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[2019] ZAGPPHC 56
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Central African Road Services v The Minister of Transport and Another (62873/2014) [2019] ZAGPPHC 56 (28 February 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER
JUDGES
(3)
REVISED
Case number: 62873/2014
Date: 28/2/2019
In
the matter between:
CENTRAL
AFRICAN ROAD SERVICES
APPLICANT
Vs
THE
MINISTER OF
TRANSPORT
FIRST RESPONDENT
CROSS-BORDER
ROAD TRANSPORT
AGENCY
SECOND RESPONDENT
JUDGMENT
[1] The
Applicant, Central African Road Services (Pty) Ltd (CARS), brought an
application
reviewing and setting aside Government Notice No R 342
published on 6 May 2014 in Government Gazette No 37614, in terms of
which
the First Respondent (the Minister) promulgated Regulations
under the Cross-Border Road Transport Amendment Regulations (the 2014
Regulations). CARS also sought a declaratory order that the 2014
Regulations are inconsistent with the Constitution.
[2] Although
the papers contained a much broader dispute CARS at the hearing
Indicated that only
two issues remained for determination. The first
is whether the Minister failed to consult with the Board at all, or
failed to
do so properly , as required by section 51(a) of the Act.
The second was a challenge to the new regulations7(5) and (6). They
provide
for annual fee increases to counteract the effects of
inflation. CARS contended that they are
ultra vires
and unduly
vague.
BACKGROUND
[3] The
Second Respondent is the Cross-Border Road Transport Agency (the
Agency), which
is a juristic person, established in terms of section
4 of the Cross-Border Road Transport Act, 4 of 1988 (the Act).
[4] The
Agency is responsible for regulating cross-border transport. Section
4 of
the Act states as follows:
"4
.
Establishment
of Agency
(1)A juristic person,
known
as
the
Cross-Border
Road Transport
Agency, is hereby established.
(2)
Subject to the provisions of this
Act, the Agency is capable in law of instituting, defending
or
opposing legal proceedings of
whatever nature, of purchasing or otherwise acquiring, holding and
alienating or otherwise disposing
of movable or immovable property or
any other real right or interest, of entering into contracts or doing
such other things
as
juristic
persons may by law perform and do.
(3)
The Agency may perform all such acts
and do such things as are reasonably necessary for or ancillary,
incidental or supplementary
to the performance of its advisory,
regulatory and law enforcement functions
es
contemplated in this Act.
(4)
The Agency may collect toll on behalf
of the South African National Roads Agency Limited in terms of an
agreement, between the Agency
and the South African National Roads
Agency Limited, concluded under section 28(1)(a) of the South African
National Roads Agency
Limited and National Roads Act, 1998 (Act
7
of 1998).
[5] The
Agency's primary source of revenue is the fees it charges for
permits. The Minister
prescribes the fees by regulations made in
terms of s 51(a) of the Act. The current fees are still those
prescribed by regulations
made in 2003
(the
2003 Regulations).
[6] In
2011, the Minister sought to increase the Agency's fee structure. The
Minister
did so on 31 March 2011 by the promulgation of the Cross
Border Road Transport Amendment Regulations
("the
2011 Regulations").
[7] CARS
challenged the validity of the 2011 Regulations. On 15 February 2013,
the Court
declared the 2011 Regulations invalid on procedural
grounds. Makgoka J (as he then was) suspended the order of invalidity
for a
period of six months to allow the Agency and the Minister to
correct the defects.
[8] On
7 March 2013, CARS lodged an application for leave to appeal and the
Agency sought
to cross-appeal. The Minister and the Agency apparently
mistakenly believed that they could not promulgate new regulations,
until
the appeals were finally disposed of. They therefore allowed
the six-month period of suspension to lapse.
[9] CARS
applied to this court for an order declaring that, on expiry of the
period of
suspension, the 2011 Regulations had been invalidated from
the outset. On 1 November 2013, Heaton-Nicholls J declared that the
2011 Regulations were invalid with full retrospective effect, and
that the Agency was only entitled to collect tariffs under the
original 2003 Regulations.
[10] The
Constitutional Court granted the Agency leave to appeal against the
order of Heaton-Nicholls J.
The Constitutional Court however
dismissed the Agency's appeal on ·12 May 2015.
