About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 1048
|
|
Justice Project South Africa v Registrar of Road Traffic and Others (30665/2016) [2019] ZAGPPHC 1048 (28 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE
:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NO
: 30665/2016
DATE
:
30665/2016
28/2/2019
In
the matter between
JUSTICE
PROJECT SOUTH
AFRICA
Applicant
and
THE
REGISTRAR OF THE ROAD TRAFFIC
AND
OTHERS
Respondents
JUDGMENT
UNTERHALTER,
J:
The applicant brings an
application for leave to appeal against the judgment that I rendered.
The applicant indicates that it
was not well served by its legal representatives and Mr Dembovsky
ably chose to represent the applicant
as I have already indicated.
The burden of his submission was
to suggest that the
abuses
that occurred in this matter, which are now candidly admitted by Mr
Dembovsky, were perpetrated by the legal representatives
of the
applicant and that this should be taken into account for the purposes
of the application for leave to appeal.
The factual basis for what is said
on this score is not before me on affidavit, but even taking the
submissions made from the bar
it is clear to me that the failures
that are alleged to have occurred cannot avail the applicant for the
purposes of an application
for leave to appeal. They would at best
have some relevance to the question of costs, which I decided on the
basis of the abuses
that had occurred and which, at least at the time
the costs orders were made, were not abuses the applicant sought then
to blame
on its legal representatives.
This means that on the facts that
I had available to me at the time that I made the costs order I was
in no position to differentiate
the conduct of the applicant's legal
representatives from those of the applicant. And therefore, to the
extent there is any relevance
to what Mr Dembovsky has pointed out
about his legal representation, it is unavailing for the purposes of
revisiting the question
of costs or inclining an appeal court to do
so.
At the heart of my judgment is the
question whether the secure mail that was utilized for the purposes
of effecting
service
under the Act was a species of registered mail. As I have already
pointed out in my judgment, the factual foundation for
reaching any
conclusion on this score is to be found in the answering affidavit of
the first respondent. Upon an application of
the principle in Plascon
Evans, which I do not consider that I wrongly applied in this case,
the differences between secure mail
and registered mail for
individual letters does not appear to me to undo the conclusion that
the secure mail, as I found, was indeed
a form of registered mail.
As I explained in my judgment, the
principal difference is simply as to how notification to collect is
given in respect of bulk
mail. This is entirely consistent with the
concept of registered mail which as the Constitutional Court has
recognized. has as
it's signal feature, the tracking of mail through
the post. That is what Parliament required and secure mail achieves
that objective,
as I found in my judgment.
I am unpersuaded by the arguments
now made to me again by Mr Dembovsky that I erred or that another
court will
20 reasonably find differently.
Mr Dembovsky emphasized in his
submissions to me that the consequences of the use of secure mail
could be significant for those
to whom such mail was directed and he
emphasized that the processes envisaged under the Act entailed time
periods within which
persons had to make elections that were of
consequence to their rights.
That may well be so, but the legal
question is different. It is whether Parliament when it stipulated
for the use of registered
mail could not have envisaged the system of
secure mail that the Post Office uses for the purposes of rendering
the service for
the bulk delivery of mail.
The fact that secure mail, as
applied by the Post O ff ice, may have certain imperfections and that
these imperfections may have
been cured during the course of this
litigation does not establish that even in its original form secure
mail was not registered
mail in its essential features, and, in
particular that it tracks mail through the system.
None of this suggests to me that
an appeal court would be likely to take a different view of the
matter to the one that I found
in my judgment.
Nor do I find that an appeal court
would consider that I erred by reference to further authorities
relied upon by Mr Dembovsky.
The first is the Sebolo judgment in the
Constitutional Court, where on very different facts, the Court
emphasized how the use of
registered mail could be utilized for the
purposes of service and indeed emphasized the very feature that I
have attached significance
to, which is, the tracking of the mail
through the system, which secure mail does, and thus achieves the
purpose that Parliament
had in mind.
Reference was also made in heads
of argument filed on behalf of the applicant to the case of Fines4U,
a judgment that I do not believe
was referred to me in the course of
the proceedings. But nevertheless on distinct facts, I find nothing
in that judgment that suggests
that there was an interpretation given
to the concept of registered mail which suggests another court has
differed from the approach
that I adopted on the facts before me.
That too is therefore unavailing for the purposes of persuading me to
grant leave to appeal.
I am
therefore of the view that, on the central question that I had to
consider, an appeal court would not differ from the view
that I came
to.
Mr Dembovsky also addressed me on
the question of relief. But again here too I find no answer to the
proposition that the compliance
relief that I found to be wanting
would be relief that an appeal court would be more inclined to give.
First because there is no
foundation for the interpretation as to
what registered mail is. But secondly because relief by way of
mandamus, as I pointed out
in my judgment, must seek to cure an
ongoing harm. That harm is confessedly cured as the applicant
indicated and thus there would
be no competence to grant that relief.
I heard no argument from Mr Dembovsky which would persuade me that I
was wrong in reaching
that judgment in respect of the relief.
As
to the other relief, that is to say the cancellation relief, Mr
Dembovsky explained in his replying submissions that it was not
simply those notices served between April 2010 and 2012 but notices
that had issued from the outset of the pilot project in 2008
and thus
no mootness question arose. But mootness is but one of the issues
that stood in the way of any cancellation relief being
granted. I
indicated that there were a number of reasons why cancellation relief
was not competent, not least because of the delays
that had occurred
in seeking the relief.
I
am equally unpersuaded that the relief failed to distinguish those
who had indeed been served and indeed may well have paid their
fines
from those that had not . This relief was a species of review and
there was no warrant to grant this kind of relief given
the consider
able time that had gone by, a delay for which the applicant is
entirely responsible whether through its legal representatives
or
otherwise.
I therefore must conclude that
there is little basis to suppose that an appeal court would take a
different view to the one that
I have taken in my judgment in respect
of the cancellation relief. Accordingly I cannot find on this ground
either that there is
a basis for allowing the application for leave
to appeal.
I turn finally again to the
question of costs. Mr Dembovsky, apart from referring to the
difficulties that he had with the legal
representation that the
applicant received was unable to point to an error that I made in the
exercise of my discretion concerning
whether Biowatch should be
applied as a form of qualified immunity from costs.
The central thrust of the point
that was made in the written heads was to suggest that I made no
finding of abuse. That is not the
position that emerges from the
judgment. I was unwilling to dismiss the application solely on the
grounds of abuse and that was
in the exercise of my discretion and
for the reasons that are reflected in the judgment. But it does not
mean, nor entail , that
I did not find that abuse had occurred on the
part of the applicant in the manner in which the litigation had been
c on duct ed.
Mr Dembovsky to his credit now recognizes that there
was such abuse and says that it is attributed to the quality of his
legal
r ep resent at ion. In coming to the decision I did as to costs
I permissibly considered the abuse and chose to make a costs order
that was reflective of what I thought was some recognition of that ab
use. But a costs order that equally did not tax the applicant
as
might have been the case were it an ordinary commercial litigant.
I can find no reason to suppose that an appeal
court would consider that the discretion I have in respect of costs
was not judicially
exercised.
ORDER
The result is that this
application cannot succeed and it is dismissed with costs.
UNTERHALTER, J
JUDGE
OF THE HIGH COURT
DATE:
..............................