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[2017] ZAGPPHC 57
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Fines4u (Pty) Ltd and Another v Deputy Registrar, Road Traffic Infringement Agency and Others (30586/2014) [2017] ZAGPPHC 57; [2017] 2 All SA 571 (GP); 2017 (2) SACR 35 (GP) (24 February 2017)
IN
THE HIGH
COURT
OF SOUTH
AFRICA
/ES
(GAUTENG
DIVISION,
PRETORIA)
CASE
NO: 30586/2014
DATE:
24/2/2017
IN
THE MATTER
BETWEEN
FINES
4 U (PTY)
LIMITED
1 ST APPLICANT
BRETT
HUDSON (PTY) LTD
t/a
2ND APPLICANT
AUDI
JOHANNESBURG
AND
SHERMAN
AMOS (DEPUTY REGISTRAR:
1
ST
RESPONDENT
ROAD
TRAFFIC INFRINGEMENT AGENCY)
MINISTER
OF
TRANSPORT 2
ND
RESPONDENT
DIRECTOR-GENERAL
IN THE
3
RD
RESPONDENT
DEPARTMENT
OF TRANSPORT
ROA
D TRAFFIC INFRINGEMENT AGENCY
4
TH
RESPONDENT
MR
R
MANNAFELA 5
TH
RESPONDENT
A
DV H T
MBATHA 6
TH
RESPONDENT
MR
J B
JACOBS 7
TH
RESPONDENT
MS
M
LIPPERT 8
TH
RESPONDENT
MR
B
RASSEBOYE
9
TH
RESPONDENT
JUDGMENT
PRINSLOO,
J
[1]
This review application centres, by and large, on the provisions of
the Administrative Adjudication of Road Traffic Offences
Act, Act 46
of 1998 (to be referred to as "AARTO" or "the Act")
and its proper implementation, or lack of such
implementation, by the
respondents, or some of them.
[2]
Before me, Mr Dreyer SC, assisted by Mr Schabort, appeared for the
applicants and Mr Hopkins, assisted by Mr Ayitey Ayayee,
appeared for
the fourth respondent.
The
other respondents did not take an active part in the proceedings.
Brief
remarks about AARTO and some of its provisions
[3]
AARTO came into effect on 1 July 2007.
[4]
When the events forming the subject of this dispute took place, AARTO
was still in an implementation stage, and, it appears,
it was being
implemented on a limited scale by employing certain "pilot
projects" mainly in the Pretoria and Johannesburg
Metropolitan
areas.
[5]
The short title of AARTO reads as follows:
"To
promote road traffic quality by providing for a scheme to discourage
road traffic contraventions, to facilitate the adjudication
of road
traffic infringements, to support the prosecution of offences in
terms of the national and provincial laws relating to
road traffic,
and implement a points demerit system; to provide for the
establishment of an agency
to
administer the scheme; to provide for the establishment
of a board to represent the agency; and to provide
for matters
connected therewith."
[6]
It appears that it was the intention of the legislature, in enacting
AARTO, that this Act would be implemented, in a sense,
in tandem with
the Criminal Procedure Act, number 51 of 1977. In this regard,
it is noteworthy that section 2 of the Act,
setting out the objects
thereof, provides that "the objects of this Act are,
despite
the
Criminal Procedure Act, 1977
..."
[7]
Eight objects are listed which can be briefly summarised as follows:
"To
encourage compliance with the national and provincial laws and
municipal by-laws relating to road traffic and to promote
road
traffic safety; to encourage the payment of penalties imposed for
infringements
and to allow alleged minor in/ringers
to
make
representations;
to establish a
procedure for the effective and expeditious adjudication of
infringements; to alleviate the burden on the Courts
of trying
offenders for infringements; to penalise drivers and operators who
are guilty of infringements or offences through the
imposition of
demerit points leading to the suspension and cancellation of driving
licences; to reward law-abiding behaviour by
reducing demerit points;
to
establish
an
agency
to support the
law
enforcement
and judicial
authorities
and
to
undertake
the
administrative adjudication
process;
and,
finally, to strengthen co-operation between the prosecuting and
law enforcement authorities by establishing a
board to
govern the agency." (Emphasis added.)
[8]
The Road Traffic Infringement Agency (also referred to by the
abbreviation "RTIA") was established in terms of
section 3.
