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16-01-2018, 06:49 #21
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Re: The ConCourt battle on 8 February. Important!!!
Quoting GK21's comment:
Hi guys. I have just read SAPS’ heads of argument.
Unfortunately in my opinion their arguments are very difficult to counter. In my view the Concourt will only address the very narrow issues before it ie. the constitutionality of the relevant sections (vis-a-vis each other) and not the issues concerning CFR inefficiencies (this is important and very relevant in the light of the bigger picture) and whether the licencing philosophy of the FCA is correct or not as GOSA is trying to argue (the entire licensing scheme is currently not under attack for now, only the re-licensing portion for purposes of this matter) on the coat-tails of the SA Hunters case (the idea is not for GOSA to try and make something of the SAH case, but to join the proceedings and to ask for primary relief, i.e. striking down of the relicensing scheme).
I think GOSA may have chosen the wrong case to push that agenda (the challenge is that the hornets nest on fundamental constitutionality issues has now been kicked over and unless the matter is fully ventilated and pleaded, this "bad case is going to make bad law". So the case chose GOSA, not the other way around :) ). I doubt the Concourt will entertain what GOSA wants to argue. (The essence of the argument is that the continues relicensing scheme serves no rational purpose, and that if it is not scrapped, that it will lead to the collapse of the entire system (as we will show with the data that SAPS must provide us with pursuant to our PAIA application and then as will be amliefied by the projections for the future by the actuaries) in its totallity. That will be something that we believe the Con Court will really be very worried about. Clearly the right to life and the other fundamental human rights are at stake here.)
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16-01-2018, 06:50 #22
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Re: The ConCourt battle on 8 February. Important!!!
GOSA’s agenda of rewriting the FCA to allow for licencing the individual (baby steps, baby steps - this intended intervention is aimed at getting the relicensing scheme as such scrapped, something we believe on preliminary investigations will result in a massive improvement of the CFR's efficiency already!) and not the firearm is indeed laudable but is a fight for Parliament and not the Concourt. The courts do not make policy decisions (but the Con Court will in our view be likely to order parliament to amend the FCA - in line with what it does in other matters where it orders parliament to amend unconstitutional legislation - to the effect that relicensing is done away with when we show to the Court that if it stays, it will surely give rise to the collapse of the entire system). They merely interpret existing legislation and pronounce on its constitutionality (if found to be unconstitutional, even for lack of rationality - something that can be a ground on its own, the Con Court will then require of parliament to amend the legislation in a certain amount of time). Only Parliament writes legislation (that needs to be in line with what the Con Court found. So yes, Parliament could have been petitioned in the first instance, but now we are sitting with the situation that this matter has in fact been dragged in front of the Con Court - and currently on very thin grounds on which we agree, and if we do not state our case there, the Con Court will make adverse comments, both as far as ratio decidendi and obiter dictum is concerned, in the absence of the evedince that is currently not before it, and THEN parliament will be writing very negative laws based on what the Con Court said).
This case is also not about pro gun v anti gun. The Concourt will not deal with such issues. (Refer to the unopposed averments that GFSA made in their affidavits under oath! - This is what the Con Court is left with for now and this is what will set the tone for legislation to follow....unless...)
It can also not be argued that the sections in the FCA are unconstitutional because of CFR maladministration. (This is indeed the ultimate effect of the maladministration, that has at its root the impossible burden that the irrational relicensing scheme in particular places on the administration). Indeed SAPS concede they have poor administration (in one sentence in their heads of argument, but when the answers to our PAIA request becomes available, the iceberg will be noticed, and not only the tip) but it is irrelevant regarding how the FCA must be interpreted.(the aim is to get the offending sections scrapped, so that they are not there to cause issues with interpretation :) ).
So, in conclusion, I don’t believe the Concourt will entertain GOSA’s arguments (unless GOSA has cogent arguments on the constitutionality of the relevant sections) (that indeed we believe we do. Irrationality and the right to life and the collapse of the entire system of control over firearms that the FCA says it is concerned about, is at stake) and will not entertain the other issues since they are irrelevant. (We believe that this issue is indeed relevant and indeed fundamental).
Ultimately, I think SAPS will win the appeal. (As matters stands now, unless GOSA intervenes, this is very likely.)
I hope I’m wrong.....[/QUOTE]
Thanks for the opportunity to clarify GK21!
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16-01-2018, 07:21 #23
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16-01-2018, 07:55 #24
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Re: The ConCourt battle on 8 February. Important!!!
Please see the GOSA PAIA request here:
Annexure to Form C PAIA application Dec 2017 SAPS working document.docx
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16-01-2018, 08:09 #25
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16-01-2018, 08:15 #26
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16-01-2018, 09:20 #27
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16-01-2018, 10:35 #28
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16-01-2018, 11:37 #29
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16-01-2018, 12:24 #30
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Re: The ConCourt battle on 8 February. Important!!!
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