In the matter between :
THE MINISTER OF POLICE
FIDELITY SECURITY SERVICES (PTY) LTD THE MINISTER OF JUSTICE
ACTING NATIONAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICES :
J K PHAHLANE
and
FIDELITY SECURITY
First Applicant Second Applicant Third Applicant
Respondent
RESPONDENT’S HEADS OF ARGUMENT
CONDONATION
1.
1.1 The Applicants seek condonation for:
1.1.1 The late launch of its application for leave to appeal to this court;
1.1.2 The late filing of the record; and
1.1.3 The late filing of the heads of argument.
1.2 Respondent, as a result of the fact that the application for leave to appeal to the Constitutional Court was not filed at the court, and as a result of
the fact that Respondent was then not made aware of the filing thereof at the court, filed their opposing papers late, however, same was served timeously on the Applicants. For this Respondents seek condonation in so far as necessary. It is not opposed by the Applicants.
1.3 The applications for condonation are not opposed by Respondent, but respondent filed an answering affidavit in respect of the first application.
The granting of condonation or not to the Applicants, is left in the hands of the court.
INTRODUCTION
2.
2.1 The Respondent (hereinafter referred to as “Fidelity”) sought a number of orders in the original application. However the only remaining order is that which was granted by the Supreme Court of Appeal and which is the subject of this Application.
2.2 The Constitutional Court dealt with the constitutionality of the provisions of section 24 and 28 of the Firearms Control Act, Act 60 of 2000 (hereinafter referred to as the Act”) in the matter of Minister of Safety and Security v South African Hunters and Game Conservation Association1.(hereinafter referred to as “SA Hunters”)
1 Minister of Safety and Security v SA Hunters and Game Conservation Association 2018 (10) BCLR 1268 (CC)
2.3 This Court found that the provisions of sections 24 and 28 were not unconstitutional. Applicants rely heavily on that judgment for justifying their current submissions.
2.4 At the hearing of this Appeal before the SCA it was common cause that applications for the renewal of licenses that had already lapsed could not be renewed (as opposed to submitting a new application) as it was conclusively dealt with in the matter of National Commissioner of Police and Another v Gun Owners of South Africa2.
2.5 The only remaining issue was the alternative relief sought in prayer 5 of the Notice of Motion. To determine that issue the question had to be answered whether a person may apply for a new licence for a firearm of which the licence has lapsed.
3.
3.1 It is common cause in this matter that the Registrar (First Respondent) refuses to accept applications for a new licence for a firearm after the expiration of the initial validity period of the license for that firearm.
3.2 Applicants are of the view that such a firearm cannot be licenced again and is to be destroyed.
2 2020 (6) SA 69 (SCA)
3.3 The simple issue to be determined is whether the person has a right to apply and whether there is a duty on the Registrar to accept, process and consider new applications for the same firearms on its merits.
Whether such application is to be successful is for the purposes hereof totally irrelevant.
3.4 The Applicants simply fail to deal with the applicability of the basic principles of administrative justice and its consequences by virtue of the blanket refusal to accept and consider an erstwhile licence holder’s application and explanation their failure to renew the licence timeously.
4.
Respondent is one of the biggest private security service providers in the country and as such needs firearms to render the services it is authorised and contracted to do. It is not disputed that the Respondent needs the firearms in executing its duties and providing a private security service.
5.
It is also not disputed that the Respondent is the owner of the firearms listed in annexure “B” to the Notice of Motion.
LEGISLATIVE FRAMEWORK
6.
The relevant legislative framework in terms of the Act can be summarised as follows :
6.1 Section 3 provides therefore that no person may possess a firearm unless that person holds a licence for that firearm.3
6.2 Clearly the definition of “person”, not having been ascribed a particular meaning, includes both natural and legal persona.
6.3 Section 6(1) of the Act regulates the issuing of licences, competency certificates, permits and authorisations. It reads as follows:
“6(1) The Registrar may issue any competency certificate, license, 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 this Act.
(2) Subject to section 7, no license may be issued to a person who is not in possession of the relevant competency certificate.
(3) Every application for competency certificate on my license, permit or authorisation must be accompanied by such information as may be prescribed.”
3 Section 3
6.4 Section 6(1) clearly bestows upon the Registrar a discretion to grant a competency certificate, licence, permit or authorisation.
6.5 It also bestows an obligation to receive a compliant application.
6.6 Section 6(2) of the Act provides therefore that:
“(2) Subject to section 7, no licence may be issued to a person who is not in possession of the relevant competency certificate.”
