THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1349/2019

In the matter between:
FIDELITY SECURITY SERVICES (PTY) LIMITED       APPELLANT

and

MINISTER OF POLICE

FIRST RESPONDENT
MINISTER OF JUSTICE

SECOND RESPONDENT
ACTING NATIONAL COMMISSIONER
OF SOUTH AFRICAN POLICE SERVICE:
LIEUTENANT GENERAL
J K PHAHLANE

THIRD RESPONDENT

Neutral citation: Fidelity Security Services (Pty) Ltd v Minister of Police
and Others (1349/2019) [2021] ZASCA 51 (22 April 2021)

Coram:
PETSE AP, MOLEMELA and SCHIPPERS JJA and EKSTEEN
and POYO-DLWATI AJJA

Heard:
11 March 2021

Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 09h45 on 22 April 2021.

Summary: Firearms Control Act 60 of 2000 (the Act) – licence to possess
firearm – application for licence to possess firearm upon termination of
licence previously issued – fresh application for licence by juristic person –
nothing in the language of the Act precluding a party whose licence has
terminated by the operation of law from applying for a new licence – appeal
upheld.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Ranchod J
sitting as court of first instance):
The application for condonation of the late filing of the record is
granted. The costs occasioned thereby are to be borne by the appellant on an
unopposed basis.
The appeal is reinstated.
The appeal is upheld to the limited extent set out in paragraph 6 below.
The appellant is ordered to pay the costs of the appeal up to and
including 05 March 2021, including the costs of two counsel where so
employed.
The respondents are ordered to pay the costs associated with the hearing
of the appeal on 11 March 2021 jointly and severally, the one paying
the others to be absolved.

The order of the high court is set aside and in its place is substituted the
following:
'6.1
It is declared that the applicant, Fidelity Security Services (Pty)
Ltd, is entitled to apply afresh for new licences to possess the
firearms listed in annexure D to the applicant’s notice of motion
and the Designated Firearms Officer responsible for the area in
which the applicant’s principal place of business is situated is
directed to accept such applications and deal therewith in terms
of the Firearms Control Act 60 of 2000.

6.2
Save for the aforegoing, the application is dismissed with costs
on the scale as between attorney and client, such costs to include
the costs of two counsel.'

JUDGMENT

Petse AP (Molemela and Schippers JJA and Eksteen and Poyo-Dlwati
AJJA concurring):

[1] The avowed purposes of the Firearms Control Act 60 of 2000 (the Act),
besides the enhancement of the constitutional rights to life and bodily
integrity, are to: (i) improve control over legally possessed firearms; (ii)
control the supply, possession, safe storage and use of firearms; (iii) prevent
crime involving the use of firearms; and (iv) establish a comprehensive and
effective system of firearm control and management.1 However, the facts of
this case demonstrate that these laudable objectives have not yet been attained

1 Section 2 of the Firearms Control Act 60 of 2000 (the Act).

to a degree that can inspire confidence and instil a sense of security amongst
the populace.

[2] In Minister of Safety and Security v South African Hunters and Game
Conservation Association [2018] ZACC 14; 2018 (2) SACR 164 (CC); 2018
(10) BCLR 1268 (CC) (SA Hunters) the Constitutional Court stated that: 'Gun
ownership is not a fundamental right under our Bill of Rights. It is a privilege
regulated by law. . .'.2 The legislative instrument that regulates gun ownership
in this country is the Act. The preamble to the Act recognises, amongst other
things, that there has been an 'increased availability and abuse of firearms and
ammunition' in the country which 'has contributed significantly to the high
levels of violent crime' in society; and that 'the Constitution places a duty on
the State to respect, protect, promote and fulfil the rights in the Bill of Rights'.

[3] This is an appeal against the decision of Ranchod J sitting in the
Gauteng Division of the High Court, Pretoria (the high court), in terms of
which he dismissed, with costs on a punitive scale, an application by the
appellant, Fidelity Security Services (Pty) Ltd (Fidelity), against the
respondents, in which extensive relief was sought. Although more will be said
about the high court's reasons for dismissing the application later, in essence
it held that the application was, in the light of the Constitutional Court's
judgment in SA Hunters, ill-conceived, hence the punitive costs order.
Subsequently, on 12 November 2019, the learned Judge granted leave to
appeal to this Court.

2 Para 1.

[4] During May 2016 Fidelity instituted legal proceedings against the
first respondent, the Minister of Police, the second respondent, the
Minister of Justice,
and
the
third
respondent,
the
Acting
National Commissioner, South African Police Service (the Commissioner) in
which the following extensive relief was sought:
'1
Declaring that the directive of the National Commissioner, dated the 3rd of
February 2016, attached as Annexure "A" to the Notice of Motion, is in conflict
with the Regulations of the Firearms Control Act 60 of 2000, more specifically,
those contained in Government Gazette 26156 of 26th March 2004, and contained
in SAP518(a) on page 170 thereof; alternatively

Declaring the directive of the 3rd of February 2016 as an administrative act and
declaring it in conflict with Section 33 of Act 108 of 1996; alternatively
Declaring Section 24 and 28 of the Firearms Control Act 60 of 2000 to be in conflict
with Section 33 of the Constitution and therefore unconstitutional by virtue of the
fact that no provision is made for the submission of late applications.

