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[2019] ZAGPPHC 101
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South African Bureau of Standards v Public Protector and Another (34290/15Â ) [2019] ZAGPPHC 101 (27 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 34290/15
27/3/2019
In
the matter between:
SOUTH
AFRICAN BUREAU OF STANDARDS
Applicant
and
THE PUBLIC
PROTECTOR
First
Respondent
JAMES THEOPHILLUS
PRABUDASS
Second
Respondent
JUDGMENT
POTTERILL
J
[1]
The South African Bureau of Standards [the SABS] is applying for the
reviewing and setting aside of
the Public Protector’s Report
titled “
Regulating
Justice; a report on an investigation into a complaint against the
South African Bureau of Standards relating to the
withdrawal of a
permit for the manufacturing and sale of motor vehicle number plates”
[report
number 4 of 2014/2015] [the Report]. Although condonation was sought
for bringing the review not within the 180 days required
by The
Promotion of Justice Act 3 of 2000 [PAJA], it is now common cause
that the decisions of the Public Protector is not subject
to review
in terms of PAJA.
[1]
The
decision of the Public Protector is however subject to the principle
of legality; rationality pertaining to procedure
and substance.
[2]
All condonation applications were granted or where unopposed at the
stage of the hearing.
Common
cause factual background
[2.1] I find
it necessary to set out a short factual background due to the long
delays throughout the matter and to
give necessary context. I
do not find it necessary to repeat what the purpose and power of the
Public Protector or the SABS
is; the relevant legislation
defines same.
[2.2] The second
respondent [Prabudass] was in the business of manufacturing
registration number plates. He did it under the
name of two entities,
but for purposes hereof I will refer to Prabudass as the entities,
because nothing turns hereon.
[2.2] On 2 March
1998 Prabudass was issued with a SABS report confirming that his
registration number plates complied with
the compulsory specification
for retro-reflective number plates for motor vehicles. This was
necessary because at that time under
the Road traffic Act 93 of 1996,
regulation 35, it was compulsory for a number plate to bear a
certification mark; practically
thus a registration number plate had
to have an issued SABS mark.
[2.3] On 17 March
2000 the SABS confirmed that Prabuduss’ silk-screen method of
manufacturing registration plates were
acceptable in terms of SABS
1116, provided all aspects thereof where complied with.
[2.4] During 2001
Prabudass lodged a complaint [the first complaint] of
maladministration with the Public Protector against
the SABS. The
complaint related to the SABS’s indifference of enforcing the
set standards, SABS 1116-4:1996, in respect of
the acrylic number
plates manufactured by means of the “
kiss-cut”
method. The SABS disputed any suggestion that it failed to discharge
its regulatory functions. Neither had it failed to enforce
compliance
with the specifications provided for in SABS 1116-4:96. The Public
Protector made no finding on this first complaint
due to a break in
communication with Prabudus and “
put the file on hold.”
[2.5] In 2001
Prabudass had also lodged a complaint [the second complaint] at the
provincial office of the Public Protector
in Kwa-Zulu Natal.
This complaint referred to the withdrawal of the SABS mark to his
registration number plates. Prabaduss
received this notice with
effect from 18 September 2000. It reads as follows:
“
I hereby wish
to advise that
due
to product that clearly does not comply
with the SABS Specification or the compulsory specification VCB062
your permit is hereby withdrawn.
Please be advised that
you may not place the SABS logo on any Number Plates effective
immediately. In terms of the compulsory
specification VCB062
you may not manufacture a Number Plate that does fully comply with
SABS 111B-IV. Failure to comply with
this will result in Legal
Action.”
