Brief Summary

Firearms Control — Applications for temporary authorizations — Applicants, registered security service providers, sought urgent relief against the National Commissioner of the South African Police Services and others for failure to process applications for temporary firearm authorizations within the statutory timeframe — Applicants conceded that the substantive relief sought became moot as licenses were issued post-application — Court held that the application for costs was justified due to the respondents' late compliance with the relief sought, ordering costs against the fourth respondent.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings took the form of an opposed motion application in the High Court of South Africa, Gauteng Division, Pretoria. The applicants initially approached the court on an urgent basis seeking extensive declaratory, review, and mandatory relief directed at the processing of applications related to firearms under the Firearms Control Act 60 of 2000.

The applicants were Fidelity Security Services (Pty) Ltd, Fidelity ADT (Pty) Ltd, and Fidelity Cash Solutions, all private profit companies registered as security service providers with the Private Security Industry Regulatory Authority (PSIRA). The respondents were the National Commissioner of the South African Police Service in his capacity as Registrar of Firearms, senior SAPS officials responsible for the Central Firearms Registry and its operational department, the Minister of Police, and the Firearms Appeal Board (cited due to contentions about internal remedies, although no substantive relief was pursued against it).

Procedurally, the matter was first enrolled as an urgent application and was struck from the roll on 25 August 2022 with a costs order against the applicants. The application was later set down in the opposed motion court for 10 October 2022. A purported notice of removal filed by the applicants shortly before the hearing was conceded to have had no effect without the respondents’ agreement, and the matter proceeded on 11 October 2022 (ultimately heard virtually due to a power outage). By the time of hearing, the applicants accepted that the substantive relief had become moot because the licence applications had been processed and licences issued, and they persisted only with a claim for costs (ultimately framed in argument as being sought against the Minister of Police).

The general subject-matter concerned alleged administrative inaction or delay by SAPS officials in relation to applications for temporary authorisations to possess firearms and applications for firearm licences, and the applicants’ attempt to secure court intervention (and later, costs) based on that alleged delay.

Material Facts

The applicants submitted a large number of firearms-related applications. On the applicants’ version, eight hundred firearm licence applications were submitted during June and July 2022, and four hundred applications for temporary authorisations to possess firearms (under section 21 of the Firearms Control Act) were submitted on 7 July 2022. The relief initially sought was directed primarily at compelling the Registrar and SAPS officials to process and decide the temporary authorisation applications within what the applicants contended was a seven-working-day period, and to process the licence applications within 90 days with subsequent delivery of licence cards.

It was not disputed that, at the time the court application was issued (2 August 2022), neither the licence applications nor the temporary authorisation applications had been refused. The applicants nonetheless sought declarations that the temporary authorisation applications were “deemed refused” due to the effluxion of time, and sought consequential review and mandatory relief to compel approval and issuance of temporary authorisations.

A significant factual feature was that the applicants pursued temporary authorisations in relation to the same firearms for which they had submitted licence applications. The respondents characterised this as abusive and as creating a form of self-generated urgency. The court treated the applicants’ papers as lacking specificity on critical matters relevant to section 21 applications, particularly the absence of a stated intended date of possession as contemplated by Regulation 23(2)(a), and the absence of complete copies of the temporary authorisation applications in the founding papers.

The applicants relied on internal engagement and an attendance by a candidate attorney at a police station (Roodepoort) on 29 July 2022, said to reveal that the applications had not been processed and were “untouched.” The court regarded the evidentiary value and significance of that account as limited in context, including because it occurred well within the period the applicants themselves asserted was applicable to the processing of licence applications, and because the allegation was used to support a speculative conclusion that the Registrar would not finalise the licence applications timeously.

By the hearing of the matter, the applicants accepted that the substantive relief was no longer live because the relevant licensing processes had been finalised and licences issued after 25 August 2022. The dispute before the court therefore narrowed to whether the applicants should nonetheless obtain a favourable costs order, on the theory that the litigation induced compliance.

Legal Issues

The central legal questions were directed at whether the application was properly instituted and whether, despite subsequent mootness of the substantive relief, the applicants were entitled to a costs order. In particular, the court had to determine whether, at the time the application was launched, there was a legally cognisable basis to claim relief premised on administrative failure or delay.

