South Africa: North Gauteng High Court, Pretoria

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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 46684/2018

DATE: 2018-07-27

In the matter between

GUN OWNERS OF SOUTH AFRICA (GOSA)                                   APPLICANT

and

THE NATIONAL COMMISIONER OF POLICE              FIRST RESPONDENT

THE MINISTER OF POLICE                                         SECOND RESPONDENT

20                                                      JUDGMENT IN LIMINE

PRINSLOO (J): Before me in this case number 30 on this roll; 46684/18, Gun Owners of South Africa versus The National Commissioner of Police and The Minister of Police. Mr Budlender  SC appears for the Respondents with Mr Varney and Mr Nyathi and Mr van Rhyn appears for the applicant.

At the commencement  of the proceedings this morning Mr Budlender indicated that some arguments raised in the papers are still being pursued. I considered those arguments to be triable on an in limine basis. The one is that the purported resolution on the strength of which the applicant's attorney and the deponent to the founding affidavit, Mr Oxley, is said to appear on behalf of the applicant body is flawed because it does not indicate for which proceedings the deponent and the attorney are said to be authorised to conduct this urgent application, neither does it say against which adversary and     for

which relief.

10        For that reason, so it was argued in limine at my invitation, the applicant had failed to comply with the requirements of Rule 7 (1), which stipulates:

"Subject to the provisions of sub-rules (2) and (3) a power of attorney need not be filed, but the authority of anyone acting on behalf of a party may, within ten days after it has come to the notice of a party that such person is so acting, or with the leave of the court on good cause shown at any time before judgment, be disputed, where after such person may no longer act unless he satisfies the court that he is authorised so to act, and to enable him to do so the court may

20        postpone the hearing of the action or application."

The respondents proceeded to file a Rule 7 objection, which is dated 12 July, and the objection is crafted as follows: "Kindly take notice that in terms of uniform Rule 7 (i) the respondents dispute the authority of attorney Larry Marks to act on behalf of Gun Owners of South Africa (GOSA) in this application having regard to the following:

1.        The founding affidavit and annexures do not contain evidence of any decision by GOSA or by anybody authorised to make such a decision on its behalf, to institute an application against these respondents in this court for this relief.

2.       The Constitution does,·not .authorise the Exco  of GOSA to resolve to institute legal proceedings on behalf of GOSA.

Take further notice that in terms of Rule 7 (1) Attorney Larry Marks may no longer act for GOSA unless he has satisfied the court that he is authorised so to act."

10        In response to this notice the attorney of the applicant, Mr Marks, presented an affirmation stating that he is signing this affidavit or affirmation, not clear whether he took the oath but it was signed before a commissioner of oaths, in his capacity as attorney of record of the applicant Gun Owners of South Africa and that he is duly authorised to make the affidavit in such capacity. This is a statement under oath by an officer of this court, presently still the attorney of record and sitting in court today.

He says:         "2.    The facts deposed to by me in this affidavit fall within my personal knowledge unless the contrary is stated or

20         appears from the context and are both true and correct to the best of my belief.

2.     I refer to P01, to the founding affidavit.

3.      I was provided with same per email.

4.    Same was signed through a round robin email process by members of the applicant's executive, a copy of the emails are 2018-07-27 attached as LM1 ."

And the quote would start where I said "I am an adult male attorney".

Annexure P01 is entitled or headed: "Mandate and Resolution" and then it states: "It is hereby resolved by the Executive Committee (ex-co) of Gun Owners of South Africa (GOSA), a voluntary organisation not for gain, that it authorises Mr Paul Oxley in his capacity as chairperson of the organisation, to represent GOSA in these proceedings before this honourable court and to do all such

10        things and sign all affidavits and to provide instructions to the attorney of record and counsel herein on behalf of GOSA."

Then it is signed by the Vice Chairman North, Mr or Ms Gugu Bohali and by three other obviously members of the executive including the Vice Chairman South, and five others, in total eight signatures. For the sake of brevity I do not mention all the names.

The affirmation which I described as the affidavit is then accompanied by this annexure U\/11 containing a series of emails all dated 4 July confirming that these signatories of the Resolution P01 signed the resolution.     They are named on these emails for example

20        on page 410 of the record.

Also in the founding affidavit Mr Oxley states: "And I depose to this affidavit in my capacity as Chairperson" although I correct that. Mr Oxley the deponent or the chairperson, I correct that, says: "And I depose to this affidavit in my capacity as the Chairperson of Gun Owners of South Africa (GOSA) and I am duly authorised to make this affidavit in support of this application to court as appears from the resolution signed by the GOSA ex-co members attached hereto as Annexure PO 1."

So, we have the statement under oath by the chairperson, deponent to the founding affidavit that he is authorised by his executive committee, which appears clearly from a reading of the resolution P01 naming this person, Mr Oxley, and authorising him to do what is necessary to provide instructions to the attorney of record

and counsel.

10     The argument that this resolution is flawed because it does not say which proceedings against whom and for what relief is with respect artificial to put it mildly. On the overwhelming probabilities, unless one has a very fertile imagination one cannot in my position come to the conclusion that the authority was given to Mr Oxley and later, after the challenge, signed by the ex-co members again confirming that they did sign it, for any other purpose than to conduct these proceedings.