6.7 Section 7 provides for the issuing of licences to persons other than natural persons such as Respondent. It provides for the following:
“7(1) When a juristic person wishes to apply for a licence, permit or authorisation in terms of this Act, it must nominate a natural person to apply on its behalf.
(2) The person so nominated must be identified on the licence, permit or authorisation as the responsible person.
(3) A responsible person who holds any licence, permit or authorisation issued in terms of this Act pursuant to an application in terms of subsection (1) on behalf of the juristic person must be for the purposes of this Act be regarded as the holder of the licence in question.
(4) ….”
6.8 The scheme of the Act allows for a business to be issued with a license in respect of a firearm for business purposes. The individual employee to be issued the firearm to execute his/her duties must be in possession of a competency certificate for such type of firearm.4
6.9 To be nominated as the Responsible Person, that person must inter alia be the holder of a Competency Certificate issued in terms of Section 9 of the Act. This is also applicable to the individual Security Officers who are issued with firearms in the line of their duty.5
6.10 The Act also prescribes all the additional information that must be supplied by a security service provider such as the Respondent when applying for or renewing a licence.6
6.11 The Act does not require that the owner should be licence holder. To the contrary in respect of legal entities it foresees that the licence holder and owner will be different persons.
6.12 Section 149(2)(b) provides therefore when dealing with compulsory destruction of the firearm, that the firearm “remains the property of the owner thereof until destruction.”
6.13 In terms of section 3 of the Act, a person may not possess a firearm, if
4 Section 20(4) and 20(5)
5 Section 20 read with Regulation 21
6 Regulation 13(5)
he/she is not licensed to do so. Possession is clearly distinguished from ownership in the Act. In these heads we will refer to an owner of a firearm as such a person, distinguished from the licence holder or possessor thereof.
6.14 Ownership of movables in our law is generally seen as an intention to own the movable and physical control thereof or the intention to do so.7
6.15 The principle supported by the SCA was simple. A person becomes the owner of the firearm, for instance, by inheritance, purchasing, bartering, inheriting or being donated the firearm. That person may however not take possession thereof without being in possession of a Competency Certificate and Licence. In the case of a legal entity, the licence is issued to the Responsible Person.8
6.16 A director of a company may not be able to physically possess a business firearm licenced to the “company” because they do not have a competency certificate, but the company is the owner of the firearm.
7.
7.1 The interpretation of Applicants is simply that because the Act does not provide for a renewal process after the licence lapsed, a new licence can
7 Air-Kel (Edms) Bpk h/a Merkel Motors v Bodenstein en ‘n Ander 1980 (3) SA 917(A) at 922E - F
8 Regulation 102(1)(c)
also not be applied for in respect of that firearm. It must be destroyed and the person can again purchase a new firearm and apply for a licence for that new firearm.
7.2 There is no difference between a person going to a licenced firearm dealer and purchasing a firearm and applying for a firearm licence, or applying for a firearm licence whilst it is in the possession of the police.
Such person thereafter applies for a licence and may only possess the firearm if and when granted a licence.
7.3 The Applicant’s interpretation is not sustainable. It is in fact directly in conflict with one of the objectives of the Act to limit the proliferation of firearms. Handing-in the firearms to the Police and buying new firearms is clearly contrary to that objective.
7.4 The scheme of the Act allows for a businesses to be issued with licenses in respect of the firearms for business purposes. The individual employee to be issued the firearm to execute his/her duties must be in possession of a competency certificate for such type of firearm.9
7.5 The Act also prescribes all the additional information that must be supplied by a security service provider such as the Respondent when applying for or renewing a licence.10
9 Section 20(4) and 20(5)
10 Regulation 13(5)
7.6 Ownership and physical possession therefore does not necessarily coincide.
7.7 As already seen, the Responsible Person’s name must appear on the licence issued to a legal entity. However, the legal entity is clearly the owner of such firearm.
7.8 The result is that a legal entity such as Respondent through its Responsible Person is regarded as competent as the Responsible Person must maintain the validity of his/her Competency Certificates.
7.9 Applicants’ simplistic view is that if the Act does not provide therefore, it cannot be done. However, there is no prohibition either. The question is then how to interpret the provisions of the legislation. That is exactly what the SCA did. As such the reasoning is sound.
RELEVANT FACTS
8.
8.1 In order to execute the services it provides, the Respondent needs firearms, inter alia to secure facilities and transporting of cash.
