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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 146697 -2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
DATE 22/01/2025
SIGNATURE
In the matter between :
THE SOUTH AFRICAN ARMS AND AMMUNITION
DEALER S’ ASSOCIATION NPO First Applicant
NICHOLAS YALE (PTY) LIMITED
CODE OF BODY : 1257 Second Applicant
BERNHARD AGENCIES (PTY) LIMITED
CODE OF BODY : 100719 Third Applicant
and
BRIG ADIER SIKHAKHANE
HEAD : CENTRAL FIREARMS REGISTRY First R esponden t
THE NATIONAL COMMISSIONER OF THE
SOUTH AFRICAN POLICE SERVICES (IN HIS CAPACITY
AS REGISTRAR OF FIREARMS) Second Responden t
THE MINISTER OF POLICE Third Respondent
CAPTAIN VAN WYK
DESIGNATED FIREARM S OFFICER :
OR TAMBO INTERNATIONAL AIRPORT Fourth Respondent
JUDGMENT
LABUSCHAGNE J
[1] The applicants approach the court on the basis of urgency for an order in the
following terms:
“2. For an order declaring as invalid the decision of the first respondent to
reverse or withdraw her permission to allow second applicant to
transfer onto its dealers st ock and sell Sarsilmaz pistols imported into
the Republic of South Africa under permanent import number P[...].
3. For an order declaring as invalid the decisions of the first respondent to
reverse or withdraw her permission to allow third applicant to transfer
onto its dealer stock and sell Glock pistols imported into the Republic of
South Africa under permanent import numbers P[...], P[...], P[...], P[...],
P[...], P[...], P[...] and P[...].
4. For an order declaring as invalid the decision of the first respondent to
reverse or withdraw her permission to allow Bosphurus Pty Ltd to
import, transfer onto its dealer stock and sell Canik pistols imported into
the Republic of South Africa under permanent import number P[...].
5. For an order declaring that any other shipment of firearms where
permission has been granted to import such firearms into the Republic
of South Africa, that such firearms where they have a unitary barrel and
chamber and where the serial number is engraved on any part of the
barrel and chamber, including but not limited to the chamber itself, as
well as on the parts prescribed in section 23 as read with regulation
28(2) of the Firearms Control Act 60 of 2000, may be transferred from
an import permit onto dealer stock and sold.
6. For an order declaring that, where a barrel has a serial number
engraved over the chamber area, where the chamber is an integral part
of the barrel (i.e. is made up of one indivisible billet of metal), that such
unitary barrel with a serial number properly engraved over the chamber
area, complies with the provisions of section 23 of the Firearms Control
Act 60 of 2000.
7. For an order declaring that, where permission has been granted to
import any other shipment of firearms into the Republic of South Africa
under a permanent permit, that where such firearms have a ‘unitary
barrel’ and where the serial number is properly engraved on any part of
the barrel (including but not limited to the area surrounding the
chamber), and that where the serial number is also properly engraved
on the other parts prescribed in section 23 of the Firearms Control Act
60 of 2000 (the frame or receiver) , that such properly marked firearms
comply with section 23 of the Firearms Control Act 60 of 2000 and may
thus be transferred from an import permit onto dealer stock and then
sold.
8. For an order that prayers 5, 6 and 7 are not to be construed as a final
conclusive definition of a firearm, pistol or barrel.
9. That the first respondent, alternatively all respondents pay the costs of
this application on the attorney and client scale.”
[2] The first applicant represents the interests of dealers and importers in the
arms and ammu nition industry in ensuring the equitable interpretation and
application of the Firearms Control Act and its regulations to its members .
[3] The second applicant is one of the largest and oldest importers of firearms
into the Republic of South Africa, having been formed in approximately 1960.
[4] The third applicant is an authorised agent for Glock pistols and products,
which is one of the largest handgun importers in the Republic of South Africa
due to the popularity of the Glock pistol, which is widely used for military,
law enforcement, security and civilian uses.
[5] The first respondent is the official in charge of the Central Firearms Registry.
[6] The fourth respondent is the official permanently placed at OR Tambo
Airport and who controls the release of the import of firearms by the
applicants.
[7] During the hearing the applicant s advised that they no longer persist with the
relief in p rayer 4 of the Notice of Motion.
[8] The applicant s contend that the first respondent has refused to engage with
the industry on the interpretation issue to be decided in this matter.