This required consideration of whether there was a failure to take a decision reviewable under section 6(2)(g) of the Promotion of Administrative Justice Act 3 of 2000, and whether the applicants’ interpretation of the regulatory framework governing temporary authorisations could sustain the relief sought. The matter therefore concerned the application of legal standards to facts, including an evaluative assessment of whether the litigation was premature and whether it constituted an abuse of process, both of which directly informed the discretionary question of costs.

A further interpretive issue arose from the applicants’ reliance on Regulation 23(2)(a) of the Firearms Control Regulations, 2004, and whether it could be understood to impose on the Registrar an obligation to decide temporary authorisation applications within seven days. The court ultimately accepted, without making a final determination, an assumption favourable to the applicants for purposes of analysis, but held that the applicants’ lack of factual specificity and the context of simultaneous applications undermined their case.

Court’s Reasoning

The court emphasised that the relief originally sought was extensive and substantively directed at compelling administrative action, yet by the hearing only costs were pursued. In that narrowed context, the court declined to undertake a full merits determination in circumstances where the substantive relief had become moot, but considered it necessary to decide whether the application was properly brought, because that question directly affected costs.

Regarding temporary authorisations, the court considered the structure and purpose of section 21 of the Firearms Control Act read with the Firearms Control Regulations. The applicants’ case depended heavily on Regulation 23(2)(a), and the court interpreted that provision as requiring that an application for a temporary authorisation be lodged at least seven days before the intended date of possession. The court held that the regulation does not, in express terms, provide that the Registrar must decide within seven days, and that reading such an obligation into the regulation would require implying words into the statutory scheme.

On the question of implying words, the court invoked the principle that the threshold for reading words into a statute is high and depends on a necessity test. While the court accepted (without finally deciding) that the applicants’ suggested implication might be arguable for purposes of the application, it held that the applicants’ factual presentation remained materially deficient because they failed to state the intended date(s) of possession required by Regulation 23(2)(a). This omission meant that the Registrar could not properly be expected to exercise the discretion contemplated by section 21, and it undermined the foundation for asserting an actionable delay.

The court also addressed the applicants’ reliance on Spear Security Group (Pty) Ltd v Bothma 2010 JDR 0767 (GNP) as authority supporting simultaneous licence and temporary authorisation applications. It agreed in general terms with Spear’s understanding of section 21 as enabling lawful possession where a permanent licence is not required, or where delays may occur and urgent need exists. However, it held that Spear could not reasonably be treated as authority that simultaneous applications for a permanent licence and a temporary authorisation for the same firearms are invariably permissible, and in any event the present applicants had failed to explain with adequate specificity why temporary authorisations were necessary over and above the licence applications.

The respondents’ explanation for proceeding with the licence applications rather than treating the temporary authorisations as requiring immediate prioritisation was treated as reasonable in context. The court observed that the designated officials were not properly informed in writing of the relationship between the temporary authorisation applications and the existing licence applications, nor were they properly furnished with key facts (including intended possession dates and other contextual information). The applicants’ manner of pursuing simultaneous applications, without providing the necessary detail and without demonstrating why expedited section 21 relief was warranted, contributed to the court’s conclusion that the litigation posture was questionable.

Turning to the licence applications, the applicants relied on an internal SAPS directive referring to finalisation within 90 days, and on the proposition that absent statutory timeframes, decisions must be made within a reasonable time. The court held that, whatever the precise content and status of the directive, it was clear that the 90-day period had not expired when the application was instituted. The applicants’ assertion that the applications would not be processed by the end of September 2022 was characterised as speculation, grounded largely on the candidate attorney’s visit and the deponent’s experience rather than concrete facts. The court viewed the candidate attorney’s attendance at the office of the Designated Firearms Officer as “uncalled for” and assigned limited evidentiary weight to her affidavit, especially given the scale of the applications and the fact that the visit occurred within the asserted processing period.

