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[2020] ZASCA 88
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National Commissioner of Police and Another v Gun Owners of South Africa (561/2019) [2020] ZASCA 88; [2020] 4 All SA 1 (SCA); 2020 (6) SA 69 (SCA); 2021 (1) SACR 44 (SCA) (23 July 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 561/2019
In
the matter between:
THE
NATIONAL COMMISSIONER
OF
POLICE
FIRST
APPELLANT
THE
MINISTER OF POLICE SECOND
APPELLANT
and
THE
GUN OWNERS OF SOUTH
AFRICA RESPONDENT
and
GUN
FREE SOUTH
AFRICA AMICUS
CURIAE
Neutral
citation:
National
Commissioner of Police and Another v Gun Owners of South Africa
(561/2019)
[2020] ZASCA 88
(23 July 2020)
Coram:
MAYA
P,
ZONDI,
SCHIPPERS AND PLASKET JJA AND EKSTEEN AJA
Heard:
22
May 2020
Delivered:
This
judgment was handed down electronically via e-mail to the parties’
legal representatives on 23 July 2020. It has been
published on the
Supreme Court of Appeal website.
Summary:
Interim
interdict against State functionary – South African Police
Service – prohibited from exercising powers under
Firearms
Control Act 60 of 2000
– interdicted from accepting or
demanding surrender of firearms with expired licences pending final
relief extending validity
of expired licences – appealable –
interdict an intrusion on executive authority and final in effect –
role of
Judge as neutral arbiter – of own accord amending
final relief sought – inappropriate – renders court
susceptible
to allegation of bias – requisites for an interim
interdict not met – no prima facie right, injury or absence of
alternative
remedy established – balance of convenience not
favouring grant of interim relief – interdict an impermissible
restraint
on exercise of statutory power – violation of
principle of separation of powers – appeal upheld.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Prinsloo J sitting as court of
first instance):
1
Condonation
of the late filing of the notice of appeal is granted. The appellants
shall pay the costs of that application on an
unopposed basis.
2
The
appeal is upheld with costs, including the costs of two counsel.
3
The
order of the high court is set aside and replaced with the following:
‘
The
application is dismissed with costs, including the costs of two
counsel.’
JUDGMENT
Schippers
JA
:
(Maya P
,
Zondi and Plasket JJA and Eksteen AJA
concurring):
[1]
The
appellants appeal against an urgent interim interdict issued by
Prinsloo J in the Gauteng Division of the High Court, Pretoria
(the high court), which prevents the South African Police Service
(the SAPS) from applying, implementing and enforcing various
provisions of the Firearms Control Act 60 of 2000 (the Act).
Practically, the interdict disables the scheme of renewal and
termination
of firearm licences under the Act, by prohibiting the
SAPS from demanding or accepting the surrender of firearms by
licence-holders
whose firearm licences expired, because they failed
to renew their licences within the timeframe prescribed by the Act.
The appeal
is with the leave of the high court.
Factual
background
[2]
The
respondent, Gun Owners of South Africa (GOSA), is a voluntary
association formed to protect the rights of lawful owners of firearms
in South Africa. It has some 40 000 members. According to its
Constitution, GOSA is committed to working towards the repeal of
the
Act. Its aims are to protect, represent and advance the interests of
lawful firearm owners in the country, to promote firearm
ownership,
and to affirm the rights of all people in South Africa to own and
bear arms. The founding affidavit states that GOSA’s
mandate
includes promoting transparency in firearms legislation, ensuring the
equal application of the Act and reasonable licensing
requirements in
respect of firearms, and enhancing the public image and perception of
firearm owners.
[3]
In
July 2018 GOSA launched an urgent application in the high court
against the first appellant, the National Commissioner of Police
(the
Commissioner) and the second appellant, the Minister of Police. GOSA
sought an interim interdict, pending the determination
of the main
application in which it sought the relief set out in parts [A] and
[B] of its notice of motion (the main relief). GOSA
sought, inter
alia, the following relief:
‘
2.
Directing that the SAPS as represented herein by the 1
st
and 2nd Respondents be prohibited from implementing any plans of
action or from accepting any firearms for which the license expired
at its police stations or at any other place, for the sole reason
that the license for the firearm expired, and that the SAPS be
prohibited from demanding that such firearms be handed over to it for
the sole reason that the license for such firearm has expired,
and
that this order will operate as an interim interdict, pending the
further determination of this application as prayed for in
paragraphs
3 to 3.4
infra
;
3. That this matter
then be postponed to the opposed motion roll … for the further
determination of the following relief,
as prayed for by the
applicant:
3.1
[A]
That
it be ordered that the period of validity of all licenses for
firearms that were issued and those that will still be issued
in
terms of the
Firearms Control Act, Act
60 of 2000, will be extended
to the lifetime of the owner thereof, with due regard being had to
the remaining and existing provisions
of the FCA that limit the right
to the owner thereof to possess the firearm,
alternatively
that by order of
Court the periods as referred to in
sections 27
and/or 24(1) and
24(4) of the
Firearms Control Act, Act
60 of 2000, will be extended,
in order for people that hold expired licenses to apply for the
renewal thereof.
further
alternatively
,
[B]
(a) The First
Respondent shall withdraw the circular issued by Acting National
Commissioner Phahlane on 3 February 2016.
(b) The First
Respondent shall issue a directive that the information technology
system of the Central Firearms Register be restored
to a position
that it is able to accept applications for renewal of licenses which
are late because they are lodged inside the
90 days period envisaged
in section 24(1) of the Firearms Control Act 60 of 2000.
(c) The First
Respondent shall issue a directive that the information technology
system of the Central Firearms Register be restored
to a position
that it is able to accept applications for renewal of licenses which
have expired because the period of their validity
contemplated in
section 27
of the
Firearms Control Act 60 of 2000
has expired.
(d) Any applications
for renewal contemplated in paragraphs (b) and (c) above shall still
be subject to the requirement of “good
cause” as
contemplated in
section 28(6)
of the Firearms Control Act 60 of 2000.
