SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 26396/22
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED. NO
DATE: 28/07/2025
SIGNATURE N V KHUMALO J
In the matter between:
BRENDAN GILLESPIE APPLICANT
and
THE CHAIRPERSON: FIREARMS APPEAL BOARD 1ST RESPONDENT
THE REGISTRAR OF FIREARMS 2ND RESPONDENT
This judgment was handed down electronically by circulation to the parties’
representatives by email. The date and time of hand -down is deemed to be 28 July
2025
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Khumalo N V J
Introduction
[1] In this Application, the Applicant Mr Brenda n Gillespie, is seeking an order in
the following terms:
1. Reviewing and setting aside the decision of the 1 st Respondent taken on
30 December 2021 , refusing the Applicant’ s appeal against the Registrar
of Firearms ’ (National Commissioner of Polices) refusal to grant the
Applicant a licence.
2. Reviewing and setting aside the decision of the 2 nd Respondent on 15
September 2021, refusing an application by the Applicant to p ossess a
firearm.
3. Applicant’s application for a temporary permit under s 21 of the Firearms
Control Act in respect of Bereta SL3 with serial number: S[...] is hereby
granted.
4. The 2nd Respondent is ordered to furnish the Applicant with a license card
in respect of the firearm in prayer 3 above within fifteen (15) court days of
the granting of this order.
Parties
[2] The Applicant, is a United Kingdom citizen who carries a UK passport with a
critical skill visa which allows him to work and reside in the country , issued on 23
March 2018. Although he is married to a South African citizen and has been residing
in the country since 20 July 2011 , he has never applied for a South African
citizenship.
[3] The 1st Respondent is the Chairman of the Firearms Appeal Board (referred
to as “the Appeal Board)” and the 2nd Respondent is the Registrar of Firearms (who
is the National Commissioner of Registrar of Firearms (“the Registrar”). Both the
Registrar and the Appeal Board hold office under the Firearms Control Act 2000 (Act
No. 60 of 2000) (referred to hereafter only as “the Act”) and cited nomine officio. The
Registrar is empowered by the Act to regulate and issue licences for the possession
and use of firearms and the Appeal Board to deal with appeals against decisions of
the Registrar.
[4] The Applicant brings his application for review under the Promotions of
Access to Justice Act 3 of 2000 (PAJA) and or the common law. Under PAJA on the
basis that the impugned decisions refusing his application for a firearm licence were
materially influenced by an error of fact and law s 6 (2) (d) . Also, in that, irrelevant
considerations were taken into account or relevant considerations were not
considered s 6 (2) (e) (iii) . L astly, as per heads of argument in that the Appeal
Board’s refusal amounts to arbitrary action and procedurally unfair in that it failed to
provide adequate reasons for its decision s 6 (2) (f).
Background facts
[5] On 29 December 2020, the Applicant, applied to the Registrar for a temporary
authorisation for a possession of a firearm for sporting purposes under s 16 of the
Act. The Registrar refused the Application. The Applicant was notified of the refusal
on 15 September 2021. The reason for the refusal was stated to be:
(1) “lack of motivation/ not convinced of stated need.”
Comprehensive decision: “it is clear from your motivation that you need
this firearm for permanent use with a temporary authorisation. You
failed to provide a temporary nature for which this firearm is required.”
[6] The Applicant appealed to the Appeal Board on 14 October 2021 and his
appeal was refused in January 2022. The reasons for the refusal were specified in
appeal was refused in January 2022. The reasons for the refusal were specified in
the Notice as follows:
”The mere fact that you were issued with a temporary authorisation
more than once served as an indication that the authorisation was no
longer for a temporary purpose.
You seem to be issued with a firearm licence or rather own a firearm
under the disguise of a temporary authorisation of which that was not
the purpose intended by the legislature through this section. The
provisions of the Act cannot be circumvented by issuing of temporary
authorisations.”
You have in anyway not indicated to the Bo ard whether you have a
pending permanen t residence application upon acquisition you would
then apply for a licence in terms of the provisions of this Act.”
[7] The Applicant alleges in his Founding Affidavit that he indicated in his
application that “he is essentially applying to obtain a temporary possession permit
for a 12 Gauge over/under sporting shotgun for dedicated clay target sport shooting
purposes.” He has a temporary competency to use, handle and possess a shotgun
and does not possess any other firearms or licenses to possess firearms. He is a full
member and a dedicated sport shooter with SA Wing Shooters Associations since
2017. The Association endorsed the particular firearm to be fit for clay target sport
shooting. The shotgun is suitable for his sporting purposes . He complies with the
safe keeping requirements of the Act in that he owns a gun safe installed at his
home in the prescribed manner. He has no criminal record and has never been
declared unfit to possess a firearm in terms of the Firearms Control Act.1
[8] He further alleges that the proposed period of six months in his application for
a permit is of a temporary nature and done with a clear understanding that once the
temporary permit expires he will have to apply for a new permit. He has, in strict
compliance with s 16 and s 21 respectively, stated sufficient grounds for the
conferring of the s 21 temporary authorisation. He indicated that his Application to
conferring of the s 21 temporary authorisation. He indicated that his Application to
the Registrar or a copy thereof is annexed to his Affidavit as Annexure “A3.”
1 Par 17 of the Founding Affidavit
[9] He submitted that he therefore had complied with the provisions of the Act in
applying for a sporting temporary authorisation for a firearm , as well as appealing
against the refusal for the renewal of his permit/licence.
[10] The Applicant submit that the Registrar’s refusal stands to be overturned , it
being patently incorrect and or irrational and or unlawful and therefore reviewable in
terms of PAJA or common law as indicated.
[11] Annexure A3 is an SAPS 523 Form Applicant completed which is headed an
Acknowledgement of Receipt of an SAPS Firearm Documentation. The only
information stated therein is the address of the Applicant, the type of firearm, that it is
a s 21 Application for a Beretta SL 3 on a Shotgun, the serial number, the Applicant’s
name, Passport Number and the name of the Designated Firearms Officer. The
Application with the alleged information is not attached. The Respondents are
however not disputing the information that is alleged by the Applicant to be in the
application.
On the Appeal Board’s decision
[12] The Applicant argues that the refusal of his appeal by the Appeal Board has
an adverse effect on his rights and a direct external legal effect as it impacts directly
and immediately on his right to possess a firearm. This is in addition to his reliance
on 6 (2) (d), that the decision was materially influenced by an error of law or fact and
6 (2) (e) (iii) that relevant considerations were not conside red. Furthermore, he
alleges that the process was procedurally unfair as material considerations were not
taken into accou nt. Lastly on s 6 (2) (e) (vi) that the refusal amounts to arbitrary
action in that the Appeal Board failed to provide adequate reasons for its decision.
