2009-08-31: Court rules on gun compensation

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2009-08-31: Court rules on gun compensation

Postby GOSA » Mon, 2009-09-07 07:06

http://www.news24.com/Content/SouthAfri ... 1ea5c48c04

Court rules on gun compensation
2009-08-31 14:11

Cape Town - The Western Cape High Court has given Police Minister Nathi
Mthethwa 90 days to draw up guidelines for compensation for firearms
surrendered under the gun control law.

The ruling could result in payouts totalling millions of rands for gunowners
who have handed in weapons since 2004.

The order was handed down on Monday by Acting Judge President Jeanette
Traverso, who at the same time slapped down an attempt by Mthethwa to
distance himself from the bungling of his predecessor.

It followed an application by the Justice Alliance of SA (Jasa) and the
False Bay Gun Club.

Firearms Control Act

They argued that the Firearms Control Act, which came into force in 2004,
required the minister to come up with guidelines on the amount of
compensation to be paid for guns surrendered or forfeited to the State.

By failing to do so, Mthethwa and his predecessor Charles Nqakula had acted
in breach of the "ethos of acountability" in the Constitution.

Though the two sides agreed before Monday's hearing on a draft order of just
three clauses, Mthethwa apparently developed a change of heart at the last

When the matter came before Traverso, Advocate Kosie Olivier said Mthethwa,
his client, would not oppose clauses ordering him to draw up the guidelines
within 90 days, and to pay the applicants' costs.

However told Traverso that the minister did oppose the inclusion of the
first clause - a "declarator" that the failure to establish the guidelines
was unlawful and unconstitutional.

Request for postponement

Olivier asked that the matter be postponed so more affidavits could be filed
to explain Mthethwa's involvement.

"But why?" demanded an incredulous Traverso.

Olivier said his instructions were that Mthethwa took office only after the
April 2009 general election, and had been unaware of the guidelines issue.

"So what?" demanded Traverso. "This is not a personal application against
someone, it's ex officio... Argue the law to me, don't tell me about your

She said that in his written heads of argument, Olivier had in fact conceded
that the failure to draw up guidelines was unconstitutional.

Jasa's lead advocate, Peter Hodes, said Mthethwa was seeking to absolve
himself from blame.

"He wants to give what is in rugby parlance called a hospital pass to the
previous minister," he said.

Traverso refused the postponement, and made the full order.

Payout could total millions

Jasa spokesperson John Smyth said the ruling would lead to the payout of
what could total millions of rands.

"The order says what has gone on for the last five years is unlawful and
unconstitutional," he said.

"The state has received a very robust slap on the wrist from her ladyship."

Jasa would now wait for the guidelines to be issued.

If they were not satisfactory, this would not be the end of the matter, he

If they were unchallenged, firearms control officers would have to deal with
a huge compensation backlog.

In 2005, Nqakula told Parliament that no compensation would be paid to gun
owners who handed in their weapons.

The same year, then-national police commissioner Jackie Selebi told MPs that
there was no budget for compensation, and that "you can't be paid for doing
away with an evil thing".

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