(e) Any applicant
who has lodged an application for renewal and who has
prima facie
provided good cause in the relevant space provided on SAPS Form
518(a)
, shall be deemed to be in lawful possession of the
firearm until his application has been decided.
3.2
Alternatively to prayers 3.1
[A]
and 3.1
[B]
supra
,
that the First Respondent be ordered to provide a comprehensive and
detailed security plan to the satisfaction of this Honourable
Court
to the Court, to ensure that the firearms to be collected by it, for
which the licenses expired, will be safe from being
lost or stolen
from the SAPS . . . .’
[4]
It is
clear from the relief sought that GOSA did not challenge the
constitutionality of any provision of the Act. The basis for
the
relief was an alleged infringement of the right to just
administrative action, stated as follows in the founding affidavit
made by Mr Paul Oxley, GOSA’s chairperson:
‘
93.2.1
The applicant has a clear/
prima
facie
legal right to just administrative action that includes the rights
that arise from a legitimate expectation that the authorities
would
have disposed of a system which they on previous occasions admitted
to as not having the capacity to administer (the provisions
of the
FCA as they still stand) and because they previously before this
court conceded that the relevant limitations have no justification.
93.2.2
This legitimate expectation was created as a result of the following
events/circumstances:
93.2.3
The concessions by the SAPS that they did not have the capacity to
administer the system;
93.2.4
The concession by the SAPS at the time of [a former] case before the
honourable Prinsloo J that the limitations could
not be justified;
93.2.5
A legislative amendment that came into operation in 2011 in terms of
which the period of validity of
competency certificates
was
extended;
93.2.6
The fact that the SAPS (up to February 2016) accepted applications
for the renewal of licenses and approved them even
though the
licenses expired. This is an important consideration as the
impression and expectation was created that the relevant
90-day
period was extended as can be justified through the application of
section 24(1) read with section 24(4), 28(6) and 28(1).
For the SAPS
to now hold otherwise will be tantamount to a situation of entrapment
and deceit and they are bound to the impressions
that they created
also as a result of the principles of
estoppel
;
93.2.7
The recent conduct of the SAPS is therefore tantamount to the
rescinding of the previous message that the SAPS signalled
to the
courts, parliament and the public on the matter too and becomes
relevant during the protection of a procedural or substantive
interest that is being threatened.
93. I submit that
the reliance of the public on these representations was reasonable as
the representations were made verbatim to
both the courts and
parliament. It would be deceitful of the SAPS to now take the
position that the public was not being misled
on the matter.’
[5]
The
application was opposed. The grounds of opposition were outlined in
the answering affidavit made by the Commissioner, as follows:
‘
16. The
relief sought is, with respect, extraordinary. GOSA seeks:
16.1
as
interim relief
, an order that the respondents are
interdicted from applying and implementing and enforcing relevant
provisions of the Act; and
16.2
as
final relief
, permanent declarations extending the validity
of expired firearm licenses contrary to the express provisions of the
Act;
in circumstances
where it does not seek an order that the Act is inconsistent with the
Constitution and therefore invalid.
17. In effect, GOSA
asks the Court to amend or override those parts of the Act which it
(GOSA) finds objectionable, but without
declaring them inconsistent
with the Constitution and invalid.
18. I respectfully
submit that what GOSA seeks is the clearest breach of the separation
of powers.
19. The
main and
alternative final relief
which is sought, namely orders extending
the validity of expired firearm licenses in a manner inconsistent
with the Act, is simply
incompetent. It also flies directly in the
face of the recent unanimous judgment of the Constitutional Court in
Minister of Safety and Security v South African Hunters and Game
Conservation Association
[2018] ZACC 14
, decided on 7 June 2018 .
. . in which the Court upheld the system of firearm licensing and
renewal, and the criminalisation of
possession of an unlicensed
firearm.
20. I submit further
that the
interim relief
sought is also plainly incompetent:
20.1
As I have pointed out, the main and alternative main relief which
GOSA seeks [are] orders overriding of the provisions of the
Act. It
is plainly incompetent. I am advised that if the main relief sought
is plainly incompetent, a court will not grant an interim
interdict
pending the determination of the main relief; and
20.2
The further alternative main relief which GOSA seeks is the
production of a plan. The production of a plan bears no logical
relationship to the interim relief. I am advised that the purpose of
interim relief is to preserve the status quo pending a final
order
which will finally determine the matter in dispute. The interim
relief, preventing implementation of the Act, is not necessary
to
preserve the status quo in respect of whether the respondent should
produce a plan.
21. I respectfully
submit that on these grounds alone, the application for an interim
interdict ought to be refused.
22. For the reasons
set out below, I submit that in any event GOSA has not made out any
case for the issuing of the interim interdict
which it seeks.’
[6]
The
application came before Prinsloo J. During oral argument, and of his
own accord, the Judge proposed to GOSA’s counsel
that certain
amendments be made to the final relief, which GOSA accepted.
Subsequently an amended notice of motion was delivered,
fundamentally
different from the final relief initially sought by GOSA. I revert to
this aspect below. The Judge issued the following
order, inter alia:
‘
1. It is
directed that the SAPS as represented herein by the first and second
respondents are prohibited from implementing any plans
of action or
from accepting any firearms for which the licence expired at its
police stations or at any place, for the sole reason
that the licence
for the firearm expired and;
That the SAPS is
prohibited from demanding that such firearms be handed over to it for
the sole reason that the licence of such
a firearm has expired and;
That this order will
operate as an interim interdict pending the further determination of
this application as prayed for in paragraphs
three to nine below.
2. This application
is then postponed to the opposed motion roll for further
determination in the normal course of the roll, for
the further
determination of the following relief as prayed for by the applicant:
3. That by
declaratory order of court the period as referred to in
sections 24
,
27
and
28
of the
Firearms Control Act, Act
60 of 2000 may be extended
in order for people that hold expired licenses to apply for the
renewal thereof on good cause shown
and within a period determined by
the court.’