[13] In as far as the common law is concerned, he argues that neither the Appeal
Board nor the Registrar properly brought their mind to bear on consideration of what
they were asked to consider. He regards it striking that the decision of the Appeal
they were asked to consider. He regards it striking that the decision of the Appeal
Board is significantly and materially discrepant from the basis upon which the
Registrar refused his licence.
[14] In his appeal the Applicant has stated the following as ‘ justification for a
temporary application”2:
“1. I am a United Kingdom citizen… with a critical skill visa issued by
the Republic of South Africa allowing me to work and reside in South
Africa.
2. I am not a per manent resident of South Africa therefore I cannot
apply for a self- defence firearms licence under the terms of s 15 of the
Firearms Control Act 2000 (“the Act”).
3. Therefore, in terms of the Act I must apply for a s 21
Temporary Firearms Licence as I h ave a right under the Act to
request a Firearms Licence, in this case for self- defence.
4. There is no other alternative under the Act apart from s 21 for
me to apply for a Firearms Licence being an individual having a valid
visa but not having permanent residents’ status.
5. Having taken legal advise, I have been advised: this is the
correct procedure to follow using s 21 of the Act, and further (ii) there is
no alternative to a s 21 Application available to me.
6. I have been in South Arica for approximately 10 years and have
been previously issued with two s 21 licenses dated 11 April 2018 and
6 January 2017 both for short guns used for sports shootings (copies
attached). The guns I have previously owned have been correctly and
legally transferred to new owners as CFR will be able to check on the
Central Registry.
2 See caseline on 001-35 Annexure A5
7. Consequently, my own personal h istory of gun ownership in
South Africa has been completely in accordance with the Act in all
respects.
8. Given that s 21 licences previously been issued to myself in the
same circumstances (being issued to a non South African permanent
resident) and under which I have complied in all respects with the Act,
then I am merely requesting a s 21 licence, pending my permanent
residence application to continue with the legal gun use in South Africa
which I have previously demonstrated.
9. I reside in the Rep ublic of South Africa at 2 […] C[...], M[...]
Road, Sunninghill, Johannesburg.
10. I am married to Caroline Gillespie a South African citizen with ID
No: ….. and we share a home together at the above residential
address and wish to continue to resid e in South Africa for some
considerable time, abiding by all the laws, gun ownership and others of
the country.
11. I solely wish to be able to protect my wife from harm in the form
of unlawful criminal attacks directed against me at our home or in
public. If the CFR consider that this Application is not appropriate,
please advise which other Section of the Act is appropriate and what
should be used or what other route I must take to be compliant with the
Act. (my emphasis).
[15] He submi ts that h is permanent residence was not a consideration that the
Registrar took into account nor was it part of the reason s he appealed against.
Neither was the question of his permanent residence application nor his intention to
apply for permanent residenc e a factor that was communicated to him as a new
requirement, so he could add that to his application in an appeal. He argued that the
requirement simply adds additional factors to the matter that w ere not a factor before
the Licensing Board. The Appeal Board seems to have used a new ground to refuse
the appeal without asking him to provide documents to deal with same before
making the decision, which is procedurally and materially improper.
[16] The Appeal Board could not decide the appeal on a different basis to which
he had appealed the decision of the Registrar. This is directly contrary to the legal
position required by the Common law and PAJA legislation. The Appeal did not
consider the only reason for the Registrar to have refused the license application.
The ground that they refused the appeal was simply materially incorrect in any event.
[17] He furthermore argued that the Appeal Board’s decision to re fuse him the
permit because “he intended to own a firearm under the guises (pretext) for which it
was not intended” and that “ the provisions of the act cannot be circumvented by
issuing temporary authorisation” are simply an unsubstantiated opinion, that has
absolutely no factual /evidential or reasonable basis. It is based on speculative
imaginings bad both in law and procedure and in breach of the Act. In relation to the
fact that he had previously obtained a temporary permit and thus he should be
refused another temporary permit , he argues that , once again that is simply based
speculatively on the unsupported opinion of the decision maker , without a shred of
evidence to support that conclusion therefore bad in law and factually incorrect.
[18] He on that basis argues that the Appeals Boards failed to consider this matter
in a proper manner with reference to factual evidence instead of speculation. It had
considered the appeal on a different basis entirely influenced by an error of law or
fact and failed to consider relevant considerations.
[19] He in that regard refers to an order of the above honourable court to indicate
that reasons or motivation not a requirement under s 16, for a licence for dedicated
sports status. He argues that the Registrar’ s refusal was bad in law and the grounds
upon which he lodged the appeal were accordingly proper in law.
upon which he lodged the appeal were accordingly proper in law.
[20] Indeed the Applicant’ s Application was his third application for the temporary
authorisation in terms of s 21.
Respondents’ Response
[21] The Respondents, in their Answering Affidavit deposed to by the Chairman of
the Appeal Board, dispute that there is any merit in the appeal and submit that same
stands to be dismissed.
[22] According to the Respondent, the Applicant’s complaint that the Respondents
refused him the temporary permit which he was granted twice before, particularly
that the Act does not set out time limits for the s 21 authorisation, interpreting the
provisions of the Firearms Control Act wrongly, is factually incorrect and bad in law.
As even though the application is brought in terms of s 21, it should be read together
with the following sections which are also relevant, that is s 15 and s 16 and the
Regulations, referring to Regulations 23 and 24 of the Firearms Control Act and
Regulations 2004.
[23] The Respondents points out that s 21 advocates for the issuing of an
authorisation on a temporary basis to non -citizens, and not for a continuous issuing
of a temporary authorisation e ven after the period for which the temporary
authorisation was issued has lapsed or has expired by operation of the law. The
section makes no provision for a renewal or issuing of several temporary
authorisation to one individual. They therefore argue that the continued application
for a temporary authorisation notwithstanding having been issued previously is
therefore not in accordance with the spirit and what was intended by the legislation.
Further that s hould the Applicant be permitted to keep on applying for a temporary
authorisation after the lapse or expiry of the period it has been granted , it would
defeat the whole purpose of s 21.
