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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A291 /2021
In the matter between:
JOHN ERNEST ROBERTSON Appellant
and
THE NATIONAL COMMISSIONER OF First Respondent
THE SOUTH AFRICAN POLICE SERVICES
THE MINISTER OF POLICE Second Respondent
THE CHAIRMAN OF THE APPEAL BOARD Third Respondent
THE FIREARMS APPEAL BOARD Fourth Respondent
JUDGMENT
Myburgh AJ
Introduction
[1] This is an appeal against the whole of a judgment handed down by a sing le
judge of this Court, Lenyai AJ. The matter came before us with leave of that Court.
[2] What is in issue is the issuing and renewal of licenses to possess firearms in
terms of the Firearms Control Act1 (“the Act”).
Relevant St atutory Provisions
[3] The Act replaced the Arms and Ammunition Act2 (“the old Act”) . It differs
fundamentally from the old Act . The differences between the old and new regimes
are so wide ranging that it is not possible to summarise them. Extensive regulations
have also been promulgated under the Act. The most important of these are the
general regul ations which were issued in terms of Government Notice 345 issued on
26 March 2004 (“the Regulations”) . We deal with th ose provisions of the Act and the
Regulations which are relevant to this matter in the paragraphs which follow.
[4] Section 3 of the Act stipulates that no person may be in possession of a
firearm unless he or she holds a license, permit or authorisation issued in terms of
the Act in respect of that firearm. That section falls to be read together with section s
11 and 23 of the Act , which I deal with hereunder.
[5] Section 6 of the Act deals generally with the issuing of competency
certificates , licenses and authorisations. A competency certificate is a novel type of
certification created by the Act . The old Act did not have any corresponding
provisions. Section 6(2) stipulates that, “[s]ubject to section 7, no licence may be
1 Act 60 of 2000.
2 Act 75 of 1969.
issued to a person who is not in possession of the relevant competency certificate .”3
The possession of a relevant competency certificate is ac cordingly a pre -requisite for
the granting of any license in terms of the Act. These include a license to possess a
firearm, a license to c arry on business as a dealer in firearms and a license to carry
on business as a gunsmith.
[6] The issuing of competency certificates is governed by section 9 of the Act .
The provisions which are relevant to this matter read as follows:
“9. Application for competency certificate.
(1) An application for a competency certificate to possess a firearm, to
possess a muzzle loading firearm, to possess a firearm as a private
collector in such specific category as may be prescribed, to trade in
firearms, to manufacture firearms or to carry on bus iness as a gunsmith
must be delivered to the Designated Firearms Officer responsible for the
area in which the applicant ordinarily resides or in which the applicant’s
business is or will be situated, as the case may be.
(2) Where a person has not previou sly obtained a competency certificate, a
competency certificate may only be issued to such person if he or she —
(a) is 21 years or older on the day the application is received by the
Designated Firearms Officer;
(b) is a South African citizen or a holder of a permanent South African
residence permit;
(c) is a fit and proper person to possess a firearm, to trade in firearms, to
manufacture firearms or to conduct business as a gunsmith, as the case
may be;
(d) is of stable mental condition and is not inclined to violence;
(e) is not dependent on any substance which has an intoxicating or
narcotic effect;
3 The provisions of sub section 7 are not relevant in casu .
(f) has not been convicted of any offence under or in terms of this Act or
the previous Act and sentenced to a period of imprisonment without the
option of a fine;
(g) has not been convicted, whether in or outside South Africa, of an
offence involving the unlawful use or handling of a firearm by him or her
or another participant to the offence, whether committed in or outside
South Africa;
(h) has not b een convicted, whether in or outside South Africa, of an
offence involving —
(i) violence or sexual abuse, whether committed in or outside South
Africa, and sentenced to a period of imprisonment without the option of a
fine; or
(ii) physical or sexual abuse which occurred within a domestic
relationship as defined in section 1 of the Domestic Violence Act,
1998 (Act No. 116 of 1998), whether committed in or outside South
Africa;
(i) has not been convicted of fraud in relation to, or supplying false
informatio n for the purposes of, obtaining a competency certificate,
licence, permit or authorisation in terms of this Act or the previous Act;
(j) has not been convicted, whether in or outside South Africa, of an
offence involving the abuse of alcohol or drugs, whe ther committed in or
outside South Africa, and sentenced to a period of imprisonment without
the option of a fine;
(k) has not been convicted, whether in or outside South Africa, of an
offence involving dealing in drugs, whether committed in or outside
South Africa, and sentenced to a period of imprisonment without the
option of a fine;
(l) has not been convicted of an offence in terms of the Domestic
Violence Act, 1998 (Act No. 116 of 1998), and sentenced to a period of
imprisonment without the option of a fine;
(m) has not been convicted of an offence involving the negligent
handling of a firearm;
(n) has not been convicted of an offence in terms of the Explosives Act,
1956 (Act No. 26 of 1956), and sentenced to a period of imprisonment
without the option of a fine;
(o) has not been convicted, whether in or outside South Africa, of an
offence involving sabotage, terrorism, public violence, arson,
intimidation, rape, kidnapping or child stealing, whether committed in or
outside South Africa;
(p) has not become or been declared unfit to possess a firearm in terms
of this Act or the previous Act;
(q) has successfully completed the prescribed test on knowledge of this
Act;
(r) has successfully completed the prescribed training and practical tests
regarding the safe and efficient handling of a firearm; ”
[7] Section 10 of the Act also deals with competency certificates. The relevant
provisions read as follows:
“10. Competency certificate. —
(1) A competency certificate must specify —
(a) whether it relates to competency to —
(i)possess a firearm;
(iA)possess a muzzle loading firearm;
(iB)possess a firearm as a private collector in such specific
category as may be prescribed;
(ii) trade in firearms;
(iii) manufacture firearms; or
(iv) conduct business as a gunsmith; and
(b) all the relevant tests successfully completed by the holder. ”
[8] Section s 9 and 10 of the Act must be read together with Regulation 14 , which
contains further detailed provisions in respect of the assessment of applicants for
competency certificates. As none of them are directly relevant to the matter , I will not
say anything further in this regard , save to mention that competency certificates , to
the extent that they relate to the possession of firearms, are issued by category of
firearm - for example a rifle or a shotgun . A competency certificate , to the extent that
it relates to the competency to possess a firearm, may thus be equated to a license
to drive a particular class o f vehicle on a public road or to operate a particular class
of vessel .
[9] Section 11 of the Act stipulates that the Registrar must issue a separate
license in respect of each firearm licensed in terms of the Act. This section must be
read together with section 23, which requires every firearm licensed under the Act to
bear a manufacturer’s serial number or other distinctive mark. Thus, a license to
possess a firearm issued in terms of the Act is a license to possess a particular
firearm , which is identif ied by a serial number or other distinctive mark - referred to
by the Constitutional Cou rt in Minister of Police and others v Fidel ity Security
Services (Pty) Ltd4 as a “possession licence ”.
[10] Section 13 of the Act regulates the issuing of licenses “for the purpose of” self-
defence. I say “ for the purpose of” because the “ purpose ” relates to the motivation
given by the applicant and also the section in terms of which the discretion to issue a
license is exercised rather than the purpose for which the firearm may be used. The
latter is governed by section 13(4), which reads as follows: “ A firearm in respect of
which a licence has been issued in terms of this section may be used where it is safe
to use the firearm and for a lawful purpose ”. The purposes for which firearms may
lawfully be used is governed by other laws ,5 not the Act itself .
[11] Section 15 of the Act deals with the issuing of licenses for the purpose of
“occasional hunting and sports -shooting” . The relevant provisions read as follows:
“15. Licence to possess firearm for occasional hunting and sports -shooting .
(1) A firearm in respect of which a licence may be issued in terms of this
section is any —
(a) handgun which is not fully automatic;
4 2023 (3) BCLR 270 (CC) .
5 These include the common law and laws which regulate the hunting of wild animals.
(b) rifle or shotgun which is not fully or semi -automatic; or
(c) barrel, frame or receiver of a handgun, rifle or shotgun contemplated
in paragraph (a) or (b),and which is not a restricted firearm.
(2) The Registrar may issue a licence in terms of this section to any natural
person who is an occasional hunter or occasional sports person.
(3) (a) Subject to paragraphs (b), (c) and (d), no person may hold more
than four licences issued in terms of this section.
(b) If a person holds a licence issued in terms of section 13, he or she
may only hold three licences issued in terms of this section.
