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Robertson v National Commissioner of the South African Police Service and Others (47373/2019) [2021] ZAGPPHC 477 (29 July 2021)

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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NO: 47373/2019

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

29/07/2021

 

In the application between:

JOHN ERNEST ROBERTSON

(ID Nunber […])                                                                                           Applicant

and

THE NATIONAL COMMISSIONER OF THE

SOUTH AFRICAN POLICE SERVICE                                            First Respondent

THE MINISTER OF POLICE                                                      Second Respondent

THE CHAIRMAN OF THE APPEAL BOARD N.O                         Third Respondent

THE FIREARMS APPEAL BOARD                                             Fourth Respondent

 

JUDGMENT

This matter has been heard in terms of the Directives of the Judge President of this Division dated 25 March 2020, 24 April 2020 and 11 May 2020. The judgment and order are accordingly published and distributed electronically. The date and time of hand-down is deemed to be 14h00 on 29 July 2021.

LENYAI AJ

[1]   This is an application to have the decision of the Respondents to refuse to renew the applicant’s firearm licences, reviewed and set aside.

[2]   In this application the following orders are sought against the respondents:

(a)   An order reviewing and setting aside the decision of the third and fourth respondents to refuse renewal applications for applicant’s firearm licences for a Sako .233 Bolt Action Rifle, serial no. […], Sako .308 Bolt Rifle, serial no. […] and Lee Enfield Bolt Action Rifle, serial no. […].

(b)   An order that such licences be issued in terms of Section 16 of the Firearms Control Act.

(c)   An order reviewing and setting aside the original decision of the first respondent to issue any firearms to the applicant in terms of Section 16 of the Firearms Control Act and for an order ordering the first respondent to issue Section 16 licences for all firearms of the applicant other than applicant’s self-defence Luger, serial no. […].

(d)   An order that such licences be valid for a period of 10 years from the date of issue of the court order.

(e)   An order that the respondents pay the costs of this application on a scale as between attorney and client.

(f)   An order that in the event the reasons are provided by the respondents prior to the hearing of the application, the applicant be permitted to supplement these papers to deal with the reasons for the refusal of the applicant’s appeal.

(g)   Alternatively an order compelling the third and fourth  respondents to provide reasons for the refusal of the applicants’ licences, and for leave to supplement these papers based upon such reasons.

(h)   An order that the respondents provide a copy of the record of the proceedings in this matter in terms of Rule 53 of the rules of court.

[3]   The applicant avers that in 2006 he attempted to renew eight of his licences, with seven to be issued in terms of Section 16 of the Firearms Control Act in his capacity as a dedicated hunter and one to be issued in terms of Section 13 of the Firearms Control Act. He was only granted three licences in terms of Section 15 of the Firearms Control Act and one in terms of Section 13 of the same Act.

[4]   The applicant avers that the initial decision in 2008 to issue three licences in terms of Section 15 was erroneous as was the decision to refuse the balance of his four licences. In July 2008 the applicant submitted an internal administrative appeal to the third and fourth respondents indicating that he should have been granted licences under Section 16 of the Firearms Control Act. The appeal was successful on 12 March 2009, but instead of issuing firearms licences in terms of Section 16 of the Firearms Control Act, three further firearms were issued in terms of Section 15 of the Firearms Control Act.

[5]   The applicant further avers that it is not legally possible to possess seven licences in terms of Section 15 of the Firearms Control Act, because that section limits the number of firearm licences that may be issued in terms thereof to a maximum of four.

[6]   The applicant attempted to renew his seven licences in 2018 and to rectify the administrative errors and irregularities in his licences. Again a number of his licences were refused on the basis that he did not qualify to be issued licences in terms of Section 16 of the Firearms Control Act although the applicant had applied in terms of section 16 of the firearms Control Act, with the appropriate documents.

[7]   The applicant lodged an internal administrative appeal on the 29 October 2018 and his appeal was refused and he was notified by an sms, but no reasons were provided to shed some light on the basis upon which they came to their conclusion. The applicant avers that despite requesting that the respondents provide a copy of the record of the proceedings, they have not done so. The applicant contends that the record would show that his applications were submitted in terms of Section 16 of the Firearms Control Act.