[2.6] The Public
Protector consolidated the two complaints. The reason for this was
that upon investigation the Public Protector
expected that the
outcome of the second complaint would be related to the issues raised
in the first complaint. “
This
was because Prabudass, with the second complaint, had alleged that
there was a nexus between the withdrawal of his manufacturing
permit
and the complaints raised by him with SABS regarding the kiss-cut
methodology. Prabudass had suspected that the withdrawal
of the
manufacturing permit was linked to the fact that he had vociferously
and actively engaged senior officials at SABS with
his concerns on
the kiss-cut method of number plate manufacturing. He was also
concerned that he was being perceived as a
threat to existing
stakeholders in the number plate industry owing to his design and
development of a manufacturing process in
competition with
established manufacturers who were using the wanting kiss-cut
methodology to manufacture acrylic number plates.”
[3]
[2.7] Just as with
the first complaint the second complaint was also just filed. This
was because upon receipt of the information
and feedback from the
SABS further feedback was required from Prabudass. Prabudass failed
to respond to the Public Protector’s
request and the Public
Protector could make no findings.
[2.8] However, in
February 2012, pursuant to Prabuduss contacting the Public Protector,
both complaints were revived. The
Public Protector exercised her
discretion to entertain these complaints despite the expiry of 11
years from which the second complaint
was lodged and despite
s6(9)
of
the
Public Protector Act 23 of 1994
[the PP Act] which reads as
follows:
“
Except where
the Public Protector in special circumstances, within his or her
discretion, so permits, a complaint or matter referred
to the Public
Protector shall not be entertained unless it is reported to the
Public Protector within two years from the occurrence
of the incident
or matter concerned.”
[2.9] The
motivation for the exercise of the discretion is provided in para 2.7
and 2.8 of the provisional report and is set
out identically in paras
2.2.4 and 2.2.5 of the final report: “…
it was
decided to re-open the complaints after it was established that the
events that led to the complaints matter had such a psychological
effect on the Complainant that he subsequently went into a state of
severe depression. The complainant found it difficult to continue
with his ‘normal’ life, and to find the necessary resolve
and will to go through the mental challenge of what was at
that time
a drawn out dispute with the SABS. The Complainant wanted to resume
his business interests in the manufacturing and distribution
of motor
vehicle number plates … He discovered that the earlier events
had a lasting effect on his reputation and credibility
and hindered
his chances of being accepted as a legitimate role-player and
contributor to the number plate industry. The only way
to continue
with his goal … was to achieve a conclusion of the matters
that he had originally raised with the Public Protector.”
[2.10] On 13 March 2013
the Public Protector released the provisional report; “
Lasting
Consequences.”
In this report the Public Protector
indicated her intention on finding on the second complaint that:
“
the process
followed by the SABS to withdraw the permit was procedurally unfair
because the complainant was not afforded of the
right to be heard,
nor was he advised of the fact that he had the right to submit
written representations to the SABS’ Chief
Executive Officer.
Furthermore the withdrawal of the permit was unlawful because it did
not comply with the Regulations issued
in terms of the
Standards Act
29 of 1993
. Nor did the conduct of the SABS comply with the
requirements for a fair administrative process as required by
s33
of
the Constitution and
s3(2)(b)
of PAJA.”
This
constituted maladministration as contemplated in the PP Act
prejudicing Prabudass.
[2.11] The suggested
remedial action is to direct the SABS’ CEO to enable and assist
Prabudass to apply for the necessary
permission to be registered as a
manufacturer, distributor or reseller of number plates to the public
and to provide him with R250 000
to do so. An amount of not less
than R150 000 to re-establish a business to manufacture number
plate machines and supply number
plate accessories in selected areas.
Furthermore Prabudass must be awarded a reasonable amount as
settlement for consolatory compensation,
to address the distress and
trauma experienced by him and his family as a result of the matter in
which the matter has been handled.
[4]
[2.12] On 14 May 2013 the
SABS who was called on to formally respond to the provisional report
before the 12
th
of April 2013, did so. In essence the SABS
objected to the Public Protector entertaining the complaints 11 years
after the complaints
were lodged. This was specially so as the second
complaint was never received by the SABS, and no comment made thereon
by the SABS
at the relevant time. This was evidenced by the
provisional report setting out no version of the SABS. This left the
SABS prejudiced
to recall what happened 11 years ago. Eleven years
after the fact the SABS’ employees who dealt with the matter
were no longer
in the employ of the SABS. The SABS was at a serious
disadvantage because the SABS’ documentary proof was destroyed.