The court then considered the reliance on section 6(2)(g) of PAJA. It held that a mere apprehension or concern that administrative action might not be taken timeously, particularly when the asserted time period had not yet run, is insufficient to found review proceedings on the basis of failure to take a decision. The court relied on authority explaining that the provision targets bureaucratic dilatoriness and “stonewalling” against a citizen who does not receive a decision within an appropriate time. On the facts as they stood at institution, the court found no proven failure to take a decision, either on the temporary authorisations (given the deficiencies and reasonable administrative response) or on the licence applications (given the unexpired period and speculative basis).

Collectively, the court identified multiple features which undermined the applicants’ contention that the application was necessary and properly instituted. These included the failure to motivate why temporary authorisations required immediate consideration in addition to the corresponding licence applications, the failure to specify intended possession dates, the absence of key documents in the founding papers (including the temporary authorisation applications themselves), and the prematurity of the application given that the asserted processing period for licences had not expired. These defects supported the conclusion that the application was premature and constituted an abuse of process.

In relation to costs, the court exercised its discretion by focusing on these threshold findings. Even though the substantive relief had become moot, the court held that the prematurity and abusive character of the litigation justified an adverse costs order, and it considered a party-and-party costs order appropriate.

Outcome and Relief

The court dismissed the attempt to obtain a costs award in favour of the applicants and instead ordered the applicants to pay the costs of the first to fourth respondents. The costs order was made jointly and severally, with the usual qualification that payment by one would absolve the others.

No substantive relief in prayers 2 to 7 was granted, as the matter had become moot and the court considered it unnecessary to determine the substantive merits beyond what was required for the costs decision.

Cases Cited

Spear Security Group (Pty) Ltd v Bothma 2010 JDR 0767 (GNP)

Rennie NO v Gordon NO 1988 (1) SA 1 (A)

Offit Enterprises (Pty) Ltd and another v Coega Development Corporation and others 2010 (4) SA 242 (SCA)

Legislation Cited

Firearms Control Act 60 of 2000

Promotion of Administrative Justice Act 3 of 2000

Rules of Court Cited

Uniform Rule 6(12)(a)

Held

The court held that, although the substantive relief sought had become moot by the hearing because the relevant firearm licence applications were processed and licences issued, the litigation had been prematurely instituted and amounted to an abuse of process. The applicants failed to provide necessary specificity and documentation in relation to the temporary authorisation applications, including the intended date of possession contemplated by Regulation 23(2)(a), and failed to establish any actionable administrative failure to take a decision under section 6(2)(g) of PAJA at the time proceedings were launched.

The court further held that the applicants’ reliance on alleged anticipated delay in the processing of firearm licence applications was speculative, particularly because the asserted 90-day period had not expired when the application was issued. These findings were sufficient to justify an adverse costs order, notwithstanding the later mootness of the substantive relief.

LEGAL PRINCIPLES

The judgment applied the principle that words will not readily be implied into statutory provisions, and that the threshold for reading words in by implication is high and depends on necessity to give effect to the statute. The court treated this as relevant to the applicants’ contention that Regulation 23(2)(a) implicitly required the Registrar to decide temporary authorisation applications within seven days.

The judgment applied the interpretive principle that Regulation 23(2)(a) is directed at the timing of lodging an application for a temporary authorisation, requiring that it be lodged at least seven days before the intended date of possession, and that a litigant seeking relief based on delay must provide the factual content (including that intended date) necessary to evaluate the administrator’s obligation and discretion.

In applying section 6(2)(g) of the Promotion of Administrative Justice Act 3 of 2000, the judgment reaffirmed that review for failure to take a decision is aimed at protecting persons against bureaucratic dilatoriness or stonewalling, and that speculation or apprehension of future delay, particularly before an asserted decision period has run, is insufficient to establish such a failure.

The judgment also applied the costs principle that, even where substantive relief becomes moot, a court may determine costs on the basis of whether proceedings were necessary, properly instituted, or abusive, and may award party-and-party costs against the party whose premature or abusive litigation conduct warranted censure.

Fidelity Security Services (Pty) Ltd and Others v National Commissioner of The South African Police Services and Others (2022-010177) [2022] ZAGPPHC 842 (24 October 2022)