[8]   The applicant contends that the respondents subsequently filed the record after he had filed his founding affidavit.

[9]   The respondent contends that gun ownership is not a fundamental right under our Bill of Rights, it is a priviledge regulated by law, under the Firearms Control Act. The respondent further contends that is against this backdrop and the need to improve control over legally possessed firearms that they are opposing the this application.

[10]   The respondents raised two points in limine in their answering affidavits and further raised substantive grounds for their opposition.

[11]   The respondents contend that the decision made was that, the applicant’s renewal of his firearm licences that were issued in terms of Section 15 could not be renewed in terms of Section 16.

[12]   The respondents are baffled by the applicant approaching the court for an order that, the decision to refuse the firearm licences be reviewed and set aside and those firearm licences be issued in terms of section 16 of the Firearms Control Act. The applicant further seeks an order that the licences be valid for a period of 10 years.

[13]   The respondents contend that the applicant’s application is premature. In 2005, when migrating to the Firearms Control Act, the applicant submitted his renewal forms for firearm licences to be issued in terms of Section 15 and that the applicant has never made an application for firearm licences in terms of Section 16 of the Firearms Control Act. The court cannot be asked to review and set aside a decision or issue firearm licences that the applicant has not yet applied for nor refused by the respondents.

[14]   Cora Hoexter, Administrative Law in South Africa, 2nd Ed, page 585-586 stated that “The idea behind the requirement of ripeness is that the complainant should not go to court before the offending action or decision is final, or at least ripe for adjudication … The doctrine of ripeness holds that there is no point in wasting the courts’ time with half-formed decisions whose shape may yet change, or indeed decisions that have not yet been made.” Hoexter further referred to the judgment in Ferreira v Lenvin NO and Others; Vryenhoek and Others v Powell NO and Others (CCT 5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995) where Kriegler J described the purpose of the doctrine of ripeness as “highlighting that the business of a court is generally retrospective;  it deals with situations or problems that have already ripened or crystallised, and not with prospective or hypothetical ones.”

[15]   The applicant’s prayer to have the respondents’ alleged decision to have his above mentioned firearm licences reviewed and set aside and issued in terms of Section 16 of the Firearms Control Act is premature and not yet ripe. This is because he never made an application for firearm licences in terms of section 16, the respondents never refused his application for firearms in terms of section16 of the Firearms Control Act and thus the application falls to be dismissed with costs.

[16]   The respondents contend that the applicant is seeking an incompetent order from the court. The applicant’s prayers devalues the doctrine of separation of powers as it asks the court to perform the administrative function bestowed upon the respondents.

[17]   In the matter of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004) the court held that “… Although the review functions of the Court now had a substantive as well as a procedural ingredient, the distinction between appeals and reviews continued to be significant. The Court should take care not to usurp the functions of administrative agencies. Its task was to ensure that the decisions taken by administrative agencies fell within the bounds of reasonableness as required by the Constitution.” The court further held that, “… This can be avoided if it is realised that the need for Courts to treat decision-makers with appropriate deference or respect flows not from judicial courtesy or etiquette but from the fundamental constitutional principle of the separation of powers itself.”

[18]   In the matter of City of Tshwane Metropolitan Municipality v Afriforum and Another (157/15) [2016] ZACC 19; 2016 (9) BCLR 1133 (CC); 2016 (6) SA 279 (CC) (21 July 2016), when also dealing with the separation of powers, the Constitutional Court held that “… Importantly, the constitutional prescripts of legality and the rule of law demand that nobody, not even a court of law, exercises powers they do not have. Where separation of powers is implicated and forbids the grant of the order sought to be appealed against …” The court further held in para [43] that, “Operating with the ever abiding consciousness of the crucial role separation of powers plays in our constitutional democracy, courts should thus be very slow to interfere with the legitimate exercise of governmental powers save in the ‘clearest of cases, or where bad faith or corruption or fraud was proved”.

