The National Commissioner of Police vs. The gun owners of South Africa

South Africa

23.05.2020

Civil

Regulations made under a statute cannot be used to interpret the governing statute

The Appellants appeal against an urgent interim interdict issued by the High Court, Pretoria, which prevents the South African Police Service (the SAPS) from applying, implementing and enforcing various provisions of the Firearms Control Act 60 of 2000 (the Act). Practically, the interdict disables the scheme of renewal and termination of firearm licences under the Act, by prohibiting the SAPS from demanding or accepting the surrender of firearms by licence-holders whose firearm licences expired, because they failed to renew their licences within the timeframe prescribed by the Act. The appeal is with the leave of the High Court.

The Respondent, Gun Owners of South Africa (GOSA), is a voluntary association formed to protect the rights of lawful owners of firearms in South Africa. It has some 40 000 members. According to its Constitution, GOSA is committed to working towards the repeal of the Act. Its aims are to protect, represent and advance the interests of lawful firearm owners in the country, to promote firearm ownership, and to affirm the rights of all people in South Africa to own and bear arms. In July 2018, GOSA launched an urgent application in the High Court against the first Appellant, the National Commissioner of Police (the Commissioner) and the second Appellant, the Minister of Police. GOSA sought an interim interdict, pending the determination of the main application.

It is a settled principle of statutory construction that regulations made under a statute cannot be used to interpret the governing statute. Regulations must be interpreted in the context of the Act, not the other way around. GOSA failed to demonstrate that the final relief sought, namely a declaratory order to extend the periods referred to in Sections 24, 27 and 28 of the Act, so as to allow the holders of expired licences to apply for the renewal thereof on good cause shown within a period determined by the court, has a reasonable prospect of success. It must be emphasised that a firearm licence comes to an end on the last day of its validity by the operation of law. The licence then ceases to exist and there is nothing to extend.

GOSA failed to demonstrate that the final relief sought, namely a declaratory order to extend the periods referred to in ss 24, 27 and 28 of the Act, so as to allow the holders of expired licences to apply for the renewal thereof on good cause shown within a period determined by the court, has a reasonable prospect of success. It must be emphasised that a firearm licence comes to an end on the last day of its validity by the operation of law. The licence then ceases to exist and there is nothing to extend.

The finding that, the requirements for interim relief, ‘have been properly complied with and met’ was wrong. The interim interdict granted against the Appellants is constitutionally inappropriate, it violates the principle of separation of powers, it guarantees the unlawful possession of firearms, and therefore it must be set aside.

Tags : Interim interdict Implementation Provision

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