[2.13] To address this
problem the CEO of the SABS requested copies of all the documents
upon which the intended findings in the
provisional report were based
on. In the response from the Public Protector the SABS was reminded
that it was provided with a draft
document that encapsulated a
complete summary of the evidence obtained in the initial
investigation as well as “
some documents”
. The
second complaint did not form part of the documents. There were also
no documents from which the Public protector could have
concluded
that Prabudass in fact had such severe depression for 10 years that
he could not function.
[2.14] The SABS also set
out that although the letter of the withdrawal of the permit was
inelegantly put the SABS did not withdraw
the permit, but simply
recorded the fact that Prabudass had relocated his manufacturing
facility without seeking the SABS’
approval thereof with the
result that the permit issued to him expired by operation of law in
terms of item 7(1)(d).
[5]
[2.15] In 2014 the final
report is issued by the Public Protector. The Public Protector
brought out no finding on the first
complaint. The findings
pertaining to the second complaint was as follows:
“
8.2
Regarding whether the SABS fairly or unfairly withdrew the
Complainant’s permit to manufacture and distribute
motor
vehicle number plates, accordingly action constituting improper
conduct and maladministration, I find that:
8.2.1 The
Complainant was in possession of a test report and letter of
confirmation from the SABS dated 02 March 1998
and 17 March 2000,
respectively, stating that the Complainant’s ‘silkscreen’
method of manufacturing number plates
as well as the number plates
manufactured by him, complied with SABS specifications SABS
1116-4:199
8.2.2 On
18 September 2000 the SABS issued a notice to the Complainant
advising him that the product that he was manufacturing,
in terms of
the permit, did not comply with SABS specifications SABS 1116-4:1996,
and that his permit was withdrawn;
8.2.3 The
notice addressed to the Complainant was intended to inform him of a
decision by the SABS that the permit had
been withdrawn, but merely
informing him of the expiry thereof as a result of alleged relocation
of his premises.
8.2.4 The
SABS failed to –
a)
Inform the Complainant of its intention to withdraw the permit;
b)
provide adequate reasons for the withdrawal of the permit;
c)
provide the Complainant with an opportunity to respond to adverse
information that affected the
decision to withdraw the permit;
and
d)
inform the Complainant that he had the right to submit written
representations to its Chief Executive
Officer (CEO).
8.2.5 The
SABS therefore failed to comply with the provisions of the
Regulations Relating to Permit Fees and Certification
Mark Permits,
issued in terms of the
Standards Act, 1993
, which empowered the Chief
Executive Officer to suspend or cancel the registration of a
manufacturer of number plates in terms
of
section 5(4)
of the
Standards Act, 1993
after prior notification of such intention to the
permit holder;
8.2.6 The
process followed by the SABS to withdraw a permit was procedurally
unfair and not in compliance with the requirements
for a just
administrative process contained in section 33 of the Constitution
and section 3(2)(b) of PAJA.
8.2.7 The
conduct of the SABS constitutes maladministration as envisaged in
section 6
of the
Public Protector Act and
improper conduct as
envisaged in section 182 of the Constitution.
8.2.8
Because of the continued nature of administrative functions and the
consequences for the Complainant, the interests
of justice and in an
effort to uphold the rights and principles that are espoused in our
Constitution, the maladministration and
improper conduct in this
matter cannot be cured by the mere passage of time.
