and it recently
had been
brought to its attention by its new Responsible Person, that
approximately 600 licences that have expired.
4          Attempts have
been made to submit renewal applications to the South African
Police
Services and the South African Police Services have refused to accept
the renewal applications based upon the directive
of the National
Commissioner that of 3 February 2016.
5          The surrender
of any firearms, as contemplated by the directive, would
adversely
affect the long term operations of and the viability of Fidelity
Security Services [as] more than 40% of its business
revolves around
the use of firearms and is therefore a business critical component.
6          Briefly, the
reasons why our client applied late, are due to the illness
of its
previous Responsible Person, Mr Sarel Yssel and the fact that an
audit was conducted subsequent to his resignation and departure,
that
determined that the licences had lapsed.
7          We believe
that the above, brief reasons which our client will gladly amplify

upon if necessary, constitute good grounds to condone the late
submission of renewal applications, either by yourselves or by order

of court.
8
Alternatively, our client is quite happy to submit new SAP271's to
apply
for new licences, but your system needs to be changed because
we are advised that the enhanced firearm control system does not
currently allow for a submission of an SAP271 by the existing owner.
. . .
10        In the light of the
above, we await your response within
5 (five)
days as to
whether:
10.1     You will condone our
client's late submission of renewal applications; or
10.2     You will allow our
client to submit new SAP271's.'
Inexplicably,
this letter did not elicit any response from the intended recipients.
[12]
An intractable impasse having thus been reached, Fidelity, as already
mentioned, launched its application for the
relief set out in its
notice of motion adverted to in paragraph 4 above. In essence, it
persisted in: (i) its challenge that ss
24 and 28 were
constitutionally invalid; (ii) that the police be compelled to accept
late renewal applications; (iii) directing
the police to issue
Fidelity with temporary authorisations under s 21
[7]
of the Act; (iv) seeking an interdict restraining the police from
seizing the firearms whose licences had terminated pending the

finalisation of its renewal application; and (v) seeking, in the
alternative, a mandamus directing the police to accept new
applications
for firearm licences.
[13]
In support of the relief sought in terms of paragraph 5 of Fidelity's
notice of motion, Mr Wentzel asserted the
following in Fidelity's
founding affidavit:
'78       Even if the South African
Police Services merely hold the firearm, this does not provide
a
solution for circumstances where a person has handed in the firearm,
but remains in limbo, because they cannot apply for a new
licence.
79        It is for this reason
that the Applicant has sought additional relief, either to condone

non-compliance and to allow the submission of late applications,
alternatively that the Applicant be allowed to submit new
applications
for the firearms.
80        The reason why the
Applicant has asked for an order directing the South African Police

Services to amend their procedures is that I am advised that
currently a SAP271 new licence application form cannot be processed

