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  1. #11
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    Default Re: Media statement by JASA

    Well,it could be worse.....
    Just have to carry on pushing and chipping - either it cracks and tumbles down or we "die trying"
    I am not giving up even if I will be last one to support JASA and other cases.
    MJ

  2. #12
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    Default Re: Media statement by JASA

    In my view the Judge has overstepped his mark. As I understand it he was required to decide which of a few sections of the Act were inconsistent with the Constitution, NOT whether or not compensation was payable. That had already been CONCEDED by the SAPS last year.

    It seems to me that he has tried to intervene to 'save' the State's lost case last year.

    If this is indeed the case then his judgement should b struck down as was Hiliary Squire's infamous judgement exonerating Zuma.
    "Always remember to pillage before you burn"
    Unknown Barbarian

  3. #13
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    Default Re: Media statement by JASA

    I am sure that JASA's counsel will find and point out all the shortcomings in the judgement. I agree that it looks like the judge is trying to dance to the gvt's tune. I'm also afraid that we are for more "independent" judges if the recent nominations are anything to go by. Do we know who was the judge?
    Will keep my feelers up.....

  4. #14
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    Default Re: Media statement by JASA

    Well this is a disappointment of note.

  5. #15
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    Default Re: Media statement by JASA

    Quote Originally Posted by gizmo16 View Post
    Well this is a disappointment of note.
    Could well be. Let's wait for an analysis of the written judgement though.
    "Always remember to pillage before you burn"
    Unknown Barbarian

  6. #16
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    Default Re: Media statement by JASA

    This is the latest communique from Jasa:
    At our consultation with 3 counsel today we decided to apply for leave to appeal which is the first step. That application has to be filed by Nov 26.
    Peter Hodes SC agreed with me that there was no doubt we should appeal to the Supreme Court of Appeal and prospects were reasonable, if not good.
    Tomorrow we shall put out a Media Release which I shall copy to you.
    Attached is my note to Counsel before the consultation.

    Best regards,

    John

    John Smyth QC
    Justice Alliance of South Africa (JASA)
    1 Ruskin Road, Bergvliet
    Cape Town, 7945

    GUN COMPENSATION CASE
    GROUNDS OF APPEAL

    1. The Judge lost sight of the wood for the trees. A plain and simple reading of chapter 19 of the Act gives 3 exceptions in SS.134,5&6, and then a default position in 137 which will apply to the vast majority of guns coming into Police possession. The title of the chapter is “Compensation” not “Destruction of Firearms”. In concluding that s.136 provides the default position he made 137 almost otiose.

    2. What on earth would be the point of the detailed paraphernalia of S.137 if the section applied to only a few dozen, or perhaps a hundred guns a year which the Police decided to keep for training purposes? Why involve the Minister of Finance, and why consider the restraints on the State’s finances when the only object of the guidelines is to deal with a few cases where the Police believe they will get a better deal “buying” a gun handed in than buying a new one from the manufacturers? On the Judge’s interpretation, s.137 saves the Police money.

    3. The Judge’s interpretation of 136 leads to a unreasonable, unworkable and unjust result which cannot have been the intention of Parliament.( Ngcobo case quoted in judgment at para 34, page 21.).

    3.1. It means that every one of the ten thousands of guns surrendered have to be assessed individually to decide whether they will be destroyed or kept. No guidelines for exercising this discretion have been provided by Parliament, and no provision is made in the section for the Minister or Registrar to draw up guidelines.
    3.2. Every gun rejected (the vast majority) has to be gazetted. A hugely time-wasting task. Common sense would dictate that if Parliament intended the interpretation put on 136 by the judge, they would have provided only for those whose guns were kept to be notified.
    3.3. Common sense dictates that s.136 must apply to guns whose provenance is uncertain; the wording, particularly s.136(3) strongly suggests that.
    3.4. S.136 in each subsection says “may”. How can those discretions be exercised without guidelines? In most cases, once the intention to destroy the firearm is gazetted, the owner will ask for the gun back. How is that discretion to be exercised?
    3.5. The meaning put on 136 by the judge is “unjust” because it means an owner has to part with his firearm without having any idea whether he will get compensation, and the onus is cast on him to scour through hundreds/thousands of items listed in the Gazette to see whether he needs to make representations to get his gun(s) back.
    3.6. Had Parliament intended the meaning for 136 put on it by the Judge, the section would have been drafted something like this:
    “ (1) The Registrar must in respect of any firearm or ammunition seized by, surrendered to or forfeited to the State, decide whether the firearm is to be destroyed or kept by the Police for training or other lawful purposes. If a firearm is destroyed no compensation will be payable.
    (2) The Minister must establish guidelines to enable this discretion to be exercised.
    (3) Should the Registrar decide that a firearm is to be retained, rather than destroyed, he must within 21 days, notify any person who he believes may have an interest in the firearm, that he/she has a right to make representations as to what compensation should be payable.
    (4) The Minister must establish guidelines for the payment of such compensation.

    3.7. Had the section been drafted in that way it would be reasonable & workable( if not just), and section 137 would be unnecessary.

