Rugged-Lava Group (Pty) Limited v National Commissioner of the South African Police Services General KJ Sithole N.O. and Others (22366/2021) [2021] ZAGPPHC 454 (8 July 2021)

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[2021] ZAGPPHC 454
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Rugged-Lava Group (Pty) Limited v National Commissioner of the South African Police Services General KJ Sithole N.O. and Others (22366/2021) [2021] ZAGPPHC 454 (8 July 2021)

HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 22366/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE:8
JULY 2021
In
the matter between:
RUGGED-LAVA
GROUP (PTY) LIMITED
Applicant
and
NATIONAL
COMMISSIONER OF
THE
SOUTH
AFRICAN POLICE SERVICES
GENERAL
K J SITHOLE N. O.
First
Respondent
MAJOR
GENERAL MAMOTHETI
Second
Respondent
BRIGADIER MABULE
N. O.
HEAD
OF CENTRAL FIREARMS REGISTRY
Third Respondent
COLONEL
PN SIKHAKHANE N. O.
Fourth Respondent
THE
FIREARMS APPEAL BOARD
Fifth Respondent
J
U D G M E N T
This
matter has been heard in open court and otherwise disposed of in
terms of the Directives of the Judge President of this Division.
The
judgment and order are accordingly published and distributed
electronically.
DAVIS,
J
[1]
Introduction
This
is an application for the urgent review of the refusal of an
in-transit permit for conveyance of firearms imported by a company
registered in Lesotho via O. R Tambo International Airport (ORTIA).
[2]
The parties
2.1
The applicant is Rugged-Lava Group (Pty) Ltd, a company registered in
Lesotho
with registration number 2012/1500.  It is licensed to
trade in arms and ammunition in Lesotho and has a valid permit to
import
the firearms that form the subject matter of this application,
being 200 9mm CZ handguns, into Lesotho.  It is represented in
South Africa in respect of the transaction for the importation by a
shipping agent, Natco SA International Transports (Pty) Ltd,
a South
African Company.
2.2
The respondents are the National Commissioner of the South African
Police Services
(SAPS), the General in charge of Firearms, Liquor and
Second Hand Goods (FLASH) under which the Central Firearms Registry
resorts
and a Colonel P.N Sikhakhane, being the actual
decisionmaker in respect of the in-transit permit in question, in her
capacity as
the commander for Arms Control, Permits and
Authorisations. The Firearms Appeal Board has also been cited as a
respondent.
[3]
The application for the in-transit permit
3.1
The relevant facts are largely not in dispute.  They are these:
the
applicant obtained orders for the firearms in question (the
aforementioned handguns) from private individuals in Lesotho for
their
own use.  The applicant then purchased and ordered the
firearms from the manufacturer.  As Lesotho is a landlocked
country,
the applicant will need an in-transit permit in order to
convey the firearms from ORTIA across the borders of South Africa to
Lesotho.
The applicant intends doing so via air transport, for
which purpose it has contracted (or will contract) SA Airlink who has
the necessary
air transport permit in respect of firearms
(incidentally issued by Colonel Sikhakhane).  The firearms
would, prior to its transportation
to Lesotho, never leave ORTIA
where it would be held in a bonded warehouse.  Apart from
traversing South Africa, the firearms
will actually never otherwise
enter the country.
3.2
In order to legally complete the relatively simple fly-in, fly-out
transport operation
described above,
Regulation 63(1)
of the
Firearms
Control Regulations, issued
in terms of the Firearms Control Act, 60
of 2000 (the FCA) and published in GNR 345 of 26 March 2004, provides
that “
a person who will, for commercial purposes, carry in
transit through the Republic of South Africa, firearms or ammunition
– (a)
must lodge an application for an in-transit permit at the
office of the Central Firearms Register before making arrangements
for
the transport of the firearms or ammunition …
”.
3.3
The need for an in-transit permit derives from section 73(2) of the
FCA which
prohibits a person form carrying a firearm in transit
through the Republic without being in possession of the necessary
permit.