by the Respondents, because the Respondents' computer system does not
allow transfer of a licence from an existing owner to the
same owner
as a new Applicant and owner, i.e. the software does not allow one to
transfer a firearm to yourself.'
[14]
The application was opposed by the respondents. It is, however,
unnecessary for present purposes to traverse the
bases upon which the
application was resisted. It suffices merely to state that the
deponent to the answering affidavit was content
to raise bald denials
to what Mr Wentzel asserted in paragraphs 78 to 80 of the founding
affidavit. And, in particular, despite
the assertion under oath by Mr
Wentzel that Brigadier Bothma had categorically informed him that the
police would not accept even
new applications for firearms that were
unrelated to the applications for 'renewal' of the expired licences,
there was no meaningful
response to this assertion from the
respondents.
[15]
It bears mentioning that at the hearing before Ranchod J, Fidelity
abandoned the relief sought in paragraphs 1,
2 and 3 of the notice of
motion. This change of tack was brought about as a result of the
decision of the Constitutional Court
in
SA
Hunters
which held
that ss 24 and 28 of the Act were not unconstitutional.
[8]
But Fidelity persisted with the relief sought in the remaining
prayers.
[16]
As already indicated, taking comfort in
SA Hunters
, the high
court dismissed Fidelity's application in its entirety. Because of
the new turn of events – about which more will
be said later –
it is not necessary to examine the reasons that motivated the high
court to do so. Suffice it to say at this
juncture that it does not
appear from its judgment that the high court considered the
alternative relief sought in prayer 5 of
Fidelity's notice of motion.
It will be recalled that in prayer 5 of its notice of motion Fidelity
had sought an order directing
the police to accept new applications
that had no bearing on its applications for renewal of licences that
had already terminated.
[17]
I pause here to observe that the relief initially sought by Fidelity
on appeal was that prayers 4, 5, 6, 7, 8 and
9 of its notice of
motion – dismissed by the high court – should be upheld
on appeal. In pursuit of this relief, the
heads of argument delivered
on behalf of Fidelity pertinently addressed the propriety of the
relief in which it had persisted on
appeal.
[18]
That this was part of the case that Fidelity sought to advance on
appeal was neatly captured by the learned Judge
when he rendered his
written judgment in respect of Fidelity's application for leave to
appeal. He said the following:
'The nub of
this application for leave to appeal is whether
section 28(6)
of the
Firearms Control Act 60 of 2000
. . . permits the Registrar to,
on good cause shown, extend the date of expiry of a licence which has
expired . . .'
The
learned Judge then continued:
'In the
alternative, [Fidelity] asked the Court to declare first, that
section 28(6)
allowed the period of validity of a licence to be
extended and, second, that applicants for firearm licences should be
allowed
to submit late applications and should be issued with
temporary licences in accordance with
section 21
when they do so.'
He
then alluded to the fact that, as he saw it, 'the Constitutional
Court did not pertinently deal with these issues which Fidelity
had
advanced as the amicus curiae' in
SA Hunters
. Hence he was
persuaded to grant leave to this Court, noting that the aforegoing
issues were deserving of the attention of this
Court because of their
importance. I shall revert to this aspect later.
[19]
Some three court days before the hearing of this appeal, Fidelity
delivered a 'supplemented practice note'
[9]
on 5 March 2021. It is necessary to quote the operative part of this
note. It reads:
'2         The Appellant will
only persist with the appeal in respect of paragraphs 1.2,
1.3, 1.4
and costs, referred to above in the light of the findings by this
court in the matter of National Commissioner of Police
and Another v
Gun Owners Association of South Africa
2020 (6) SA 69
(SCA);
3          Appellant
will further not rely on the argument raised in its heads of
argument
in respect of the interpretation of
section 28
of the
Firearms
Control Act and
the authority to extend the time periods applicable
to the renewal of firearm licences.'
[20]   The practice note then concludes by
setting out the reformulated issues as follows:
'4.1      Whether the appellant has the
right, to submit a new application for a licence to possess a
firearm
that was previously licenced to it and which licence lapsed;
4.2       Whether the registrar of
firearms, third respondent, has a duty to accept and process such
new
applications for a firearm licence for such firearm that was
previously licenced to it;
4.3       Costs.'
As
can be seen from this excerpt, apart from the issue of costs, the
issues on appeal have, since the filing of the 'supplemented
practice
note', been considerably narrowed down. In substance, they boil down
to one issue only, namely whether Fidelity is entitled
to submit 'a
new application for a licence to possess a firearm' in light of the
fact that the licence that it previously held
terminated by the
operation of the law?
[10]
If this issue is answered in the affirmative, the Commissioner will
perforce be obliged to accept such new application and deal
with it
in the ordinary course in terms of the provisions of the Act. Nothing
more and nothing less will be required of him or
her.
[21]
At the commencement of the hearing of this appeal in this Court,
counsel for Fidelity confirmed that Fidelity had
effectively
abandoned all the relief sought in its amended notice of motion as
set out in paragraph 4 above save for the limited
relief encapsulated
in the preceding paragraph of this judgment.
[22]
In addition, counsel moved the Court for condonation of the late
filing of the record and, if granted, also for
the reinstatement of
the appeal which had lapsed. This Court deferred its decision on the
application for condonation. Counsel
was then allowed to argue the
appeal as if it were still live.
[23]
As this appeal entails a statutory interpretative exercise, it is
necessary to briefly say something about the
principles that apply to
the interpretation of statutes. True, those principles are now
well-established and require no elucidation.
Nevertheless, trite as
they are, these principles are sometimes misapplied.
[24]
In
Natal Joint
Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SA) (
Endumeni
),
this Court explained that statutory interpretation is the objective
process of attributing meaning to words used in legislation.
[11]
This process, it was emphasised, is unitary and entails a
simultaneous consideration of –
(a)
the language used in the light of the ordinary rules of grammar and
syntax;
(b)
the context in which the provision appears; and
(c)
the apparent purpose to which it is directed.
[12]
[25]
Endumeni
was cited with approval by the Constitutional Court in
Cool
Ideas 1186 CC v Stubbard
[2014] ZACC 16; 2014 (4) SA 474 (CC).
[13]
Accordingly, a court will interpret the relevant provision having
regard to the underlying purpose of the Act and the broader statutory