[9] The imported firearms referred to in this application (all being pistols) have
barrels that cannot be separated from the chamber because they are made
from a singular unitary piece of metal . The serial number appears on the
chamber portion of such unitary barrel . The first respondent contends that
the chamber is a component of the firearm that is separate from the barrel ,
and that section 23(2) of the Firearm Controls Act requires the barrel to bea r
the serial number.
[10] The core of the issue before me is whether a chambered barrel consisting of
a chamber and barrel made from a singular unitary piece of steel (i.e. where
the chamber is an integral part of the barrel) requires the separate en graving
of a serial number on the barrel in order to comply with sec 2 3(2) and
Regulation 28 of the Fire arms Control Act.
[11] The facts giving rise to this application from the vantage point of the second
applicant are the following:
11.1 On 21 November 2024 a shipment of Sarsilmaz pistols arrived at OR
Tambo International Airport . These pistols have the serial number
on the frame , slide and on the barrel inscribed on the chamber. The
barrel is a unitary item, including the barrel and the chamber made
from one piece or billet of steel.
11.2 There were some challenges with the format of the import permit, but
the second applicant was permitted to uplift the firearms, take them
to their premises (1 099 in total with a value in excess of R6 million)
and they were kept there on the import permit until the import permit
had been rectified by the Central Firearms Registry. After the import
permit had been rectified, the second applicant began transferring
those firearms onto its dealer ’s licen ce.
11.3 The second applicant received a Section 23 notification dated 21
November 2024 pertaining to the aforesaid imports containing the
following:
“3. The above prescript was however not complied in full by the
importer, the serial number reflects only on the frame and not
on the barrel. Despite subsections (1) and (2) – of section 23
(my insert) – the Registrar may on good cause shown by the
applicant and subject to such conditions as the Registrar may
impose, issue a licen ce in respect of a firearm which does not
comply with the provisions of these subsections.
4. The Registrar resolved to grant the dealer/importer permission
to retrieve the consignment currently detained at O RTIA
Guardforce on permit numbers P[...] on the following condition:
4.1 That the serial numbers be engraved on the barrels of
all firearms by a registered gunsmith within seven days
(7 days) of this notice; and
4.2 The dealer present the firearms for inspection to the
designated firearm officer delegated by the Registrar
after completion of the engraving.
5. Non-compliance of the above prescripts might lead to the
Registrar invoking conditions of section 41 of the Firearms
Control Act 60 of 2000.”
[12] Section 41 of the Act provides for the suspension of a dealer’s licence.
[13] The second applicant contends that gunsmith reports were provided to the
respondents, who then accepted that the inscription was proper in the place
where it is and that therefore the firearms could be sold. It bears noting that
this alleged permission is disputed.
[14] On the morning of 6 December 2024 Captain Molefe, who had previously
conducted the inspection of the firearms, came to the premises of the
second applicant and advised that he had been instructed the day before by
the first respondent that the markings were not sufficient and that the
decision to allow the Sarsilmaz pistols to go onto the dealer ’s licence and to
be sold was accordingly reversed.
[15] At the time Captain Molefe conveyed this to the second applicant, one of the
salespersons of the second applicant, Jaco b Zandman overheard the
discussion . At that time, he was busy packaging Sarsilmaz pistols for
delivery based on the previous indication that the markings were in order.
There were two customers who had already ordered and paid for some of
those firearms.
[16] Mr Garret t Evans deposed to an affidavit on behalf of the third applicant.
The third applicant imports Glock pistols into South Africa. He confirm s that
the barrel of a Glock pistol is made up of one indivisible piece of steel
containing the chamber and the barrel. This is confirmed by a gunsmith’s
report annexed to the papers as Annexure GE2 .
[17] On 19 November 2024 a shipment of Glock pistols was imported, and the
third applicant was issued with a Section 23 notice containing the same
directions that were given to the second applicant in its Section 23 notice.
The third applicant contends that this has never happened before. It was
seen as a change in policy and in the interpretation of the Firearms Control
Act which was neither communicated to nor understood by the third
applicant.
[18] Nicolas Barnard, the owner of the third applicant in an email of 26
November 2024 , summarised the contents of a meeting held with Captain P
Molefe and Captain L Molefe. He summarises as follows:
“As per your verbal confirmation and that of your colleague, Captain L
Molefe, you are satisfied that the Glock pistols have the necessary serial
numbers on the frame, slide and barrel from the factory and comply with
section 23 of the Firearms Control Act and its regulations 28 and we can sell
the firearms on this import permit: P[...]. All serial numbers are visible
without having to disassemble the Glock pistol.
