Gun Owners South Africa: Statement on the Constitutional Court Matter

19 February 2018
Author 

As its members are aware, GOSA brought an application to be admitted as amicus before the Constitutional Court in the case of the Minister of Safety and Security of the Republic of South Africa vs South African Hunters and Game Conservation Association (Case CCT 177/17).

In its application to be admitted as amicus, besides challenging the misinformation that Gun Free South Africa proposed to present to the court, GOSA also sought to challenge the entire concept of relicensing as it stands. As GOSA members are further aware, the Constitutional Court dismissed the application on the 6th of February, stating that not only was the application out of time, but that it "sought to introduce relief beyond the scope of the proceedings on record".

Consequent upon that dismissal, an analysis of GOSA's background rationale to the application and the consequences of the dismissal by the Constitutional Court was published on the Paratus website (http://paratus.info/2018/02/08/gosa-concourt/). There has however been some criticism directed at GOSA regarding their approach in this matter, and while GOSA accepts that different legal advisers will have different views of the same matter and takes the point of this criticism, it will endeavour to clarify exactly why its approach is justified.

The rationale for the perspective of some of the specific criticism in this regard has never been entirely clear to GOSA. However, what was entirely clear to GOSA was that all the parties to the High Court application before Judge Tolmay were of one mind in that they accepted – and did not dispute – the general principle of the requirement for relicensing. The concern of the parties was directed rather to the way the principle of relicensing has been given effect in the relevant provisions of the Firearms Control Act (FCA).

GOSA, in contradistinction, has always been of the view that relicensing is firstly entirely unnecessary when one has regard to the various provisions of the FCA empowering the authorities to withdraw existing licences in certain circumstances, and secondly imposes an unworkable burden on the licensing authorities. It has therefore always been GOSA's view that the fundamental principle of relicensing should be challenged, as opposed to merely challenging the way in which it is given effect under the provisions of the FCA. In that philosophy, GOSA has an entirely distinct stance from that of the other parties to the litigation in question. Despite GOSA's engagement with them and repeated requests for them to put the general principle of relicensing in issue, those parties have held their position. GOSA's concern was therefore that if the position acceded to by the other parties (viz. that the very principle of relicensing is acceptable) was not placed squarely in issue, that it could be the subject of a pronouncement by the Constitutional Court which would later place it entirely beyond challenge (the concept of res iudicata).

This was the key concern that drove GOSA to seek admission as amicus before the Constitutional Court. GOSA had in addition, and over a protracted period, carried out the research and put together the data necessary to challenge the misrepresentations of Gun Free South Africa in detail, and was therefore in a position to make a challenge in that regard as well when seeking to be admitted as amicus.

The necessity of this was evidenced by the fact that SA Hunters' legal counsel, in his last words to the Constitutional Court, requested the Constitutional Court to not rely on Gun Free South Africa's undisputed (by the other parties) evidence on the papers before the court, as SA Hunters did not have the time to address all of Gun Free South Africa's allegations in SA Hunters' papers – even though GOSA had already made all of its research and data available to SA Hunters' legal counsel. Indeed, hundreds of pages of Gun Free South Africa’s information remained unchallenged in the absence of GOSA’s submission.

Considering those circumstances, it was necessary for GOSA to consider whether or not to seek to be admitted as amicus before the Constitutional Court. Before making the decision, GOSA consulted with several different legal counsels, including two senior counsels. GOSA fully understood the risk that its application to be admitted as amicus could be denied, but was of the view that it had no choice considering the entirety of the situation set out above other than to proceed with its application.

The strategic thinking was to place matters in such a way before the Constitutional Court that it would either have to state that the question of the constitutionality of relicensing as a general principle was not under consideration in the current litigation, or otherwise it would have to deal with the constitutionality of relicensing as a general principle as part of the current litigation. GOSA determined that it would challenge the allegations of Gun Free South Africa at the same time, including those aspects which remained unchallenged by the other parties.

In light of the above, GOSA has great difficulty understanding the motives for the criticism. Furthermore, GOSA has difficulty understanding in exactly what manner it is contended GOSA may have prejudiced firearm owners' rights. To the contrary, GOSA's purpose in bringing its application was to place an issue and to bring to the attention of the Constitutional Court those issues which are highly prejudicial to firearm owners’ rights, and that the other parties to the litigation had failed to challenge.

In bringing its application, GOSA not only sought to challenge the unchallenged evidence of Gun Free South Africa, but also to have the Constitutional Court deal with the question of relicensing in general terms and potentially have it declared unconstitutional. The result of GOSA's application was the refusal by the Constitutional Court referred to earlier, stating that GOSA sought to introduce relief beyond the scope of the current proceedings. By so doing, the Constitutional Court was in effect declaring the question of the constitutionality of relicensing in general terms as being a matter that was not before the Constitutional Court.

Put differently, the Constitutional Court has left the door open for GOSA (or indeed any other qualified party) to challenge the constitutionality of relicensing as a general principle. That was always GOSA's primary objective and concern in bringing its application. As concerns Gun Free South Africa, in the ultimate event the Constitutional Court questioned the relevance of Gun Free South Africa's contribution, as indeed had happened in the original High Court application before Judge Tolmay.

Furthermore, even though GOSA's application had been dismissed by the Constitutional Court, references were made by the Constitutional Court judges to GOSA's application and the position that it had assumed. What was abundantly clear was that even though GOSA's application to be admitted as amicus had been dismissed, the Constitutional Court judges had read and digested GOSA's papers. Given those circumstances, the reader is invited to decide for him or herself as to whether or not GOSA's application was justified and should be regarded as having been ultimately successful, notwithstanding the dismissal of the same by the Constitutional Court.



Gun owner’s greetings,

Paul Oxley, Chairman of the Executive Committee, GOSA

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  • Gary Broomberg Gary Broomberg Monday, 19 February 2018

    Good day,

    Please can you advise what I should do as my 'white' license for a 45 ACP has expired (2016-05-12). I have been twice to the Morningside Police station and both times after endless stress know one could assist or advise.

    I have numerous firearms which still have valid licenses, its just this handgun that has an expired license.

    Appreciate your advise.

    Regards

    Gary Broomberg
    082 331 5001

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