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2023
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[2023] ZAFSHC 206
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Kroonstad Vehicle Testing Station (Pty) Ltd v Member of the Executive Council: Police, Roads and Transport, Free State (4611/2022) [2023] ZAFSHC 206 (30 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
4611/2022
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
KROONSTAD
VEHICLE TESTING STATION (PTY) LTD
Applicant
and
THE
MEMBER OF THE EXECUTIVE COUNCIL: POLICE,
ROADS
AND TRANSPORT, FREE STATE
Respondent
CORAM:
LOUBSER, J et JONASE, AJ
HEARD
ON:
20 FEBRUARIE
2023
JUDGEMENT
BY:
JONASE, AJ
DELIVERED
ON:
The judgment was handed down electronically
by circulation to the
parties’ legal representatives by email and released to SAFLII
on 30 MAY 2023. The date and time for
hand-down is deemed to be 30
MAY 2023 at 16:00
Introduction:
[1]
The applicant brought an application before this court seeking an
order to review
and set aside the respondent’s refusal of its
application for the establishment and conducting of a private vehicle
testing
station at Botshabelo. The applicant further seeks ancillary
relief that the matter be referred back to the respondent for a
reconsideration.
[2]
The applicant alleges such a decision for refusal was taken on 03
February 2022.
[3]
The application which is the subject matter herein was made on the 30
January 2018.
The applicant received a letter from the respondent
dated 15 September 2020 indicating that the applicant’s
application to
operate a private vehicle testing station at
Botshabelo was not successful as the application did not comply with
the requirements
of regulation 128 of the Road Transport Act.
[4]
On 16 September 2020, the applicant sent a letter to the respondent
enquiring from
the respondent to enlighten it as to which aspects of
Regulation 128 the applicant’s application was allegedly
non-compliant
with. Respondent did not respond to the said letter.
Again, the applicant sent a letter dated 29 September 2020 being a
follow-up
letter enquiring for the reasons why the applicant’s
application was found to be non-compliant.
[5]
On 20 October 2020 the applicant received a letter from the
respondent indicating
that applicant’s application was
apparently not accompanied by the prescribed affidavit and the
required fee. The applicant
indicated that the required fee had not
yet been determined by the respondent or communicated to the
applicant at any stage prior
to the application.
[6]
On 21 October 2020 the applicant expressed its confusion to the
respondent by way
of a letter indicating that the applicant was
unaware that it was required to pay an application fee or that it was
ever communicated
previously as such.
[7]
On 22 October 2020 the applicant sent a letter to the respondent
indicating the following:
7.1
.
the affidavit that was allegedly omitted from the application was
already submitted with the application
on 30 January 2020.
7.2.
the respondent and its department took more than 2 (two) years to
revert to the applicant on its application regarding the fee to
be
paid.
7.3.
with the previous application that was approved for Kroonstad
private testing station no fee was payable or requested by the
respondent.
7.4.
the matter was elevated to the office of the Public Protector and
as such the respondent was requested to review his decision on
the
applicant’s application.
[8]
On 19 November 2020 the applicant instructed its attorneys, who on
the same date sent
a letter to the respondent recording that the
application submitted by the applicant was fully compliant with the
provisions of
the regulations and that the fee which was to be paid
was not yet communicated to the applicant, and that the respondent
should
review his decision within 14 days of receipt of the said
letter.
[9]
There was a further inordinate delay until the applicant was invited
to attend a meeting
on 9 February 2021 with one Mashinini where it
was indicated that the respondent made an error when he refused the
application
and subsequent to the said meeting, applicant was
informed of the amount to be paid and was also informed that an
inspection will
be held regarding the application for the Botshabelo
testing station.
[10]
On 11 February 2021 the applicant deposed to a new affidavit and made
payment to the respondent
in the amount of R 20 218.00, being
the application fee for approval of a private testing station.
[11]
On 24 March 2021 the applicant was informed, by way of a letter, by
the respondent’s Control
Provincial Inspector: Inspectorate
Sub-Directorate to attend to an inspection on 25 March 2021.
[12]
The said inspection was postponed to 29 March 2021, but there was a
further delay until applicant
approached the Office of the Public
Protector for assistance.