We will continue with our normal course of business and put these firearms
to market.
Hopefully we can prevent having to sign a section 23 notice going forward
and all the future Glock pistols for Barnard Agencies can be released at OR
Tambo.
If you could kindly acknowledge receipt of this email and give us feedback
on what the Brigadier has to say going forward.”
[19] The two captains Molefe have denied having given consent as contained in
this email. According to them, the upshot of their meeting with Mr Barnard
was that they would take their instructions from Brigadier Sikhakhane and
that the third applicant should await the outcome of her feedback.
[20] In opposing affidavits, the two captains Molefe both deny ha ving given
permission to the applicants to sell “non -compliant firearms”. They contend
that on 26 November 2024 they attended at the third applicant’s dealership.
They inspected the Glock pistols and discovered that the firearms had serial
numbers engraved on the frame and the chamber. It is alleged that there
was “no serial number on the barrels” . The director tried to convince them
that the Glock pistol’s chamber in the barrel were one component. They
contended that they had to obtain instructions from the first respondent
whether the engraving of the serial number on the chamber met the section
23(2) requirement. They indicated to the dealership that they must await
their feedback. After having consulted with the first respondent, the first
respondent contended that the serial numbers were not compli ant with
section 23(2) and that the dealers must engrave the serial numbers on the
barrels, as directed in terms of the section 23 notice.
[21] In her answering affidavit the first respondent confirms that she regards the
endorsement of a serial number on the chamber as inadequate, as
section23(2) requires the serial number to be engraved on the barrel ,
[22] The question to be decided in this matter is simple: whether the placing of a
serial number over the chamber part of a chambered barrel , consisting of
barrel and chamber made from a single piece of steel , is compliant with
section 23(2) of the Firearms Control Act.
THE LEGAL FRAMEWORK
[23] Section 23 of the Firearms Control Act ,60 of 2000 contains the following
subsections:
“(1) No firearm licence may be issued unless the firearm bears the
manufacturer’s serial number or any other mark by which the firearm
can be identified.
(2) The identification number must be stamped and the mark affixed in the
prescribed manner on the barrel and the frame, or the barrel and the
receiver, of the firearm.”
[24] Regulation 28 of the Firearm Control Regulations provides the following
regarding the placing of identification marks on firearms.
“(1) Any permanently imported firearm which does not have a
manufacturer’s serial number or which has a manufacturer's serial
number that duplicates with a similar make, model, type and calibre
firearm that appears on the Central Firearms Register, must for the
purposes of licensing in the Republic of South Africa, have the
additional identification mark determined by Registrar under section
23(4) of the Act, stamped on the barrel and the frame, or the barrel and
the receiver of the firearm in accordance wi th the provisions of this
regulation, subject to the provisions of section 23(3) of the Act. An
identification mark can be engraved, stencilled or etched on the barrel
and the frame or the barrel and the receiver of the firearm on the
circumstances determined by the Registrar and with prior approval from
the Registrar.
(2) An identification number contemplated in section 23(2) of the Act must
be stamped, engraved, stencilled or etched to a depth of at least 0.2
mm.”
[25] The first respondent contends that the chamber of a firearm is a separate
component. Section 23(2) does not require the chamber to bear the serial
number, but the barrel. The first respondent contends that the relief sought
by the applicant s amount s to a declarator that the chamber is a “barrel”.
INTERPRETATION EXERCISE
[26] The principle s of statutory interpretation are trite sinc e the ubiquitous a nd
seminal judgment in Endumeni . Interpretation is a unitary process
comprising an assessment of the text, the con text of the words in question,
and the purpose of the Act . The meaning of “barrel ” in sec 23(2) is to be
determined .
[27] The Firearms Control Act and the Firearms Control Regulations do not
define what a barrel is. However, there is an indication in the regulations as
to what the Minister, who issues regulations in terms of the Act, understood
in this regard. The Firearm Control Regulations were published in 2004 .
[28] Regulation 41 provides that the Registrar may impose conditions in respect
of a manufacturer’s licence. While these refer to South African
manufacturers, the reference to a barrel is of assistance in considering the
question to be decided.
