Gama Arms CC v Minister of Police and Others (03064/2016) [2016] ZAGPJHC 29; 2016 (1) SACR 552 (GJ) (12 February 2016)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

CASE NO: 03064/2016

DATE: 12 FEBRUARY 2016

In the matter between

GAMA ARMS CC...............................................................................................................APPLICANT

And

MINISTER OF POLICE...................................................................................FIRST RESPONDENT

REGISTRAR OF THE CENTRAL

FIREARMS REGISTER..............................................................................SECOND RESPONDENT

BRIGADIER MABULE...................................................................................THIRD RESPONDENT

CAPTAIN SAMPSON..................................................................................FOURTH RESPONDENT

Firearms and Ammunition - Firearms Control Act 60 of 2000 - Notice in terms of s 42 issued by Registrar to applicant dealer in firearms - applicant informed that Registrar intends cancelling or terminating its dealer’s licence ‘for having contravened or failed to comply with’ a number of specified contraventions of the Act and to submit written representations before a specified date why licence should not be cancelled -application for setting aside of notice based on alleged invalidity - whether requirement that hearing be held and audi alteram partem rule observed prior to issuing of notice and at completion of investigation - consideration of the provisions of the Act as a whole considered - intention of legislature - two tiered procedure contended for inconsistent with provisions of the Act and the intention of the legislature - notice valid - application dismissed but time limit for submission of reasons extended.

J U D G M E N T

VAN OOSTEN J:

[1] The issue for determination in this application concerns the validity of a Written Notice to Submit Written Representations (the notice) in terms of s 42 of the Firearms Control Act 60 of 2000 (the Act). The applicant is a registered and licenced dealer in firearms. The notice, dated 30 December 2015 and signed by the third respondent, was delivered to the applicant on 4 January 2016. In terms of the notice the applicant is informed that the second respondent intends cancelling or terminating its dealer’s

licence ‘for having contravened or failed to comply with’ a number of specified contraventions of the Act. The applicant is further called upon to submit, on or before 15 February 2016, written submissions as to why the dealer’s licence should not be cancelled. The applicant contends that the notice is invalid on the grounds I will revert to, and launched this application, by way of urgency, in which an order is sought for the invalidation and setting aside of the notice. The application is opposed by the respondents and a full set of affidavits has been filed.

[2] The factual background to the matter has been set out by the applicant in great detail. This prompted the respondents to reply in similar style. The inevitable disputes of facts arose, albeit more in regard to the applicant’s defences to the alleged contraventions and omissions. In argument the real issue between the parties soon crystallised into one single issue, which is whether the attack on the validity of the notice can be sustained on a proper interpretation of the relevant provisions of the Act. For the sake of completeness however, I will first briefly summarise the salient facts of this matter.

[3] The applicant’s member and deponent to the affidavits filed on its behalf, complains that he has become the victim of a vendetta, waged against him by police officials. Its genesis was an unlawful search and seizure in January 2015 which he successfully challenged in court. Their defeat caused the fourth respondent to warn him ‘that they would return’. A ‘compliance inspection’ at the applicant’s business premises, in Vereeniging, followed in May 2015, and lasted three days. The police officials’ lack of knowledge resulted in the discovery of, what they perceived to be, anomalies, which he attempted to clarify but to no avail. A number of follow-up inspections were conducted leading to the targeting of his private collection of firearms in respect of which there was no search warrant. He was arrested and subsequently released on bail. Finally, he states that the notice consists of ‘unfounded and unproved’ allegations arising from the unlawful compliance inspections.

[4] The applicant’s attack on the validity of the notice eventually narrowed down to one single ground. Counsel for the applicant

submitted, with reliance on a proposed interpretation of certain sections of the Act, that the cancellation of a dealer’s

licence by the Registrar of Firearms (who, in terms of s 123 of the Act, is the National Commissioner of the South African Police)

comprise a two tiered procedure. First, the inspecting police official (in the exercise of the powers referred to in Chapter 3, s 106(1) of the Act) must conduct an inspection and arrive at a finding whether any provision of the Act has been contravened. In doing so, the police official is required to conduct a trial of sorts, inter alia by observing the audi alteram partem principle. Should a finding be made that a contravention or omission has occurred, the second stage of the proceedings follows which is that the Registrar, after having ‘duly considered any representations received and all facts pertaining to the matter’ is empowered, by written notice, to cancel the licence, subject to prior notice in terms of s 42(2) of the Act, affording the dealer a 30 day period to submit written representations, having been given. Applied to the facts of the present matter, so the argument went, the applicant was not afforded a hearing at all in the first stage of the proceedings resulting in the invalidity of the notice which triggered the second stage of the proceedings. The argument cannot prevail.