Although it was not suggested by Mr Budlender, if I understand him correctly; there was a constitutional challenge to certain Sections

20 of the Firearms Control Act, also featuring this present applicant as a friend or an amicus curiae of the Constitutional Court. But that came to an end in the form of the judgment of that court on 8 June 2018 and the founding affidavit was only deposed to on 5 July after receipt of those 4 July round robin confirmations that these ex-co members signed the resolution PO1.

Mr van Rhyn made some detailed submissions in opposing the argument in limine and without showing any disrespect I do not consider it necessary to deal with all of those submissions. Mr Budlender made no submissions in reply and said he abided by his earlier submissions. For the reasons mentioned I am satisfied that Mr Oxley and [audio faulty from 00:18:02 to 00:18:45] (audio indistinct)

Mr Budlender, correctly in my view, did not challenge the manner in which the application was launched from the point of view of the strict provisions of the practice directive, which is often the

10 basis of an objection as to whether a case for urgency had been made out, neither did I hear any submissions on that, and understandably so, from Mr van Rhyn.

The main thrust of the argument by Mr Budlender that no case for urgency had been made out is seated in an argument that one of the former commissioners of police in February 2016 issued a circular to the effect that a practice prevailing evidently up to that time to the effect that gun owners could apply for renewal of the licence even after expiration thereof, as intended by the provisions of the Firearms Control Act 60 of 2000, was no longer in force.

20         With it the commissioner Phahlane, as he was then was, on the strength of Section 24 of the Firearms Control Act 60 of 2000, says the following: "In the case where a person wants to renew or apply for a licence but the validity of the licence has already expired the person must be informed that he or she is not anymore in lawful possession of the firearm and that the firearm must be surrendered to the nearest police station."

This. according to the applicant, to an extent set the cat amongst the pigeons because gun owners for a number of years had been allowed to apply, after the expiry, for a renewal in terms of the relevant Sections of the Act. It appears, from these developments, and so Mr Budlender argued, that if the applicant wanted to challenge this new directive contained in the 3 February 2016 circular it should have done so at the time and not two years later in July 2018, so that any urgency  which     may  have  existed  is  self-created, which is

10 something that a court generally does not recognise as a ground for urgency. I think it is fair to say that this summarises the argument on urgency.

Mr van Rhyn argued broadly that, as is common cause, the Gun Owners Association launched a challenge as to the Constitutionality of certain provisions of the Firearms Control Act, which I am not describing in detail but it has to do with Sections 24 and 28 of that Act, which also has a direct bearing on the term of validity of a licence and circumstances under which it can be renewed or extended.

20      The challenge it seems was launched already in 2016. I was not, we were not able in my debate with counsel to find an exact date. But the applicant was the South African Hunters and Game Conservation Association and the Minister of Safety and Security, now the Minister of Police was the respondent.

It is common cause or undisputed that this applicant presently before me supported that challenge. The challenge came before my sister Toimay in the course of 2017 and according to Mr Budlender in reply, the judgment was given in 2017. The learned judge upheld the challenge whereupon the unsuccessful respondent, the Minister approached the Constitutional Court and on 8 June of this year the Constitutional Court set aside the judgment of my sister of 2017 and ruled, broadly without analysing the judgment in detail, that the ruling of unconstitutionality was erroneous  and replaced the order of  my sister Tolmay with an order: "The application is dismissed".

10        On a general reading of the papers, this set in motion a whole process involving notifications, threats and communications from the police to gun owners whose licences had expired to hand in those firearms to avoid prosecution. Details of this appear from the papers and in the time at my disposal now I am not dwelling on all those details.

When the judgment was handed down early in June by the Constitutional Court setting in motion this response from the police the present applicant made representations to the police with the view to alleviating the situation of its members and arriving  at a mutually

20 agreed modus operandi on how to deal with the matter, inter alia perhaps on the basis of an amnesty that could be granted and extension of the validity period of the licences. Fully reasoned submissions formed part of the record.

The applicant's officers were then invited to a meeting with senior police officials to discuss the matter whereupon the officers of the applicant were asked to make written representations in support of their verbal representations to achieve the result which I attempted to describe.

Representations were offered during the course of June, for example after the 7 June judgment representations were made in writing on 14 June resulting in the meeting on 22 June on the invitation of the police officials and further representations dated 25 June, also copied to The Minister, running into some 18 pages. There was no response from the police to these representations, something

10 which one would have expected, and on 28 June, three days later, a publication appeared in a newspaper to the effect that the spokesperson of the police made a statement that there was 110 question of an amnesty or an extension of the period of     validity.

The deponent to the founding affidavit, correctly it seems, interpreting this as rejection of those representations I mentioned, only saw this newspaper publication on 29 June where it appeared in Landbou Boer Op Ons Werf, clearly a publication for the agricultural fraternity and other interested parties. Realising  what had happened, and that the representations

20 had been rejected, the deponent or chairperson of the applicant saw this as the trigger inspiring the applicant to launch this urgent application within a few days, namely on 6 July.

The argument, broadly, is that the applicant did not sit back when the February 2016 circular came , but made use of the opportunity to support the 2016 challenge, which I have described and only after the Constitutional Court judgment became available and the efforts to have representations considered favourably came to nought, was the application launched.

In addition, it was argued in very detailed terms in the founding affidavit that this is a matter of life and death, to use the terminology chosen by the applicant, under the heading "Urgency" as it should do in terms of Rule 6 (12) and making a wide range of submissions in respect of which much can be said in my view. Such is that individual gun owners and security companies, including their staff and the

10 people who rely on their protection, with expired licences, would no longer be able to defend their lives or those of others under their protection under these circumstances.