    4. The Judge correctly analysed the FNB case in considering whether there was a breach of S.25 of the Constitution. He correctly concludes at para 39 that proper deprivation of property without compensation may be lawful provide, inter alia, the deprivation is not procedurally unfair. He failed however to apply that proviso to the facts of this case where the deponents demonstrated a procedure that is grossly unfair when persons surrendering firearms are led to believe compensation may/will be payable and are asked to fill in a form to that end. Nor does the judge apply the principle of fairness to the issue of whether asking a firearm owner to scour the Gazette to see if his firearm is listed amongst thousands of others for destruction is a fair procedure.

  7. #17

    Default Re: Media statement by JASA

    Good news, lets just hope for an unbiased Judge.
    "Guns are just tools, the way they're used reflects the society they're apart of, if you don't like guns, blame it on society" ~Chris Kyle

  8. #18
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    Default Re: Media statement by JASA

    Press relaese by Jasa.

    JASA TO APPEAL JUDGE SALDANHA’S JUDGMENT DENYING COMPENSATION TO PERSONS WHO VOLUNTARILY SURRENDER FIREARMS

    At a consultation with our 3 counsel yesterday it was decided to apply immediately for leave to appeal against the Judge’s decision handed down on November 5. In his decision the judge struck down part of the guidelines issued by the Minister late last year in response to Deputy Judge President’s scathing judgment on August 31 2009 declaring the behaviour of the predecessor of the present Minister of Police unconstitutional.

    However Judge Saldahna interpreted section 136 of the Firearms Control Act, 2000 as meaning that guns destroyed by the State do not attract a right to compensation. JASA believes this decision makes a mockery of Chapter 19 of the Act entitled “Compensation” and brings enormous injustice to those who handed in millions of rands worth of guns, were asked to fill in an application form, and were thereby led to believe compensation would be payable. It makes section 137 of the Act relevant only to a few guns retained by the Police for training purposes, whereas it is quite clear that the sub- section envisages tens of thousands of guns, compensation for which may substantially effect the State’s coffers.

    Judge Saldanha made no order as to costs. His judgment is posted on the JASA website: www.jasa.za.net.
    The Notice of Appeal will be posted on the JASA website as soon as Counsel has drafted it.


    Background:

    JASA filed papers in the Cape High Court seeking declarations that the refusal to pay compensation to persons who surrender firearms as required by the Firearms Control Act, 2000 offends against the Constitution.

    For over 5 years since the relevant legislation came into force the Minister and National Police Commissioner (Registrar of Firearms) have refused to comply with section 137 of the Act. JASA alleged in its affidavit that the State acts ‘unreasonably and arbitrarily, and without procedural fairness, in that most applications are rejected out of hand, ignored or simply filed away’, contrary to section 33 of the Constitution which requires just administrative action for all persons.

    Both individuals and dealers have suffered financial hardship; in one of several supporting affidavits filed in court it is alleged by one dealer that she suffered a loss of over R.2m as a result of refusal by all three Respondents to assist her after she had surrendered her stock of firearms. In another affidavit a lady of over 70 years of age tells of how she was treated with disdain and discourtesy, and repeatedly told she was not entitled to compensation, when she surrendered one firearm at her local police station.

    JASA lays the blame for this state of affairs squarely on the shoulders of the Minister (at the time Minister Nqakula) and SAPS Commissioner ( Jackie Selebi) who, on 8 June 2005 and 12 October 2005 respectively, stated in Parliament, in defiance of the Act, that no compensation would be payable to those surrendering firearms.

    We believe Parliament intended that s.137 of the Act should encourage the surrender of firearms, a aim which JASA wholly supports in our crime-ridden society.

    The matter came to court on August 31 2009. After 9 years of delay since the Firearms Control Act 2000 was passed, the deputy Judge President took barely 15 minutes to hand down a draconian order against the Minister of Police condemning the action of his predecessor as “unlawful and inconsistent with the Constitution.” Deputy Judge President Traverso peremptorily dismissed an application for a postponement by the State, and directed the Minister to provide guidelines as required by the Act within 90 days, and then report back personally to the court by affidvait. The State were ordered to pay JASA’s costs (advocates and attorney) of the whole action including the costs of 2 counsel. Peter Hodes SC and Anton Katz represented JASA and False Bay Gun Club. The State was represented by Kosie Olivier,SC.

    The Court ORDER read as follows:

    1.It is declared that the failure to establish guidelines as contemplated by
    section 137(5) of the Firearms Control Act No 60 of 2000 ("the Firearms
    Control Act") is unlawful and inconsistent with the Constitution;

    2.The Minister of Police is ordered to establish guidelines as contemplated
    by section 137(5) of the Firearms Control Act within 90 days of this order
    and to inform this Court by way of an affidavit by the Minister within 120
    days of this order that he has done so; and

    3.The Minister of Police is to pay the Applicants' costs of suit, which costs
    are to include the costs attendant upon the employment of two counsel.