Ordering the Third Respondent in his capacity as the Registrar of Firearms to accept
late renewal applications of the Applicant for the renewal of the firearm licences
listed in the Schedule attached as Annexure "B".

Alternatively ordering that the Third Respondent accepts new SAP271 application
forms for the firearms listed in Annexure "B".

Ordering the Third Respondent to amend or vary, insofar as it may be necessary,
the firearm registration system in the Central Firearms Registry to allow the
submission of SAP271’s by an existing owner, licenced in that owner’s name.

Directing the Respondents to receive and process Section 21 permits for the
possession of the firearms in Annexure "B" from the date of lapsing of the licence
until the date of the issue of a new licence.

Interdicting and restraining the Respondents and any person in the employ of the
First Respondent, alternatively the Second Respondent, from confiscating the
firearms set out in Annexure "B", pending the finalisation of applications for the
licences in Annexure "B".

That the Respondents pay the costs of this application, in the event of opposition
only.'

[5] The proceedings were instituted against the following backdrop.
Fidelity is a security service provider, registered with the Private Security
Industry Regulatory Authority.3 It is one of the largest security service
providers in the country with a national footprint. It has 60 offices in major
cities and towns countrywide. Its principal place of business is in Roodepoort.
Given the nature of its core business, possession of firearms is indispensable
in order for it to operate effectively. Thus, it is licenced to possess some 8500
firearms. Section 7 of the Act provides that if a juristic person like Fidelity
wishes to apply for a licence, permit or authorisation in terms of the Act, it
must nominate a natural person to apply on its behalf.4 The section further
stipulates that the person so nominated must be identified on the licence,
permit or authorisation as the responsible person who, for the purposes of
the Act, is regarded as the holder of the licence issued to a juristic person. At
the material times, Fidelity's responsible person was a certain
Mr Sarel Gerhardus Yssel.

3 The Private Security Industry Regulatory Authority, which is a juristic person, was established in terms of
s 2 of the Private Security Industry Regulation Act 56 of 2001.
4 Section 7(1) of the Act.

[6] Section 3 of the Act, which is titled 'General prohibition in respect of
firearms and muzzle loading firearms,' provides that no person may possess a
firearm unless he or she holds a licence, permit or authorisation for that
firearm issued in terms of the Act.5 Section 6(2), in turn, provides that subject
to s 7 no licence may be issued to a person without a relevant competency
certificate. Section 27 in turn makes provision for periods of validity6 of
various types of firearms listed in column 2 thereof.

[7] Sections 24 and 28, which deal with renewal of firearm licences and
their termination respectively, need to be set out in full because of their
centrality in this appeal. First, s 24 provides:
'(1) The holder of a licence issued in terms of this Chapter who wishes to renew the licence
must at least 90 days before the date of expiry of the licence apply to the Registrar for its
renewal.
(2) The application must be—
(a)
accompanied by such information as may be prescribed; and
(b)
delivered to the Designated Firearms Officer responsible for the area in which the
applicant ordinarily resides or in which the applicant’s business is, as the case may be.
(3) No application for the renewal of a licence may be granted unless the applicant shows
that he or she has continued to comply with the requirements for the licence in terms of
this Act.
(4) If an application for the renewal of a licence has been lodged within the period provided
for in subsection (1), the licence remains valid until the application is decided.'

[8] Second, s 28 reads:
'(1) A licence issued in terms of this Chapter terminates—

5 Section 3 of the Act reads:
'No person may possess a firearm unless he or she holds a licence, permit or authorisation issued in terms of
this Act for that firearm’.
6 These are specified in column 3.

(a)
upon the expiry of the relevant period contemplated in section 27, unless renewed
in terms of section 24;
(b)
if surrendered by the holder of the licence to the Registrar;
(c)
if the holder of the licence becomes or is declared unfit to possess a firearm in terms
of section 102 or 103; or
(d)
if it is cancelled in terms of this Act.
(2) The Registrar may, by notice in writing, cancel a licence issued in terms of this
Chapter if the holder of the licence—
(a)
no longer qualifies to hold the licence; or
(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 of the licence 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) (a) If a notice contemplated in subsection (2) is issued, the former holder of the licence
must dispose of the firearm in question through a dealer or in such manner as the
Registrar may determine.
(b) The disposal must take place within 60 days after receipt of the notice.
(5) If the firearm is not disposed of within 60 days, it must be forfeited to the State and the
former holder of the licence must surrender it immediately at such place and in such manner
as the Registrar may determine.
(6) Any period contemplated in this section may be extended by the Registrar on good
cause shown.'
As is to be expected, the various licences issued to Fidelity's responsible
person expire on different dates. It is therefore necessary, given the large
quantity of the firearms in Fidelity's possession, that effective control systems
and measures must be put in place by the responsible person to keep track of
the termination date of each licence.