[1]
[11] The 2011
Regulations were thus invalidated with full retrospective effect. The
Agency consequently
became liable to refund operators who paid
tariffs in terms of the 2011 Regulations. This liability according to
the papers amounts
to three hundred and nineteen million rand.
[12] As a result
of the aforesaid the Agency and the Minister commenced a fresh
process to enact regulations
to increase the Agency's permit fees.
The Minister promulgated these Regulations on 6 May 2014 (the 2014
Regulations).
THE
CONSULTATION REQUIREMENT
[13] CARS at the
hearing stated that the Minister failed to comply with sec 51(1)(a)
of the Act which
says that the Minister may determine the Agency's
permit fee structure
"after
consulting the Board".
[14] Section 51
reads as follows;
"51
Regulations
The Minister, after consulting
the Board, may make regulations, not inconsistent with this Act,
relating to
-
(a)
The fee structure for permits and
other fees;
(b)
The consignment notes and passenger
lists; and
(c)
Anything that must or may be
prescribed in terms of this Act.''
[15]
In argument it was made clear by Mr Budlender, on behalf of CARS,
that the parties were in agreement
pertaining to what the law
requires with reference to a proper consultation, the parties
however, cross swords on whether those
requirements were met. I will
first deal with the legal principles before applying it to the facts
of this case.
[16]
In
President of the Republic and Others [Reinecke]
[2]
the
following was said regarding a requirement to act after consultation:
"[W]here
the law requires
a
functionary
to act in consultation with another functionary, this too means that
there
must
be
concurrence between the functionaries, unlike the situation
where
a
statute
requires a functionary to act after consultation with another
functionary. where this requires no more than that the ultimate
decision must be taken in good faith. after consulting with and
giving serious consideration to the views of the other
functionary.
[3]
[Court's
emphasis]
[17] In
Electronic Media Network Limited and
Others v E-TV (Pty) Ltd
[4]
the Constitutional Court dealt with the question of what would
constitute proper consultation and held that:
"...
Consultation,
as distinct from negotiations geared at reaching an agreement, is not
a
consensus
seeking exercise. Within the context of national policy development
it must mean that a genuine effort is being made to
obtain views of
industry or sector roleplayers and the public. In other words, a
genuine and objectively satisfactory effort must
be made to create
a
platform
for the solicitation of views that would enable
a
policymaker
to appreciate what those being consulted think or make of
the
major and incidental aspects of the issue or policy under
consideration. People or entities must be left to express themselves
freely on as wide a range of issues, pertinent to
a
policy
proposal, as possible. The standpoints of interested parties, who
want to have their views taken into account, must thus
be allowed to
reach
a
policymaker.
But, consultation fulfils a role that is fundamentally different from
negotiation.”
[5]
[18] The
following principles were laid down in
Electronic
Media Network:
a.
The
duty to consult
"requires
no more than that the views of interested persons be obtained. This
is to be done by publishing the text of the draft
policy by notice in
the Gazette."
[6]
b.
It
is not
"intended
to allow parties to exhaustively discuss or iron out divergent views
until some mutually acceptable basis to proceed
from"
[7]
is
agreed on.
c.
The
parties who must be consulted
"only
have the right to ensure that their voices are heard during the
consultation period before
a
final
policy-determination is made.
"
[8]
Those
interested parties ought to respond to the invitation to give input
by speaking exhaustively when given the opportunity.
[9]
d.
It
was made clear that the key question is whether interested parties
were afforded the opportunity to be heard. It is not required
that
they avail themselves of this opportunity.
[10]
[19] Furthermore
in the matter of
Minister of Home
Affairs & Others v Scalabrini Centre, Cape Town & Others
[11]
it was stated that:
"[C]onsultation
entails 'a genuine invitation to give advice and a genuine receipt of
that advice', it is 'not to be treated
perfunctorily or as a mere
formality', and that engagement after the decision-maker has already
reached his decision, or once his
mind has already become 'unduly
fixed', is not compatible with true consultation."
[12]
[20] There does
not seem to exist any prescribed form that the consultation process
must take.
In Tloulama and Others v
Speaker of the National Assembly and Others
[13]
it was held that:
a.
"The
essence of consultation is the communication of a genuine invitation,
extended with a receptive mind, to give advice."
[14]
b.
