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[2019] ZAGPPHC 291
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South African Arms and Ammunition Dealers' Association v National Commissioner of the South African Police Services and Others (38807/2019) [2019] ZAGPPHC 291 (11 July 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES/
NO
(3)
REVISED:
NO
Case No. 38807/2019
11/7/2019
In the matter between:
THE SOUTH AFRICAN ARMS AND
AMMUNITION
DEALERS'
ASSOCIATION
APPLICANT
And
THE
NATIONAL COMMISSIONER OF THE SOUTH
AFRICAN
POLICE SERVICES - GENERAL KJ
FIRST RESPONDENT
SITHOLE
(IN HIS CAPACITY AS REGISTRAR OF
FIREARMS)
THE
MINISTER OF POLICE
SECOND
RESPONDENT
MAJOR
GENERAL MAMOTHETHI: HEAD
FIREARMS
LIQUOR AND SECOND-HAND GOODS
THIRD RESPONDENT
COLONEL
LESIGE
FOURTH RESPONDENT
COLONEL
SIKHAKHANE
FIFTH RESPONDENT
JUDGMENT
MILLAR,
AJ
1.
This
is an urgent application. The applicant, a non-profit organization
established for the stated purpose of safeguarding and protecting
the
rights of all licensed firearm dealers, gunsmiths and manufacturers
in the Republic , seeks an interim interdict against the
respondents.
2.
The
respondents are the officials within the South African Police Service
designated
[1]
in terms of the
Firearms Control Act 60 Of 2000
with the
implementation of the Act. The interim interdict is to prevent the
respondents from unilaterally refusing to give permission
to
applicants who wished to effect a change of barrel to a licensed
firearm.
3.
The application is brought in two parts
- firstly for an interim interdict, part A and secondly for a review
of the decision taken
by the respondents and communicated to the
applicants on 28 May 2019, part B. It is only part A that is before
me for determination
and the relief sought in part B will in due
course be set down for hearing on the ordinary opposed motion roll.
4.
On 28 May 2019, a member of the
applicant, a gunsmith, who had enquired about the refusal of
authorization for the replacement of
a firearm barrel, was informed
by email:
"I do understand your
confusion. Yes, we have done this in the past but, if you go to Sec.
59
and
Reg. 51, there is no mention of
a
barrel being
replaced. Therefor(sic) the decision was taken by the section head:
CFR2
[2]
to stop giving permission for replacing barrels."
5.
The
email was forwarded to the applicant and precipitated the bringing of
this application. The applicant contends that the Act
and Regulations
allow for the replacement of a firearm barrel and that permission for
this has in the past, on application, been
granted.
6.
The
issue for determination is whether the Act and Regulations properly
construed permit of the interpretation placed upon them
by the
respondents and if they do not whether the applicant is entitled to
the interim relief it seeks.
7.
The
Supreme Court of Appeal in Justice Alliance of South Africa and
Another v National Minister of Safety and Security and Others
[3]
held that:
"The Firearms Control Act
60 of 2000 (the "new Act"), which came into force on 1 July
2004, repealed and replaced
the Arms and Ammunitions Act
75
of 1969 (the “old
Act”). It, like its predecessor, regulates the possession of
firearms. In doing
so,
it recognizes, as
recorded in its Preamble, the store that our Constitution places on
the right of every person to life and security,
as also, its logical
corollary that the increased availability and abuse of firearms has
contributed significantly to the high
levels of crime in our society.
Section 3 of the new Act prohibits any person from possessing
a
firearm unless he
or she holds for that firearm
a
licence, permit,
authorization or registration certificate. The purpose of the new Act
is to prevent the proliferation of illegally
possessed firearms and
to improve the control of legally possessed firearms."
8.
It
must be stated at the outset that the present application does not
venture into the terrain of the proliferation of illegally
possessed
firearms or in any way affect the control that the respondents have
over legally possessed firearms.
9.
Both
in terms of the old Act as well as the new Act, a firearm means any
barrel or frame
[4]
.
A gunsmith is also defined by the new Act as referring to any person
who performs work envisaged in section 59
[5]
but who however does not manufacture firearms.
10.
A
"barrel" on its own falls within the definition of a
firearm. It was held in R v Ntsamai
[6]
that
"The replacing or
refitting of
a
part or two does
not deprive the article from being described as
a
fire arm. If the
alterations and repairs required are so extensive in order to put the
article in
a
condition of
being capable of discharging
a
shot, the article
might be derelict matter and not
a
fire arm. In the
present case the pistol possessed
a
barrel and the
definition of "arm" includes "any barrel of an arm".
11.
The Act requires that a licence be held
for each separate firearm, including a barrel. These licenses may be
issued to private persons,
corporate entities or dealers
and gunsmiths.
[7]
The present application does not revolve around the issue of a
licence but rather whether the respondent is entitled to refuse
to
allow the change of one already licensed component
with
another licensed component, the
various components all falling within the definition of firearm.
12.