scheme of which it forms part.
[14]
This then means that an interpretation that results in a sensible
meaning is to be preferred over one that leads to unbusinesslike

results or undermines the apparent purpose of the Act.
[15]
This entails that the ordinary and clear meaning of the words, read
purposefully and contextually, must not be unduly strained.
That the
text, context and purpose of the Act must always be considered at the
same time when interpreting legislation has been
affirmed in various
decisions of the Constitutional Court.
[16]
[26]
Turning to the interpretive process itself, I bear in mind that
'[t]he "inevitable point of departure is the
language of the
provision itself", read in context and having regard to the
purpose of the provision and the background to
the preparation and
production of the document'.
[17]
I have, in paragraph 1 above, already alluded to the purpose of the
Act spelt out in s 2. In
National
Commissioner of Police and Another v The Gun Owners of South Africa
(Gun Free South Africa as amicus)
[2020] ZASCA 88
;
2020 (6) SA 69
(SCA) this Court noted that:
'The
Act creates a two-tier licensing regime: a person wishing to own a
firearm must be licensed to do so and must demonstrate competency
to
possess a firearm by obtaining a competency certificate; and each
firearm itself must be licensed. . . . They are also required
to pass
tests demonstrating knowledge of the Act and proficiency in the safe
use of firearms. The firearm licence, together with
the competency
certificate, constitutes the State’s recognition that a person
is fit and proper to own or possess a particular
firearm. The details
of each firearm are recorded with the details of the person
responsible for it, thus linking the firearm to
its owner. The Act
requires periodic renewal, re-licensing and re-testing.'
[18]
[27]
Section 145 of the Act empowers the Minister of Police, by notice in
the Gazette, to make regulations for a variety
of purposes necessary
for the effective implementation of the Act. And, in particular,
regarding anything 'that may or must be
prescribed in terms of [the]
Act'.
[19]
By virtue of this statutory power, the Minister published the
'
Firearms Control Regulations'
[20
]
on 26 March 2004 which became effective on 1 July 2004.
Regulation 13
which is headed 'General provisions regarding applications required
in terms of the Act' sets out an elaborate procedure to be
followed,
and the nature of the extensive information that an applicant must
provide to the Registrar when making an application
for a competence
certificate, licence, permit or authorisation. Regulation 13(1)
reads:
' A person
requiring a competency certificate, licence, permit, authorisation,
as well as, a duplicate thereof or renewal to be
issued for a purpose
contemplated in the Act, must apply to the Registrar for such
competency certificate, licence, permit, authorisation,
duplicate or
renewal.'
Regulation
13(4) provides that, unless otherwise specifically stated, an
application for a licence must be submitted by the applicant
in
person to the relevant Designated Firearms Officer.
[28]
Where the applicant is a juristic person, regulation 13(5) provides
that additional information may be requested
by the Commissioner in
addition to that which is specially provided on the application form,
for example, in respect of the following:
(a)
the person who is in control of the juristic person;
(b)
proof of registration or incorporation of the juristic person;
(c)
a certified copy of the resolution or decision of the juristic
person, nominating the responsible person to apply on its behalf;
(d)
where applicable, documentary proof of registration with the
Private Security Industry Regulatory Authority contemplated
in
the Private Security Industry Regulation Act 56 of 2001.
[29]
An application for a licence to possess a firearm, competence
certificate, permit, authorisation, as well as a
duplicate thereof,
whilst it is made to the Commissioner in his or her capacity as the