[9] Mr Yssel left the employ of Fidelity on 1 February 2016 and
Mr Johannes Cornelius Wentzel succeeded him on the same date. When
Mr Wentzel took over from Mr Yssel, he discovered that the licences of some
700 firearms had not been renewed and consequently terminated by the
operation of law as contemplated in s 28 of the Act. On 18 April 2016 Fidelity
belatedly attempted to 'renew' the licences that had already terminated. But
the Designated Firearm Officer at the Florida police station refused to accept
the late applications for renewal. This was in compliance with circular
27/5/2/1 (the circular) issued by the Commissioner on 3 February 2016.

[10] The most crucial parts of the circular, for present purposes, are
paragraphs 4 and 8. They read:
'Applications for renewal of firearm licences must be lodged at least 90 days before the
expiry of the licence. Applications for renewal may, however be considered if the
application is lodged in less than 90 days, in which case reasons for the late application
must be provided on the application form.
In the case where a person want[s] to renew or apply for a licence, but the validity of the
licence has already expired, the person must be informed that he/she is not anymore in
lawful possession of the firearm and that the firearm must be surrendered to the nearest
police station.'

[11] Consequently, the police steadfastly refused to budge when Fidelity
persisted in its quest to submit its 'renewal' applications in respect of
terminated licences. It then consulted its attorneys who, on 22 April 2016,
addressed a letter to the Minister of Police and the Commissioner. It is
convenient to quote relevant parts of this letter. They read:
'3
Fidelity has many thousands of firearms licenced in its name and it recently had
been brought to its attention by its new Responsible Person, that approximately 600
licences that have expired.

Attempts have been made to submit renewal applications to the South African
Police Services and the South African Police Services have refused to accept the
renewal applications based upon the directive of the National Commissioner that
of 3 February 2016.
The surrender of any firearms, as contemplated by the directive, would adversely
affect the long term operations of and the viability of Fidelity Security Services [as]
more than 40% of its business revolves around the use of firearms and is therefore
a business critical component.
Briefly, the reasons why our client applied late, are due to the illness of its previous
Responsible Person, Mr Sarel Yssel and the fact that an audit was conducted
subsequent to his resignation and departure, that determined that the licences had
lapsed.
We believe that the above, brief reasons which our client will gladly amplify upon
if necessary, constitute good grounds to condone the late submission of renewal
applications, either by yourselves or by order of court.
Alternatively, our client is quite happy to submit new SAP271's to apply for new
licences, but your system needs to be changed because we are advised that the
enhanced firearm control system does not currently allow for a submission of an
SAP271 by the existing owner.
. . .
In the light of the above, we await your response within 5 (five) days as to whether:

10.1
You will condone our client's late submission of renewal applications; or

10.2
You will allow our client to submit new SAP271's.'
Inexplicably, this letter did not elicit any response from the intended
recipients.

[12] An intractable impasse having thus been reached, Fidelity, as already
mentioned, launched its application for the relief set out in its notice of motion
adverted to in paragraph 4 above. In essence, it persisted in: (i) its challenge
that ss 24 and 28 were constitutionally invalid; (ii) that the police be

compelled to accept late renewal applications; (iii) directing the police to issue
Fidelity with temporary authorisations under s 217 of the Act; (iv) seeking an
interdict restraining the police from seizing the firearms whose licences had
terminated pending the finalisation of its renewal application; and (v) seeking,
in the alternative, a mandamus directing the police to accept new applications
for firearm licences.

[13] In support of the relief sought in terms of paragraph 5 of Fidelity's
notice of motion, Mr Wentzel asserted the following in Fidelity's founding
affidavit:
'78
Even if the South African Police Services merely hold the firearm, this does not
provide a solution for circumstances where a person has handed in the firearm, but
remains in limbo, because they cannot apply for a new licence.

It is for this reason that the Applicant has sought additional relief, either to condone
non-compliance and to allow the submission of late applications, alternatively that
the Applicant be allowed to submit new applications for the firearms.

The reason why the Applicant has asked for an order directing the South African
Police Services to amend their procedures is that I am advised that currently a

7 Section 21 reads:
'(1) The Registrar may issue a temporary authorisation to possess a firearm to any person, including a non-
citizen—
(a)  for such period as the Registrar may determine; and
(b)  subject to such conditions as may be prescribed and imposed by the Registrar.
(2) The Registrar may at any time withdraw an authorisation if any condition contemplated in subsection
(1)(b) is not complied with.
(3) The Office of the Central Firearms Register must keep a record containing such information as may be
prescribed in respect of all authorisations issued in terms of this section.
(4) The Registrar must submit an annual report to the Minister containing such information as may be
prescribed in respect of all authorisations issued in terms of this section.
(5) A firearm in respect of which an authorisation has been issued in terms of this section may be used only—
(a)  if the Registrar by endorsement on the authorisation permits such use; and
(b)  in accordance with such conditions as may be prescribed and imposed by the Registrar.
(6) A firearm in respect of which an authorisation has been issued in terms of this section may be disposed
of only with the written consent of the Registrar and subject to such conditions as he or she may impose.'

SAP271 new licence application form cannot be processed by the Respondents,
because the Respondents' computer system does not allow transfer of a licence from
an existing owner to the same owner as a new Applicant and owner, i.e. the software
does not allow one to transfer a firearm to yourself.'