In terms of Section 59 of the Act:
"No person may, without
being the holder of
a
gunsmith's
licence or being registered as an apprentice to such holder
(a)
alter the mechanism of
a
firearm so as to enable the
discharging of more than one shot with
a
single depression of the trigger
(b)
alter the calibre of
a
firearm
(c)
alter the barrel length of
a
firearm
(d)
alter or remove the serial number
or any other identifying mark of
a
firearm or
(e)
perform such other work as may be
prescribed"
13.
The "other work as may be
prescribed" referred to in section 59(e) is set out in
regulation 50
[8]
:
"The holder of
a
gunsmith's
licence may, repair, customise, custom build, adapt, modify,
assemble, deactivate or store
a
firearm."
14.
Furthermore Regulation 51(a) provides
that the respondents may permit the gunsmith to acquire and keep in
stock any part of a firearm,
including a main firearm component. It
is self-evident that a barrel would constitute a main firearm
component.
15.
Section 59 of the Act read together with
regulations 50 and 51 make it plain that a gunsmith may work on a
firearm and keep the
individual components of firearms in stock·
for that purpose.
16.
What then is meant by "repair
[9]
,
customize
[10]
,
custom build
[11]
,
adapt
[12]
,
modify
[13]
and assemble
[14]
as referred to in regulation 50?
17.
These words are to be afforded their
ordinary grammatical meaning
[15]
.
The use of these words and the activities they describe, whether used
individually or in combination make plain that both the
Act and
Regulations specifically provide that one or more components of a
firearm can be replaced with new or modified ones. This
does not lead
to a proliferation of firearms or detract from the control that the
respondents have over this process. The entire
process is undertaken
under the auspices of the Act and under the aegis of the respondents
by persons specifically licensed by
the respondents for that purpose.
18.
The respondents argued that because the
Act and Regulations do not specifically provide for the replacement
of a gun barrel, permission
to authorize such a replacement can be
summarily refused. This argument disregards the clear meaning of
section 59 read together
with regulations 50 and 51 as set out above
and were it to be sustained would mean that in the case of firearms
whose barrels had
become unserviceable, these would need to be
destroyed because they could not be repaired with a replacement
barrel. Furthermore,
no modification or customization of any firearm
which would involve the replacement of a barrel could ever be done.
19.
Turning now to the requirements for the
granting of the interim interdict sought and whether the applicant
has met these. The respondents
elected to file an answering affidavit
in which they did not deal with all the specific allegations in the
founding affidavit.
The answering affidavit dealt only with urgency
and the relief sought in part A of the application and the respondent
reserved
to itself the right to file a more comprehensive answer in
respect of part B.
20.
The respondent argued that the applicant
failed to set out a commercial interest worthy of protection or show
a
prima facie
right
to the relief sought. The decision to summarily refuse applications
for the replacement of barrels impacts upon the commercial
interests
of the gunsmith members of the applicant. The Act specifically
recognizes that gunsmiths will conduct business
[16]
and in the circumstances there is a
prima
facie
right and commercial interest
worthy of protection
[17]
set out in the Act itself.
21.
The respondent also argued that the
applicant's members have an alternative remedy and for this reason
ought not to be granted an
interim interdict. It was argued that the
applicant's members should lodge applications for the replacement of
gun barrels and
once refused then appeal to the Appeal Board in terms
of section 133 of the Act read together with Regulation 91. While the
Act
does provide for this as an internal remedy, it would be placing
form over substance, were the applicant's members to be obliged
to
follow this route in respect of applications for the replacement of
barrels, in circumstances where the respondents have stated
in the
email of 28 May 2019, that any such applications will as a matter
fact be refused without any consideration of the facts
of the
particular application. The internal remedy is in the circumstances
illusory.
22.
The interdict sought is only in respect
of the summary and arbitrary refusal to allow barrel changes without
regard to the facts
of each particular application and in the
circumstances the authority vested in the respondents to administer
the provisions of
the Act are not in any way subverted or curtailed.
23.
Applications must be properly considered
in terms of the Act and the outcome cannot be predetermined on
arbitrary grounds. The order
sought in the present matter is only
that the decision to refuse applications for barrel changes
irrespective of and without consideration
of their individual merits
is interdicted on an interim basis pending the hearing of part B of
the application.
24.
The relief sought in the circumstances
would have an immediate effect but would not result in "serious,
immediate, ongoing
and irreparable" harm
[18]
or for that matter trespass upon the authority vested in the
respondents in terms of the Act
[19]
.
25.
The respondents argued that the balance
of convenience does not favour the applicant because the approval of
barrel changes, not
specifically provided for in the Act would if
allowed, result in a new firearm being put into circulation. Were
this to be the
case then certainly the balance of convenience would
not favour the granting of the interim interdict. However as stated
above,
the change of the barrel on an existing firearm for another
barrel does not lead to a new firearm in circulation - what existed
before exists after - one complete firearm and one barrel.
26.
The respondents also argued that the
relief sought in the notice of motion as formulated was overly broad
and if granted in those
terms would amount to a mandamus requiring
the respondents to authorize all applications for barrel changes.