[19]   The respondents contend that the order sought by the applicant encroaches on the separation of powers, is incompetent and stands to be dismissed thus the application falls to be dismissed with costs.

[20]   The respondents aver that the applicant submitted in his replying affidavit that the third respondent who is the chairperson of the fourth respondent has no authority to depose to the answering affidavit on behalf of the first and second respondents. The respondents contend that in the matter of Ganes and Another v Telecom Namibia Ltd ( 608/2002) [2003] ZASCA 123; [2004] 2 All SA (SCA) (25 November 2003) para 19 the court held that “There is no merit in the contention that Oosthuizen AJ erred in finding that the proceedings were duly authorised. In the founding affidavit filed on behalf of the respondent Hanke said that he was duly authorised to depose to the affidavit. In his answering affidavit the first appellant stated that he had no knowledge as to whether Hanke was duly authorised to depose to the founding affidavit on behalf of the respondent, that he did not admit that Hanke was so authorised and that he put the respondent to the proof thereof. In my view it is irrelevant whether Hanke had been authorised to depose to the founding affidavit. The deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorised. In the present case the proceedings were instituted and prosecuted by a firm of attorneys purporting to act on behalf of the respondent … It must, therefore, be accepted that the institution of the proceedings were duly authorised. In any event, rule 7 provides a procedure to be followed by a respondent who wishes to challenge the authority of an attorney who instituted motion proceedings on behalf of an applicant. The appellants did not avail themselves of the procedure so provided.”

[21]   In the matter of Minister of Safety and Security and Others v Ndaba (481/1999) [2016] ZAECMHC 51 (10 November 2016), para 6-7 the court held that “… Accordingly this matter is to be distinguished from the authorities upon which the respondent placed reliance and which deal with the need for a deponent who claims direct authority to institude proceedings, or a delegation of power to institute proceedings, to place evidence or documentation before the court to substantiate the averment … It is not necessary for the deponent to attach proof of his authorisation to depose to the affidavit. Read with his description of the position he holds within the South African Police Services, his statement under oath that he is authorised to depose to the affidavit is substantial. In my view, there is no merit in the point raised in limine.”

[22]   In casu, third respondent only said she was authorized to depose to the answering affidavit. The respondents contend that as it was held in the matter of Ganes supra, that the deponent to an affidavit in motion proceedings need not be authorized by the party concerned to depose to the affidavit. This will have the consequence that, the third respondent could depose to the affidavit on behalf of the respondents including the first and second respondents.

[23]   The respondents further contend that the applicant submitted that the third respondent makes statements on behalf of the Appeal Board in 2009 when she was not a member of the Appeal Board at the time.The respondents argued that the Appeal Board as cited, is an administrative body that will remain alive irrespective of the specific people who will constitute as its members. There will always be records that would inevitably have to be referred to when necessary and there is no difference in this matter. The third respondent never purpoted to have been at the 2009 meeting and specifically stated in the answering affidavit that “… at the time the Applicant’s appeal (February 2019) was heard, I was not the Chairperson but I was a member of the Board and was present when the appeal was adjudicated upon and refused by us.” Third respondent further submitted in the answering affidavit that “Unless the contrary is indicated … the facts contained herein fall within my personal knowledge … In addition, where I rely on facts that do not fall within my personal knowledge, I do so from the documents and records under my control and I further submit that I verily believe same to be true and correct.”

[24]   The third respondent contends that she was well within her rights and authority to make submissions on the relevant decision taken by the fourth respondent when she herself was not there but on documents that are well within her control which documents she believed to be true and correct. She further contends that even if she was not a member of the board in 2009, the 2009 decision was considered in 2019 and the members of the fourth respondent realised that the appeal in 2009 should not have been upheld.

