Black judgement

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Black judgement

Postby GOSA » Fri, 2008-12-12 12:04

Black v The Minister of Safety and Security 2008 JDR 0888 (T)
2008 JDR 0888 p1
Marked not Reportable

Citation 2008 JDR 0888 (T)
Court Transvaal Provincial Division
Case no 38397/2005
Judge Ebersohn AJ
Heard Not Available
Judgment July 28, 2008

Summary

Firearms — Collector — Successful application for reversal of a decision by the Firearms Licence Appeal Board to uphold the ruling by the Commissioner of Police to refuse an application by a registered collector for a licence to add four pistols to his collection — None of the members of the Appeal Board were firearms experts and the chairman had made some astounding statements concerning firearms, notwithstanding the fact that he had stated that he was no expert — Process flawed and a failure of justice ensued. Black v The Minister of Safety and Security Case No: 38397/2005 28-7-2008 TPD Ebersohn AJ 13 pages Serial No: 0888/2008 — CD 21/2008

Judgment

Ebersohn AJ

[1] On the 10th September 2001, by virtue of section 43(1)(KA) of the Arms and Ammunition Act, No. 75 of 1969, as amended, (“the Act”), the Commissioner of the South African Police Service (“SAPDS”) declared the applicant a collector of arms and ammunition. The applicant, with the knowledge of the SAPDS, also became a member in the category B - Restricted and Ordinary Firearms, of the Southern Africa Arms & Ammunition Collectors Association.

[2] A "'collector" is described inter alia by the Shorter Oxford English Dictionary on Historical Principles 6th Edition, Oxford Press, as:
"A person who or thing which collects or gathers together, spec. a person who collects and keeps specimens, works of art ... "

[3] A "collector's item, collector's piece" is described in the same work as:
"A thing of sufficient beauty, rarity, or interest to be placed in a collection."

One but has to visit the British War Museum or the War Museum in Johannesburg to see how much such collections are revered.

[4] It is a salient fact that collectors have enriched the lives of many and kept modern man in touch with things of beauty and of joy of the past. You therefore find people collecting and lovingly restoring old aircraft, cars, motorcycles, stamps etc..

[5] On the 30th June 2004, which is the day before the new Firearms Control Act, No. 60 of 2000, became law on the 1st July, the applicant's collection consisted of 62 firearms, based, with the knowledge and approval of the SAPDS, upon the theme of military weapons with inter alia the following registered sub-themes (quoted verbatim):

(1) "Mausers manufactured for military contracts historical as manufactured under various contracts and factories for Mauser from 1869 Norris Nauser to 1959 FR8"
(2) "Commercial Mausers and a representative collection of variants of the Mauser action historical as manufactured by Mauser and Mauser copy cats all over the worlds from 1888 to current (Zatava and Santa Barbara still makes the Mauser copies for hunting market)"
(3) "South African War rifles used in conflicts since the BOER War. Heritage Historical used by all involved in both sides of the war"
(4) "Arms and related accessories used in Angola and South West Africa: A forgotten War (1975-89), Heritage Historical used by all involved on both sides of the war, and extension of (3) above"
(5) "A representative collection of .22 Rim fire Arms by Calibre make and action Technology"
(6) "Luger pistols by markings from 1899 to 1942 Historical as per year and for what contract and per cartouche"
(7) "Collection of military firearms used by the United States of America since WW1 up to current Historical per conflict and per war;
(8) "A representative selection Shot guns by action and gauge and barrel combination technological"
(9) "A representative selection of the pistol by action and loading system and frame size and calibre technology";
(10) "A representative selection of the revolver by action and loading system and frame size and calibre technological"; and
(11) "A representative selection of lever action rifles as used from 1866 to current per manufacturer, magazine type, barrel length and calibre technological".

[6] As can be gleaned from the above, the applicant's collection is structured scientifically, logically and rather sophisticated and did not include any and the ordinary run of the mill old firearms.

[7] The applicant owned the said 62 firearms under valid licences issued to him under the Act.

