THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 646/2011
In the matter between
JUSTICE ALLIANCE OF SOUTH AFRICA
First Appellant

FALSE BAY GUN CLUB
Second Appellant

and

NATIONAL MINISTER OF SAFETY AND
SECURITY
First Respondent

NATIONAL COMMISSIONER OF THE SOUTH
AFRICAN POLICE SERVICE (REGISTRAR OF
FIREARMS
Second Respondent

APPEAL BOARD OF FIREARMS
Third Respondent

NATIONAL MINISTER OF FINANCE
Fourth Respondent

Neutral citation:
Justice Alliance of SA & another v National Minister of

Safety and Security & others

(646/2011) [2012] ZASCA 190 30 November 2012)

Bench:

PONNAN, CACHALIA, BOSIELO, THERON and

PETSE JJA

Heard:

22 NOVEMBER 2012
Delivered:

30 NOVEMBER 2012
Corrected:

Summary:
Firearms Control Act 60 of 2000 – whether guidelines
published by the Minister pursuant to s 137(5) ultra vires.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from:
Western Cape High Court (Cape Town) (Saldanha J sitting as
court of first instance):
The appeal is dismissed with costs including those consequent upon the
employment of two counsel.
___________________________________________________________________

PONNAN JA     (CACHALIA, BOSIELO, THERON and PETSE JJA concurring)

[1] The Firearms Control Act 60 of 2000 (the new Act), which came into force on
1 July 2004, repealed and replaced the Arms and Ammunitions Act 75 of 1969 (the
old Act). It, like its predecessor, regulates the possession of firearms. In doing so, it
recognises, as recorded in its preamble, the store that our Constitution places on the
right of every person to life and security, as also, its logical corollary that the
increased availability and abuse of firearms has contributed significantly to the high
levels of crime in our society. Section 3 of the new Act prohibits any person from
possessing a firearm unless he or she holds for that firearm a licence, permit,
authorisation or registration certificate. The purpose of the new Act is to prevent the
proliferation of illegally possessed firearms and to improve the control of legally
possessed firearms.

[2] The new Act restricts the number of licences that may be issued to any
person in respect of particular sorts of firearms (ss 13-15) and prohibits the issuance
of a licence to any person who is not in possession of a relevant competency
certificate (s 6(2)). As many thousands of people held firearm licences under the old
Act, a transitional scheme was created in terms of Schedule 1 of the new Act
whereby licences granted under the former remained valid for five years. During
those five years persons holding licences could apply to have them renewed under

the new Act.1 Once such an application had been made the licence would remain
valid until the application was either granted or rejected.2 If an application for the
renewal of a licence was rejected or if a licence otherwise terminated3 the firearm
had to be disposed of within 60 days. Failure to do so constituted a criminal offence.4
The result is that certain persons who lawfully possessed firearms under the
previous regulatory regime in terms of the old Act may not have been able to secure
a licence, permit or authorisation in terms of the new Act. In that event they had to
either: (a) sell or donate the firearm to another qualified person; (b) deactivate the
firearm; (c) destroy the firearm; or (d) surrender the firearm to the State. This appeal
concerns the last category - voluntarily surrendered firearms, more particularly
whether persons who have voluntarily surrendered their firearms are entitled to
compensation for them in circumstances where they are not retained by the State.

[3] Chapter 19 of the new Act headed ‘Compensation’ provides:
'134
Circumstances where no compensation is payable in respect of firearms and

ammunition forfeited to State
No compensation is payable to a person in respect of a firearm or ammunition forfeited to
the State in terms of this Act−
(a)
if the relevant licence, permit or authorisation was cancelled in terms of this Act
because the holder of the licence had contravened or not complied with a provision
of this Act or a condition specified in that licence, permit or authorisation; or
(b)
if the holder of the licence, permit or authorisation became or was in terms of section
102 or 103 declared unfit to possess a firearm.
Circumstances where no compensation is payable in respect of firearms and

ammunition seized by State
(1)
No compensation is payable to a person from whom a firearm or ammunition was
seized by the State if-
(a)
no licence, permit or authorisation had been issued for such firearm or ammunition to
that person in terms of this Act; or
(b)
the firearm or ammunition was for any other reason unlawfully in the possession of
that person.

1Item 11(1)(a) of Schedule 1 to the Act.
2Item 11(1)(d) of Schedule 1 to the Act.
3Section 28.
4Section 120(1)(a).

