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[2018] ZALMPPHC 13
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Mashabela v Executive Committee of Burgersfort and Others (7591/2017) [2018] ZALMPPHC 13 (17 April 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: 7591/2017
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED.
17/4/2018
In
the matter between:
MARAILE
MASHABELA
APPLICANT
AND
EXECUTIVE
COMMITTEE OF BURGERSFORT
LOCAL
AND LONG DISTANCE ASSOCIATION
AND
3
OTHERS
RESPONDENTS
JUDGMENT
KGANYAGO
J
[1]
The applicant has brought this application on urgent basis. Part A of
the application was struck off the roll on the 19th December
2017 due
to lack of urgency. The applicant is now proceeding with Part B of
his application. In Part B the applicant is seeking
an order that the
respondents’ decision of the 29th October 2017 to suspend him
indefinitely from operating his taxis with
registration number CFJ
706 L and CGH 528 L on the routes allocated to the Burgersfort Local
and Long Distance Taxi Association
(BLLDTA) be reviewed and set
aside. The Respondents are opposing the applicant's application.
[2]
On the 8th March 2018, the applicant filed an application seeking
leave to supplement his founding affidavit. The application
for leave
to file his supplementary affidavit was to be heard on the same date
set down for the main application. However, on the
date of the
hearing, the applicant abandoned his application for leave to file
his supplementary affidavit.
[3]
The facts of the case are briefly as follows: The applicant is
a member of BLLDTA. The applicant was subjected to a disciplinary
hearing by the respondents. He was orally informed of the outcome of
the hearing on the 29th October 2017. According to the applicant
the
sanction imposed on him was indefinite suspension from operating his
taxis on the routes allocated to BLLDTA.
[4]
The applicant has attached a document to his founding affidavit which
he alleges that it is the constitution of BLLDTA. According
to the
applicant, the respondents did not follow the procedures provided for
in that constitution in disciplining him. He is therefore
of the view
that the disciplinary hearing held against him by the respondents was
unfair and grossly irregular towards him as he
was not given adequate
notice for the hearing, he was not given a reasonable opportunity to
make representations and that the complainant
laid against him was
not clear.
[5]
The respondents does not dispute that the applicant is member of
BLLDTA, and that he was subjected to a disciplinary hearing
of which
the sanction was that of a suspension. The respondent however dispute
that the suspension was for an indefinite period
of time. According
to the respondents, the applicant was suspended for a period of 5
months with the option to pay a fine of R55
000-00. The respondents’
alleges that the applicant was charged for inciting the members of
BLLDTA to revolt against the
executive committee, and call for an
early election. The respondents’ alleges further that the
applicant has collected R50-00
from each member of BLLDTA without
authority or delegated powers from the executive committee.
[6]
The respondents disputes that the document which the applicant has
attached to his founding affidavit is their constitution.
They have
attached another document to their answering affidavit which they
claim to be a constitution of BLLDTA. The respondents
contends that
the disciplinary hearing against the applicant was fair and further
that if he was dissatisfied with the outcome
of the hearing, he
should have lodged an appeal as per their constitution.
[7]
The respondents are raising an argument that the applicant has failed
to lodge an appeal before he resorted on approaching the
Court for
the relief he is seeking. Basically what the respondents are stating
is that the applicant has failed to exhaust the
internal remedies
before he embarked on his Court application. Both constitutions which
have been submitted by the parties provide
for an appeal process in
case the aggrieved party is not satisfied with the outcome of the
disciplinary hearing.
[8]
Generally, the duty to exhaust internal remedies is not of itself
absolute nor is it automatic. It is trite that a Court
will
condone a failure to exhaust internal remedies where available remedy
is illusory or inadequate, or where it is tainted by
the alleged
illegality. Under common law, the two paramount considerations are
whether the domestic remedies are capable of providing
effective
redress and whether the alleged unlawfulness undermines the internal
remedies themselves.
[9]
In
Koyabe v Minister of Home Affairs
2010 (4) SA 327
(CC)
at
343 A-B Mokgoro J said :
"The
duty to exhaust internal remedies is therefore a valuable and
necessary requirement in our law. However, the requirement
should not
be rigidly imposed. Nor should it be used by administrators to
frustrate the efforts of an aggrieved person or to shield
the
administrative process from judicial scrutiny."
[10]
Even though the duty to exhaust internal remedies is not absolute,
the aggrieved party is still bound to exhaust internal remedies
prior
to embarking on judicial review, unless the aggrieved party can show
exceptional circumstances to exempt him from this requirement.