[8] During December 2003 the applicant, in his aforesaid capacity as a registered private collector, applied in terms of the Act for the issuing to him of licences for a further three Luger P.38 pistols, one BRNO pistol and one Military Mauser rifle which he wanted to add to his collection and which would have enhanced his collection immensely. The five firearms all fell under and were covered by the items described in paragraph 5 supra. Each of the five applications was accompanied by a lengthy motivation wherein the applicant gave all his particulars, his personal history and background as a collector. He, in every one of the applications, also detailed in full the reasons why he wanted to add each of the firearms to his collection. He detailed in full the historical value of each of the five firearms and also set out the peculiarities of each of the firearms which make them much sought after collector's items. One need to refer, for instance, to the years in which the Lugers he now wished to add to his collection, were manufactured. The first Luger pistol is a 1911 model. The second Luger is a 1913 model. The third Luger is a 1915 model. They all differ from each other. The fourth pistol is a small frame single action blowback operated Brno pistol with a peculiar safety catch that doubles as take down lever for stripping and cleaning. It had one locking ring on the barrel and two on the side. According to the applicant's relevant application it fitted into his collection on this technical ground and he has no other similar weapon in his collection. The year of manufacture of the Brno is not known but it clearly is a very old firearm. The fifth firearm is a Mauser rifle manufactured in about 1918 and was brought back from World War 1 as spoils of war by the South African Military forces. This rifle was used by the German forces against the Allied Forces and, according to the applicant, is highly sought after by collectors world wide. According to the applicant he needed the rifle in his collection to make his collection more complete and this weapon is of a unique technical nature and no other weapon could fill the gap in the applicant's collection in this regard.

[9] In paragraph 6.8 of the founding affidavit the applicant erroneously referred to all four pistols as being Lugers although the applications and the annexures to the founding affidavit clearly related to three Luger and one Brno pistol. Mr. Tokota, who appeared for the respondents, in his usual exemplary and fair manner, indicated that he did not intend taking this rather technical point and the court proceeded to hear the application on the correct facts.

[10] The first respondent, being the delegated police officer who must consider such applications on behalf of the Commissioner of the SAPDS in terms of the Act, refused all five applications and notified the applicant in September 2005 on a standard printed letter of the five refusals. Each of the five letters contains the name and address of the applicant and a description of the firearm involved in the particular application and in a haphazard manner reads further (quoted verbatim):
"U aansoek gedateer 2004-08-26 om ‘n lisensie om bogenoemde wapen te besit, is deur die Nasionale Kommissaris van die Suid-Afrikaanse Polisiediens geweier.
Your application dated 2004-08-26 for a licence to possess above mentioned firearm, has been refused by the National Commissioner of the South African Police Service.
Does not prove how firearm will fit into his theme of collection / Waar pas vuurwapen in versameling
Not convinced of need/oortuig nie van noodsaaklikheid nie Insufficient motivation/gebrekkige motivering"

[11] It would appear that the second respondent completely misdirected himself by not treating and considering the applicant's five applications as those of a registered collector and in terms of his registered themes, but treated the applications as ordinary run of the mill applications by a private person resulting in his refusal of the applications, in the process seriously prejudicing the applicant. The second respondent's conduct in fact made a mockery of the process of registering as a collector and registering specific themes. It is a well-known fact that collectors sometimes acquire more than one item of the same kind for the specific purpose of later swapping it for an item still missing from his collection.

[12] The applicant noted appeals in terms of the provisions of the Act against the five refusals to the Firearms Licence Appeal Board.

[13] The applicant was later notified that the third respondent allowed the appeal with regard to the rifle but dismissed the appeals with regard to the three Luger pistols and the Brno pistol.

[14] This review application then followed.

[15] The first and second respondents did not file answering papers. The chairperson of the third respondent, in response to the review notice, as reasons for the decision of the third respondent merely attached a copy of their original letter to the applicant which letter reads as follows:

"Your letter dated 2004-10-22 refers refusal of your application for the licence to possess a firearm, the Appeal Board has decided to refuse the appeal.
The decision of the Commissioner is confirmed in respect of the (4) four pistols."