The
consultation may take several possible forms:
"It
may be formal or informal, oral or in writing. The essence of
consultation is a communication of ideas on a reciprocal
basis. The
procedure is in the discretion of the person who has to consult. The
procedure must, however, allow reasonable opportunity
to both sides
(the consulting and the consulted parties) to communicate effectively
and achieve the purpose for which prior consultation
is
prescribed."
[15]
[21]
In
Maqoma v Sebe NO and Another
[16]
Pickard J held that:
"The
word "consultation" in itself does not presuppose or
suggest a particular forum, procedure or duration for such
discussion
or debate. Nor does it imply that any particular formalities should
be complied with. Nor does it draw any distinction
between
communications conveyed orally or in writing. What it does suggest is
a communication of ideas on a reciprocal basis
[17]
."
[22] It
was argued by counsel for the Agency, in my view correctly, that from
the above the following
principles crystallised:
a.
The
consultor is not required to obtain the concurrence of the consultee.
It is merely required to give serious consideration to
the
consultee's views.
b.
The
consultor need do no more than invite the consultee to make
representations and, if the latter does so, to give serious
consideration
to them. If the consulter invites the consultee to make
representations, but the latter fails to do so, the consulter need
not
take the matter any further.
c.
The
consultation is not required to take any particular form. The
requirement of consultation does not mean that the consulter and
consultee have to meet. They can for instance engage in writing or
via emissaries. Their form of communication is flexible.
[23] One needs to
apply the aforementioned principles to the facts of this case in
order to determine
whether there was compliance with sec 51(1) of the
Act. Seeing that the Minister promulgated the 2014 Regulations in
response to
the Court's declaration of invalidity of the 2011
Regulations, The consultation between the Board and the Minister
prior to the
enactment of the 2011 Regulations therefore remained
relevant. As a result the proclamation of the 2014 Regulations, must
be seen
against the broader background which ultimately led to the
promulgation of the 2014 Regulations.
[24] The process
that led to the enactment of the 2011 Regulations was, that the
Agency, the Board
and the Minister embarked on lengthy consultation
processes, beginning in 2010, to determine and agree on a method to
turn the
Agency around. The Board developed funding scenarios and
presented those funding model scenarios to the Minister. The Minister
gave input to the Board on the proposed funding models.
[25] On 28 August
2010, the CEO of the Agency met with the Deputy Minister of Transport
informing him
that as part of its business processes planning, the
Agency had concluded that a two hundred million rand cash injection
would
be required over the following three years in order to put it
on the path to recovery.
[26] On 23
September 2010, the CEO of the Agency made a presentation to the
Minister of Transport,
setting out the functions of the Agency and
explaining the funding challenges 'faced by the Agency. On 1 November
2010, the CEO
of the Agency presented a memorandum to the Minister
motivating at length for the increases proposed in the 2011
Regulations. The
Minister approved the motivation on 17 November
2010.
[27] After the
2011 Regulations were struck down, a process followed which led to
the promulgation
of the 2014 Regulations. On 19 November 2013, the
Department of Transport published a notice requesting comments on a
draft of
the 2014 Regulations.
[28] The following
stakeholders submitted comments in response:
a. CARS
b. Road
Freight Association
c. South
African Bus Operators Association
d. South
African Chamber of Commerce and Industry
[29] On 10 April
2014, the Director General of Transport sent a memorandum to the
Minister. The memorandum
-
a. Informed the Minister
of the history necessitating the enactment of the 2014 Regulations,
including the
litigation history;
b. explained to the
Minister the impact on the Agency's operations arising from the full
retrospective effect
of the orders of the High Court;
c.
expressly
informed the Minister that the full retrospective
effect
of the judgment would
"clearly
render the Agency, both technically and commercially insolvent”;
d. informed the Minister
of the financial consequences for the Agency if the 2014 Regulations
were not approved,
including that the Agency would only be able to
sustain itself through its cash reserves for another 10 months;
e. set out the
necessity of finalising and approving the 2014 Regulations to allow
the Agency to continue
to discharge its legislative mandate and to
continue to operate as a going concern.
[30] On 16 April
2014, the Department of Transport held a stakeholder consultation
with all parties,
including CARS, that commented on the Draft
Regulations.
[31] On 23 April
2014, the Board met. The minutes of this meeting record that the
Board had already
been interacting with the Minister concerning the
2014 Regulations by the time that the meeting occurred. The following
was stated
in the minutes
"the
Minister
was
made
to appreciate the importance of finalising the draft 2013 Regulation
prior 07 May 2014”.