[25]   The Pocket Dictionery & Thesaurus defines “renewal” as “a verb that means (1) begin again after an interruption; (3) extend the period of validity of a licence etc.” The respondents aver that the applicant renewed his firearm licences in terms of section 15 of the Firearms Control Act and any endevour to further renew will be to resume or extend the period of validity of the licences after interruption of the lapse and substitute a new right of a similar nature. Therefore a firearm licence issued in terms of section 15 cannot be renewed, resumed or substituted by a firearm licence in terms of section 16 which is different.

[26]   In the matter of Justice Alliance of SA & Another v National Minister of Safety and Security & Others (646/2011)[2012] ZASCA 190 (30 November 2012) it was outlined that “The Firearms Control Act 60 of 2000 (the new Act), which came into force on 1 July 2004, repealed and replaced the Arms and Ammunitions Act 75 0f 1969 (the old Act). It, like its predecessor, regulates the possession of firearms. In doing so, it recognises, as recorded in its preamble, the store that our Constitution places on the right of every person to life and security, as also, its logical corollary that the increased availability and abuse of firearms has contributed significantly to the high levels of crime in our society … The purpose of the new Act is to prevent the proliferation of illegally possessed firearms and to improve the control of legally possessed firearms.”

[27]   It was further held that: “The new Act restricts the number of licences that may be issued to any person in respect of particular sorts of firearms (ss 13-15) and prohibits the issuance of a licence to any person who is not in possession of a relevant competency certificate (s 6(2)) … During those five years persons holding licences could apply to have them renewed under the new Act. Once such an application had been made the licence would remain valid until the application was either granted or rejected. If an application for the renewal of a licence was rejected or if a licence otherwise terminated the firearm had to be disposed of within 60 days …”

[28]   Section 24 provides that:

“(1)   The holder of a licence issued in terms of this Chapter who wishes to renew the licence must at least 90 days before the date of expiry of the licence apply to the Registrar for its renewal.

(2)   …

(3)   No application for the renewal of a licence may be granted unless the applicant shows that he or she has continued to comply with the requirements for the licence in terms of this Act.”

[29]   The respondents contend that there is no absolute right to have the firearm licence renewed, if the Registrar finds that the holder will not continue to comply with the requirements for the licence in terms of the Act, he or she will make a decision to decline the renewal of the licence.

[30]   The respondents also brought a counter application to have a decision taken by the fourth applicant (fourth respondent in the main application) to be reviewed and set aside.

The parties are as follows :

30.1   The first applicant is the National Commissioner of the South African Police Service, a Registrar of. Firearms, duly delegated in terms of section 123 of the Firearms Control Act 60 of 2000 (“the Firearms Act”), with the offices situated at Wachhuis, 7th Floor, Pretorius Street, Pretoria.

30.2   The second respondent is the Minister of Police, a Minister in the Government of the Republic of South Africa, in his official capacity as the Executive Authority responsible for amongst others, policing, safety and security by the South African Police Services members, with the offices situated at Wachhuis, 7th Floor, Pretorius Street, Pretoria.

30.3   The third applicant is the Chairperson of the Firearms Board, duly appointed in terms of the Firearms Control Act with the offices situated at 275 Volkstem Lane, Veritas Building, Pretoria.

30.4   The fourth applicant is the Appeal Board duly established in terms of section 128 of the Firearms Control Act with the offices situated at 275 Volkstem Lane, Veritas Building, Pretoria.

30.5   The applicants are cited c/o the State Attorney, Pretoria with the offices situated at the Ground Floor, SALU Building, 318 Thabo Sehume Street, Pretoria.

30.6   The respondent is John Ernest Robertsons, an adult male person whose further particulars are unknown to the applicants.

[31]   The applicants contend that the Court has jurisdiction to hear this matter as there is a pending review application between the parties before it brought by the respondent.

[32]   In the counter application, the apllicants seek the following orders:

32.1   That the fourth applicant’s decision taken on or about 16 January 2009 to uphold the respondent’s appeal and issue firearms licences in terms of section 15 of the Firearms Control Act be declared invalid, reviewed and set aside.