[7]
The
orders sought in prayers (a) to (e) of part [B] of the notice of
motion referred to in paragraph 3 above, were included in the
order
by Prinsloo J as part of the main relief to be decided by the court
hearing the main application. The costs of the urgent
application for
the interdict were reserved for decision in the main application. In
February 2019 GOSA purportedly noted a cross-appeal
against the costs
order. However, GOSA did not obtain leave to cross-appeal and
abandoned the purported cross-appeal. No more need
be said about it.
[8]
The
reasons for the interim order, in sum, are these. Prinsloo J accepted
what was stated in the founding affidavit, the bulk of
which
contained hearsay and unsubstantiated assertions by Mr Oxley, on the
basis that he was an ‘experienced deponent who
has been
involved in these matters for 30 years’. The Judge also
accepted the assertion in the affidavit that the circumstances
which
led to the application were ‘exceptional’, following the
judgment by the Constitutional Court in
Minister
of Safety and Security v South African Hunters and Game Conservation
Association
,
[1]
upholding the constitutionality of the Act. These circumstances were
mainly that the police had started to apply pressure on firearm
owners whose licences had expired to surrender their firearms for
destruction, failing which they would be arrested and prosecuted.
This apparently caused anxiety amongst individual licence holders and
security personnel.
[9]
In
applications for the renewal of firearm licences, the SAPS had
utilised Form SAPS 518(a) (Form 518), which is an annexure to
the
regulations made under the Act.
[2]
It contains a box which must be ticked to indicate whether the
application is being submitted: (i) 90 days before expiry of the
existing licence (the due date) and if not, reasons must be given;
(ii) after the due date but before expiry of the existing licence
and
if so, reasons must be given; and (iii) after expiry of the existing
licence and if so, reasons must also be given. Prinsloo
J came to the
conclusion, based on Form 518, that ‘it was accepted practice
for a renewal application to be revived in a
proper case, even after
expiry’; and that ‘in the spirit of the requirements for
interim relief’, GOSA had shown
‘a
prima
facie
arguable case’ for the grant of a declaratory order envisaged
in the main relief.
[10]
Prinsloo
J held that the interim order did not violate the doctrine of the
separation of powers by prohibiting the executive from
carrying out
its constitutional and statutory obligations, since it related only
to ‘the police and the manner of executing
[their] mandate in a
more recognised and practical way’. The interim relief, the
Judge said, was ‘in harmony with the
Act and the regulations
prescribing the right or the opportunity for the holder of an expired
licence to apply for renewal upon
good cause shown in terms of Form
518(a)’. Prinsloo J concluded that a proper case had been
made out for urgent interim
relief, and that GOSA, its 40 000 members
and 450 000 other gun users with expired licences, had to be assisted
pending the outcome
of the main application or ‘perhaps the
result of an amnesty being granted’.
[11]
The
judgment granting the interdict was delivered on 27 July 2018. During
the first week of August 2018, the appellants attempted
to file an
application for leave to appeal but could not do so without a signed
copy of the judgment. The record states that the
judgment was
delivered on 27 July 2018 and revised on 23 October 2018. Despite
repeated requests by the appellants, Prinsloo J
furnished the signed
judgment only on 8 November 2018 – three months later. In the
result, leave to appeal was granted only
on 7 December 2018.
[12]
We
have not been told why it took some three months, in effect, to sign
the judgment and make what could only be minor revisions.
Had there
been compelling reasons for this delay, one would have expected some
explanation.
[3]
This conduct is
unfortunate and weakens public confidence in the judicial process.
Litigation should not be unreasonably delayed.
The expeditious
delivery of judgments forms an integral part of the just, timely and
effective conduct of proceedings, in the public
interest. The mere
fact that the appellants wanted to bring an application for leave to
appeal rendered the production of the judgment
urgent.
[13]
Subsequent
to the proceedings in the high court, Gun Free South Africa, a
non-profit organisation whose objectives include reducing
gun
violence in South Africa and ensuring stricter firearm control and
regulation, was admitted as
amicus
curiae
in terms of an order of this Court. It was submitted on behalf of the
amicus
curiae
that the interim interdict constituted an inappropriate exercise of
judicial power, since it did not take into account s 233 of
the
Constitution,
[4]
by interpreting
the Act in accordance with international law; and that the high court
had exercised its remedial power in a manner
that interfered with
South Africa’s international obligations. These submissions
were of value to the court. It is however
unnecessary to pronounce
upon them, by reason of the conclusion to which I have come.
Appealability
of the interim order
[14]
GOSA’s
counsel submitted that the interim interdict was not appealable
because it was not final in effect, and the interests
of justice did
not require that it should be appealable since the doctrine of the
separation of powers was not implicated.
[15]
The
traditional requirements that render an order appealable, namely that
it is final in effect or dispositive of a substantial
part of the
case, have now been subsumed under the broader constitutional
‘interests of justice’ standard.
[5]
What the interests of justice require depends on the facts of the
particular case.
[6]
This
standard applies both to appealability and the grant of leave to
appeal, no matter what pre-Constitution common law impediments
might
exist.
[7]
In
City
of Tshwane v Afriforum
,
the Constitutional Court held that where the doctrine of the
separation of powers is implicated and forbids the grant of an
interim
order, the interests of justice demand that an interim
interdict is appealable, even if the common law requirements in
relation
to appealability are not met.
[8]
[16]
It is
beyond question that the doctrine of the separation of powers is
implicated in this case: the interdict instantly prohibited
the SAPS
from demanding or accepting the surrender of firearms with expired
licences in terms of the Act, powers and duties granted
to its
members by the legislature. According to the answering affidavit,
there are some 436 366 firearm licences throughout
the country
which have expired in terms of s 28(1)
(a)
of the Act, as a result of the failure of the owners of those
firearms to renew their licences. There is a real risk that some
or
many of these firearms, which are now illegally in the possession of
their owners, may be stolen or lost and end up in the hands
of
criminals who may injure or kill others. GOSA’s contention that
this risk is not immediate, serious or irreparable, needs
merely to
be stated to be rejected.
