Fidelity Security Services (Pty) Ltd Code of Body 16455 and Others v National Commissioner of The South African Police Services General Sithole and Others (31971/2022) [2022] ZAGPPHC 788 (27 October 2022)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)\

CASE NO: 31971/2022

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED: NO

27 OCTOBER 2022

In the matter between:

FIDELITY SECURITY SERVICES (PTY) LTD

CODE OF BODY 16455 First

Applicant

SECURECO METSU (PTY) LTD

CODE OF BODY 19708 Second

Applicant

FIDELITY ADT (PTY) LTD CODE OF BODY 15942

FIDELITY CASH SOLUTIONS

CODE OF BODY 16415 Third

Applicant

ANALYTICAL RISK MANAGEMENT (PTY) LTD

t/a 2RM SECURITY

CODE OF BODY 18521 Fourth

Applicant

And

THE NATIONAL COMMISSIONER OF THE

SOUTH AFRICAN POLICE SERVICES

GENERAL KJ SITHOLE

IN HIS CAPACITY AS REGISTRAR OF FIREARMS First Respondent

MAJOR GENERAL MAMOTETHI

(IN HER CAPACITY AS THE HEAD OF FIREARMS,

LIQUOR AND SECOND-HAND GOODS “FLASH”) Second

Respondent

COLONEL PN SIKHAKHANE, IN HER CAPACITY

AS THE ACTING HEAD OF THE HEAD OF

THE CENTRAL FIREARMS REGISTRY Third

Respondent

THE MINISTER OF POLICE Fourth

Respondent

THE FIREARMS APPEAL BOARD Fifth

Respondent

JUDGMENT

MILLAR J

1. The respondents have applied for leave to appeal against certain orders made by me in the urgent court on 20 September 2022. These orders were made pursuant to an application to hold the respondents in contempt of their failure to comply with an earlier order granted on 5 July 2022, the first application, which had been granted by agreement between them.

2. When the second contempt application was brought, the respondents once again entered into an agreement with the applicants. This agreement did not however address the immediate issue of the contempt or the prejudice to the applicants.

3. It was in these circumstances that I made the further orders that I did. The respondents have placed in issue every finding and disputed every reason given for the granting of the orders and in particular the order to issue temporary license in terms of section 21 of the Firearms Control Act 60 of 2000. The orders pertaining to this were:

“5. The Third Respondent is ordered by the court despite no agreement having been reached in this respect, to cause the issuing and delivery of Temporary Authorisations in terms of Section 21 of the Firearms Control Act, Act 60 of 2000, of all the firearms listed in the annexure headed “In Preparation for Consideration (Awaiting IBIS report)”, and attached hereto, by no later than Friday 23 September 2022;

6. The Temporary Authorisations referred to in paragraph 2.1 above shall be subject to the following conditions:

6.1 It must be valid for a period of not less than one year or until such time as the printed licence cards is provided to the Applicants;”

7. The Temporary Authorisations referred to in paragraph 5 above shall be subject to the following conditions:

7.1 It must be valid for a period of not less than one year or until such time as a decision is made in respect of the pending applications and if approved, printed licence cards are provided to the Applicants;

7.2 Should the applications not be approved for whatever reason, the applicants must return the firearms to the appointed Designated Firearms Officer appointed or nominated police officer if no appeal or review is pending in respect of those license applications;

7.3 Should any of the firearms be linked though the IBIS process to any investigation or as a result be suspected to have been involved in or linked to the commission of any crime, the firearms shall within 10 days be returned to the Designated Firearms Officer appointed or nominated police officer to be processed and dealt with in terms of the Firearms Control Act of 2000 Act or the Criminal Procedure Act of 1977, whichever is applicable;”

4. I do not intend to traverse the reasons or the challenges to them as they are in my view not relevant to the true issue in this application – are the orders made by me appealable?

5. In this regard, in Government of the Republic of South Africa and Others v Von Abo[1] it was stated:

“The complications surrounding appealability in any given instance were recently summarized by Lewis JA in Health Professions Council of South Africa and Another v Emergency Medical Supplies and Training CC t/a EMS2010 (6) SA 469 (SCA) paras 14 – 19. It is fair to say that there is no checklist of requirements. Several considerations need to be weighed up, including whether the relief granted was final in its effect, definitive of the rights of the parties, disposed of a substantial portion of the relief claimed, aspects of convenience, the time at which the issue is considered, delay, expedience, prejudice, the avoidance of piecemeal appeals and the attainment of justice.” (footnotes omitted)

6. Having regard to the terms of the orders in question, it cannot be said that the orders were either final in effect or definitive of the rights of the parties. This is clear on a plain reading of the orders.

7. The orders were granted to mitigate the prejudice to the applicants which was in direct consequence of the respondent’s failure to process the applications for amnesty timeously or to honour the time commitments made to process the

applicants outstanding applications within the time frames that it had agreed to on 5 July 2022.

8. In my view the orders are not appealable and for that reason the application must fail.

9. In the circumstances it is ordered:

9.1 The application for leave to appeal is dismissed with costs.

A MILLAR

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

HEARD ON:

27 OCTOBER 2022

JUDGMENT DELIVERED: 27

OCTOBER 2022

COUNSEL FOR THE APPLICANTS: ADV. M SNYMAN SC

INSTRUCTED BY:

MJ HOOD & ASSOCIATES

REFERENCE:

MR. M HOOD

COUNSEL FOR THE RESPONDENTS: ADV. E ELLIS

ADV. T LORABILE-RANTOA

INSTRUCTED BY:

THE STATE ATTORNEY

PRETORIA

REFERENCE:

MS. K TSEPANYEGA

[1] 2011 (5) SA 262 (SCA) at para 17, Phillips v Reserve Bank and Others 2013 (6) SA 450 (SCA)