3.4
In-transit permits may, in terms of section 74(1) of the FCA not be
issued to
a person who is not a “fit and proper” person to hold
such a permit. In terms of section 75, further, the permit must
specify
the conditions upon which it is issued and such other
information as may be prescribed.
3.5
The requirements prescribed in Regulation 63, and added to by
Col Sikhakhane
in her answering affidavit, with reference to the
required accompanying documentation, are the following:
-
The application must be submitted by completing a SAPS 520(a) form;
-
Proof of authority from the exporter from the country of origin
(export permit) and the importer
into the country of final
destination (import permit) must be supplied;
-
An “end-user” certificate as contemplated in
section 17
of the
National Conventional Arms Control Act, 41 of 2002
must be produced;
-
A computer printout or typed list, reflecting all the serial numbers
of all the firearms purchased
must be produced (for this purpose, Col
Sikakhane insists on an invoice, reflecting these particulars);
-
A “consignment note” from the transporter (who possesses a
transport permit) must be submitted
as well as particulars of the
intended route and mode of transport;
-
A certified copy of proof of payment of the prescribed amount of
R140.00 (one hundred and forty
Rands);
3.6
In addition, Col Sikhakhane insists that the application must be
accompanied by
a copy of the identity document or passport of the
“responsible person” applying on behalf of the juristic person.
3.7
The manufacturer had informed the applicant in October 2020 that the
consignment
of firearms had been dispatched by it, which prompted the
applicant to apply for the in-transit permit on 3 November 2020.
The applicant was not, however, informed when the firearms would be
shipped from Brazil and neither was its shipping agent aware
thereof
until the firearms arrived at ORTIA on 29 November 2020 where they
are still being kept under guard and lock and key. The
applicant
submits that its application, a copy of which was annexed to its
notice of motion, complied with all the prescribed requirements.
[4]
The refusal decision:
On
20 April 2021, Colonel Sikhakhane refused the in-transit permit on
two grounds stated in a letter by her, being the following:
“
-
The applicant, juristic person details is not registered in terms
of
Section 7
of the
Firearms Control Act 60 of 2000
.  The
company does not have registration number (FAR number).
-
The transporter to be used (Comair Flight Services) does not hold
a permit to transport firearms
”.
In
her answering affidavit, the Colonel explains more fully the first
ground for refusal as follows:
“…
having
regard to
Regulation 13(5)(b)…it
would not be competent in law for
the applicant to be issued with an in-transit permit because it is
not registered nor incorporated
in accordance with the laws of the
Republic
”.
[5]
The review
5.1
As set out in their answering affidavit, the first ground of refusal
relied on
by the respondents (including Colonel Sikhakhane), is based
on the wording of
Regulation 13(5)(b)
, the relevant part of which
reads as follows:
“
13.
General provisions regarding applications required in terms of the
Act:
(1)
…
(5)(b) the
application must be accompanied by proof of the registration or
incorporation, as the case may be, of the juristic person
in
accordance with the laws of the Republic
”.
5.2
From the outset, two things must be noted:
-
The first is that the FCA does not prohibit foreigners from conveying
firearms through
the Republic.  In fact this is an often
occurrence in the case of natural persons of which the applicant has
furnished examples
in its papers.
-
The regulations may legitimately regulate the implementation of the
FCA, but cannot
prohibit that which the FCA does not prohibit.
This is an application of the trite principle that subordinate
legislation cannot
override the legislation itself in terms of which
it has been promulgated.
5.3
All that section 74 of the FCA prescribes, is that “
an import,
export or in-transit permit may be issued to a person who is a fit
and proper person to hold such permit
”.  There is no
evidence to suggest that the applicant is not such a person.
5.4
In respect of a natural person applying for such a permit, Regulation
13(9)(b)
states that “
for the purpose of an import, export or
in-transit permit contemplated in Chapter 8 of the Act, the Registrar
may, in respect of a
non- citizen who is not resident in the Republic
of South Africa, accept such set of fingerprints as may be expedient
in the circumstances”
.