(c) A person may not hold more tha n one licence in respect of a
handgun contemplated in subsection (1) (a).
(d) If a person contemplated in paragraph (a) holds any additional
licences contemplated in section 12 in respect of a firearm contemplated
in this section and section 13, the numbe r of licences which that person
may hold must be reduced by the number of such additional licences
held.
(4) A firearm in respect of which a licence has been issued in terms of this
section may be used where it is safe to use the firearm and for a lawful
purpose.”
[12] In terms of section 1 of the Act “ occasional hunter ” means “any person who,
from time to time, participates in hunting activities but who is not a member of an
accredited hunting association ”; and “occasional sports person ” means “any person
who, from time to time, participates in sports -shooting but who is not a member of an
accredited sports -shooting organisation ”.
[13] Section 16 of the Act deals with the issuing of licenses for the purpose of
“dedicated hunting and sports -shooting ”. The relevant provisions read as follows:
“16. Licence to possess firearm for dedicated hunting and dedicated sports -
shooting.
(1) A firearm in respect of which a licence may be issued in terms of this
section is any —
(a) handgun which is not fully automatic;
(b) rifle or shotgun which is not fully automatic;
(c) semi -automatic shotgun manufactured to fire no more than five shots
in succession without having to be reloaded; o r
(d) barrel, frame or receiver of a handgun, rifle or sh otgun contemplated in
paragraph ( a), (b) or (c).
(2) The Registrar may issue a licence in terms of this section to any natural
person who is a dedicated hunter or dedicated sports person if the
application is accompanied by a sworn statement or solemn declaration
from the chairperson of an accredited hunting association or sp orts-
shooting organisation, or someone delegated in writing by him or her,
stating that the applicant is a registered member of that association.
(3) A firearm in respect of which a licence has been issued in terms of this
section may be used where it is s afe to use the firearm and for a lawful
purpose. ”
[14] In terms of section 1 of the Act “dedicated hunter” means, “a person who
actively participates in hunting activities and who is a member of an accredited
hunting association” and “dedicated sports person” means “a person who actively
participates in sports -shooting and who is a member of an accredited sports -
shooting organisation”.
[15] Inasmuch as the wording of sections 15(4) and 16(3) of the Act is identical to
that of section 13(4) of the Act, what I have said in relation to “purpose” in respect of
licenses issued in terms of section 13 applies equally in respect of licenses issued in
terms of sections 15 and 16 of the Act - i.e. the holder of a licence may use the
firearm to which it relates to for any lawful purpose. These include sports shooting
(i.e. shooting targets or clay pigeons), hunting and self -defence. The section in terms
of which the license was issued is irrelevant in this regard.
[16] Section 16 of the Act must be read together with Regula tion 4, which deals
with the accreditation of hunting associations and sports - shooting organisations
and the registration, by such bodies of persons as “dedicated” hunters or sports -
shooters, as the case may be. The Regulation requires persons who wish t o be
afforded “dedicated” status to undergo the appropriate training and pass certain
tests, which have to conform to certain prescribed standards – this, albeit that the
section itself does not contain any corresponding provisions.
[17] The periods of validity of licenses are regulated by Section 27. Licenses
issued in terms of sections 15 and 16 are valid for ten years. A license lapses ipso
facto upon the ex piry of the stipulated period, subject only to the provisions of
section 2 4(4) of the Act .
[18] Section 24 of the Act deals with the renewal of licenses . The relevant
provisions read as follows:
“24. 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.
(2) The application must be —
(a) accompanied by such information as may be prescribed; and
(b) delivered to the Designated Firearms Officer responsible for the
area in which the applicant ordinarily resides or in which the
applicant’s business is, as the case may be.
(3) No application for the renewal of a licence may be granted unless the
applicant shows that he or she has continued to comply with the
requirements for the licence in terms of this Act.
(4) If an application for the renewal of a licence has been lodged within the
period provided for in subsection (1) , the licence remains valid until the
application is decided. ”
[19] The general requirements in respect of applications in terms o f the Act are
regulated by the provisions of Regulation 13. The relevant provisions read as
follows:
“13. General provisions regarding applications required in terms of the Act.
(1) A person requiring a competency certificate, licence, permit, authorisation,
as well as a duplicate thereof or renewal to be issued for a purpose
contemplated in the Act, must apply to the Registrar for such competency
certificate, licence, permit, authori sation, duplicate or renewal.
(2) An applicant referred to in subregulation (1) , must submit the du ly
completed relevant application form, prescribed in Annexure “A” and the
required information together with any required supporting documents.
(3) The application form must be completed in black ink by the applicant
personally or, in the case of a juristic person, by the responsible person
contemplated in section 7 of the Act.
(4) (a) An application must, unless otherwise specifically stated, be submitted
by the applicant in person to the relevant Designated Firearms Officer.
(b) When an applicant submits an application in accordance with
subparagraph ( a), the applicant must provide a certified copy of the
page in his or her officially issued identity document or passport on
which his or her photo and particulars are reflected.
(6) Whenever payment of any prescribed fee has been made at a police
station under regulation 96, documentary proof of the payment, must be
attached to the relevant application.
(9) (a) A full set of fingerprints of an applicant as required in section 6(1)( a) of
the A ct, must be taken by the relevant Designated Firearms Officer or
designated personnel at a police station on the officially prescribed form
used by the South African Police Service for such purpose.
(10) An acknowledgment of receipt of an application must only be issued to
the applicant if the application is, to the satisfaction of the Registrar, duly
completed and accompanied by all the required information and
documentation, and after the identity of the applicant on the required set
of her or his finger prints, has been verified by the relevant Designated
Firearms Officer.
(12) The Registrar may only issue a licence, permit, authorisation or
renewal to a person who complies with the requirements as prescribed in
these regulations regarding the safe custo dy of firearms or ammunition .
(17) The Registrar may require from an applicant to furnish any such further
information as may be necessary for the Registrar to exercise discretion
to fulfil his or her functions under the Act. ”
[20] Annexure A to the Regulations comprises a number of forms that are required
to be completed for various purposes in terms of the Act . The applicable form in
respect of an application to possess a firearm is SAPS271 . In respect of renewals of
licenses issued in terms of the A ct, the relevant form is SAPS 518(a). Both of those
forms require the applicant to indicate the intended purpose . This is done by means
of boxes which have labels , each of which corresponds to a particular section of the
Act. A separate form has to be completed in respect of each firearm and the
applicant is required to tick the applicable box. Box 1.4 is labelled “ occasional
hunting and sports -shooting ” and box 1.5 is labelled “ dedicated h unting and sports
shooting ”. Those box es correspond to sections 15 and 16 of the Act respectively.
[21] It is clear from the language of section 24 of the Act , read with Regulation 13
and form SAPS 518(a) , that there is no automatic right of renewal . That is to say that
a license will not fall to be renewed simply against payment of the prescribed fee - as
is the case , for example in respect of motor vehicles. On the contrary , applications
for renewal are substantive applications which have to be adequately motivated and
supported and t he applicant has to satisfy the authorities charged with the
administration of the Act that he or she satisfies the requirements of the Act , read
with the applicable Regulations in respect of the license which is sought to be
renewed. The requirements in respect of applications for renewal consequently differ
little, if at all , in substance from those which apply in respect of new licenses.6
[22] Section 133 of the Act creates a right of appeal to the fourth responden t. The
relevant provisions read as follows :
“133. Right of appeal. —
(1) Any person —
(a) whose application for a competency certificate, licence, permit or
authorisation in terms of this Act has been refused ;
. . .
(d) who has received a notice of an administrative decision in terms of this Act
which may detrimentally affect his or her rights,
may, in the prescribed manner, appeal to the Appeal Board.
(2) The Appeal Board may confirm, vary or reverse any decision against
which an appeal has b een lodged in terms of this section.
(3) The Appeal Board may admit evidence of facts not before the Registrar
when he or she made the decision which is the subject of the appeal only
if—
(a) there is a reasonable explanation for the failure timeously to inform the
Registrar of the facts; and
(b) the Registrar has had sufficient opportunity to verify the facts and to
present any evidence to the Appeal Board in this regard. ”
6 In Minister of Police and Others v Fidelity Security Services (Pty) Limited [2022] ZA CC 16, the Court
expressed the view (obiter) that the process for applying for the renewal of a currently valid licence
would be “less exacting” than the process for applying for a new license(at para 44); however, with the
exception of the associated fees , it is not clear from the judgment which requirements the court had in
mind. The proposition is also difficult to reconcile with the provisions of section 24(3).
[23] It is clear from the language of Section 133 (3) that the appeal is a wide one –
i.e. the appeal Board is not confined to the record of the proceedings which resulted
in the decision which forms the subject matter of the appeal.
[24] The s chedule to the Act bears the heading “ Transitional arrangements ”. It
deals with what I will call the migration of licenses from the old Act to the Act. In
terms of item 1 read with item 11, licenses issued under the Old Act remained valid
for a period of five years following the commencement of the Act , and the holders of
such licenses were afforded a n opportunity to apply for corresponding licenses under
the Act. Item 11 is headed “ Renewal of license ”, and item 11(d) stipulates that, “ [i]f an
application for the renewal of a licence, permit, certificate or authorisation has been
lodged within the period provided for in this section, the licence, permit, certificate or
authorisation remains valid until the application is decided.” The relevance will
become apparent.
The Facts
[25] Mr Robertson is a farmer and a hunter. He held eight licenses under the old
Act. One was in respect of a 9mm Luger pistol. The remainder were in respect of
rifles and shotguns (“long guns”) . The rifles comprised a Brno .22LR, a Sako .223
Rem , a Sako .308 Win and a Lee Enfield .303. The shotguns comprised a 410 Ga
Richardson , a Gecado 12 Ga and a Berett a 12 Ga. For the sake of convenience , I
will refer to the rifles simply as “the .22”, “the .223”, “the .308” , and “the .303”, and to
the shotguns as “the Richardson ”, “the Gecado”, and “the Beretta”.
[26] In December 2005 , Mr Robertson applied for licenses under the Act in terms
of the transitional arrangements. At the time of lodging his applications he was a
member of an accredited hunting association ; however , he was not registered as a
dedicated hunter with that organisation . Thus, a lthough he satisfied the requirements
of section 16 read on its own, he did not satisfy the requirements for “dedicated ”
status in terms the Regulation s. At the same time, Mr Robertson could not, in terms
of section 15, have been issued licenses in respect of more than four firearms . As
one of his applications concerned a self-defence pistol, he would only have been
eligible for three licenses in respect of his long guns. He was accordingly faced with
a conundrum.
[27] Mr Robertson discussed the issue wi th the Designated Firearms Officer
(“DFO”)7 at his lo cal police station in Great Brak River , who advised him that the
appropriate thing to do would be to tick the boxes corresponding to section 15 and to
supplement the applications once he had passed the test and obtained a certificate
evidencing his registration as a dedicated hunter . Save in respect of the .303 , Mr
Robertson followed that advice. In the case of the .303 he checked the box
corresponding to section 16. Why he did that is unclear , however , given the
conclusions I have come to, it is also not important . The only residual relevance is
that his application in respect of the .303 clearly ought properly to have been
considered in terms of section 16 rather than section 15 of the Act .
[28] In February 2006 , Mr Robertson duly passed the relevant test s and obtained
a certificate from his assoc iation recording his registration as a dedicated hunter.
According to his evidence, which was not gainsaid by the respondents, he delivered
a copy of th at certificate to the DFO as he had been advised to do . Whether the
certificate ever found its way to th e Registrar’s office is unclear ; however, nothing
turns on this.
[29] In April 2008 Mr Robertson was granted a license in respect of his Luger pistol
(i.e. the self -defence firearm) and three of his long guns, viz the .223, the .308 and
the .303. His application s in respect of the .22 and the three shotguns were however
refused . In each case , the reason given for the refusal was that he had already been
issued the maximum number of licenses permitted by section 15(3) of the Act .
[30] Mr Robertson then lodged an appeal with the fourth respondent. The reason
given in his application was that the applications had erroneously been considered in
terms o f section 15 of the Act , whereas they ought properly to have been considered
in terms of section 16 of the Act . He also furnished proof of his “dedicate d” status.
7 The office of DFO was created by section 124(2) (h).
[31] In October 2008 , the then chairperson of the fourth respondent addressed a
letter to Mr Robertson asking why he had applied on the basis that he required the
firearms for occasional hunting if he had, all along, been a dedicated hunter. Mr
Robertson responded by way of a letter in which he explained what had transpired –
i.e. as set out above. The appeal was upheld , and the further licenses were issued.
For some reason, a ll of the long gun licenses were endorsed with references to
section 15 rather than section 16 of the Act . I will return to th is issue at an
appropriate juncture.
[32] In April 2018 , Mr Robertson applied for the renewal of all of the long gun
licenses. In each instance , he ticked the “dedicated” box – i.e. the box which
corresponded with section 16 of the Act. Those applications were supported by the
documentatio n required by the Regulations . The DFO also confirmed that Mr
Robertson had a compliant safe.
[33] Mr Robertson was subsequently informed that some of his applications had
been granted and that others had been refused. The licenses that were issued were
once again endorsed with references to section 15 of the Act . Those that were
refused related to the .223, the .308 and the .303 . In each case , the reason given
was that section 15(3) of the Act did not permit the issuing of those licenses. The
basis upon which some of the applications where approved and others rejected was
not addressed in the papers , and it is difficult to resist the inference that who ever
dealt wit h them simply approved the first four , being the maximum permitted by
section 15(3) , and refused the rest. The handgun lice nce, which had been renewed
during October 2014, was obviously overlooked as, in truth, only three of the long
gun licenses could validly have been issued in terms of section 15 at that time.
However , nothing was made of this on the papers, and nothing tur ns on it. The only
relevance is that it is indicative of a degree of disorganisation in the offices of those
charged with the administration of the Act.
[34] In October 2018 , Mr Robertson then lodged a second appeal with the fourth
respondent . The ground s of appeal w ere the same as on the previous occasion – i.e.
that the applications had been considered in terms of section 15 of the Act whereas
they ought properly to have been considered in terms of section 16 .
[35] Mr Robertson subsequently received a text message informing him that his
appeal had been refused. This was confirmed in a letter dated 3 April 2019 .
Litigation
[36] The application to which this appeal relates was launched on 8 July 2019. The
main relief sought in terms of the notice of motion was for the following :
[1] an order reviewing and setting aside the third and fourth respondents’
refusal of the renewal applications in issue ;
[2] an order that such licenses be issued in terms of section 16 of the Act
and;
[3] “an order reviewing and setting aside the original decision of the First
Respondent to issue any firearms to the Applicant in terms of Section 16
of the Firearms Control Act and for an or der ordering the first respondent
to issue Section 16 licenses for all firearms for the Applicant other than the
Applicant’s self-defence Luger …”.
The first reference to Section 16 in paragraph 3 above appears to have been the
result of an error as it was clear from the papers , read as a whole , that what Mr
Robertson was seeking was to have the licenses issued to him in terms of Section
16 ra ther than Section 15.
[37] The notice of motion also included prayers for alternative and ancillary relief.
The application was supported by an affidavit deposed to by Mr Robertson. The
juristic basis of the application was not entirely clear from the founding papers . By
this I mean to say that it was not clear whether it was based on the Promotion of
Administrative Justice Act (“PAJA ”)8 or simply on the principle of legality. However,
8 Act 3 of 2000 .
nothing was made of this distinction on the papers or in argument, and I do not think
that anything turns on it.
[38] A notice of opposition was delivered in respect of all of the respondent s on 19
August 2019.
[39] The fourth respondent only delivered the record (“the ROD”) on 29 January
2020 - that is to say , approximately six mont hs out of time. It appears that the delay
was occasioned by administrative problems within the office of the State attorney.
For some reason , the ROD did not form part of the record in this matter. This is
unfortunate , as the omission makes it difficult to understand some of the issues
raised in the supplementary affidavit and the response thereto .
[40] The matter initially appeared on the court roll on 3 February 2020 – that is to
say, three days after the delivery of the ROD . The respondents had not, at that time ,
delivered an answering affidavit. They accordingly requested a postponement in
order to allow them to do so. That request was conceded to on the basis that the
respondents would pay the wasted costs on the attorney and client scale.
[41] Mr Robertson delivered a supplementary affidavit on 10 March 2020. As I
have indicated , that affidavit is , in certain respects , difficult if not impossible to follow
as it contains references to documents which have not been included in the record of
this matter. Suffice however to say that Mr Robertson persisted in his challenge,
essentially on the same basis – i.e. that the decision makers had failed to properly
apply their minds. He also asserted that it was evident from a letter contained in the
ROD that the fourth respondent had not had his file before it when considering his
appeal. I will return to this issue.