It was submitted, correctly in my view, that this is a matter of national security and it appears to be common cause that something of the order of 450 000 gun owners with their expired licences form part of this equation. It was argued that the police does not have the capacity to receive these arms if they were to be handed in, to test them forensically, to store them, to transport them perhaps to other storage facilities and that the danger of these weapons ending up in

20 the wrong hands as has happened repeatedly in the past, with newspaper articles and other clear evidence being attached to the founding papers and mentioned in the founding papers, it was argued, correctly in my view, that the matter is urgent.

Mr Budlender in reply pointed out that the way to interpret the Act is that once a licence has expired in the spirit of Section 27 it

comes to an end and cannot be renewed and the logical conclusion is that it is then being possessed illegally and ought to be handed in for destruction.

An argument which may militate against this conclusion referring to what a proper interpretation of the Act may be, is in my view to be found in a current, still valid, application form SAPS 518 (A), still being used by the police and published on its website dealing with applications for renewal of a firearm licence or permit or a certificate of authorisation, where it is suggested in paragraphs 37 to

10 39 that if the application for renewal or I suppose extension of the validity period was handed in after the expiry, a reason therefore can be offered in this form, which on the face of it and on the reading, in my view, by the average reader, suggests that there is still provision for renewal of a licence already expired.

Against this background I have come to the conclusion, on the weight of the evidence, that, as I have said, the first point in limine falls to be DISMISSED

And on the second, or urgency, argument this is indeed a matter of national importance, referring to some half a million gun

20        owners in a country riddled with crime and I am not persuaded that the applicant "sat on its hands" to use Mr Budlender is phraseology, after the February 2016 circular, but actively participated in the challenge as I attempted to illustrate and also made representations, launching the application within a reasonable time after those representations were rejected.

For those reasons I am satisfied that a proper case for ·urgency was made out so that the argument in limine to the contrary is DISMISSED

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION PRETORIA

CASE NO: 46684/2018

DATE: 2018-07-27

10        In the matter between

GUN OWNERS OF SOUTH AFRICA (GOSA)                             APPLICANT

and

THE NATIONAL COMMISIONER OF POLICE             FIRST RESPONDENT

THE MINISTER OF POLICE                                         SECOND RESPONDENT

JUDGMENT (CONTINUES)

PRINSLOO (J): Before me this afternoon at almost 16:00 in the urgent court on a Friday afternoon is the application to which I already referred in broad outlines when ruling on the urgency of the  matter.

After the lunch adjournment I was presented with a further proposed amendment of the notice of motion, to which, in my debate with applicant's counsel, I suggested what can perhaps be described as cosmetic changes to the first prayer of the proposed relief to be sought before the main court, if the interim  relief is granted.

This was in harmony, it appeared, with the views of counsel for the applicant and Mr Budiender was also engaged in this regard and indicated that the amendment would in any event be opposed. I must turn to the amendment which ! was asked to rule on at the end of argument by counsel and make a ruling as to whether or not it should be granted.

Mr Budlender argued that the amendment falls to be dismissed because if granted  it was be excipiable  on two grounds. Firstly

10 because it relies on the premise that an expired licence can be renewed, something which is wrong as a matter of law, and secondly, because it is inconsistent with the provisions of the Firearms Control Act 60 of 2000 ("the Act") without a challenge to the validity thereof.

There were further submissions by Mr Bud/ender, which assume, although I am not sure consulting my notes made during our debate, are also applicable to his opposition to the amendment and that deals with the doctrine of the separation of powers, which, so he argued, does not permit this court to make an order prohibiting the executive from carrying out its constitutional and statutory obligations.

20                      I have considered these submissions as well as those offered by Mr van Rhyn for the applicant on the question of the amendment. Mr van Rhyn submits that the amendment, by and large, amounts to a renumbering of the prayers contained in the existing notice of motion barring the introduction of new prayers aimed at facilitating the application for a renewal, both where the application for renewal was lodged inside the 90 day period envisaged in Section 24 (1) or secondly, outside the statutory period all together.

Yet he aims to facilitate this process if the court in the main application were to consider granting the relief, for example to restore the previously existing information technology system making the central firearms registry capable of also receiving and accepting applications for renewal of licences.

In my debate with the counsel for the applicant and proposing the cosmetic changes to what I will now regard as the first prayer of

10 the main relief to be sought if the interim relief is granted, I also expressed reservations about some of the prayers, notably a prayer that the court in the main proceedings will extend the term of the licence to the lifetime of the owner as was the position under the previous Act. In my view this is not permissible without parliamentary intervention.

The amendment as I am now considering it, which, as I have said, and subject to the remarks I made is more or less in line with the existing application, will be spelt out in the event of my granting an order. I was not furnished with a draft order and it is not practicable

20 now in the time at my disposal to read out the amendment as I have altered and shortened it. But the wording will appear from my order if  I make such an order.

Mr Budlender, as I indicated, said he would in any event oppose the amendment despite the cosmetic changes which I suggested and will be implementing in the order.  As far as  the argument that the amended notice of motion will be excipiable is concerned I am not persuaded that an exception will apply to the wording of a notice of motion, although I have not had the opportunity of thoroughly considering that argument.