5.5
There is no similar provision for what method of identification or
verification
would be required for a non-resident (or “non-citizen”)
who is a juristic person.  The closest related provisions are
the
general provisions regarding juristic persons applying for
permits, namely that contained in Regulation 13(5), which I now quote
here in full: “
13(5) When the applicant is a juristic person –
(a) the Registrar may require additional information to the
information requested
in the application form, in respect of any
person who is in control of the juristic person or is responsible for
the management thereof,
(b) the application must be accompanied by
proof of the registration or incorporation, as the case may be, of
the juristic person
in accordance with the laws of the Republic of
South Africa
”.
5.6
Regulation 13(5)(b) can go no further than require confirmation of
the incorporation
of the applicant (as a foreign registered company)
in similar fashion as this court has accepted its
locus standi
as such “
in terms of the laws of the Republic of South Africa
”.
The sub-regulation talks about
additional information”
and
cannot be interpreted wider to the effect that it means that a
juristic person applying for an in-transit permit may only be
a South
African registered juristic person.  This would impose a
prohibition or limitation not contained in the Act.  The
reliance by the decisionmaker on such a purported prohibition is
therefore misplaced and does not constitute a valid reason for having
refused the permit.
5.7
As to the second ground referred to in paragraph 4 above, the
applicant indeed
initially indicated that it intended using Comair
Flight Services, who does not have the necessary transport permit.
A refusal
to issue a permit, should this have remained the case,
would have been justified, but by the time Colonel Sikhakhane
eventually made
her decision, she has already been informed that SA
Airlink, to whom she had issued a  transporter’s licence,
would
be used.  The learned Colonel’s objection that the
initial application had not been amended (other than by way of
correspondence)
or that no confirmation had been received from SA
Airlink, are no valid reasons for refusal and any confirmation
could, in
the circumstances of this case, simply have been
added as a condition to the issue of the permit, had that been the
actual concern.
5.8
I therefore find that the refusal to issue the in-transit permit, on
the reasons
supplied at the time of such refusal, was not in
accordance with the FCA and the Regulations. The first reason is not
authorized
by the empowering legislation and the second reason
implies that relevant considerations were ignored. These grounds
therefore fall
foul of  Sections 6(2)(e)(i) and (iii) of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA).
[6]
The respondents’ remaining objection to the relief claimed:
6.1
Despite the above, the respondents objected to a review of the
refusal being contemplated
at all, due to the fact that a right of
internal appeal still existed.  The applicant states that it
could not exercise this
right as no notice as contemplated in
Regulation 89(c) has been issued which would have enabled it to do so
and furthermore, having
regard to the length of time it took to
obtain a decision on its initial application, it fears that any
appeal process would extend
beyond the period of validity of its
importers permit, not only rendering the matter moot, but which would
also lead to irreparable
harm. The indications from the respondents’
papers are further that any decision on appeal which might favour the
applicant would,
in its view, be “precluded by law”. If this is
the stance of the respondents, which includes the Appeal Board, then
any internal
appeal based on such a foregone conclusion, would serve
nothing but a delaying purpose. I am therefore satisfied that
sufficient
exceptional circumstances exist to allow the review to
proceed as contemplated in section 7(2)(c) of PAJA, without the
exhaustion
of an internal remedy.
6.2
A further objection by the respondents to the application, is that
the firearms
have entered the country prior to the granting of the
in-transit permit.  The “arrangement” of such an
importation, amounts
to a criminal offence, disentitling the
applicant to the relief it seeks, so the respondents argue.
Colonel Sikhakhane puts
it as follows in her answering affidavit: “
On
this score alone, the applicant contravened Regulation 63(1)(a) and
(b) and stand to be charged as envisaged in regulation 110…”.