Registrar, must be submitted to the Designated
Firearms Officer
responsible for the area in which the applicant ordinarily resides or
in which the applicant's business is or
will be located.
[21]
[30]
It is convenient at this point to consider the question whether the
Act is susceptible of the interpretation for
which the respondents
contended, namely, that a party whose licence has terminated by the
operation of law is precluded from applying
under the Act for a new
licence to possess a firearm. In this regard the respondents'
argument boiled down to this. Fidelity allowed
some 700 licences in
respect of firearms in its possession to expire by the operation of
law when it failed to renew them as required
in terms of s 24(1)
of the Act. And the so-called new applications sought to be submitted
by Fidelity were in truth applications
for 'renewal' of the expired
licences and not new applications. Counsel sought to support his
contentions with reference to certain
paragraphs of Fidelity's
affidavits.
[31]
The respondents also relied on
SA
Hunters
. There, it
will be recalled, the Constitutional Court held that once a firearm
licence has terminated by operation of the law 'the
gun-holder must
get rid of the firearm'. The Court went on to hold that '[t]he
gun-owner knows that he must apply in time for renewal
or dispose of
the firearm before expiry. If he does not, he will be guilty of an
offence.'
[22]
Thus, counsel argued that to grant relief to Fidelity would be
tantamount to this Court giving its imprimatur to an illegality,
i.e.
unlawful possession of unlicensed firearms in contravention of s 3 of
the Act.
[32]
In my view, the respondents' reliance on
SA Hunters
is
misplaced. And more fundamentally, it appears that the respondents'
submissions are as a result of a misconception on their
part of the
true nature of the relief sought by Fidelity in this Court. Paragraph
5 of Fidelity's amended notice of motion –
sought in the
alternative to the principal relief (i.e. renewal of expired
licences) – expressly seeks an order directing
the Commissioner
(as Registrar) to 'accept new applications' albeit in respect of
firearms previously licenced to it.
[33]
The respondents' argument on this score cannot be sustained for its
edifice rests upon unstable foundations. There
is nothing in the Act
nor the regulations that even remotely suggests that someone whose
licence has terminated by the operation
of law is, as a result,
forever precluded from applying for a new licence. To interpret the
Act in the manner contended for by
the respondents would, to borrow
the words from
Endumeni
,
be to 'cross the divide between interpretation and legislation'.
[23]
The effect of this then is, as the Act provides, that anyone wishing
to own a firearm must apply for and obtain a licence in order
to
lawfully possess such firearm. This is precisely what Fidelity
attempted to do when the respondents refused to accept its
applications.
Thus, first-time applicants and repeat applicants alike
are eligible to apply for a firearm licence. Once an application has
been
submitted to the relevant Designated Firearms Officer, it would
thereafter be up to the Commissioner, qua Registrar of Firearms,
to
satisfy himself or herself that the applicant concerned meets the
requirements stipulated in the Act and regulations. In persisting
in
its opposition to the relief sought in paragraph 5 of Fidelity's
notice of motion (encapsulated in paragraph 4 above) the respondents

conflate the true nature of that relief with the principal relief
previously sought by Fidelity, unmistakeably disavowed in its

supplemented practice note.
[34]
The above interpretation is reinforced by s 149 of the Act which
provides, inter alia, that a firearm may only
be destroyed as
prescribed;
[24]
and that it ‘remains the property of the owner thereof until
its destruction’.
[25]
Should a person not be allowed to apply for a new licence for a
firearm in respect of which the licence has expired, that firearm