[14] The application was opposed by the respondents. It is, however,
unnecessary for present purposes to traverse the bases upon which the
application was resisted. It suffices merely to state that the deponent to the
answering affidavit was content to raise bald denials to what Mr Wentzel
asserted in paragraphs 78 to 80 of the founding affidavit. And, in particular,
despite the assertion under oath by Mr Wentzel that Brigadier Bothma had
categorically informed him that the police would not accept even new
applications for firearms that were unrelated to the applications for 'renewal'
of the expired licences, there was no meaningful response to this assertion
from the respondents.

[15] It bears mentioning that at the hearing before Ranchod J, Fidelity
abandoned the relief sought in paragraphs 1, 2 and 3 of the notice of motion.
This change of tack was brought about as a result of the decision of the
Constitutional Court in SA Hunters which held that ss 24 and 28 of the Act
were not unconstitutional.8 But Fidelity persisted with the relief sought in the
remaining prayers.

[16] As already indicated, taking comfort in SA Hunters, the high court
dismissed Fidelity's application in its entirety. Because of the new turn of
events – about which more will be said later – it is not necessary to examine

8 Fidelity was admitted as the first amicus curiae in that litigation.

the reasons that motivated the high court to do so. Suffice it to say at this
juncture that it does not appear from its judgment that the high court
considered the alternative relief sought in prayer 5 of Fidelity's notice of
motion. It will be recalled that in prayer 5 of its notice of motion Fidelity had
sought an order directing the police to accept new applications that had no
bearing on its applications for renewal of licences that had already terminated.

[17] I pause here to observe that the relief initially sought by Fidelity on
appeal was that prayers 4, 5, 6, 7, 8 and 9 of its notice of motion – dismissed
by the high court – should be upheld on appeal. In pursuit of this relief, the
heads of argument delivered on behalf of Fidelity pertinently addressed the
propriety of the relief in which it had persisted on appeal.

[18] That this was part of the case that Fidelity sought to advance on appeal
was neatly captured by the learned Judge when he rendered his written
judgment in respect of Fidelity's application for leave to appeal. He said the
following:
'The nub of this application for leave to appeal is whether section 28(6) of the
Firearms Control Act 60 of 2000 . . . permits the Registrar to, on good cause shown, extend
the date of expiry of a licence which has expired . . .'
The learned Judge then continued:
'In the alternative, [Fidelity] asked the Court to declare first, that section 28(6) allowed the
period of validity of a licence to be extended and, second, that applicants for firearm
licences should be allowed to submit late applications and should be issued with temporary
licences in accordance with section 21 when they do so.'
He then alluded to the fact that, as he saw it, 'the Constitutional Court did not
pertinently deal with these issues which Fidelity had advanced as the amicus
curiae' in SA Hunters. Hence he was persuaded to grant leave to this Court,

noting that the aforegoing issues were deserving of the attention of this Court
because of their importance. I shall revert to this aspect later.

[19] Some three court days before the hearing of this appeal, Fidelity
delivered a 'supplemented practice note'9 on 5 March 2021. It is necessary to
quote the operative part of this note. It reads:
'2
The Appellant will only persist with the appeal in respect of paragraphs 1.2, 1.3,
1.4 and costs, referred to above in the light of the findings by this court in the matter
of National Commissioner of Police and Another v Gun Owners Association of
South Africa 2020 (6) SA 69 (SCA);
Appellant will further not rely on the argument raised in its heads of argument in
respect of the interpretation of section 28 of the Firearms Control Act and the
authority to extend the time periods applicable to the renewal of firearm licences.'

[20] The practice note then concludes by setting out the reformulated issues
as follows:
'4.1
Whether the appellant has the right, to submit a new application for a licence to
possess a firearm that was previously licenced to it and which licence lapsed;

9 The first part of the note reads:
'1.
NATURE OF APPEAL
The Appeal is against a dismissal of prayers 4, 5, 6 and 7 and the costs of an application:
1.1
Ordering third respondent in his capacity as Registrar of Firearms to accept late renewal
applications of the Applicant for the renewal of firearm licences listed in schedule "B";
1.2
Alternatively, ordering the third respondent to accept new applications (form SAP271) for
those firearms listed in Schedule "B";
1.3
Ordering the third respondent to amend or vary, in so far as it is necessary, the firearms
registration system in the Central Firearms Registry to allow for the submission of SAP271
forms by an existing owner, licenced to that owner;
1.4
Directing the Respondents to receive and process applications in terms of Section 21 of the
Firearms Control Act (Temporary authority to possess) listed in Schedule "B", from the
date of lapsing to date of issuing a new licence;
1.5
Interdicting and restraining the respondents and any person in the employ of first,
alternatively second respondent from confiscating the firearms listed in Schedule "B",
pending the finalisation of the applications for the licences in Schedule ''B";

1.6
And costs, only in the event of opposition.'

4.2
Whether the registrar of firearms, third respondent, has a duty to accept and process
such new applications for a firearm licence for such firearm that was previously
licenced to it;
4.3
Costs.'
As can be seen from this excerpt, apart from the issue of costs, the issues on
appeal have, since the filing of the 'supplemented practice note', been
considerably narrowed down. In substance, they boil down to one issue only,
namely whether Fidelity is entitled to submit 'a new application for a licence
to possess a firearm' in light of the fact that the licence that it previously held
terminated by the operation of the law?10 If this issue is answered in the
affirmative, the Commissioner will perforce be obliged to accept such new
application and deal with it in the ordinary course in terms of the provisions
of the Act. Nothing more and nothing less will be required of him or her.

