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[2014] ZAGPPHC 410
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Waters Firearm Training and Assessment Centre CC t/a Firearm Competency Assessment and Training Centre and Others v National Commissioner of the South African Police Services and Others (68285/13) [2014] ZAGPPHC 410 (20 February 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO:
68285/13
DATE:
20/6/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
WATERS
FIREARM TRAINING
….................................................................................
1
st
Applicant
AND
ASSESSMENT CENTRE CC t/a FIREARM
COMPETENCY
ASSESSMENT AND TRAINING CENTRE
NTATE
AVIATION AND SECURITY TRAINING
CC
...................................................
2
nd
Applicant
YE-SIZWE
SECURITY SERVICES
CC
..........................................................................
3
rd
Applicant
UNLIMITED
BUSINESS
UPLIFTMENT
.........................................................................
4
th
Applicant
TRADING
UNITS (PTY) LIMITED
and
THE
NATIONAL COMMISSIONER OF
THE
….........................................................
1
st
Respondant
SOUTH
AFRICAN POLICE SERVICES
THE
DIVISIONAL
COMMISSIONER:
.......................................................................
2
nd
Respondent
VISIBLE
POLICING OF THE
SOUTH
AFRICAN POLICE SERVICES
THE
SAFETY AND SECURITY SECTOR
…...............................................................
3
rd
Respondent
EDUCATION
AND TRAINING AUTHORITY
(“SASSETA”)
THE
QUALITY
COUNCIL
.............................................................................................
4
th
Respondent
FOR
TRADE AND OCCUPATIONS (“QCTO”)
SOUTH
AFRICAN
PROFESSIONAL
............................................................................
5
th
Respondent
FIREARMS
TRAINERS COUNCIL (“SAPFTC”)
JUDGMENT
BASSON,
J
Introduction
[1]
It
is common cause that a person who applies for a firearm licence must
be in possession of a training certificate that certifies
that the
candidate has,
inter
alia
,
passed the prescribed test on knowledge of the Firearm Control Act
[1]
(“FCA”) and that the applicant has successfully undergone
practical training in the safe and efficient use of a firearm.
SAPS
will only issue a firearm licence upon receipt of such a training
certificate which indicates that the applicant for a licence
understands the law pertaining to the safe handling and use of a
firearm. Training in the safe handling and use of a firearm is
done
by accredited training providers. The testing on
knowledge
of the FCA as well as the formal training and practical testing in
the safe and effective handling of a firearm must comply with
the
requirements of the South African Qualifications Act
[2]
(hereinafter referred to as “SAQA” – repealed by
the National Qualifications Framework Act
[3]
- hereinafter referred to as “NQF”) read with the Skills
Development Act.
[4]
The
parties
[2]
The First Applicant is Waters Firearm
Training and Assessment Centre CC t/a Firearm Competency Assessment
and Training Centre. The
Second Applicant is Ntate Aviation and
Security Training CC, the Third Applicant is Ye-Sizwe Security
Services CC and the Fourth
Applicant is Unlimited Business Upliftment
Trading Units (Pty) Limited. The Applicants are all training
institutions that have
been accredited by the Third Respondent to
provide the prescribed tests and training for purposes of
applications for competency
certificates or firearm licenses in terms
of section 9(2) of the FCA.
[3]
The First Respondent is the National
Commissioner of the South African Police Services. The Second
Respondent is the Divisional
Commissioner: Visible Policing of the
South African Police Services. The Second Respondent is one of the
divisions dedicated with
the function of issuing firearm licences to
both SAP members and the general public. Before the Second Respondent
can issue a licence,
an applicant for a licence needs to undergo the
prescribed training in compliance with the FCA. As already pointed
out, the Applicants
in this application provide such training.
[4]
The Third Respondent is the Safety and
Security Sector Education and Training Authority (“SASSETA”)
and is a SETA established
on 1 July 2005 pursuant to an amalgamation
of two former SETAS (“DIDTETA” and “POSLEC”).
The Third Respondent
is the quality assurance body delegated with the
power to quality assure all training in the security cluster. As will
be indicated
herein below, the overall responsibility for the quality
assurance of all occupational training and quality assurance vests in
the Fourth Respondent. The Fourth Respondent may, however, delegate
some of its powers to do quality assurance to a SETA such as
the
Third Respondent. (I will return to this issue herein below.)
[5]
The
Fourth Respondent is the Quality Council for Trade and Occupations
and is a statutory body established in terms of the Skills
Development Act (“SDA”).
[5]
The Fourth Respondent is a Quality Council in terms of the NQF.