(2)
The lawful owner of a firearm or ammunition lost or stolen as a result of his or her
negligence is not entitled to claim compensation if such firearm or ammunition is
subsequently seized by the State from another person.
No compensation payable where firearms or ammunition are destroyed by

State
(1)
The Registrar may in respect of any firearm or ammunition seized by, surrendered to
or forfeited to the State, issue a notice in the Gazette stating that it is the intention of the
State to destroy that firearm or ammunition.
(2)
Any person who has a valid claim to the relevant firearm or ammunition may, within
21 days after the publication of the notice in the Gazette, make representations to the
Registrar as to why the firearm or ammunition should not be destroyed.
(3)
If the Registrar is satisfied, after consideration of any representations contemplated
in subsection (2), that a valid claim to the relevant firearm or ammunition has not been
proved, the firearm or ammunition may be destroyed and no compensation will be payable to
anyone in respect thereof.
Application for compensation
(1)
A person whose firearm has been surrendered or forfeited to the State in
circumstances other than those referred to in sections 134, 135 and 136 may apply
to the Registrar for compensation in respect of that firearm in the prescribed form.'
Subsection 2 of s 137 empowers the National Commissioner of Police in his capacity
as the Registrar of Firearms (s 123) to decide whether compensation is payable and,
if so, to attempt to agree with the applicant for compensation, the amount of such
compensation or where no agreement can be reached to determine the amount of
compensation to be paid. Subsections 3 and 4 provide for an appeal to the Appeal
Board against a decision of the Registrar as to the amount of compensation to be
paid.  And s 137(5), which lies at the heart of this appeal, reads:
'The Minister must, with the approval of the Minister of Finance, establish guidelines for the
payment of compensation, taking into account the−
(a)
financial constraints on the State and its ability to meet actual and anticipated claims
for compensation; and
(b)
interests of persons who have applied or may in the future apply for compensation.'

[4] Section 149 contains the only reference to compensation in the New Act aside
from the above-mentioned sections. It reads:
'149 Compulsory destruction of firearms, muzzle loading firearms and ammunition
(1) A firearm or muzzle loading firearm may only be destroyed as prescribed.

(2) Any firearm, muzzle loading firearm or ammunition forfeited to the State in terms of this
Act−
(a)
must be destroyed by the State within six months of the date of the forfeiture or after
all possible appeals have been concluded or the last date on which any appeal could
have been noted has passed without an appeal having been noted, whichever occurs
last; and
(b)
remains the property of the owner thereof until its destruction.
(3)
(a) Despite subsection (2), the State may retain any firearm, muzzle loading firearm
or ammunition forfeited to the State, which the Registrar deems to be of special value.

(b) Any firearm, muzzle loading firearm or ammunition retained by the Registrar in
terms of paragraph (a) becomes the property of the State when the Registrar informs the
former owner of the firearm, muzzle loading firearm or ammunition of that fact.

(c) Subject to Chapter 19, the former owner of any firearm, muzzle loading firearm or
ammunition which becomes the property of the State in terms of paragraph (b) may apply for
compensation in terms of this Act.
(4)
(a) Subject to subsection (1) no person, including the State, may destroy a firearm or
muzzle loading firearm without the prior written permission of the Registrar.

(b) The Registrar must only consent to the destruction of a firearm, muzzle loading
firearm or ammunition with due regard to and in compliance with the provisions of the
National Heritage Resources Act, 1999 (Act 25 of 1999), and any condition which may be
imposed by the South African Heritage Resources Agency or their nominated agents.'

[5] The Minister of Safety and Security (or more accurately his predecessor, the
Minister of Police) (the Minister) failed to timeously establish the guidelines
envisaged by s 137(5) of the new Act. As a consequence two non-profit voluntary
associations, the first appellant, the Justice Alliance of South Africa, and the second
appellant, the False Bay Gun Club, acting in the interests of firearm owners
nationwide, approached the Western Cape High Court for declaratory relief against
the Minister, the National Commissioner of the South African Police Services, in his
capacity as the Registrar of Firearms (the Registrar), and, the Appeal Board of
Firearms (established in terms of s 128), as the second and third respondents,
respectively. The high court (per Traverso DJP) issued the following order:
'1.
It is declared that the failure to establish guidelines as contemplated by section
137(5) of the Firearms Control Act No 60 of 2000 ("the Firearms Control Act") is
unlawful and inconsistent with the Constitution.