will have to be destroyed – in this case some 7 000 firearms.
An interpretation of the Act in terms of which firearm owners
whose
licences have expired are prevented from applying for a new licence,
and are required to buy new firearms only for the same
application to
be considered – for a new licence as envisaged in s 3 and
regulation 13, is neither sensible or businesslike
(
Endumeni
para 18). This is really the end of the matter.
[35]
It bears mentioning that having regard to the narrow basis upon which
this appeal ultimately falls to be determined,
the other submissions
advanced by counsel for Fidelity in relation to ss 134, 135, 136, 137
and 149 of the Act do not arise for
consideration, and nothing more
need be said about them.
[36]
It remains to deal with the application for condonation of the late
filing of the record – which is not opposed
– and, if
granted, the reinstatement of the appeal. The record should have been
filed on 13 April 2020. But it
was ultimately filed on 20
May 2020. It is alleged in the affidavit in support of the
application for condonation that Fidelity
encountered several
problems in the compilation of the record by the service provider
requested to undertake this task.
[37]
I do not consider it necessary to traverse the reasons therefor,
furnished by Fidelity, in this judgment save to
state that the
situation was also allegedly compounded by the declaration of the
national state of disaster following the outbreak
of the Covid-19
pandemic in this country.
[38]
Arguing in support of the application, counsel for Fidelity submitted
that Fidelity's failure to file the record
timeously having been
satisfactorily explained, condonation ought therefore to be granted.
Counsel further argued that the envisaged
appeal enjoyed strong
prospects of success. A court considering an application for
condonation is, as a general rule, required
to have regard to the
following factors:
(a)
the degree of non-compliance;
(b)
the explanation therefor;
(c)
the importance of the case;
(d)
the respondent's interest in the finality of the judgment sought to
be appealed from;
(e)
the convenience of the court; and
(f)
the avoidance of unnecessary delay in the administration of
justice.
[26]
[39]
Almost a decade earlier this theme was explained by this Court in
Uitenhage Transitional Local Council v South African Revenue
Service
2004 (1) SA 292
(SA) in which the following was stated:
'One
would have hoped that the many admonitions concerning what is
required of an applicant in a condonation application would be
trite
knowledge among practitioners who are entrusted with the preparation
of appeals to this Court: condonation is not to be had
merely for the
asking; a full, detailed and accurate account of the causes of the
delay and their effects must be furnished so
as to enable the Court
to understand clearly the reasons and to assess the responsibility.
It must be obvious that, if the non-compliance
is time-related then
the date, duration and extent of any obstacle on which reliance is
placed must be spelled out.'
[27]
This
then raises the question as to whether Fidelity has met the stringent
requirements for condonation. Overall, it suffices to
observe that
the affidavit in support of the application for condonation is in
certain respects bereft of the particularity required
of a litigant
seeking the court's indulgence. It is, however, not necessary to
dwell on those shortcomings in this judgment in
light of the view I
take of the matter.
[40]
I am nevertheless satisfied on balance, having regard to the degree
of non-compliance, the explanation proffered
therefor and the
prospects of success in the envisaged appeal, that condonation ought
to be granted and the appeal reinstated.
[41]
Finally, it is necessary to say something about the appropriate order
as to costs given the turn of events brought
about by Fidelity's
'supplemented practice note' referred to in paragraphs 19 and 20
above. As already mentioned, Fidelity, having
been granted leave to
appeal by the high court, pursued it on all fronts before this Court.
This is borne out by the comprehensive
heads of argument filed on its
behalf in which all of the grounds upon which leave was granted were
traversed in great detail.
But, as previously mentioned, three court
days before the hearing, Fidelity filed a notice titled 'Supplemented
Practice Note'
in terms of which it abandoned all but three
interrelated prayers. In truth, as the three remaining prayers are
inextricably interlinked,
they amount in substance, to only one
prayer.
[42]
The relief sought in prayer 6
[28]
of the amended notice of motion was abandoned by counsel during his
address. It is, to my mind, beyond question that the relief
sought in
prayers 4, 6, 7 and 8 was ill-conceived and Fidelity acted wisely in
not pursuing such relief. However, that Fidelity
chose to leave
matters until so late in the day has costs implications. In the light
of the fact that the relief that Fidelity
initially sought on appeal
was overbroad, the respondents were undoubtedly justified in opposing
the appeal up to the stage where
Fidelity delivered its revised
practice note on 5 March 2021 but not beyond.
[43]
This means that Fidelity is entitled only to the costs attendant upon
the hearing of the appeal on 11 March 2021.
Accordingly, as the
respondents were justified in opposing the appeal in relation to
prayers 4, 6, 7 and 8, all of which were subsequently
abandoned
in
toto
on 5 March 2021, I can conceive of no reason why they should
be deprived of their costs up to that stage. Thus, it is just and
equitable in the exercise of our discretion that Fidelity should bear
the costs of the appeal up to 5 March 2021. The effect of
this is
that Fidelity is only entitled to the costs associated with the
hearing of the appeal on 11 March 2021. Our order should
therefore
reflect this.
[44]
For the sake of completeness it bears mentioning that although
prayer 6 appears at first blush to be consequential
upon the
grant of prayer 5, it is my view that it would be ill-advised to
dictate to the Commissioner as to what he or she must
do to give
effect to the order granting prayer 5. The Commissioner should be
allowed the liberty to deal with Fidelity's new applications
for
licences as he or she considers appropriate.
[45]
For all the aforegoing reasons, the following order is granted:
1
The application for condonation of the late filing of the record is
granted. The costs
occasioned thereby are to be borne by the
appellant on an unopposed basis.
2
The appeal is reinstated.
3
The appeal is upheld to the limited extent set out in paragraph 6
below.
4        The
appellant is ordered to pay the costs of the appeal up to and
including 05 March
2021, including the costs of two counsel where so
employed.
5        The
respondents are ordered to pay the costs associated with the hearing
of the appeal
on 11 March 2021 jointly and severally, the one paying
the others to be absolved.
6        The order of
the high court is set aside and in its place is substituted the
following:
'6.1    It is declared that the
applicant, Fidelity Security Services (Pty) Ltd, is entitled to apply
afresh for
new licences to possess the firearms listed in annexure D
to the applicant’s notice of motion and the Designated Firearms