[29] In terms of Regulation 41(f) a manufacturer’s serial number must be
stamped on every firearm manufactured under the provisions of the Act. The
manufacturer’s serial number must, on request of the manufacturer, be
allocated by the Registrar (Regulation 41(g)). The manufacturer’s serial
number must be stamped on the firearm in accordance with the provisions of
section 23(2) of the Act, read with Regulation 28(2) before the manufacturing
has been completed (Regulation 41(h)).
[30] Importantly, a manufacturer may supply a “barrel that is unchambered,
partially chambered or pre -chambered for a specific calib re to a holder of a
dealer’s licence ” (Regulation 41(s)).
[31] What is apparent is that the Minister envisages a barrel without a chamber, a
barrel partially chambered or a barrel pre-chambered. Only in the first
instance wi ll the chamber be a separate component , ie. capable of being
separated from the barrel. In respect of a partially chambered or pre -
chambered barrel, such barrel still needs to comply with section 23(2) and
Regulation 28(2) . However, there is no indication that where the barrel is
partially chambered or pre -chambered, and where such barrel consists of a
single unitary component in which the chamber is integral to the barrel itself,
that the chamber be seen as separate from the barrel.
[32] In respect of the Glock, I have been referred to photographic depictions of
the components. From the photographic evidence, it is apparent that , when
assembled , the Glock has a slide which covers the barrel and the chamber,
save for that portion of the chamber which contains the serial number.
[33] Captain Van Wyk inspected the firearms and stated the following in her
affidavit:
“6. I do confirm in all the cases, the firearms did not have serial numbers
on barrels yet import permits reflected that the firearms have serial
numbers on the frame and barrel. The serial numbers were on the
chamber.
7. I do confirm that one does not need to disassemble the firearm to
check the serial number on the barrel …”
She accordingly understood that the importer regards the serial number
placed on the chambered part of a unitary barrel and chamber to be
the serial number on the barrel.
[34] Serial numbers are required for identification of the firearm with reference to
records of the manufacturer. It is a requirement of efficient inspection of
firearms that the serial numbers be visible without disassembling the firearm.
In the case of the Glock, as in respect of the other firearms relevant to these
proceedings, the serial number pertaining to the barrel appears on that
component of the chamber which forms part of the barrel as a single unitary
barrel forged from a single piece of metal.
[35] If the first respondent’s requirement of a separate engraving of a serial
number on the barrel is required, it is, particularly with reference to the
Glock, not apparent where that serial number could be placed so that it could
be visible without disassembling the firearm. Practically, that component of
the barrel that covers the chamber is the only portion visible if the firearm is
assembled.
[36] I am satisfied that the purposes of the Act are complied with in
circumstances where the serial number is placed on that portion of the barrel
that covers the chamber where the chamber and barrel are one integral
component made from a single piece of metal. The text and the context
referred to supra support the conclusion .
[37] The purpose of the Act in requiring serial numbers is to identify the specific
firearm .This serial number is required to be visible on inspection without
dismantling the firearm. Inspection of the barrel serial number is possible if
the serial number of a chambered barrel is on that part of the barrel covering
the chamber .The interpretation is therefore consistent with the purpose of
the Act.
[38] To find otherwise would have absurd consequences in that the serial number
would not be visible without dismantling the firearm.
[39] In finding as I do, I do not suggest that a chamber is per definition part of a
barrel. That it may not be so is evident from Regulation 41(s). However,
where the barrel covers the chamber, whether it be partially chambered or
pre-chambered, and it is a unitary component forged from one piece of
metal, the serial number can be placed on that part of the unitary barrel
which is visible to an inspector without disassembling the firearm. The serial
number in such circumstances is still o n the barrel. To require a serial
number on the unchambered part of a unitary barrel in such circumstances
would be in conflict with sec 23(2) as it would amount t o a second serial
number on the barrel .The position adopted by the first responded c an
therefore not pass muster.
[40] Applied to the facts of this matter, I am satisfied that the serial numbers in
question, where they appear on that part of the barrel covering the chamber,
is compliant with section 23(2) and with Regulation 28(2) of the Firearm
Control Act and Regulations.
[41] The respondents have disputed the contention of the applicants that they
have reversed decisions which favour the applicants as set out in prayers 2
and 3 of the notice of motion. The dispute on whether permission was
granted or not is however not a material issue as the question to be decided
is a legal interpretation of section 23(2) of the Firearms Control Act.