32.2   The below mentioned firearms licences issued to the respondent on or about January 2009 for the following firearms be declared void ab initio:

(i) A. 410 with serial number […]

(ii) A 12 GA, with serial number […]

(iii) A 12 GA, with serial number […]

32.3   That the first applicant’s decision taken on or about 16 August 2018 to renew the respondent’s firearm licences in terms of section 15 of the Firearms Act be declared invalid, reviewed and set aside.

32.4   That the below mentioned firearm licences issued to the respondent on or about August 2018 for the following firearms be declared void ab initio:

(i) A. 410 with serial number […]

(ii) A 12 GA, with serial number […]

(iii) A 12 GA, with serial number […]

32.5   That the respondent be ordered to pay the costs of this application only in the event that he opposes.

[33]   The applicants aver that on the 3rd of April 2008, the first applicant refused the respondent’s application to renew his firearm licences as that would not have complied with section 15(3)(b) of the Firearms Control Act and the licences are the following:

(i) A. 410 with serial number […]

(ii) A 12 GA, with serial number […]

(iii) A 12 GA, with serial number […]

[34]   The respondent appealed this decision of the first applicant and on 16 January 2009, the fourth applicant considered the appeal and upheld it, which the fourth applicant now contends that the appeal was upheld in error.

[35]   The fourth respondent contends that the decision to uphold the appeal was an administrative one, which decision remains valid until it is reviewed and set aside by the Court. As a result, the applicants are bringing this reactive challenge, an application to have that decision taken on the 16 January 2009 to uphold the respondent’s appeal declared invalid, reviewed and set aside on the basis of legality.

[36]   The fourth applicant contends that the review is based on the following two grounds :

36.1   The Board upheld the respondent’s appeal without considering that such approval would result in him being in possession of more than four firearm licences which was in contravention of section 15 of the Firearms Control Act.

36.2   If the respondent’s appeal was not upheld in January 2009, he would not have been able to renew the firearm licences with serial numbers […], […] and […].

[37]   The applicants contend that before 01 July 2004, firearm licences were regulated in terms of the Arms and Ammunitions Act 75 of 1969 (the previous Act), and it provided amongst others that, once a person held a firearm licence, that licence, was valid for life and there was no limit on the number of firearms a person could hold.

[38]   In order to establish a comprehensive and effective system of firearms control and to provide for matters connected therewith, the Firearms Control Act was enacted and became effective on 01 July 2004. Schedule 1 of the Act provided for a transitional period from the previous Act to the Firearms Control Act and provided that, any licence that was issued in terms of the previous Act and which was valid immediatelty before the commencement of the Firearms Control Act, remained valid for a period of five (5) years until they would be renewed on application, ninety (90) days prior to expiry of the five - year period, unless such licence is terminated, cancelled or surrendered in terms of the Firearms Control Act.>

[39]   The objective and purpose of the Firearms Control Act is to :

(a)   enhance the constitutional rights to life and bodily intergrity;

(b)   prevent the proliferation of illegaly 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 illegaly 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 ferearms;

(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.

[40]   Section 3 (1)(a) of the Firearms Control Act provides for the general prohibition in respect of firearms and muzzle loading firearms and provides that, “No person may possess a firearm unless he or she holds a licence, permit or authorisation issued in terms of this Act for that firearm.”

[41]   Setion 13 of the Firearms Act provides for possession of a firearm for self defence and sub – section (2) provides that “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.”

Sub-section (3) provides that, “No person may hold more than one licence issued in terms of this section.”

[42]   Section 15 provides for licence to possess firearm for occasional hunting and sports-shooting and sub-section (2) provides that “The Registrar may issue a licence in terms of this section to any natural person who is an occasional hunter or occasional sports person.” Sub-section 3(b) provides that, “If a person holds a licence issued in terms of section 13, he or she may only hold three licences issued in terms of this section.”

[43]   Section 16 provides for licence to possess firearm for dedicated hunting and dedicated sports-shooting and subsection (2) provides that “The Registrar may issue a licence in terms of this section to any natural person who is a dedicated hunter or dedicated sports person if the application is accompanied by a sworn statement or solemn declaration from the chairperson of an accredited hunting association or sports-shooting organisation, or someone delegated in writing by him or her, stating that the applicant is a registered member of that association.”