[6]
[6]
The
Fourth Respondent is not directly involved in the provision of
training or quality control and monitoring in respect of training
providers. The principle power of the Fourth Respondent is to ensure
quality assurance in respect of occupational standards and
qualifications as well as learning in and for the workplace. The
Fourth Respondent operates in terms of a delegation model in terms
of
which certain functions are delegated to a SETA. In this regard it is
important to point out that in terms of section 26H(4)
of the SDA the
Fourth Respondent “…
has
all such powers as are necessary to enable it to perform its
functions in terms of this section
.”
Section 32 of the NQF Act provides that a Quality Council (such
as the Fourth Respondent) have the power to delegate
any of its
functions to a committee or any other body capable of performing the
(delegated) function. These functions are, however,
subject to
certain formalities and requirements.
[7]
(I will return to this power to delegate herein below.) Suffice to
point out that central to this dispute is the common cause fact
that
the Fourth Respondent had delegated certain functions to the Third
Respondent but subsequently revoked these functions. These
(almost
exact) functions were thereafter delegated to the Fifth Respondent in
the stead. Whereas previously the First and Second
Respondent could
authorise and issue a firearm licence on the strength of a training
certificate uploaded by training providers
(such as the Applicants)
accredited by the Third Respondent, SAPS now took a decision to only
accept certificates uploaded by training
providers accredited by the
Fifth Respondent.
[7]
The unit standard with Qualification ID
50480 addresses the legal requirements needed for any private person
applying for a competency
certificate or firearm licence. The Fourth
Respondent specifically delegated the power to monitor and to quality
assure the training
in respect of this Qualification to the Third
Respondent. As already pointed out, the delegation in respect of this
particular
Qualification was withdrawn from the Third Respondent and
delegated to the Fifth Respondent.
Nature
of this application
[8]
The Applicants seek a final interdict
against the Second Respondent to accept proficiency and training
certificates issued by them
until such time their accreditation which
was granted by the Third Respondent expire. In essence therefore this
application concerns
the question whether the Second Respondent is
entitled to refuse proficiency certificates or training certificates
in relation
to unit standards forming part of Qualification ID50480
issued by the Applicants.
Delegation
of certain functions by the Fourth Respondent to the Third Respondent
[9]
I have already referred to the fact that
the Fourth Respondent may delegate certain of its functions in terms
of section 26I(1)
of the SDA in writing and subject to the conditions
as it may determine to (
inter alia
)
a SETA or any other suitable body. The provisions of section 26I of
the SDA are instructive and reads as follows:
“
26I
Delegation of functions
(1) The QCTO may, in
writing and subject to such conditions as it may determine, delegate
any of its functions to-
(a)
the executive officer of the QCTO;
(b)
a committee of the QCTO;
(c)
the national artisan moderation body established
in terms of section 26A;
(d)
a SETA
; or
(e)
any other suitable body.
(2) A delegation
under subsection (1)-
(a)
does not divest the QCTO of the function delegated
and the QCTO may at any time review, amend or set aside any decision
made under
the delegation;
(b)
does not prevent the performance of the function
by the QCTO itself; and
(c)
may
be revoked
by the QCTO at any time.”
[8]
[10]
I have already referred to the fact that
the Fourth Respondent had delegated, with effect 1 October 2012, in
writing certain quality
assurance functions to the Third Respondent.
This was done in terms of the South African Qualifications
legislative framework.
In essence what was delegated was the
function to administer the implementation of firearm training. The
written delegation
is contained in a document annexed to the
Answering Affidavit as “Annexure Q1”. The specific
functions delegated are
set out in paragraph [4] thereof. The
specific functions so delegated relate to quality assurance of
qualifications and part
qualifications registered on the National
Qualifications Framework (“NQF”). In terms of the
delegated functions the
Fourth Respondent conferred on the Third
Respondent,
inter alia,
the authority to accredit providers for the qualifications or part
qualifications listed in the schedule attached to the delegation
in
terms of the criteria determined by the Fourth Respondent. Also
delegated to the Third Respondent was the function to monitor
the
provision by providers of learning programmes leading to
qualifications to ensure that the criteria for accreditation are
being complied with; to evaluate learner assessment and the
facilitation of moderation of learner assessment by providers and to
certify qualified learners in accordance with the policy determined
by the Minister in terms of section 26F of the SDA. A
number of
national qualifications were delegated to the quality assurance
function of the Third Respondent. One of these qualifications
was
Qualification ID50480 “Further Education and Training
Certificate: Firearm Training”.
[11]
I have already referred to the fact that
the delegation may be subject to such conditions as may be determined
by the Quality Council.