[42] It is not necessary in any event to resolve the question whether permission
had been granted or not. Assuming in favour of the respondents that such
permission had not been granted, it is still common cause that the first
respondent has refused to release the firearms for sale without compliance
with the section 23 notice, requiring additional engraving and inspection of
serial numbers.
[43] The urgency of this matter as far as the applicants is concerned lies in the
fact that the present consignments worth approximately R6 million are not
the only consignments affected by the decision of the first respondent.
During January 2025 a further consignment worth approximately R12 million
is expected and will be adversely affected by the interpretation advanced by
the first respondent.
[44] There are circumstances on which commercial urgency justifies urgent relief.
I am satisfied on the facts of this matter that the matter should be heard as
an urgent application in terms of Rule 6(12) .
[45] The granting of d eclaratory relief pertaining to the present and future rights
of the applicants, as envisaged in section 21(1)(c) of the Superior Courts Act
is a discretionary remedy. There are two requirements. The first relates to
locus st andi-ie an interest in the relief sought. And the second is the exercise
of a discretion whether to grant the relief or not.
[46] The applicants have established their interest in the relief being sought.
[47] The respondents ’ counsel contended that the interpretation contended for
by the applicants amounts to legislation by means of court proceedings. It is
contended that the risk of this being the consequence of the declarator is a
strong indicator why the court should exercise its discretion not to grant the
declarator.
[48] The issue that I am dealing with is a matter of pure legal interpretation and
that the declarator will not infring e the separation of powers pr inciple.
Further, it is not a complex matter of interpretation not suit able for hearing in
urgent court proceedings. T he simple question is whether a unitary barrel
consisting of barrel and chamber (whether partial or not) forged from a single
piece of metal, is a “barrel” for purposes of section 23(2). I have indicated
supra as to why this issue is to be decided in the affirmative. I am satisfied
that the interpretation is a matter of simple legal interpretation and not a
complex matter as contended for by the respondents. If the latter contention
were to be correct, then the urgent court would not be the appropriate forum
for determining the issue at hand. However, I am satisfied that the issue can
be resolved as a matter of interpretation on the simple basis on which I have
decided it. It is therefore a matter that falls within the powers of an urgent
court judge. I therefore exercise my discretion to issue a declarator
appropriate to t he issue at hand.
[49] I am not persuaded to assist the applicants in respect of the relief that they
seek in prayers 2 and 3 of the notice of motion. Based on the principles of
Plascon -Evans , I cannot come to a finding in favour of the applicants that
permission had been granted to the applicants , as they contend, and that
such permission was revoked.
[50] However, the core dispute remains in place and focusses around the relief
sought in paragraphs 6 and 7. I am satisfied that the applicants has made
out a proper case for the declarators sought in those paragraphs.
ORDER
[51] I grant an order in the following terms:
51.1 The application is heard on the basis of urgency in terms of Rule
6(12).
51.2 An order is issued declaring that, where the barrel of a firearm has a
serial number engraved over the chamber area, where the chamber
is an integral part of the barrel in that it is made up of one indivisible
billet of metal, that such unitary barrel with a serial number properly
engraved over the chamber area complies with the provisions of
section 23 of the Firearms Control Act , 60 of 2000
[52] Regarding the future rights of the applicants, an order is issued declaring
that, where permission has been granted to import any other shipment of
firearms into the Republic of South Africa under a permanent import permit,
that where such firearms have a “unitary barrel” and where the serial number
is duly engraved on any part of the barrel (including but not limited to the
area surrounding the chamber) and that where the serial number is also duly
engraved on the other parts prescribed in section 23 of the Firearms Control
Act, 60 of 2000 (i.e. the frame or receiver), that such duly marked firearms
comply with section 23 of the Firearms Control Act, 60 of 2000 and may thus
be transferred from an import permit onto dealer stock and then sold.
[53] The aforesaid declarators are not to be construed as a final conclusive
definition of a firearm, pistol or barrel.
[54] The application succeeds with costs, such costs to be paid by the first,
second and third respondents on Scale C, including the costs of senior
counsel.
LABUSCHAGNE J
JUDGE OF THE HIGH COURT
Counsel for Applicant: Adv M Snyman SC
Counsel for Respondent : Adv Kumbi Toma