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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
LEGALLY ARMED SOUTH AFRICA (PTY) LTD
and
MINISTER OF POLICE
THE MEMBER OF THE EXECUTIVE COUCIL
FOR POLICE, ROADS AND TRANSPORT:
FREE STATE PROVINCE
DIVISIONAL COMMISSIONER:
VISIBLE POLICING AND OPERATIONS
NATIONAL COMMISSIONER OF POLICE
Not reportable
Case no: 1866/2025
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
Neutral citation: Legally Armed South Africa v Minister of Police and Others (1866/2025)
[2026] ZAFSHC 276 (4 May 2026)
Coram: NAIDOO J
Heard: 4 September 2025
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email and released to SAFLII. The date and time for hand-down is
deemed to be 11 h00 on 4 May 2026.
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Summary: Firearms Control Act 60 of 2000 - failure by police to comply with
provisions of the Act in respect of firearms, belonging to deceased estates, reported
lost or stolen - hampering finalization of deceased estates - order compelling police
to comply.
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ORDER
1 The applicant is directed to prepare a schedule of all matters, current and
historical, over which this court has jurisdiction, that require a police case docket to be
opened in the Free State Province. Such schedule is to contain all relevant details
required by the Firearms Control Act 60 of 2000 (the Act), in order that the relevant police
station may open a case docket, register the firearms on the Enhanced Firearm
Registration System and investigate the matter. The applicant shall thereafter file the
reporting bundles at the relevant police stations, in accordance with the requirements of
the Act;
2 The respondents are ordered to:
2.1 forthwith take all necessary steps to process and attend to all reports filed by the
applicant in relation to lost and stolen firearms in the Free State Province, such steps to
include the registering of police case dockets for lost or stolen firearms from deceased
estates, in terms of sections 147, 120 and 121 of the Act, read with Regulations 86 and
103 to the Act;
2.2 furnish, to the applicant, the Crime Administration System (CAS) numbers for all
lost or stolen firearms reported by the applicant to the South African Police Service
(SAPS), within thirty (30) calendar days from the date of this court order, such period to
be calculated in accordance with Regulation 103(6) to the Act;
2.3 historical reports shall be those reports relating to lost or stolen firearms in the Free
State Province, which the applicant previously attempted to report to the SAPS. GAS
numbers in respect of such historical reports shall be furnished by SAPS to the applicant
within a period of not more than one hundred and eighty (180) days from the date of this
court order. The said period of 180 days shall be calculated in accordance with Regulation
103(6) to the Act;
2.4 furnish to the applicant, in respect of historical reports relating to lost or stolen
firearms in the Free State Province, proof that such firearms have been circulated on the
firearms in the Free State Province, proof that such firearms have been circulated on the
Enhanced Firearm Register System (EFRS) within 180 days from the date of this court
order, such period to be calculated in accordance with Regulation 103(5) to the Act;
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2.5 in respect of reports by the applicant regarding lost or stolen firearms in the Free
State Province, lodged with SAPS from the date of this court order, the respondents are
ordered to furnish to the applicant:
i. within 30 days of the date of lodgement of the reports, proof that the lost or stolen
firearms have been circulated on the EFRS. The period of 30 days shall be calculated in
accordance with Regulation 103(5) to the Act;
ii. acknowledgement of receipt of each report, within 30 days of lodgement of the
report, such period to be calculated in accordance with Regulation 103(6) to the Act;
3 The respondents are directed to furnish to the applicant a receipt in respect of any
firearm and/or ammunition surrendered to the SAPS in terms of Regulation 94(5) to the
Act.
4 Costs of the application.
JUDGMENT
Naidoo J
[1] The applicant, Legally Armed SA (Pty) Ltd (the applicant), seeks, in essence, an
order to compel the respondents to take all necessary steps forthwith, to process and
attend to the applicant's reporting of lost or stolen firearms originating from deceased
estates, in terms of the Firearms Control Act 60 of 2000 (the Act). The respondents
opposed the application. The applicant's business is essentially to assist its clients with
all matters involving the handling, licensing, transporting, transfer of ownership and
disposal of firearms in accordance with the ·provisions of the Act. Its clients are executors
and fiduciaries of insolvent and deceased estates, their agents and beneficiaries. The
applicant asserts that it ensures that its clients are compliant with the regard to firearm
legislation, identifies and mitigates the risks of non-compliance with the Act.