It seems to me that the respondent in the main proceedings if the matter goes that far will be able to attack the merits of the application in the normal course. But, on the assumption that an exception to a notice of motion is competent, I assume that it would be akin to a situation where the excipient argues that the notice  of motion

10        lacks averments to sustain the cause of action.

The learned author Harms, Civil Procedure in the Superior Courts, when generally dealing with exceptions in terms of the provisions of Rule 23 says inter a/ia the following:

"If evidence can be led which can disclose a cause of action or defence alleged in a pleading, that particular pleading is not excipiable. A pleading is only excipiable on the basis that no possible evidence led on the pleadings can disclose a cause of action or defence. Causes of action are not in the first instance dependent on questions of law. They require the application of  legal principle to a

20 particular factual matrix. The test on exception is whether on all possible readings of the facts no cause of action is made out. It is for the excipient to satisfy the court that the conclusion of law for which the plaintiff contends cannot be supported upon every interpretation that can be put upon the facts."

The learned author also says on the same page, which is B –

165 that: "Exceptions are generally not the appropriate procedure to settle questions of interpretation... The court should not look too critical at a pleading. Unless the excipient can satisfy the court that there is a real point of law or a real embarrassment, the exception should be dismissed."

On B - 166 the following is said: "When courts consider exceptions, no additional facts may be adduced by either party and the court must assume that the facts alleged in the relevant pleading are correct."

10   Against this background, and given  the fact  that many allegations are contained, particularly in the founding papers, which may or may not resort under admissible evidence given some of the arguments advanced on behalf of the respondents, ! am not persuaded that the notice of amendment, which as I said is very closely related to the existing notice of motion, barring some cosmetic changes is excipiable in the spirit of the principles pronounced by the learned author Harms.

Counsel for the respondents already received the amendment now before me for decision on Monday of this week, today being

20 Friday and as I have said repeatedly the proposed changes have been debated with him, so that I hope that I will not be remiss in not now for the sake of brevity quoting the whole document, which in any event will be quoted at the end of this judgment if the relief is granted.

In the circumstances the amendment is GRANTED

! turn to the  merits of the application having decided the argument in limine earlier today in favour of the applicant. Broadly speaking it can be said in my view that on a general reading of the evidence and on the weight thereof, it is firstly common cause that prior to a circular being issued by a previous Commissioner on 3 February 2016 it was the accepted practice of the police to entertain applications for renewal of licences which had expired.

I have briefly touched upon this subject already. But apart from the fact that it is common cause that that is the arrangement which was applied, Mr van Rhyn for the applicant in regard to this

10 subject, which is one of the crucial subjects for discussion and also to be included in the main relief if granted, that in terms of the regulations promulgated in terms of the Act, a certain application form for renewal of a firearm licence, permit or certificate of authorisation known as SAPS 518 (a) was promulgated with the regulations and as part thereof and the undisputed submission of Mr van Rhyn is that this application form is still applicable and, for example listed on the website of the police and there is no reason to believe that it has been amended. There is no suggestion that the regulation has been amended, nor that the Act has been amended in as far as it relates to

20        this particular subject.

On this form SAPS 518 (a), which an applicant for renewal must complete, the following questions are posed in paragraph 37: "Was your application handed in 90 days before expiry of the existing licence? If no, submit the reason." There is then a block to be ticked and a "yes" or "no" and in the latter instance "reasons". That is for the applicant to complete and explain why the application was not handed in 90 days before expiry.

Paragraph 38 provides: "Was your application handed in after the due date but before expiry of existing licence. If yes, submit the reason (indicate with an X)" and again the blocks and the "yes" and "no" ought to be ticked and in the latter case under the block, "reasons". The reasons for applying before expiry of the existing licence but after the due date must be  furnished.

Lastly, but perhaps more importantly, under paragraph 39 it is

10 stated: "Was your application handed in after the expiry of existing licence. If yes, submit the reason (indicate with an X) and then there is the block "yes" and "no" and in the latter instance "reasons", where the applicant in terms of the application form still in existence on the undisputed submissions before me can explain why the application was handed in after the expiry of the existing     licence.

From this it must be assumed in my view that on a strict interpretation of the regulations, and bearing in mind the admitted status quo before the circular of 3 February 2016 saw the light, that it was accepted practice for a renewal application to be revived in a

20 proper case, even after expiry.This is one of the reasons offered by  Mr Budlender why the notice of motion would be excipiable because the application is based on the premise that an expired licence can be renewed and this according to counsel is wrong as a matter  of law.

In the proposed amendment provision is made for relief to be sought in the main application lo the effect that a declaratory order is asked for; that on a proper interpretation of the relevant Sections 24, 27 and 28 of the Act, a renewal can still be granted by the registrar on good cause, even after expiry of the licence.

In my view, given the existence of form SAPS 518 (a) and the previous practice, which was generally applied, and arguments surrounding issues such as the existence or lack thereof of a legitimate expectation on the part of the firearm owner and licence holder; I am of the view that in the spirit of the requirements for interim relief there is at least a prima facie arguable case for the granting of  a

10         declaratory order such as the one I attempted to     illustrate.