8.3
Regarding whether the actions of the SABS had caused the Complainant
to suffer any prejudice, I find
that:
8.3.1 At
the time when the permit was withdrawn the Complainant was
self-employed and building a business on an innovation
in which he
invested a large part of his life in order to establish himself as an
individual in an industry where long-established
businesses had been
controlling the market in terms of vested processes and practices;
8.3.2 The
withdrawal of the permit had the effect that the Complainant was not
able to lawfully pursue this manufacturing
business venture and ended
up without any income.
8.3.3
Apart from the financial impact, the the [sic] failure to provide
reasons resulted in the complainant not being
able to exercise his
rights and in essence to victimisation.
8.3.4 The
maladministration referred to above has prejudiced the Complainant in
that he suffered and continues to suffer
severe distress and loss of
income.”
[2.16] At the hearing it
was conceded on behalf of the Public Protector that the remedial
action ordered by the Public Protector
should be set aside and
referred back to the Public Protector.
Is
the final report of the Public Protector to be reviewed and set
aside?
Entertaining
the complaints after the expiry of two years
[3]
Entertaining a complaint 11 years after it was laid certainly calls
for exceptional circumstances. As
with most claims and complaints,
there is for good reason, time-frames within which such must be
instituted or laid. In this
instance the PP Act has set a
time-limit of 2 years. The underlying reason for time-frames is the
trite maxim; justice delayed
is justice denied. Underpinning this
principle is the prejudice parties suffer when time has lapsed. To
mention but a few; no finality
of a matter, evidence lost, memories
failing and legislation and policies evolving.
[4]
The Public Protector’s own finding on the first complaint, is
in itself an excellent example of
why after the expiry of so many
years negates against entertaining a complaint:
“
In considering
whether or not the investigation process should continue with the
view to obtain independent information, I took
into account that the
areas of concern raised by the Complainant at the time, are likely to
have found different application in
the current manufacturing and
distribution practices in the motor vehicle number plate industry, to
such an extent that the responses
and information that were provided
at the time might not have the same evidentiary value in the current
environment. In addition,
the Compulsory Specification for
Retro-Reflective Number Plates for Motor Vehicles (VC8082) has in the
meanwhile been withdrawn
by the Minister of Trade and Industry and
acrylic plates are being phased out in new motor vehicle
registrations in favour of aluminium
plates. Since the matter
is no longer regulated by the
Standards Act, 1993
or the Regulations,
the issues raised in respect this complaint currently falls outside
the mandate of the SABS.”
[5]
The Public Protector however found that since both complaints were
lodged within two years from the
occurrence of the incidents she need
not exercise her discretion in terms of sec6(9). But, in any
event, she has a discretion
and there is no “
reference
or link to the time limitations in the prescription legislation.”
[6]
She also took into account the nature of the complaint and the
redress sought and accepted a
prima
facie
indication of improper conduct in state administration and unremedied
prejudice to Prabudass. Another factor was “
the
likelihood of concluding the matter due to the delay having regard to
the nature of the allegations.”
[7]
She considered the availability of information and records. She also
took into account that “
an
organ of State to manage and maintain its records properly, balanced
against concerns that a remedy for an administrative injustice
could
be denied or compromised as a result of incorrect or lack of
authentic records or failure to retrieve records.”
[8]
In casu
the fact that a finding was never made and the outcome or suspension
was never communicated to the parties in terms of s8(1) of
the PP Act
was a factor she considered.
[6]
The facts relied on to entertain the complaints were that the
withdrawal of the permit led to a 10 year
depression that
disabilitated Prabudass. The beliefs by Prabudass that he had an
important contribution to make to both the licence
manufacturing
industry and road traffic law enforcement influenced the Public
Protector to accept his complaints. The withdrawal
of his permit had
tainted his reputation and credibility with the industry seriously
hindering his chances of being a legitimate
role-player and
contributor to the number plate industry. The only way he could
resume his involvement in the number plate manufacturing
industry was
if the complaints he had lodged were revived.