[21] At the commencement of the hearing of this appeal in this Court,
counsel for Fidelity confirmed that Fidelity had effectively abandoned all the
relief sought in its amended notice of motion as set out in paragraph 4 above
save for the limited relief encapsulated in the preceding paragraph of this
judgment.

[22] In addition, counsel moved the Court for condonation of the late filing
of the record and, if granted, also for the reinstatement of the appeal which
had lapsed. This Court deferred its decision on the application for
condonation. Counsel was then allowed to argue the appeal as if it were still
live.

10 See SA Hunters para 25.

[23] As this appeal entails a statutory interpretative exercise, it is necessary
to briefly say something about the principles that apply to the interpretation
of statutes. True, those principles are now well-established and require no
elucidation. Nevertheless, trite as they are, these principles are sometimes
misapplied.

[24] In Natal Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13; 2012 (4) SA 593 (SA) (Endumeni), this Court explained
that statutory interpretation is the objective process of attributing meaning to
words used in legislation.11 This process, it was emphasised, is unitary and
entails a simultaneous consideration of –
(a) the language used in the light of the ordinary rules of grammar and syntax;
(b) the context in which the provision appears; and
(c) the apparent purpose to which it is directed.12

[25] Endumeni was cited with approval by the Constitutional Court in Cool
Ideas 1186 CC v Stubbard [2014] ZACC 16; 2014 (4) SA 474 (CC).13
Accordingly, a court will interpret the relevant provision having regard to the
underlying purpose of the Act and the broader statutory scheme of which it
forms part.14 This then means that an interpretation that results in a sensible
meaning is to be preferred over one that leads to unbusinesslike results or
undermines the apparent purpose of the Act.15 This entails that the ordinary
and clear meaning of the words, read purposefully and contextually, must not

11 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SA)
(Endumeni) para 18.
12 Ibid.
13 Endumeni para 28.
14 Cool Ideas 1186 CC v Stubbard [2014] ZACC 16; 2014 (4) SA 474 (CC) para 115.
15 Endumeni para 18.

be unduly strained. That the text, context and purpose of the Act must always
be considered at the same time when interpreting legislation has been affirmed
in various decisions of the Constitutional Court.16

[26] Turning to the interpretive process itself, I bear in mind that '[t]he
"inevitable point of departure is the language of the provision itself", read in
context and having regard to the purpose of the provision and the background
to the preparation and production of the document'.17 I have, in paragraph 1
above, already alluded to the purpose of the Act spelt out in s 2. In National
Commissioner of Police and Another v The Gun Owners of South Africa (Gun
Free South Africa as amicus) [2020] ZASCA 88; 2020 (6) SA 69 (SCA) this
Court noted that:
'The Act creates a two-tier licensing regime: a person wishing to own a firearm must be
licensed to do so and must demonstrate competency to possess a firearm by obtaining a
competency certificate; and each firearm itself must be licensed. . . . They are also required
to pass tests demonstrating knowledge of the Act and proficiency in the safe use of
firearms. The firearm licence, together with the competency certificate, constitutes the
State’s recognition that a person is fit and proper to own or possess a particular firearm.
The details of each firearm are recorded with the details of the person responsible for it,
thus linking the firearm to its owner. The Act requires periodic renewal, re-licensing and
re-testing.'18

16 For examples see Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism [2004]
ZACC 15; 2004 (4) SA 490 (CC) para 90 (the judgment of Ngcobo J) quoted with approval in Du Toit v
Minister for Safety and Security [2009] ZACC 22; 2010 (1) SACR 1 (CC); 2009 (12) BCLR 1171 (CC) para
37; Bertie Van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others [2009] ZACC 11;
2010 (2) SA 181 (CC); para 21; KwaZulu-Natal Joint Liaison Committee v MEC for Education, KwaZulu-
Natal and Others [2013] ZACC 10; 2013 (4) SA 262 (CC) para 129; Kubyana v Standard Bank of South
Africa Ltd [2014] ZACC 1; 2014 (3) SA 56 (CC) paras 77-8.
17 Endumeni para 18.
18 National Commissioner of Police and Another v The Gun Owners of South Africa (Gun Free South Africa
as amicus) [2020] ZASCA 88; 2020 (6) SA 69 (SCA) para 31.

[27] Section 145 of the Act empowers the Minister of Police, by notice in
the Gazette, to make regulations for a variety of purposes necessary for the
effective implementation of the Act. And, in particular, regarding anything
'that may or must be prescribed in terms of [the] Act'.19 By virtue of this
statutory power, the Minister published the 'Firearms Control Regulations'20
on 26 March 2004 which became effective on 1 July 2004. Regulation 13
which is headed 'General provisions regarding applications required in terms
of the Act' sets out an elaborate procedure to be followed, and the nature of
the extensive information that an applicant must provide to the Registrar when
making an application for a competence certificate, licence, permit or
authorisation. Regulation 13(1) reads:
' A person requiring a competency certificate, licence, permit, authorisation, as well as, a
duplicate thereof or renewal to be issued for a purpose contemplated in the Act, must apply
to the Registrar for such competency certificate, licence, permit, authorisation, duplicate
or renewal.'
Regulation 13(4) provides that, unless otherwise specifically stated, an
application for a licence must be submitted by the applicant in person to the
relevant Designated Firearms Officer.

