Commissioner, South African Police Service, and Others v Maimela and Another

• Jurisdiction: South Africa
• Judge: Du Plessis J, Southwood J and Webster J
• Judgment Date: 17 June 2003
• Counsel: P C Van der Byl SC (with him E I Moosa) for the appellants. J L Kaplan for the respondent.
• Hearing Date: 28 May 2003
• Court: Transvaal Provincial Division
• Docket Number: A1808/2002

Du Plessis J:

In terms of s 3(1) of the Arms and Ammunition Act 75 of 1969 (the Act) the first and second I respondents respectively applied for licences to possess firearms. The first appellant (to whom I shall refer as 'the Commissioner') refused both the applications. In terms of s 3(2) of the Act both the respondents lodged appeals against the refusal of their applications. The second appellant, the appeal board established in terms of s 14A of the Act, dismissed both the appeals (I shall refer to the second appellant as 'the appeal board'). J

Du Plessis J

In a joint application the two respondents applied to the Court a quo for an order that the Commissioner 'be directed to A provide full and proper written reasons for the refusal to grant licences to possess a firearm to the first and second' respondents. In similar terms they also applied for an order directing the appeal board to 'provide full and proper written reasons' for not upholding their appeals (I shall refer to this application as 'the Court application' in order to distinguish it B from the initial applications to possess firearms to which I shall refer as 'the licence applications'). The Court a quo granted the orders sought and ordered the appellants to pay the costs of the application. This is an appeal against that judgment and the orders. (There is a further prayer in the notice of motion but the respondents did not persist therewith in the Court a C quo.)

The first respondent lodged his licence application on 26 January 2000. In April 2000 he was advised by letter that the Commissioner had refused the application, the reason given being: 'premises/residence does not comply to required standar(d)'. D

The first respondent lodged an appeal to the appeal board. In July 2000 the appeal board advised him that his appeal had been unsuccessful. The appeal board gave no reasons for the decision.

On 11 September 2000 the respondents' attorney wrote to the relevant SAPS officer and requested a copy of the 'required standard' referred to in the letter refusing the licence application 'as the E writer is unaware that there has been any building standard specified in the licensing guidelines . . .'. The attorney further requested 'comprehensive reasons as to . . . why you refused this applicant's licence with reference to his particular circumstances'.

No further reasons were given before the Court application was launched, but in the answering affidavit Director Bothma on behalf of F the Commissioner first sets out the considerations that are generally taken into account when a licence application is considered. He then gives the following reasons for the refusal: the police inspected the first respondent's home and found it to be a 'shack' as opposed to a house. In terms of the regulations promulgated under the Act a firearm must be stored in a safe 'affixed flush to a floor, wall or G other immovable structure . . . of the house . . . or other dwelling place of an applicant . . .'. (Regulation 28(3)(a).) The nature of the respondent's shack is such that a safe cannot be secured to the floor or wall thereof nor to any immovable structure thereon. H

The first respondent did not, prior to the Court application, request the appeal board for reasons.

The second respondent applied for a licence in February 2000. His motivation was that he needed the firearm for his own protection and for that of his family and property. In May 2000 he was informed by letter that the Commissioner had refused the application, the reason I given being 'lack of motivation/not convinced of need'. The second respondent lodged an appeal. In October 2000 the appeal board notified him that the appeal was unsuccessful but, as in the case of the first respondent, the appeal board gave no reasons. The second respondent J

Du Plessis J

asked neither the Commissioner nor the appeal board for reasons before the Court application was launched. A

In the answering affidavit Bothma quotes the second respondent's motivation as it appears in his licence application and in the appeal. Bothma then states: '(I)f regard is had to the considerations set out above, this is not a proper motivation. . . .' Read in context, it is apparent from the answering affidavit that the licence application B was refused as the second respondent did not satisfy the Commissioner that he needs a firearm if regard is had to considerations such as the security situation in his area and the number of crimes committed with firearms in this country. C

In its answering affidavit the appeal board states that it dismissed the appeals because it agreed with the reasons of the Commissioner for refusing the respective licence applications.

The reasons for the various decisions are set out in the answering affidavits in a clear, intelligible and informative manner (see the discussion later in this...