The circumstances leading up to this application are to an extent exceptional. I have made mention thereof briefly in the earlier judgments today and the main thrust of the applicant's case or certainly one of the corner stones thereof, is based on allegations that after the Constitutional Court judgment finding that the present regime surrounding firearm licences, the expiry and the granting thereof provided for in the Act, is not unconstitutional there was this flurry of activity, as I mentioned earlier in the other judgment, with various police officers in various capacities and with various ranks starting to

20 apply pressure on firearm owners whose licences had expired in terms of the provisions of the Act and notably Sections 24, 27 and to an extent 28 are to immediately surrender their weapons for destruction, failing which they will be prosecuted, arrested and dealt with.

This has caused major anxiety amongst the role players, not only individual firearm licence holders o,- holders of expired licences, but also for example security personnel mandated to protect innocent law abiding citizens whose firearms may no longer be legally licenced because their licence had expired. The founding affidavit is to a large extent devoted to this state of affairs.

I also add that the applicant, Gun Owners of South Africa, an organisation not for gain, has been actively engaged in firearm organisations in South Africa since 1985, a period of more than 30 years.Mr Oxley, the deponent and chairman, personally has been

10 engaged in firearm organisations since 1985. The voluntary organisation has a host of objects listed in its mandate, some of which include the following:

"                                  "To ensure that the central firearms register (CFR) of the South African Police Services ("SAPS") sticks to its mandate.

"                                  To promote transparency in firearms legislation.

"                                  To ensure equal treatment before the law for its members in the context of firearms legislation.

"                                  To     ensure     reasonable     and    rational     (firearms)      licensing requirements.

20              To ensure the transparent and even application of the Firearms Control Act."

There are others as well which I will not list because of the time of day.

The applicant is a legal persona in terms of the Constitution and for that reason can litigate, as it does at the moment, and on the undisputed evidence of Mr Oxley has vast experience in the field of firearm licensing and the practical implementation of the current licensing system.

Importantly the applicant currently has 40 000 members and has seen substantial growth in membership numbers over the past three years. Before me it was common cause and also on the papers, that the number of expired licences affected by the development following the Constitutional Court judgment about the threats and notifications issued by the police, comes to some 450 000.

10     If rounds of ammunition of 150 per firearm is added to that, one sits with a staggering figure of some 60 000 000 rounds of ammunition and if it is about 100 rounds of ammunition per weapon, by way of an estimate, one would still have some 45 000 000 rounds of ammunition which have to be surrendered, received, stored and destroyed or otherwise properly dealt with.

The witness Oxley in his founding affidavit makes the following statements which may sound dramatic but in my view are realistic: "It is a matter of individual life and death for those individuals and security companies (including their staff and the people who rely on

20 their protection) with expired licences because the SAPS indicated that those firearms should be handed in for destruction. The affected people will therefore be unable to defend their lives or those of others under their protection under these circumstances.

This is a matter of national security and there is a clear and pressing danger to the security of the state and all its citizens if the court does not take the necessary measures as provided for and explained herein and also restore order and certainty. I submit that when it comes to removing self-defence firearms from hundreds of thousands of people that the consequences will cause societal upheaval, chaos and risk lawlessness."

The following is also said in the founding affidavit, which in my view is supported by the weight of the evidence: "Chaos is currently reigning regarding firearms for which the licences expired and the public is desperately seeking answers and guidance.     An order and

10 clarity is urgently needed from this court in lieu of such clarity coming from the first and second respondents. As appears from the annexures that are attached as P04, several of what appears to be draft directives with instructions to the public emanating from lower ranking SAPS members have surfaced in the media. The contents of these directives are a cause of concern because:

1.       It appears that they were distributed by lower ranking members of the SAPS without sanction by the first  respondent.

2.         It appears that they were working documents/drafts that should not have been distributed.

20 The plans that are stated in those documents are patently 'full of holes' relating to the taking of proper measures for !he safekeeping of the firearms.

4. The aforesaid documents do not set out any plan regarding the safekeeping of an estimated 60 000 000 cartridges that go with the 450 000 firearms, and, indeed, there is no practical way of keeping the ammunition safe, as ammunition, unlike firearms, do not have serial numbers. It appears that the SAPS may not have considered this reality and the impact thereof.

The SAPS do not have the capacity to process an additional 450 000 firearms safely through the compulsory ballistic testing that needs to be conducted in terms of the provision of the FCA. In our experience it takes between 16 months and three years or more for a single firearm to go through such processes in cases where our members  have defended  their own lives  with   firearms,   and such

10 firearms are then sent for ballistic testing. The effect of this will be that 450 000 firearms will remain in existence for an extended period. It will be years or decades even before the processes  are finalised.

There is no indication that the SAPS have the required safekeeping facilities as prescribed by the regulations to the FCA that places limits on the number of firearms that may be stored in a single safe

The following directive from the Deputy Provincial Commissioner of the Limpopo Police to Cluster Commanders and Station Commanders is of significance and I quote extracts and I hope

20        that I am not doing it selectively.

2.     "It needs to be advised that no station must send any person away who wants to surrender the firearms with the advice to come and hand in during amnesty.

3.   Amnesty is not yet promulgated and if amnesty is declared

then it will be communicated with you. For now all firearms with expired licenses must be handed in for     destruction.

6.1 All surrendered firearms must be transported on a daily basis to Provincial Storage facility with the completed packing notes. Cluster Commanders must arrange common transport and for escort in the case of bulk firearms.

7.1 Please take note that the green licenses (GL) that was not migrated to the white licence (WL) is still valid. But those who migrated from the green and white licence cannot use the green licence as a valid licence for the firearm as it stops to exist with

10                    the issuing of the white licence."

