IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)\

CASE NO: 31971/2022
REPORTABLE: YES/NO
OF INTEREST TO OTHER JUDGES: YES/NO
REVISED: NO
6 OCTOBER  2022

In the matter between:
FIDELITY SECURITY SERVICES (PTY) LTD
CODE OF BODY 16455						First Applicant 
SECURECO METSU (PTY) LTD
CODE OF BODY 19708						Second Applicant
FIDELITY ADT (PTY) LTD CODE OF BODY 15942 
FIDELITY CASH SOLUTIONS 
CODE OF BODY 16415						Third Applicant 
ANALYTICAL RISK MANAGEMENT (PTY) LTD 
t/a 2RM SECURITY
CODE OF BODY 18521						Fourth Applicant
And
THE NATIONAL COMMISSIONER OF THE
SOUTH AFRICAN POLICE SERVICES
GENERAL KJ SITHOLE
IN HIS CAPACITY AS REGISTRAR OF FIREARMS		First Respondent
MAJOR GENERAL MAMOTETHI
(IN HER CAPACITY AS THE HEAD OF FIREARMS, 
LIQUOR AND SECOND-HAND GOODS “FLASH”)		Second Respondent
COLONEL PN SIKHAKHANE, IN HER CAPACITY 
AS THE ACTING HEAD OF THE HEAD OF 
THE CENTRAL FIREARMS REGISTRY				Third Respondent
THE MINISTER OF POLICE					Fourth Respondent
THE FIREARMS APPEAL BOARD				Fifth Respondent

REASONS FOR ORDER

MILLAR J
1.	The applicants are companies that provide security services to inter alia private, commercial, and state clients. Included in the range of services provided are those which require their employees, the security officers to be armed.

2.	The employees of the applicants do not individually purchase and licence the firearms that they are required to carry for the services they are employed to render – this is done by the applicants. Self- evidently the applicants between them apply for many licenses, the continued employment of their staff and viability of their businesses being dependent upon the issue of such licenses. 

3.	The respondents - the third respondent in particular - are the parties responsible for the processing and, either issue or decline, of licenses in terms of the Firearms Control Act (the Act).

4.	By June 2022, the delay on the part of the respondents in processing licence applications for inter alia firearms that had been handed in in terms of an amnesty declared in terms of section 139 of the Act had reached what was regarded as an intolerable situation. Some 456 licence applications had not been processed and besides the deleterious business effects of not being able to provide armed security officers to persons and institutions who required them, some of their employees were alleged to have suffered injury and even death in consequence of being unable to defend themselves against armed attack whilst on duty.

5.	On 5 July 2022, the applicants brought an urgent application in this court to compel the respondents to discharge their statutory obligation to process the applications that were before them within a reasonable time. In respect of at least those that related to the amnesty and were still outstanding, the delay was at the very least for 11 months!

6.	The parties were able to reach an agreement. The terms of the agreement were recorded in a draft order of court which at the request of counsel for the parties, I duly made an order of court. 

7.	The order provided inter alia that one third of the outstanding applications would be processed within 10 days of the order, a further third within 20 days of the order and the last third within 30 days of the order. Thus, the first third would be processed by 15 July, the second by 25 July and the final third by 5 August 2022.

8.	Unfortunately, the respondents did not comply substantively with the terms of the agreement reached on 5 July 2022. By the time the applicants brought a further urgent application to hold the third respondent in contempt of the 5 July 2022 order, in September 2022, only 64 of the 456 licenses had been processed. 

9.	On 20 September 2022, the parties were again able to reach an agreement on certain aspects of the dispute between them.  The parties agreed that:
“2.	By agreement between the parties the following order is granted:
2.1	The third respondent is ordered to cause the issuing and delivery of Temporary Authorisations in terms of Section 21 of the Firearms Control Act, Act 60 of 2000, in respect of all the firearms listed in the annexure hereto and headed “Approved Firearms Fidelity Motion”, by no later than Friday 23 September 2022;

2.2	The prayers in paragraphs 3, 4 and 5 of the notice of motion is postponed sine die;

2.3	The Applicants may approach the court to proceed with the relief referred to in paragraph 2.2 above on the same papers, duly supplemented, should they so wish;

2.4	If the papers are supplemented, the respondents will have the right to supplement or answer thereto within 10 days or such shorter time as allowed by the urgency or the matter on notice to the Respondents;

3.	It is noted that by agreement:

3.1	The firearms listed in the annexure headed “Defective Firearms Fidelity Motion”, and attached hereto is alleged by the Respondents that it is unable to process the license applications to possess the firearms due to the fact that the firearms are defective;

3.2	The firearms listed in the annexure headed “Government Department 10 +1”, and attached hereto is alleged by the Respondents that it is unable to process the license applications to possess the firearms due to the fact that the firearms have been destroyed by the Respondents;”

