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[2019] ZAGPPHC 234
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Fidelity Security Services (Pty) Ltd v Minister of Police and Others (45537/2016) [2019] ZAGPPHC 234 (21 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 45537/2016
21/6/2019
DELETE
WHICHEVER IS NOT APPLICABLE
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHERS JUDGES: NO
(3)
REVISED
In
the matter between:
FIDELITY
SECURITY SERVICES (PTY) LTD
Applicant
and
THE
MINISTER OF POLICE
1
st
Respondent
THE
MINISTER OF JUSTICE
2
nd
Respondent
ACTING
NATIONAL COMMISSIONER OF THE
SOUTH
AFRICAN POLICE SERVICES:
3
rd
Respondent
J
K PHAHLANE
JUDGMENT
RANCHOD
J:
Introduction
[1]
In this matter the applicant seeks an order in terms of the Notice of
Motion that:
‘
1.
Declaring that the directive of the National Commissioner, dated the
3
rd
of February 2016, attached 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 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.
10.
Further and/or alternative relief.’
[2]
In its supplementary heads of argument and at the hearing the
applicant no longer
sought the relief set out in prayers 1, 2 and 3.
[3]
The applicant submitted that prayers 4 to 8 crystalize into two main
issues.
First, whether the refusal by the third respondent to
accept late applications for renewal of licences or to accept new
applications
for those firearms of which the licences have terminated
is correct. Second, whether, pending determination of the
renewal
or new applications, the third respondent should issue
authorisations to the applicant to possess the firearms in the
interim.
Background
facts
[4]
The applicant, as its name suggests, is in the business of providing
security services
to the private and business sector in South
Africa. The deponent to the founding affidavit says it is the
largest security
service provider in South Africa and has
approximately 8,500 firearms in its possession. It has over 60
offices situated
in major towns and cities throughout the country.
The firearms are utilised by about 15,000 qualified and competent
armed
personnel.
[5]
The applicant purchases firearms as and when required, hence their
licences expire
at different times. The Firearms Control Act 60
of 2000 (the Act) stipulates in section 7 that a person must be
appointed
to be responsible for control of firearms licenced in the
name of what is termed an ‘institutional corporate entity.’
The responsible person of the applicant was a Mr. Sarel Gerhadus
Yssel who resigned as such and left the employ of the applicant
on 1
February 2016.
[6]
The deponent to the founding affidavit, Mr. Johannes Cornelius
Wentzel, says he was
appointed as the responsible person in place of
Mr. Yssel. Mr. Wentzel says, due to Yssel’s ill health
and other responsibilities,
over and above that as responsible person
for the applicant’s firearms, he lacked effective
administrative control over the
applicant’s firearms. The
result was that a number of licences of firearms owned by the
applicant had expired and Yssel
failed to apply for their renewal
timeously.
[7]
On 18 April 2016, the applicant attempted to submit the renewal
applications at the
Florida Police Station but the designated
firearms officer refused to accept them on the basis that a
directive
[1]
issued on 3 February 2016 by the third respondent did not permit him
to accept them.
[8]
This refusal is the primary reason for the launching of this
application. As
I said however, the applicant no longer seeks
to challenge the validity of the directive as it initially sought to
do in prayers
1 to 3 of the notice of motion. The reason
appears to be that subsequent to the launching of the application,
the decision
of the Constitutional Court in
Minister
of Safety and Security v
South
African Hunters and Game Conservation Association
[2]
(
SA
Hunters
.case)
was handed down on 7 June 2018 where
the applicant and Gun Free South Africa (NPO) had been admitted as
amici curiae.
[9]
The appeal to the Constitutional Court emanated from a decision of
this court in an
application by
SA
Hunters
[3]
to, inter alia, have sections 24 and
28 of the Act declared constitutionally invalid. This Court
(per Tolmay J) found in the
applicant’s favour. The Minister of
Safety and Security appealed to the Constitutional Court. The latter
Court set aside
the decision of this Court and held that sections 24
and 28
[4]
of the Act were constitutionally valid.
[10]
The applicant in this matter before me correctly abandoned the
challenge to the constitutional
invalidity of these sections.
However, as I said, it persists in the relief sought in the remaining
prayers.
[11]
The relevant provisions of sections 24 and 28 for purposes of this
judgment are:
‘
Section 24 Renewal
of firearm licences
(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.
…
(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.
…
Section 28 Termination of
firearm licence
(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;
…
(6) Any
period contemplated in this section may be extended by
the
Registrar on good
cause shown.’
[12]
The applicant’s submissions are essentially the same as its
arguments as
amicus
in the
SA Hunters
case where they
were rejected by the Constitutional Court. In
SA
Hunters
Froneman J, writing for the Court, stated at para 7:
‘
Fidelity Security argued
that only section 24(1) of the Act was unconstitutional. In the
alternative, it 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.’
[13]
In para 6 Froneman J said:
‘
[The provisions of the Act]
cannot be clearer. It is an offence to possess a firearm
without a licence obtained in terms of
the Act
[5]
.
Once one has obtained a licence one needs to renew it at least 90
days before the date of expiry
[6]
.
If that is done timeously the licence remains valid until the
application is decided
[7]
.
