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2021
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[2021] ZAGPPHC 717
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South African Restructuring and Insolvency Practitioners Association NPC v Chief Executive Officer: Government Printing Works and Others (27628/2021) [2021] ZAGPPHC 717 (1 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER
JUDGES:
YES
/NO
(3)
REVISED: YES/
NO
01/07/2021
Case
number: 27628/2021
In
the matter between:
SOUTH
AFRICAN RESTRUCTURING AND
INSOLVENCY
PRACTITIONERS ASSOCIATION NPC
Applicant
v
CHIEF
EXECUTIVE OFFICER:
GOVERNMENT
PRINTING WORKS
First Respondent
MINISTER
OF HOME AFFAIRS
Second Respondent
DIRECTOR-GENERAL:
DEPARTMENT
OF HOME AFFAIRS
Third Respondent
JUDGMENT
MOSOPA,
J
INTRODUCTION
1.
The mission of the
Government Printing Works (“GPW”) is to provide
cost-effective, reliable and timeous services to
all spheres of
government in printing, to deliver equitable information to the
public and disseminate government information through
technology,
innovation and service excellence. To this end, it is the function of
the GPW to print and publish Government Gazettes
and legal notices
and this duty includes amongst others, the processing of requests for
quotations and publication of notices in
the Legal Gazettes A, B and
C.
2.
The applicant (South
African Restructuring and Insolvency Practitioners Association NPC)
seeks a final mandatory order against the
respondents on an urgent
basis, in terms of Rule 6(12) of the Uniform Rules of Court, to
compel the respondents to ensure that
the Legal Gazettes A, B and C
are published every Friday without interruption and delay. Further,
to ensure that all requests for
quotations and for publication of
notices in the Legal Gazettes A, B and C are attended to promptly
and, to ensure that such notices
appear in the Gazettes as requested.
URGENCY
3.
The respondents
contended that this matter is not urgent, as the applicant knew about
the service failure of the first respondent
on 5 February 2021 and on
9 March 2021, in its letter of demand, threatened to bring an urgent
application in the event the first
respondent does not remedy the
situation. Despite all this, the applicant failed to bring the urgent
application timeously.
4.
Notshe AJ, when called
upon to determine a similar situation in the matter of
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others [2011] ZAGPJHC 196
at
para 8, observed;
“
In my view
the delay in instituting proceedings is not, on its own a ground, for
refusing to regard the matter as urgent. A court
is obliged to
consider the circumstances of the case and the explanation given. The
important issue is whether, despite the delay,
the applicant can or
cannot be afforded substantial redress at a hearing in due course. A
delay might be an indication that the
matter is not as urgent as the
applicant would want the Court to believe. On the other hand a delay
may have been caused by the
fact that the Applicant was attempting to
settle the matter or collect more facts with regard thereto.”
(See also
Luna
Meubel Vervaardigers v Makin and Another
1977 (4) SA 135
(W)
).
5.
In casu, numerous correspondence was
exchanged by the parties leading up to the launch of the current
application. I am satisfied
that the applicant gave a proper and
reasonable explanation for the delay in bringing the application and
also gave reasons why
it will not be afforded substantial redress in
due course. I was thus satisfied that the matter is urgent.
AUTHORITY
6.
The applicant failed to
annex the resolution authorising the deponent to depose to an
affidavit on its behalf, to its founding affidavit.
A resolution
dated 10 March 2021, from the board meeting of the applicant, is
annexed to the applicant’s replying affidavit
and was done so
after the respondents raised a point-in-limine in respect of a lack
of authority to depose to the founding affidavit.
7.
The current application
was issued on 3 June 2021, meaning that the resolution authorising
the deponent to act as such was in fact
adopted before the issuing of
this current application. The best way for the respondents to have
attacked the lack of authority
was to have used the provisions of
Rule 7(1). (See
Ganes
and Another v Telekom Namibia Ltd
2004 (3) SA 615
(SCA)
at
624I-625A;
Unlawful
Occupiers, School Site v City of Johannesburg
2005 (4) SA 199
(SCA)
at paras
[14]-[16]). It is for this reason and the fact that the resolution is
annexed to the replying affidavit, that this point
ought not to
succeed.
DISCUSSION
8.
The applicant is a
non-profit company, comprising of various practitioners as its
members and this application pertains only to
its members who are
insolvency practitioners. This application is brought in the interest
of members of the applicant and in the
public interest, in terms of
section 38(d) and (e) of the Constitution of the Republic of South
Africa, 1996 (“the Constitution”).
9.
Section 38(d) and (e)
of the Constitution provides the following:
“
[38]
– Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights
has been
infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights. The persons who
may approach a
court are –
(d) anyone acting
in the public interest.