[5] The starting point is to consider the relevant provisions of s 42 of the Act, which provide:

42. Termination of dealer's licence

(1) A dealer's licence terminates -

(a) …

(b) …

(c) …

(d) if cancelled in terms of this Act.

(2) The Registrar may, by written notice, cancel a dealer's licence if the holder of the licence-

(b) has contravened or failed to comply with any provision of this Act or any condition specified in the licence.

(3) A notice contemplated in subsection (2) may only be issued if the Registrar has -

(a) given the holder 30 days notice in writing to submit written representations as to why the licence should not be cancelled; and

(b) duly considered any representations received and all the facts pertaining to the matter.

(4) …

For the sake of clarity I need to mention that s 28 of the Act, in identical wording, provides for the cancellation of a firearm

licence. The wording of both sections, in my view, is clear. The only comment required concerns the words in ss (2)(b), providing for the cancellation by the Registrar, if the holder of the licence ‘has contravened or failed to comply with any provisions of the Act or any condition specified in the licence’. Counsel for the applicant argued that the wording pre-supposes a finding that contravention or failure to comply, referred to in the sub-section, has occurred, as a fait accompli, and that the Registrar is merely empowered, to consider whether the licence, in view of the contravention or failure to comply, should be cancelled. In support of the argument counsel referred to the opening sentence in the notice, which reads:

You are hereby notified of the following contraventions:

On or about between the 26th to the 28th of May 2015 you were found to have contravened the following...

[6] Attractive as the argument may seem at first blush, it flounders at the first hurdle which requires a consideration of the provisions of the Act as a whole. The Act makes no provision at all for the first-stage-proceeding contended for. Chapters 13 and 14 of the Act extensively provide for inspections by a police official or authorised person and search and seizure. Had it been the intention

of the legislature empower police officers to conduct a trial and make findings in consequence of the investigation, one would have expected provisions to that effect, of which there are seemingly none. Counsel sought to draw a parallel between the double barrelled procedures (s 103 of the Act) providing for the declaration by the court of a person to be unfit to possess a firearm significantly only after conviction. I am unable to derive any assistance in the procedure provided for in s 103. That procedure is unique: it applies to

criminal trials only, pre-supposes a conviction of certain specified offences and, accordingly, is clearly distinguishable from

cancellation of a licence by the Registrar.

[7] The practical implementation of s 42, in my view, comprises the following: the dealer is afforded the opportunity to submit written representations concerning the allegations made in the notice. The right to make representations include the right to challenge the alleged contraventions or omissions and, in addition thereto, to furnish reasons as to why the licence should not be cancelled. Should the dealer hold the view that viva voce evidence is necessary, or that evidence concerning the alleged contraventions or omissions ought to be tested in cross-examination,

or that oral argument is necessary, there is no reason why a request therefore cannot form part of the representations. The Registrar is in duty bound to duly consider the representations received as well as all facts pertaining to the matter. Assuming a notice of cancellation of the licence is issued by the Registrar, the licence holder, in terms of s 133(1)(b) of the Act, has the internal remedy of a right of appeal to the Appeal Board (established in terms of s 128 of the Act). The Appeal Board ‘may confirm, vary or reverse any decision against which an appeal has been lodged’ and further ‘may admit evidence of facts not before the Registrar when he or she made the decision which is the subject of the appeal only if there is a reasonable explanation for the failure timeously to inform the Registrar of the facts; and the Registrar has had sufficient opportunity to verify the facts and to present any evidence to the Appeal Board in this regard’ (s 133 (2)). The powers of the appeal board are evidently consonant with the practical effect of the section I have outlined above.

[8] For all the above reasons I reject the applicant’s challenge relating to the validity of the notice. It follows that the application must fail.

[9] Finally, in fairness to the applicant, I have decided to extend the date for the submission of representations to 30 March 2016.

[10] In the result the following order is made:

1. The application is dismissed.

2. The date for submission of representations by the applicant, in terms of the Notice to Submit Written Representations, is extended to 30 March 2016.

3. The applicant is ordered to pay the costs of the application such costs to include the costs consequent upon the employment of two counsel.

FHD VAN OOSTEN

JUDGE OF THE HIGH COURT

COUNSEL FOR APPLICANT ADV E KILIAN SC

APPLICANT’S ATTORNEYS GH LYELL INC

COUNSEL FOR RESPONDENTS ADV M KHOZA SC

ADV T MOLOKOMME

RESPONDENTS’ ATTORNEYS THE STATE ATTORNEY

DATE OF HEARING 10 FEBRUARY 2016

DATE OF JUDGMENT 12 FEBRUARY 2016