10.	The aspects on which they did not reach an agreement and in respect of which I made orders were set out in paragraphs 1, 4, 5, 6, 7 & 8. I deal with each of these in turn.
The First Order
11.	The first order was “1. It is declared that the First, Second and Third Respondents did not comply with the order dated 5 July 2022;”

12.	This order is of a declaratory nature and simply recorded the common cause act that the respondents had only processed 64 of 456 license applications within the 30-day period that they had undertaken to process all 456.
The Fourth Order
13.	The fourth order was “4. No order is made in respect of the firearms listed in paragraphs 3.1 and 3.2 above and any relief in that respect is postponed sine die, subject to what is stated in paragraphs 2.3 and 2.4 above;”

14.	This order was made to exclude from the agreement and the subsequent orders made by me, the processing of licenses in respect of firearms which could not by reason on non-compliance or due to impossibility be properly and lawfully licensed.
The Fifth Order
15.	The fifth order was “5. The Third Respondent is ordered by the court despite no agreement having been reached in this respect, to cause the issuing and delivery of Temporary Authorisations in terms of Section 21 of the Firearms Control Act, Act 60 of 2000, of all the firearms listed in the annexure headed “In Preparation for Consideration (Awaiting IBIS report)”, and attached hereto, by no later than Friday 23 September 2022;”

16.	 This order was made to mitigate the effects of the respondent’s non-compliance with the agreement and order of 5 July 2022. 

17.	Notwithstanding agreement regarding certain of the licenses which fell within the ambit of that order, I took the view that, subject to what was stated in the fourth order, that pending the lengthy delay in processing licenses, the prejudice to the applicants could only be mitigated by the issue of temporary licenses. I furthermore took the view that since there was an agreement to issue some temporary licenses, compliance with the Regulations and regulations 23 and 24 was not in issue between the parties.

18.	This order as section 21 of the Act states is temporary and will be of effect only for so long as the respondents do not process the identified applications.
The Sixth Order & Seventh Orders
19.	The sixth order and seventh orders were:

 “6. 	The Temporary Authorisations referred to in paragraph 2.1 above shall be subject to the following conditions:

6.1	It must be valid for a period of not less than one year or until such time as the printed licence cards is provided to the Applicants;”
7. 	The Temporary Authorisations referred to in paragraph 5 above shall be subject to the following conditions:
7.1	It must be valid for a period of not less than one year or until such time as a decision is made in respect of the pending applications and if approved, printed licence cards are provided to the Applicants;

7.2	Should the applications not be approved for whatever reason, the applicants must return the firearms to the appointed Designated Firearms Officer appointed or nominated police officer if no appeal or review is pending in respect of those license applications;

7.3	Should any of the firearms be linked though the IBIS process to any investigation or as a result be suspected to have been involved in or linked to the commission of any crime, the firearms shall within 10 days be returned to the Designated Firearms Officer appointed or nominated police officer to be processed and dealt with in terms of the Firearms Control Act of 2000 Act or the Criminal Procedure Act of 1977, whichever is applicable;”

20.	These two orders were made for the purpose of ensuring that the interests of both the applicants and respondents could be adequately addressed. The period of one year’s validity is a reasonable period having regard to the inordinate delay in processing the licenses together with the failure of the respondents to comply with the agreement that they would process the 456 licenses within 30 days.

21.	Furthermore, the orders made in paragraphs 7.1, 7.2 and 7.3 were made so as to ensure that the effect of the orders to issue the temporary authorizations is just that – the orders are not final in effect and the respondents maintain the oversight of and ultimate decision as to whether a license is granted or not.

22.	It does not behove the respondents to rely on their own failure to discharge their obligations to process licence applications timeously or arrange for ballistic testing of firearms or to honour agreements – in order to frustrate the applicants and avoid the responsibility to carry out their administrative functions in an efficient manner.
The Eighth Order
23.	The eighth order was “8. The First to Fourth Respondents shall pay the cost of this application on a party and party scale.” 

24.	Since it was common cause that the respondents had failed to honour the agreement, they had reached on 5 July 2022 and the entering of a further agreement with the purpose of enabling them to comply, there was no reason why the costs should not follow the result. Had the respondents complied with the agreement, the proceedings on 20 September would have been avoided entirely.
25.	For the reasons set out above I made the order that I did, a copy of which (without annexures) is annexed hereto marked “RR1”.