If that is not done the licence terminates
[8]
and possession of the firearm constitutes an offence and is subject
to criminal penalties.’
(Footnotes
22 – 25 renumbered and footnote 26 omitted for purposes of this
judgment.)
[14]
At para 19 of the judgment the learned Judge said there is a short
answer to what must be done
if the licence has terminated upon
effluxion of time:
‘
the gun-holder must get rid
of the firearm. . . . The gun-owner knows that he must either apply
in time for renewal or dispose of
the firearm before expiry. If
he does not, he will be guilty of an offence. He knows what is
expected of him before
expiry of the licence and is provided with
legislative means to fulfil that expectation. He also knows
what will happen to
him if he does not do so.’
[15]
The applicant argued in this application before me that it does not
help to surrender the firearms
to the police as they do not have
storage or disposal facilities for them. That is a problem that
the police must address.
It cannot be a ground for the relief
the applicant seeks. It is also
unfortunate that possibly about
700 firearms must be surrendered by
the applicant to the police to be destroyed – only to purchase
new ones and apply for
new licences. This is something for the
Legislature to consider. It is not an issue before me.
[16]
In the supplementary heads of argument filed after the judgment in
SA
Hunters
was handed down by the Constitutional Court, and at the
hearing, applicant’s counsel sought to distinguish between an
owner
of a firearm and a possessor.
[17]
I understood the argument to be that only possession of a firearm is
regulated by the Act and
must be distinguished from ownership
thereof. A competency certificate is not issued to a business
but only to its employees,
including the responsible person.
Hence, so the argument went, as the Act does not deal with ownership
of firearms the common
law would apply to ownership. Where a
person has purchased a firearm and is licenced to possess it as owner
and the validity
period of the licence expires, it does not detract
from the ownership of the firearm. A refusal to renew the
licence once
it has terminated makes inroads into the owner’s
right to possess the firearm. The submissions, rather
convoluted I
might add, cannot be sustained. It is the
possessor who must be licensed
[9]
,
whether he is the owner or not. If the owner wishes to possess the
firearm he must apply for a licence.
[18]
A further argument raised by the applicant was that the right to
choose a trade, occupation or
profession in terms of section 22 of
the Constitution is affected by the Act. One of the rights
flowing from s 22 is the
right to apply to lawfully conduct a
business. The applicant is prevented from doing so by the
refusal to accept renewal
applications, or applications for new
licences for those that have expired. The submission is without
merit. The applicant
is not prevented from conducting its trade
or from applying for a licence. What is required is that it
comply with the Act
in order to possess firearms for the conduct of
its business.
[19]
The application therefore falls to be dismissed.
[20]
There is the question of costs. The applicant abandoned reliance on
the constitutional invalidity
of sections 24 and 28 of the Act hence
the usual rule that costs should follow the result should apply. The
applicant persisted
in asking this court to order that the
respondents consider applications for renewal or new licences where
licences have terminated
by effluxion of time in spite of the
decision in
SA Hunters
that that is not possible in terms of the Act. Its belated
attempt to rely on section 22 of the Constitution is misplaced.
Respondent’s counsel submitted that a punitive costs order is
warranted as the applicant pressed ahead with the application
in
spite of the decision handed down by the Constitutional Court in the
SA Hunters’
case. I agree.
[21]
In all the circumstances, the application is dismissed with costs on
the scale as between attorney
and client, including the costs of
senior counsel.
RANCHOD
J
JUDGE
OF THE HIGH COURT
Appearances
Counsel on behalf of
Applicant
:
Adv M. Snyman
Instructed
by
: Messrs MJ Hood &
Associates
Molon Labe House, Unit 10
WOODMEAD, RIVONIA
Counsel
on behalf of Respondent
: Adv J. Motepe SC
Adv D. D. Mosoma
Instructed
by
: State Attorney
316 Thabo Sehume Street
PRETORIA
Date of
hearing
: 28 February 2019
Date of
judgment
: 21 June 2019
[1]
The directive, in the form of a letter dated 3
February 2016 provides in the relevant parts for purposes of this
judgment:
‘
2.
The aim of this letter is to provide further clarity regarding the
renewal of firearm licences.
…
8.
In the case where a person wants 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.
9.
When a firearm in respect of which the licence has expired
is
voluntarily surrendered, the owner will not be prosecuted.
[2]
Minister of Safety and Security v South African
Hunters and Game Conservation Association [2018] ZACC 14.
[3]
South African Hunters and Game Conservation
Association v Minister of Safety and Security of the Republic of
South Africa
2017 (2) SACR 288
(GP).
[4]
Section 24 of the Act deals with the renewal of
firearm licenses and section 28 with their termination.
[5]
See section 3 of the Act.
[6]
Id at section 24(1).
[7]
Id at section 24(4).
[8]
Id at section 28(1)(a).
[9]
Section 3 of the Act provides:
‘(1) No person may
possess
a firearm unless he or she
holds for that firearm-
(a) a licence, permit or authorisation
issued in terms of this Act; or
(b) a licence, permit, authorisation or
registration certificate contemplated in item 1, 2, 3, 4, 4A or 5 of
Schedule I.’ (My italics.)