In this regard the Fourth Respondent did
indeed delegate some of its functions subject to certain terms and
conditions (as set
out in clause 4 of Annexure Q 1). One of the
salient terms of the delegation is the fact that this delegation
commenced on the
1
st
of October 2012 and expired once the qualification listed are
reviewed and replaced
or
until the qualifications reach their registration end date and teach
out periods “
or when the
qualifications are withdrawn by the QCTC”
.
It is further expressly stated in the letter accompanying the
delegation that:
“
It
must be noted that should a quality assuring body find itself unable
to perform its delegated functions, the QCTO will be left
with no
further recourse than to find a replacement for which the quality
assurance body will have to assume the financial responsibility.
This
process is in line with the procedure used where a training provider
fails to execute its functions, but remains accountable
for ensuring
service deliver.”
[12]
This delegation further provided for an
appeal process in the event the SETA (the Third Respondent) disagreed
with the Fourth Respondent’s
decision to withdraw the quality
assurance functions (clause 7 of the delegation).
[13]
It is not disputed on the papers that the
Third Respondent did not lodge an appeal nor is it in dispute that
the Applicants never
lodged any appeal proceedings or instituted a
review in respect of the decision to withdraw Qualification ID 50480
from the delegation
to the Third Respondent.
Removal
of the delegation to the Third Respondent
[14]
It is common cause that when the decision
to remove Qualification ID50480 from the scope of the Third
Respondent’s accreditation
was taken, certain quality assurance
functions were delegated to the Fifth Respondent. The delegation was
in all material respects
similar to those listed in Annexure Q1 and
specifically included Qualification ID 50480 and the associated unit
standards. This
delegation became effective on 1 April 2013.
[15]
The deponent to the Answering Affidavit on
behalf of the Fifth Respondent explained that he, as chairman of the
Standards Generating
Body was approached by SAQA with a proposal in
2009 to form the South African Professional Firearms Trainers Council
(the Fifth
Respondent) to take over the functions of the Third
Respondent because of the incapacity of the Third Respondent to
properly regulate
and verify firearm training. (This allegation
is confirmed by the Third respondent.) It was proposed that the Fifth
Respondent
would be mandated to take over the quality assurance role
of Qualification 50580 within the regulatory framework. The reason,
as
already pointed out, simply was that the Third Respondent did not
have the capacity or expertise to administer the quality assurance
process. In September 2012, the Fifth Respondent was granted the
status of a professional body as contemplated by
section 28
of the
National Qualifications Framework Act of 2008
. Once this has
happened, the Fifth Respondent embarked on a series of road shows
throughout the Republic commencing in April 2013.
Making use of
the database of the Third Respondent as well as the database of the
South African Police Services of accredited
providers and the
database of the Range Regulation Forum of the South African Bureau of
Standards and National Regulator for Compulsory
Standards, the Fifth
Respondent contacted the various service providers. According to the
Fifth Respondent, the First Applicant
was also invited and therefore
the Applicants have known about this process since March 2013.
[16]
It is also instructive to point out that
well over 200 accredited firearm trainers throughout South Africa
have since registered
with the Fifth Respondent including some of the
branches of the First Applicant.
[17]
It is important to point out that the Fifth
Respondent contended that it is misleading if it is alleged by the
First Applicant that
they will be de-accredited if the process is
implemented: All accreditations will remain valid. All that the Fifth
Respondent will
do is to take over the quality control and audit
function previously vested in the Third Respondent. This will mean
that the Fifth
Respondent will receive applications for registration
and will register and accredit such applicants.
[18]
It is common cause that the Fourth
Respondent communicated its decision to remove Qualification ID50480
and the associated unit
standards from the scope of the Third
Respondent’s accreditation. The Fourth Respondent also informed
the Third Respondent
that there will be a transition period during
which the Third Respondent will be allowed to accept learner
achievement uploads
from accredited training providers. The period
would be for a period of 60 days ending on 31 May 2013. The period
for accepting
SAPS firearm unit standards submissions was for a
period of 90 days ending on 30 June 2013.
[19]
In short, with effect 1 April 2013
Qualification ID50480 (and associated unit standards which includes
117705) was removed from
the Third Respondent and delegated to the
Fifth Respondent.
[20]
The notification from the Fourth Respondent
stated that the removal of delegation emanated from discussions
between the Third Respondent
and the Professional Firearm Trainers
Council (the Fifth Respondent) and culminated in an agreement by the
Third Respondent to
relinquish its quality assurance functions in
respect of Qualification ID50480. The Fifth Respondent was duly
informed of this
delegation. Attached to the delegation are the title
of the national qualification (ID50480) and a list of the associated
unit
standards.