[17]
The
interim interdict has a nation-wide effect, and constitutes an
impermissible intrusion by a court upon executive authority,
as
explained below. The SAPS is prohibited from exercising its powers
and carrying out its obligations under the Act. For this
reason
alone, the interim order is appealable. Aside from this, the
interdict is also appealable since it is final in effect; it
will not
be reconsidered in the main application.
[9]
[18]
At
this juncture it is convenient to deal with the appellants’
application for condonation of the late filing of the notice
of
appeal. This notice was served on GOSA’s attorneys timeously,
but was not filed with the registrar of this Court in time,
due to a
misunderstanding between the appellants’ attorney and his
former secretary. GOSA opposed the condonation application,
also on
the grounds that the interim order was interlocutory and that it was
not in the interests of justice for this Court to
hear the appeal.
This, despite GOSA conceding, rightly in my opinion, that it was not
prejudiced.
[19]
The
late filing of the notice of appeal was condoned and the appellants
were directed to pay the costs of that application on an
unopposed
basis. The parties were informed that the reasons for that order
would be given in this judgment. These are that it is
in the
interests of justice to hear the appeal because the interim interdict
prohibits the SAPS from exercising its powers and
duties, is
enforceable across the entire country and is final in effect.
The
amendments by the Judge to the main relief
[20]
As
already stated, Prinsloo J, of his own accord, proposed certain
changes to the main relief. GOSA accepted these changes and amended
its notice of motion accordingly. In this regard, the Judge
said:
‘
After the
lunch adjournment I was presented with a further proposed amendment
of the notice of motion, to which, in my debate with
applicant’s
counsel, I suggested what can perhaps be described as cosmetic
changes to the first prayer of the proposed
relief to be sought
before the main court, if the interim relief is granted.’
[21]
The
Judge was aware that, as a matter of law, certain parts of the main
relief could not be granted. He said:
‘
In my debate
with counsel for the applicant and proposing the cosmetic changes to
what I will now regard as the first prayer of
the main relief to be
sought if the interim relief is granted, I also expressed
reservations about some of the prayers, notably
a prayer that the
court in the main proceedings will extend the term of the licence to
the lifetime of the owner as was the position
under the previous Act.
In my view this is not permissible without parliamentary
intervention.
The amendment as I
am now considering it, which, as I have said, and subject to the
remarks I made is more or less in line with
the existing application,
will be spelt out in the event of my granting an order. I was not
furnished with a draft order and it
is not practicable now in the
time at my disposal to read out the amendment as I have altered and
shortened it. But the wording
will appear from my order if I make
such an order.’
[22]
It
will immediately be observed that, when the main relief in the notice
of motion is compared to the order issued by the court,
quoted in
paragraph 3 above, the amendments made by the Judge were neither
‘cosmetic’, nor ‘in line with the
existing
application’, to the contrary. In paragraph 3.1
[A]
of the notice of motion, GOSA sought an order declaring that the
periods of validity of all firearm licences issued and to be issued
in future, be extended to the lifetime of the holders thereof. In
effect, GOSA was seeking an order of court to restore the licensing
regime under the former Arms and Ammunition Act 75 of 1969, in terms
of which a licence to possess a firearm lasted for life. Paragraph
3.1
[A]
was deleted after the Judge had indicated that such an order was
legally incompetent.
[23]
The
prayer for alternative relief in paragraph 3.1
[A]
of the notice of motion then became the first prayer of the main
relief, but this prayer too, was amended. Initially it was a prayer
for an order declaring that the periods referred to in ss 27, 24(1)
and 24(4) of the Act be extended – across the board –
for
the holders of expired licences to apply for their renewal. In terms
of s 24(1) of the Act, an application for the renewal
of a firearm
licence must be made at least 90 days before the date of expiry of
the existing licence, in which event the licence
remains valid until
the application is decided. Section 27 sets out the period of
validity for various types of licences. The initial
order was amended
to incorporate, in addition to the periods referred to in ss 24 and
27, the period referred to in s 28; and to
limit the extensions to
cases where holders of expired licences apply for renewal on good
cause shown and within a period determined
by the court.
[24]
The
relief sought in paragraph 3.2 of the notice of motion, requiring the
provision of a comprehensive and detailed security plan
to the
satisfaction of the court, for the safe storage of firearms by the
SAPS, was also deleted by the Judge. This was a claim
for a
structural or supervisory order. However, no case for such an order
was made out in the founding affidavit; neither did GOSA
ask the
court to do anything or issue any directions in relation to the
security plan, once that plan was provided.
[25]
Counsel
for the appellants submitted that this intervention by Prinsloo J was
inappropriate, and effectively resulted in a new case
for GOSA, put
up at the instance of the court itself. In my view, the submission
has merit for two related reasons. The first is
that there is a real
risk that judicial intervention of the kind in question, may render
the court susceptible to an accusation
of bias. It is a fundamental
tenet of the administration of justice, now subsumed under the
Constitution,
[10]
that all
those who appear before our courts are treated fairly and that Judges
act – and are seen to act – fairly and
impartially
throughout the proceedings. In
President
of the RSA v SARFU
,
[11]
the Constitutional Court explained it this way:
‘
A cornerstone
of any fair and just legal system is the impartial adjudication of
disputes which come before the courts and other
tribunals. This
applies, of course, to both criminal and civil cases as well as to
quasi-judicial and administrative proceedings.
Nothing is more likely
to impair confidence in such proceedings, whether on the part of
litigants or the general public, than actual
bias or the appearance
of bias in the official or officials who have the power to adjudicate
on disputes.’
[26]
The
second reason is that in our adversarial system of litigation, a
court is required to determine a dispute as set out in the
affidavits
(or oral evidence) of the parties to the litigation. It is a core
principle of this system that the Judge remains neutral
and aloof
from the fray. This Court has, on more than one occasion, emphasised
that the adjudication of a case is confined to the
issues before a
court:
‘
[I]t is
for the parties
,
either
in the pleadings or affidavits
(which serve the function of both pleadings and evidence),
to
set out and define the nature of their dispute
,
and
it
is for the court
to
adjudicate
upon those issues
.