Officer responsible for the area in which the applicant’s
principal place of business is situated is directed to accept such

applications and deal therewith in terms of the
Firearms Control Act
60 of 2000
.
6.2
Save for the aforegoing, the application is dismissed with costs on
the scale as between attorney and
client, such costs to include the
costs of two counsel.'
X
M PETSE
ACTING
PRESIDENT
SUPREME
COURT OF APPEAL
Appearances
For
appellant:
M Snyman
SC
Instructed by:
M J Hood and Associates, Sandton
Lovius Block, Bloemfontein
For respondents:
D D Mosoma
Instructed by:
The State Attorney, Pretoria
The State Attorney, Bloemfontein
[1]
Section 2 of the
Firearms Control Act 60 of 2000
(the Act)
.
[2]
Para 1.
[3]
The Private Security Industry Regulatory
Authority, which is a juristic person, was established in terms of s
2 of the Private
Security Industry Regulation Act 56 of 2001.
[4]
Section 7(1) of the Act.
[5]
Section 3 of the Act reads:
'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’.
[6]
These are specified in column 3.
[7]
Section 21 reads:
'(1) The Registrar may
issue a temporary authorisation to possess a firearm to any person,
including a non-citizen—
(a)
for such
period as the Registrar may determine; and
(b)
subject
to such conditions as may be prescribed and imposed by the
Registrar.
(2) The Registrar may at
any time withdraw an authorisation if any 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 may 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 of this section
may be used only—
(a)
if the
Registrar by endorsement on the authorisation permits such use; and
(b)
in
accordance with such conditions as may be prescribed and imposed by
the Registrar.
(6) A firearm in respect
of which an authorisation has been issued in terms of this section
may be disposed of only with the written
consent of the Registrar
and subject to such conditions as he or she may impose.'
[8]
Fidelity was admitted as the first amicus curiae in that litigation.
[9]
The first part of the note reads:
'1.
NATURE OF APPEAL
The
Appeal is against a dismissal of prayers 4, 5, 6 and 7 and the costs
of an application:
1.1          Ordering
third respondent in his capacity as Registrar of Firearms
to accept
late renewal applications of the Applicant for the renewal of
firearm licences listed in schedule "B";
1.2
Alternatively, ordering the third respondent to accept new
applications
(form SAP271) for those firearms listed in Schedule
"B";
1.3          Ordering
the third respondent to amend or vary, in so far as it is
necessary,
the firearms registration system in the Central Firearms Registry to
allow for the submission of SAP271 forms by an
existing owner,
licenced to that owner;
1.4          Directing
the Respondents to receive and process applications in terms
of
Section 21
of the
Firearms Control Act (Temporary
authority to
possess) listed in Schedule "B", from the date of lapsing
to date of issuing a new licence;
1.5
Interdicting and restraining the respondents and any person in the