2.
The Minister of Police is ordered to establish guidelines as contemplated by section
137(5) of the Firearms Control Act within 90 days of this order and to inform this
Court by way of an affidavit by the Minister within 120 days of this order that he has
done so; and
3.
The Minister of Police is to pay the Applicants' costs of suit, which costs are to
include the costs attendant upon the employment of two counsel.'

[6] In support of that application Mr John Jackson Smyth, the honorary director of
the first appellant, stated:
'17.
This scheme appears efficient on paper, but the reality was very different. The
infrastructure created by the Respondents could not cope with the deluge of
applications, including new applications by people seeking to buy new firearms. As a
result, many applications were either greatly delayed or simply disappeared. . . .
18.
As a result of these difficulties, many persons chose to hand in their firearms to the
State rather than become illegal possessors of firearms. It cannot be stressed
enough that these people acted out of a respect for the law, even when it meant
giving up their own property.
19.
Many of these people then sought compensation from the State, despite the fact that
they were often told by police officers that they did not qualify for compensation
because they had "voluntarily" surrendered their firearms.
20.
However, the guidelines for compensation that section 137(5) of the Act required the
Second Respondent to establish did not exist, more than nine years after the Act was
promulgated. Section 137(5) provides:

"The Minister [of Safety and Security] must, with the approval of the Minister of
Finance, establish guidelines for the payment of compensation, taking into account
the –

(a)
financial constraints on the State and its ability to meet actual and anticipated

claims for compensation; and

(b)
interests of persons who have applied or may in the future apply for
compensation."'

[7] On 10 November 2009 and ostensibly in compliance with the order of Traveso
DJP the Minister promulgated the guidelines envisaged in s 137(5). The guidelines
provide:5

5GN 1071, GG 32701, 10 November 2009.

'2.
These guidelines are not applicable to firearms which have been voluntary
surrendered for destruction to the South African Police Service in the period between
1 July 2004 and 30 June 2009−

(a)
by the lawful owners of such firearms, in accordance with Regulation 94 of

the Firearms Control Regulations, 2004; and

(b)
by virtue of a choice made by the person involved to have the firearm

destroyed and not to sell, donate or otherwise dispose of the firearm involved.
3.
These guidelines shall apply to firearms referred to in section 149(3) of the Firearms
Control Act, 2000. Notwithstanding paragraph 2 above, I hereby determine that if the
Registrar decides that a particular firearm needs to be kept by the South African
Police Service for forensic- and other training, research or heritage reasons; and will
therefore not be destroyed, that the owner whose firearm was voluntarily surrendered
for destruction must be compensated in accordance with these guidelines. In such a
case the Registrar must notify the person concerned of the intention not to destroy
the firearm and provide the person with the prescribed application form for
compensation. Any application for compensation pursuant to a notification by the
Registrar, as referred to in this paragraph, must be submitted to the Registrar within
30 working days from the date of notification by the Registrar.
4.
I will appoint a Panel of at least three independent valuators. The Registrar must
have the firearms in respect of applications where the applicant is not satisfied with
the flat rate valuated by the Panel. Such applicant for compensation shall be entitled
to compensation in accordance with the valuation determined by the Panel, subject
to the maximum amount of compensation determined in these guidelines for the
relevant category of firearm. The costs incurred to obtain such valuation must be
deducted from the compensation payable to the applicant.
5.
Taking into account the −

(a)
Financial constraints on the State and its ability to meet actual and anticipated

claims for compensation; and

(b)
interests of persons who have applied or may in future apply for
compensation,
6.
I hereby determine that the flat rate and the maximum amount of compensation paid
in respect of a particular firearm may not exceed the following:

(a)
In the case of a handgun (pistol or revolver) – R 600.00;

(b)
in the case of a rifle (combination, single shot, semi-automatic/fully

automatic); shotgun (combination, single shot, semi-automatic or automatic),

or of any other firearm not mentioned above – Flat rate – R 1 200.00.

7.
The maximum amount of compensation which may be aid in respect of any firearm,
irrespective of an evaluation by the Panel, shall be the following:

(a)
In the case of a handgun (pistol or revolver) – R 1 000.00;

(b)
in the case of a rifle (combination, single shot, semi-automatic/fully

automatic); shotgun (combination, single shot, semi-automatic or fully

automatic), or of any other firearm not mentioned above – R 2 000.00.
8.
In the case where compensation is to be paid, such payment must be effected from
the allocated budget of the Department of Police.
9.
The payment must be effected within 90 (ninety) working days from the date of
determination by the Registrar of the amount of compensation, or within the same
period after an appeal has been upheld.'
Those guidelines were approved by the Minister of Finance, who in due course came
to be joined as the fourth respondent in the matter.