That is so even where the dispute involves an issue pertaining to the
basic human rights guaranteed by our Constitution, for “it
is
impermissible for a party to rely on a constitutional complaint that
was not pleaded”. There are cases where the parties
may expand
those issues by the way in which they conduct the proceedings. There
may also be instances where the court may mero
motu raise a question
of law that emerges fully from the evidence and is necessary for the
decision of the case. That is subject
to the proviso that no
prejudice will be caused to any party by its being decided. Beyond
that
it
is for the parties to identify the dispute and for the court to
determine that dispute and that dispute alone
.’
[12]
[27]
GOSA
had set out the main relief it sought in the notice of motion. The
application was however decided on a notice of motion containing
main
and central relief – proposed by the Judge and accepted by GOSA
– different from that initially sought by GOSA.
The argument by
GOSA’s counsel before us that there was no substantial change
to the main relief, is without substance. Further,
the amendments to
the main relief, in particular, the amendment to the alternative
prayer in paragraph 3.1
[A]
,
went beyond the scope of the founding affidavit. There was no
evidence, not even by a single firearm owner, that he or she had
suffered harm or prejudice as a result of the renewal scheme in the
Act. Neither was there evidence that any aggrieved firearm
owner had
applied to the Registrar of Firearms (the Registrar) for an extension
as contemplated in s 28(6). There was accordingly
no factual basis
for an order that the period contemplated in s 28 of the Act should
be extended to enable the holders of expired
licences to apply for
renewal ‘on good cause shown and within a period determined by
the court’.
[28]
It
follows that the amendment of the relief in the main application had
a direct impact on the decision to grant the interim interdict:
GOSA
had to demonstrate a reasonable prospect of success in obtaining the
main relief,
[13]
not, as the
high court found, ‘an arguable prima facie case’. The
main relief that GOSA had initially sought, namely,
the abolition of
the system of renewals and the introduction of lifetime periods of
validity for firearms, by way of a court order,
was incompetent. So
too, the relief that the periods referred to in ss 24(1) and 24(4) of
the Act be extended across the board
to all holders of expired
licences – it is inconsistent with the express provisions of
the Act. This meant that the main
relief had no reasonable prospect
of success. The inescapable conclusion is that the application for an
interim interdict ought
to have been dismissed on that basis.
[29]
The
conduct of the Judge in effecting the amendments to the main relief
sought by GOSA is unusual, troubling and regrettable. Judicial
officers would do well to remember that their function is that of a
neutral umpire holding the balance between litigants; and that
they
should not, as Lord Parker CJ put it, ‘descend into the arena
and give the impression of acting as advocate’.
[14]
The
relevant statutory provisions
[30]
The
core premise of the gun control regime is that gun ownership is not a
fundamental right under the Bill of Rights, but a privilege
regulated
by law under the Act.
[15]
The
possession of a firearm is prohibited under the Act, unless the
holder has a licence, permit or authorisation issued in terms
thereof.
[16]
The Act
criminalises the unlawful possession of a firearm, which offence is
subject to minimum penalties.
[17]
[31]
The
Act creates a two-tier licensing regime: a person wishing to own a
firearm must be licensed to do so and must demonstrate competency
to
possess a firearm by obtaining a competency certificate;
[18]
and each firearm itself must be licensed.
[19]
Applicants must be a specified age; not be dependent on specified
substances; and not have been convicted of specified offences.
They
are also required to pass tests demonstrating knowledge of the Act
and proficiency in the safe use of firearms.
[20]
The firearm licence, together with the competency certificate,
constitutes the State’s recognition that a person is fit and
proper to own or possess a particular firearm. The details of each
firearm are recorded with the details of the person responsible
for
it, thus linking the firearm to its owner.
[21]
The Act requires periodic renewal, re-licensing and re-testing.
[32]
The
Constitutional Court has said that the purposes of the Act are sought
to be achieved mainly by the following principles:
‘
(a) No person
may possess a firearm without a valid licence;
(b) No licence may
be issued to a person without a relevant competency certificate;
(c) A licence is
valid only for limited period;
(d) Possession of a
firearm without a licence is a criminal offence and subject to
minimum penalties.’
[22]
[33]
The
basic elements of the system for the renewal of firearm licences, are
contained in ss 24(1) and 24(4) of the Act. These provisions
read:
‘
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 the licence has been lodged within the
period provided for in subsection (1), the licence
remains valid
until the application is decided.’
[34]
The
periods of validity of various types of licences issued under the Act
are set out in s 27. For example, a licence to possess
a
firearm for self-defence is valid for five years. Section 28(1) of
the Act provides, inter alia:
‘
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. . . .’
[35]
The
Act also provides for the voluntary surrender of both lawful and
unlawful firearms.
[23]
Once a
licence is terminated for whatever reason, including the holder’s
failure to renew it timeously before it lapsed,
the holder is then in
unlawful possession of a firearm, which is a criminal offence. The
holder must dispose of the firearm in
accordance with the provisions
of the Act.
[24]
No
case for an interim interdict
[36]
The
requisites for the grant of an interim interdict are trite. These
are: a prima facie right; a well-grounded apprehension of
irreparable
harm if the relief is not granted; that the balance of convenience
favours the granting of an interim interdict; and
the absence of
another satisfactory remedy.
[25]
These requisites must now be applied in the light of the normative
scheme and democratic principles that underpin the Constitution.
When
a court considers whether to grant an interim interdict, it must do
so in a way that promotes the objects, spirit and purport
of the
Constitution.
[26]
[37]
GOSA
asserted that it had ‘a clear/prima facie right to just
administrative action’, more specifically, ‘a legitimate
expectation that the authorities would have disposed of a system’
which they, including the SAPS, conceded they did not have
capacity
to administer.