[28] Where the applicant is a juristic person, regulation 13(5) provides that
additional information may be requested by the Commissioner in addition to
that which is specially provided on the application form, for example, in
respect of the following:
(a) the person who is in control of the juristic person;
(b) proof of registration or incorporation of the juristic person;

19 Section 149(1)(a) of the Act.
20 See ‘Firearms Control Regulations, GN R345, GG 26156, 26 March 2004’.

(c) a certified copy of the resolution or decision of the juristic person,
nominating the responsible person to apply on its behalf;
(d) where applicable, documentary proof of registration with the
Private Security Industry Regulatory Authority contemplated in the
Private Security Industry Regulation Act 56 of 2001.

[29] An application for a licence to possess a firearm, competence
certificate, permit, authorisation, as well as a duplicate thereof, whilst it is
made to the Commissioner in his or her capacity as the Registrar, must be
submitted to the Designated Firearms Officer responsible for the area in which
the applicant ordinarily resides or in which the applicant's business is or will
be located.21

[30] It is convenient at this point to consider the question whether the Act is
susceptible of the interpretation for which the respondents contended, namely,
that a party whose licence has terminated by the operation of law is precluded
from applying under the Act for a new licence to possess a firearm. In this
regard the respondents' argument boiled down to this. Fidelity allowed some
700 licences in respect of firearms in its possession to expire by the operation
of law when it failed to renew them as required in terms of s 24(1) of the Act.
And the so-called new applications sought to be submitted by Fidelity were in
truth applications for 'renewal' of the expired licences and not new
applications. Counsel sought to support his contentions with reference to
certain paragraphs of Fidelity's affidavits.

21 Regulation 13(4).

[31] The respondents also relied on SA Hunters. There, it will be recalled,
the Constitutional Court held that once a firearm licence has terminated by
operation of the law 'the gun-holder must get rid of the firearm'. The Court
went on to hold that '[t]he gun-owner knows that he must apply in time for
renewal or dispose of the firearm before expiry. If he does not, he will be
guilty of an offence.'22 Thus, counsel argued that to grant relief to Fidelity
would be tantamount to this Court giving its imprimatur to an illegality, i.e.
unlawful possession of unlicensed firearms in contravention of s 3 of the Act.

[32] In my view, the respondents' reliance on SA Hunters is misplaced. And
more fundamentally, it appears that the respondents' submissions are as a
result of a misconception on their part of the true nature of the relief sought
by Fidelity in this Court. Paragraph 5 of Fidelity's amended notice of motion
– sought in the alternative to the principal relief (i.e. renewal of expired
licences) – expressly seeks an order directing the Commissioner (as Registrar)
to 'accept new applications' albeit in respect of firearms previously licenced
to it.

[33] The respondents' argument on this score cannot be sustained for its
edifice rests upon unstable foundations. There is nothing in the Act nor the
regulations that even remotely suggests that someone whose licence has
terminated by the operation of law is, as a result, forever precluded from
applying for a new licence. To interpret the Act in the manner contended for
by the respondents would, to borrow the words from Endumeni, be to 'cross
the divide between interpretation and legislation'.23 The effect of this then is,

22 SA Hunters para 19.
23 Endumeni para 18.

as the Act provides, that anyone wishing to own a firearm must apply for and
obtain a licence in order to lawfully possess such firearm. This is precisely
what Fidelity attempted to do when the respondents refused to accept its
applications. Thus, first-time applicants and repeat applicants alike are
eligible to apply for a firearm licence. Once an application has been submitted
to the relevant Designated Firearms Officer, it would thereafter be up to the
Commissioner, qua Registrar of Firearms, to satisfy himself or herself that the
applicant concerned meets the requirements stipulated in the Act and
regulations. In persisting in its opposition to the relief sought in paragraph 5
of Fidelity's notice of motion (encapsulated in paragraph 4 above) the
respondents conflate the true nature of that relief with the principal relief
previously sought by Fidelity, unmistakeably disavowed in its supplemented
practice note.

[34] The above interpretation is reinforced by s 149 of the Act which
provides, inter alia, that a firearm may only be destroyed as prescribed;24 and
that it ‘remains the property of the owner thereof until its destruction’.25
Should a person not be allowed to apply for a new licence for a firearm in
respect of which the licence has expired, that firearm will have to be destroyed
– in this case some 7 000 firearms. An interpretation of the Act in terms of
which firearm owners whose licences have expired are prevented from
applying for a new licence, and are required to buy new firearms only for the
same application to be considered – for a new licence as envisaged in s 3 and
regulation 13, is neither sensible or businesslike (Endumeni para 18). This is
really the end of the matter.

24 Section 149(1).
25 Section 149(2)(b).

[35] It bears mentioning that having regard to the narrow basis upon which
this appeal ultimately falls to be determined, the other submissions advanced
by counsel for Fidelity in relation to ss 134, 135, 136, 137 and 149 of the Act
do not arise for consideration, and nothing more need be said about them.

