Minister of Police v Nobumba N.O and Another (1585/2022) [2023] ZAECQBHC 11 (2 March 2023)

80 Reportability

Administrative Law

Brief Summary

Judicial Review — Grounds for review — Promotion of Administrative Justice Act — Applicant sought to review decision of magistrate granting condonation for non-compliance with notice requirements under the Institution of Legal Proceedings Act — Second respondent had been unlawfully arrested and detained, leading to a civil claim — Applicant argued that the magistrate erred in law by entertaining the condonation application after upholding a special plea that dismissed the claim — Court found that decisions of judicial officers do not constitute administrative action under PAJA and are instead governed by the Superior Courts Act — Grounds for review did not establish a gross irregularity as defined by the Act, and the application was dismissed.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings took the form of an application in the High Court to review and set aside a decision made in the Magistrates’ Court. The applicant was the Minister of Police, and the respondents were Magistrate Mr Nobumba N.O. (cited as the first respondent in his official capacity) and Ntsikelelo Siko (the second respondent, who was the plaintiff in the underlying civil action). The magistrate filed a notice to abide the High Court’s decision, and the application was opposed only by the second respondent.

The matter arose from an underlying damages action instituted by the second respondent in the New Brighton District Court for allegedly unlawful arrest and detention. In that action, the Minister raised special pleas, one of which concerned the second respondent’s failure to comply with the statutory notice requirements applicable to claims against organs of state. After the special plea was upheld, the second respondent brought an application for condonation of the notice failure, which the magistrate later granted.

The High Court proceedings were directed at overturning the magistrate’s later decision granting condonation for non-compliance with the statutory notice provisions and granting leave for the second respondent to continue with the civil claim. The Minister framed the review primarily under the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

Material Facts

It was common cause that the second respondent was arrested without a warrant by members of the South African Police Service on 15 January 2020 and was detained until the following day. The second respondent subsequently instituted a civil action in the New Brighton District Court claiming damages against the Minister for the alleged unlawfulness of the arrest and detention.

It was also common cause that the Minister delivered two special pleas in the civil proceedings. Argument proceeded on 25 October 2021 in respect of the first special plea, which was founded on the second respondent’s failure to serve a notice of intended legal proceedings on the National Commissioner of SAPS within six months from the date on which the debt became due, as contemplated by the Institution of Legal Proceedings Against Certain Organs of State Act (as identified in the judgment). The second special plea was withdrawn.

After argument, the magistrate upheld the first special plea. Thereafter, on 11 November 2021, the second respondent launched an application seeking condonation for the notice failure. The Minister did not file an answering affidavit to that application but delivered a notice in terms of Rule 55(1)(g)(iii) of the Magistrates’ Courts Rules, raising the contention (in substance) that the claim had been finally disposed of when the special plea was upheld and that the appropriate remedy was an appeal rather than a condonation application.

Following argument in the condonation application, the magistrate granted condonation and leave to pursue the civil action. A further material fact noted by the High Court was that the condonation proceedings were not recorded, with the result that no transcript was available.

Legal Issues

The central legal questions concerned the proper characterisation of the impugned decision and whether it was susceptible to review on the basis advanced by the Minister.

A primary issue was whether the magistrate’s decision granting condonation and leave to proceed constituted “administrative action” reviewable under PAJA, or whether it fell outside PAJA because it was the exercise of judicial functions by a judicial officer.

A further issue, approached on the assumption that the incorrect characterisation might not necessarily be fatal, was whether the Minister’s complaints established a cognisable ground of review under section 22 of the Superior Courts Act 10 of 2013, in particular whether the Minister had demonstrated a gross irregularity in the proceedings as contemplated in section 22(1)(c), as distinct from merely alleging that the magistrate reached an incorrect legal conclusion.

These issues predominantly concerned questions of law, including the delineation between review and appeal, and the correct statutory basis for reviewing proceedings of a Magistrates’ Court, coupled with the application of those principles to the Minister’s pleaded grounds.

Court’s Reasoning

The court’s reasoning began with the statutory definition of “administrative action” in section 1 of PAJA. It noted that PAJA expressly excludes from its ambit “the judicial functions of a judicial officer” of a court referred to in section 166 of the Constitution. On that basis, the court held that decisions of judicial officers are specifically excluded from PAJA review and do not constitute administrative action.