(See
Koyabe v
Minister of Home Affairs and
supra
and
Nichol and another v Registrar of Pension Funds and others 2008(1) SA
383 (SCA)).
[11]
Factors taken into consideration in determining whether exceptional
circumstances exist are whether the internal remedy is
effective,
available and adequate. An internal remedy is effective if it offers
a prospect of success and can be objectively implemented,
taking into
account relevant principles and values of administrative justice
present in the constitution and our law; and available
if it can be
pursued without any obstruction, whether systematic or arising from
unwarranted administrative conduct. An internal
remedy is
adequate if it is capable of redressing the complaint. (
See
Basson v Hugo and others
[2017] ZASCA 192
(01 January 2018))
[12]
The applicant alleges that the respondents in disciplining him have
failed to comply with clause 13 and 14 of their constitution.
However, in the very same clause 13 of the document that the
applicant has attached to his founding affidavit, it provides for
an
appeal procedure for a member who has been warned, fined, suspended
or expelled, an opportunity to have his case reheard if
he
believes that fairness was not achieved during the original inquiry.
[13]
The constitutions submitted by both parties have an appeal procedure.
Even though there is a dispute as to which of the two
is the
legitimate constitution of the association, what is certain is that
both constitutions provide for an appeal procedure.
The dispute in
relation to which is the legitimate constitution, in my view does not
create a real and genuine dispute of fact
since at this stage the
Court must first determine whether the applicant’s dispute is
premature or not. Or it put it the
other way round, was the applicant
duty bound to exhaust internal remedies before he could initiate his
review application. I have
already pointed out that both
constitutions provides for an appeal procedure and the dispute of
fact of which is the legitimate
constitution is therefore immaterial
at this stage. In my view, it was incumbent upon the applicant to
show that exceptional circumstances
existed justifying him to
approach the Court before exhausting internal remedies.
[14]
In his replying affidavit the applicant is simply pointing out the
differences that appears in both constitutions without stating
exceptional circumstances justifying his failure to invoke the appeal
procedure. In his replying affidavit the applicant is further
alleging that the constitution attached to the respondents’
answering affidavit has an appeal procedure which is so vague
and
unenforceable to the extent that it is
void
ab initio
through lack of certainty. However, he is not stating that he did not
lodge the appeal procedure as the process provided in that
constitution is vague, unenforceable and uncertain. The other problem
which the applicant will encounter is that he is trying built
his
case in his replying affidavit. It is settled law that one is not
permitted to build his case in the replying affidavit. His
case
should be set out clearly with sufficient particulars in his founding
affidavit in order to enable the respondents to answer
to the said
allegations.
[15]
Approaching a Court before a higher administrative body is given the
opportunity to exhaust its own existing mechanisms undermines
the
autonomy of the administrative process. It renders the judicial
process premature, effectively usurping the executive role
and
function of the higher administrative body. (See
Koyabe
v Minister for Home Affairs
para 36).
[16]
The applicant’s review application has been brought in terms of
Promotion of Administrative Justice Act 3 of 2000 (PAJA).
In terms of
section 7(2) (a) of PAJA, no Court or tribunal shall review an
administrative action in terms of the Act unless any
internal remedy
provided for in any other law has first been exhausted. Section
7(2)(c) provides that the aggrieved party may be
exempted in
exceptional circumstances and on application from the obligation to
exhaust any internal remedy if the Court or tribunal
deems it in the
interest of justice.
[17]
PAJA compels the aggrieved party to exhaust internal remedies unless
exceptional circumstances exists. In this case the applicant
has
failed to show any exceptional circumstances that exist to justify
his failure to exhaust internal remedies. The applicant
has also
failed to apply and set out facts which should be considered as
exceptional circumstances justifying an exemption from
exhausting
internal remedies. Therefore, in my view the applicant’s
application is premature, and it will not be in the interest
justice
to exempt him from exhausting internal remedies. In my view, on that
point alone, the applicant’s application stands
to fail.
[18]
In the result I make the following order:
18.1
The applicant’s application is dismissed with costs.
_________________________________
MF
KGANYAGO
JUDGE
OF THE HIGH COURT OF
SOUTH
AFRICA, LIMPOPO DIVISION
POLOKWANE
APPERANCES
1.
For the
Applicant
:Adv B.Macdonald
2.
Instructed
by
:Pratt Luyt & De Lange Attorneys
3.
For the Respondent
:Adv
4.
Instructed
by
:FM Maluleke Incorporated
5.
Date of Argument
:14 March 2018
6.
Date of Judgment
: