Yesterday was a big day for the firearm owning community. Unfortunately GOSA was denied the privilege to present their argument to the Constitutional Court. This was fortunately not a major setback, but the reasons as to why are very much misunderstood by many. Therefore I present below the analysis of a very highly qualified legal professional, who wishes to remain anonymous, regarding why yesterday was indeed a very good day for Gun Owners SA. They can hold their heads high and be proud of what they achieved. The rest of the battle, however, begins now.
It is quite clear to me that there is a great deal of misconception as to what GOSA’s game plan was in bringing its application. Let me try to clarify.
As some of you are probably aware, GOSA is of the view that relicensing as a principle is completely unworkable, for various reasons, including the demands it places upon the CFR. GOSA therefore has long been of the view that that issue needs to be properly addressed at various levels.
While I do not propose to go into details here, the layman needs to understand that the current case before the Constitutional Court is not about relicensing as a general principle, but rather a more narrow issue dealing with specific aspects relating to the way the concept of relicensing has been given effect to and in particular the idea that once somebody has missed the particular date for applying for relicensing, they are then in effect “once and for ever” criminalised and have no way of bringing themselves within the law again.
That said, the Constitutional Court has a history of on occasion dealing with and pronouncing on broader issues than the actual issues before it. This was GOSA’s fear in the current matter, viz. that the Constitutional Court could possibly deal with relicensing in general terms and make a favourable statement in that regard, with the effect that that would then finally shut the door on any potential legal challenge which GOSA might wish to bring in the future against relicensing as a general principle. GOSA’s real challenge was therefore how to prevent that, even though it was difficult to gauge the likelihood of the Constitutional Court going down that avenue.
During the consultation with senior counsel, GOSA was advised that there was a risk that the Constitutional Court would refuse to hear the GOSA application, either because it was out of time (the Constitutional Court would, potentially amongst other things, say to GOSA “Where were you in the original matter when it was heard before Judge Tolmay?”) or because the Constitutional Court would take the view that the issues that GOSA was trying to raise were different to the issues before the Constitutional Court (the Constitutional Court would say to GOSA “Go start your debate around this issue in the lower courts and we will deal with it when it reaches us”). These risks were known and understood and assumed; nevertheless, GOSA was of the view that the risk of the Constitutional Court pronouncing more broadly on the concept of relicensing as a whole was such that it was nevertheless not a matter of “understanding and assuming the risk that the Constitutional Court would knock GOSA out” but rather a matter of “having no choice but to proceed given the risk that the Constitutional Court could potentially otherwise deal with the principle of relicensing generally and thereby finally shut the door entirely on any challenge to the general principle of relicensing”.
GOSA was always aware that the probabilities of the Constitutional Court entertaining a debate about the constitutional validity of the general principle of relicensing at this stage of the game, was at best, slim. Nevertheless, given the need to avoid a final pronouncement by the Constitutional Court on relicensing as a whole, it was decided to proceed to attack the principle of relicensing in general terms so as to get the issue before the court in some form or another.
A reading of the dismissal of the Constitutional Court’s application by GOSA will make clear that the Constitutional Court is of the view that the issue raised by GOSA in its papers is not currently before the Constitutional Court. What this means in effect is that GOSA has fully succeeded in its primary objective, which is to prevent a situation in which the Constitutional Court pronounces generally on the principle of relicensing and thereby fully and finally shuts the door against any future challenge in that regard; in effect, GOSA has succeeded without even having had to put argument before the Constitutional Court.
In summary therefore, GOSA has succeeded in ensuring that it is able at a future date to challenge the entire concept of relicensing as such as being unconstitutional. That was the key objective and that has been achieved.
To be clear, I do not hold a candle for GOSA; I am not even a member of GOSA. I simply have insight into the matter and how GOSA chose to approach it.
PS. The Constitutional Court has stated that (a) The application was brought out of time without any adequate explanation for the delay and (b) sought to introduce relief beyond the scope of the proceedings on record.
It is (b) that is important for the purposes of the current discussion. By raising the question of relicensing in general, GOSA placed the Constitutional Court in a position where it had to decide whether or not to deal with the general principle of relicensing. In effect the Constitutional Court has said that the general principle of relicensing is not currently before it; in other words, it is not something that is being dealt with at this point in time.
That means that the debate about relicensing in general is capable of being had at a later point in time. That is the key objective that GOSA set out to achieve, although admittedly it would very much have liked to have been able to ventilate and challenge the very concept of relicensing, but that was always known to be a long shot. Someone said that GOSA achieved silver but not gold. I would style it differently by saying that GOSA got the cake but it missed the cherry on top.
Edited by Gideon Joubert, with permission of the original author
Gideon is owner and editor of Paratus