[7]
The question to be answered is whether the Public Protector acted
fairly when entertaining these complaints,
12 years after the fact,
not only to Prabudass but also to the SABS. I think not. It is clear
the Public Protector accepted on
the say so of Prabudass that,
despite the expiry of 12 years, unidentified people in the
registration number plate industry knew
that his permit was twelve
years ago withdrawn and remembered same. She jumped to the conclusion
these “
people”,
because of the withdrawal of his
permit, thought his reputation to be tainted to such an extent that
he would not be accepted back
into the industry. I am not clear on
what his non-acceptance by industry means and it is not explained. A
person that wants to
sell number plates must have a SABS mark. He
must apply to the SABS, not through an industry, and is not reliant
on somebody else
in the industry to do so, or approve same. If
Prabudass wants to manufacture and sell registration number plates,
the same applies,
he must approach the relevant authorities. The fact
that his SABS mark permit was withdrawn will not in the minds of the
people
in the industry leave an impression of bad manufacturing
because it is two different processes. In fact on his own version his
number plates were of excellent quality and, if so, the people in the
industry will remember that. The Public Protector accepted
that the
only way Prabudass could get back into the industry was if the
complaints were reopened. This simply is factually incorrect;
he can
follow the channels, that he knows well, and apply to manufacture and
to obtain a SABS mark permit. No basis is laid as
to what qualifies
him as a role-player in road traffic law enforcement and this could
never be a factor as to why the complaints
should have been
entertained. Prabudass never expressed, and the Public Protector did
not mention or find, that Prabudass was afraid
that the SABS would
treat him unfairly should he apply for a SABS mark permit again. On
these facts the Public Protector should
not have re-opened the
investigations.
[8]
She accepted
prima facie
indication of improper conduct in
state administration and unremedied prejudice to Prabudass. Even if
at first blush she
prima facie
concluded that because
Prabudass was not given fair warning of the withdrawal of his permit,
neither was he told that he can appeal
against such withdrawal, the
SABS did not follow a fair procedure, she in view of the excessive
time-lapse and the nature of the
industry, being regulated, should
have at the very least have obtained a version from the SABS in the
process of investigating
the complaints. This is specially so as the
SABS never had sight of Prabudass’ second complaint. I accept
that the Public
Protector has adopted a certain work method which
entails that she only consults with a complainant and not the
organisation complained
of, before bringing out a provisional report,
but in exercising her discretion fairly on these set of facts, she
should have obtained
comment from the SABS as to the process followed
by the SABS. Investigation must always be undertook fact specific.
The fact that
the industry is regulated, 11 years had lapsed and the
SABS was not shown the complaint or asked to respond thereto renders
the
procedure followed herein unfair. She should not have
revived the complaints, unless she put specific safeguards in place,
which she did not.
[9]
She considered the availability of information and records. She also
took into account that “
an
organ of State to manage and maintain its records properly, balanced
against concerns that a remedy for an administrative injustice
could
be denied or compromised as a result of incorrect or lack of
authentic records or failure to retrieve records.”
[9]
The
Public Protector dismissed the complaint of the SABS that after 11
years the file and documents pertaining to this matter were
destroyed
and therefore she should not consider the complaint. In fact, she
took umbrage with the SABS for this loss of records.
This is an
astonishing stance; if the SABS knew there was a complaint 11 years
earlier they could have safe-guarded the documents,
but the Public
Protector simply did not inform the SABS of the complaint. She
ignored the fact that the relevant person who withdrew
the permit,
was available for an interview in lieu of the destroyed documents.
What makes matters worse is the Public Protector
herself submitted
that her office unfortunately misplaced the original complaints and
correspondence submitted by Pradubass; the
pot calling the kettle
black. The Public Protector balanced the “
mismanagement”
of the documents of the SABS with the prejudice Prabudass would
suffer. Herein lies the substantive irrationality of the decision
of
the Public Protector as set out below.
[10] The
Public Protector should not have after a 10 -12 year period have
investigated the complaints in the manner
she did, and acted
irrational in doing so.