The
Road Traffic Infringement Agency Board was established in terms of
section 6
, to represent and control the Road Traffic Infringement
Agency ("RTIA" or, at times simply referred to in AARTO as
"the
agency").
I
add, for the sake of detail, that, in the founding affidavit, the
fourth respondent is described as the Road Traffic Infringement
Agency but, in the headings of the papers, the fourth respondent is
described as the Road Traffic Infringement Agency Board. The
parties
appear to loosely refer to the
section 3
agency and the
section 6
board, created to "represent and control the agency" but,
for present purposes, I accept that nothing turns on this.
This
issue, such as it may be, did not receive any attention during the
proceedings before me. I note, however, that
the
representations made by the first applicant on behalf of the second
applicant in respect of alleged minor traffic infringements
had
to be made, in terms of AARTO,
to
the agency
and not to
the board
and the representations officers, to whom I will refer later, who
adjudicated upon the representations, were also contracted by
the
agency
and not by
the board.
In the circumstances,
it appears to be appropriate to accept, for present purposes, that
the description of the fourth respondent,
in the founding affidavit,
as the agency and not the board, ought not to be interfered with. I
say no more on this technical subject.
A
summary
of the structure
or
workings
of AARTO
[9]
Without being disrespectful to the legislature, I
take the liberty to observe that AARTO
contains the most
elaborate scheme of steps to be taken to bring an offender (or
"infringer" as described in the Act)
who committed a minor
traffic infringement or offence to book.
[10]
At the close of the proceedings before me I requested counsel to
jointly prepare a summary of this process. I am indebted to
counsel
on both sides who prepared what they described as a "simplified
exposition of the AARTO process". The wording
has the approval
of all counsel and the document was supplied to me some time after
the hearing. I made one or two adjustments.
[11]
It seems to me to be convenient to reproduce the essence of this
"simplified exposition" in this judgment. I do so
by
following, by and large, the wording used by counsel and the
numbering of their paragraphs:
1.
The applicable adjudication and execution procedure in terms of
AARTO, for purposes of this exposition, is dealt with in detail
in
sections 17, 18, 19, 198, 20, 21 and 22 of AARTO.
2.
The exposition prepared by counsel is said to be more descriptive
than the process described on the AARTO website.
3.
The process is summarised as follows by counsel:
3.1
Infringement notice:
(section 17)
On
receiving an infringement notice from the issuing authority (this is
defined in the Act as a local authority, a provincial administration
or the Road Traffic Management Corporation established under
section
4
of the
Road Traffic Management Corporation Act, 1999
in so far as
such authority, administration or Corporation is responsible for
traffic matters, although, as I already
indicated,
for present purposes the issuing authority
comprises only the Tshwane and Johannesburg Metro
Police departments
who are implementing, or attempting to implement, AARTO in the form
of pilot projects conducted in these metropolitan
areas) · via
registered mail or served in person, an alleged infringer
("the infringer") has the following
options which he/she
may exercise within the first thirty two day period:
3.1.1
pay a discounted penalty (50%) which may, by arrangement in terms of
section 198
, be paid in instalments;
3.1.2
make a representation to the agency (or
"RTIA")
in terms of
section 18
;
1.48i
n; line-height: 200%">
3.1.3
nominate the driver of the vehicle who committed the
alleged
infringement by providing the agency with his/her details; or
3.1.4
elect to be tried in Court (in terms of
section 22)
, failing which
the matter should be referred to the agency for the issue of a
Courtesy letter (in terms of
section 19).
3.2
Courtesy
letter:
(section 19)
Should
anyone of the aforesaid options not be exercised within thirty two
days from the date of service of the infringement notice,
the
issuing authority must notify the agency, which must, subsequent
thereto, but not later than thirty two days after notification
(regulation 6
read with
regulation 3(3))
, serve an infringer with a
Courtesy letter, informing him/her that he/she has failed to comply
with the infringement notice and
notifying him/her of different
elections which he or she may make within a further thirty two days
from date of the service of
the Courtesy letter. These would be the
making of representations 111 respect of a minor infringement,
payment of the penalty and
the prescribed fee of the Courtesy letter
to the agency, or notifying the agency in the prescribed manner that
he or she elects
to be tried in Court.
The
Courtesy letter must also state that a failure to comply with the
requirements thereof within the time permitted, will result
in the
Registrar issuing an enforcement order in terms of
section 20.