[42] The respondents delivered their answering affidavit on or about 6 May 2020. It
was deposed to by a Ms Shandu, who was at th at time the chairperson of the fourth
respondent. In her affidavit , Ms Shandu explained that the basis of the respondents’
opposition was that Mr Robertson had never been issued licenses in terms of section
16. That being the case, or so the argument went, the applications , and also the
appeal had been correctly refused. Ms. Shandu further contended that certain
aspects of the relief sought were not legally permissible, as they contravened the
doctrine of sepa ration of powers.
[43] Ms Shandu’s affidavit was supported by a confirmatory affidavit deposed to by
an employee of the State Attorney, a Mr Rametha pe. It was in the standard form in
that the deponent simply confirmed the correctness of the contents of Ms Shandu’s
affidavit in so far as it related to the deponent. That affidavit did not serve to take the
matter any further .
[44] The papers also included what purported to be a confirmatory affidavit
deposed to by Mr Hlongwane, who described himself as a senior legal administration
officer in the employ of SAPS . However , that “affidavit” was not signed, let alone
commissioned. Its contents accordingly could not be taken into account. In any
event, it was of no assistance as it is not clear what exactly Mr Hlongwane intended
to confirm.
[45] Mr Robertson delivered his replying affidavit on or about 21 July 2020. In it, he
took issue with Ms Shandu’s authority to speak for the other respondents .
Furthermore, he asserted that many of the facts referred to in Ms Shandu’s affidavit
comprised inadmissible hearsay . He also asserted that Ms Shandu was wrong, both
in fact and in law. In short, his case remained that his application s and, also, his
appeal had been wrongly refused. He also asserted that the respondents had failed
to comply with the provisions of PAJA as he had not been afforded an opportunity “to
explain my circumstances and rectify certain misperceptions ”. Precisely what those
misperceptions were was not explained ; however, it seems, from a reading of the
affidavit as a whole, that what Mr Robertson intended to allude to was the fact that
his applications and appeal were considered with reference to the provisions of
section 15 of the Act, whereas they ought properly to have been assessed with
reference to the provisions of section 16.
[46] On 20 October 2020 , the matter came before De Vos J . It appears from the
papers that counsel who appeared for the respondents on that occasion indicated
that the respondents were of the view that some of the licenses that had been issued
to Mr Robertson in 2009 ought not to have been issued and that the presiding judge
expressed the view that the respondents would need to institute review proceed ings
to have those licenses declared invalid if they wished to pursue that line of argument .
Respondents ’ counsel accepted that and indicated that the respondents required
time in order to deliver a counter application. T he matter was then postponed , and
the respondents were mulcted in costs on a punitive scale . The order also contained
a provision which required the respondents to deliver their counter application by 16
November 2020 , failing which the applicant would once again be entitled to enrol the
matter for hearing.
[47] The respondents delivered their counter application on or about 16 November
2020. That application was supported by an affidavit deposed to by Ms Shandu . The
notice of motion also referred to a confirmatory affidavit deposed to by a certain
Brigadie r Mabule ; however , it seems that no such affidavit was actually delivered . It
does not form part of the record , and it is also not referred to in Mr Robertson’s
answering affidavit.
[48] The main relief sought in terms of the counter application was the review and
setting aside of the fourth respondent’s decision in respect of Mr Robertson’s 2009
appeal and an order declaring the licenses which were issued to him in respect of
the three shotguns , as a consequence thereof , void ab initio . The basis of the
application was that the fourth respondent was alleged to have acted in error. By way
of amplification, Ms Shandu asserted that the fourth respondent had considered Mr
Robertson’s appeal in isolation – i.e. that it had not been aware that he al ready held
the maximum number of licenses permitted in terms of section 15(3) of the Act.
Curiously, n o mention was made of the license in respect of the .22, which had also
been issued pursuant to the fourth respondent’s decision in respect of the 2009
appeal. As to the delay in bringing the counter application, Ms Shandu asserted that
the respondent s had not been aware of the alleged error until they received the main
application.
[49] Mr Robertson delivered his answering affidavit in respect of the counter
application on or about 25 January 2021. In it, he raised a number of issues. I n the
first instance , he again took issue with Ms Shandu’s authority to speak on behalf of
the current first respondent and asserted th at she was , in law, precluded from doing
so. He also once again asserted that the application was founded on assertions of
fact which constituted inadmissible hearsay. He furthermore denied that any mistake
had been made in relation to his first appeal . In that context , he asserted that the
licenses which formed the subject ma tter of that appeal had in fact been authorised
in terms of section 16 of the Act . He also pointed out that the licenses in issue had
already lapsed and asserted that the application was, for that reason, unnecessary
and hence misdirected.
[50] The respondents delivered their replying affidavit in the counter application on
or about 11 March 2021. That affidavit was also deposed to by Ms Shandu. In it she
admitted that she did not have personal knowledge of the facts relating to the 20 09
appeal or the issuing of licenses pursuant thereto. The remainder of the affidavit
comprised argument. Suffice to say that the respondents’ position on the issues
remained unchanged.
[51] The matter was set down for hearing in the week of 26 April 2021. It came
before Lenyai AJ , who heard argument and reserved judgment. Lenyai AJ delivered
her judgment on 29 July 2021. She dismissed the main application and granted the
counter application. She also ordered Mr Robertson to pay the costs of both the
main appli cation and the counter application on the scale as between attorney and
client, such costs in relation to the counter application to include the costs attendant
upon the employment of two counsel. Why the learned acting Judge considered it
appropriate to make different cost orders in respect of the main application and the
counter application is unclear, but also not important. The function of this Court is to
consider the issues afresh; not to critique the judgment which is the subject of the
appeal.
[52] As indicated above, Mr Robertson sought and was granted leave to appeal
against the whole of that judgment and the orders made in terms thereof.
Conduct of Litigation
[53] I believe it to be appropriate at this juncture to make a few general remarks
about the manner in which this litigation has been conducted. I do so in the
paragraphs which follow.
[54] Starting with Mr Robertson’s case, I have to say that his papers left a lot to be
desired. As I have already indicated, the legal basis of the application was not
properly set out in the founding papers. The facts were also not always dealt with in
strict chronological order. However, what I found particularly unacceptable was tha t
the papers contained numerous references to other cases, and , also, a speech
which was apparently made by the State President on a formal occasion –
something which I do not consider to be appropriate in affidavits. Indeed, Mr
Robertson did not confine h imself to simply referring to these items; he also saw it fit
to quote portions and to annex copies of certain judgments and papers which had
apparently been filed in other matters. This is not how one should litigate. On the
contrary, what is required is that the case be set out succinctly. If Mr Roberston’s
case was (as it is) that the implementation of the Act has been beset with problems,
then he only had to say as much. Our courts have been burdened with a plethora of
cases in relation to these issues, and it is common knowledge that those charged
with the administration of the Act have struggled to cope with the load which it has
placed on them. He might perhaps, at most, have referred to those judgments which
he considered to be particularly relevant given the issues in this case, however to
annexe copies of judgments to affidavits only serves to burden the papers
unnecessarily. As we were not asked to make any special order of costs on this
account , I will say no more in this regard. Practitioners sho uld however be warned
that burdening the papers in this way may well result in certain costs being
disallowed.
[55] The respondents’ papers also left a g ood deal to be desired. I expand on this
in the paragraphs which follow.
[56] Each of Ms Shandu’s affidavits contained an allegation to the effect that the
facts referred to all fell within her personal knowledge save where the context
indicated otherwise ; however, w hat exactly did and did not fall within her personal
knowledge was not always made clear. For instance, she stated that the fourth
respondent had overlooked certain relevant facts when deciding the 2009 appeal ,
however she did not claim to have been a member of the appeal board at that time -
and she conceded in reply that she had not been. Thus, what she was really doing
was making an averment as to what she thought must have been in the minds of the
members of the fourth respondent in 2009 . That amounted to speculation , and the
averment ought not to have been cast as one of fact. If it was to be made at all, then
it ought to have been couched as a submission based on inference . Ms Shandu also
could not speak directly to anything which took place in the offices of the first or
second respondent s. In particular, she could not explain why any of the 2009
licenses had been endorsed with references to section 15 rather than section 16 .
Her evidence on that issue was according ly also speculative .
[57] Ms Shandu also sometimes responde d to averments of fact by means of
submissions rather than by making an admission or a direct averment of fact. I refer ,
in particular , to Mr Robertson’s averment to the effect that his file had not been
before the fourth respondent when his most recent appeal was considere d – an
inference which he said flowed ineluctably from a letter contained in the ROD. Ms
Shandu’s response was to “submit” that the file had indeed been before the board on
that occasion . This is not an acceptable way of responding to an allegation of fact.
On the contrary, if Ms Shandu had intended to assert that Mr Robertson’s file had
indeed been before the fourth respondent on that occasion , then she ought to have
said so directly . She ought also to have explained why she could say that with
confidence . The fourth respondent has a heavy case loa d, and it is highly unlikely
that any member of the board would remember offhand exactly what papers were
placed before it in respect of any given appeal - especially one that was not, at the
time, considered to be special in any way. On the contrary, it would be n ecessary to
have regard to the record of the proceedings . Ms Shandu also d id not see fit to
address the inference which Mr Robe rtson alleged flowed from the letter referred to
above – as she ought to have done if she wished to take issue on the facts.
Counter Application
[58] The first question to be decided when considering a n application for a review
is whether it was brought timeously. The rule is that it must be brought within a
reasonable period. What const itutes a reasonable time depends on the facts of the
matter. If the court concludes that the application was not brought timeously, then
that is generally the end of the matter , regardless of the merit s. This much is so well
established as to be trite. In casu , we have to deal with licenses which were issued
pursuant to a decision taken in 2009 - thus a delay of eleven years. Such a lengthy
delay is prima facie unreasonable. The respondents attribute the delay to an alleged
lack of awareness of the facts until their receipt of the main application . This is
unconvincing. After all, the respondents had at all times, been in possession of the
relevant records. The suggestion that the respondents had not been aware of the
facts prior to receiving the main application was also not supported by any
admissible evidence. I am accordingly inclined to the view that the period of delay
was excessive and that the counter application ought to have been dismissed on that
basis alone. However, even if the matter is approached on the basis that the delay
was not excessive, the respondents face other difficulties. I deal with them in the
paragraphs which follow.
[59] Starting with the law, while it is so that an administrative body may take itself
on review if it forms the belief that it has taken an unlawful decision , it does not follow
that it should always do so - for it is in the nature of things that some decisions have
enduring consequences, while the consequences of other decisions only endure for
a limited period. To this I would add that the business of courts is to pronounce on
live disputes, not to deliver opinions in relation to matters which have become
academic. Thus, an application to review a decision is not appropriate in
circumstances where the decision has ceased to have any effect.
[60] In casu , Mr Robertson contended that all of the licenses which had been
issued to him pursuant to the 2009 appeal had expired b y the time the application
was launched and that the lawfulness of that decision had therefore become
academic. The respondents expressed the same view in the ir answerin g papers in
the main application . Ms Shandu’s words were, “[t]he respondents no longer need to
review their January 2009 decision to uphold the Applicant’s appeal as the license
(sic) have already lapsed after ten (10) years ”. The respondent’s volte face on this
issue appears to have `been prompted by the comments ma de by De Vos J when
the matter came before him during October 2020.
[61] In my view , the point was well taken . Licenses issued in terms of the Act take
the form of plastic cards similar to driver’s licenses. Every license bears a
photograph of the holder, the date of issue and the particulars of the firearm to which
it relates. All of the licenses in issue would, b y virtue of the provisions set out in
section 27 of the Act , have expired during 2019 – subject only to the provisions of
section 24(4) of the Act , which ceased to be of application upon the issue of the new
licenses. The licenses at which the counter application was direct ed had accordingly
lapsed and ceased to be of any effect when th at application was launched. I would
accordingly have been inclined to dismiss the counter application on this basis alone .
[62] There are also other bases on which I believe the counter application fell to be
dismissed. I deal with them in the paragraphs which follow.
[63] Turning to the fac ts, the assertion that the fourth respondent had , in
considering the 2009 appeal, failed to take account of the fact that Mr R obertson
already held the licenses which had been issued to him in 2008 was not supported
by any admissible evidence. As I have already pointed out, Ms Shandu was in no
position to say what went through the mind s of the members of the fourth respondent
in 2009 . That thesis is also not supported by the objective facts. On the contrary, the
then chairperson specifically wrote to Mr Robertson asking why he had ticked the
boxes which corresponded to section 15 when he had , all along, been registered as
a dedicated hunter, and Mr Robertson explained what had occurred and that he was
in fact relying on the provisions of section 16 , not section 15. In the circumstances ,
there can be no doubt whatsoever that the fourth respondent was aware of the facts
and that it intended to authorise , and in fact authorised , the issue of the additional
licenses in terms of section 16 , not section 15 – which would have been unlawful.
[64] The fact that the licenses themselves came to be endorsed with references to
section 15 cannot detract from this conclusion. On the contrary, it can readily be
explained on the basis of a simple clerical error . Indeed, Ms Shandu herself
explained that the system is not set up to automatically prevent more than the
stipulated maximum number of licenses per section being issued. If it had been , then
an alarm bell would have sounded - in which event the additional licenses would ,
given the facts, have been endorsed w ith references to section 16 rather than
section 15. That sai d, how the licenses came to be endorsed with references to
section 15 is really neither here nor there. T he issue before us concerns the
lawfulness of the fourth respondent’s 2009 decision to authorise the issuing of the
licenses in question ,9 not how the licenses came to be endorsed with references to
section 15 of the Act .
[65] For these reasons , I am of the view that the counter application ought to have
been dismissed.
Main Application
[66] That Mr Robertson checked the boxes which corresponded to section 16
when he applied for the renewal of his licenses in 2018 , is not in dispute. It is also
not in dispute that the applications in issue , and, also, Mr Robertson’s appeal were
refused simply on the basis that he already held the maximum number of licenses
permitted in terms of section 15 (3) of the Act . The respondent’s position is also that
Mr Robertson ’s licenses could not have been renewed in terms of section 16 of the
Act simply because he was not holding licenses which had been issued in terms of
that section .
[67] As I have already indicated, the proposition that all of the long gun licenses
which were issued to Mr Robertson in the 2008/2009 period were in fact authorised
in terms of section 15 of the Act rather than section 16 is not supported by a
consideration of the objective facts. On the contrary, the applications which were
approved by the fourth respondent during January 2009 were clearly approved in
terms of section 16 .
[68] The crux of the issue is whether the respondents erred in not considering
those applications which were the subject of the 2019 appeal proceedings in terms
of section 16 rather than section 15 of the Act . Mr Robertson asserts that his appeal
would have succeeded but for this error. That assertion is supported by the attitude
9 i.e. those which pertain to the .22 and the three shotguns .
adopted by the fourth respondent in 2009 and by the documents contained in the
ROD in respect of the appeal from which this matter arises . Ms Shandu also stated
in one of her affidavits that Mr Robertson would probably be granted the licenses if
he were to apply afresh in terms of section 16 of the Act – i.e. it is not suggested that
he lacks any of the necessary qualifications . This issue is accordingly a crisp and
narrow one. I will return to it.
[69] Apart from assertin g that that it would not have been permissible in law for the
licenses to have been is sued to Mr Robertson in terms of section 16 of the Act , Ms
Shandu’s affidavit creates the impression that the fourth respondent ’s board
members actually gave consideration to that issue when the 2019 appeal served
before them . The documents contained in the ROD are however not supportive of
that assertion . In particular, the summary of proceedings does not contain any
reference to section 16 . That fact is also supportive of the proposition that the fourth
respondent did not actually have Mr Robertson’s file before it at the time of making
the decision to dismiss the appeal ; the only alternative being that the fourth
respondent’s members did not take the tro uble to actually consider the grounds of
appeal – which specially referred to section 16 . The fact that the fourth respondent
did not seek any clarification from Mr Robertson or afford him an opportunity to
expla in why he considered himself to be entitled to more than the maximum number
of licenses permitted by section 15 of the Act (i.e. as had occurred in relation to his
first appeal) is also destructive of the proposition that the fourth respondent ’s
members actually applied their mind s to th e issue. As I have mentioned, Mr
Robertson also points to a letter which, according to him, shows that the fourth
respondent did not in fact have his file before it and hence did not actually have sight
of his applications , which allegation was not properly answered to by Ms Shandu .
These things being so, I am driven to conclude that the respondents did not in fact
give any thought to whether Mr Robertson qualified in terms of Section 16 of the Act
and that the averments made in the answering papers on this issue are simply an
attempt to justify the ir conduct ex post facto . On that basis the main application
should, but for one further consideration, have succeeded.
[70] As to the remaining issue , and as I have already pointed out, the respondents
say that the renewal applications simply could not have been approved in terms of
section 16 of the Act because t hose applications did not relate to licenses which had
been issued in terms of that section – i.e. that a renewal in terms of section 16 was,
in the circumstances, not possible as a matter of law. Mr Robertson takes issue with
the correctness of that proposition. His case is that it makes no difference whether
the original licenses were issued in terms of section 15 or section 16 of the Act . If Ms
Shandu is right, then it follows that the main application was correctly refused. The
opposite is also true. The answer to the question lies in the proper interpretation of
the Act.
[71] The process of construing a statute is not a mechanistic one. On the contrary,
it is a subtle one, and one which entails the proper application of legal principles . In
Fidelity10, the Constitutional Court put is as follows :
“The interpretation of the Act must be guided by the following principles:
(a) Words in a statute must be given their ordinary grammatical meaning
unless to do so would result in an absurdity.
(b) This general principle is subject to three interrelated riders: a statute must
be interpre ted purposively; the relevant provision must be properly
contextualised; and the statute must be construed consistently with the
Constitution, meaning in such a way as to preserve its constitutional validity.
(c) Various propositions flow from this general principle and its riders. Among
others, in the case of ambiguity, a meaning that frustrates the apparent
purpose of the statute or leads to results which are not business -like or
sensible results should not be preferred where an interpretation which avoid s
these unfortunate consequences is reasonably possible. The qualification
"reasonably possible" is a reminder that Judges must guard against the
temptation to substitute what they regard as reasonable, sensible or
business -like for the words actually used.
(d) If reasonably possible, a statute should be interpreted so as to avoid a
lacuna (gap) in the legislative scheme. ” [footnotes omitted]
10 Above n 4 at para 34.
[72] The respondents’ case on this issue relies on the contention that “renew” can
only ever bear the meaning of making new that which is already in existence. They
also contend that because Mr Robertson held what I will refer to as “section 15
licenses ”, those licenses were incapable of bein g renewed in terms of section 16 of
the Ac t. That proposition, in turn rests , on the proposition that there is a difference
between the rights conferred by licenses issued in terms of those two sections – i.e.
as there is between licenses issued in respect of certain classes of motor vehicles
and vessels. Indeed, counsel who appeared for the respondents contended that was
indeed the case.
[73] The latter contention is fundamenta lly flawed . The fitness or competency of a
person to be in possession and to use a given category of firearm is governed by
those provisions of the Act and the Regulations which pertain to the issuing of
competency certificate s, and possession of an appropriate or “relevant” competency
certificate is prerequisite in respect of an application for a license to possess a
particular firearm . The license per se has no bearing on the holder’s fitness or
competency – it is simply a license to possess a specific firearm .
[74] Sections 15 and 16 of the Act are moreover identical both as to the categories
in respect of which licenses may be issued in terms of them and in respect of the
uses to which such firearms may be put. The only mater ial difference between the
two sections is that persons who enjoy “dedicated” status are not subject to any
limitation as to the number of licenses which they may hold. The rights and
consequences in respect of every individual license are however exactly the same
regardless of the section in terms of which it was issued. The endorsement of a
license with a reference to either section is accordingly superfluous and of no
practical consequence . It is, by the same token, also not appropriate to speak of a
“section 15 license” or a “section 16 license”. The sections regulate the power of the
administrator to issue licenses; they have nothing to do with the licenses per se . On
the contrary, each license is simply a license to posses s the particular firearm to
which it relates.
[75] The suggestion that “rene w” can only ever bear one meaning and that
“renewal” bears a corresponding limited meaning is also not correct. According to
various online r esources which I consulted , those word have several meanings.11
Examples given include the renewal of a subscription to a magazine and the renewal
of a lease. It is so well established as to be trite that a renewal of that kind results in
a new contract - usually but not invariably on the same terms and conditions tha t
applied to the previous one . A renewal differs from an extension effected by way of
an amendment of the term governing the period of the contra ct. Another definition
given is to replace something old with something new.12 That said, and as pointed
out above, statutes do not fall to be interpreted simply with regard to dictionary
definitions. On the contrary, the interpretation of a statute is a nuanced exercise and
one which requires that proper consideration be given to co ntext – for context is
frequently decisive.
[76] The word s “renew” and “renewal” are used somewhat loosely in the Act. Thus,
whereas schedule 1 provides for the “renewal ” of licenses which had been issued
under the Old Act, the truth is that the schedule served to creat e a transitional
regime in terms of which licenses that had been issued under the Old Act remained
valid for a specified period and holders of such licenses were afforded an
opportunity to apply for new licenses under the Act. Licenses which had been issued
under the Old Act could be replaced by licenses issue d in terms of the Act, but they
could never have been renewed in the proper s ense. That was simply impossible as
the Old Act had been repealed . It is also so that the approval of a renewal application
made in terms of section 24 of the Act results in the issue of a new license which
replaces the old one.
[77] As I have already indicated , the respondent’s position is that a person in Mr
Robertson’s position must apply for new licenses de novo . Although the respondents
did not specifically make this assertion, the implication is that such persons would
have to surr ender their existing licenses (thereby rendering their possession of the
firearm/s in question unlawful ), as it is not possible for anyone to hold more than one
license in respect of a single firearm. This interpretation is anything but businesslike.
11 Oxford learners Dictionaries https://www.oxfordlearnersdictionaries.com;
https://www.top.legal/en/knowledge/contract -renewal -vs-contract -extension
12 Cambridge English dictionary “renew” .
It would serve to burden the authorities charged with the administration of the Act
even further. It would also serve to place owners in a very invidious position – for
they would not be able to say with any confidence that the new applications would in
fact be approved. In this context it is to be borne in mind that some firearms are
extremely valuable. This much is common knowledge. The law maker clearly could
not have intend ed such an absurd result.
[78] While it is so that the Act does not expressly provide for “conversions ” this is,
for reasons already canvassed, unnecessary. To the extent that this may be
considered to be a lacuna in the Act (although I do not think it does), it is for this
court to interpret the Act so as to avoid such lacuna .13
[79] A renewal application falls to be assessed with regard to the motivation given
and the facts known to the decision maker at the time when the application is
assessed. At the risk of unduly labouring the point, an applicant’s entitlement to the
benefit conferred by s ection 16 depends simply on hi m or her having “dedicated”
status at that time. If he or she has that status , then the administrator may exercise
the power given in terms of section 16 of the Act . The opposite is also true – i.e. if an
applicant who holds more than the maximum number of licenses permitted by
section 15 of the Act no longer enjoys “dedicated” status when seeking to renew
those licenses then licenses may be issued under Sections 13 and 15 (depending on
the motivation) and the applicant will be bound by the limitation imposed by section
15(3). All things being equal, an applicant in that position would be entitled to obtain
a maximum of four new licenses . That he or she previously enjoyed “dedicated”
status and was, as consequence, entitled to hold more than four licenses or that the
licenses were originally issued in terms of Section 16 is irrelevant in this context .
These things being so, my view is that the respondents must fail on this issue.
[80] As to the separation of powers, the issue does not arise in casu . On the
contrary, the respondents’ reason for the refusal of the licenses in issue (both in the
first instance and on appeal) was an extremely narrow one. It is not as though it was
ever suggested that there were other reasons that stood in the way of Mr Roberston
13 Above n 4 at para 34 .
being granted such licenses. If that had been the case , then this court would have
been confined to setting aside the impugned decisions aside and ordering the first
respondent to reconsider the applications. Th ose are, however , not the facts. On the
contrary, this Court is entitled to set the decision of the fourth respondent aside and
to substitute its own order in place thereof.
[81] In the circumstances , I would grant the applic ation and dismiss the
counterapplication, both with costs , liability for payment of costs to be joint and
several as against the respondents; counsel’s costs to be taxable according to scale
C.
________________________
G S Myburgh
Acting Judge of the High Court Pretoria
Kubushi , J (Mali J dissenting):
[82] Having read the minority judgment, I, with respect, disagree with the
conclusion it reaches and the reasoning underpinning it.