employ of first, alternatively second respondent from confiscating
the firearms listed in Schedule "B", pending the

finalisation of the applications for the licences in Schedule ''B";
1.6
And costs,
only in the event of opposition.'
[10]
See
SA Hunters
para 25.
[11]
Natal Joint Municipal Pension Fund v Endumeni
Municipality
[2012] ZASCA 13
;
2012 (4)
SA 593
(SA) (
Endumeni
)
para 18.
[12]
Ibid.
[13]
Endumeni
para 28.
[14]
Cool Ideas 1186 CC v Stubbard
[2014] ZACC 16
;
2014 (4) SA 474
(CC)
para 115.
[15]
Endumeni
para 18.
[16]
For examples see
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism
[2004] ZACC 15
;
2004 (4) SA
490
(CC) para 90 (the judgment of Ngcobo J) quoted with approval in
Du Toit v Minister for Safety and
Security
[2009] ZACC 22
;
2010 (1) SACR
1
(CC);
2009 (12) BCLR 1171
(CC) para 37;
Bertie
Van Zyl (Pty) Ltd and Another v Minister for Safety and Security
and Others
[2009] ZACC 11
;
2010 (2) SA 181
(CC); para 21;
KwaZulu-Natal Joint Liaison Committee v
MEC for Education, KwaZulu-Natal and Others
[2013] ZACC 10
;
2013 (4) SA 262
(CC) para 129;
Kubyana
v Standard Bank of South Africa Ltd
[2014] ZACC 1
;
2014 (3) SA 56
(CC) paras 77-8.
[17]
Endumeni
para 18.
[18]
National Commissioner of Police and Another v
The Gun Owners of South Africa (Gun Free South Africa as amicus)
[2020] ZASCA 88
;
2020 (6) SA 69
(SCA)
para 31.
[19]
Section 149(1)
(a)
of the Act.
[20]
See ‘
Firearms Control Regulations,
GN
R345,
GG
26156,
26 March 2004’
.
[21]
Regulation 13(4).
[22]
SA Hunters
para 19.
[23]
Endumeni
para 18.
[24]
Section 149(1).
[25]
Section 149(2)
(b)
.
[26]
See in this regard:
Dengetenge Holdings (Pty) Ltd v Southern
Sphere Mining and Development Company Ltd and Others
[2013]
ZASCA 5
;
[2013] 2 All SA 251
(SCA) para 11 and the authorities
therein cited.
[27]
Uitenhage Transitional Local Council v South
African Revenue Service
2004 (1) SA
292
(SA) p
ara 6.
[28]
This prayer reads:
'Ordering the Third
Respondent to amend or vary, insofar as it may be necessary, the
firearms registration system in the Central
firearms Registry to
allow the submission of SAP271's by an existing owner, licenced in
that owner's name.'