[44]   The applicants contend that it is clear from the above provisions that, a person can only hold one firearm licence in terms of section 13, a maximum of four licences in terms of section 15 and an unlimited number of firearm licences in terms of section 16. Most importantly, there must be an application attaching the relevant documents for the respective sections for a person to be duly licenced.

[45]   The applicants aver that, on the 15th of December 2005, the respondent made an application to renew his frearm licence, a 9mm with serial number […], in terms of section 13. This application was approved on the 3rd of April 2008. The respondent further applied for the renewal of his other firearm licences in terms of section 15 of the Firearms Control Act. The applications were considered and approved, the following licences were issued in terms of section 15:

(i)   A .223, serial number […]

(ii)   A .303, serial number […]

(iii)   A .308, serial number […]

[46]   The respondent further applied for the renewal of his other firearm licences in terms of section 15 of the Firearms Control Act. The applications were considered and were not approved for not complying with the provisions of section 15 the following firearms:

(i)   A .410, serial number […]

(ii)   A 12 GA, serial number […]

(iii)   A 12 GA, serial number […]

[47]   The respondent lodged an appeal during July 2008 against this decision to the Board. The Board wrote a letter to the respondent after considering his appeal, wherein they made him aware of the fact that he had applied for a renewal in terms of section 15, which prohibited him from being issued with more than four firearm licences.The respondent responded to the Board during November 2008 that at the time of applying he was not yet a dedicated hunter, but at the time of his response he was a dedicated hunter. The Board considered the respondent’s appeal again during January 2009 and made a decision to uphold his appeal.

[48]   The Board’s decision to uphold the respondent’s appeal, resulted in him having one firearm licence issued in terms of section 13 and seven firearm licences issued in terms of section 15 of the Firearms Control Act. The unlawful consequence was that the respondent held firearm licences in contravention of section 15 for a period of ten years. During August 2018 the respondent made an application to renew the following, firearm licences in terms of section 15 which were approved and renewed :

(i)   A .410, serial number […]

(ii)   A 12 GA, serial number […]

(iii)   A 12 GA, serial number […]

[49]   The applicants contend that when the respondent made his application for the renewal of his firearm licences he was not yet a dedicated hunter as envisaged in section 16. He could not at a later stage when he alleges to have the dedicated hunter certificate be entitled to firearm licences in terms of section 16 on an application form that indicated that he was applying in terms of section 15.

[50]   The applicants further contend that, when an application is made, it is the Registrar who considers and verifies the information as attached and provided by the applicant to the application form. The Board in attending to an appeal, considers what the appellant has submitted at the time of the application and was before the Registrar when the application was initially considered. The duties and powers of the Registrar and the Board are different. The duty to consider the application and verify the attached documents lies with the Registrar. Therefore, the Board cannot consider a document that the Registrar was not in possession of at the time the application was before him or her.

[51]   The applicants contend that when the respondent submitted the letter to the Board that he had become a dedicated hunter, the Board should have conferred with the Registrar and if necessary advise the respondent to then apply for his firearm licences as a dedicated hunter in terms of section 16 because at that time, the Registrar had been in possession of application forms in terms of section 15.

[52]   The applicants contend further that, when the respondent’s letter was presented before them, the Board did not reconcile themselves with their initial query wherein, they would have confirmed the decision of the Registrar. Instead, the Board made a mistake by upholding the respondent’s appeal and by doing so, allowed him to have more than four firearm licences which was unlawful as it was and is in contravention of section 15 of the Firearms Control Act that he had applied for.

[53]   There can never be any belief that just because the firearm licences were more than four, then they were issued in terms of section 16 of the Firearms Control Act. The applicants contend that the mistake made in January 2009 cannot be perpetuated and must be rectified by declaring that decision unlawful and review and set aside that decision.