[13]
On 2 February 2022 the Applicant received a letter from one Mr
Thekiso, Acting Head of the Department:
Police, Roads and Transport
who informed the applicant as follows:
a)
applicant’s application for registration of the new
Botshabelo vehicle testing station was received;
b)
the department unreservedly apologised for the delay to process
the application;
c)
the department will conduct an investigation against officials who
handled the matter, and
d)
he expressed the hope in conclusion that the department’s
apology will meet applicant’s favourable acceptance.
[14]
On 3 February 2022 the applicant received a letter signed by the
respondent indicating that the
application for permission to operate
a private testing station in Botshabelo was unsuccessful. It further
stated that the decision
was taken in light of the findings of an
investigation by the relevant officials which stated that;
a)
there is a building earmarked for the Vehicle Testing Station
consisting of an old factory building
.
b)
the site indicated did not to have enough space to test vehicles
as it had no space for erecting a formal test yard as required by
the
SANS, for heavy vehicles will not be able to turn around when leaving
the testing station because of the building structure
and layout of
the yard.
c)
it was established that the applicant does not qualify on Quality
Management
and System course in terms of SANS 10216: 2010 SANS
offered by the SABS.
d)
there was a high possible conflict of interest.
[15]
The applicant’s concerns with regard to the above are;
a)
it does not explain or substantiate to what extent the building was
not suitable.
b)
it does not consider the SANS standards and SABS’s requirements
for a functional
testing station.
c)
it does not take cognisance of the qualification which applicant held
and which
was in possession of the respondent’s official.
d)
it does not state what the conflict might have been and applicant was
not afforded
any opportunity to address respondent on such possible
conflict and without explaining how a conflict could preclude
applicant
from executing the functions prescribed by the regulations.
[16]
On 09 February 2022 the applicant replied, conveying the above
concerns and reminded the respondent
that the reasons differed from
the initial reasons that were given on 15 September 2020. It also
expressed the view that applicant
was not treated fairly since all
the requirements of regulation 128 have been met, as was confirmed in
the meeting by the respondent
and his officials on 9 February 2021.
Further, the applicant requested the respondent to review his
decision.
[17]
On 13 April 2022 the applicant sent a letter to the respondent
enquiring into the progress made
with regard to applicant’s
letter dated 9 February 2022. No response was received to the said
letter.
[18]
The applicant also referred to the Public Protector’s report
which urged the respondent
to review his decision and applicant
informed the respondent that applicant will have no choice other than
to apply to this court
for relief if the respondent does not attend
to applicant’s queries regarding his decision.
Issues:
The
issues for determination by this Honourable Court are as follows;
a)
whether or not the applicant should be granted condonation for the
late filing
of this application, and
b)
whether or not the respondent’s decision should be reviewed and
set aside.
Condonation:
[19]
This application is brought in terms of PAJA,
[1]
or where it is found to be applicable, in terms of the principle of
legality.
[20]
In terms of PAJA, applications for review should be brought within
180 days from the date on
which the decision was made or from the
date the applicant should have known about the decision having been
taken.
[21]
In this matter, the impugned decision was taken on 3 February 2022
and the
applicant brought this
review application on 21 September 2022.
[22]
Section 9 of PAJA provides that;
“
(1)
The period
of –
(a)
90
days referred to in section 5 may be reduced; or
(b)
90
days or 180 days referred to in sections 3 and 7 may be extended for
a
fixed period, by
agreement between the parties or, failing which agreement,
by a court or tribunal
on application by the person or administrator concerned.
(
2
) The court
or tribunal may grant an application in terms of subsection(1)(b),
where the interest of justice so require.
”
[23]
Soon after 3 February 2022, the applicant referred the outcome of its
application to the Public Protector
to investigate the respondent’s
conduct in determining the application under review herein.
[24]
On 30 March 2022, the office of the Public Protector found that,
inter alia
, the respondent’s ill-treatment of the
applicant was not only illegal but also unreasonable and that
corrective steps are
required to be taken.
[25]
The referral of this matter to the Public Protector was not in line
with the requirements of
PAJA but with the cardinal rules governing
the principle of legality. It is so because in terms of PAJA the
applicant should have
brought this application within 180 days from 3
February 2023, being the date the applicant had full knowledge of the
outcome of
its application. A review under the principle of legality
should be within a reasonable time.