[2] The relief sought by the applicant is in summary, an order against the
respondents, directing them to:
a) take all reasonable steps forthwith to attend to the applicant's reports relating to
lost or stolen firearms from deceased estates, and to register police case dockets in
lost or stolen firearms from deceased estates, and to register police case dockets in
respect of those firearms, in terms of the Act;
b) furnish to the applicant police case numbers (CAS numbers) in respect of all lost
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or stolen firearms reported by the applicant, within 30 calendar' days from the date of this
order, calculated as provided for in Regulation 103(6);
c) process and attend to historical reports, which the applicant previously attempted
to file with the South African Police Service (SAPS), and to provide the applicant with
CAS numbers in respect of those matters within a reasonable time, but not exceeding
180 days from .the date of this court order, calculated in terms of Regulation 103 (6);
d) furnish the applicant with proof, in respect of the historical lost or stolen firearms,
that such firearms have been circulated on the Enhanced Firearm Register System
(EFRS), within one hundred and eighty (180) days from the date of this order.
e) deal with the applicant's reports of stolen or lost firearms, from the date of the
court order and in the future, in the following manner:
i. furnish the applicant with proof that the lost or stolen firearms have been
circulated on the EFRS within thirty (30) days from the date of the report. The thirty-day
period is to be calculated from the date of the court order;
ii. furnish the applicant with acknowledgement of receipt in terms of Regulation
103(6) of the Act within thirty (30) days, which period is to be calculated from the date of
the court order;
iii. furnish the applicant with a receipt for any firearm and/or ammunition
surrendered to SAPS in terms of Regulation 94(5) of the Act.
f) When a member of the public voluntarily surrenders a firearm, or a firearm is
found, as well as seized as a result of police action, the Designated Firearm Officer must:
i. Ensure that the firearm and magazine is unloaded, and take possession of the
firearm and ammunition and attach a SAPS 13(a) tag with relevant SAPS 13 number to
the firearm;
ii. Conduct an enquiry on the EFRS on function 10.5 to determine whether the
firearm was reported lost or stolen. If the firearm was circulated as lost or stolen, complete
a SAPS 521(f);
a SAPS 521(f);
iii. Complete a SAPS 522(a) SAPS 522(b) and indemnity form. Register the
information in the SAPS 86(a). Obtain a copy of the identification document and the legal
authorization to possess the firearm;
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iv. If a firearm, identified for destruction, does not have the manufacturer's serial
number or additional identification mark, the designated Firearm Officer must send that
firearm for etching and Integrated Ballistic Identification System (IBIS) test firing at the
Forensic Science Laboratory (FSL). If no serial number could be found, approach the
Central Firearms Register via the provincial office to obtain a Firearm Identification
number . The Designated Firearm Officer must forward a copy of the respective SAPS
522(b) form to the Central Firearm Registry with a request to issue a Firearm Identification
Number:
v. Indicate whether each firearm was surrendered or was an exhibit.
g) Costs of the application.
[3] I have mentioned what the business of the applicant is. It sets out extensively the
relevant provisions of the Act and the Regulations thereto, which oblige the executor
and/or fiduciaries of deceased estates to comply with the Act when dealing with firearms
forming part of a deceased estate. If the firearm is lost or stolen, such loss or theft must
be reported to the police, who are obliged to open a case docket in respect of the loss or
theft. The police are also obliged to register the firearm as lost or stolen on the Enhanced
Firearms Register System (EFRS), and investigate the matter further, if required to do so.
The executor or fiduciaries of a deceased estate may only finalise the administration of
the deceased estate after this process is completed.
[4] The applicant alleges that it has entered into service level agreements with
various individuals and corporate entities, who have granted it special power of attorney
to assist them in ensuring that all firearms belonging to deceased estates under their
control are attended to in accordance with the Act and, specifically, to report the lost and
stolen firearms to the police. This application has been necessitated because the first
second and third respondents have, for years, refused or neglected to open case dockets
second and third respondents have, for years, refused or neglected to open case dockets
and to list the firearms as lost or stolen on the EFRS. This has hampered the finalization
of these deceased estates and, the applicant argues, has resulted in a large number of
firearms not being accounted for, which could potentially result in an increase of crime
where such firearms are used. The non-compliance by the police has resulted in a real
and substantial risk of executors and/or fiduciaries being unable to comply with Act and
attracting personal liability and prosecution. A further consequence is_ the prejudice being
suffered by the applicant in that it is unable to fulfil the mandate given to it by the various
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executors and fiduciaries, causing it to run the risk of its losing all its business and being
unable to generate a steady flow of income to support its sustainability.