[54]   The applicants contend that, as Organs of State, they have a right to review and set aside their own decisions. Such review is not brought in terms of the Promotion of Administrative Justice, but is brought under the Constitutional principle of legality.

[55]   The decision sought to be reviewed and set aside was taken over eleven years ago. The applicants were not aware of the error they had made in 2009 until the respondent brought an application to review and set aside their decision of 18 February 2018.

[56]   The applicants aver that the erroneously issued firearm licences, were until set aside and in terms of section 27 of the Firearms Control Act, valid until January 2019. At the time the applicants got the application in July 2019, they were under the impression that the firearm licences had in terms of section 28 terminated upon the expiry of the ten year period in January 2019. It is for that reason that they did not make a counter application to review and set aside then.

[57]   The respondent’s application was before court on the 20th of October 2020 and the court advised that if the applicants were of the view that they would have made the application to review and set aside their January 2009 decision, they should do so and have both matters heard on the same day. The applicants took the advice and postponed the matter sine die in order to serve and file their application to review and set aside their January decision.

[58]   The applicants aver that the respondent should have been prompted by his licences being issued in terms of section 15 to enquire why his firearm licences were not issued in terms of section 16 as expected. Had the respondent done so, the mistake would have been detected much ealier and an application to review and set aside their decision would have been done at that time.

[59]   The applicants contend that the respondent has a recourse and can apply afresh for new licences in terms of section 16.

[60]   The respondent avers that the applicants’ conduct in bringing this counter application is egregious and mala fide. The deponent to the founding affidavit on behalf of the applicants, is conflicted as she is the Head of the Appeal Board and cannot act for the person for whom she is appointed to be an appellate body. The founding affidavit contains hearsay evidence as she purports to speak on behalf of the Appeal Board that took a decision 11 years ago and before she was appointed to her current position.

[61]   The respondent avers that all the licences that are the subject of this litigation were granted to him in terms of the Arms and Ammunition Act 75 of 1969. He contends that he has a legitimate expectation that these licences would be renewed, subject to compliance with the Firearms Control Act and he has been in compliance since the 21st of February 2006.

[62]   The respondent further contends that there is no prohibition in the Firearms Control Act preventing someone from changing the section of a licence when renewing it especially if there had been a mistake on the part of the licencing authority. This refusal by the applicants to simply rectify an administrative mistake will mean that he will be deprived of his firearms through no fault of his.

[63]   The respondent avers that this application has no basis in law, having been brought eleven years after the decision to uphold his appeal was made and after the firearm licences have expired.

[64]   It is my view that at the heart of this counter application is the question whether an organ of state may invoke the provisions of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) or the Constitutional principle of legality in seeking to set aside its own decision? The Constitutional Court in the matter of State Information Technology SOC Limited v Gijima Holdings (Pty) Ltd [2017] ZACC 40 was seized with this question. In a unanimous decision, the Contitutional Court held that an organ of state cannot utilise PAJA for purposes of reviewing and setting aside its own decision and it must do so through the principle of legality.

[65]   In terms of section 15 of the Firearms Control Act, no one is entitled to have more than four firearm licences and the fourth applicant errorneously upheld the respondent’s appeal in 2009. I am of the view that, that decision was incorrect and unlawful and the applicants having realised that, have a duty to ensure that the unlawful decision is not perpetuated further. In the matter of MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd [2014] ZACC 6 the court in agreement that the rule of law obliges an organ of state to use correct legal processes to rectify an unlawful decision held that, “… having failed to counter-apply during these proceedings, the Department must bring a review application to challenge the approval granted to Kirland, which remain valid until set aside …”

[66]   With regard to the delay in bringing this review application, in the matter of Khumalo v Member of Executive Council for Education: KwaZulu Natal [2013] ZACC 49 the court stated that “… a court should be slow to allow procedural obstacles to prevent it from looking into a challenge to the unlawfulness of an exercise of public power. But that does not mean that the Constitution has dispensed with the basic procedural requirement that review proceedings are to be brought without undue delay or with a court’s discretion to overlook a delay.” This principle was further emphasised in the matter of Merafong City Local Municipality v AngloGold Ashanti Limited [2016] ZACC 35 the court held that “The rule against delay in instituting review exists for good reason: to curb the potential prejudice that would ensue if the lawfulness of the decision remains uncertain. Protracted delays could give rise to calamitous effects. Not just for those who rely on the decision but also for the efficient functioning of the decision-making body itself.”