It is in my view significant in the general scheme of things that the green licences predating the promulgation of the Act in 2004 is still recognised, even though not renewed in any way because there was no such provision under the previous Act. What is of importance too is the reference to amnesty and it is recognised generally and it was also alluded to [audio faulty from 01:36:43 to 01:36:37].(audio indistinct )

... as recently as on 9 July, some two weeks ago was a host on Jacaranda FIVI. He accepted telephonic questions from members of

20 the public. A caller told the second respondent that he could not renew his licence because the SAPS Garsfontein refused to accept his application for being late. He wanted to know what to do. The second respondent then commented as follows: 'We are working on the amnesty. It is going to be coming up very soon from parliament for those people who want to return their firearms, the ones that are unlicensed under there are almost 430 000 that are supposed to be brought back, Police are working the logistics, There are too many logistics of receiving them as they come back but the question of the amnesty is going to be out soon where you can return your- gun, even if it is licenced if you do not want it Johan (my note this is the caller with the query) at the present moment can keep it, wait and because as I am saying police themselves,.,"

Both counsel informed me from the bar without any objection from either side that parliament  has  already  been requested to

10 sanction such an amnesty and although the terms of the amnesty are not yet clear, Mr Budlender was gracious enough to explain to me what in his knowledge the terms of the amnesty are likely to be, namely that the firearm is to be handed in, in the case of an expired licence, followed by an application for renewal or a new licence and then if that application is successful the firearm is returned to that particular applicant.

Whether that is how the terms will eventually read I do not know and I certainly cannot hold Mr Budlender to this communication, which  I  appreciate, But  on  a general reading of all these

20 developments it is clear that an amnesty is in the offing which will

entail the situation where the weapon is not to be destroyed pending the outcome of a new application and if the application is successful the weapon will be returned to the successful applicant

This is in stark contrast to a notice found recently by a Thabazimbi farmer, and I assume a member of the applicant, although

I am not sure, attached to his farm gate where the following is said inter alia: "The only way to get rid of the firearm is to surrender it to the police for destruction," This is a fine example of the type of notices and threats received from various orders and police with various ranks since the Constitutional Court judgment.

I add in fairness to Mr Budlender's comprehensive arguments that the Constitutional Court in the judgment finding that the present regime is not unconstitutional, made some remarks, which in my respectful view can be nothing more than obiter remarks, to the effect

"The gun holder must get rid of the firearm, But, goes the argument he cannot do so lawfully because he immediately becomes guilty of a aime when the licence has lapsed, But this consequence even if correct (which it is not) is not vague or uncertain or irrational in terms of the end sought. The gun owner knows that he must either apply in time for renewal or dispose of the firearm before expiry, If he does not he will be guilty of an offence, He knows what is expected of him before expiry of the licence and is provided with legislative means to fulfil that expectation, He also knows what will happen to him if he

20        does not do so, the rule of law requirements of clarity and certainty are clearly met"

I have concluded that these remarks have been made obiter because it does not take into account the proposed amnesty which is designed, if I understand it correctly, to avoid destruction of the weapon in the case of a successful application, and it also does not take into account the implications of form SAPS 518 A, and the order , made did not deal with this issue at all. It only reverses the finding of this court that those provisions are unconstitutional by the phrase: "The application is dismissed."

The respondents also argued that the applicants were remiss in not submitting direct evidence from an aggrieved party, but only relying on evidence inter alia to be found in newspaper reports, the authenticity of which was not disputed and also summaries of remarks by parliamentary portfolio  committees.  There is also the   general

10        remark obtained from the parliamentary report in Service Hansard of 9 February 2000 on page 2994:

"38.1.4 Before the introduction of the FC/\ it appears that more than 380 000 members of the public either made objections or provided other submissions to the Bill but the FCA was nevertheless introduced in 2000 and came into effect from 2004, without the SAPS being in a state of readiness and having the capacity to implement and to administer it, despite their assurances to parliament at the time.

20       38.1.5 The FCA required that all people with existing licences for firearms (that were issued under the provisions of the previous Act) to apply for new licences.

38.1.6 It ultimately so happened that some people waited for up to eight years or longer before their applications for new licences lo replace their existing licences     were finalised, despite the target date of 90 days. That can be gleaned from the provisions of Section 24 and directives of the SAPS to this effect.

38.2       This context is important because:

38.2.1    It shows that the SAPS never had the capacity to deal with the relicensing of firearms that were already licenced.

38.2.2       It shows that the SAPS gave grossly incorrect assurances to parliament on the matter.

10         38.2.3          It shows that the SAPS never treated the     issue of relicensing seriously.

38.2.4       It created an impression with the public that the system is inoperable and the provisions relating to the compulsory relicensing were redundant and it will be done away with.

38.2.5      This perception (legitimate expectation) was strengthened by the report by the Public Protector number 10 of 2006/2007 ..."

There are more recent extracts from Hansard for example in

20        June 2009 referring to a 2009 judgment of this court containing the following allegation:

"The legislator should have taken into account the available administrative facilities and should not have designed a transition arrangement which cannot be implemented by the officials of the respondent. The lack of  administrative facilities appears to be uncontested on the papers. I was reminded that the applicant pointed out that the respondents committed unlawful public administration by employing procedures which are ultra vires, the empowering legislation. This was also not contested."