[5] The applicant sets out a detailed exposition of the provisions of the Act and
regulations thereto, which stipulate the duties of executors and/or fiduciaries of deceased
estates, as well as that of someone in the position of the applicant, and procedures to be
followed by them in compliance with the Act. The applicant also mentioned the position
where the executors and/or fiduciaries surrender firearms belonging to a deceased
estate, to the police. In that instance, the police are obliged to furnish such a person with
a receipt for the firearm. I do not deem it necessary to repeat those provisions of the Act,
but will refer to them as and when necessary. The duties of the respondent, in terms of
the Act were also set out in detail. I mention that the allegations with regard to the
provisions of the Act and regulations are not disputed by the respondents. The applicant
also gave a detailed description of the contractual agreements between it and entities
with whom it had entered into service level agreements. I also do not deem it necessary
to deal with these agreements, except where necessary.
[6] In attempting to fulfil its contractual obligations arising from its agreements with
its respective clients, the applicant alleges that it had limited success in assisting its clients
as members of SAPS continually refused to cooperate in having firearms reported and
case dockets registered on the Crime Administration System (GAS), and consequently
failed to provide it with a GAS number. The applicant listed some of the challenges it
alleges that it faced with members of SAPS, which include that SAPS:
a) refer the applicant from station to station and refuse to accept the required
bundles of reporting documents;
b) informed the applicant that only the owner (who is usually deceased), or the
b) informed the applicant that only the owner (who is usually deceased), or the
person who discovered the loss or only executors and/or fiduciaries can report the loss
of the firearm;
c) refuse to provide crucial information to complete the application;
d) refuse to accept information from heirs or next of kin and do not give their
cooperation in this regard.
[7] The applicant further alleges that these challenges have persisted since 2015,
causing it to write a letter to various departments of SAPS in November 2015, highlighting
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their concerns and challenges. This did not improve the situation. Some years later, on
13 May 2020, the national head office of SAPS issued a directive to all provincial
commissioners of SAPS, directing that all reporting bundles in respect of lost or stolen
estate firearms must be dealt with. The directive sets out detailed instructions in respect
of the steps to be taken by SAPS to facilitate this process. The applicant alleges that in
spite of this directive, SAPS have continued to conduct themselves as they previously
did, leaving the applicant with the same challenges that it had faced over the years.
[8) The applicant further alleges that it held several meetings with the third
respondent in an attempt to resolve these challenges. Minutes of two such meetings were
attached to the founding affidavit, from which it appears that such meetings were attended
by very high-ranking officers of SAPS. I will refer to these later. The applicant indicated
that a detailed plan was formulated, and promises were made by SAPS to attend to the
issue that lost or stolen firearms were not being registered as such. However, nothing
came of it, as the applicant continued to experience the same challenges with police
officials from various police stations. The applicant compiled a schedule of the bundles of
reporting documents which were not attended to by SAPS in all the provinces of South
Africa. These matters reflect that a total number of two hundred and seventy six (276)
firearms, emanating from two hundred and five (205) deceased estates, remain
unreported and have not been circulated on the EFRS, despite efforts on its part to report
these firearms and have police case dockets opened in respect of those firearms. I
assume that some of these firearms have now been reported, as the applicant alleges
that since 2010, approximately 223 firearms emanating from 174 estates remain
unaccounted for, as police case dockets have not yet been opened in respect of those
firearms.
firearms.
[9] The applicant alleges that it has established a clear right to obtain the relief it
seeks. Members of SAPS are bound and compelled by the Act to attend to and register
lost or stolen firearms, but they have failed to comply with the requirements of the law.
This, despite national directives to do so and numerous undertakings by SAPS to attend
to these matters. The applicant and its clients have suffered and will continue to suffer
extreme prejudice, as the applicant cannot fulfil the mandate given to it by its clients and
further, executors and fiduciaries are unable to comply with the prescripts of the Act in
respect of the duties placed on them in connection with dealing with lost or stolen firearms.
The non-compliance by SAPS with their statutory duties is confirmed by the deponents
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to a number of confirmatory affidavits, who detail the responses they received from
members of the SAPS, and were turned away when they tried to report lost or stolen
firearms. I mention that these are functionaries employed by the applicant's clients (from
whom it holds mandates), who attempted to comply with their statutory obligations. The
applicant alleges that it is entitled to the relief it seeks.
