GOSA and the Chamber of the Supreme Court of Appeal

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Friday, 22 May 2020, marked a hearing before the Supreme Court of Appeal between Gun Owners SA (GOSA) and the South African Police Service (SAPS). It followed a successful effort by GOSA in 2018 to obtain an interdict against SAPS to protect gun owners whose firearm licenses expired but were prevented from renewing due to obstruction efforts by SAPS. The appeal by SAPS to the SCA has turned into a delay tactic following more than one failed instance of filing papers on time. Had the appeal not proceeded, it is very likely that the main hearing would have either been very close if not already concluded.

It must always be borne in mind that court proceedings are not like public speaking debates and the legal nuance of the machinations of a court are not always obvious to those outside of the legal fraternity. The trial judges could probably be fairly described as ‘confrontational’, and they asked many pointed questions that came across as hostile towards GOSA. It must be noted that one needs to listen to the entire trial if it is to make sense. I for example only joined the livestream an hour after court went into session, and this left me with a very negative opinion on GOSA’s prospects. However, when I went back and watched the first hour I had missed (or at least most of it), the ‘hostility’ found context and I was much reassured. This context appeared to be a bit of a goose chase into some very fine detail which was so burdened with nuance, that the individual judges appeared irritated by it.

It is true that the SAPS arguments were not nearly subject to as much scrutiny as the GOSA arguments were. As the appellant, SAPS argued on principles of separation of powers saying the High Court had no authority to make the order that it did. While certainly entitled to make this argument, it would reflect poorly on the SCA if it were to accept it when one considers that it was unlawful executive action by the SAPS that made the 2018 interdict so necessary. The principles of legality support GOSA and the High Court, not the SAPS.

The separation of powers is a constitutional doctrine directing that the judiciary, legislature, and executive, do not intrude on each other’s domain. In the case of South Africa there is a very strong argument that this doctrine is extremely watered down to the point of being meaningless insofar as the legislature and executive are concerned, but that is another matter. If the SAPS argument is to be upheld, it would greenlight executive action running roughshod over human and constitutional rights when a court comes to the rescue of persons whose rights are affected in the relevant issue. If it is upheld, it would effectively mean that the immediately blatantly unlawful conduct in 2016 that created the crisis, is condoned until later determined. Such action cannot stand and must be either struck down or interdictory action upheld until properly adjudicated. The courts, as Martin van Staden seems to insinuate in his book The Constitution and the Rule of Law, do not exist to protect the executive and legislature, but the citizenry. Upholding the SAPS appeal would amount to protecting the executive despite their role in causing the crisis and show disdain for the victims.

Some of the argument advanced by the SAPS were also dishonest and irrelevant, namely that expired licenses are a risk to society because the holder is somehow rendered unfit by it. Never mind that licenses have nothing to do with proficiency, because it is the competency certificate that is concerned with this and the competency certificate was not before the court. It can be noted that one challenge by SAPS was the lack of affidavits of anyone affected by the 2016 directive, and I must concede that this does hold water. There were many people affected by the directive, yet GOSA did not obtain any such affidavits. GOSA’s argument in this regard appeared to be that the urgent nature of the interdict made it necessary to dispense with obtaining such affidavits. GOSA has however in the two years since the interdict obtained dozens of such affidavits in preparation for the main hearing. Unfortunately the SCA was confined to the record of the High Court that first granted the interdict in which there were no such affidavits.

Apart from the legal nuances involved that cannot be appreciated by everyone, the constant barrage of questions indicates an interest in the matter, or at least in why one party believes or insists on a specific fact or interpretation of facts. While this questioning can come across as hostile (even to the attorney or advocate bearing the brunt of the questions), the answers cannot be immediately determined to what extent a judge is swayed unless the judge in question explicitly states this. In this regard, it would appear that while skeptical (and this is an assumption), the individual judges accepted the answers they received for consideration. That said it can be noted that this hostility translated into a fixation on issues such as conceding that an expired license is an offence. GOSA was able to submit that this could only be true if there was animus (or an intention) to let a license expire and be unable to submit reasons as to why.

It would not be incorrect to be concerned that throughout the multi-hour-long trial, an inordinate amount of time was dedicated to questioning and chasing technicalities (such as whether an expired license is an offence) rather than more substantial matters. Particularly as how SAPS created the crisis of expired licenses and how principles of legality demanded that the rights of gun owners to property and just administrative action be upheld. By way of example, roughly a mere thirty minutes was given to explaining the 2016 directive which initiated the entire legal fiasco. Similarly, there were no questions by the judges against or for it. This can be a good thing in that they consider the matter so simple and straightforward that they have no questions. It could also indicate lack of interest in that particular issue, which is not a good thing.

The trial before the SCA was not the slam-dunk that many anticipated, and the fact the entire trial was conducted via Zoom video conferencing did not help anyone. At times the advocates did not hear each other or the judges and vice versa. In one moment, a judge seemed to barely contain his rage at the apparent insinuation that the court was biased towards SAPS. Anyone with a decent enough connection could not have reached that conclusion, but fortunately GOSA’s advocate was able to make it clear no such insinuation was made or even intended. A question does however hang whether it was a connection issue, or whether it was a more innate defensive reaction against a statement that would have held truth had it been intended.

For now, the gun owning world of South Africa is on tenterhooks until judgement is delivered which should be within two to three weeks at the soonest. Either way and as the saying goes, it is not over until the fat lady sings. It would not be the first time that one party is seemingly buried under hostile questions in trial only for the judge to pivot 180 degrees in judgement. Judges must show that they made an effort to understand the submissions made before them, and perhaps they were genuinely grossly ignorant of GOSA’s case, hence the seemingly brutal interrogation to become more appraised of the argument. I have faith that the SCA’s decision is not a foregone conclusion in favour of SAPS after Friday’s arguments.

In closing it should be noted that completely independent of the legal action that ensued today, gun owners who have expired licenses and are concerned about where they stand considering that the amnesty expires on 31 May 2020, need not be alarmed. A request has been submitted by the Police Minister to Parliament to extend the amnesty due to the COVID-19 crisis. It is unlikely to be refused. Even if it is refused, there remains a week to see whether or not it is extended.

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