I add for the sake of good order that this is an extract of a judgment given by myself in this court in 2009, which was attached to the applicant's heads of argument and discovered by me after the application was allocated to me for consideration and adjudication by my senior judge at a late stage, when I, after pressure of work earlier

10 in this week, came to read these papers. I debated this with counsel in chambers and there was no objection to my dealing with this application despite the fact that my judgment was mentioned in the papers.

There were further extracts from Hansard dating back to 2009, November 2010, March 2011 and August 2012. I read that the August 2012 entry refers to a press statement with the on-line reference clearly stated to the effect that at Berea police station more than 80 firearms could not be accounted for, about 100 were believed to be missing from Greenwood Park and Umbumbulu and 50 from Umlazi.

20 Another press statement with the proper reference, the authenticity of which is not contested, dated October 2012, reads, and I eliminate the name of the police commissioner involved for his own protection, I will only call him commissioner X:

"Cape Town - cops are hiring out their guns to criminals. Western Cape Police  Commissioner X admitted on Wednesday speaking at the Cape Town Press Club, X said all police firearms were now recorded on a data base and if the weapon was used during a crime it could be traced to the officer ... Criminologist Liza Grobler's ground breaking research highlighted collusion between gangs and the police. According to police statistics 159 police - issued guns were reported as lost or stolen over three years. However it is not only official guns that are passed onto criminals. According to Grabler corrupt police officers made firearms disappear from evidence stores, and these are sold to gangsters. X said fighting gangs and  substance

10        abuse were among the police's priorities ... "

There are a number of these entries. the origin of which is not disputed with the proper on-line references alleging inter a/ia that police and metro police were involved in the theft of weapons. Others that for example: "A massive firearms scandal unfolding in the Johannesburg Magistrate's Court is expected to lead to a wide scale investigation involving corrupt policemen supplying a1·ms and ammunition to criminals..."

For the sake of brevity I will not deal with all these entries and there are many of them.

20    I revisit my remark that on behalf of the respondents it was argued that the applicants were remiss in not offering "real evidence" by aggrieved people on the ground directly involved. In my view, bearing in mind the urgency of the case and the generally accepted circumstances illustrated in these press reports, and bearing in mind that the respondents in their answering affidavit did not deny these allegations, I am satisfied that on the weight of the evidence it is clear that dishonest and untoward behaviour in certain ranks of the police at certain locations when it comes to the guarding and handling of firearms has become the order of the day and is a matter of public knowledge, of which in my view as an ordinary citizen I can take judicial notice.

The situation now is that, certainly pending an amnesty, which on the probabilities before me will soon be a reality and could add a different complexion to this case, the applicant representing 40 000

10 holders of firearm licences be it valid or expired is seeking what I consider to be realistic and relevant relief on an urgent basis for interim assistance by this court and then certain relief mentioned in the notice of motion as amended to be offered to a court appointed to entertain the main application, if it ever becomes necessary, considering the possibility of an amnesty.

The arguments of Mr Budlender are with respect important and something not to be taken lightly. For example his argument already referred to about the separation of powers. His argument is that this doctrine of separation of powers does not permit a court to make an

20 order prohibiting the executive from carrying out its constitutional and statutory obligations.

Firstly, in as much as this only relates to relief against the police and the manner of executing the mandate in a more recognised and practical way, does not in my view amount to a situation where, for example, an executive policy decision is interfered with. This is particularly so given the Minister's news that an amnesty is eminent. The interim relief sought is only that, namely interim relief, and it is encapsulated in only one prayer, which is prayer two which also featured in the pre-amended notice of motion and it     provides:

"Directing that the SAPS as represented herein by the first and second respondents be prohibited from implementing any plans of action or; from accepting any firearms for which the licence expired, at its police stations or at any other place for the sole reason that the licence for the firearm expired and that the SAPS be prohibited from

10 demanding that such firearms be handed over to it, for the sole reason that the licence for such a firearm has expired and that this order will operate as an interim interdict pending the further determination of this application as prayed for in paragraph 3.4 infra."

I add that on the amended notice of motion, and because some of the relief was deleted by the amendment, the relief to be sought before the court in the main application has been renumbered from one to eight. Nothing turns on that. Also the interim relief sought in my view is in harmony with the Act and the regulations prescribing the right or the opportunity for the holder of an expired licence to apply

20        for renewal upon good cause shown in terms of Form SAPS  518 (a).

Mr Budlender also commented on what was said by the then Appellate Division in the well-known case of Airoadexpress (Ptv) Ltd v Chairman, Local Road Transoortation Board, Durban and Others [1986] ZASCA 6; 1986 (2) SA 663 (AO) at 676 A to E.

"The decision in that case is based on the existence of  a

'general power-' or, put differently, an inherent jurisdiction to grant pendente lite relief to avoid injustice and hardship, An inherent power of this kind is a salutary power which should be jealously preserved and even extended where exceptional circumstances are present and where, but for the exercise of such power, a litigant would be remediless as is the case here."

There appears to be some dispute about whether a strong prima facie case is to be established in the urgent application for interim relief before this inherent general power can be exercised or

1O not, because at 676 B with reference to the De Fraetas case the learned judge says, before dealing with this inherent general     power,

"I am of the view further that in principle the same approach should prevail..." I correct that I go back a few lines from 676 A to quote it in full context illustrating this dispute:

"I cannot accept that, if it can be shown in a case of this kind that the appellant must inevitably succeed in the appeal, interim relief pending the determination thereof can lawfully be withheld solely by reason of an order which cannot conceivably be sustained. I am of the view further that in principle the same approach should prevail

20 where a strong prima facie case is established that the permits applied for were wrongly refused. In my view the principle applied in the De Fraetas type of case should be extended to a case like the present"

Then follows the passage quoted about the inherent power already mentioned and fully quoted.