(1 O] The respondent in opposing this application raised a point in limine, arguing that
the second respondent, the MEC for Police Roads and Transport in the Free State was
misjoined, as he has no operational functions, no control over and bears no responsibility
towards the Provincial Commissioner of Police, who reports directly to the fourth
respondent, the National Commissioner of Police, who is responsible for the prevention
and investigation of all crimes or alleged crimes in the country. The respondents
acknowledge that the National Commissioner of Police is responsible for the prevention
and investigation of all crimes committed in the country. This implies that he has
overarching powers over the second respondent and the Provincial Commissioner of
Police. The respondents further allege that the second respondent has no direct and
substantial interest in the order that this court will make, and should not have been cited
in these proceedings. The respondents argue that the application should be dismissed
against the second respondent with costs.
(11] I mention that the respondents filed their answering affidavit seventeen days out
of time and applied for condonation for such late filing. While the applicant did not oppose
the application, it alleged that the respondents did not provide a full and satisfactory
explanation for the delay, they did not disclose a genuine bona fide dispute of fact and
did not enroll the application for condonation. Its lack of opposition was to expedite the
hearing of this matter. I have taken account of the respondents' explanation for the delay,
hearing of this matter. I have taken account of the respondents' explanation for the delay,
which, by and large it was due to protocols and procedures in the office of the State
Attorney regarding the engagement of counsel that appears to have caused the delay.
The applicant's have not pleaded any prejudice that they would suffer and I can find none.
In the interests of justice and in order to finalise this matter, condonation for the late filing
of the answering affidavit is granted.
(12] The respondents preface their defence in the answering affidavit, with an
exposition of the relevant provisions of the Act, which deal, inter alia, with the possession,
handling, storage, and reporting procedure in case of loss, of firearms. The respondents
criticize the reli_ef sought in the notice of motion as being couched in general terms and
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failing to specify any acts or omissions on the part of the police, indicating that they have
failed to perform their duties. They allege further that the applicant is applying,
impermissibly so, for the police to do what is expected of them in terms of the peremptory
provisions of the Constitution (of South Africa) and/or the South African Police Act 68 of
1995. The applicant simply applies for the police to be ordered to process applications for
lost or stolen firearms, which are not specified in this application. The police, they argue,
may only be ordered to do what they have failed to do in terms of the duties placed upon
them by the Constitution or the South African Police Act.
[13) The respondents acknowledge that the Act requires the police to deal with lost or
stolen firearms as provided for in the Act. When a firearm is reported to a police station
as lost or stolen, the police have no choice but to act in accordance with the obligations
imposed upon them by the Act. Only if the police fail to act in accordance with those
obligations, does a legal dispute arise between the parties, which require adjudication by
the courts. The respondents assert that when a crime is reported at a police station, a
case docket will only be opened if the police are satisfied that a crime has been
committed. Thereafter the completed docket is handed to the community service centre
commander for registration on the Crime Administration System. The respondents allege
that applicant's allegations against the police are based on the alleged inaction of the
police to open case dockets, but require such dockets to be opened based on hearsay
evidence
[14) A further contention of the respondents is that the EFRS is an internal
investigative tool to assist police in tracking a firearm that has been reported lost or stolen,
much like a list of missing persons published by the police or the process of internally
circulating details of stolen motor vehicles. There is no constitutional or statutory
circulating details of stolen motor vehicles. There is no constitutional or statutory
requirement for the police to employ such measures. They argue further that as criminals
invent new methods of committing crime, the police have to adopt new methods to
effectively combat it. Therefore, the police cannot use an investigative tool if it is no longer
effective. On this basis, there are three reasons why the applicant is not entitled to proof
that the firearms have been circulated on the EFRS. Firstly, it is a police investigative tool
and has no bearing on the constitutional obligation of the police towards a complainant in
combating crime. Secondly, there is no statutory requirement that the police circulate the
stolen or lost firearms on EFRS. Thirdly, investigative tools are forever reviewed and
changed to keep up with current trends relating to the investigation of crimes.
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[15] The respondents argue that the EFRS may be changed or adapted if a new
system is found to be effective. A court orde_r that the police circulate lost or stolen
firearms on EFRS would restrict the police to using an archaic investigative tool. They
argue, further, that the duty of the police, when a complainant reports a crime, is to open
a case docket and investigate, where necessary. The police should not be compelled to
investigate crime in a manner dictated by parties such as the applicant, as the police
require flexibility in their investigation of crime. A further complaint by the respondents is
the redacted documents furnished as attachments to the founding affidavit, alleging that
this causes confusion and prevents the respondent s from meaningfully responding to
this application. The relief that the applicant seeks, they argue, aims to do exactly what
the respondents say should not be done. The relief sought is incompetent, academic in
nature and does not resolve any existing dispute between the parties. The respondents
allege that the applicant has provided no evidence of the police failing to attend to or
process lost or stolen firearms.