(e) an
association acting in the interest of its members.”
I am therefore
satisfied that the applicant meets the above requirements set out in
this subsection.
10.
It is common fact that
the GPW is the only body authorised to publish Government Gazettes,
which also include Legal Gazettes A,
B and C. I do not wish to go
into detail to explain what Legal Gazettes A, B and C entail, but in
brief;
10.1
Legal Gazette A
notices, comprise of notices in the administration of deceased
estates, appointment of trustees and liquidators,
notices of
surrender of a debtor’s estate etc.;
10.2
Legal Gazette B
notices, comprise of notifications of public auctions and execution
sales and;
10.3
Legal Gazette C
notices, include the publication of registration of political
parties.
11.
The work of the members
of the applicant (insolvency practitioners) entails dealing with the
financial affairs of insolvent estates
and companies in liquidation
or business rescue. To properly execute their mandate in terms of the
statutory framework, it is required
of them to publish notices in the
Government Gazette and daily newspapers.
12.
The first respondent
experienced what was termed “technical glitches”, when
its information technology and computer
server crashed in February
2021. This meant that the Legal Gazettes which were meant to be
published in the period of 5 February
2021 to 19 February 2021 were
not published. The Legal Gazettes for the period under review were
only published on 5 and 9 March
2021, respectively.
13.
The effect of the late
publication was that the notices in the Legal Gazettes could not
simultaneously be published in the daily
newspapers. Most
importantly, the dates appearing in these notices were published
after the date of notice of first meeting of
creditors had already
passed. These notices were thus irrelevant and of no use and effect
as at the date of publication, the date
of meeting of creditors had
long passed.
14.
The respondents
attribute the problems encountered by the first respondent to load
shedding and the COVID-19 pandemic. However,
I must mention at this
stage that what the respondents fail to prove is how the pandemic
affects its work. No rosters are presented
to show that they are not
operating at full capacity. It is also expected of an institution
like the first respondent to have a
back-up generator to deal with
continuous load shedding problems, but this was not presented by the
first respondent. In an effort
to mitigate the difficulties
experienced by the first respondent, while it is still rebuilding the
technical system which crashed,
it has migrated to a manual system.
What is not clear is when the technical system of the first
respondent will be back and fully
operational, as I was told that it
is a complex system which will take time to repair.
15.
The above was confirmed
in a letter sent by the second respondent wherein the following was
noted;
“
In
the interim, we have been able to devise a mechanism for processing
eGazettes manually, as an endeavor to fulfill our mandate
of
disseminating Government’s information.”
.
However, it appears
that the manual system had its own problems. The applicant confirmed
that the publication of notices dated 19
March 2021 were done
timeously, but numerous requests for quotations sent via the manual
system were not answered. It is common
fact that before a Legal
Gazette is published, the first respondent must first issue out
quotations, i.e. for the amount or number
of words and numbers used
in the notice. Simply put, until a quotation is furnished by the
first respondent, there can be no publication
of a Legal Gazette. The
applicant further contends that in some instances, where quotations
are fully paid for, notices which were
supposed to be published still
do not appear in the Legal Gazettes.
16.
This is despite the
second respondent’s assurances when addressing Parliament on 19
May 2021, during the budget vote, as can
be gleaned from the article
in the Business Day dated 5 April 2021, where the second respondent
said that the “technical
glitches” experienced by the
first respondent is a thing of the past and the interruptions had
been attended to. What the
second respondent acknowledges in the
address, following the article in the Business Day (
supra
),
is that these interruptions, “frustrated the legal system of
the country in that gazettes were delayed and that interfered
with
the social and economic system of the country.”.
17.
The continued
interruptions will have the negative effect on the trade of the
members of the applicant which the second respondent
frowned upon
when addressing Parliament. This in itself is a breach of a
constitutionally guaranteed right.
18.
The respondents are all
organs of state and the first respondent is a public administration
body, subject to a variety of constitutional
controls. To this end,
the provisions of section 195(1)(g) of the Constitution is relevant
and deserves mention;
“
[195](1)
– Public administration must be governed by the democratic
values and principles enshrined in the Constitution, including
the
following principles;
(g) Transparency
must be fostered by providing the public with timely, accessible and
accurate information.”
19.
In the matter of
President of RSA
v South African Rugby Football Union
2000 (1) SA 1
(CC)
at
para 133, the Constitutional Court held;
“
[133]
Public administration, which is
part of the executive arm of government, is subject to a variety of
constitutional controls. The
Constitution is committed to
establishing and maintaining an efficient, equitable and ethical
public administration which respects
fundamental rights and is
accountable to the broader public…”
20.