    Go to our website for more information: www.jasa.za.net

    JASA
    Upholding Justice in the Public Square

    John

    John Smyth QC
    Justice Alliance of South Africa (JASA)
    1 Ruskin Road, Bergvliet
    Cape Town, 7945


    ---------- Post added at 11:37 ---------- Previous post was at 11:37 ----------

    Press relaese by Jasa.

    JASA TO APPEAL JUDGE SALDANHA’S JUDGMENT DENYING COMPENSATION TO PERSONS WHO VOLUNTARILY SURRENDER FIREARMS

    At a consultation with our 3 counsel yesterday it was decided to apply immediately for leave to appeal against the Judge’s decision handed down on November 5. In his decision the judge struck down part of the guidelines issued by the Minister late last year in response to Deputy Judge President’s scathing judgment on August 31 2009 declaring the behaviour of the predecessor of the present Minister of Police unconstitutional.

    However Judge Saldahna interpreted section 136 of the Firearms Control Act, 2000 as meaning that guns destroyed by the State do not attract a right to compensation. JASA believes this decision makes a mockery of Chapter 19 of the Act entitled “Compensation” and brings enormous injustice to those who handed in millions of rands worth of guns, were asked to fill in an application form, and were thereby led to believe compensation would be payable. It makes section 137 of the Act relevant only to a few guns retained by the Police for training purposes, whereas it is quite clear that the sub- section envisages tens of thousands of guns, compensation for which may substantially effect the State’s coffers.

    Judge Saldanha made no order as to costs. His judgment is posted on the JASA website: www.jasa.za.net.
    The Notice of Appeal will be posted on the JASA website as soon as Counsel has drafted it.


    Background:

    JASA filed papers in the Cape High Court seeking declarations that the refusal to pay compensation to persons who surrender firearms as required by the Firearms Control Act, 2000 offends against the Constitution.

    For over 5 years since the relevant legislation came into force the Minister and National Police Commissioner (Registrar of Firearms) have refused to comply with section 137 of the Act. JASA alleged in its affidavit that the State acts ‘unreasonably and arbitrarily, and without procedural fairness, in that most applications are rejected out of hand, ignored or simply filed away’, contrary to section 33 of the Constitution which requires just administrative action for all persons.

    Both individuals and dealers have suffered financial hardship; in one of several supporting affidavits filed in court it is alleged by one dealer that she suffered a loss of over R.2m as a result of refusal by all three Respondents to assist her after she had surrendered her stock of firearms. In another affidavit a lady of over 70 years of age tells of how she was treated with disdain and discourtesy, and repeatedly told she was not entitled to compensation, when she surrendered one firearm at her local police station.

    JASA lays the blame for this state of affairs squarely on the shoulders of the Minister (at the time Minister Nqakula) and SAPS Commissioner ( Jackie Selebi) who, on 8 June 2005 and 12 October 2005 respectively, stated in Parliament, in defiance of the Act, that no compensation would be payable to those surrendering firearms.

    We believe Parliament intended that s.137 of the Act should encourage the surrender of firearms, a aim which JASA wholly supports in our crime-ridden society.

    The matter came to court on August 31 2009. After 9 years of delay since the Firearms Control Act 2000 was passed, the deputy Judge President took barely 15 minutes to hand down a draconian order against the Minister of Police condemning the action of his predecessor as “unlawful and inconsistent with the Constitution.” Deputy Judge President Traverso peremptorily dismissed an application for a postponement by the State, and directed the Minister to provide guidelines as required by the Act within 90 days, and then report back personally to the court by affidvait. The State were ordered to pay JASA’s costs (advocates and attorney) of the whole action including the costs of 2 counsel. Peter Hodes SC and Anton Katz represented JASA and False Bay Gun Club. The State was represented by Kosie Olivier,SC.

    The Court ORDER read as follows:

    1.It is declared that the failure to establish guidelines as contemplated by
    section 137(5) of the Firearms Control Act No 60 of 2000 ("the Firearms
    Control Act") is unlawful and inconsistent with the Constitution;

    2.The Minister of Police is ordered to establish guidelines as contemplated
    by section 137(5) of the Firearms Control Act within 90 days of this order
    and to inform this Court by way of an affidavit by the Minister within 120
    days of this order that he has done so; and

    3.The Minister of Police is to pay the Applicants' costs of suit, which costs
    are to include the costs attendant upon the employment of two counsel.

    Go to our website for more information: www.jasa.za.net

    JASA
    Upholding Justice in the Public Square

    John

    John Smyth QC
    Justice Alliance of South Africa (JASA)
    1 Ruskin Road, Bergvliet
    Cape Town, 7945

  9. #19
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    Default Re: Media statement by JASA

    Looks to me like that judge was trying to avoid a "career limiting move". Maybe he was worried that he would appear to be "not fully transformed".

    Sean.
    Pain is just weakness leaving the body.

  10. #20
    User Paul's Avatar
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    Default Re: Media statement by JASA

    Have a read through the full written verdict...

    We got caned!
    "Always remember to pillage before you burn"
    Unknown Barbarian

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