[24] As per the spirit of the Act the Registrar could issue the temporary
authorisation to non-citizen for such a period and on such conditions as the Registrar
may determine which is what the Registrar had done. The Applicant was issued with
a temporary authorisation for a period of a year . However, should the Registrar’s
a temporary authorisation for a period of a year . However, should the Registrar’s
finding be that the Applicant ‘s intention is to apply for a firearm licence through s 21
of the Act, he or she will decide to decline the application for a tempo rary
authorisation. According to the Respondents from the Applicant’s application, it is
clear that he applied for the temporary authorisation under s 21 solely because he
did not qualify for a firearm licence under s 13, however seeking to enjoy the s 1 3
benefit despite not being qualified to do so.
[25] In terms of the Act no licence can be issued to a person who is not in
possession of the relevant competency certificate 3. Therefore, the Applicant’s
continued possession of a firearm without a competency certificate and without being
a permanent citizen is i n contravention of the Act, in particular Chapter 5 4 of the Act
as well as s 15 and 16. The Applicant’s conduct is just an abuse of the purpose of s
21 and to circumvent s 15 and 16 of the Act of which he does not qualify.
[26] They dispute the Applicant’s allegation that his right is being violated arguing
that a firearm licence or ownership is not a fundamental right under the bill of rights,
but a privilege regulated by law.
[27] They further point out that the Applicant did not have to approach the court
for a declaratory order in prayer 3 especially that seeks to contradict s 21 by
requiring a licence that does not expire, as the Act is very clear on what is required in
terms of that section. T he temporary authorisation may only be issued for such a
period as may be determined by the Regist rar. The Applicant by applying for the
temporary certificate for the third time, seeks to own or possess the temporary
authorisation permit permanently, which is not what was intended by the legislature.
[28] The fact that authorisation was, notwithstanding, issued in the past , does not
mean t hat it must be issued again and illogical for the Applicant to expect the
Respondent to allow him to continue to commit a wrongful act simply because it was
condoned in the past. The Respondents entitled to refuse an Application or an
appeal where a case has not been made out for the authorisation of the temporary
certificate to be issued. Each case to be treated on its own merits. The Respondents
therefore argued that the Respondents’ decision to refuse a temporary authorisation
therefore argued that the Respondents’ decision to refuse a temporary authorisation
3 Section 6 (2)
4 Chapter 5, Section 9 (2) (b) reads – Where a person has not previously obtained a competency
certificate, a competency certificate may only be issued to such a person if she or he is a South
African citizen or a holder of a permanent South African residence permit.
is in accordance with the spirit and purpose of s 21 of the Act. Therefore, Applicant’s
submission totally flawed, and his interpretation of the Act cannot be correct.
[29] The Applicant fails to appreciate that the refusal of the temporary
authorisation is not only based on his failure to indicate if he has a pending
residence application or not, but it is also based on his repeated application for a
temporary authorisation despite having been issued one previously. By so doing it
means he wanted to be issued or own a firearm licence under the disguise of a
temporary authorisation or alternatively the temporary authorisation was no longer of
a temporary purpose.
[30] In addition the Respondents point out that the Applicant’s appeal to the
Appeal Board was fatally defective as the Registrar’s decision he sort to appeal
against was a refusal of a temporary authorisation for the purpose of sporting
activities in terms of s 16 read with s 21. Whilst the appeal was for a firearm licence
for the purpose of self -defence which is in terms of s 13 . The Appeal Board was
therefore called upon to adjudicate the appeal based on incorrect grounds which
were not considered by the Registrar. Also, even though the grounds upon which the
appeal was brought were correct, the Applicant did not qualify for a firearm licence in
terms of s 135, that is for self -defence as he is a non-citizen.
[31] The Respondents therefore submit that the Applicant’ s application for appeal
is fatally defective and should not be considered as an appeal of the decision made
by the Registrar. Applicant put before the Appeal Board an application for a firearm
licence in terms of s 13 read with s 21 of the Act. The Appeal Board did not decide
the Appeal on a different basis but based on the information that was presented
5 Section 13. Licence to possess firearm for self-defence
(1) A firearm in respect of which a licence may be issued in terms of this section is any —
(a) shotgun which is not fully or semi-automatic; or
(b) handgun which is not fully automatic.
(2) The Registrar may issue a licence under this section to any natural person who —
(a) needs a firearm for self-defence; and
(b) cannot reasonably satisfy that need by means other than the possession of a
firearm.
(3) No person may hold more than one licence issued in terms of this section.
(4) A firearm in respect of which a licence has been issued in terms of this secti on may be
used where it is safe to use the firearm and for a lawful purpose.
before it. As a result the Appeal Board’s refusal of the Applicants application was fair
and reasonable.
[32] The Respondents argue that whilst the previous authorisation must have been
issued after the Applications were found to be in order and in compliance with the
Act at the time, by applying for a temporary authorisation continuously or repeatedly,
the Applicant was defeating the whole pur pose and intention of s 21 . The process
followed by the Respondents was therefore procedurally fair.
[33] The Respondents consequently argue that the decision to refuse the
temporary authorisation is in line with the spirit and purpose of s 21 and that t he
Applicant’s submission and its interpretation of s 21 is totally flawed and incorrect.
The order attached to its Founding Affidavit is also without any reference to the
citation of the authority.
Outlook on issue to be decided
[34] The question of whether the refusal of Applicant’s application by the Registrar
was justified must be viewed from the context in which the application was made, the
requirements to be complied with as per the applicable statutory framework and the
powers bestowed on or discretion to be exercised by the decision maker. The
enquiry is therefore whether or not there was statutory conformity when the decision
was made, the purpose sought to be achieved by the exercise of public power within
the authority of the functionary.(if in compliance with PAJA and or the common law)
Legal Framework
[35] The ownership and use of firearms in South Africa is regulated by the Act
setting out the requirements for licensing, competency testing, safe storage,
restrictions on usage and the number and types of firearms that can be owned. The
Act therefore provides for an overarching control o f firearms and enforces
accountability to owners to curb any illegal and reckless use to avoid any mishap
such gun use can cause. This is done however within the context and in recognition
such gun use can cause. This is done however within the context and in recognition
of the right to life and the right to security of a person that includes the right to be
free from all forms of violence from either public or private sources and of
fundamentality of adequate protection of such rights to the well -being, social and
economic development of every person.6
[36] The section that is foremost relevant is s 3 of the Act - it compels a person to
hold a licence to possess a firearm and reads as follows:
“[n]o person may possess a firearm unless he or she holds a licence,
permit or authorisation issued in terms of this Act for that firearm”.
