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[2015] ZAGPPHC 350
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Servest (Pty) Ltd t/a Servest Marine v Minister of Police and Others (57666/2014) [2015] ZAGPPHC 350 (25 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE:
57666/2014
DATE:
25 MAY 2015
In
the matter between:
SERVEST
(PTY) LTD t/a SERVEST
MARINE
..............................................................
APPLICANT
and
THE
MINISTER OF
POLICE
.........................................................................
FIRST
RESPONDENT
NATIONAL
COMMISSIONER OF THE SOUTH
AFRICAN
POLICE
SERVICES
.................................................................
SECOND
RESPONDENT
BRIGADIER
A
GOPAUL
................................................................................
THIRD
RESPONDENT
COLONEL
M G
NEWTON
.........................................................................
FOURTH
RESPONDENT
JUDGMENT
TLHAPI
J
[1]
The applicant launched two applications. In the first application of
5 August 2014 the applicant seeks the following orders:
“
1.
Compelling the South African Police Services to comply with the
Guidelines for the Control of Firearms and Ammunition at Ports
of
Entry in South Africa dated the 4
th
June 2013;
2.
Ordering the First, Second, Third and Fourth Respondents to withdraw
the directive dated 16 May 2014;
3.
That the respondents, jointly and severally pay the costs of this
application on the scale as between attorneys and client;
4.
Directing.....that the First Respondent and Second Respondent be
ordered to consult with the Applicant, and any other interested
party
concerning any change to any of the approved guide lines dates the
4
th
of June 2013;”
In
the second application of 17 November 2014 which was brought on
urgency and was struck of the roll due to lack of urgency the
applicant seeks the following order:
“
2.
That an interim interdict be issued against the respondents inter
alia containing the following:
2.1
For an order pending the finalization of the main application:
To:-
2.1.1
Comply with the provisions of Annexure “A” to the
founding affidavit in this application, being the document known
as
“Guidelines for the Control of firearms and Ammunition and
Ports of entry in South Africa;
and
2.1.2
To not unlawfully intervene in Applicant’s business activities;
2.1.3
An order interdicting and restraining Respondents from
harassing,intimidating, and threatening applicant and its employees
or otherwise acting in an unlawful fashion towards the Applicant and
its employees.
2.1.4
Directing that should respondents wish to effect an arrest, of any of
the applicant’s employee(s) or agent(s), that
they notify
applicant’s attorneys in writing and provide a copy of the
written warrant of arrest for such person along with
reasons for such
arrest and allowing applicant’s attorneys a reasonable time to
allow applicant’s employee(s), agent(s)
to present themselves
with their attorneys at an agreed time and place to the respondents
for arrest;
2.1.5
Interdicting and restraining respondents from effecting arrests on a
Thursday or a Friday without a written warrant of arrest;
BACKGROUND
[2]
The applicant is a security service provider. Among its many
functions it also provides marine security services in the handling
in the transportation of firearms for ships entering Durban Harbour
or outside Durban Harbour, for the protection of ships piracy
activities along the East Coast of Africa and the Mozambique Channel.
The
South African Association of Ship Operators and Agents (‘SASSOA’),
various security service providers and the South
African Police
Service (‘SAPS’) engaged in a consultative process which
resulted in as set of guidelines for the transportation
of firearms
being approved by the National Commissioner of the South African
Police Services on 4 June 2013,
(“Guidelines
for the Control of Firearms and Ammunition at Port of Entry of South
Africa).
[3]
The applicant was informed of a directive taken on 16 May 2014 by the
third and fourth respondents which had been unilaterally
taken
and without any notice or prior consultation with the applicant and
other interested parties and the directive was annexed
as annexure
‘B’. The applicant contended that the directive was
unlawful; in contravention of the Promotion of
Administrative
Justice Act and, in direct conflict with the guidelines and, would
have had the effect of prejudicially affecting
about 40% of its
business. The applicant instructed its attorneys to send a letter of
enquiry to the third and fourth respondents
on 12 June 2014, which
was followed by another letter of 1 July 2014 which requested
confirmation that the directive had been withdrawn.
No
confirmation was received.
[4]
The answering affidavit was deposed to by the third respondent who
was also author of the directive complained about. He averred
that
the directive was sent to SASSOA during May 2014. SASSOA then engaged
with the SAPS and after considering their representation,
the
directive was withdrawn on 18 June 2014before the implementation date
of 1 July 2014. On 20 June 2014 SASSOA confirmed receipt
of the
withdrawal and informed the respondent that it was communicated to
all its members. It was contended that it was not necessary
to bring
the respondents to court because the business of the applicant was
not affected by the directive and the launching of
the on the 4
August 2014 was an abuse of the process of court.