[16] The applicant in his application stated his particulars and detailed his activities as collector and reasons why he wanted the said four pistols to be added to his collection. He concluded that the third respondent, without good reason, refused his appeals.

[17] As stated the second respondent did not file any affidavit and/or reasons for his initial refusal of the applicant's applications, yet the chairman of the third respondent apparently had insight in the missing reasons because in his answering affidavit he stated with regard thereto:
"The applicant has laid no basis whatsoever for the contention that the decision of the Second Respondent was wrong.;"

This statement by the chairman is unacceptable. It is clear that the reasons given in the letter by the second respondent to the applicant are not really applicable to the applicant, a fact which the second respondent and the third respondent clearly did not comprehend. There was, in fact, nothing for the applicant to disprove.

[18] The chairman then also added:
"Save to deny that it was necessary to add the firearms in question to the Applicant's collection, I note the contents of this subparagraph."

[19] The chairman of the third respondent divulged particulars about the knowledge of himself and the other members of the Appeal Board of firearms. He stated that he was a retired judge and that it was not necessary for a member of the Firearm Licence Appeal Board to be experts on firearms. He also stated that as a judge and in the course of performing his judicial work, to quote from his answering affidavit,
"I came across many cases involving firearms either in Criminal Courts or applications of this nature."

With regard to the other members of the Firearms Licence Appeal Board none of them have any specific knowledge of firearms except that gained in criminal cases wherein they were involved where firearms figured. Anybody with a little court experience will know that a presiding officer in a criminal case, where firearms are involved and become exhibits, merely notes the exhibit number relating to the firearm and how the firearm was used, and, perhaps, hears evidence from a ballistic expert regarding the firearm. That is all. A presiding officer don't really gain experience in firearms and the collection thereof in criminal courts. The chairman also apparently didn't gain any experience as a member of the third respondent because he himself stated that he was not an expert. The opinion and attitude of the chairman is clearly wrong and a misdirection and is rejected by this Court. Where you dare sit as a member of an Appeal Board considering applications by serious and registered collectors to enhance their collections you at least have to be an expert yourself in that field to do justice to the applicants whose applications you consider.

[20] The statement in paragraph [18] supra by the chairman also boggles the mind. How the chairperson, as a layperson, could comment in such fashion on the field of experts is not clear and Mr. Vermaak, who appeared for the applicant, correctly submitted that the statement by the chairman was in any case legally irrelevant and of no value whatsoever and had to be rejected.

[21] As stated, I am, indeed, to put it mildly, distressed to note that none of the members of the third respondent could, and did, deal with the appeals of the applicant from the perspective of an expert collector. This is unacceptable. The decision of the third respondent, on the chairman's own admission, was arrived at by them as laypersons who could not sit as experts on the subject they had to adjudicate on namely appeals by a registered collector to increase and enhance his collection of firearms according to his registered themes. The members of the third respondent on their own admission, failed in their task. To be able to assess an application of a serious and bona fide collector and thereafter an appeal against a refusal of such application by the body of first instance, is the work of expert collectors. This is a serious and material flaw in the process followed by the respondents and this court must interfere.

[22] To think, therefore, like the second respondent and the third respondent apparently also thought, that once you have for instance one Luger pistol in your collection you as a collector may not acquire another Luger pistol, is wrong and would tend to make the task for collectors very difficult and would amount to making a mockery of the Act in so far as it regulates collectors and the themes of their collections. It must also be pointed out that on the uncontested evidence of the applicant the Lugers were, for instance, in fact manufactured by various factories in different places and countries and each factory added some peculiarities to the pistols they manufactured. This made the pistols manufactured in different factories, differing in some respects from those manufactured elsewhere, much more sought after collector's pieces. This the uninformed layperson like the second respondent and members of the third respondent apparently did not know and would not know, and would not comprehend, as they were not expert collectors. They also apparently didn't understand, and or read, the applicant's applications and the Act where it deals with collectors and their registered themes. This probably caused the dismissal of the applicant's appeals regarding the Luger pistols. Regarding the Brno pistol neither the second nor the third respondent gave any reasons why the applicant's application and appeal failed. The applicant was entitled, as of right, to have been informed as to why his fully substantiated applications regarding the Lugers and the Brno failed.