[37] Section 6 deals in general terms, with the Registrar ’s overseeing powers to
grant the competency certificates, licences, permits and authorisations. This includes
the power to grant a possession licence. In accordance with s 6 a licence to possess
a firearm may not be issued to a person who is not a holder of a competency
certificate. The section reads:
“(1) The Registrar may issue any competency certificate, licence,
permit or authorisation contemplated in this Act—
(a) on the receipt of an application contemplated in the
prescribed form, including a full set of fingerprints of the
applicant; and
(b) if the applicant complies with the applicable requirements of
Act.
(2) Subject to section 7, no licence may be issued to a person who is
not in possession of the relevant competency certificate.
(3) Every application for a competency certificate, licence, permit or
authorisation must be accompanied by such information a s may be
prescribed.”
[38] Additionally in terms of Chapter 5, s 9 (2) (b) of the Act , a competency
certificate can only be issued to a South African citizen or a holder of a permanent
South African residence permit. The section reads:
6 The Act’s preamble
(2) Where a perso n has not previously obtained a competency
certificate, a competency certificate may only be issued to such a
person if he or she-
(a) …
(b) is a South African citizen or she or he is a holder of a
permanent South African residence permit;
[39] Evidently, only a South African citizen or a holder of a South African resident
permit can be a holder of a licence to possess a firearm. Section 21 makes provision
for the issuing by the Registrar of a temporary authorisation for possession of
firearms on application by any person including non - citizens, subject to conditions
prescribed and imposed and period determined by the Registrar. Failure to com ply
with conditions may result in the withdrawal of the authorisation The key word being
temporary, the use thereof is to be as permitted by the Registrar and endorsed on
the authorisation. The relevant provisions that is s 21 (1), (2) and (5) read:
Temporary authorization to possess firearm
(1) The Registrar may issue a temporary authorisation to possess a
firearm to any person, including a non-citizen—
(a) for such period as the Registrar may determine; and
(b) subject to such conditions as may be prescribed and
imposed by the Registrar.
[2] (a) The Registrar may at any time withdraw an authorisation if
any condition contemplated in subsection (1) (b) is not complied
with.
[S 21(2) substituted by s 16 of Act 28 of 2006 with effect
from date to be proclaimed.]
(3) The Office of the Central Firearms Register must keep a record
containing such information as may be prescribed in respect of all
authorisations issued in terms of this section.
(4) The Registrar must submit an annual report to the Minister
containing su ch information as may be prescribed in respect of all
authorisations issued in terms of this section.
(5) A firearm in respect of which an authorisation has been issued
in terms of this section may be used only—
(a) if the Registrar by endorsement on th e authorisation ,
permits such use; and
(b) in accordance with such conditions as may be prescribed
and imposed by the Registrar.
[40] Section 16 provides for the issuing of a license to possess specific firearms
for dedicated hunting and dedicated sports shooting purpose. The section reads:
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;
(d) barrel, frame or receiver of a handgun, rifle or shotgun
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 appl ication is accompanied by a sworn statement or solemn
declaration from the chairperson of an accredited hunting association
or sports -shooting organisation, or someone delegated in writing by
him or her, stating that the applicant is a registered member o f 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 safe to use the firearm and for a
lawful purpose.
(4) Every accredited hunting association and sports -shooting
organization must—
(a) keep a register which contains such information as may be
prescribed; and
(b) submit an annual report to the Registrar which contains
such information as may be prescribed.
[41] Furthermore, the general conditions applicable for temporary authorisation to
possess a firearm under s 21 are also expressly outlined in Chapter 4 Regulations
237, 24 8, 25 of the Firearms Control Regulations , 2004 as pointed out by the
Respondents and s 27.
[42] In terms of Regulation 23 (3) (d), a non-citizen who applies for a temporary
authorisation to possess a firearm as contemplated in s 21 of the Act must, in
addition to the relevant information required by Regulation 13, submit, inter alia, a full
written mot ivation undersigned by the applicant in support of the application . In
accordance with Regulation 24 (2) the temporary authorisation will only be valid for
the firearm, period and specific use specified in the temporary authorisation. In terms
of Regulatio n 24 (5), the Registrar may determine and specify in the temporary
7 Regulation 23 (3) A non-citizen who applies for a temporary authorisation to possess a firearm as
contemplated in section 21 of the Act must, in addition to the relevant information required by
regulation 13, submit-
(a) a certified copy of an official identity document of the applicant or a certified copy of a
valid temporary residence permit as the case may be, or that section of a valid passport
issued to the applicant on which his or her identity particulars and the official issuing
particulars of the passport are reflected;
(b)an official certificate from the country of citizenship of the applicant confirming that the
applicant has no criminal record: Provided that the country issues such certificate.
(c) two written testimonials by South African citizens confirming that the ap plicant is a fit
and proper person to possess a firearm;
(d) a full written motivation undersigned by the applicant in support of the
application; and
(e) a full set of fingerprints of the applicant certified by a duly constituted official authority
8 Regulation 24 provides that:
Conditions applicable to a temporary authorisation to possess a firearm-
(1) The holder of a temporary authorisation to possess a firearm issued in terms of section
21 of the Act must keep the temporary authorisation wherever the firearm is located and
must at the request of a police official produce the temporary authorisation and the
firearm to a police official for inspection.
(2) The temporary authorisation will only be valid for the firearm and period and
specific use specified in the temporary authorisation.
(3) The holder of the temporary authorization may not possess more than 200 cartridges per
calibre of firearm stipulat ed in the temporary authorisation unless, for the purpose of sports -
shooting, the Registrar has on good cause shown, specified a larger quantity in the temporary
authorisation.
(4) The Registrar may require that a person to whom a temporary authorisation will be issued,
must provide documentary proof of having successfully undergone the prescribed training and
testing contemplated in section 9 (q) and (r) of the Act prior to the issuing of the temporary
authorisation or in the case of a hunter or sports person who is a non -citizen, an affidavit
stating his or her training and experience in the handling of firearms.
authorisation a specific place where the firearm may be used. There is therefore no
scope for the statutory deviation.
[43] In addition , the Registrar may in terms of Regulation 24 (4) further require
prior to the issue of a temporary authorization, documentary proof of Applicant’s
successful undergoing of the prescribed training and testi ng contemplated in section
9 (q) and (r) which is the knowledge of the Act and prescribed training and practical
tests regarding the safe and efficient handling of the firearms . In the case of a non-
citizen hunter or sports person, an affidavit stating his or her training and experience
in the handling of firearms period of validity of the temporary authorization.
[44] Regulation 259, (1) provides for the keeping of the records by the Office of the
Central Firearms Register (OCFR) with regard to the temporary authorization to
possess a firearm , that consists of the details of the Applicant, the person who
completed the application, the firearm , ammunition concerned, the premises and
safe storage where the firearm and ammunition are to be kept .