[21]
This delegation had the effect that the
Third Respondent no longer had any quality assurance functions as
from 1 April 2013 in respect
of Qualification ID50480 as these powers
(specifically those listed in paragraphs 4(a); (b); (c); (d); (e) and
(f) of Annexure
Q 1) are now vested in the Fifth Respondent. The
further effect was that the Third Respondent’s authority to
accept learner
achievement uploads from accredited training providers
terminated with effect 31 May 2013 and to accept SAPS’ firearm
unit
standards submissions with effect 30 June 2013. In short: Any
and all authority that the Third Respondent may have had terminated
on 31 May 2013 and 30 June 2013 respectively.
[22]
The further effect was that it is now
required that a training institution (such as the Applicants) in
respect of the relevant unit
standards has to be accredited through
the Fifth Respondent and, until such time the Applicants register
with the Fifth Respondent,
the training provided for by the
Applicants in relation to unit standards (especially 117705 forming
part of Qualification ID 50480)
will have no legal effect.
Evaluation
of the submissions
[23]
At the outset it must be emphasised that
what is before this Court is a declaratory of the legal position and
not a review. Put
differently, this Court is not being asked to
review whether the Fifth Respondent was correctly accredited as a
SETA in terms of
the SDA nor is the Court asked to review the
decision of the Fourth Respondent to delegate certain functions to
the Third Respondent.
In fact, the Third Respondent is not contesting
the delegation to the Fifth Respondent.
[24]
Lengthy submissions were filed on behalf of
the Applicants in support of the contention that the relief sought in
the Notice of
Motion be granted. I do not intend to summarize these
submissions. A great portion of the submissions centre around the
various
and somewhat contradictory communiques issued by the Fourth
Respondent. I do not intend summarizing this history in respect of
these circulars as I am of the view that nothing really turns on
these circulars. What is at issue here is whether the Second
Respondent
is entitled to refuse proficiency certificates or training
certificates in relation to unit standards forming part of
Qualification
ID 50480 issued by the Applicants (accredited by the
Third Respondent) after expiry of the authority delegated to the
Third Respondent
by the Fourth Respondent.
[25]
I have carefully considered all the
submissions on behalf of the Applicants and I am not persuaded that
the Applicants have made
out a case for the relief sought in the
Notice of Motion. In deciding to dismiss the application, it was
taken into account that
the delegation made to the Applicants had
been made subject to certain conditions. One of the salient
conditions of the delegation
was that the delegation would expire
when the qualifications are withdrawn by the Fourth Respondent. It is
instructive that the
Third Respondent is not contesting the
delegation. Surely if the delegation was in issue the Third
Respondent would have contested
the withdrawal making use of the
appeal process provided for in the delegation. Consequently, in terms
of legislation, it is clear
that the Fourth Respondent may at any
time review, amend or set aside any decision made under the
delegation. It follows therefore
in my view that the Second
Respondent is entitled to have made a determination in terms of which
it no longer recognised such training
and testing. It follows further
that the Second Respondent’s refusal of proficiency
certificates or training certificates
in relation to the
aforementioned unit standards and Qualification (unloaded by the
Applicant) is justified. Lastly, the Applicants
have been afforded
the right to apply for accreditation. Why they have not done so is
not clear on the papers.
[26]
In the event the following order is made:
The
application is dismissed with costs, inclusive of reserved costs.
_______________________
AC
BASSON
JUDGE
OF THE HIGH COURT
[1]
Act
no 60 of 2000. See section 6(2) read with the Firearm Control
Regulation 13(1) and (2).
[2]
Act
58 of 1995.
[3]
Act
67 of 2008.
[4]
See
section 14(6) and (7) of the FCA.
[5]
Section
26G(1) of the SDA.
[6]
Section
26 of the NQF.
[7]
Section
32 of the NQF reads as follows: “
32
Delegation The SAQA and the QCs have the power to delegate any of
their functions to a committee, any other body capable of
performing
the function or an employee, but a delegation- (a) must be in
writing and available for inspection on request by a
member of the
public; (b) must specify the terms and conditions of the delegation;
(c) must be consistent with this Act and the
Act by which the
relevant QC is established; (d) must be accompanied by sufficient
funds to perform the function; (e) does not
exempt the SAQA or the
QC, as the case may be, from responsibility for the function; and
(f) does not prevent the performance
of the function by the SAQA or
the QC, as the case may be.”
[8]
Court’s
emphasis.