Mr Seima in argument, contended that
the respondents did not demonstrate egregious conduct on their part,
which warrants attraction
of judicial intervention. This is so
because the respondents demonstrated their seriousness in addressing
the problem by,
inter alia
,
migrating to the manual system, increasing staff capacity and
allowing staff to work overtime. In support of this contention,
he
relied on the matter of
Mwelase and Others
v Director-General, Department of Rural Development and Land Reform
and Another
2019 (6) SA 597
(CC)
. Mr van
der Merwe, on behalf of the applicant, contended that the
Mwelase
matter is distinguishable from the matter
in casu, and that I must not follow the principle laid down in
Mwelase
.
21.
I fully agree with the
argument made by Mr van der Merwe on behalf of the applicant, as the
applicant in casu does not seek the
appointment of a “special
master”, like the Court did in the
Mwelase
matter, but rather an order compelling the respondents to perform
their statutory mandate and to publish the Legal Gazettes A,
B and C
every Friday, without interruption or delay. The facts of this matter
in any event do not warrant such.
22.
The respondents concede
that there are problems encountered by the GPW, but they are working
on the problems.
FINAL
INTERDICT
23.
For the applicant to be
successful, it must prove the following;
23.1
the existence of a
clear right,
23.2
injury actually
committed or reasonably apprehended, and
23.3
lack of an adequate
alternative remedy.
24.
For the members of the
applicant to fulfill their statutory mandate, they rely on the first
respondent to publish the Legal Gazettes.
It is not disputed that
certain Legal Gazettes which were supposed to be published, were not
published by the first respondent
and in some instances, there were
delays in the publication of such Legal Gazettes.
25.
The members of the
applicant could not effectively serve their clients due to the
failure on the side of the first respondent. It
is also not in
dispute that in the process, they lost money as they had already paid
for quotations and the delay in publication
rendered these notices of
no use and effect.
26.
Despite numerous
letters exchanged between the applicant and the respondents, that
they are attending to the problem, and despite
the second
respondent’s assurances, the problems experienced by the
applicant since February 2021 still persist. In my view,
the
applicant was left with no alternative but to seek the court’s
intervention. I am therefore of the view that the applicant
met all
the requirements for the final relief they are seeking.
27.
Mr Seima’s
contention that the applicant, in their letter of demand threatened
to institute claims for damages for the service
failure of the
respondents, serves as an alternative remedy available to them has no
merit, in that even if this threat is executed,
it cannot remedy the
current situation faced by the applicant. The only remedy available
to the applicant is for the respondents
to build capacity so as to
perform according to the requests made by the applicant and other
members of the public.
COSTS
28.
In the matter of
Biowatch Trust v
Registrar, Genetic Resources and Others
2009 (10) BCLR 1014
(CC)
at
para 56 (also reported as
2009
(6) SA 232
(CC)
),
Sachs J observed;
“
[56]
I conclude, then, that the general
point of departure in a matter where the state is shown to have
failed to fulfill its constitutional
and statutory obligations, and
where different private parties are affected, should be as follows:
the state should bear the costs
of litigants who have been successful
against it, and ordinarily there should be no costs orders against
any private litigants
who have become involved. This approach locates
the risk for costs at the correct door - at the end of the day, it
was the state
that had control over its conduct.”
29.
The circumstances involving the matter in casu,
falls squarely within the principle laid down in the
Biowatch
matter. The respondents failed to fulfil
their statutory obligations and it was only the respondents who had
control over its conduct.
The respondents are as such liable for
costs of the application.
ORDER
30.
In the consequence, the following order is made;
1.
The application is considered urgent in terms of
Rule 6(12), the requirements of the rules of court in respect of
notice, service
and time periods being dispensed with and the
applicant’s departure therefrom is condoned;
2.
The respondents are ordered to ensure that the
Legal Gazettes A, B and C are published every Friday without
interruption or delay;
3.
The respondents are ordered to ensure that all
requests for quotations and publication of notices in the Legal
Gazettes A, B and
C shall be attended to promptly, and that such
notices shall appear in such Gazettes as requested, and;
4.
The respondents are ordered to pay the costs of
this application and two counsel, including the costs occasioned by
the employment
of senior counsel.
MJ
MOSOPA
JUDGE OF THE HIGH
COURT, PRETORIA
Appearances:
For
the applicant:
Adv M van der Merwe SC
Adv
B Winks
Instructed
by:
Jaco Roos
Attorneys Inc
For
the respondent:
Adv E Seima SC
Instructed
by:
The State Attorney, Pretoria
Date
of hearing:
24 June 2021
Date
of judgment:
Electronically transmitted