Mr Budiender argued  that this inherent jurisdiction is not extended to make an order inconsistent with the Constitution or inconsistent with an Act of parliament In my view this a1·gument cannot be sustained because form SAPS 518 (a) is not in conflict with the Act but in fact directly in line with the Act and the regulations.

I am also of the view, for the reasons mentioned, that an arguable prima facie case has been made out justifying the exercise of the inherent power, if necessary vested in me, to "tide over" the applicant which would otherwise be remediless.

10     For all the reasons mentioned, and given the time     of day in this urgent court; I have come to the conclusion that a proper case was made out for urgent interim relief in the spirit of at least the principles laid down in Airoadexoress and that the applicant and its 40 000 members, or those affected members, and 450 000 other gun users with expired licences, ought to be assisted, pending the result of the proceedings when the main application is heard or, perhaps the result of an amnesty being granted.

I am of the view that these affected persons will be remediless if they are not assisted because of the conditions prevailing in the

20 police force which I have attempted to illustrate by reference to authentic newspaper reports and the evidence, largely undisputed, of the experienced deponent to the founding affidavit, who has been involved in these matters for 30 years.

In the result I am inclined to grant interim relief in terms of the amended notice of motion.

As to costs; I was urged by Mr Budlender, if the application is dismissed, to grant costs, including the costs of two counsel, against the applicant, and it was argued, correctly in my view, that the well­ known Biowatch case prescribing briefly that in genuine constitutional disputes raised in litigation the unsuccessful party will normally not be muleted in costs despite his failure, applies,

Mr van Rhyn on the other hand urged me that, if successful, the applicant should be awarded costs of these interim proceedings, and if unsuccessful, no costs should be awarded against the applicant

10 because of the situation created, by and large, by the February 2016 circular flying in the face of the application form SAPS     581 (a).

After due consideration, I have come to the conclusion that it would be in the interests of justice to reserve the costs for determination before the court hearing the main application. This is not an uncommon approach, as the result of that application may dictate where the costs of these interim proceedings should properly have been awarded to.

I add for the sake of good order that I am satisfied that the other requirements for interim relief namely real or perceived prejudice

20 if the relief is not granted and the balance of convenience, which normally goes with the question of prejudice, comparing the prejudice experienced by the applicant if the relief is not granted with any prejudice for the respondents if the relief is granted, and the absence of an alternative remedy, have been properly complied with and  met

Details are copiously illustrated in heads of argument It not necessity under these urgent circumstances for me to repeat those arguments. Indeed I take the liberty to say, as to balance of convenience, and given the Minister's own confession that the police have great difficulty in meeting the logistics of this new situation of 450 000 weapons having to be returned, may well elicit a sigh of relief when this interim order is granted, suspending this process pending an amnesty perhaps, or at least a decision by a court hearing the final application.

I make the following order:

10              It is directed that the SAPS as represented herein by the first and second respondents are prohibited from implementing any plans of action or from accepting any firearms for which the licence expired at its police stations or at any place, for the sole reason that the licence for the firearm expired and;

That the SAPS is prohibited from demanding that such firearms be handed over to it for the sole reason that the licence of such a firearm has expired and;

That this order will operate as an interim interdict pending the further determination  of  this  application  as  prayed  for  in

20    paragraphs three lo nine below.

2.    This application is then postponed to the opposed motion roll for further determination in the normal course of the roll, for the further determination of the following relief as prayed for by the applicant;

3.    That by declaratory order of court the period as referred to in

Sections 24, 27 and 28 of the Firearms Control Act, Act 60 of 2000 may be extended in order for people that hold expired licenses to apply for the renewal thereof on good cause shown and within a period determined by the court.

4, The first respondent is ordered to withdraw the circular issued by the Acting National Commissioner on 3 February  2016.

5.    The first respondent is ordered to issue a directive that the information technology system of the Central Firearms Register be restored to a position that it is able to accept applications  for

10    renewal of licenses which are late because they     are lodged inside the 90 days period envisaged in Section 24 (1) of Act 60 of 2000 ("the Act").

6.       The first respondent is ordered to issue a directive that the information technology system of the Central Firearms Register be restored to a position that it is able to accept applications for renewal of licenses which have expired because the period of their validity contemplated in Section 27 of the Act has     expired.

7.       Any applications for renewal contemplated in 5 and 6 above shall still be subject to the requirement  of "good cause" as

20  contemplated in Section 28 (6) of the Act

8.  Any applicant who has lodged an application for renewal and who has prima facie provided good cause in the relevant space provided for on SAPS form 518 (a) shall be deemed to be in lawful possession of the firearm until his application has been decided.

8.     Further and or alternative relief.

9.      The costs of this urgent application inclusive of the costs of two counsel, if applicable, are reserved for decision in the main application.

MR VAN RHYN: As the court pleases.

COURT: My thanks to the stenographer for helping us beyond the call of duty and I wish litigants who came from the Cape, and counsel a pleasant journey back. i hope they can still find a piane in time.

10        The court adjourns.