[5]
In reply it was contended that the respondents had not in reply dealt
with the issues in the relief that was sought because
there was ‘an
inconsistent application, specifically by the deponent to the
answering affidavit, the third respondent , one
Colonel Newton and,
the fourth respondent’ , of the guidelines. The inconsistencies
were addressed in paragraph four (4)
of the replying affidavit and
further that the applicant had been victimised. It was averred that
SASSOA was not an agent for the
applicant and that it had no
authority to act on its behalf and that any notification to it did
not constitute a notification
to the applicant. There was further no
proof that the applicant had been notified of the withdrawal. It was
further averred that
the fourth respondent on instructions of the
third respondent had on 22 August 2014 conducted a raid on
Applicant’s premises
this having occurred two days after the
service of the application. This was done on the pretext that one of
the employees did
not have a valid work permit. One Pascal Anyafula
and the Ivan Sewdarsan were arrested by the fourth respondent
and released
on bail and their criminal case was not proceeded with.
FIRST
APPLICATION
[6]
The activities of the applicants and other role players and the
respondents, are regulated by the Firearms Control Act 2000
(Act 60
of 2000) and related regulations and various other relevant
legislations quoted in the Guidelines, These guidelines were
approved
by the National Commissioner of the SAPS dated 4 June 2013. The
purpose of the documents was to provide guidelines for
the ‘effective
control of the import, export, transit of arms and ammunition’
and for the procedures to be observed
by all role players in
compliance with the law. The guidelines in themselves are not the
law.
[7]
This application was launched on 5 August 2014, a considerable time
after the third respondent withdrew his directive on 18
June 2014 and
which withdrawal was communicated to SASSOA. Annexure ‘H”,
letter from the applicant’s attorney
dated 12 June 2014
identified the source of the directive complained was SASSOA. In my
view, the fact that such withdrawal was
not specifically communicated
to the applicant because it is not a member of SASSOA does not in
itself justify the launch of the
application, unless the applicant
can show that as a result of the directive its business had
been affected by the directive
before and after its withdrawal.
[8]
The applicant had to show that the conduct of the respondents was in
direct conflict with its obligations under relevant legislation
or
regulations and that the guidelines had not been observed and such
transgressions must be identified. The founding affidavit
is lacking
in such information. The applicant makes out an entirely new case
relating to alleged incidents in the replying affidavit
when it is
not permissible to do so. Such averments should be struck out. An
applicant stands or falls by his affidavit because
facts should be
put in such a manner that the respondent is in a position to affirm
or deny the allegations against it from the
outset. It does not
assist the applicant for example, to state in the replying affidavit
that a respondent has not responded to
the orders sought in the
notice of motion.
In
Swissborough
Diamond Mines (Pty) Ltd v Government of the Republic of South Africa
1999(2)SA 279(T) Joffe J stated:
323
F-J – 324 A
“
It
is trite law that in motion proceedings the affidavits serve not only
to place evidence before the Court, but also to define
the issues
between the parties. In doing so the issues between the parties are
identified. This is not only for the benefit of
the Court but also,
and primarily, for the parties. The parties must know the case that
must meet and in respect of which they
must adduce evidence in the
affidavits....
An
applicant must accordingly raise the issues upon which it would seek
to rely in the founding affidavit. It must do so by defining
the
relevant issues and by setting out the evidence upon which it relies
to discharge the onus of proof resting on it in respect
thereof.
324D
The
facts set out in the founding affidavit (and equally in the answering
affidavit and replying affidavit, must be set out simply,
clearly and
in chronological sequence and without argumentative matter.
324F-G
Regard
being had to the function of affidavits, it is not open to an
applicant or a respondent to merely annexe to its affidavit
documentation and to ask the court to have regard to it. What is
required is the identification of the portions thereof on which
reliance is placed and an indication of the case which is sought to
be made out on the strength thereof. If this were not so the
essence
of our established practice would be destroyed”
(my
underlining)
In
the light of the above I am not satisfied that a case had been made
out for any of the prayers in this application.
SECOND
APPLICATION
[9]
The second application was instituted as a matter of urgency for an
interim interdict pending the finalization of the main application
which was the first application in the circumstances. This
application was struck off the roll due to lack of urgency and this
application in order to be effective was not set down for hearing
before the first application was finalized. Since the same case
number was used I would conclude that the relevance of the second
application would be for purpose of consideration of costs only.
[10]
In the result the following order is given:
1.
The both applications
are dismissed with costs.
___________
TLHAPI
V.V
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON : 13 MAY 2015
JUDGMENT
RESERVED ON: 13 MAY 2015
ATTORNEYS
FOR THE APPLICANT: M J HOOD & ASSOCIATES
ATTORNEYS
FOR THE RESPONDENTS : THE STATE ATTORNEYS