24 April 2021


Dear CHASA Membership


IMPORTANT PRECEDENT SET IN THE SUPREME COURT OF APPEAL BY FIDELITY SECURITY SERVICES (PTY) LTD
Firearm owners, including hunters owe a big debt of gratitude to Fidelity Security Services, and congratulations
to their legal team of attorney Martin Hood and advocate Marius Snyman.


In a protracted case starting in May 2016, Fidelity sought to ensure, amongst other things, that where a firearm
licence had expired, a renewal or at the very least, new application for such firearm by its owner should be
accepted by SAPS. There were other pertinent aspects in their original case, but unfortunately the consequent
losses first by SA Hunters in the Constitutional Court, and later by GOSA in the Appeal Court, severely
weakened many of Fidelity’s original arguments which necessitated them curtailing their case to the core issue
of SAPS/CFR having to accept applications for firearms that had expired. This, the court found, in no uncertain
terms, to be the case. Pertinent words of the judgement read:
In [33]
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.
In [34]
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.


The judgement creates many questions as to how SAPS/CFR will now give effect to this ruling. Clearly,
amnesties, and in particular the requirement for ballistic testing, are NOT the necessary route for expiredlicence
firearms. Where will this leave the many thousands of firearms currently within that tedious process?


Further, what is the exact nature of possession between the expiry date and submission of a new application?
Is it to be considered “illegal possession” and if so, how is that at all compatible with the spirit and law of this
judgement? The argument that administrative error (the failure to renew in the prescribed time) does not
translate to criminal intent is perhaps core to this particular question.

If SAPS are prudent, they should welcome this judgement and immediately prescribe reasonable procedures to
give effect to it. At the most severe, one could expect them to use their (supposedly) secure holding facilities as
the appropriate place while licences are adjudicated. Perhaps more practical is to establish a protocol for
firearm dealers to provide the interim storage. Maybe a hybrid of both of these would be best. The cost
consequence to use dealer storage may work for more valuable firearms, whilst people with lower valued
firearms would entrust these into SAPS storage.


Certainly, this judgement opens up a practical and fair route to solving possibly the most vexing issue between
the authorities and the firearm owning public, expired licences. It remains to be seen, hopefully without the
need for any further litigation, whether all parties will embrace the solution it offers.
Chasa shall remain engaged and watchful, and will continue to feed the best proven information and advice
through to members.


Yours Faithfully
________________
Stephen Palos - CEO