The Board
anticipated a further engagement with the Minister at a meeting which
was to be held on 29 April 2014. The minutes also
r veal that the
Board considered the comments of stakeholders and resolved to develop
different scenarios.
[32] On 29 April
2014, the Board held the further meeting to consider the draft
Regulation, but the
Minister was unable to join that meeting and
requested that two board members and the company secretary met with
her at her residence
later on that same day. The Chairperson, CEO and
company secretary were authorised to meet with the Minister on behalf
of the Board.
A document was prepared for the meeting, setting out
the different scenarios. There is no indication that the Board
resolved to
accept the document or to propose a certain scenario to
the Minister, but it is clear that the document was prepared for the
meeting.
[33] On 29
April 2014, the Minister met with the emissaries of the Board. At
that meeting the Chairperson
informed the Minister that the Board had
considered reducing the tariff and had asked the management of the
Agency to develop various
scenarios indicating possible benefit to
the industry. The Chairperson presented the various scenarios to the
Minister and recommended
scenario seven. The Minister noted the
feedback and requested that the revised draft Regulations with a
motivation be submitted
to her for her consideration and final
approval.
[34] The
scenarios which were put to the Minister, and which were set out in
the papers were the following:
1.
Scenario - discounting the rates at
15%
This will result in the Agency
reporting a decrease of R21.9m on permit revenue from R167.9m to
R146m, with an expected deficit
of R27.6m and a projected positive
cash balance of R42.6m
2.
Scenario - discounting the rates at
10%
This will result in the Agency
reporting a decrease of R15.3m on permit revenue from R167.9m to
R152.5m, with an expected deficit
of R20.9m and a projected positive
cash balance of R49.3m
3.
Scenario- discounting the rates at 5%
This will result in the Agency
reporting a decrease of R8.4m in revenue from R167.9m to R159.5m,
with an expected deficit of R14.9m
and a projected positive cash
balance of R56m by the end of March 2016.
4.
Scenario
- reducing application fees on passenger Operators to R160 and on
freight to R500. (from R. 570 and R. 760)·
This will result in the Agency
reporting a decrease of R12.9m on permit revenue from R167.9m to
R155m, with an expected deficit
if R17m and a projected positive cash
balance of R52m.
5.
Scenario
- reducing application fees on passenger Operators to R160 and on
freight Operators to R550 across the board
This will result in the Agency
reporting a decrease of R9.9m on permit revenue from R167.9m to
R158m, with an expected deficit if
R15m and projected positive cash
balance of R55m.
6.
Scenario
., .. reducing . application fee on freight to R570 and leave
passenger April 2011 rates as proposed
This will result in the Agency
reporting a decrease of R8.2m on revenue from R167.9m to R159.7m,
with an expected def1c1t 1f R13.9m
and a projected positive cash
balance of R56m.
7.
Scenario
- reducing application fee on passenger Operator’s to R160 and
R570 on freight across the board.
This will result in the Agency
reporting a decrease of R8.2m on revenue from R·167.9m to
R159.7m, with an expected deficit
of R13.9m and a projected positive
cash balance of R56.3m
[35] On 30 April
2014, the Director-General of Transport submitted a further
memorandum to the Minister.
This memorandum demonstrated that the
Board's emissaries had consulted with the Minister on 29 April 2014
and had considered the
Minister's inputs into the 2014 Regulations.
The Minister considered the comments made by stakeholders, as well as
the Agency and
the Department's responses to those comments. The
Minister considered the Agency's report on the consultation meeting
that it held
with stakeholders. On 1 May 20·14 , the Minister
approved the Regulations, having considered the memorandum.
[36] It mw
t be inferred, in the light of all the facts, that the Board mandated
the emissaries to speak
on its behalf to the Minister. This is
confirmed by a note made by Ms Mabe on 30 April 2014, where she
reported to the Board. This
note indicated that the Chairperson
informed the Minster that the Board had considered reducing the
tariff and had requested the
Agency to develop different scenarios.
It was also noted that the Chairperson presented all the scenarios
and that she recommended
scenario 7. It is also important to note
that the Minster noted the feedback, requested the Draft Regulations
together with the
motivation indicating the amendments that have been
affected to be submitted to her for her consideration and approval.