Procedural
fairness
[11]
But even if I should be wrong and she did exercise her discretion
fairly in investigating the complaints,
the investigation process was
unfair and irrational and should be set aside.
[12] No
court will prescribe to the Public Protector how to conduct an
investigation, but with a review the Court
will have to assess if the
procedure followed was fair and rational in the circumstances.
[10]
In entertaining complaints that were laid 11 years earlier, these
complaints cannot fit in the same mould as the “
normal”
investigation process set out in par 32 of the answering affidavit.
[13]
The specific process followed in this instance as set out in par 74
of the answering affidavit is unfair
and irrational. The
submissions by Prabudass on the second complaint was accepted at face
value. This complaint of Prabudass
was never provided to the SABS for
comment and the review record reflects same. The Public Protector’s
avers that after having
considered the response from the SABS to the
closing report, the Public Protector decided to issue the provisional
report. The
SABS denied that it ever received such report and from
the review record there is no evidence that the Public Protector did
consider
such response.
[14]
The Public Protector joined the second complaint with the first
complaint because of the view that the withdrawal
of the permit was
directly connected, and in revenge, to Prabudass’ allegations
against the SABS. Despite not being able
to decide the first
complaint the Public Protector persisted in entertaining the second
complaint. Upon a reading of the papers
this acceptance of Prabudass’
view was not done with an enquiring mind as required of the Public
Protector. There was
no reflection as to whether this was
indeed true and what other possibilities existed. In those
circumstance the fair and rational
investigation would in the very
least include requesting a response from the SABS before the
provisional report and especially
so in view of the excessive
time-lapse.
[15]
The fact that the SABS officials and, specifically Mr Prince, was
implicated in the complaint rendered the
next fair and logical step
to have an interview with this official, this was however never done.
To reiterate, the issues in the
second complaint was allegedly a knee
jerk malicious reaction to the first complaint. Despite no finding
made on the first complaint,
without ever interviewing Mr Prince the
report was finalised. Upon a reading of the papers I cannot find that
the Public Protector
investigated this matter with an enquiring open
mind, in fact, my distinct impression is that the Public Protector
upfront decided
that they must protect the man on the street from
this organisation, worked on assumptions and did not attempt to find
the truth.
Listening only to Prabudass, with 9 interviews, led to
only discovering the truth as told by Prabudass and simply because no
evidence,
not a single interview with officials of the SABS, was
obtained to prove the contrary.
[11]
The SABS’ averments that Prabudass failed to comply with the
permit requirements was not traversed with Mr Prince.
[16] The
process followed by the Public Protector was unfair and irrational.
Substantive
irrationality
[17]
The whole premise of the enquiry was irrational. On analysis of the
complaint the Public Protector considered
and investigated the
following issue: “
Whether
the SABS unlawfully or unfairly, withdrew the Complainant’s
permit to manufacture and distribute motor vehicle number
plates,
accordingly action constituting improper conduct and
maladministration” and “Whether the actions of the SABS
had caused the Complainant to suffer any prejudice?
”
[12]
[18]
Prabudass was not issued a permit by the SABS to manufacture and
distribute motor vehicle number plates.
The starting point of the
investigation was thus wrong, bad in law and irrational. The
investigator of the Public Protector
in his answering affidavit goes
as far as to submit under the heading the “
LEGISLATIVE
FRAMEWORK WITHIN WHICH SABS OPERATES” Prabudass thus operated
as both a manufacturer and distributor of motor
vehicle number plates
manufactured in accordance with the silkscreen method in terms of a
permit issued to him by the SABS. SABS’s
approval also allowed
him to operate as a designer and distributor of manufacturing
machines to other distributors.”
[13]
In par 80 of the answering affidavit the Public Protector avers that
“
the
Public Protector found that the letters from SABS dated 2 March 1998
and 17 March 2000 amounted to a manufacturing permit, and
that the
permit had been withdrawn without adequate prior notice or proper
reasons being given
.”