While the case made
out in the papers did not favour such an
interpretation, the properly construed relief as framed could be
misinterpreted on the
basis contended by the respondents. For this
reason, I invited the parties to submit, by agreement , which they
did, the form of
the order that should be granted in respect of part
A were I so disposed.
27.
In regard to costs, the applicant sought
an order for costs. The respondent argued that in the event that the
application were to
be granted, that costs should be reserved or
should be costs in the cause of part B of the application. There is
no reason why
the costs should not follow the result.
28.
In the circumstances I make the
following order:
28.1
An interim interdict is granted
interdicting the Respondents from implementing the policy decision
communicated on the 28 May 2019
not to authorize the replacement of
barrels under
section 59
of the
Firearms Control Act 60 of 2000
;
28.2
That the respondents are ordered to
accept and process all applications to replace barrels for licensed
firearms;
28.3
That the Respondents are ordered to
consider every such application received for the replacement of a
barrel, on its own merits.
28.4
That the respondents are ordered to pay
the costs of the application to date of this order.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD
ON:
9 JULY 2019
JUDGMENT
DELIVERED ON:
11 JULY 2019
COUNSEL
FOR THE APPLICANT:
ADV. M
SNYMAN
INSTRUCTED
BY:
MJ HOOD
& ASSOCIATES
REFERENCE:
MR. M HOOD
COUNSEL
FOR THE RESPONDENTS:
ADV. C DREYER
INSTRUCTED
BY:
THE STATE ATTORNEY-
PRETORIA
REFERENCE:
MR. D SCROOBY
[1]
The first respondent is in his capacity as the National Commissioner
of Police designated in terms of section 123 of the Act
as the
Registrar of Firearms. The second respondent is the Minister
responsible for the South African Police Services generally
and the
third to fifth respondents the heads of departments delegated to the
administration of the Act by the first respondent.
[2]
Central Firearm Registry
[3]
2013 (2) All SA 15
(SCA) at paragraph 2
[4]
'firearm ' means any
(a)
device manufactured or designed to propel a
bullet or projectile through a barrel or cylinder by means of
burning propellant,
at a muzzle energy exceeding 8 joules (6 ft lbs)
(b)
device manufactured or designed to discharge
rimfire, centrefire or pinfire ammunition
(c)
device which is not at the time
capable of discharging any bullet or projectile, but which can be
readily altered to be a firearm
within the meaning of paragraph (a)
or (b)
(d)
device manufactured to discharge a bullet or
any other projectile of a calibre of 5.6 mm (.22 calibre) or higher
at a muzzle energy of more than 8 joules (6 ft lbs) by means of
compressed gas and not by means of burning propellant or
(e)
barrel, frame or receiver of a device
referred to in paragraphs (a), (b), (c) or (d), but does not include
a muzzle loading firearm
or any device contemplated in section 5
[5]
'gunsmith' means any person who performs work contemplated in
section 59, but who does not manufacture firearms
[6]
1945 (1) P.H H85 (T) and quoted with approval in S v Phalane
1973
(4) SA 582
(T) in which it was found that even if the remaining
mechanism was not functional, the barrel even though rusty was and
in the
circumstances fell within the definition of "arm".
See also S v Motaung 1981 (1) 145 (B) in which it was held that the
"Object must be suitable or capable of being made suitable
for use
as a
firearm."
[7]
a "gunsmith " is "a maker and repairer of small arms'
Shorter Oxford English Dictionary , Oxford University Press
2002,
Fifth Edition, Vol 1 page 1170
[8]
The regulations to the Act were published on 24 March 2004 in
Government Gazette 26156
[9]
repair, -"The action or process of restoring something to
unimpaired condition by replacing or fixing worn or damaged parts"
ibid Vol. 2 page 2533
[10]
customise , - "Make or modify to order or according to
individual requirements" ibid Vol. 1 page 584
[11]
custom build, - "In response to individual requirements; for an
individual customer" ibid Vol. 1 page 584
[12]
adapt, - "Fit, adjust, (to); make suitable (to or for)"
ibid Vol. 1 page 24
[13]
modify, - "Make partial or minor changes to; alter without
radical transformation· ibid Vol. 1 page 1807
[14]
assemble-"Put together the separate component parts of (a
machine or other thing)" ibid Vol. 1 page 132
[15]
Natal Joint Municipal Pension Fund v Endumeni Municipality
2012 (4)
SA 593
(SCA) at paragraph 18
[16]
See Regulations 51(b) and 52. See also sections 22 and 33 of The
Constitution,1996.
[17]
Twentieth Century Fox Film Corporation v Antony Blackfilms (Pty) Ltd
1982 (3) SA 582
(YV) a t 586G and also Webster v Mitchell 1948 (1)
SA 1186 (YV).
[18]
Setlogelo v Setlogelo
1914 AD 221
at 227; Tswane City v Afriforum
2016 (6) SA 279
(CC) at 3008 but distinguishable in the present case
because the Act vests in the applicant's gunsmith members a prima
facie
right.
[19]
National Treasury v Opposition to Urban Tolling Alliance
2012 (6) SA
223
(CC) at 231D-F.