8.2 In terms of the Act, the Respondent nominated a responsible person, Mr Yssel, who awaited sms messages from the Police Services as a
reminder to renew a particular firearm licence before it expired.11 However, it turned out that this system was not reliable and the licences for firearms listed in schedule “B” to the application was not renewed.
8.3 Respondent owns more than 8500 firearms.12 Mr Yssel resigned as responsible person and a new responsible person was appointed, Mr Wentzel.13
8.4 Upon taking over the responsibilities Mr Wentzel, conducted a full audit of the firearms in possession of the Respondent as Mr Yssel refused to assist him in the handover.14 Mr Wentzel requested information obtained through an application to the Central Firearms Registry and was told to apply for the information in terms of the Promotion of Administrative Justice Act of 2000. This he did. He also sought the assistance of the Florida Police station where the local DFO responsible for the administration of firearms in the area where Respondent’s main place of business, is situated.
8.5 From the information obtained through an application for access to information, an application to the Central Firearms registry and information obtained from the DFO at the Florida Police station the list of firearms as attached as Schedule “B” to the notice of motion were in
11 Vol 1, p 29, para 23 (line 12 – 18) and Vol 1, p 31 - p 32, paras 33 - 39
12 Vol 1, p 30, para 27 (line 20)
13 Vol 1, p 31, para 34 (line 23 – 26), p 34, para 51 (line 18) - p 35 para 58 (line 24)
14 Vol 1, p 31, para 35 (line 27 – 29)
fact confirmed not licenced and no renewal applications had been submitted in respect thereof.
8.6 Mr Wentzel caused applications for renewal of all the licences to be prepared and submitted to the DFO. The DFO confirmed that he held an instruction not to accept such applications in terms of a Directive issued by the registrar.15
8.7 After the Constitutional court ruled that section 24 and 28 of the Act were in fact constitutional, the remainder of the relief however remained alive and the matter was again enrolled. As already stated above, some of the relief became moot as a result of the Gun Owners Association case referred to above
8.8 On 11 September 2018, Mr Justice Davis ordered that the parties supplement the papers, as agreed between them as a very long time had passed since the papers were drawn and a number of other legal disputes had been decided by the courts.16
8.9 Respondent filed a supplementary affidavit17, but Applicants failed to do so and proceeded with the matter without answering or requesting to file an answer thereto, as agreed.
15 Vol 1, p 35, paras 57 and 58 (line 18 – 24)
16 Vol 3, p 276
17 Vol 3, p 277 – 286
8.10 In the supplementary affidavit the Respondent gave further examples of 12 firearms that were stolen from the Respondent previously.18 The Police Services returned the firearms to the Respondent, but while the firearms were in the possession of the thieves, the licences lapsed.
Respondent prepared applications for renewal of the licences and upon submission thereof to the DFO, the Respondent was informed that the licences had lapsed and the applications will not be received, because the computer system blocked such application.19
8.11 Regulation 99 to the Act provides for a deferment of the licence in the event of the firearm being reported stolen. The remainder of the validity period of the licence is to run from the date the firearm is returned to the licence holder. However on the licence itself, the date of expiry is indicated and a new licence must be provided. The Applicant’s computerised system does not defer the licence as provided for in Regulation 99, hence the refusal by the DFO to accept the licences.
8.12 This has not been disputed.
GENERAL
9.
9.1 The only questions in this matter is whether the person or entity who
18 Vol 3, p 282 – 283, paras 26 - 28
19 Vol 3, p 284, para 30 (line 12 – 16)
wants to be licensed to possess a firearm has the right to apply for a licence to physically possess same and as a corollary whether the Registrar has a duty to accept and consider such an application.
Obviously such application must be compliant with the formal requirements of the Act.
9.2 It is submitted that in terms of the provisions of the Act it is clear that a person who wishes to possess a firearm may apply to the Registrar to be issued a licence.
9.3 The question in this matter is not whether such an application would be successful. The question is simply whether the owner such as the Respondent has a right to apply and the Registrar a duty to accept and consider, so it is submitted.
9.4 It is only necessary in this matter to consider the rights that a person may have in terms of section 22, 25 and 33 of the Constitution.
9.5 The Constitution grants persons the right to choose a trade, occupation or profession in terms of section 22, not to be deprived of property in terms of section 25 and the right to fair and just administrative action as provided for in section 33.
9.6 Should a person wish to follow a specific occupation, trade or profession, one of the rights flowing therefrom is the right to apply to lawfully and
validly conduct such business, if regulated.20 In the matter of Somali Association of South Africa and Others21 the Supreme Court of Appeal found that an asylum seeker has the right to apply for a business license having regard to the provisions of section 22 of the Constitution.
