After waiting for just over two months, the Supreme Court of Appeal (‘SCA’) finally issued judgement in the much anticipated and long-awaited appeal by the South African Police Services (‘SAPS’) against the Gun Owners South Africa (‘GOSA’) interdict. At two months, one would be forgiven for expecting a thorough, long and detailed judgement. In fact, none of these things happened. Instead it was a short (a mere twenty-five pages) and deeply flawed judgement, and possibly one of the worst considered SCA judgements in the last twenty-seven years. All criticism is of course said with the deepest respect to the judges on the bench.
The judgement hammered both GOSA and the High Court judge Prinsloo J with criticism before unequivocally agreeing with SAPS’ arguments that the High Court judgement impermissibly infringed the separation of powers doctrine. The judgement effectively criminalises a few hundred thousand otherwise lawful citizens whose only flaw was not renewing their license on time and denies them the opportunity to rectify this error on their part. Despite the law-making provision for this through Form 518(a).
The most glaring error in the judgement is treating SAPS form 518(a) as irrelevant. This form is used for the renewal of a license application and contains a section enquiring whether the license to be renewed has expired, and if so, why. The forms are regulated by Regulation 13 of 2004 which are subordinate to the Firearms Control Act 60 of 2000 (‘FCA’). The SCA said of this at paragraph 44:
“Regulations must be interpreted in the context of the Act, not the other way around. This is another reason why the final relief has no reasonable prospect of success; the purported renewal of expired licences [sic] in Form 518 is at odds with the express provisions of the Act, quite apart from its inconsistency with the Act’s purposes.”
I submit that regardless as to whether this statement is legally correct or not, it is also legally irrelevant, and contemptuous of the rule of law. Form 518(a) had been used and legally recognised by the SAPS as binding law that they in turn honoured for twelve years. This years-long record of practice, as well as the undeniable fact that the common person with even the vaguest literacy skills to interpret Form 518(a), gives the SCA no leg to stand on in making this statement. There was a more than adequate understanding by both the SAPS and the common person that an expired license could be renewed. It is even logical that the Form made this provision because as mere humans, forgetting is part and parcel of the average person.
Renewals through Form 518(a) were accepted until February 2016 when acting National Police Commissioner Phahlane unilaterally prohibited the SAPS from accepting renewals for an expired license. Further to this, the Central Firearm Registry was sabotaged. This computer data interface is used by officers at station level to log applications and renewals of licenses, but with the sabotage, the system does not return any information when trying to renew an expired license (as it did before the unilateral Phahlane act). The SCA effectively condoned this unlawful and contemptuous act by the SAPS that not only prejudiced lawful firearm owners, but criminalised them.
Also related to the Form 518(a) issue is that in the SCA, the SAPS contended that the Constitutional Court considered the form in Minister of Safety and Security v South African Hunters and Game Conservation Association. Yet when Prinsloo J asked SAPS’ counsel whether Form 518(a) was fatal the case, SAPS’s counsel did not state that the Constitutional Court had considered it. It would appear that the Constitutional Court did not in fact consider Form 518(a), making this line of reasoning in the SCA judgement erroneous.
The SCA has also held in this judgement that upon the mere effluxion of time, a firearm owner who is competent to own a firearm on Monday will be incompetent to own a firearm on Tuesday (paragraph 49). This despite the proficiency training certificates necessary for competency and therefore also a license having no expiry date, and effectively showing up the FCA license regime for what it truly is, namely a mere administrative procedure of filling in paperwork and paying a fee. Failure to comply with this bureaucratic exercise therefore criminalises such a person, for no discernably logical or valid reason. In doing so, is the SCA has confirmed that if a person holds a self-defence license (valid 5 years) and a sport license (valid 10 years) in respect of two firearms, and one expires, then that person is a risk to society, but only in respect of that one firearm. The other firearm is perfectly fine. This is incoherent in both law and logic.
Further to this, the SCA decided that expired licenses are at risk of being stolen and used in crime (paragraph 16), and somehow logically disconnected this from the same possibility with validly licensed firearms. It is irrelevant whether or not the license is current or expired because both are listed on the registry and neither is more susceptible to criminal acts than the other. What is more, is that the SCA tried to interrogate the competency and licensing regime during argument, and when it became too difficult for them to follow the explanation given by GOSA’s counsel, Schippers J dismissed the entire discussion as a red herring. Somehow the ‘red herring’ of 22 May 2020 has made a strong showing as quite central to the judgement of 23 July 2020.
As stated above, proficiency and competency with firearms has nothing to do with the renewal procedure because the procedure is purely a bureaucratic exercise. At most, the application goes for a criminal records check. This is almost pointless because if the SAPS do their job properly, a person who is convicted of a crime that renders them unfit before renewal will be identified as unfit before renewal. If the holder of a license commits a crime three years into this time, but the SAPS only notice seven years later with renewal, what has this achieved? The SCA clearly and severely misunderstood the bureaucratic nature of the FCA and abandoned trying to understand it during argument.
The SCA also held that GOSA had no case due to total absence of evidence of its arguments. With respect to affidavits, I must agree as I believe this to be a relatively simple procedure of little inconvenience. However, the absence of such affidavits should by no means have been fatal to GOSA’s chances of success. In paragraph 42, the SCA criticized the High Court for taking judicial notice of the corruption and untoward behaviour within the SAPS, calling the media reports used by GOSA as mere ‘hearsay’. This is concerning and indicates a court deeply out of touch with the reality of institutional corruption and incompetence in South Africa.
The SCA also found the interim interdict to be permanent in effect, not temporary (paragraph 17). While I am not an authority on the subject of law (yet), this does not sound right at all. The interdict was an interim measure acknowledging the serious issues within the SAPS, not limited to but most importantly, realising that there was a practice of accepting renewals for over a decade that stopped literally overnight and without any warning. The SCA went even further to harshly criticize GOSA’s arguments intended for the main hearing, which upon its success or failure would have terminated the interim interdict and replaced it with the outcome of the main hearing. The SCA may or may not have made valid criticism of GOSA’s main arguments, but to call the interim interdict final in effect is very wrong in this regard.
Throughout all of this, it is clear that the court fundamentally misunderstood the timeline of events, the nature of those events, and the consequences of its judgement. None of this can be said to be in the interests of justice. For firearm owners and their relevant associations, now would be a highly inappropriate time to criticize GOSA’s efforts. GOSA stepped up at a time no other organisation would after what I believe to have been a failure of a misplaced constitutional challenge and bought much needed time and hope for many firearm owners. The SCA judgement is also replete with errors of fact and judgement and should be appealed.
The Constitutional Court is not the ‘snake pit’ some firearm owners think it is, and even if it is, it has not been given a chance to show itself as such. The SCA is therefore not the end of the road, and all firearm owners and organizational bodies should seriously consider making financial contributions to take this decision to the Constitutional Court on appeal and drum up public support. Something that escapes many people is that the Constitutional Court is more of an ideologically driven court than a law court, and to win in that court one must play ideological games and win the hearts and minds of the general public, and the justices may well follow.