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Algemeen / General

Why GOSA had to take the SAPS to court. And win.
30 Aug 2018

Latest News

The last few weeks have been a tumultuous time for the firearm ownership debate. The Constitutional Court ruling back in June succeeded in solving absolutely nothing. The issue was firmly kicked back to government and civil society with the instructions “you fix this”. Thankfully the ConCourt made it clear that nobody should be arrested for having an expired firearm licence – the prohibition of so-called “strict liability”.

The dogs who caught the bus

Judging by the initial reactions of the South African Police Service, they were like the dog who finally caught the bus – they had no idea what to do with it. If ever a party in a legal dispute was completely unprepared for victory, it was the SAPS.

On 14 June the Parliamentary Portfolio Committee (PPC) on Policing discussed the repercussions of the ConCourt ruling with the top brass of the SAPS. The police were adamant that those with expired licences must surrender their weapons. When asked how the SAPS intended to cope with seizing over 440 000 firearms and more than 60 million rounds of ammunition, there were many sideways glances but few coherent answers. The National Commissioner admitted that the SAPS were still in the process of planning the endeavor. And that said plan would be submitted to Parliament within the next 3 to 6 months.
In any event, as far as the police were concerned, the seizure of firearms from civilians was a done deal.

The woeful SAPS track record of safeguarding guns

One of the major concerns raised by committee members Zakhele Mbhele (DA), Dianne Kohler Barnard (DA), Pieter Groenewald (FF+), and committee chairman Francois Beukman (ANC) was the problem of firearms being stolen from SAPS custody. The Colonel Chris Prinsloo scandal’s full repercussions are yet to be discovered, and numerous high profile cases of theft and corruption involving the transfer of SAPS firearms to criminals occurred in 2017 and this year.

The inability of the police to safeguard firearms under their control is obviously a serious problem. It is fortunately apparent that politicians and lawmakers are very much aware of this.

The stakeholder engagement process

The PPC made it clear that the SAPS must engage with the relevant stakeholders going forward. In other words, they couldn’t go this solo and simply do what they want. Due process, and all the transparency that goes with it, needed to be adhered to.

After the PPC sitting Gun Owners of SA initiated contact with SAPS Legal Services to attempt salvaging the situation. I must add that the police requested GOSA to make contact, and not the other way around. The plan was to find a workable solution which avoided depriving citizens of their lawful property. The supposed stakeholder engagement process in action.

Unfortunately it was not to be. In the grand tradition of many an engagement between the firearm owning community and the SAPS, it all derailed within weeks.

While GOSA privately dealt with the SAPS in good faith, the police’s public conduct was markedly the opposite. National and provincial spokespeople made all manner of aggressive and threatening demands in the daily news media. Those with expired licences must immediately surrender their weapons, or face imminent arrest and confiscation. Confusing and contradicting directives were issued by separate provincial SAPS offices. Nobody, even SAPS officers on the ground, knew what to do.

Trust betrayed – again

This was pure intimidation. A remarkably similar chain of events as what happened in 2009. But as we shall see, the similarities do not end there.

When GOSA’s legal team inquired from the police why they insist on issuing such aggressive communications to the public whilst the stakeholder engagement process was still very much ongoing, they received no answer. The SAPS had stopped talking to them. It became obvious that the police had no intention of solving the problem at all, and were instead forcing a crisis. The situation had become intolerable.

It was then decided that urgent legal action is required. The GOSA legal team immediately began compiling their case. It was of utmost importance that the SAPS be interdicted from arresting people with expired licences, and seizing their property. That would form the urgent part of the application. The main application would then challenged the concept of relicencing as a whole.

SAPS admissions not worth the paper they are written on

In their answering affidavit, the National Commissioner yielded on several important points. The first was their unequivocal acknowledgement that all of the so-called “Green Card” and ID book licences were valid. Regardless of whether or not the holder applied for a new licence. This alone would have solved nearly 75% of the total problem. Secondly, they conceded that nobody will be arrested or prosecuted for having an expired firearm licence. Thirdly, and most interestingly, they admitted that holders of expired firearm licences can supposedly renew said licences after expiry with “good cause shown”. This is an interesting admission, because it is common knowledge that the functionality on the SAPS IT system allowing for such a renewal was disabled in 2016.