[23] One gets the unfortunate impression that the third respondent merely rubber stamped the refusals of the applicant's applications by the second respondent.

[24] It must also be pointed out that the chairman was also confused regarding the particulars of the appeals. In his answering affidavit the chairman stated that six appeals were lodged by the applicant whereas, in fact, only five were lodged.

[25] The chairman also stated that two of the appeals were granted by his Board whereas, in fact, only one, that of the Mauser, was granted.

[26] This Court is satisfied that there was a clear failure of justice in this matter and that the review must succeed.

[27] It must now be considered whether the matter must be referred back to the respondent or whether this Court can substitute its own decision on behalf of the respondents. Holmes AJA. in Livestock and Meat Industries Control Board v Garda 1961 (1) SA 342 (A), stated on p. 349

" ..... the Court has a discretion, to be exercised judicially upon a consideration of all the facts of each case. Although the matter will be sent back if there is no reason for not doing so, in essence it is a question of fairness to both sides."

[28] Baxter: Administrative Law, pages 682-685, deals with this aspect too and quoted four situations, but warned that there may be more, where a Court would be justified in correcting the decision by substituting its own. These are:

where the end result is in any event a forgone conclusion and it would merely be a waste of time to order the tribunal or functionary to reconsider the matter;
where further delay would cause unjustifiable prejudice to the applicant;
where the tribunal or functionary has exhibited bias or incompetence to such a degree that I would be unfair to require the applicant to submit to the same jurisdiction again;
where the Court is in as good a position to make the decision itself.

[29] This Court already dealt with the history of the matter, the incomprehensible attitude of the respondents and lack of competency on the part of the respondents and to refer the matter back for reconsideration to laypersons would be a dereliction on the part of this Court of its duty and be most unfair to applicant. It is clear that the second and third situations sketched by Baxter are present in this case.

The Court also takes into consideration and is led by the reports filed by the police officer, who in terms of the Act, thoroughly investigated the five applications of the applicant, visited his premises and viewed his firearm collection and thereafter recommended the granting of all the applications. The respondents did not deal with these reports by the competent police officer and did not state why his sage advice was not followed. There are more reasons why this Court will not refer the matter back to the respondents but the Court will suffice with those stated above.

[30] After it became clear, during argument in Court, that the application ought to succeed, Mr. Tokota, who appeared for the respondents, when the issue of costs and especially attorney and client costs were argued, submitted that costs should be awarded against his clients on the ordinary party and party scale and that no punitive costs should be awarded against the respondents as they were not mala fide. I shall grant the very fair request of Mr. Tokota.

[31] I accordingly make the following order:
1. The refusal by the second respondent of the applicant's applications for firearm licences with regard the following firearms:
1.1 Application No. 2182587, Luger .38 pistol serial no. 43079;
1.2 Application No. 2191367, Luger 9mm pistol serial no. 6422
2008 JDR 0888 p13
1.3 Application No. 2238231, Brno 6.35 pistol serial no. B258819;
1.4 Application No. 2182578. Luger 9 mm Serial No. 2068; is set aside on review.
2. The dismissals by the third respondent of the appeals lodged by the applicant against the second respondent's dismissal of the applicant's applications set out in paragraph 1 of this order, are set aside on review and be substituted with the following:
"The four appeals regarding the firearms set out in paragraphs 1 and 2 hereof succeed."
3. The respondents are ordered to forthwith issue the said four firearm licences referred to in paragraph 1 of this order, to the applicant.
4. The respondents are to pay the costs of the application jointly and severally, the one paying the other to be absolved.

P Z EBERZOHN

ACTING JUDGE OF THE HIGH COURT
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