[16] While several issues emerged in this matter, I am of the view that the following
require adjudication, namely whether:
a. the respondents failed to comply with the statutory obligations placed upon them
by law, in respect of the manner in which lost or stolen firearms are required to be dealt
with;
b. the applicant has made out a case for the relief it seeks.
[17] I deal, firstly with the issue of the misjoinder of the second respondent. The
respondents allege that the second respondent has no operational functions or control
over the Provincial Commissioner of Police, who reports directly to the National
Commissioner of Police. On the respondents' version, the second respondent is a
Member of the Executive Council (MEC) in the Free State. In terms of s 125(2)(e) of the
Member of the Executive Council (MEC) in the Free State. In terms of s 125(2)(e) of the
Constitution of South Africa, the Premier of the province exercises executive authority
together with other MEC's to coordinate functions of the provincial administration and its
departments. They do not indicate what exactly the functions of the second respondent
are in his capacity as MEC for Police. While they allege that one of the functions of the
Provincial Commissioner of Police includes that of establishing police stations and argue
that he reports directly to the National Commissioner, the respondents have not
meaningfully elaborated on their denial that the second respondent has a direct and
substantial interest in the order/s that this court will make. It is well established in our law
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that one of the requirements for joinder of a party to legal proceedings, is that such a party
must have a direct and substantial interest in the subject matter of the litigation, which
may be affected prejudicially by the judgment or order of the court.1 In the absence of
such denial and proof thereof, I am of the view that the joinder of the second respondent
to these proceedings is not irregular or incorrect. Even if I am wrong in this respect, the
fourth respondent clearly has the ultimate authority in crime prevention and investigation
of crimes in the country. Therefore, the joinder of the second respondent does not
materially affect the validity these proceedings or, for that matter, exert a negative impact
on the functions of the second respondent. The point in limine of misjoinder must fail.
[18] Having said the above, I note that the applicant couches its founding affidavit in
broad terms regarding the challenges it faces, the prejudice it suffers and the relief it
seeks. It attached to the founding affidavit a schedule of matters in the form of annexure
K, which I will deal with later, which reflects matters in all the provinces of South Africa. I
point out that this Court would normally have jurisdiction only in respect of matters arising
in the Free State Province and in respect of persons residing or carrying on business in
this province . Any order that this Court will make would be in respect of all matters which
fall within the court's jurisdiction in the Free State Province. No evidence or argument has
been tendered to show that the order of this Court will be binding on the respondents or
their representatives in other provinces. The applicant argues that this application
involves the rule of law and the failure by the respondents to uphold the law, by their
failure and/or refusal to register and investigate complaints regarding lost or stolen
firearms . In so conducting themselves, the police have violated their constitutional
firearms . In so conducting themselves, the police have violated their constitutional
obligations2 and the statutory duties imposed upon them by the Firearms Control Act, s 2
of which sets out the purpose of the Act and gives further insight into those duties.3 Our
1 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Ply) Ltd and Another
(2011] ZACC 33; 2012 (2) SA 104 (CC) para 44; Judicial Service Commission and Another v Cape Bar
Council and Another [2012] ZASCA 115; 2013 (1) SA 170 (SCA).
2 Section 205 of the Constitution of South Africa 108 of 1996, specifically s 205(3) which provides: The
objects of the police service are to prevent, combat and investigate crime, to maintain public order, to
protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.
3 The purpose of this Act is to-
(a) enhance the constitutional rights to life and bodily integrity;
(b) prevent the proliferation of illegally possessed firearms and, by providing for the removal of those
firearms from society and by improving control over legally possessed firearms, to prevent crime involving
the use of firearms;
(c) enable the State to remove illegally possessed firearms from society, to control the supply,
possession, safe storage, transfer and use of firearms and to detect and punish the negligent or criminal
use of firearms;
(d) establish a comprehensive and effective system of firearm control and management; and
(e) ensure the efficient monitoring and enforcement of legislation pertaining to the control of firearms.