[36] It remains to deal with the application for condonation of the late filing
of the record – which is not opposed – and, if granted, the reinstatement of the
appeal. The record should have been filed on 13 April 2020. But it was
ultimately filed on 20 May 2020. It is alleged in the affidavit in support of the
application for condonation that Fidelity encountered several problems in the
compilation of the record by the service provider requested to undertake this
task.

[37] I do not consider it necessary to traverse the reasons therefor, furnished
by Fidelity, in this judgment save to state that the situation was also allegedly
compounded by the declaration of the national state of disaster following the
outbreak of the Covid-19 pandemic in this country.

[38] Arguing in support of the application, counsel for Fidelity submitted
that Fidelity's failure to file the record timeously having been satisfactorily
explained, condonation ought therefore to be granted. Counsel further argued
that the envisaged appeal enjoyed strong prospects of success. A court
considering an application for condonation is, as a general rule, required to
have regard to the following factors:
(a) the degree of non-compliance;
(b) the explanation therefor;

(c) the importance of the case;
(d) the respondent's interest in the finality of the judgment sought to be
appealed from;
(e) the convenience of the court; and
(f) the avoidance of unnecessary delay in the administration of justice.26

[39] Almost a decade earlier this theme was explained by this Court in
Uitenhage Transitional Local Council v South African Revenue Service 2004
(1) SA 292 (SA) in which the following was stated:
'One would have hoped that the many admonitions concerning what is required of an
applicant in a condonation application would be trite knowledge among practitioners who
are entrusted with the preparation of appeals to this Court: condonation is not to be had
merely for the asking; a full, detailed and accurate account of the causes of the delay and
their effects must be furnished so as to enable the Court to understand clearly the reasons
and to assess the responsibility. It must be obvious that, if the non-compliance is time-
related then the date, duration and extent of any obstacle on which reliance is placed must
be spelled out.'27
This then raises the question as to whether Fidelity has met the stringent
requirements for condonation. Overall, it suffices to observe that the affidavit
in support of the application for condonation is in certain respects bereft of
the particularity required of a litigant seeking the court's indulgence. It is,
however, not necessary to dwell on those shortcomings in this judgment in
light of the view I take of the matter.

[40] I am nevertheless satisfied on balance, having regard to the degree of
non-compliance, the explanation proffered therefor and the prospects of

26 See in this regard: Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd and Others [2013] ZASCA 5; [2013] 2 All SA 251 (SCA) para 11 and the authorities therein cited.
27 Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SA) para 6.

success in the envisaged appeal, that condonation ought to be granted and the
appeal reinstated.

[41] Finally, it is necessary to say something about the appropriate order as
to costs given the turn of events brought about by Fidelity's 'supplemented
practice note' referred to in paragraphs 19 and 20 above. As already
mentioned, Fidelity, having been granted leave to appeal by the high court,
pursued it on all fronts before this Court. This is borne out by the
comprehensive heads of argument filed on its behalf in which all of the
grounds upon which leave was granted were traversed in great detail. But, as
previously mentioned, three court days before the hearing, Fidelity filed a
notice titled 'Supplemented Practice Note' in terms of which it abandoned all
but three interrelated prayers. In truth, as the three remaining prayers are
inextricably interlinked, they amount in substance, to only one prayer.

[42] The relief sought in prayer 628 of the amended notice of motion was
abandoned by counsel during his address. It is, to my mind, beyond question
that the relief sought in prayers 4, 6, 7 and 8 was ill-conceived and Fidelity
acted wisely in not pursuing such relief. However, that Fidelity chose to leave
matters until so late in the day has costs implications. In the light of the fact
that the relief that Fidelity initially sought on appeal was overbroad, the
respondents were undoubtedly justified in opposing the appeal up to the stage
where Fidelity delivered its revised practice note on 5 March 2021 but not
beyond.

28 This prayer reads:
'Ordering the Third Respondent to amend or vary, insofar as it may be necessary, the firearms registration
system in the Central firearms Registry to allow the submission of SAP271's by an existing owner, licenced
in that owner's name.'

[43] This means that Fidelity is entitled only to the costs attendant upon the
hearing of the appeal on 11 March 2021. Accordingly, as the respondents were
justified in opposing the appeal in relation to prayers 4, 6, 7 and 8, all of which
were subsequently abandoned in toto on 5 March 2021, I can conceive of no
reason why they should be deprived of their costs up to that stage. Thus, it is
just and equitable in the exercise of our discretion that Fidelity should bear
the costs of the appeal up to 5 March 2021. The effect of this is that Fidelity
is only entitled to the costs associated with the hearing of the appeal on 11
March 2021. Our order should therefore reflect this.

[44] For the sake of completeness it bears mentioning that although prayer 6
appears at first blush to be consequential upon the grant of prayer 5, it is my
view that it would be ill-advised to dictate to the Commissioner as to what he
or she must do to give effect to the order granting prayer 5. The Commissioner
should be allowed the liberty to deal with Fidelity's new applications for
licences as he or she considers appropriate.