[83] The crux in this appeal, for me, is simply whether a licence issued in terms of
a particular section of the Firearms Control Act (“the Act”)14 can be renewed in terms
of a different section of that Act. Essentially, the question is whether a licence issued
in terms of section 15 of the Act can be renewed in terms of section 16 of the Act, so
that a section 15 licence is renewed as a section 16 licence, for this is what the
appellant seeks to achieve in this matter.
[84] The relief sought by the appellant in the review application was for an order,
among st others,
14 Act 60 of 2000.
(a) reviewing and setting aside the decision of the third and fourth
respondents to refuse the renewal application for the applicant’s [the
appellant] firearms licences for a Sako .233 Bolt Action Rifle serial no.
1[...], Sako .308 Bolt Action Rifle series no. 3[...] and Lee Enfield Bolt
Action Rifle serial no. G[...] .
(b) that such licences be issued in terms of section 16 of the Firearms
Control Act.
(c) reviewing and setting aside the original decision of the first respondent
to issue any firearms to the applicant [ appellant] in terms of section 16
of the Act and for an order ordering the first respondent to issue section
16 licences for all the firearms for the applicant [ appellant] other than
the applicant’s [ appellant] self -defence Luger, serial number W[...] .
[85] When dismissing the review application, the court below made a finding,
amongst others, that
"[15] The applicant's prayer to have the respondent's alleged decision to
have his above mentioned firearm licences reviewed and set aside and iss ued
in terms of Section 16 of the Firearms Control Act is premature and not yet
ripe. This is because he never made an application for firearm licences in
terms of section 16 of the Firearms Control Act and thus the application falls to
be dismissed with c osts."
[86] I am in alignment with this finding of the court below, for I hold a view that the
licences, in this instance, which were issued in terms of section 15 of the Act could
not be renewed in terms of section 16 of the Act. There is no section or r egulation
that allows for such renewal.
[87] Previously, firearm licences were issued in terms of the Arms and Ammunition
Act (“the Old Act”).15 Transitional Arrangements were made for holders of firearm
licences issued in terms of the Old Act to transition their firearm licences to the Act in
order to become compliant therewith. To transition firearm licences issued under the
15 Act 75 of 1969.
Old Act to the Act, holders of licences were in terms of item 11 of the Transitional
Arrangements, given an opportunity to apply for renewal of corresponding licences
under the Act, which meant that a holder of an occasional hunting licence, like the
appellant who was a holde r of seven occasional hunting licences, could apply for the
renewal of his occasional hunting licences to corresponding licences, that is,
occasional hunting licences in terms of the Act. In accordance with the Act, an
occasional hunting licence could only be issued in terms of section 15 thereof.
[88] At that time of transition, in 2005, the appellant was a holder of seven
occasional hunting licences and one self -defence licence. He applied for the renewal
of the seven occasional hunting licences in terms of section 15 of the Act and the
self-defence licence in terms of section 13 of the Act.
[89] Having applied for the renewal of the said licences, the Designated Firearms
Officer, correctly so in my view, issued only four licences, three of the licences were
issued in terms of section 15 of the Act (the occasional hunting licences) whilst one
(the self -defence licence) was issued in terms of section 13 of the Act. This was so
because firstly only four licences could be issued in terms of section 15 of the Act.
Secondly, section 15(3)(b) of the Act provides that if a person holds a licence issued
in terms of section 13 of the Act,16 he or she may only hold three licences issued in
terms of section 15 of the Act. The appellant had been issued a licence in t erms of
section 13 of the Act, thus qualified for only three licences in terms of section 15 of
the Act.
[90] After the first appeal, in 2018, the appellant was issued four more occasional
hunting licences which made them seven in all. This, in terms of section 15 of the
Act, is not allowed because only four licences could be issued in terms of this
section. In my opinion, the only licences that were lawfully issued in terms of section
15 of the Act were three, because the fourth licence was issued in terms of section
13 of the Act. The other four licences would have ordinarily lapsed ipso facto upon
not being lawfully renewed and issued. However, sinc e a decision was made for their
issue, the said licences remained extant. It is trite that an administrative decision
16 Section 13 of the Act provides for the possession of a firearm for self -defence.
remains valid until set aside by a court of competent jurisdiction.17 Thus, this
principle gave life to the four licences until on their e xpiry after ten years because
they were never legally revoked.
[91] The appellant, however, avers that in 2006 he attempted to renew eight of his
licences , with seven to be issued in terms of section 16 of the Act in his capacity as a
dedicated hunter and one to be issued in terms of section 13 of the Act. He was
however erroneously granted three licences in terms of section 15 and one in terms
of section 13. He avers further that after his successful internal administrative appeal
in 2009, at which he had indicated that he should have been granted licences under
section 16 of the Act, he was issued with three further licences in terms of section 15
of the Act. All in all he was the holder of seven licences issued in terms of section 15
of the Act which was not legally allowed by the provisions of that section.
[92] Being in possession of the seven occasional hunting licences and whilst being
aware that it was not legally allowable to possess them, the appellant took no steps
to try to rectify the illegalit y. He kept them until the arrival of the time for their renewal
which was ten years later. My view is that once the licences were issued in terms of
section 15 of the Act, and there being no steps taken to rectify them, the appellant
continued to hold such licences in terms of section 15 of the Act until their expiry.
[93] When the second renewal was applied for in 2018, it is common cause that
the seven licences that the appellant held were all occasional hunting licences
issued in terms of section 15 of the Act. In my view the Designated Firearms Officer
acted correctly by issuing only four licences. That is what section 15(3)(a) of the Act
authorises – subject to paragraphs (b), (c) and (d), no person may hold more than
four licences issued in terms of t his section. The Appeal Board was also correct to
dismiss the appeal.
[94] The appellant alleges that when he so applied in 2018, he wanted to renew
his seven licences and to rectify the administrative errors and irregularities in his
licences, that is, t hat the licences were issued in terms of section 15 of the Act
17 MEC for Health, Eastern Cape and Another v Kirkland Investments (Pty) Ltd [2014] ZACC 6.
instead of section 16 of the Act. This allegation, in my opinion, was correctly
answered by the court below when it held that the prayer by the appellant to have his
seven firearms licences iss ued in terms of section 16 of the Act was premature and
not yet ripe, because the appellant never made an application for firearm licences in
terms of section 16 of the Act.
[95] The reasoning of the minority judgment in a way concedes that the Act does
not provide for the renewal of a licence issued under a particular section of the Act to
be renewed and issued under a different section of the Act. Hence, that judgment
affords an interpretation to sections 15 and 16 of the Act which culminates in what is
referred to as a lacuna for ‘conversions’. With respect, I do not agree with that
interpretation. It is trite that words cannot be read into a statute by implication unless
the imp lication is necessary in the sense that, without them, effect cannot be given to
the statute as it stands and to the ostensible legislative intent.18
[96] The Constitutional Court in Fidelity Security Services (Pty) Ltd v Minister of
Police and Others ,19 when dealing with the interpretation of the provisions of the Act
stated that a statute should be interpreted, as far as reasonably possible, to avoid
creating a lacuna in the legislative scheme. In my view if it was the intention of the
legislature to pro vide for ‘conversions’ of licences it would have specifically provided
for same in the Act, but it did not which shows that it was never its intention to do so.
By reading a lacuna in the Act is to read into the Act what was never intended by the
legislature. One of the purposive interpretation s of the Act itself is to prevent the
proliferation of illegally possessed firearms and by providing for the removal of such
firearms from society and improve control of legally possessed firearms. Therefore,
the interpretation accorded to sections 15 and 16 of the Act in the minority judgment
fails to align with the purposive interpretation of the Act and the Endumeni principles
as to the prop er interpretation of legislation.20
18 See Electoral Commission v Mini ster of Cooperative Governance and Traditional Affairs 2022 (5)
BCLR 571 (CC) at para 187 and the authorities referred to in fn 72 of that case.
19 [2021] ZASCA 51 at para 55.
20 Natal Joint Municipal Pension Fund v Endumeni Municipality (“Endumeni”) 2012 (4) SA 593 (SCA)
at para 18.