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courts have on many occasions pronounced upon the functions of and conduct expected
of public servants, as the Supreme Court of Appeal (SCA) did in Kalil N.O. and Others v
Mangaung Metropolitan Municipality and Others4 where the court remarked that
'The function of public servants and government officials at national, provincial and municipal
levels is to serve the public, and the community at large has the right to insist upon them acting
lawfully and within the bounds of their authority. Thus where, as here, the legality of their actions
is at stake, it is crucial for public servants to neither be coy nor to play fast and loose with the
truth. On the contrary, it is their duty to take the court into their confidence and fully explain the
facts so that an informed decision can be taken in the interests of the public and good governance.
As this court stressed in Gauteng Gambling Board and Another v MEG for Economic
Development, Gauteng, our present constitutional order imposes a duty upon state officials not
to frustrate the enforcement by courts of constitutional rights.'5
Although this matter concerned a review, I am of the view that it applies equally to this
application.
[19] The respondents have not grappled with the allegations made by the applicant
that there are hundreds of matters countrywide, where the police have simply failed or
refused to accept reporting bundles concerning lost or stolen firearms belonging to
deceased estates. The result is that there are hundreds of firearms not reported or
circulated as lost or stolen, and are therefore unaccounted for, increasing the risk of such
firearms having fallen into the wrong hands, so that serious crimes may be or have been
committed, using such firearms. The respondents assert that they do not want firearms
to fall into the wrong hands and do what is expected of them in investigating and
preventing the commission of crimes. As I indicated, the applicant sets out extensively, in
preventing the commission of crimes. As I indicated, the applicant sets out extensively, in
its founding affidavit, the statutory matrix as well as the content of the directive issued by
SAPS' national office. The respondents state that the police may only be ordered to do
what they are expected to do in terms of the Constitution as well as in terms of statutory
provisions, and which they have failed to do. In complaining that the orders which the
applicant seeks are of a general nature and not supported by evidence in the founding
affidavit, the respondents acknowledge and repeat their statutory duties in terms of the
Act, conceding that when a firearm has been reported lost or stolen, the police have no
choice but to act in accordance with the duties imposed on them by the Act. All they can
4 Kalil N.O. and others v Mangaung Metropolitan Municipality and Others [2014] ZASCA 90; 2014 (5)
SA 123 (SCA) .
5 Ibid para 30.
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muster in defence is that they need not be reminded of these duties.
[20] The respondents have not denied that they have failed or refused to accept the
applicant's reporting bundles or engaged with the applicant's allegations which I detailed
earlier. Their responses are somewhat shallow and opportunistic. Examples are
annexures 'G' and 'K', attached to the founding affidavit, which were redacted copies,
where the identity number of the deceased and her daughter, as well as the serial number
of the firearm was redacted. Annexure 'G' is a copy of a completed reporting bundle which
the applicant attempted to file with the police, with no success. The nominee of the
executor deposed to affidavits indicating that the deceased was the registered owner of
a firearm which was not handed to the offices of the executor when the estate was
reported, and that they are unaware of the whereabouts of the firearm, which was in the
possession of the deceased. The daughter of the deceased deposed to an affidavit stating
that her mot1er lived with her at various addresses since 2003, and that the deceased
was never in possession of a firearm. She confirmed that in spite of thoroughly searching
through her mother's possessions, she did not find a firearm of any description and that
there was no firearm in her house.
(21] To a reader of these documents, it is clear that the deceased is the registered
owner of the firearm, and presumably was in possession of the firearm (at least up to
2003). The daughter of the deceased was not informed of such a firearm, nor did she
ever see such a firearm. After she was informed that a firearm was registered in her
mother's name, she conducted a thorough search for it amongst her mother's
possessions, which were in her house but did not find it. From this, it is equally clear that
the firearm is missing, whether due to theft or loss. Such a firearm falls to be dealt with in
terms of the Act. The respondents, in answer, acknowledge annexure 'G', but allege that
terms of the Act. The respondents, in answer, acknowledge annexure 'G', but allege that
the statement (by the deceased's daughter) is of no use to the police because the
deponent does not mention that the firearm was lost or stolen. On the contrary, she said
that it had never been in her home, so there was nothing for the police to investigate. If
the deceased's daughter had reported the firearm lost or stolen, based on the allegations
she made, the police would not have opened a case docket. By their own admission
therefore, the respondents concede that the police did not comply with the provisions of
the Act, in respect of the firearms mentioned in annexure 'G'. They have not refuted the
applicant's allegation that there are hundreds of matters similar to that mentioned in
annexure 'G'.