[8] During February 2010 the appellants once again approached the Western
Cape High Court. This time they sought an order:
'1.
Declaring that the guidelines issued by the First Respondent in Government Notice
1071 in Government Gazette 32701 of 10 November 2009 are ultra vires,
inconsistent with section 137 of the Firearms Control Act 60 of 2000 and the
Constitution, 1996, and invalid;
2.
Directing the First Respondent to issue new guidelines under section 137(5) of the
Firearms Control Act 60 of 2000 by 17 June 2010, taking into account:

2.1
the right of persons who voluntarily surrender their legal firearms to the State

to receive compensation; and
2.2
the right of persons who receive compensation to receive just and equitable
compensation that takes into account the market value of the surrendered
firearms'.

[9] Mr Smyth, who again deposed to the affidavit in support of the application,
alleged:
'6.
The guidelines are flawed in a number of aspects and accordingly do not comply with
the order.
7.
First, the guidelines do not permit persons who voluntarily submitted their legal
firearms to the government to claim compensation. By doing so, the guidelines are
ultra vires and inconsistent with section 137 of the Firearms Control Act 60 of 2000

("the Act" or "the new Act"). Were section 137 to be interpreted as the guidelines
imply, it would turn the section into a dead letter.
8.
Furthermore, the refusal to grant compensation to persons who surrender their legal
firearms to the State undermines the compensatory aims of the Act, read in the light
of the Constitution, and unjustly penalises certain firearm owners.
9.
Secondly, the maximum amounts allowed for compensation in terms of the
guidelines are disproportionately below the fair market value of most firearms. To add
insult to injury, persons seeking to get even the maximum amount of compensation
allowed by the guidelines must pay for the process of such valuation.'

[10] That application came before Saldanha J, who made the following order:
'(i)
The provision of Paragraph 4 of the Guidelines published by the respondents which
provides that the costs incurred in obtaining the valuation must be deducted from the
compensation payable to an applicant is declared unlawful.
(ii)
That the fourth respondent is to take appropriate steps within 60 days of this order for
the deletion of item 2 and the clearing up of any confusion caused by item 3 in the
Guidelines.
(iii)
Save for the above, the relief sought by the applicants is dismissed.
(iv)
No order is made as to costs.'
The learned judge subsequently granted leave to the appellants to appeal to this
Court. The order of the high court plainly lacks the intelligibility, clarity and certainty
that are the essential attributes of an order of court. But, it would appear that in
framing paragraphs (i) and (ii) as he did, the learned Judge had in mind the following
concessions by Director Bothma in his affidavit filed on behalf of the First and
Second Respondents in opposition to the relief sought by the appellants:
'17.
To the extent that item 2 of the guidelines suggests that those who surrender their
firearms for destruction outside of the 1 July 2004 – 30 June 2009 period; and
outside of the situations referred to in item 2(a) and (b) of the guidelines, may make
use of these guidelines to obtain compensation, I am advised to clarify that this is not
the case. In accordance with section 136 of the Act, no person who surrenders his or
her firearm for destruction is entitled to compensation unless such firearm is retained
by the State.
To the extent that it may be necessary to remove any confusion arising from item 2 I
am advised that, since this item is superfluous, the Minister is willing to agree to
facilitate an amendment to the guidelines which will involve the deletion of item 2';
and

'45.
To the extent that paragraph 3 of the guidelines may be construed as limiting the
compensation provisions of section 137 to the firearms forfeited in section 149(3) I
am advised that the Minister will deal with such potential confusion by agreeing to
amend this paragraph accordingly; including the deletion of any reference suggesting
that compensation is restricted exclusively to the circumstances described in section
149(3).'.

[11] The appellants eschewed reliance on a constitutional challenge to the validity
of any provision of the Act having recorded in their replying affidavit:
'16.
. . . The Applicants do not bring a constitutional challenge against any section of the
Act in this application'.
That notwithstanding one of the issues identified by the high court as requiring
determination was: ‘[w]hether the constitutionality of any of the relevant provisions of
the Act should mero motu be considered and determined by this court’. In the result
the judgment, as also the heads of argument filed on behalf of the parties in this
court, addressed a range of constitutional issues.  At the hearing of the appeal,
however, the appellants restricted themselves to the relief sought in their notice of
motion that on a proper interpretation of the new Act, the guidelines issued by the
Minister are ultra vires s 137.