[97] Fundamentally, the reading of section 24(1) of the Act which deals with the
renewal of licences, indicates that a licence that is to be renewed must be an
existing licence. It is common course that the appellant wa s a holder of seven
occasional hunting licences. Those were the existing licences at the time of
migrating from the Old Act to the Act. This was also the position in 2018 when the
appellant applied to renew his seven licences. The appellant was never a hol der of
dedicated hunting licences, he never applied for them, as such, such licences were
never in existence and could, therefore, not be renewed. The interpretation provided
in the minority judgment to the word ‘renewal’ or ‘renew’ that it means that licenses
which had been issued under the Old Act could be replaced by licenses issued in
terms of the Act, but they could never have been renewed in the proper sense and
that the approval of a renewal application made in terms of section 24 of the Act
results in the issue of a new license which replaces the old one , is nonsensical. The
interpretation does not align with the intention of the legislature in that the Act and
Regulations provide for two separate processes. Sections 13 to 20 of the Act
provides for the application of licences with the Regulations providing for Form
SAPS271 which must be completed when applying for a new licence. Section 24 of
the Act, on the other hand, provides for the renewal of licences with the Regulations
providing for Form SAPS518(a) to be completed when applying for the renewal of a
licence.
[98] The Court in Fidelity Security Services (Pty) Ltd v Minister of Police and
Others ,21 when dealing with the crisp question of whether a gun owner which allows
its licence to possess a firearm to lapse without timeously seeking a renewal of the
licence can make a new application to possess the firearm, or has the owner
irretrievably lost it s right to ever regain lawful possession of the firearm , had this to
say about the difference between the application of a new licence and a renewal of
an existing licence –
“[44] . . . Applying for a licence, and applying to renew an existing licence,
are different processes, governed by different provisions of the Act. The Act
largely leaves the procedures for administrative applications to the
21 [2021] ZASCA 51 at para 44.
Regulations promulgated by the Minister in terms of section 145(1). It would
not be unreasonable to expect tha t the process for applying for the renewal of
a currently valid licence would be less exacting than the process for applying
for a licence when no valid licence exists, otherwise there would be no
purpose in treating them separately in the Act. This is ind eed what one sees in
the Regulations and prescribed forms: an application for a licence is more
detailed and more expensive than an application for a renewal.”
[99] The appellant alleges in his founding affidavit to the review application that he
submitte d seven renewal applications during the transition phase. He furthermore
alleges that “ I have always intended to apply in terms of Section 16 of the Firearms
Control Act for my licences to be issued in terms thereof and to be renewed in terms
thereof” . Yet not once did he ever apply in terms of section 16 of the Act to be issued
with licences for dedicated hunting. During the transitional period, 2005, the
appellant applied for the renewal of the seven licences in terms of section 15 of the
Act which was followed in 2018 by another renewal applications of the seven
licences, this time in terms of section 16 of the Act. This cannot be considered as
applications for the issuance of firearm licences in terms of section 16 of the Act.
[100] I am al so doubtful as to whether the submission of the competency certificate
as a dedicated hunter, after the application form and required supporting
documentation were already submitted, could be taken into account when the
application is considered.
[101] It is not in dispute that the appellant held seven occasional hunting licences
which were issued in terms of section 15 of the Act. It appears that he wanted to
convert them to dedicated hunting licences issued in terms of section 16 of the Act.
At the time of lodgement of the applications for renewal in 2005, he did not possess
a competency certificate for dedicated hunting. It seems like he was advised by the
Designated Firearms Officer at the office of lodgement that if he provided the
competency certific ate for dedicated hunting his occasional hunting licences will be
converted to dedicated hunting licences. He apparently obtained the said
competency certificate in February 2006 and provided same to the Designated
Firearms Officer. This was after the appl ications for renewal had already been
lodged, as such, the competency certificate was lodged much later and did not
accompany the applications at the time it was lodged.
[102] Section 24 which deals with the renewal of firearm licences state that
“(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.
(2) The application must be— (a) accompanied by such information a s
may be prescribed; and (b) delivered to the Designated Firearms Officer
responsible for the area in which the applicant ordinarily resides or in which
the applicant’s business is, as the case may be.22
(3) No application for the renewal of a licence may be granted unless the
applicant shows that he or she has continued to comply with the requirements
for the licence in terms of this Act.” (Own emphasis)
[103] Section 24(2) of the Act, uses the word ‘must’ and denotes that it is
peremptory. The subsectio n calls for the submission of the application together with
such information as may be prescribed to be delivered to the Designated Firearms
Officer responsible for the area in which the applicant ordinarily resides or in which
the applicant’s business is situated. On the proper interpretation of the subsection, it
means that the application cannot be delivered to the Designated Firearms Officer
without the accompanying prescribed information. Neither subsection 24(2) of the
Act nor the Act itself as well as the Regulations,23 allows for the filing of required
prescribed information at a later date. In my opinion, the information prescribed
MUST be provided at the time of lodgement of the application. A competency
certificate is one of the information (document) that must accompany the application
at the time of lodgement with the Designated Firearms Officer. It follows therefore
that it is peremptory that same accompany the application at the time of lodgement.
22 See Regulation 13(2).
23 Regulation 13(2).
[104] Furthermore, section 2 4(3) of the Act calls upon the applicant to show that he
or she has continued to comply with the requirements for the licence in terms of this
Act. The requirements of the licence that the applicant would have to show that he
was compliant with are of the licence of which the applicant was a holder
immediately prior to applying for its renewal. The competency certificate for
dedicated hunting would not satisfy the requirements for the licences sought to be
renewed (the occasional hunting licences) in terms of the Act. Conversely, the
requirements of an occasional hunting licence would not satisfy the requirements
sought for a dedicated hunting licence.
[105] It is my view that for the appellant to have to be issued licences for dedicated
hunting, as he seeks , he should have specifically applied for them. That would have
meant that he should have lodged fresh applications to be issued licences for
dedicated hunting. If the competency certificate for dedicated hunting is still valid that
is the avenue that the appellant should follow.
[106] The minority judgment seems to convey a message that the application of
section 16 licences de novo would render the appellant’s seven firearms illegal and
that he will have no recourse. That judgment also conveys that such an application
will serve to further burden the authorities charged with the administrati on of the Act.
These reasons of the minority judgment are stated without providing any and/or
background facts as to what will cause the administrative burden. As to t he illegality
of the firearms the answer lies in Fidelity Security Services (Pty) Ltd v Minister of
Police and Others ,24 where it was stated that even though it is illegal for a gun owner
to possess a firearm without a licence, the gun owner does not lose ownership of the
firearm thereof by the mere fact that he does not have possession licence.
Counter Application
[107] For me the counter application was not necessary because all the seven
occasional hunting licences have expired by effluxion of time. Out of the seven
occasional hunting licences issued, only three were validly issued in 2008. Even
24 [2021] ZASCA 51.
though four of the licences were not validly issued, their validity was extended
because they were not revoked and would only expire by effluxion of time. Sectio n
27 of the Act which regulates the periods of validity of licenses provides that licenses
issued in terms of sections 15 of the Act are valid for ten years. The section further
provides that a license lapses ipso facto upon the expiry of the stipulated pe riod,
subject only to the provisions of section 24(4) of the Act.25 As such, at the time the
counter application was launched, which was some eleven years later, the four
licences had ipso facto lapsed and there was no need for the respondents to apply
for their reviewal and to have them set aside. This the appellant con cedes.
[108] The three licences that were validly issued in terms of section 15 would
remain valid until the applications for their renewal were decided. In accordance with
section 24(4) of the Act ”If an application for the renewal of a licence has been
lodged within the period provided for in subsection (1) , the licence remains valid until
the application is dec ided.”
[109] Based on my reasoning above, there being no application to renew the
licences in terms of section 15 of the Act, the said licences expired by effluxion of
time. Remember that the appellant’s evidence is that he applied to renew the
licences i n terms of section 16 of the Act. I have already reached a conclusion that
the licences issued in terms of section 15 of the Act could not be renewed in terms of
section 16 thereof. As such, their renewal applications were never lodged, and the
licences ha ve expired. There was, therefore, no need for the respondents to have
applied for their revocation.
[110] Order
(a) The ap peal is dismissed with costs on scale C.
25 In terms of section 24 (4) of the Act ”If an application for the renewal of a licence has been lodged
within the period provided for in subsection ( 1) the licence remains valid until the application is
decided.”
____________________
E M Kubushi
Judge of the High Court
Pretoria
I concur with the dissenting judgment
_______________________
N Mali
Judge of the High Court
Pretoria
Appearances:
For the app ellant : M J Snyman SC
Instructed by : M J Hood & Associates
For the first to fourth respondents: M N Kgare
Instructed by: The State Attorney
Date of Hearing: 26 July 2024
Date of Judgment: 10 April 2025