9.7 The granting or refusal of a licence, permit or authorisation has been found to be Administrative Action within the definition of Section 1 of the Promotion of Administrative Justice Act, Act 3 of 2000 (hereinafter referred to as “PAJA”).22 A “decision” is defined in PAJA as meaning:-
“any decision of an administrative nature made, proposed to be made, required to be made, as the case may be, under the empowering provision, including a decision relating to – ….
and includes
“doing or refusing to do any other act or thing of an administrative nature…”.
9.8 In refusing to accept an application of an administrative nature, obviously if it complies with the formal prescripts there may be for such an application, that decision may become the subject of a review application. At the foundation of most review applications is the right to
20 Somali Association of South Africa and Others v Limpopo Department of Economic Development and Others 2015 (1) SA 151 (SCA)
21 (1) SA 151 (SCA)
22 Commissioner, South African Police v Maimela 2003 (5) SA 480 (T) at 485D
just and fair administrative action as enshrined in section 33 of the Constitution. Essentially, so it is submitted, the refusal is a breach of that fundamental right to fair and just administrative action.
9.9 A person who wants to possess a firearm is entitled to apply in terms of section 6 of the Act. That right is granted in terms of the Act. It is submitted that the concomitant duty arising from such right is that the Applicants has the duty to accept and adjudicate upon such application.
The process and decision being administrative in nature is the subject of Section 33 of the Constitution and the Promotion of Administrative Justice Act 3 of 2000.
9.10 In terms of section 149 of the Act, it is clearly stated in dealing with destruction of firearms, that a person remains the owner until destruction thereof.23 Should a person not be allowed to apply to have the licence renewed or for a new licence, the result would be that firearm will have to be destroyed.
9.11 The Respondent however, has the right to buy new firearms and the Registrar of firearms accepts such applications. There is no logic in this approach and it is furthermore contrary to one of the very reasons of the Act, to curtail proliferation of firearms. Simply put, the Applicants are of the view that the Respondent must hand in the firearms for destruction
23 Section 149(2)(b)
and it can buy new firearms.
9.12 At several other places in the Act and regulations the distinction is drawn between ownership and possession or licencing. For instance, regulation 94 which provides for the surrendering of firearms and ammunition. It states that:
“A person who is legally entitled to possess a firearm or ammunition in terms of this Act and who is the owner of the firearm or ammunition may surrender that firearm or ammunition to the South African Police Service.”
9.13 Regulation 102 regulates the position when a business, such as the Respondent, ceases to do business. It provides for a disposal of the firearms by way of sale, donation, destruction, deactivation, export, surrender, barter, or any other legal form of passing of ownership to another person as the Registrar may allow.
9.14 The regulations even provide for a form for the passing of ownership of a firearm, form SAP534.
9.15 It is clear that the lapsing of a licence to possess a firearm does not terminate the ownership thereof.
9.16 The owner, although he may not legally possess the firearm at the time, has a right to apply for the possession of that firearm and the Registrar of firearms has a duty to accept the application and process same, be it
a new application or an application for a renewal of the licence, does not matter.
CONCLUSION
10.
10.1 The interpretation proposed in these heads of argument does not conflict with the finding of the Constitutional Court referred to above.
10.2 In paragraph 21 of that decision Justice Froneman made the following remark in respect of the question of the rationality of the provisions of the Act. He stated that:
“… - it is submitted that the police have no legal competence to hold it in safe custody until the gun-owner applies for and obtains another license. Again, what has this to do with irrationality? It may infringe on other rights that the gun-owner may have, like section 25 protection of property, but that is part of a different enquiry.”24
10.3 The aforegoing is clearly in conflict with what the Applicants are relying upon from the same judgment. Simply put, the issues herein had not been decided upon in the SA Hunters matter.
10.4 The SCA misdirected itself in respect of the costs granted against the
24 Minister of Safety and Security v SA Hunters and Game Conservation Association 2018 (10) BCLR 1268 (CC)
Respondent as it is clear that the interpretation and application of the legal principles are in the interest of the public. As a result, the Respondent should have been entitled to its costs, alternatively the principles as set out in the matter of Biowatch25 should be applicable.
10.5 As a result, the application should be dismissed with costs.
DATED at PRETORIA on this the 12th day of October 2021.
Adv M Snyman SC
Club Advocates’ Chambers Hazelwood
0825712797
25 Biowatch Trust v Registrar Genetic Resources and others 2009 (6) SA 232 (CC)