[45] The cconditions in respect of use of firearms possessed in terms of s 21 of
the Act, are also stipulated in Regulation 2710 restricting such use by providing that it
should only be used , where it is safe to be used and for a lawful purpose . Further
that it is to be used in accordance with the stated purpose of use as reflected in the
application that was submitted in respect of the permit, and which must be endorsed
on the permit.
9 Regulation 25 provides: The Office of the Central Firearms Register must with regard to a temporary
authorization to possess a firearm keep a record of the—
(a) name of the police station where the application was submitted;
(b) details of the person who completed the application;
(c) reason if the application was refused;
(d) details of the applicant and the firearms concerned;
(d) details of the applicant and the firearms concerned;
(e) details of the premises and the safe storage facilities where the firearms or ammunition, or
both will be kept in safe custody; and
10Conditions in respect of use of firearms possessed in terms of s 21 of the Act,
27. A firearm in respect of which an authorization in terms of section 21 of the Act has been
issued may only be used-
(a) where it is safe to be used and for a lawful purpose; and
(b) in accordance with the stated purpose of use as reflected in the application that
was submitted in respect of the permit and which must be endorsed on the permit .
Analysis
[46] The Applicant ’s Application before the Registrar was for a s 21 temporary
authorisation for possession of a firearm. As a non -citizen he could not apply for a
licence to possess a firearm however q ualified to apply for the temporary
authorisation which he had indicated to be for a dedicated clay target sport shooting
purposes under s 16. The temporary authorisation was therefore to be granted if the
application was found to be compliant with the Act, subject to such conditions as the
Registrar may prescribe.
[47] The Applicant had continuously applied for the one -year temporary
authorisation for the same use or purpose since 2017. It is common cause that this is
the Applicant’s third application for a temporary authorisation which was said to be
under the same circumstances. On the occasion of the temporary authorisation
being granted for the third time, the Applicant would have hel d such authorisation
since 2017 continuously for consecutive 1-year periods. The Registrar’s response
was that, he was not convinced by the Applicant’s stated need . In other words that
the authorisation was required temporary or regarded to be still temporary and for
the use mentioned. The temporary nature of the authorisation as intended by the Act
was indeed distorted by the continuous applications , taking into consideration that
Applicant has already been granted the temporary authorisation twice before, for a
period of 1 year in each instant. The maximum period for which it can be granted .is
one year. This goes against the spirit of the Act and it is not what was intended by s
21. As a result, the Registrar’s outlook and c onclusion that notwithstanding the
Applicant stating the purpose for possession of the firearm to be temporary, that
being tor sport purposes, it was needed for permanent use with a temporary
authorisation, was accordingly justifiable considering the facts.
[48] The Applicant cannot refute the Registrar’s conclusion as he has also
confirmed that he intended on the expiry of the period of the third temporary
authorisation, to again apply for the fourth temporary authorisation. He argues that
he is entitled to do so in terms of the Act. It is an illogical interpretation, which does
not seem to differentiate from a perpetual authorisation and one that is meant to
apply momentarily or briefly. The Applicant seem set not to follow the norm. He in
that same vein is now openly seeking in this review a declaratory order for an
indefinite temporary authorisation. Another situation which is not provided for in the
applicable statute.
[49] In terms of Regulation 24 the Registrar is required, inter alia, to authorise,
determine and record accurately the period and specific use for which the s 21
permit is authorised. The Registrar and the Court would therefore be acting contrary
to the provision s of the Act, inter alia Regulation 24 , if being aware of the non -
compliance, that the real intended use or purpose for which the temporary
authorisation for the firearm is sought and period are indeterminable, to nevertheless
grant the permit. Moreover, a firearm in respect of which a temporary authorization in
terms of s 21 of the Act has been issued , may only be used in accordance with the
stated purpose of use as reflected in the application that was submitted in respect of
the permit and which must be endorsed on the authorization. The refus al of the
authorisation was therefore an appropriate and a rational decision given the
circumstances.
[50] The absence of a motivation in the application was indeed unsatisfactory as
pointed out by the Registrar, especially since the continued temporary authorisation
applied for was ostensibly not in line with the alleged need. The Applicant as a non-
citizen who applies for a temporary authorisation to possess a firearm as
contemplated in section 21 of the Act , is compelled, in addition to the relevant
information required by regulation 13, to submit a full written motivation in support of
the application.11 The Registrar’s reason for refusal was in keeping with the just and
proper exercise of his statutory powers.
[51] The allegation that the Registrar ignored the fact that the Applicant was
previously granted the permit under the same circumstances is also without merit.
The Registrar’s response as mentioned previously is evidence that he did consider
The Registrar’s response as mentioned previously is evidence that he did consider
that Applicant was twice previously granted the temporary authorisation for the same
alleged intended use , hence he was dissatisfied with Applicant’s application that his
11 Regulation 23 at Supra
possession of the firearm could still be regarded as temporary and for the purpose
as envisaged by the Act.
[52] The Applicant seems to have indeed misinterpreted the provision of s 21 in
relation to the purpose of the temporary authorisation to mean that he can apply for
temporary authorisation for possession of firearms continuously, notwithstanding that
it may result in a permanent license to possess a firearm, for which he does not
qualify. It is contrary to the applicable prescripts that indicate that the temporary
authorisation would be valid for the period and specific use specified in the
temporary authorization.
[53] The Applicant in addition disputes that motivation in support of the temporary
authorisation application is required. However, motivation is clearly a precondition as
per provisions of Regulation 23 (3) .12 The Applicant’s application was to be
considered subject to compliance w ith the statutory requirements that includes
Regulation 23 (3) (d). The Regulation stipulates that a non-citizen who applies for a
temporary authorisation to possess a firearm as contemplated in s 21 of the Act
must, in addition to the relevant informatio n submit a full written motivation
undersigned by the applicant in support of the application . The Registrar correctly
queried and found the Applicant’s application to lack the required motivation. The
Application was inadequate and factually disingenuous.
