The Supreme Court of Appeal ("SCA") recently delivered a judgment in a dispute that was initially heard by the Pretoria High Court. The application in the Pretoria High Court was instituted by Outdoor Investment Holdings (Pty) Ltd and Inyathi Sporting Supplies (Pty) Ltd, who were the Appellants before the SCA.

In the High Court, the appellants sought a declaratory order declaring that: Outdoor Investments is entitled to store firearms legally in its possession, in terms of Regulation 67 of the Regulations to the Firearms Control Act ("FCA"), at the premises of Inyathi provided that the removal of the firearms from the premises of Outdoor Investments was recorded in Outdoor's Investments Firearm Stock Register and that the firearms stored at the premises of Inyathi are recorded in the Firearm Safe Custody Register of Inyathi.

The application was opposed by the Police Commissioner, who was also the Registrar of Firearms. The Police Commissioner argued that Inyathi is not legally entitled to provide storage for firearms on behalf of Outdoor Investments.

Background

An agreement between Outdoor Investments and Inyathi was concluded. They were both in the business of selling firearms and ammunition and were registered dealers in terms of the Firearms Control Act, read with the Firearm Control Regulations ("Regulations").

Inyathi, over and above selling firearms, provided storage facilities for firearms it sold to other retailers that were unable to take immediate delivery of their orders. Outdoor Investments was one of the dealers who used Inyathi's storage services.

During a routine visit by the designated firearm officer ("DFO"), who is a representative of the Registrar of Firearms, Outdoor Investments and Inyathi were informed that it was impermissible for Inyathi to store firearms on behalf of Outdoor Investments.

In the Pretoria High Court, Outdoor Investments tried to justify its use of Inyathi's storage facility as a result of:

  • the backlog in the office of the National Commissioner of Police, as it took anything between six to eighteen months to finalise a licence to possess a firearm;
  • the volume of firearms it sold to members of the public made it practically impossible to store all of them at its premises; and
  • the expense involved in storing these firearms at its premises (retail space) compared to storing them in Inyathi's bulk storage facilities.

In the appeal, the SCA had to determine whether one firearms dealer licensed to trade in firearms and ammunition in terms of the FCA may store firearms on behalf of another licensed firearms dealer. In addressing this point, the SCA considered Regulation 67 which provides:

"(1) Where a person provides storage facilities for firearms or ammunition to another person, such storage facilities must conform to the applicable requirements for a safe or strong room as set out in SABS Standard 953-1 or 953-2.

(2) Storage may only be provided to a person who may lawfully possess the firearm or ammunition.

(3) A holder of a dealer or gunsmith's license may provide storage for firearms and ammunition in the safe or strong room specified on the dealer's or gunsmith's licence.

(4) during the storage of a firearm, it must be –

(a) uploaded;

(b) not readily accessible to unauthorised use;

(c) securely attached with a secure locking device to a non-portable structure in such a manner that it cannot readily be removed."

The SCA held that Regulation 67 must be interpreted in the context of the FCA and its Regulations. In considering the interpretation of Regulation 67, the SCA stated that the word "person" in Regulation 67 is not defined in the Regulations nor in the FCA. The word "person" in Regulation 67(1) is, however, a reference to a holder of a dealer's or gunsmith's licence, who provides storage facilities for firearms and ammunition. Further, the SCA remarked that the term "another person" as used in Regulation 67(1) is a reference to "a person who may lawfully possess the firearm or ammunition" as contemplated in Regulation 67(2) of the Regulations. This sub-regulation provides that storage may only be provided to a person who may lawfully possess the firearm and ammunition.

Consequently, the SCA found that to interpret the words "a person who may lawfully possess the firearms and ammunition" in terms of Regulation 67(2) as including dealers, would contradict Regulation 86(2), which expressly provided that a dealer or gunsmith must store, inter alia, firearms in a safe or strong room that conforms to the prescriptions of SABS Standard 953-1 and 953-2 at the place of business specified in the licence.

Regulation 86 deals with the safe custody of firearms and ammunition by dealers, gunsmiths and individual holders of a firearm licence, authorisation or permit to possess a firearm. In particular it provides that:

"(1) When a firearm or muzzle loading firearm is not under the direct personal and physical control of a holder of a licence, authorisation or permit to possess the firearm or muzzle loading firearm, the firearm or muzzle loading firearm and its ammunition must be stored in a safe place or storeroom that conforms to the prescripts of SABS Standard 953-1 and 953-2, unless otherwise specifically provided in these Regulations.

(2) Subject to Regulation 36(2) a dealer or gunsmith must store firearms or muzzle loading firearms and ammunition in a safe or strong room that conforms to the prescriptions of SABS Standard 953-1 and 953-2, at the place of business specified on the applicable licence, authorisation and permit, as the case may be."

In considering Regulation 86(2), the SCA held that where the firearms and ammunition were stored went hand in hand with the place of business specified on the dealer's licence, which was also consistent with the provisions of section 39(1) of the FCA. Section 39(1) of the FCA provides that a dealer may trade in firearms or ammunition only on premises specified in the dealer's licence. According to the SCA the ordinary grammatical meaning of the word "trade" on a contextual interpretation encompassed the business premises specified in the dealer's licence.

In addition the SCA noted that Regulation 37 provided that a dealer was required to keep a Firearms Safe Custody Register of the firearms that it received on behalf of a holder of a licence, authorisation or permit for the purposes of the safe custody or transfer of the firearms. The reference to a "holder of a licence" according to the SCA was to be construed as a reference to an individual holder of a licence rather than another dealer.

Consequently, the SCA found that to interpret Regulation 67 as permitting a dealer (as agent) to store firearms for another dealer, at its place of business specified in that dealer's licence, would be inconsistent with section 39(1) of the FCA. Such an interpretation according to the SCA would be in direct contradiction to the overall purpose of the FCA, which is to establish a comprehensive and effective system of firearm control and management.

Accordingly, the appeal was dismissed and the SCA found that Inyathi could not store firearms and ammunition for Outdoor Investments.

By limiting the movement of firearms between traders, the National Commissioner and Police Services ought to be in a better position to track stolen firearms and further hold traders responsible for any negligence.

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