In argument it was rightly conceded that the SABS mark permit is not
a permit under the legislative framework authorising
Prabudass to
manufacture registration number plates. The SABS does not in terms of
the legislation approve manufacturing methods
or for Prabudass to
operate as a manufacturer or distributor. Although through the report
there are glimpses of acknowledgement
that the SABS mark permit is
not a manufacturing permit, the Public Protector worked form the
wrong premise that resulted in her
make an irrational finding.
[19] The
resultant remedy ordered, i.e. to enable and assist Prabudass to
apply for the necessary permission to be registered
as a
manufacturer, distributor or reseller of motor vehicle number plates
is totally irrational. The R350 000 ordered to do
so is simply
irrational. This would include an amount to re-open a business. There
is no rational connection between the withdrawal
of the mark permit
and the SABS being to order to assist Prabudass to reopen a business
to manufacture. A further R150 000
ordered to re-establish a
business is quite astounding. The vague, non-descript and
unobtainable remedy ordered of “
Provide the Complainant with
a remedy, including a reasonable amount as a settlement for
consolatory compensation, to address the
distress and trauma
experienced by him and his family as a result of the manner in which
this matter has been concluded”
leaves one
dumbfounded and needs no further address.
[20] It is no
wonder the Public Protector requested the remedy to be set aside and
referred back to the Public Protector.
[21] I
accordingly make the following order:
21.1
The Public Protector’s Report titled “
Regulating
Justice; a report on an investigation into a complaint against the
South African Bureau of Standards relating to the
withdrawal of a
permit for the manufacturing and sale of motor vehicle number plates”
[report number 4 of 2014/2015] is reviewed and set aside;
21.2
The first respondent, the Public Protector, is ordered to pay the
costs of the application.
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE
NO: 34290/15
HEARD
ON: 20 February 2019
FOR
THE APPLICANT: ADV. N.H. MAENETJE SC
ADV. T. MOSIKILI
INSTRUCTED
BY: Gildenhuys Malatji Inc.
FOR
THE FIRST RESPONDENT: ADV. S. COWEN SC
INSTRUCTED
BY: Bowman Gilfillan Inc.
FOR
THE SECOND RESPONDENT: MR. D.M. DE BRUYN
INSTRUCTED
BY: De Bruyns Attorneys
DATE
OF JUDGMENT: 27 March 2019
[1]
Minister of Home Affairs and Another v Public Protector of the
Republic of South Africa
[2018] 2 All SA 33
(SCA) paras 36-37
[2]
E.tv (Pty) Ltd and Others v Minister of Communications and Others
[2016] 3 All SA 362
(SCA) para 38;
Electronic Media
Network Limited and Oterhs v E.TV (Pty) Limited and Others
2017
(9) BCLR 1108 (CC)
[3]
P265; paragraph 58 of answering affidavit
[4]
Provisional report paras 10 and 11
[5]
8.5 At the relevant
time, the Permit Regulations provided that:
“
7. Expiry of permit
7.1 A mark permit shall
expire if:
(a) the permit is
withdrawn by the SABS, on the date determined in the notice of
withdrawal or the date of substitution of a new mark permit;
(b) …;
(c) …;
(d) the permit holder
removes his manufacturing activity to new premises and the SABS
is
not prepared to amend his permit to apply to such new premises, on
the date of removal; or
(e) there is a change of
ownership of the factory where the commodity is manufactured, on the
date of the transfer of ownership.”
[6]
Paragraph 3.6.2; final report
[7]
Paragraph 3.6.3(d)
[8]
Paragraph 3.6.3(e)
[9]
Paragraph 3.6.3 (e)
[10]
Public Protector v Mail and Guardian
2011 (4) SA 420
(SCA)
par [20]
[11]
Public Protector v Mail and Guardian supra
paragraph [19]
[12]
Para 4.3.2 and 4.3.3 of report
[13]
Par 48