On the Appeal Board’s decision
12 Regulation 23 (3) a non -citizen who applies for a temporary authorisation to possess a firearm as
contemplated in section 21 of the Act must, in addition to the relevant information required by
regulation 13, submit —
(a) a certified copy of an official identity document of the applicant or a certified copy of a valid
temporary residence permit as the case may be, or that section of a valid passport issued to
the applicant on which his or her identity particulars and the official issuing particulars of th e
passport are reflected;
passport are reflected;
(b) an official certificate from the country of citizenship of the applicant confirming that the
applicant has no criminal record: Provided that the country issues such certificate;
(c) two written testimonials by South African citizens confirming that the applicant is a fit and
proper person to possess a firearm;
(d) a full written motivation undersigned by the applicant in support of the application;
and
(e) a full set of fingerprints of the applicant certified by a duly constituted official authority
[54] On appealing the Registrar’s decision, the Applicant filed his motivation for the
temporary authorisation, setting out the genuine intended use of the firearm to be for
self-defence. He stated that h e has a right under the Act to apply for a licence for
self- defence and that his application f or the temporary authorisation for possession
of a firearm for self -defence is pending his permanent residence application . This
was an obvious deviation to what was stated in his application to the Registrar. Such
a declaration confirms that the Registrar was correct in his conclusion that
Applicant’s application was for a permanent purpose although stated to be for a
temporary permit. This was a deliberate misuse of s 21’s temporary authorisation for
possession of a firearm.
[55] The Applicant explained explicitly in motivation for his appeal that the reason
for his application for a temporary authorisation permit was because as a non- citizen
he did not qualify to apply for a licen ce for self-defence.13 Due to his wish to protect
the concern he had about unlawful criminal attacks , he in the meantime appl ied for
the s 21 temporary permit for self -defence, pending his permanent residenc e
application. The Applicant was well aware that he was using s 21 authorisation to
obtain a s 13 licence , contravening the Act, thus deliberately mentioned a pending
permanent residence application . He also misrepresented the purpose for seeking
the authorisation for his firearm’s intended use in his application contravening
Regulation 27 as well. In quoting the contents of his motivation for his appeal, he left
out in paragraph 11 the following sentence, which reads:
“I solely wish to be able to protect my wife from harm in the form of
unlawful criminal attacks directed against me at our home or in public. (my
emphasis).
[56] The Applicant, furthermore, appealed to the Appeal Board indicating that, he
was in fact seeking an authorisation for possession of a firearm for self-defence for
was in fact seeking an authorisation for possession of a firearm for self-defence for
protection purposes. Notwithstanding his application to the Registrar being for a
temporary authorisation to possess a firearm for sport shooting purposes in terms of
s 16. He therefore in his application did not only disguise the nature of the
13 Annexure A5 of the Founding Affidavit on paragraph 2, 3, 4, 5 and 11
authorisation alleging it to be temporary in ter ms of s 21 but also its purpose
misusing s 16. The Appeal Board’s decision on this basis cannot be faulted.
[57] Regulation 27 clearly sets out the conditions applicable in respect of the use
of a firearm possessed in terms of s 21 which restricts the use thereof to where it is
safe to be used and only for a lawful purpose , in accordance with the stated purpose
of use as reflected in the application that was submitted in respect of the permit ,
which use must be endorsed on the permit. 14 The Registrar was therefore correct
that the Applicant was in actu al act applying for the temporary authorisation for
permanent purpose use, for which he did not qualify. A incorrect purpose of use
would have been reflected on the authorisation. His appeal was therefore wrong
fallible refutable
[58] The Applicant’s criticism that the basis upon which his application was refused
by the Registrar is discrepant from the decision of the Appeal Board is also
misguided. It is t he Applicant’s appeal to the Board that was discrepant and indeed
fatal to the relief sought from the Board as argued by the Respondents. He deviated
from the contents of the original application to the Registrar , basing his appeal on
different grounds and permit, therefore adding new facts that were not mentioned in
his application to the Registrar. Conversely the Appeal Board was very prudent in its
reasoning, taking into consideration the factual aspects covered in the altered
motivation, for finality sake.15
[59] In terms of Regulation 24 (2) a temporary authorisation will only be valid for
the firearm, period and specific use specified in the temporary authorisation. Both the
Appeal Board and the Registrar properly brought their mind s to bear on the facts
they were required to consider in a s 21 application by a non resident , that is, “the
nature of the permit sought, its specific use and period thereof.” The decision in both
nature of the permit sought, its specific use and period thereof.” The decision in both
instances was taken appropriately, having had regard to all the relevant facts which
showed that the s 21 temporary authorisation was not the one intended but was
being misused. The Applicant actually confirmed on appeal what he had alleged to
14 See footnote 10, supra
15
be an unsubstantiated conclusion by the Registrar, that the true purpose or the
specific use of the firearm was disguised, not being the one stated in the application.
The Applicant was aware that as a non-citizen he does not qualify for the firearm use
he intended obtaining through a temporary authorisation. His appeal was therefore ill
advised.
Permanent resident application
[60] The issue of a permanent residence application was indeed neither a
consideration or a factor that was taken into account by the Registrar, a s the
Applicant did not mention it in his application , nor was it part of the reasons the
Applicant a ppealed against. Neither was it alleged to have been a factor to the
Registrar to be communicated to be a new requirement to be considered. The
Applicant just added on his own volition on appeal, indicated that the temporary
authorisation for the firearm he was applying for was for self-defence. He as a non -
citizen did not qualify for such a licence or use, unless he had permanent residence.
He therefore to bolster his appeal added that his application was pending the
permanent residence application. The Appeal B oard appropriately considered it
being relevant since he was a non-resident now mentioning a licence under s 13 for
self- defence, which he did not qualify for unless he has permanent residence . He
deviated from his application, which obligated him to have furnished further
clarification on his status. The Appeal Board’s uphold the Registrar’s decision was
reasonable given the facts before it.