A MILLAR
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA

HEARD ON:						20 SEPTEMBER 2022
REASONS REQUESTED:				23 SEPTEMBER 2022
REASONS FURNISHED:				6 OCTOBER 2022
COUNSEL FOR THE APPLICANT:		ADV. M SNYMAN SC 
INSTRUCTED BY:					MJ HOOD & ASSOCIATES
REFERENCE:					MR. M HOOD
COUNSEL FOR THE RESPONDENTS:	 	ADV. T LORABILE-RANTOA
INSTRUCTED BY:					THE STATE ATTORNEY
PRETORIA
REFERENCE:					MS. K TSEPANYEGA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
ON THIS 20TH DAY OF SEPTEMBER 2022 BEFORE THE HONOURABLE MR JUSTICE MILL
CASE NO: 31971/2022
In the matter between:
FIDELITY SECURITY SERVICES (PTY) LTD
CODE OF BODY 16455						1st Applicant
SECURECO METSU (PTY) LTD 
CODE OF BODY 19708						2nd Applicant
FIDELITY ADT (PTY) LTD
CODE OF BODY 15942						3rd Applicant
FIDELITY CASH SOLUTION 
CODE OF BODY 16415						4th Applicant
ANALYTICAL RISK MANAGEMENT (PTY) LTD
t/a 2RM SECURITY
CODE OF BODY 18521						5th Applicant 
And
THE NATIONAL COMMISSIONER OF THE 
SOUTH AFRICAN POLICE SERVICES 
GENERAL KJ SITHOLE
IN HIS CAPACITY AS REGISTRAR OF FIREARMS	1st Respondent
MAJOR GENERAL MAMOTETHI
(IN HER CAPACITY AS THE HEAD OF FIREARMS,
LIQUOR AND SECOND-HAND GOODS "FLASH")		2nd Respondent
COLONEL PN SIKHAKHANE, IN HER CAPACITY
AS THE ACTING HEAD OF THE HEAD OF THE 
CENTRAL FIREARMS REGISTRY				3rd Respondent
THE MINISTER OF POLICE					4th Respondent
THE FIREARMS APPEAL BOARD				5th Respondent

DRAFT ORDER
AFTER HAVING HEARD COUNSEL for the parties, having read the papers filed of record, an order is granted in the following terms-:
1.	It is declared that the First, Second and Third Respondents did not comply with the order dated 5 July 2022;
2.	By agreement between the parties the following order is granted:
2.1.	The third respondent is ordered to cause the issuing and delivery of Temporary Authorisations in terms of Section 21 of the Firearms Control Act, Act 60 of 2000, in respect of all the firearms listed in the annexure hereto and  and headed "Approved Firearms Fidelity Motion” by no later than Friday 23 September 2022;
2.2.	The prayers in paragraph 3. 4 and 5 of the notice of motion is postponed sine die;
2.3.	The Applicants may approach the court to proceed with the relief referred to in paragraph 2.2 above on the same papers, duly supplemented, should they wish;
2.4.	If the papers are supplemented, the respondents will have the right to supplement or answer thereto within 10 days or such shorter time as allowed by the urgency or the matter on notice to the Respondents;
3.	It is noted that by agreement:
3.1.	The firearms listed in the annexure headed "Defective Firearms Fidelity Motion", and attached hereto is alleged by the Respondents that it is unable to process the license applications to possess the firearms due to the fact that the firearms are defective;
3.2.	The firearms listed in the annexure headed "Government Department 10 +1", and attached hereto is alleged by the Respondents that it is unable to process the license applications to possess the firearms due to the fact that the firearms  have been destroyed by the Respondents
4.	No order is made in respect of the firearms listed in paragraph 3.1 and 3.2 above and any relief in that respect is postponed sine die, subject to what is stated in paragraphs 2.3 and 2.4 above 
5.	The Third Respondent is ordered by the court despite no agreement having reached in this respect, to cause the issuing and delivery of Temporary Authorisations in terms of Section 21 of the Firearms Control Act, Act 60 of 2000, of all the firearms listed in the annexure headed "In Preparation for Consideration (Awaiting IBIS report)", and attached hereto, by no later than Friday 23 September 2022;
6.	The Temporary Authorisations referred to in paragraph 2.1 above shall be subject to the following conditions:
6.1.	It must be valid for a period of not less than one year or until such time as the printed licence cards is provided to the Applicants;
7.	The Temporary Authorisations referred to in paragraph 5 above shall be subject to the following conditions:
7.1.	It must be valid for a period of not less than one year or until such time as a decision is made in respect of the pending applications and if approved, printed licence cards are provided to the Applicants;
7.2.	Should the applications not be approved for whatever reason, the applicants must return the firearms to the appointed Designated Firearms Officer appointed or nominated police officer if no appeal or review is pending in respect of those license applications;
7.3.	Should any of the firearms be linked though the IBIS process to any investigation or as a result be suspected to have been involved in or linked to the commission of any crime, the firearms shall within 10 days be returned to the Designated Firearms Officer appointed or nominated police officer to be processed and dealt with in terms of the Firearms Control Act of 2000 Act or the Criminal Procedure Act of 1977, whichever is applicable;
8.	The First to Fourth Respondents shall pay th	·s application on a party and party
Adv M Snyman SC
Counsel for Applicants 
0825712797
Adv TJ Loabile-Rantao 
Counsel for Respondents 
0838637461