[67]   The court in the State Information Technology SOC Limited v Gijima Holdings supra, looked at section 172(1)(b) of the Constitution, which provides that a court deciding a constitutional matter has a wide remedial power. A court is empowered to make any order that is just and equitable.

[68]   Turning to the matter before me, the apex court has made it clear that an organ of state cannot utilise PAJA for purposes of reviewing and setting aside its own decision and it must do so through the principle of legality. It is my view that the applicants approached the court correctly.

[69]   The explanation given by the applicants for their delay, is that they only became aware of the offending decision eleven years later when the respondent applied to renew his firearm licences. Although the applicants seem to be tardy in seeking to correct an irregular and unlawful decision, it is the only remedy they have to vindicate the rule of law. I am of the view that it is just and equitable to declare the decision of fourth applicant in 2009 unlawful and to set it aside.

[70]   The respondent contends in his answering affidavit that if the decision of 2009 is set aside it will render his licence illegal and he will have no recourse. The applicants on the other hand contend that the respondent’s recourse lies in the decision in the matter of Fidelity Security Services (Pty) Ltd v Minister of Police and Others (1349/2019) [2021] ZASCA 51 (22 April 2021). The court “… declared that the applicant, Fidelity Security Services (Pty) Ltd, is entitled to apply afresh for new licences to possess the firearms listed in Annexure D to the applicants’ notice of motion and the Designated Firearms Officer responsible for the area in which the applicants’ principal place of business is situated is directed to accept such applications and deal herewith in terms of the Firearms Control Act 60 of 2000.”

[71]   The applicants contend that the respondent has submitted in his answering affidavit that he is now a dedicated hunter and if his status is still valid, it will enable him to apply afresh for his firearm licences in terms of section 16 of the Firearms Control Act. I am of the view that the respondent has recourse as recently indicated in the Fidelity matter supra.

[72]   In the premises, the following order is made:

1.   In the main application, the applicants’ application is dismissed.

2.   In the counter application:

2.1   That the fourth applicant’s decision taken on or about 16 January 2009 to uphold the respondent’s appeal and issue firearms licences in terms of section 15 of the Firearms Control Act is declared invalid, reviewed and set aside.

2.3   The below mentioned firearms licences issued to the respondent on or about January 2009 for the following firearms are declared void ab initio:

(i) A. 410 with serial number […]

(ii) A 12 GA, with serial number […]

(iii) A 12 GA, with serial number […]

2.4   That the first applicant’s decision taken on or about 16 August 2018 to renew the respondent’s firearm licences in terms of section 15 of the Firearms Act is declared invalid, reviewed and is set aside.

2.5   That the below mentioned firearm licences issued to the respondent on or about August 2018 for the following firearms are declared void ab initio:

(i) A. 410 with serial number […]

(ii) A 12 GA, with serial number […]

(iii) A 12 GA, with serial number […]

2.6   The applicant in the main matter is ordered to pay the costs of the application on an attorney and client’s scale including the costs of counsel.

2.7   That the respondent is ordered to pay the costs of the counter-application on an attorney and client’s scale including the costs of two counsel.

M.M.D. LENYAI

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

CASE NUMBER:                       47373/2019

HEARD ON:                              29 April 2021

 

FOR THE APPLICANT:              ADV. M. SNYMAN SC

INSTRUCTED BY:                     M J HOOD & ASSOCIATES

 

FOR THE RESPONDENTS:      ADV. J.A MOTEPE SC and ADV. M.N KGARE

INSTRUCTED BY:                     STATE ATTORNEY, PRETORIA

 

DATE OF JUDGMENT:              29 July 2021