This
expectation, GOSA said, was created essentially as a result of a
legislative amendment in 2011 in terms of which the validity
of
competency certificates was extended; and the fact that until 2016,
the SAPS had accepted and approved renewal applications
in respect of
expired firearm licences. GOSA claimed that an expectation ‘was
created that the relevant 90-day period was
extended as can be
justified through the application of section 24(1) read with section
24(4), 28(6) and 28(1)’ of the Act.
[38]
But
the right asserted by GOSA is unsustainable both on the level of the
law and the facts, and on this basis alone, the interim
interdict
should not have been issued. Whether an expectation has been created
is a question of fact to be answered in the light
of the
circumstances of the particular case. The expectation must be
legitimate in an objective sense: the question is not whether
it
exists in the mind of the litigant but ‘whether, viewed
objectively, such expectation is, in a legal sense, legitimate.’
[27]
In
South
African Veterinary Council v Szymanski
,
[28]
this Court held that for an expectation be legitimate it must be: (i)
a reasonable expectation; (ii) induced by the decision-maker
(in this
case, the State functionary); (iii) based on a clear and unambiguous
representation; and (iv) one that is competent and
lawful for the
decision-maker to make. Cameron JA emphasised that ‘the
reasonableness of the expectation operates as a precondition
to its
legitimacy’.
[29]
Further, no one can have a legitimate expectation that relates to the
doing of something unauthorised or unlawful.
[30]
[39]
GOSA’s
alleged legitimate expectation fails at the first hurdle, since it is
neither reasonable nor legitimate. A concession
by the relevant
authorities or the SAPS of incapacity to administer the Act, cannot,
by any stretch of the imagination, be regarded
as a representation,
let alone a clear and unambiguous one, that firearm licences (valid
only for a limited period under the Act)
would be extended to the
lifetime of their holders; or that expired firearm licences would be
extended contrary (in both instances)
to the express provisions of
the Act. What is more, the so-called legitimate expectation is not
one that is lawful or competent
for an authorised functionary to
make. When a firearm licence terminates as contemplated in s 24(1) of
the Act, it comes to an
end by the operation of law; it is no longer
valid and thus cannot be extended. Put simply, a statutory
proscription cannot found
a legitimate expectation.
[40]
On the
facts, GOSA did not establish a prima facie right either. The
founding affidavit contains bald and generalised assertions
concerning the need for an interdict and the conduct of members of
the SAPS, which were simply conclusions, with no factual or
evidential basis. In this regard, Mr Oxley stated that the matter was
one of ‘life and death’ for individuals and security
companies with expired licences, because the SAPS had indicated that
those firearms should be handed in for destruction; and that
there
was ‘a clear and pressing danger to the security of the state’.
Yet GOSA did not put up a single affidavit by
any of its 40 000
members (or by anyone else), nor any facts, in support of these
allegations.
[41]
The
founding affidavit is also replete with references to newspaper
reports, argument, inadmissible hearsay and Mr Oxley’s
opinions, which the appellants had denied and said should be struck
out or ignored. Prinsloo J however found that Mr Oxley’s
assertions that the matter was one of life and death; that there was
‘chaos’ regarding firearms with expired licences;
that
‘order and clarity’ was urgently needed from the court;
and that there was no indication that the SAPS had the
required
safekeeping facilities for firearms and ammunition, were ‘realistic’
and ‘supported by the weight of
the evidence’. This, when
there was not a shred of evidence as to why GOSA’s members, or
any other firearm owner whose
licence had expired, had not applied
for renewal timeously. By contrast, the evidence disclosed that the
majority of firearm owners
who keep firearms for the purpose of
self-defence (some 1.7 million) had renewed their licences in time.
[42]
The
high court seems to have accepted that GOSA did not proffer ‘real
evidence’, but referred to ‘generally accepted
circumstances in press reports’ which the appellants had not
denied, and concluded that ‘judicial notice’ could
be
taken of dishonest and untoward behaviour in certain ranks of the
police in relation to the guarding and handling of firearms.
The
court erred. Aside from disputing GOSA’s assertions, the
appellants made it clear at the beginning of the answering affidavit
that it was impossible to answer Mr Oxley’s generalised
assertions concerning the conduct of members of the SAPS, which were
devoid of facts or evidence, other than by a general denial.
The ‘authentic newspaper reports’ which the court
relied
on, are not proof of the truth of their contents. They are hearsay.
Further, Mr Oxley, the ‘experienced deponent’
failed to
set out facts within his personal knowledge, or any evidential basis,
for his assertions and conclusions.
[43]
And in
all of this, the high court overlooked the fact that the predicament
of GOSA’s members and other firearm owners who
neglected or
refused to renew their licences as required by the Act, is of their
own making. In
SA
Hunters
,
[31]
the Constitutional Court, dismissing a challenge that the licensing
provisions of the Act are vague, said:
‘
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. The rule of law requirements of clarity and
certainty are clearly
met.’
[44]
The
obligation on a firearm owner to renew a firearm licence could not be
clearer. Prinsloo J however, held that this finding by
the
Constitutional Court ‘can be nothing more than
obiter
remarks’, because ‘it did not take into account the
implications of form SAPS 518 A, and the order made did not deal
with
this issue at all’. This is incorrect. In concluding that Form
518 ‘suggests that there is still provision for
renewal of a
licence already expired’, the high court inverted the
legislative hierarchy. It is a settled principle of statutory
construction that regulations made under a statute cannot be used to
interpret the governing statute.
[32]
Regulations must be interpreted in the context of the Act, not the
other way around.
[33]
This is
another reason why the final relief has no reasonable prospect of
success; the purported renewal of expired licences in
Form 518 is at
odds with the express provisions of the Act, quite apart from its
inconsistency with the Act’s purposes.
[45]
For
the above reasons, GOSA failed to demonstrate that the final relief
sought, namely a declaratory order to extend the periods
referred to
in ss 24, 27 and 28 of the Act, so as to allow the holders of expired
licences to apply for the renewal thereof on
good cause shown within
a period determined by the court, has a reasonable prospect of
success. It must be emphasised that a firearm
licence comes to an end
on the last day of its validity by the operation of law. The licence
then ceases to exist and there is
nothing to extend. The position was
concisely stated by Froneman J in
SA
Hunters
:
[34]
‘
Once one has
obtained a licence one needs to renew it at least 90 days before the
date of expiry. If that is done timeously the
licence remains valid
until the application is decided. If that is not done the licence
terminates and possession of the firearm
constitutes an offence and
is subject to criminal penalties.’
