Judgment by the Supreme Court of Appeal in the GOSA interdict case

PAAA members probably would have heard that the appeal by the National Commissioner and the Minister of Police against the interim interdict granted to Gun Owners of South Africa (GOSA) by judge Prinsloo in the Gauteng High Court (Pretoria) on 27 July 2018, was upheld by the Supreme Court of Appeal (SCA) on 23 July 2020, and the interdict was accordingly set aside. This is very unfortunate since the High Court judgment provided protection for firearm owners who had failed to renew their licenses timeously in that it prevented the SAPS from applying, implementing and enforcing various provisions of the Firearms Control Act No. 60 of 2000 (FCA), such as accepting and demanding the surrender of firearms with expired licenses. The effect of this SCA judgment is that there is no longer such protection for those firearm owners. I am in no position to criticise GOSA or judge Prinsloo and I do not express any opinion on the factual evaluation or interpretation of the evidence by the SCA. I am, however, of the opinion that the legal analysis and findings of the SCA are correct. I am aware that GOSA is currently considering their options, one of which may be an appeal to the CC. I am, however, not prepared to speculate on their chances of success or what the right option is.  

One of the issues raised by GOSA’s counsel was that a judgment granting an interim interdict was not appealable. This was a good argument, since this usually is the case, however, there are exceptions. In this case the court ruled that “The interim interdict has a nation-wide effect, and constitutes an impermissible intrusion by a court upon executive authority, as explained below. The SAPS is prohibited from exercising its powers and carrying out its obligations under the Act. For this reason alone, the interim order is appealable.” Especially the first reason that the interdict had a “nation-wide effect”, would previously not have sufficed, since previously judgments of provincial and local divisions of the High Court had effect only in the provinces they were delivered. For instance, a Gauteng judge had no jurisdiction in the Cape province, hence his judgment had no power or effect, excepting that it might have had persuasive power. A judgment of the former Appellate Division (the SCA) had a national effect, though. Currently the situation is that we have one judiciary for the whole of the republic, hence judgments (on legal points as opposed to factual decisions) of High Courts are generally binding on courts of other divisions. The SAPS recognised the universal effect of the Prinsloo J judgment since subsequent to it, it sent out a circular instructing police offices to abide by the judgment and not to go after owners of firearms the licenses of which had expired.

The second point raised that the granting of an interim interdict constitutes an “impermissible intrusion by a court upon executive authority” is even more important. On more than one occasion our courts, including the Constitutional Court (CC), have ruled on the importance of the separation of powers within the state. This means that the judiciary is not entitled to subsume executive or legislative powers. Yes, if asked to, a court may, if satisfied of the irrationality or unconstitutionality of legislation or the exercise of executive powers, declare legislation unconstitutional or an executive act irrational, but it may not clothe itself as the legislature or the executive and perform such functions. Accordingly, the SCA found that judge Prinsloo did just that – preventing the police (a constitutionally created organ of state) to perform its functions in accordance with the law, in this case, the FCA. Accordingly the interdict was an impermissible restraint on exercise of statutory power, a violation of principle of separation of powers. It must be borne in mind that not too many moons ago the Constitutional Court has declared sections 24 and 29 constitutionally valid (see Minister of Safety and Security v South African Hunters and Game Conservation Association [2018] ZACC 14, decided on 7 June 2018 . . . in which the Court upheld the system of firearm licensing and renewal, and the criminalisation of possession of an unlicensed firearm).    

The SCA expressed rather harsh criticism against judge Prinsloo, especially about his apparent, according to the SCA judges, perceived impartiality. In paragraph 26 the SCA stated: “… in our adversarial system of litigation, a court is required to determine a dispute as set out in the affidavits (or oral evidence) of the parties to the litigation. It is a core principle of this system that the Judge remains neutral and aloof from the fray.”, and further “GOSA had set out the main relief it sought in the notice of motion. The application was however decided on a notice of motion containing main and central relief – proposed by the Judge and accepted by GOSA – different from that initially sought by GOSA.” (my underlining). In trying to substantiate the amendments, GOSA’s counsel argued “that there was no substantial change to the main relief”, however the SCA found this to be without substance. The judgment continues: “Further, the amendments to the main relief, in particular, the amendment to the alternative prayer in paragraph 3.1[A], went beyond the scope of the founding affidavit. There was no evidence, not even by a single firearm owner, that he or she had suffered harm or prejudice as a result of the renewal scheme in the Act. Neither was there evidence that any aggrieved firearm owner had applied to the Registrar of Firearms (the Registrar) for an extension as contemplated in s 28(6). There was accordingly no factual basis for an order that the period contemplated in s 28 of the Act should be extended to enable the holders of expired licences to apply for renewal ‘on good cause shown and within a period determined by the court’.” In this regard the SCA made the following important observation: “The main relief that GOSA had initially sought, namely, the abolition of the system of renewals and the introduction of lifetime periods of validity for firearms, by way of a court order, was incompetent. So too, the relief that the periods referred to in ss 24(1) and 24(4) of the Act be extended across the board to all holders of expired licences – it is inconsistent with the express provisions of the Act.” (my underlining).

In concluding their criticism of the granting of the interdict, the SCA stated: “The conduct of the Judge in effecting the amendments to the main relief sought by GOSA is unusual, troubling and regrettable. Judicial officers would do well to remember that their function is that of a neutral umpire holding the balance between litigants; and that they should not, as Lord Parker CJ put it, ‘descend into the arena and give the impression of acting as advocate’.”, (except, as I have previously been quoted in the same SCA, “to see through the dust kicked up by the parties”).

The SCA then confirmed that “The core premise of the gun control regime is that gun ownership is not a fundamental right under the Bill of Rights, but a privilege regulated by law under the Act.” Had SAGA had the necessary support from firearm owners in 1994 when it argued that firearm ownership ought to be a fundamental right for law-abiding, responsible and free citizens, the situation today might have been different. The SCA then quoted from the CC judgment in the SA Hunters case, where it held “that the purposes of the Act are sought to be achieved mainly by the following principles:

(a) No person may possess a firearm without a valid licence;

(b) No licence may be issued to a person without a relevant competency certificate;

(c) A licence is valid only for limited period;

(d) Possession of a firearm without a licence is a criminal offence and subject to minimum penalties.”

The court concluded by stating that “When a firearm licence terminates as contemplated in s 24(1) of the Act, it comes to an end by the operation of law; it is no longer valid and thus cannot be extended.” Wrapping up this issue the SCA then quoted from the SA Hunters judgment ‘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 does not do so. The rule of law requirements of clarity and certainty are clearly met.’.

SAGA, NAACCSA and other members of the firearms community have proposed that there ought to be an extension of the firearms amnesty. Although the police minister indicated his willingness to apply to parliament to extend the amnesty, he did not do so in time, nor could the amnesty be extended. He had to seek parliament’s permission again. Parliament was to consider the application on 24 July, however, the decision is not known. Should parliament have approved the fresh amnesty will run from 1 August 2020 to 31 January 2021. The surrendering of firearms under the new amnesty, so it seems, will be the only remedy for firearm owners whose licenses have expired. Obviously the firearms community will be seeking amendments to the FCA, especially relaxation of the very strict licensing and renewal regimes.

John Welch

President: PAAA

Chairman: NAACCSA