[45] For all the aforegoing reasons, the following order is granted:
The application for condonation of the late filing of the record is
granted. The costs occasioned thereby are to be borne by the appellant on an
unopposed basis.
The appeal is reinstated.
The appeal is upheld to the limited extent set out in paragraph 6 below.
The appellant is ordered to pay the costs of the appeal up to and
including 05 March 2021, including the costs of two counsel where so
employed.

The respondents are ordered to pay the costs associated with the hearing
of the appeal on 11 March 2021 jointly and severally, the one paying
the others to be absolved.
The order of the high court is set aside and in its place is substituted the
following:
'6.1
It is declared that the applicant, Fidelity Security Services (Pty)
Ltd, is entitled to apply afresh for new licences to possess the
firearms listed in annexure D to the applicant’s notice of motion
and the Designated Firearms Officer responsible for the area in
which the applicant’s principal place of business is situated is
directed to accept such applications and deal therewith in terms
of the Firearms Control Act 60 of 2000.

6.2
Save for the aforegoing, the application is dismissed with costs
on the scale as between attorney and client, such costs to include
the costs of two counsel.'

________________________
X M PETSE
ACTING PRESIDENT
SUPREME COURT OF APPEAL

Appearances

For appellant:

M Snyman SC
Instructed by:
M J Hood and Associates, Sandton

Lovius Block, Bloemfontein

For respondents:
D D Mosoma
Instructed by:
The State Attorney, Pretoria
The State Attorney, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED
Fidelity Security Services (Pty) Ltd v Minister of Police and Others (1349/2019)
[2021] ZASCA 51 (22 April 2021)

From:
The Registrar, Supreme Court of Appeal
Date:
22 April 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of the
cases and does not form part of the judgments of the Supreme Court of Appeal

The Supreme Court of Appeal (the SCA) today partially upheld an appeal by Fidelity Security
Services (Pty)Ltd (Fidelity) against the judgment of the Gauteng Division of the High Court,
Pretoria (high court) in terms of which the high court dismissed an application instituted by
Fidelity with costs on a punitive scale.

The judgment of the high court was granted against the following backdrop. Fidelity is one of
the largest security services providers in the country. It is licensed under the Firearms Control
Act 60 of 2000 (the Act) to possess some 8500 firearms for use in the course of its business
operations.

In terms of s 27 of the Act, the validity of a license to possess a firearm is limited to a stipulated
number of years. Section 24 and s 28 of the Act provide for the renewal of firearm licenses and
their termination respectively. In particular, s 24 provides that a holder of a license issued under
the Act who wishes to renew such licence must at least 90 days before the date of expiry thereof
apply to the Registrar of Firearms for its renewal. Section 28, in turn, provides that a license

issued in terms of the Act terminates, inter alia, upon the expiry of the relevant period
contemplated in s 27 unless renewed in terms of s 24.

Fidelity failed to renew the licenses of some 750 of its firearms as prescribed by s 24.
Consequently, the licenses in respect of those firearms terminated by the operation of the law.

Fidelity then attempted to 'renew ' its licenses after they had already expired. But the police
refused to accept Fidelity's applications for 'renewals 'advising that it was not permissible for
anyone whose licenses have already terminated to 'renew 'them in terms of s 24. Thus, in the
alternative, Fidelity sought to submit fresh applications for new licenses to possess the firearms
already in its possession whose licenses had expired through inadvertence on its part. Still, the
police refused to accept the new applications.

As a result of the impasse that had arisen, Fidelity instituted legal proceedings against the
respondents seeking an order: (a) directing the police to accept its new applications; (2)
restraining the police from confiscating the firearms whose licenses had already expired and
whose continued possession by Fidelity was, as a result, unlawful; and (3) directing the
respondents to issue to it temporary licenses in terms of s 21 in respect of the firearms whose
licenses had expired.

The high court dismissed Fidelity's application in its entirety, having concluded that Fidelity's
application was ill-conceived. Before the SCA Fidelity abandoned all save one of the prayers
it had sought in the high court. It persisted only with the relief seeking an order to compel the
respondents to accept its new applications. The respondents opposed even this limited relief
contending that Fidelity was not entitled to the order sought because it had failed to renew its
licenses at least 90 days before the expiry dates of the licenses concerned.

The SCA rejected this argument. It held that there was nothing in the Act precluding Fidelity
from applying for new licenses in respect of the firearms whose licenses had expired. The SCA
emphasised that what Fidelity could not do was to apply for renewals of licenses in terms of s
24 of the Act when those licenses had already terminated in terms of s 28. Nevertheless, the
SCA held that Fidelity was not entitled to the extensive relief that it had sought initially in the
high court. Thus, the SCA held that the high court was correct in dismissing Fidelity's
application in relation to those prayers. In view of the limited success that Fidelity had achieved

on appeal it was ordered to pay the costs of the appeal up to 5 March 2021 when it abandoned
the additional relief. And that Fidelity was entitled only to the costs associated with the hearing
of the appeal on 11 March 2021.

Consequently the order of the high court was varied to the limited extent that Fidelity was
declared entitled to apply afresh for new licenses to possess the licenses whose licenses had
terminated in terms of s 28 of the Act.

________________________________________