[46]
GOSA’s
claim that it would suffer irreparable harm if the interim interdict
was not granted, does not withstand scrutiny.
It was likewise based
on bald assertions and Mr Oxley’s opinions. He said that 80 per
cent of expired licences related to
firearms kept for self-defence.
He opined that ‘the availability of licenced firearms to the
public and security companies
plays an important role in the
stability of the country’; and that if the licensing system
under the Act remained in place,
‘the entire country and all
its citizens will suffer irreparable harm’. These opinions by
Mr Oxley are irrelevant.
The high court disregarded the evidence that
the majority of firearm owners had complied with the Act by renewing
their licences.
[47]
The
claim that GOSA had no alternative remedy was equally groundless.
GOSA alleged that even before it was necessary to strike down
legislation, the high court had the power ‘to force the
Registrar to do the right thing’, by effectively compelling
the
Registrar to extend firearm licences contrary to the provisions of
the Act. It must be borne in mind that these allegations
were made in
support of the incompetent order initially sought by GOSA that
firearm licences be extended to the lifetime of their
holders.
Indeed, Mr Oxley stated that if the re-licensing provisions were done
away with, it would result in the Act having ‘a
chance of being
workable’. This was the thrust of GOSA’s application –
to abolish re-licensing and renewals under
the Act by way of a court
order. The evidence however disclosed that the Act is workable –
the majority of firearm licences
had been renewed. The alternative
remedy ought to have been obvious: firearm owners must comply with
the provisions of the Act.
[48]
GOSA
also failed to demonstrate that the balance of convenience favoured
the grant of the interim interdict. Regarding this requirement,
GOSA
alleged that the SAPS did not have the capacity to process some 450
000 firearms and 60 million rounds of ammunition safely;
that
ordinary citizens and security companies would be left defenceless;
and that the resources of the SAPS were better spent on
operational
duties instead of ‘mountains of paperwork being created with no
real benefit’.
[49]
These
unsubstantiated assertions and opinion by Mr Oxley were outweighed by
the harm to the appellants, by far. What GOSA had sought
was the
suspension of a central pillar of the Act – the renewal and
termination of firearm licences – vital to its
purposes of
establishing a comprehensive and effective system of firearm control
and management, and ensuring the efficient monitoring
and enforcement
of legislation pertaining to the control of firearms.
[35]
During that suspension, the administration and enforcement of the Act
would be fundamentally undermined; the SAPS would be prohibited
from
demanding or accepting the surrender of firearms with expired
licences; and lethal weapons would be left in the hands of persons,
some or many of whom are no longer competent or capable of handling
guns safely or responsibly, thereby endangering their own lives
and
the lives of others. In short, disabling the Act’s system of
renewal and termination of firearm licences at its core,
could never
tilt the balance of convenience in favour of GOSA.
[50]
In a
case such as this, the caveat by the Constitutional Court in
National
Treasury v Opposition to Urban Tolling Alliance (OUTA)
,
[36]
bears repetition:
‘
When
it evaluates where the balance of convenience rests, a court must
recognise that it is invited to restrain the exercise of
statutory
power within the exclusive terrain of the executive or legislative
branches of government.
It
must assess carefully how and to what extent its interdict will
disrupt executive or legislative functions conferred by the law
and thus whether its restraining order will implicate the tenet of
division of powers.
While
a court has the power to grant a restraining order of that kind, it
does not readily do so, except when a proper and strong
case has been
made out for the relief and, even so, only in the clearest of
cases.’
[37]
[51]
The
high court ignored this caveat. GOSA simply did not make out a case
for an interim interdict. Its so-called legitimate expectation
was
untenable. The main relief had no reasonable prospect of success: it
was doomed to failure from the outset. These factors,
and the nature
of the interim relief sought, should have alerted the high court to
the fact that, instead of the interdict relating
only to ‘the
police and the manner of executing [their] mandate in a more
recognised and practical way’ (the logic
of which is difficult
to follow) it does exactly the opposite. The interdict cuts across
the powers vested in the appellants by
the Act, prevents them from
implementing and enforcing its provisions, and thus disrupts
executive functions conferred by law.
And this, when there has been
no attack on the constitutionality of any provision of the Act.
[52]
It
follows that the finding by Prinsloo J that the requirements for
interim relief, ‘have been properly complied with and
met’,
is wrong. In
OUTA
,
[38]
the Constitutional Court cautioned that a court must carefully
consider whether a temporary restraining order will prevent the
exercise of a power or duty which the law has vested in the authority
to be interdicted. This is such a case. The interim interdict
granted
against the appellants is constitutionally inappropriate, it violates
the principle of separation of powers, it guarantees
the unlawful
possession of firearms, and therefore it must be set aside.
Costs
[53]
It was
submitted on behalf of GOSA that it should not be mulcted in costs
because it had sought the advancement of a constitutional
right and
that the principle in
Biowatch
Trust v Registrar, Genetic Resources
,
[39]
was applicable, namely that as a general rule, each party should pay
its own costs in unsuccessful constitutional litigation between
a
private party and the State. This submission is unsound. GOSA raised
no constitutional issue, let alone a ‘genuine and
substantive
constitutional issue’.
[40]
[54]
In my
view, the case falls squarely within the category of cases which the
Constitutional Court has excluded from protection against
adverse
costs orders. GOSA brought an application which was without merit,
based on assertions and inadmissible evidence, and then
insisted on
being heard on an urgent basis. It flouted the most basic rules of
litigation. The litigation was conducted in a ‘manifestly
inappropriate’ manner.
[41]
Thus there is no reason why costs should not follow the result.
[55]
For
the above reasons the following order is made:
1
Condonation
of the late filing of the notice of appeal is granted. The appellants
shall pay the costs of that application on an
unopposed basis.
