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[2011] ZAGPPHC 157
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Minister for Justice and Constitutional Development v Kgoele (A757/2008) [2011] ZAGPPHC 157 (27 May 2011)
REPORTABLE
IN THE NORTH GAUTENG HIGH
COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
Case No: A757/2008
Date heard: 11/05/2011
Date of judgment:
27/05/2011
In
the matter between:
MINISTER
FOR JUSTICE
AND
.............................................................................
APPELLANT
CONSTITUTIONAL
DEVELOPMENT
and
AM
KGOELE
.......................................................................................................
RESPONDENT
JUDGMENT
[1]
In February 2005 the Magistrates Commission
1
("the Commission") distributed a notice that the post of
Chief Magistrate, Molopo was vacant. The Commission called for
applications for this post.
[2]
The respondent in this appeal
2
was one of a number of applicants. Under
section 10
of the
Magistrates Act, 90 of 1993
the Minister for Justice and
Constitutional Development (the appellant in this appeal) has the
power and the duty "after consultation
with the Commission"
to appoint magistrates. The Minister did not appoint the respondent,
but one Ms Ikaneng. The Minister
took the decision on 6 October 2005.
[3]
In August 2006 the present respondent, as applicant, launched an
application in this court. She sought orders aimed at reviewing
and
setting aside the Minister's decision. The respondent also sought an
order substituting the Minister's decision with a decision
to appoint
her as the Chief Magistrate, Molopo.
[4]
The matter came before Pretorius J. On 7 December 2007 the learned
judge handed down a written judgment and granted the following
presently relevant orders:
"2
The decision of the first respondent to appoint the second
respondent
3
as Chief Magistrate, Molopo, is reviewed and set aside. 3. The
decision of the first respondent to appoint the second
respondent
as the Chief Magistrate, Molopo is substituted with the
[5]
In August 2008 the appellant (the Minister) was granted leave to
appeal against the two orders quoted above and against the
costs
order. That appeal is now before this court. I shall refer to the
appellant as "the Minister" and to the present
respondent,
applicant in the court a quo, as "the respondent".
[6]
Events have overtaken the orders of the court a quo: In an affidavit
explaining why she will not appear to oppose this appeal,
the
respondent explains that she has been appointed as a judge of the
High Court. Accordingly, she no longer seeks appointment
as the Chief
Magistrate, Molopo. The respondent has so informed the State
Attorney. She has also informed the State Attorney that
she is
prepared to abandon the judgment in her favour provided that the
appellant seeks no costs order against her. Mr Tshidzumba
who
appeared for the Minister informed us that no costs order is sought
against the respondent and that the Minister does not seek
an order
setting aside the costs order made by the court a quo.
[7]
Section 21A(1) of the Supreme Court Act, 59 of 1959 provides:
"When at the hearing
of any civil appeal to ... any Provincial... Division ... the issues
are of such a nature that the judgment
or order sought will have no
practical effect or result, the appeal may be dismissed on that
ground alone".
[8]
In view thereof that the Minister is not seeking a costs order, there
are two issues before us, namely whether respectively
paragraphs 2
and 3 of the order of the court a quo should be set aside. No order
that this court could make in respect of either
of these issues will
have any practical effect: the appointment of the respondent to the
post of Chief Magistrate, Molopo is no
longer a practical option.
[9]
Section 21A(1) that I have quoted does not preclude a court of appeal
from dealing with appeals where the orders will have no
practical
effect. The court has a discretion.
4
5
MrTshidzumba submitted that in this case we should
exercise our discretion and deal with the issues. His argument was
that the
judgment of the court a quo sets a precedent to which the
Minister is bound unless this court overturns it.
[10]
In order to deal with counsel's argument it is necessary briefly to
deal with the reasons of the learned judge a quo. I start
with the
reasons for reviewing and setting aside the of the Minister's
decision.
[11
] The respondent sought to review the Minister's decision under the
provisions of Promotion of Administrative Justice Act, 3
of 2000
(PAJA). It was argued neither before the court a quo nor before this
court that the Minister's decision did not constitute
"administrative
action" reviewable under PAJA.
6
[12]
Section 5(3) of PAJA provides: "If an administrator fails to
furnish adequate reasons for an administrative action it
must,
subject to subsection (4) and in the absence of proof to the
contrary, be presumed in any proceedings for judicial review
that the
administrative action was taken without good reason." In this
case the Minister gave no reasons at all. She did not
file an
affidavit giving reasons. The court a quo reasoned that in the
circumstances the decision was not taken for good reason
and on that
basis reviewed and set aside the Minister's decision. Mr Tshidzumba
submitted that good reason for the Minister's decision
appears from
the papers as a whole and that the learned judge a quo should have
had regard thereto in determining whether the presumption
in section
5(3) of PAJA has been rebutted.
[13]
I assume in the Minister's favour that in order to decide whether the
presumption has been rebutted, the court must have regard
to all the
evidence before it. The judgment of the court a quo does not hold to
the contrary. The court found that the factual
7
presumption created by section 5(3) was not rebutted. Whether that is
or is not so, is a question of fact. To determine whether
the court a
quo was right or wrong on the facts is an academic exercise upon
which this court should not embark.
[14]
Section 8(1)(c)(ii)(aa) of PAJA provides that in "exceptional
cases" a reviewing court may make an order to substitute
its
decision for that of the administrator. The subsection itself makes
it plain that an order substituting the court's decision
for that of
the administrator should not be lightly made. It is settled law that
the courts are reluctant to substitute their own
decisions for that
of the administrator.
8
The learned judge a quo, in granting paragraph 3 of the order quoted
above did not hold otherwise. Whether this case was indeed
exceptional is a question of fact and the answer to that question is
moot.
[15] In my view the
issues in this case "are of such a nature that the judgment or
order sought will have no practical effect
or result". There is
in my view no basis for this court to exercise its discretion not to
dismiss the appeal on that ground.
In the result the
following order is made: The appeal is dismissed.
B.R.
Du Plessis
Judge
of the High Court
I
agree.
W.R.C.
Prinsloo
Judge
of the High Court
I
agree.
N.M
Mngqibisa-Thusi
Judge
of the High Court
Appellant's
Counsel:Adv. L Tshidzumba
Appellant's
Attorneys:State Attorney Pretoria
Bothongo
Heights 8
th
Floor
167
Andries Street Pretoria Private Bag x91 Pretoria, 0001
No
appearance for the respondent.
1
Established
under
section 2
of the
Magistrates Act, 90 of 1993
.
2
The
applicant in the court a
quo.
3
Ms
Ikaneng was the second respondent in the application.
4
Land
en Landbouontwikkelingsbank van Suid Afrika v Conradie
2005 (4) SA
506
(SCA) at paras.
6
and
7.
And
see Herbstein & Van Winsen: The Civil Practice of the High
Courts (Fifth Edition), p.1239
6
See
Wessels
v Minister for Justice and Constitutional Development and Others
2010 (1) SA 128
(GNP).
7
De
Ville: Judicial Review of Administrative Action in South Africa, p.
295.
8
See
the discussion in De Ville
op.
cit,
p.
386 to 388. See also South African Veterinary Council and Another v
Szymanski
2003 (4) SA 42
(SCA) at para. 14