The court stated that the appropriate framework for reviewing Magistrates’ Court proceedings is provided by section 22 of the Superior Courts Act 10 of 2013, which limits review grounds to, among others, absence of jurisdiction, bias or corruption, gross irregularity in the proceedings, and certain evidentiary irregularities. The court recorded that the second respondent had correctly raised this difficulty in argument, and that the Minister’s response was to request that substance be preferred over form. While accepting in principle that the label attached to proceedings is not decisive, the court emphasised that it must nevertheless be apparent from the founding papers that the relevant statutory basis is operative, and that the papers must set out fully the facts and legal foundation for the cause of action.

Turning to the Minister’s pleaded case, the court identified the “high-water mark” of the review grounds as the contention that the magistrate committed an error of law by entertaining condonation after having upheld the special plea, with the Minister characterising the matter as res judicata and asserting that the special plea had permanently disposed of the claim. The court construed the essence of the Minister’s case as a challenge to the magistrate’s entitlement in law to consider condonation at that stage, and thus as an attack on the correctness of the decision rather than on the fairness or regularity of the proceedings.

The court held that this contention did not constitute a review ground falling within section 22(1)(c) of the Superior Courts Act. In any event, and even if the court were wrong on that characterisation, it held that the complaints were directed at the result of the proceedings (an alleged wrong legal outcome) and not at the method or conduct of the proceedings. The court applied the established distinction between review and appeal, drawing on the principle that an irregularity in proceedings refers to the methods of trial, not an incorrect judgment. The court relied on the line of authority explaining that even bona fide mistakes can amount to gross irregularity only where they prevent a fair trial of the issues, and that a mere error of law on the merits is ordinarily a matter for appeal, not review.

In this context, the court referred to the distinction drawn between the reasoning of the decision-maker and the conduct of the proceedings, cautioning against conflating them. The court found that the Minister had “seemingly” conflated these concepts by framing an alleged legal error and dissatisfaction with the outcome as a gross irregularity.

Having found that the review was unsustainable on the statutory basis relied upon and, additionally, that the grounds advanced did not constitute proper review grounds under section 22, the court concluded that the application had to fail. It also stated that it saw no reason to depart from the ordinary principle that costs follow the result.

Outcome and Relief

The High Court dismissed the review application. The court ordered that the review is dismissed with costs, thereby leaving the magistrate’s decision granting condonation and leave to pursue the civil action intact.

Cases Cited

Notyawa v Makana Municipality and Others 2020 (2) BCLR 136 (CC).

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [2004] ZACC 15; 2004 (4) SA 490 (CC).

Ellis v Morgan; Ellis v Dessai 1909 TS 576.

Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA).

Goldfields Investments Ltd and Another v City Council of Johannesburg and Another 1938 TPD 551.

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC).

Legislation Cited

Promotion of Administrative Justice Act 3 of 2000.

Superior Courts Act 10 of 2013.

Institution of Legal Proceedings Against Certain Organs of State Act 20 of 2002.

Constitution of the Republic of South Africa, 1996 (section 166 referenced).

Special Investigating Units and Special Tribunals Act 74 of 1996 (referenced in the PAJA definition exclusions).

Rules of Court Cited

Magistrates’ Courts Rules, Rule 55(1)(g)(iii).

Held

The court held that the magistrate’s decision to grant condonation and leave to proceed was the exercise of a judicial function and therefore fell outside the definition of administrative action in PAJA. The court further held that the applicant’s complaints were directed at the correctness of the outcome and raised, at most, grounds of appeal rather than reviewable irregularities under section 22 of the Superior Courts Act 10 of 2013. On that basis, the review could not succeed and was dismissed with costs.

LEGAL PRINCIPLES

Judicial decisions by magistrates constitute the exercise of judicial functions and are excluded from the scope of review under PAJA, because PAJA’s definition of administrative action expressly omits the judicial functions of judicial officers.

Review of Magistrates’ Court proceedings in the High Court is governed principally by section 22 of the Superior Courts Act 10 of 2013, which confines review to specific grounds, including gross irregularity in the proceedings, and does not permit a general re-examination of the merits as though on appeal.

A gross irregularity concerns the conduct or method of the proceedings and is evaluated by asking whether the irregularity prevented a fair trial of the issues. A complaint that a magistrate reached a wrong conclusion on a point of law affecting the merits is ordinarily a matter for appeal, not review, unless the mistake is of such a nature that it causes the court to misconceive the whole nature of the enquiry or its duties in a manner that denies a fair hearing.

In applying these principles, the court reiterated the need to maintain the distinction between the decision-maker’s reasoning (which may be right or wrong) and the procedural conduct of the proceedings (which determines whether reviewable irregularity exists), and cautioned against conflating dissatisfaction with the result with reviewable procedural unfairness.