This alteration (or sabotage) of the IT functionality was done unilaterally and by stealth. A parting gift to us from Jaco Bothma? Yet another sterling example of our guardians of law and order acting in bad faith. And against the public interest.

Of course none of these admissions are binding, despite them being under oath to the North Gauteng High

The North Gauteng High Court Knock Out

Thus, on Friday 27 July GOSA met the SAPS in the North Gauteng High Court. The proceedings started shortly after 10:00 and carried on until well past 17:00. It was nail biting stuff.

The first hurdle cleared was the acceptance of GOSA’s locus standi. The next, and probably most significant, was the court’s acceptance of urgency. From there, and I hope the GOSA legal team forgives my utter presumptuousness, the ride seemed fairly downhill by comparison.

(Now, the next part I am recalling from memory and recorded communication. By the time of publication the full typed judgement will hopefully be available online, and attached at the bottom of this article. So please forgive any factual inaccuracies.)

Judge Prinsloo deemed the issue as a crisis of national security. He took judicial notice of the inherent corruption plaguing the SAPS, and basically concluded that it would be in the interest of public safety that firearms of which the licences have expired rather remain under lock and key with their owners. As opposed to them being surrendered to, or confiscated by, the police. A most damning indictment of the corrupt state of SAPS by the court. And one from which I doubt their reputation will ever recover.

Much more of great significance was said, but that will require a separate article.

Judge Prinsloo finalised the proceedings and ordered two very important things:
• No person with an expired firearm licence may be arrested or prosecuted.
• The SAPS are interdicted from confiscating or demanding the surrender of firearms of which the licence has expired.

This order immediately brought relief to over 400 000 citizens. Relief they so desperately needed. It was a repeat performance of the landmark 2009 court order by the same judge. A court order that to this day prevents the unjustifiable criminalisation of all people still holding the old “green card” and ID book firearm licences.

But it was a hard-won victory for firearm owners, and nothing was a sure thing until the fat lady sang. Fortune favours the brave, and on that day the firearm owning community was brave indeed.

The SAPS would rather fight the public (with their money) than fight crime

What astounds me is how hard the SAPS are fighting this issue. Yes, a great many police officers and higher ups have applauded this outcome along with us. Yet I also hear disturbing reports of some officers and individuals within SAPS management who are thoroughly enraged by it. One story pertains to a Gauteng DFO saying “how dare these gun owners tell us what to do? Who do they think they are?” I also have it on good authority that a certain Colonel in Western Cape FLASH had his nose severely put out of joint by the order.

What the SAPS are doing, is to recklessly squander tax payer funding to stubbornly defend indefensible positions in court. Civil claims against the police have spiraled into billions of rands over the last few years. And Parliament has expressed grave concern about the police being ceaselessly sued by the public due to their flagrant and disgraceful abuses of power. Yet the organization seems incapable of learning its lessons, and insists on paying an absolute fortune for legal counsel to defend their bizarre, corrupt, and criminal activities in court.

When I forwarded concerns to the PPC regarding the SAPS’s wasteful and frankly irresponsible legal expenditure, I was assured that the matter will be investigated when MPs return from their recess.

I don’t think it is unreasonable to be appalled and outraged by the practice – the SAPS abuses their powers, and so doing abuse the very public they serve, and when said public takes them to court to seek justice for the criminal mistreatment they suffer at the hands of the police, the accused makes use of the victim’s tax money in order to defend their criminality.

This is beyond obscene and disgraceful. Jacques Pauw referred to the SAPS as the most corrupt organ of a corrupt state. It appears they are pulling out all the stops to prove him right.

The road forward – onwards and upwards

Wasteful and corrupt expenditure by the SAPS aside, the court order is a huge victory for South African gun owners. It has gained the attention of the PPC, who will be discussing it in Parliament on 16 August. It also presents our community with the opportunity to keep the forward momentum going. The police will certainly not just let it lie and accept this outcome. We must defend our win.

At the same time we cannot afford to become drunk on our own success, and rest on our laurels. It will be a long time before the main application is heard in court. In the meantime we must earnestly engage with Parliament and help them understand why the relicencing regime is a farce that succeeds only in wasting resources. And that all its advertised functions are more than adequately covered by numerous other sections of the Act.

If our community remains as steadfast and committed as we have shown to be, I have no doubt in my mind that we shall achieve our goals.

Per Aspera Ad Astra.

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