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[22] The respondents also claim that they could not investigate the matter, as the
identity number of the deceased, and the serial number of the firearm was redacted. The
applicant indicated that, for the purpose of this application, the documents were redacted,
but that the unredacted version would be made available to the respondents, on request.
In my view, it seems logical that the unredacted version would have been submitted to
the police, who refused to accept it. The unredacted version was not requested by the
respondents, indicating that they made no serious attempt to meaningfully deal with the
applicant's allegations. The unredacted version would have enabled them to search the
records of the police to, firstly, confirm that the deceased was indeed the registered owner
of the firearm, and, secondly, to ascertain if the firearm was registered on the EFRS. It
therefore makes no sense to claim that they cannot investigate the matter because the
documents were redacted, or that the documents do not comply with the provisions of the
Act.
[23] Annexure 'K' is a copy of a schedule kept by the applicant of the reporting bundles
that the police in the various provinces of South Africa refused to accept or failed to attend.
The schedule contains information for the applicant's purposes, and to enable it to locate
the relevant files in its possession. This document did not require the serial numbers of
the firearms to be reflected on the schedule, and the purpose of attaching it as an
annexure was to support its contention that there are hundreds of reporting bundles which
the police have refused to deal with. The respondents opportunistically, in my view, allege
that this document does not reveal serial numbers, which is required in terms of the Act
to enable the police to open case dockets, register the firearms on the EFRS and to
investigate the matter. It appears that the respondents deliberately misread the document
investigate the matter. It appears that the respondents deliberately misread the document
in order to support their allegation that the applicant did not comply with the Act, therefore
the police were not obliged to accept the reporting bundles, and, consequently, that the
applicant was not entitled to the relief it claims. Perhaps they feared that if they requested
the applicant to supply the serial numbers of the firearms, it would have been difficult, if
not impossible, to put up even a semblance of a defence. The answering affidavit contains
many more such examples. I also mention that the respondents make absolutely no
allegation that the EFRS has been changed or that it is no longer valid, but instead make
the bald assertion that directives and methods of investigation change from time to time.
If the court ordered that the firearms be circulated on the EFRS, it may compel the police
to use an outdated investigative tool. This argument is without merit and cannot be
16
sustained.
[24] The respondents failed to satisfy the test set out by the SCA to determine a
genuine and bona fide dispute of fact. In the much-quoted case of Wightman,6 the SCA
held at para 13 that:
'A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the
party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed
the fact said to be disputed. There will of course be instances where a bare denial meets the
requirement because there is no other way open to the disputing party and nothing more can
therefore be expected of him. But even that may not be sufficient if the fact averred lies purely
within the knowledge of the averring party and no basis is laid for disputing the veracity or
accuracy of the averment. When the facts averred are such that the disputing party must
necessarily possess knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or
ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I
say 'generally' because factual averments seldom stand apart from a broader matrix of
circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may
not necessarily recognise or understand the nuances of a bare or general denial as against a real
attempt to grapple with all relevant factual allegations made by the other party. But when he signs
the answering affidavit, he commits himself to its contents, inadequate as they may be, and will
only in exceptional circumstances be permitted to disavow them. There is thus a serious duty
imposed upon a legal adviser who settles an answering affidavit to ascertain and engage with
facts which his client disputes and to reflect such disputes fully and accurately in the answering
affidavit. If that does not happen it should come as no surprise that the court takes a robust view
of the matter.'
In my view, the respondents have not grappled meaningfully with the allegations made by the
applicant and have thus failed to raise any genuine or bona fide dispute of fact.
[25] The respondents furthermore, did not offer any explanation for the failure by the
police to comply with the National Directive of 13 May 2020 issued by the respondents'
national head office. As indicated, the directives contain detailed instruction to the police
on how to deal with firearms reported to be lost or stolen. This directive has not been
withdrawn, and no such allegation has been made by the respondents. It therefore,
remains in force and is valid. These directives were preceded by years of interactions
6 Wightman tla JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; [2008) 2 All SA 512
(SCA).
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between the applicant and SAPS. The extensive correspondence addressed by the
applicant to SAPS as well as the meetings it held with high-ranking officials of SAPS
speak of the challenges that the applicant experienced over an extended period of time
and the concerted efforts it had made to resolve such challenges. Resolutions taken at
the various meetings were not implemented by the police. The result of all this is that the
public is not being properly and effectively served by the police in respect of lost or stolen
firearms, A serious consequence of that is the proliferation of firearms which cannot be
accounted for and the risk that these firearms are being used in the commission of serious
crimes.