[26]
Even if it was in terms of PAJA, there would be a reasonable
explanation furnished by the applicant
which will be incumbent upon
this court to grant the application for condonation.
Analysis:
[27]
The Constitution provides that;
“
Section 2
:
This Constitution is the supreme law of the Republic; law and
conduct inconsistent with it is invalid, and the obligation imposed
by it must be fulfilled
.”
Section 33:
(1)
Everyone has a right
to administrative action that is lawful, reasonable and procedurally
fair
.
(2)
Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons
.
(3)
National legislation must be enacted to give effect to these
rights, and must
-
(a)
provide for the review of administrative action by a court or,
where appropriate, an independent and impartial tribunal
;
(b)
impose any duty on the state to give effect to the rights in
subsections (1) and (2); and
(c)
promote an efficient administration
.”
[28]
The said provisions empowered the Parliament to
enact
PAJA
which clearly gives a meaningful definition of what
constitutes administrative action.
[29]
The exercise of a public power is subject to the principle of
legality
[2]
.
[30]
The principle of legality includes rationality and accountability
which imposes a duty upon the
functionary exercising a public power
to provide reasons for its act or decision.
[31]
Review in terms of both the PAJA and the principle of legality stems
from the rule of law.
[32]
Section 33(1) and (2) of the Constitution as well as the PAJA gives
effect to the rule of law
in respect of only administrative action.
[33]
The principle of legality gives effect to the rule of law in relation
to all other exercises
of public power, such as executive power
[3]
.
[34]
The SCA, in the above case at
para 38
, held that;
“
I
t does not
matter in this case that the application for the review is based on
the principle of legality rather than the PAJA. No
procedural
differences arise and the grounds of review that apply in respect of
both pathways to review derive ultimately from
the same source- the
common law- although, in the PAJA, those grounds have been codified
.”
[35]
The respondent’s decision to be reviewed and set aside is that:
a) the
building where testing to be conducted is an old factory building
without
substantiating as to what
extent the building was not suitable.
b) The
site did not have enough space to test vehicles as there was no space
for erecting a formal test yard as
required by SABS standards for
heavy motor vehicles, as it will be impossible to turn around in the
yard when leaving the testing
station because of the layout of the
building.
c) The
director of the applicant apparently did not qualify on a Quality
Management and System course in terms
of SANS10216:2010 offered by
the SABS, without taking cognisance of the qualification which he
held and which was in possession
of the respondent’s official.
d) The
applicant’s director apparently had a possible conflict of
interest, without stating what that conflict
might have been and
without affording him any opportunity to address him on such possible
conflict and without explaining how a
conflict of interest could
preclude him from executing the functions prescribed in the
regulations.
[36]
When the respondent took that decision, he acted in exercising a
public power and performed a
public function in his capacity as an
executive functionary.
[37]
The applicant ought to have been afforded an opportunity to make
representations to clear issues
which needed to be provided with
further information for the respondent to arrive at a fair decision.
[38]
The respondent’s decision was based on irrational
considerations and such the said decision
is susceptible to be
reviewed and set aside on the principle of legality.
[39]
This court finds that this application was brought within a
reasonable time. As such, there is
no need for the application for
condonation.
[40]
In the premises I make the following order;
1. The
respondent’s decision to dismiss the application of the
applicant to operate a vehicle testing station
at Botshabelo is
hereby reviewed and set aside.
2. The
matter is referred back to the respondent for his reconsideration.
3. The
respondent is to pay the costs of this application on the
attorney-client scale.
S.S. JONASE AJ
I concur:
P. J. LOUBSER J
On
behalf of the Applicant:
Adv.
J.S. Rautenbach
Instructed
by:
Blair
Attorneys
BLOEMFONTEIN
On
behalf of the Respondent:
No
appearance
[1]
Act 3
of 2000
[2]
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA v SOUTH AFRICAN RUGBY UNION AND
OTHERS 2000(1) SA 1 (CC) at PARA 148
[3]
MINISTER
OF HOME AFFAIRS v THE PUBLIC PROTECTOR
[2018] ZASCA 15