2
The
appeal is upheld with costs, including the costs of two counsel.
3
The
order of the high court is set aside and replaced with the following:
‘
The
application is dismissed with costs, including the costs of two
counsel.’
A
SCHIPPERS
JUDGE
OF APPEAL
Appearances
For
Appellants G M Budlender SC
H
Varney
D
M Nyathi
Instructed
by
State
Attorney
Pretoria
and Bloemfontein
For
Respondent G P van Rhyn
Instructed
by
Larry
Marks Attorneys
Johannesburg
E
G Cooper Majiedt Inc
Bloemfontein
For
Amicus Curiae
M Chaskalson SC
J
L Griffiths
Instructed
by
Norton
Rose Fulbright
Cape
Town,
Lovius
Block Attorneys
Bloemfontein
[1]
Minister
of Safety and Security v South African Hunters and Game Conservation
Association
[2018] ZACC 14; 2018 (2) SACR 164 (CC).
[2]
‘
Firearms
Control Regulations GN
R345,
GG
26156, 26 March 2004.’
[3]
Pharmaceutical
Society of South Africa and Others v Minister of Health and Another;
New Clicks South Africa (Pty) Ltd v Tshabalala-Msimang
NO and Others
2
005
(3) SA 238
(SCA)
para
8.
[4]
Section 233
of the Constitution provides:
‘
Application
of international law
233. When
interpreting any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent
with
international law over any alternative interpretation that is
inconsistent with international law.’
[5]
Philani-Ma-Afrika
and Others v Mailula and Others
[2009] ZASCA
115
;
2010 (2) SA 573
(SCA) para 20;
City
of Tshwane Metropolitan Municipality v Afriforum and Another
2016 ZACC 19
;
2016 (6) SA 279
(CC) para 40.
[6]
S
v Western Areas Ltd and Others
2005 (5) SA 214 (SCA) para 28, affirmed in
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
(ITAC)
[2010] ZACC 6; 2012 (4) SA 618 (CC).
para
50.
[7]
City of
Tshwane City
fn
5 para 41.
[8]
Ibid
.
[9]
ITAC
fn 6 para
53.
[10]
Section 34
of the Constitution provides:
‘
Everyone has
the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
court or,
where appropriate, another independent and impartial tribunal or
forum.’
[11]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC) para 35.
[12]
Fischer
and Another v Ramahlele and Others
[2014] ZASCA 88
;
2014 (4) SA 614
(SCA);
[2014] 3 All SA 395
(SCA)
para 13, footnotes omitted. Emphasis added. Affirmed by the
Constitutional Court in
Public
Protector v South African Reserve Bank
[2019] ZACC 29
;
2019 (6) SA 253
(CC) para 234.
[13]
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton and Another
1973 (3) SA
685
(A) at 691C.
[14]
R
v Hamilton
(unreported, 9 June 1969), cited with approval by the Court of
Appeal in
Serafin
v Malkiewicz and Others
[2019] EWCA Civ 852
para 110.
[15]
SA
Hunters
fn
1 para 1.
[16]
Section
3(1) of the Firearms Control Act 60 of 2000 (the Act) provides:
‘
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 1.’
[17]
Sections
12(1) and 121.
[18]
Sections
6 and 7 of the Act.
[19]
See
Chapter 6 of the Act. It should be noted that a person requires a
separate licence for the possession of each firearm.
[20]
Section 9(2)
of the Act.
[21]
Section
23(1).
[22]
SA
Hunters
fn
1 para 2, footnotes omitted.
[23]
Section 28
read with ss 134-137.
[24]
SA
Hunters
fn
1 paras 19-20. The Constitutional Court rejected the argument that
there are no lawful means of disposing of a firearm after
termination of a licence. Whilst the Act makes it clear that
disposal should occur before the licence has expired if it is not
to
be renewed, the firearm can still be disposed of in terms of the
Act.
[25]
See
11
Lawsa
para 403 at
419 and the authorities there cited;
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton and Another
1973 (3) SA 685
(A) at 691D.
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others (Road Freight Association Intervening)
(OUTA)
[2012] ZACC 18
;
2012 (6) SA 223
(CC) para 41.
[26]
OUTA
fn 25 para
45.
[27]
SARFU
fn 11 para
216. See C Hoexter
Administrative
Law in South Africa
2 ed (2012) at 422.
[28]
South
African Veterinary Council v Szymanski
2003 (4) SA
42
(SCA) para 20.
[29]
Szymanski
fn 28 para 21.
[30]
Gibbs
and Others v Minister of Justice and Constitutional Development
and
Others
[2009] ZASCA 73
;
[2009] 4 All SA 109
(SCA) para 26;
University
of the Western Cape and Others v Member of the Executive Committee
for Health and Social Services and Others
1998
(3) SA 124
(C) at 134D; Hoexter
op
cit
fn 27 at 424.
[31]
SA
Hunters
fn
1 para 19.
[32]
Rossouw
v FirstRand Bank Ltd
2010 (6) SA 439
(SCA) para 24;
Sebola
v Standard Bank of SA Ltd
2012 (5) SA 142
(CC) para 62.
[33]
Mobile
Telephone Networks (Pty) Ltd v Beekmans NO and Others
[2016] ZASCA 188
;
2017 (4) SA 623
(SCA) para 11.
[34]
SA
Hunters
fn
1 para 25, footnotes omitted.
[35]
Sections
2
(d)
and 2
(e)
of the Act.
[36]
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others (Road Freight Association Intervening)
[2012] ZACC
18
;
2012 (6) SA 223
(CC) para 67.
[37]
OUTA
fn 36 para
66. Emphasis added.
[38]
OUTA
fn 36 para 66
.
[39]
Biowatch
Trust v Registrar, Genetic Resources and Others
[2009] ZACC
14
;
2009 (6) SA 232
(CC) paras 21 and 43.
[40]
Biowatch
fn 39 para
25.
[41]
Biowatch
fn 39 para
24.