[61] Furthermore, the Applicant is ill-advised in his argument that the Board
wrongly based its decision that Applicant should be refused another temporary
permit simply on an opinion that Applicant had previously obtained a temporary
permit, alleging that to be factually incorrect and bad in law. It is not an opinion but a
fact that the Applicant ha s confirmed that this was the Applicant’s third consecutive
fact that the Applicant ha s confirmed that this was the Applicant’s third consecutive
application. He in one instance mentions an intention to again apply at the expiry of
this third one distorting the temporary aspect and context in which the permit is
granted. As pointed out by t he Respondents, the use intended by the Applicant was
of a permanen t nature. This became apparent in his motivation on appeal to the
Board. His interpretation of the applicable statute that it permits him to repeatedly
apply for the temporary authorisation after expiration of each period obviously
incorrect. It defeats the whole purpose of s 21 and against the spirit of s 21 to grant
authorisation temporarily, meaning for the time being, momentarily or provisionally.16
[62] In Minister of Police and Others v Fidelity Security Services (Pty) Limited ,17
the interpretation of statutes as outlined in various authorities were enunciated to 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 interpreted 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
businesslike or sensible results should not be preferred where an
interpretation which avoids these unfortunate consequences is
reasonably possible. The qualific ation “reasonably possible” is a
reminder that Judges must guard against the temptation to substitute
what they regard as reasonable, sensible or businesslike 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. 18
16 Thesaurus meaning of temporarily
17 [2022] ZACC 16 at para
18 In respect of points (a) to (c), reference made to: Road Traffic Management Corporation v Waymark
Infotech (Pty) Ltd [2019] ZACC 12; 2019 (5) SA 29 (CC); 2019 (6) BCLR 749 (CC) (Waymark) at
paras 30-2 and Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8)
paras 30-2 and Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8)
BCLR 869 (CC) at para 28. See also Endumeni above n 15 at para 18, a passage frequently cit ed
with approval in this Court: see, e.g, Airports Company South Africa v Big Five Duty Free (Pty) Ltd
[2018] ZACC 33; 2019 (5) SA 1 (CC); 2019 (2) BCLR 165 (CC) at para 29 MAJIEDT J and ROGERS
AJ 17
[63] The Applicant is obviously choosing an interpre tation that frustrates the
apparent purpose of the statute, with results which are not businesslike or sensible
but self-serving and insincere when by an ordinary interpretation of the provisions of
s 21 and the ancillary sections , these insensible consequences can be avoided . It
extends or prolongs the period of temporary authorisation to permanent, contrary to
the objectives of s 21. The continuous or extended temporary authoris ation and
possession of a firearm fo r self-defence without a competency certificate as sought
by the Applicant could never have been intended by the Act. The Applicant’s attempt
to interpret it to a meaning that amounts to abuse of process was correctly
countered.
[64] The Applicant was furthermore obligated in his application to be candid about
his possession of his firearm, its intended use or purpose and period of temporary
authorisation for a proper consideration of his application. T he granting of his
application without him being candid and coherent in his application, would result in
a mockery of the system and miscarriage of j ustice. I t is a crime to falsify such
information in anyway. The capturing of the information or data by the Registrar as
required by the Act would have been inaccurate, frustrating the following up and
enforcement on compliance. As it turned out that Applicant’s application was indeed
intended for possession of a firearm licence in terms of s 13 under the disguise of a
temporary authorisation , circumventing the need to comply with the crucial
requirements for such possession. The Registrar was obliged to consider and or
prevent the violation or abuse of the process.
[65] Furthermore, the Applicant’s allegations that his fundamental right to own a
[65] Furthermore, the Applicant’s allegations that his fundamental right to own a
firearm licence is violated by the refusal has no merit . H e failed to meet the
requirements as prescribed by the Act and does not qualify. Ownership of a firearm
is nevertheless not a fundamental right under the Bill of rights in our Constitution.19 It
is a privilege regulated by law, under the Firearms Control Act and Regulations. The
purpose of the Act is to: “ (a) enhance the constitutional rights to life and bodily
integrity; (b) prevent the proliferation of illegally possessed firearms and, by providing
19 Constitution of the Republic of South Africa, 1996
for the removal of those firearms from society and improving control over legally
possessed firearms, prevent crime involving the use of firearms.”20
[66] The right to own a firearm is therefore not guaranteed. The Act requires
compliance with all the necessary requirements set out under its provisions prior to
issuing a license to possess a firearm. , Applicant has a right to lawfully apply for
possession of a firearm upon exercise of which he had a right to be treated fairly by
the administrative functionary in the consideration of his application, following due
process.21 The right is as a result granted under limited circumstances under
provisions of the Act.
[67] The procedure followed was indeed lawful, fair and proper, aimed at
protecting the integrity of the process and Act applicable, with all the relevant factual
and legal considerations properly considered by each of the functionaries in both
processes. Their conclusions accord with or followed a proper consideration of the
relevant facts and the applicable law , that has resulted in a rational decision. The
procedure followed complies with the legal position required in terms of the common
law and PAJA.
[68] In Potgieter v Howie NO and Others22 the following was stated:
“A rationality review is based on an absence of rationality between the
information before the decision maker and which he relied on to form
the basis of its decision. It does not refer to the rational connection
between reasons given and the decisions but rather the information
upon which the decision is based.”
[68] In Chairman of the State Tender Board v Digital Voice Processing (Pty) Ltd;
Chairman of the State Tender Board v Sneller Digital (Pty) Ltd & Others,23 the court
20 Minister of Safety and Security v South African Hunters and Game Conservation Association [2018]
ZACC 14
21 Section 33 (1) of the Constitution of the Republic of South Africa, 108 of 1996, gives anyone a right
to administrative action that is procedurally fair
to administrative action that is procedurally fair
22 [2013] ZAGPPHC 313; 2014 (3) SA 336 (GP), para 20
23 [2011] ZASCA 202; 2012 (2) SA 16 (SCA) para 40.
also emphasised that in order to be rational, a decision must be based on accurate
findings of fact and a correct application of the law. Whilst in Pharmaceutical
Manufacturers24 this Court stated that:
“Rationality in this sense is a minimum threshold requirement
applicable to the exercise of all public power by members of the
executive and other functionaries. Action that fails to pass this
threshold is inconsistent with the requirements of our Constitution, and
therefore unlawful.” The setting of this standard does not mean that the
courts can or should substitute their opinions as to what is appropriate,
for the opinions of those in whom the power has been vested. As long
as the purpose sought to be achieve d by the exercise of public power
is within the authority of the functionary, and as long as the
functionary’s decision, viewed objectively , is rational, a court cannot
interfere with the decision simply because it disagrees with it, or
considers that the power was exercised inappropriately”
[69] Our courts have further confirmed that the exercise of public power entails
rational decisions related to the purpose for which the power was given . In
Pharmaceutical 25 the court held that:
“It is a requirement of the rule of law that the exercise of public power
by the executive and other functionaries should not be arbitrary.
Decisions must be rationally related to the purpose for which the power
was given, otherwise they are arbitrary and inconsi stent in effect with
this requirement. It follows that in order to pass constitutional scrutiny
the exercise of public power by the executive and other functionaries
must, at least comply with this requirement. If it does not, it falls short
of the standards demanded by our Constitution for such action.
[86] The question whether a decision is rationally related to the
purpose for which the power was given calls for an objective enquiry.
purpose for which the power was given calls for an objective enquiry.