In
addition, the respondents contend that the firearms might be
illegally be in the country. In this regard, however, the Colonel
says: “…
it is now apparent from the reading of the
applicant’s papers that the firearms are stored at OR Tambo
International Airport.
I am however advised that for purposes
of this answering affidavit, I need not deal with the criminal
implications of this issue
”.
6.3
Whether the firearms have actually entered South Africa where it is
held in bondage
in “no man’s land” as the applicant puts it, is
open to some doubt.  Once an in-transit permit is issued, the
practical
effect would be that the firearms would be on the next
plane to Lesotho.  Whether criminal sanctions should still be
preferred
regarding the “arrangement” of importation for the
purpose of conveyance to another country prior to the actual issuing
of an
in-transit permit, should not be a bar to this.  It is
also not clear whether a conviction could be secured on the fact that
the firearms had been shipped prior to the issuing of the in-transit
permit if that had been done without the knowledge of the applicant,
but even so, that does not now disqualify the applicant from
obtaining the permit.
6.4
In heads of argument submitted on behalf of the respondents, it was
submitted
that, even if the refusal is reviewed and set aside, the
applicant should still not be granted relief because the application
was
in the name of the applicant as a juristic person and not in the
name of a nominated natural person and that the end-user certificate
does not provide for a description of the firearms.
6.5
I am of the view that the applicant has, if one takes into account
all the documents
submitted to the respondents, substantially
complied with all the requirements. This is further illustrated by
the Form 520(a) annexed
to the applicant’s notice of motion, which
caters for the requirements of Regulation 63. Once the reasons for
the refusal given
by Colonel Sikhakhane on 20 April 2021 fall by the
wayside, then the granting of the permit should be a foregone
conclusion.
Any outstanding issue such as those now raised
ex
post facto
, could have been or can notionally still be be added
as conditions.
6.6
In terms of section 8 of  PAJA, once an administrative decision
found to
be reviewable and is set aside, a court is entitled to make
any order it deems just and equitable in the circumstances.  In
exceptional circumstances, this may include relief to the effect that
the decision is overturned. Having regard to the specific facts
of
this case, the time elapsed and the reasons why the refusal is set
aside, I find that this is a sufficiently exceptional case
to warrant
such an order.
[7]
Costs
Despite
the fact that the decision complained of has been set aside, there
are a number of facts which could and did give rise to
the fact that
the permit was not at the outset ready to be issued with the
particulars then supplied and for which the applicant
is to blame.
The applicant also, in my view, inappropriately accuses the
respondents, and in particular, Colonel Sikhakhane,
of either bias or
incompetence.  I find this to have been unwarranted.
Cumulatively, I am of the view that this is a proper
case where,
despite the applicant’s success, each party should pay its own
costs.
[8]
Order
In
the premises, I grant an order as follows:
1.
It is
declared
that the Applicant need not exhaust the internal administrative
remedies as set out
Section 7
of the
Promotion of Administrative
Justice Act, 3 of 2000
and the
Firearms Control Act, 60 of 2000
;
2.
The decision of the Fourth Respondent dated
the 20
th
of April 2021 to refuse applicant’s in-transit permit, is reviewed
and set aside;
3.
The First, Second and Third Respondents,
and whosoever may be delegated to do so, are ordered to issue an
in-transit permit to the
applicant based on the completed in-transit
document SAPS 520 attached as Annexure “
A”
to the applicant’s amended Notice of Motion (together with the
supporting annexures thereto) within
5
(five)
days from the service of this
order together with the said Annexures;
4.
Each party is to pay its own costs.
N
DAVIS
Judge
of the High Court
Gauteng
Division, Pretoria
Date
of Hearing:  18 June 2021
Judgment
delivered: 8 July 2021
APPEARANCES:
For
the Applicant:

Adv. M Snyman SC
Attorney
for Applicant:
MJ Hood & Associates, Rivonia
For
the Respondents:

Adv. M Rasekgala
Attorney
for Respondents:
State Attorneys,
Pretoria