[26] The applicant seeks a mandamus against the respondents compelling them to
perform their public and/or statutory duties. On their own version, the respondents may
be compelled to do what they ought to have done but which they failed to do. As in the
case of a final interdict, an applicant seeking a mandamus must show a clear right, an
injury actually committed or reasonably apprehended and the absence of a similar or
alternative remedy. From what I have set out above, I am satisfied that the applicant has
met these requirements. I must, however deal with the relief the applicant seeks. I am in
agreement with the respondents that the relief sought ought to be couched in more
specific terms in order for the court's directives to be complied with. I am, furthermore, of
the view that the applicant has not established that it has locus standi to obtain the relief
as set out in para 2(f) above, where it seeks an order on behalf of members of the public
who voluntarily surrender firearms to the police, or where firearms are found, recovered
or seized as a result of police action. The applicant has not made out a case for such
relief, and has not shown how its interests or rights have been affected in such
circumstances, nor has it demonstrated that the police have not complied with the Act
circumstances, nor has it demonstrated that the police have not complied with the Act
and the Constitution when dealing with firearms in such circumstances. Such relief
cannot, in my view, be granted. With regard to costs, there is no reason to deviate from
the established practice that costs follow the result. However, I am not in agreement that
costs should be granted on scale C. While I am of the view that the respondents have not
proffered a substantial defence, no case has been made out for costs on a punitive scale.
[27] In the circumstances I make the following orders:
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1 The applicant is directed to prepare a schedule of all matters, current and
historical, over which this court has jurisdiction, that require a police case docket to be
opened in the Free State Province. Such schedule is to contain all relevant details
required by the Firearms Control Act 60 of 2000 (the Act), in order that the relevant police
station may open a case docket, register the firearms on the Enhanced Firearm
Registration System and investigate the matter. The applicant shall thereafter file the
reporting bundles at the relevant police stations, in accordance with the requirements of
the Act;
2 The respondents are ordered to:
2.1 forthwith take all necessary steps to process and attend to all reports filed by the
applicant in relation to lost and stolen firearms in the Free State Province, such steps to
include the registering of police case dockets for lost or stolen firearms from deceased
estates, in terms of sections 147, 120 and 121 of the Act, read with Regulations 86 and
1 03 to the /;\ct;
2.2 furnish, to the applicant, the Crime Administration System (CAS) numbers for all
lost or stolen firearms reported by the applicant to the South African Police Service
(SAPS), within thirty (30) calendar days from the date of this court order, such period to
be calculated in accordance with Regulation 103(6) to the Act;
2.3 historical reports shall be those reports relating to lost or stolen firearms in the Free
State Province, which the applicant previously attempted to report to the SAPS. CAS
numbers in respect of such historical reports shall be furnished by SAPS to the applicant
within a period of not more than one hundred and eighty (180) days from the date of this
court order. The said period of 180 days shall be calculated in accordance with Regulation
103(6) to the Act;
2.4 furnish to the applicant, in respect of historical reports relating to lost or stolen
firearms in the Free State Province, proof that such firearms have been circulated on the
firearms in the Free State Province, proof that such firearms have been circulated on the
Enhanced Firearm Register System (EFRS) within 180 days from the date of this court
order, such period to be calculated in accordance with Regulation 103(5) to the Act;
2.5 in respect of reports by the applicant regarding lost or stolen firearms in the Free
State Province, lodged with SAPS from the date of this court order, the respondents are
ordered to furnish to the applicant:
i. within 30 days of the date of lodgement of the reports, proof that the lost or stolen
firearms have been circulated on the EFRS. The period of 30 days shall be calculated in
accordance with Regulation 103(5) to the Act;
ii. acknowledgement of receipt of each report, within 30 days of lodgement of the
report, such period to be calculated in accordance with Regulation 103(6) to the Act;
3 The respondents are directed to furnish to the applicant a receipt in respect of
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any firearm and/or ammunition surrendered to the SAPS in terms of Regulation 94(5) to
the Act.
4 Costs of the application.
S NAIDOO
JUDGE OF THE HIGH COURT
Appearances
For the Applicant:
Instructed by:
For the Respondent:
Instructed by:
N Snellenburg SC
Stander and Associates
29 President Steyn ave
Westdene
Bloemfontein
(Ref: HJS/GS0545)
R Ramawele SC
State Attorney
11th Floor Fedsure Building
49 Charlotte Maxeke Street
Bloemfontein
(Ref: Mr G Chauke)
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