I am not going to beat around the bush and try to be overly diplomatic. During a discussion with legal counsel, they explained to me that there are serious shortcomings in our side’s Constitutional Court effort. I will explain them in detail below, referencing notes made. This is not going to be pretty reading, but then again it is not meant to be. I hope this underlines the importance of getting GOSA involved in the case either as a party or as a Friend of the Court (amicus curiae): GOSA can then challenge the assertions that were made by GFSA and the SAPS, that are currently unopposed, and plug the holes that need sealing.
What is fundamentally important, is that somebody needs to argue that relicencing serves absolutely no purpose whatsoever: all of the concerns are already covered by S102 and S103. In fact, continuous relicencing may very well lead to the collapse of the entire system altogether. Currently nobody is stating this, and on the contrary, it appears from a reading of the judgment of the High Court that there is at the very least tacit, if not express, approval of this from our side as it stands now. We believe that the scheme of continuous relicensing is in particular at the root of all the problems and other symptoms of the case that the Constitutional Court now needs to deal with and that addressing the fundamental issue is what is needed in the first place.
Herewith are the preliminary thoughts after counsel perused all the submitted papers, except for those of Dealers and Fidelity. The language is going to be dry and legal, but it should provide an adequate picture of what we are dealing with.
To start off with, we are hopeful of explaining to the Court why we are only intervening now – many of the parties have only in the past week or so filed papers that we obviously could only now consider and the contents thereof horrifies us in the light of the likely outcome if we don’t set the record straight. This includes the evidence tendered by GFSA in the form of an affidavit under oath which we would like to oppose for various reasons (this merits a discussion on its own), and also the statements made in the heads of argument by the other parties. Clearly GOSA has a role to play here.
As to the remainder of the papers that we considered, here are our thoughts on them:
- Strong objection should be made against the scheme of continuous relicensing. We need to show to the Court in the form of EVIDENCE that the scheme is irrational, unworkable, impractical, and that it has the effect of seriously jeopardizing the functioning of the entire system of control over firearms to a point of administrative collapse, and that this reality will exponentially become more evident the longer the scheme will be in place. We will argue that for all the aforesaid reasons, the scheme of continuous relicensing is therefore unconstitutional in our view. We believe that we will be able to do this, and as such we have already submitted an application in terms of PAIA (see separate file) to the SAPS where we are requesting input data on the functioning of the CFR in order for our actuaries to be able to perform projections on where the exponential effect of the scheme of continuous relicensing will leave the CFR in years to come, as far as its ability to perform its duties in terms of the FCA.
- We strongly agree that facts need to be pleaded in court papers. There are numerous instances of bald claims and vagueness by SAH that were pointed out by SAPS to the Court. SAPS state to the court that there are hypothetical assertions made by SAH where they did not refer to one practical example. We need to rectify this as a consequence of our intervention.
- SAH itself pleads that the FCA is here to reduce firearms numbers – Note: Not ILLEGAL firearms. We believe that the introductory provisions of the FCA does not state this. If indeed there is a political agenda to disarm civilians, then we believe that it would rather be for SAPS to comment on this.
- Our overall impression of the Court papers and consequent heads of argument as it stands is that there is a general lack of focus and that the case does not address the core issue, namely the root cause of a scheme of continuous relicensing, but rather tries to address the symptoms thereof with and the wrong medicine.
- Furthermore, in their latest heads of argument SAPS almost seems surprised that SAH did not cross appeal. We believe that they should have cross – appealed, since there were issues in the judgment of the High Court that with respect, does not seem correct, like the striking down of entire sections of the FCA where only portions thereof were offensive.
- From a reading of the latest heads of argument by SAPS it appears that they almost seem surprised that SAH (and for that matter Dealers and Fidelity) abandoned all the other relief. So currently this matter is not about the effectiveness of administration. We believe that the inability of SAPS to effectively administer the system is greatly affected by the unnecessary burden of the scheme of continuous relicensing, and we believe that this issue and the EVIDENCE regarding it is of paramount importance to the Court in arriving at a just decision on the matter.
- We take note of the statements on behalf of the SAPS in the latest heads of argument where they criticize the High Court judgment regarding the fact that the learned judge did according to them not apply the justification test in Section 36 of the Constitution. We are indeed worried that if this case is only going to be about if a firearm can justifiably be dispossessed if the owner failed to adhere to the law, that we may be standing on thin ground, in particular since all the other relief that was initially claimed, has been abandoned, and because the real evidence of the matter is not before the Court.
- In Par 12 of the SAPS heads – This is a lacuna in the FCA that can be fixed either by the legislature or by the CC, in the event that continuous relicensing is scrapped – Regular audits can be performed on ALL firearm owners – starting with the SAPS itself and other government institutions who have the worst record of safekeeping over firearms – say every 10 years or whatever is practical and indeed POSSIBLE – SAPS will have to convince the court or the legislature about this) audits to see who has lost firearms and not reported it – much more practical than requiring EVERYONE to re- license ALL the time in the hope of catching out SOMEONE who has lost his firearm and who have not reported it – in any event, the current scheme of relicensing DOES NOT call for a physical audit of the firearms, MOST PROBABLY because there is simply NO ADDITIONAL CAPACITY left in an increasingly crumbling system;
As you may notice, there is a lot of scope for another party to become involved in this matter and address the vital issues that are currently standing unopposed. I am of the personal belief that this may be the most significant struggle for our firearm rights in our history. There is an old adage amongst lawyers, namely that bad cases make bad law, and I fear that we are about to see this to occur if we don’t step in and decisively so. We need everyone to become involved and help us get our case to the Constitutional Court. If you are already a member of GOSA, you know what to do.
Written by Gideon Joubert & The Foundation for the Defence of Democracy (FDD)
Gideon is owner and editor of Paratus. The FDD are the Gun Owners of SA (GOSA) legal team.