[12] Sections 134 and 135 appear on the face of it to pose no real difficulty in this
case. The former deals with firearms that have been forfeited to the State and the
latter to those seized by the State. Both sections plainly pertain to those situations
where the possession or continued possession of the firearms would for the range of
reasons provided there not be lawful. It thus would follow logically that in those
circumstances compensation could hardly come into the reckoning. Section 136
caters for what follows upon the seizure or forfeiture envisaged in ss 134 and 135,
namely destruction. But s 136(1) also mentions a third category of firearms -
surrendered firearms. The legislature contemplates that all three categories will
suffer a similar fate - destruction, unless any person with a valid claim to the firearm
is able to make representations as to why it should not be destroyed. Section 136(2)
permits any person who has a valid claim to a seized, surrendered or forfeited
firearm to make representations to the Registrar as to why that firearm should not be
destroyed. A person who has surrendered a firearm in these circumstances is hardly

likely thereafter to lodge a claim to it. It may however be that another person has a
right to or interest in the surrendered firearm. The subsection serves the important
purpose of providing protection to such person (a third party) who may have a valid
claim to the surrendered firearm, which will otherwise be destroyed. The appellants
correctly observe that it is difficult to assess a claim for compensation in respect of a
firearm that has been destroyed. Section 136(2) creates a mechanism whereby a
claim to a firearm may be proved before the decision is made to destroy the firearm.
Importantly, the representations to be made are not advanced in support of any
claim for compensation but as to why the firearm should not be destroyed. For, once
a firearm has been destroyed no compensation is payable (s 136(3)).

[13] Section 149 (3), which must be read subject to Chapter 19, describes when
compensation is payable, namely when the State elects to retain a firearm forfeited
to it because the Registrar deems it to be of 'special value'. The firearm then
becomes the property of the State and the former owner may apply for
compensation. Significantly, it is restricted to forfeited firearms. Section 137 on the
other hand pertains to both forfeited and surrendered firearms. Whether that
difference in language means that compensation is only payable under s 149(3)
when a firearm is retained by the State after it has been forfeited or also when
surrendered is fortunately a conundrum that does not have to be presently resolved.
For, the respondents have adopted the stance that compensation is also payable
when a firearm is retained by the State after having been voluntarily surrendered by
its owner.

[14] The default position envisaged by s 149, which is headed ‘[c]ompulsory
destruction of firearms . . .’ is that all forfeited firearms must be destroyed by the
State save for those retained because the Registrar deems it to be of special value.
In terms of the new Act a firearm is forfeited to the State following upon, inter alia: (a)
the cancellation of an accreditation (s 8(5)); (b) the termination of a firearm licence (s
28(5)); (c) the cancellation of a dealer’s licence (s 42(5)); or (d) the termination of a
manufacturer’s licence (s 56(5)). In each such instance the former holder would be
obliged thereafter to surrender the firearm in such manner as may be determined by
the Registrar. A similar obligation to surrender also arises when a person is declared
to be unfit to possess a firearm (s 104 (2)), is given indemnity from prosecution

following upon amnesty (s 139(3)) or if the Registrar finds that a licence, permit,
certificate or authorisation was not validly issued under the old Act (Item 10(3)
Schedule 1 of the new Act). These are all instances of what may be described as
compulsory (or perhaps more accurately compelled) surrender, which, according to
the appellants, fall to be distinguished from instances of voluntary surrender.

[15] The obvious difficulty that confronts the appellants is that s 136(3) provides in
terms that no compensation is payable in respect of firearms that have been
surrendered to the State and destroyed. Section 137, which establishes the
compensatory scheme, underlines that difficulty. It states that the person who may
apply for compensation is a person whose firearm has been surrendered to the State
in circumstances other than those referred to in s 136. Section 136 could hardly be
clearer as to when compensation is not payable, namely: (a) when the firearm is
seized, surrendered or forfeited; (b) no valid claim has been proved in respect of the
firearm; and (c) the firearm has been destroyed. In those circumstances according to
subsection 3 ‘no compensation will be payable to anyone’. In order to avoid this
outcome the appellants contend that the word ‘surrender’ in s 136 excludes voluntary
surrender. In my view there is nothing in s 136 that supports this contention. Indeed
a cursory reading of the Act makes it plain that no distinction is drawn between
voluntary and compulsory surrender.