24 Pharmaceutical Manufacturers Association of SA and Others; In Re: Ex Parte Application of
President of the RSA and Others 2000] ZACC 1 (25 February 2000) above n 61 at para 90
25 At par 85 & 86
Otherwise a decision that, viewed objectively, is in fact irrational, might
pass muster simply because the person who took it and mistakenly in
good faith believed it to be rational. Such a conclusion would place
form above substance and undermine an important constitutional
principle.
[70] In addition it is important to point out that, it is not for this court at the time of
review to re -determine the policy applied and or processes followed by the decision
maker as it was confirmed in In Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and Others, the court also cautioned on imposing
on the terrain of admnistrative agencies stating the following:
“In treating the decisions of adminis trative agencies with the
appropriate respect, a court is recognising the proper role of the
executive within the Constitution. In doing so a court should be
careful not to attribute to itself superior wisdom in relation to
matters entrusted to other branc hes of government. A court
should thus give due weight to findings of fact and policy
decisions made by those with special expertise and experience
in the field. The extent to which a court should give weight to
these considerations will depend upon the ch aracter of the
decision itself, as well as on the identity of the decision-maker. A
decision that requires an equilibrium to be struck between a
range of competing interests or considerations and which is to
be taken by a person or institution with specific expertise in that
area must be shown respect by the courts. Often a power will
identify a goal to be achieved, but will not dictate which route
should be followed to achieve that goal. In such circumstances a
court should pay due respect to the route se lected by the
decision-maker. This does not mean however that where the
decision is one which will not reasonably result in the
achievement of the goal, or which is not reasonably supported
on the facts or not reasonable in the light of the reasons given
on the facts or not reasonable in the light of the reasons given
for it, a court may not review that decision. A court should not
rubber-stamp an unreasonable decision simply because of the
complexity of the decision or the identity of the decision-maker.26
[71] Finally in the Pharmaceuticals Manufacturers case27 supra, it was pointed out
that rationality as a minimum requirement for the exercise of public power,
“does not mean that the courts can or should substitute their
opinions as to what is appropriate, for the opinions of those in
whom the power has been v ested. As long as the purpose
sought to be achieved by the exercise of public power is within
the authority of the functionary, and as long as the functionary’s
decision, viewed objectively, is rational, a court cannot interfere
with the decision simply because it disagrees with it or considers
that the power was exercised inappropriately.”
[72] In casu, the Applicant has failed to show that the Respondents were irrational
in refusing his Application for a temporary authorisation cum s 13 licence to possess
a firearm or that the decisions were indeed materially influenced by an error of fact or
law as he alleged. In my view the Registrar exercised his powers within the realm of
the applicable law and functi ons entrusted to him by the Act , having taken the
relevant factors and law into consideration.
[73] In pondering on the error of fact, that is misunderstanding or ignorance of an
established and relevant fact,’ in Pepcor Retirement Fund and Another v Financial
Services Board and Another (198/2002) [2003] ZASCA 56; [2003] 3 All SA 21 (SCA);
2003 (6) SA 38 (SCA) (30 May 2003) where the Registrar wa s misled on a fact
material to his decision which a ffected the proper performance of the functions
entrusted to him, it was pointed out that the Registrar was allowed to bring a (self)
review against his decision. At [39] reference was made to the English law in
Halsbury’s Laws of England 4th ed (2001 reissue) vol 1 (1) para 76 p 164 stating the
following:
following:
26 (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004)
27 at paras 84-5
‘Errors of fact . In exercising their functions, public bodies evaluate
evidence and reach conclusions of fact. The court will not ordinarily
interfere with the evaluation of evidence or conclusions of fact reached
by a public body properly directing itself in law. The ex ercise of
statutory powers on the basis of a mistaken view of the relevant facts
will, however, be quashed where there was no evidence available to
the decision maker on which, properly directing himself as to the law,
he could reasonably have formed that view. The court may also
intervene where a body has reached a decision which is based on a
material misunderstanding or error of fact.’ (Emphasis supplied.)
[74] A further comment in Pepcor on the error of fact was as follows:
[48] Recognition of material mistake of fact as a potential ground of
review obviously has its dangers. It should not be permitted to be
misused in such a way as to blur, far less eliminate, the fundamental
distinction in our law between two distinct forms o f relief: appeal and
review. For example, where both the power to determine what facts are
relevant to the making of a decision, and the power to determine
whether or not they exist, has been entrusted to a particular functionary
(be it a person or a body of persons), it would not be possible to review
and set aside its decision merely because the reviewing court
considers that the functionary was mistaken either in its assessment of
what facts were relevant, or in concluding that the facts exist. If it wer e,
there would be no point in preserving the time -honoured and socially
necessary separate and distinct forms of relief which the remedies of
appeal and review provide. Of course, these limitations upon a
reviewing court’s power do not extend to what have come to be known
as jurisdictional facts and, in my view, it will continue to be both
necessary and desirable to maintain that particular category of fact. I
am therefore, with respect, unable to share the opinion of Professors
am therefore, with respect, unable to share the opinion of Professors
Wade and Forsyth (quoted in para [39] above) that one can safely
‘consign much of the old law about jurisdictional fact, etc, to well -
deserved oblivion’ if by that statement is meant that the distinction
between appeal and review will be eliminated. In the present appeal
none of the considerations to which I have referred in this paragraph of
the judgment arise. The Registrar was entitled to act on the assumption
that the correct facts had been placed before him.
[75] Neither could the Applicant prove the issue also argued vigorously that the
Appeal Board’s refusal amounts to an arbitrary action and procedurally unfair .
Contrariwise, the procedure followed by both the Registrar and the Appeal Board
was, given the circumstances, l awful and fair. The reasons provid ed by the Appeal
Boad for its decision are adequate having properly considered Applicant’s appeal on
all the facts that he raised before the Board. There is no case made for the court’s
interference with the decisions.
[76] The Applicant has also failed to make a case for the declaratory order
granting him an uninterrupted temporary authorisation permit for possession of the
stated firearm and without specifying the use intended as that would be in serious
contravention of the Act as already illustrated.
[77] Under the circumstances the following order is made:
1. The Application is dismissed with costs
_____________________
N V Khumalo
Judge of the High Court
Gauteng Division, Pretoria
For the Applicant: LA Marks
Instructed by: Larry Marks Attorneys
Ref: Mr L Marks Labus-0619
larry@lam.co.za
For the Respondents: MG Senyatsi
State Attorney, Pretoria
advsenyatsi@gmail.com
Instructed by: State Attorney, Pretoria
Ref:1997/2022/Z17/NK
WMotsepe@justice.gov.za
Enquiries:WM Motsepe