[37] After
this the Director General's final report to the Minster followed. The
purpose of this
note was to update the Minster on the consultation
process followed and he requested the Minister to consider and
approve the amendment
to the Regulations.
[38] Mr
Budlender argued that the aforesaid process did not constitute proper
consultation as
required by the Act, as there is no indication that
the Chairperson conveyed the Boards' views, he argued that she seemed
rather
to have conveyed her own views. He argued that the Board had
to decide what its views were and that should have been conveyed to
the Minister. He based this argument on the fact that sec 51 required
consultation with a specific entity, the Board. Mr Trengrove
SC, on
behalf of the Agency argued however that the Minister was required to
do no more than to afford the ,L\gency an opportunity
to make
representations to the Minster and this did happen. He argued that
the Minister invited the Board to send its emissaries
to convey its
views.
[39] It
would seem to me that if the principles that crystallised from the
aforementioned authorities
are analysed , that no more is required
than an opportunity to convey views should be afforded and that these
views should be awarded
fair consideration.
[40] In my
view the whole process since the initial consideration of the 2011
Regulations, right
through to the promulgation of the 2014
Regulations illustrated that there was indeed proper consultation
between the Minister
and the Board, as required by law. The fact that
the Minister only met with emissaries of the Board on 29 April, is
not fatal,
as the facts indicate that there was significant
interaction between the Minister and the Board since 2010, and
specifically with
reference to the 2014 Regulations. If one considers
the case law and principles pertaining to what would constitute
proper consultation
and apply it to what actually occurred here, the
unavoidable conclusion is that the Minister complied fully with the
consultation
requirement as set out in section 51 of the Act.
INFLATIONARY
FEE INCREASES
[41] The
second point raised by CARS was that the inflationary related fee
increases as set out
in Regulation 7(5) and (6) are
ultra
vires
with sec 51(1) (a) and
inconsistent with sec 33 of the Constitution. It was also argued that
these regulations were vague.
[42] Regulations
7(5) and (6) of the 2014 Regulations provide for annual inflationary
fee increases
as follows:
"7(5) The amount of an application fee
as prescribed in Schedule 1 and a permit fee as prescribed in
Schedule 2 will escalate
each year on 1 April by an amount that is in
line with the year-to-year increase in the official Consumer Price
Index and rounded
off to the nearest ten South African Rand.
7(6) The Agency must before 1
April of the year in question revise Schedule 1 and Schedule 2 in
accordance with sub-regulation (4)
[sic] and publish any proposed
adjustment to a prescribed application fee and permit fee in the
Gazette."
[43] CARS
challenged these sub9 regulatiot1s on two grounds. The first was that
it is not competent
for the Minister to legislate for future changes
in the permit fees. CARS alleged that the Minister acted
ultra
vires
with section 51(a) of the Act,
and inconsistent with section 33 of the Constitution. Mr Budlender
argued that the Minster cannot
put in place a regulation which will
last forever, until it is amended, He argued that in doing so the
Minster will no longer be
exercising a discretion. He furthermore
argued that sec 33 of the Constitution does not permit the Minster to
act in this way.
He said that the duty on the Minster has to be
exercised from time to time. The argument was that the Minster is
required to apply
his/her mind from time to time as to the
appropriate fees.
[44] Section
51(a) empowers the Minister to make regulations
"relating
to the
fee
structure for permits and other fees”.
There
is nothing in this empowering provision that limits the Minister to
the current fees, or to indicate that the Minister has
to exercise
his/her discretion on a yearly basis, or within certain time
intervals. All that is required is that the Minister exercise
a
discretion prior to the Regulations' promulgation.
[45] It is
also unclear on what basis it can legitimately be argued that the
promulgation of
the 2014 Regulations is inconsistent with section 33
of the Constitution
[18]
.
The fact that the Minister exercised her discretion to link the fee
increase to the CPI does in my view not result in a contravention
of
sec 33. The fact that fee increases are calculated in this way, do
not imply that the Minister will not apply her mind from
time to time
or that she may not amend these Regulations in due course, if
circumstances require it. Ironically the tariffs that
apply at this
point in time are those that were determined during 2003, a fact
which resulted in serious financial problems for
the Agency.
[46] Regulations
7(5) and (6) do not provide for any real increases in the prescribed
fees, therefore
the complaint that the regulations result in an
automatic increase does not hold water. They merely cater for the
loss in the value
of money due to inflation over time. Their only
purpose and effect are to maintain the real value of the fees at
their current
level. There is no need for any fresh exercise of
discretion by the Agency or the Ministf.lr to do so in the light of
the link
to the CPI. The mechanism chosen must clearly be competent,
as it only links the adjustment to the CPI, which may or may not
change
on a year on year basis.
[47] The
second ground of attack is that regulations 7(5) and (6) are void for
vagueness. CARS
contended that the Regulations mean that the annual
increase must be equal to the rise in the CPI over the year up to 1
April every
year, but must be published before that date. That is not
possible, so it was argued, because one does not know before 1 April
precisely what the increase will be. The argument was that the
regulation either gives the Agency some discretion, on how to pick
a
date, which will be
ultra vires,
or
it does not give a discretion, which implies that no one quite knows
what it means.
[48] However
the regulations do not require the fee increase to be determined on
the basis of
the increase in the CPI up to 1 April every year. They
merely say that the fees increase
"by
an amount that
is
in
line with the year-to-year increase"
in
the CPI and that the Agency must determine and publish the increase.
Counsel for the Agency argued, in my view correctly, that
the Agency
may in other words determine the increase on the basis of the
increase in the CPI, over the year, up to the date of
its
determination, albeit before 1 April. The result is that the Agency
will then have to publish the increase so determined, before
it comes
into effect on 1 April.
[49] One
needs to establish whether the
"void
for vagueness"
doctrine find
application as argued by CARS. In
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others vs Chief
Executive Officer of the Social Security Agency and Others
[19]
the Constitutional Court restated the reason for the inclusion of
vagueness as a ground of review under PAJA in
Allpay.
[20]
The requirement that legislation and administrative action be clear
and ascertainable serves the following essential purpose:
"'[L]aws must be written
in
a
clear
and accessible manner. What is required is
reasonable
certainty and not perfect lucidity
.
The doctrine of vagueness does not require absolute certainty of
laws. The Jaw must indicate with reasonable certainty to those
who
are bound by it what is required of them
so
that they may
regulate their conduct accordingly."
[21]
[Court's
emphasis]
[50] The
2014 Regulations do not fall foul of the constraint set out
in
AllPay
[22]
as the Agency is required to determine the increase so that it is
"in
line with the year to year increase"
in
CPI over the year up to 1 April, and to publish its determinations
before 1 April. Furthermore once the Agency publishes its
determination, all those affected by it will immediately know what is
required of them and will be able to regulate their conduct
accordingly. There is accordingly no unlawful delegation of the
Minister's discretion to the Agency, nor any material uncertainty
which would render the regulations void for vagueness.
[51] As a
result I am of the view that both the challenges raised by CARS are
without merit.
[52] As a
result the application should be dismissed.
COSTS
[53] CARS
argued that if they fail they should not be burdened with costs on
the principles set
out in
Biowatch
Trust v Registrar Genetic Resources and Others
[23]
the principles set out in this matter, regarding litigation relating
to Constitutional matters are now trite. The starting point
should be
the nature of the issues before
Court
[24]
.
It was argued by the Respondents
that due to the fact that CARS was pursuing a commercial interest and
is capable of paying the
costs if it did not succeed, the principles
of
Biowatch
should
not apply.
[54] In
this regard the following that was stated in
Biowatch
is of importance:
[17]
...
Thus, litigants
should not be treated disadvantageously in making costs and related
awards simply because they are pursuing commercial
interests and have
deep pockets. Nor should they be looked upon with favour because they
are fighting for the poor and lack funds
themselves. What matters is
whether rich or poor, advantaged or disadvantaged, they are asserting
rights protected by the Constitution
[25]
.
[55] It was
further stated :
[18] ...
that the ability to finance the litigation was not a relevant
consideration in making a costs order.
It
held that the general rule in constitutional litigation that an
unsuccessful litigant ought not to be ordered to pav costs to
the
State should not be departed from simply because of a perceived
ability of the unsuccessful litigant to pay.
..
.
[26]
'
[Court's emphasis].
[56] And
further:
"[20]
Nevertheless, even allowing for the invaluable role played by public-
interest groups in our constitutional democracy,
courts should not
use costs awards to indicate their approval or disapproval of the
specific work done by or on behalf of particular
parties claiming
their constitutional rights.
It
bears _repeating that what matters is not the nature of the parties
or the causes they advance but the character of the litigation
and
their conduct in pursuit of it. This means paying due regard to
whether it has been undertaken to assert constitutional rights
and
whether there h_ a been impropriety in the manner in which the
litigation has been undertaken
Thus,
a party seeking to protect its rights should not be treated
unfavourably as a litigant simply because it is armed with a large
litigation war-chest, or asserting commercial, property or privacy
rights against poor people or the State. At the same time
public-interest
groups should not be tempted to lower their ethical
or professional standards in pursuit of a cause. As the judicial oath
of office
affirms, judges must administer justice to all alike,
without fear, favour or prejudice
[27]
.”
[Court's emphasis]
[57] In the
light of the aforesaid I am of the view that the principles in
Biowatch
are
indeed applicable. CARS instituted action in order to pursue its
constitutional rights, and as a result, and in accordance with
Biowatch
a
costs order against them would be inappropriate.
[58]
Consequently i make the following order:
a). The
application is dismissed.
b)
Each party to pay its own costs
R G TOLMAY
JUDGE OF THE HIGH COURT
DATE
OF HEARING:
3 DECEMBER 2018
DATE
OF JUDGMENT:
28 FEBRUARY 2019
ATTORNEY
FOR APPLICANT:
MARIUS SWART ATTORNEYS
ADVOCATE
FOR APPLICANT:
ADV S BUDLENDER
ATTORNEY
FOR 1
ST
RESPONDENT:
STATE ATIORNEY
ADVOCATE
FOR 1
ST
RESPONDENT:
ADV V S NOTSJE (SC)
ADV J A MOTEPE (SC)
ATTORNEY
FOR 2
ND
RESPONDENT:
SAVAGE JOOSTE & ADAMS
ADVOCATE
FOR 2
ND
RESPONDENT:
ADV W TRENGROVE (SC)
ADV N FERREIRA
[1]
Cross-Border Road Transport Agency v Central African Road Services
2015 (5) SA 370
(CC)
[2]
President of The Republic of South Africa and Others v Reinecke
2014
(3) SA 205
(SCA), [Reinecke]
[3]
Reinecke, supra, at para 9, fn 11 quoting McDonald and Others v
Minister of Minerals and Energy and Others 2007 (5) SA 642 (C).
[4]
Electronic Media Network Limited and Others v e.tv (Pty) Limited and
Others (CCT140 /1 6; CCT 14 1 /16 ; CCT145/16)
[2017] ZACC 17
(8
June 2017) (Electronic Media Network)
[5]
Electronic Media, supra, at para 37.
[6]
Electronic Media Network at para 42
[7]
Electronic Media Network at para 42
[8]
Electronic Media Network at para 42
[9]
Electronic Media Network at para 43
[10]
Electronic Media Network at para 44-47
[11]
Minister of Home Affairs and Others v Scalabrini Centre, Cape Town
and Others
2013 (6) SA 421
(SCA);
[2013] 4 All SA 571
(SCA), at
paras 42-43.
[12]
Minister of Home Affairs, supra, at paras 42-43
[13]
2016 (1) SA 534
(WCC) (Tloulama)
[14]
Tlouamma at para 92
[15]
Tlouma at para 92
[16]
Maqoma v Sebe NO and Another 1987(1) SA483 (CK) (Maqoma)
[17]
Maqoma 490 C
[18]
Just administrative action
33
(1) Everyone has the right
to administrative
action that is lawful, reasonable and
procedurally
fair
(2)
Everyone whose rights have been affected by administrative
actions 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 a duty on the
state to give effect to the rights in sub-section (1) and (2),
and;
(3) promote an efficient administration
(c)
[19]
Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security
Agency and Others
2014 (1) SA 604
(CC) ("Allpay")
[20]
Allpay paras 87-88
[21]
Allpay at para 87, citing Affordable Medicines Trust and Others v
Minister of Health and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC) at para 108
[22]
supra
[23]
CCTS0/08
[2009] ZACC 14
, 2009(6) SA 232 (CC) [Biowatch]
[24]
Biowatch, supra, par 16
[25]
Biowatch, supra. Par 17
[26]
Biowatch, supra
[27]
Biowatch supra, par 48