[16] As an additional string to their bow the appellants contend that the Act
envisages two different forms of financial transactions – ‘payment’ when the State
retains a firearm under s 149 and ‘compensation’ when a firearm is voluntarily
surrendered and destroyed. The fundamental difficulty with this argument is that
s 149, like s 136, employs the word ‘compensation’ to describe what is payable. The
two sections can hardly, in using the same word in the context of the same issue, be
taken to refer to different concepts. That contention, I may add, is advanced in the
face of the provisions of s 136(3) that no compensation is payable if the firearm is
destroyed. Moreover, the Legislature appears to have been at pains to stress that
compensation is only payable in circumstances where the State acquires the firearm.
Where the firearm is destroyed the State does not acquire it and no compensation is
payable. Thus s 149(2) provides that a firearm that is to be destroyed under s 149
‘remains the property of the owner thereof until destruction’.

[17] In my view the interpretation proposed by the appellants is tortuous and
unduly strains the language of the legislation. For, in order to arrive at the
interpretation advanced by them one has to ignore the explicit provisions of the Act,
in particular s 136(3), which states that no compensation is payable when a firearm
is surrendered and destroyed and also the scheme of the Act which is to provide for
compensation only when a firearm is retained by the State. The Act does recognize
that when the State retains a firearm, which is deemed to be of special value, that
value accrues to the State for which the former owner should be compensated. It
follows that in publishing guidelines that excluded persons who voluntarily
surrendered their firearms (and whose firearms were not retained by the State) from
the compensatory scheme, the Minister did not act ultra vires the provisions of the
Act. The appeal must accordingly fail.

[18] That leaves costs: It was submitted on behalf of the appellants that consistent
with what occurred in the high court, each party should be ordered to pay their own
costs. I cannot agree. As I have already stated the appeal did not raise any
constitutional issue. There was some attempt to suggest that the appellants were
acting in the public interest but counsel was constrained to accept that the appellants
were not motivated by altruism but in the main represent firearm owners who have a
financial interest in the outcome of these proceedings. There is thus no warrant for
departing from the general rule that the costs of the appeal should follow the result.

[19]  In the result the appeal is dismissed with costs including those consequent
upon the employment of two counsel.

_________________
V M  PONNAN
JUDGE OF APPEAL

APPEARANCES:

For Appellant:

P Hodes SC

D Simonsz

Instructed by:

Gunstons Attorneys

Tokai

Webbers

Bloemfontein

For  Respondent:

A M Breitenbach SC

H Varney

Instructed by:

The State Attorney

Cape Town

The State Attorney

Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

30 November

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Justice Alliance of SA & another v The National Minister of Safety and Security & others
(646/2011) [2012] ZASCA 190 (30 November 2012)

Media Statement

Today the Supreme Court of Appeal (SCA) dismissed an appeal by two non-profit voluntary
associations, the Justice Alliance of South Africa and the False Bay Gun Club against a judgment of
the Western Cape High Court that guidelines published by the Minister of Safety and Security, which
provided that gun owners who voluntarily surrendered their firearms that were not retained by the
State are not entitled to compensation, are not ultra vires section 137 of the Firearms Control Act 60
of 2000. The appellants acting in the interests of firearm owners nationwide, approached the high
court for declaratory relief against the Minister, the National Commissioner of the South African Police
Services, in his capacity as the Registrar of Firearms.

The Firearms Control Act, which came into force on 1 July 2004, repealed and replaced the Arms and
Ammunitions Act 75 of 1969 (the old Act). It, like its predecessor, regulates the possession of
firearms. In doing so, it recognises, as recorded in its preamble, the store that our Constitution places
on the right of every person to life and security, as also, that the increased availability and abuse of
firearms has contributed significantly to the high levels of crime in our society. The purpose of the new

Act is to prevent the proliferation of illegally possessed firearms and to improve the control of legally
possessed firearms.

The SCA held that the argument advanced on behalf of the appellants cannot be reconciled with the
explicit provisions of the Act, in particular section 136(3), which states that no compensation is
payable when a firearm is surrendered and destroyed. Moreover, according to the SCA, the general
scheme of the Act is to provide compensation only when a firearm is retained by the State. The Act
does recognize that when the State retains a firearm, which is deemed to be of special value, that
value accrues to the State for which the former owner should be compensated. It follows, the SCA
concluded, that in publishing guidelines that excluded persons who voluntarily surrendered their
firearms (and whose firearms were not retained by the State) from the compensatory scheme, the
Minister did not act ultra vires the provisions of the Act.

--- ends ---