It
is useful to add that if an infringer complies with either an
infringement notice or a Courtesy letter by paying the penalty
the
agency must update the National Contraventions Register in the
prescribed manner, record the demerit points incurred by the
infringer in terms of
section 24
in the National Contraventions
Register and notify the infringer by registered mail in the
prescribed manner that the demerit points
have been recorded against
his or her name in the National Contraventions Register. The agency
must also provide the infringer
with a print-out of the demerit
points incurred by him or her together with an indication of the
amount of points left before his
or her driving licence, professional
driving permit or operator card is suspended in terms of
section 25
or cancelled in terms of
section 27.
The "National
Contraventions Register" is defined in the Act as meaning the
National Traffic Information System on which
the offence details of
every individual are recorded in terms of the Act (this system is
also referred to as eNatis).
3.3
Representations:
(section 18)
Where
a representation is made either at infringement notice or Courtesy
letter stage it must be considered by a representations
officer who
may allow or reject it ("representations officer" is
defined in the Act as meaning a person contracted by
the agency in
terms of section 5 or appointed by the Registrar in terms of section
10 to consider representations submitted by
any person who, after
having committed a minor infringement, elects to make a
representation).
The
representation is not valid unless submitted within thirty two days
of the date of service of the infringement notice or the
Courtesy
letter.
If
rejected, the infringer may, after notification by the agency:
3.3.1
elect to be tried in Court but only if the representations officer so
advises; or
3.3.2
pay the penalty, the Courtesy letter fee and the representations fee
which may, by arrangement, be paid in instalments,
within
thirty two days of such notification, failing which the
Registrar must issue an enforcement order.
3.4
Enforcement
order:
(section
20)
3.4.1
Should an infringer not respond to the notification by the
representations
officer or the Courtesy letter or fail to appear in
Court, after having elected to do so, he/she must be served with an
enforcement
order.
3.4.2
The order will demand, as only option, that he/she pays the penalty,
plus
the Courtesy letter fee plus an additional enforcement fee
(without the possibility of paying in instalments) within thirty
two
days from the date of service of the order, failing which a warrant
must be issued to recover the penalty and fees.
3.4.3
No enforcement order is issued unless the Registrar is satisfied that
the
jurisdictional requirements provided for in section 20(2) have
been met.
3.4.4
The infringer's only option is to apply for the revocation of the
enforcement
order by submitting reasons to the satisfaction of the
Registrar why it should be revoked.
3.4.5
Once an enforcement order has been issued, no driving licence,
professional
driving permit or licence disc may be issued to an
infringer in respect of a motor vehicle registered in his/her name
until such
enforcement order has been complied with or revoked.
3.4.6
It is useful to point out that the "notification by the
representations
officer" referred to in 3.4. l above is a
notification in terms of
section
18(7) dealing with
the representations which an infringer may make. Section 18(7)
stipulates
-
"(7)
If the representations are rejected, the representations officer may
advise the infringer to elect in the prescribed manner
to be tried in
Court, and
must
serve or cause to be served on the
infringer a prescribed written notification informing him or her -
(a)
of the reasons of the decision, and provide the issuing authority
concerned with a copy thereof;
(b)
if the infringer does not elect to be tried in Court-
(i)
that the penalty, the prescribed representations fee and the
prescribed fee of the Courtesy letter, if any, are payable to the
agency or that arrangements are made with the agency in
the prescribed manner to pay in instalments, not later than
thirty
two days after the date of service of the notification; and
(ii)
that a failure to pay the penalty and fees or to make arrangements to
pay m instalments will result m an enforcement order
being
served on the infringer and that the infringer will become
liable to pay the penalty and fees and the prescribed fee
of the
enforcement order; and
(c)
if the infringer elects to be tried in Court, which may only be done
on the advice of the representations officer, that the
provisions of
section 22 apply."
I
mention the provisions of section 18(7) because it received some
attention during the hearing as it 1s common cause that no reasons
were ever supplied after representations were rejected by any of the
representations officers. Reasons for the rejections only
came to
light after the review application was launched and the fourth
respondent supplied the record in terms of Uniform Rule
53(4).
Further reference to this subject will be made later.
3.5
Warrant
of execution:
(section 21)
3.5.1
Should the infringer not respond to the enforcement order a warrant
may be
issued by the Registrar and handed to the Sheriff for
immediate execution. The warrant allows the Sheriff to:
3.5.1.1
seize and sell the infringer's movable property to defray the
penalty, fees
and costs applicable;
3.5.1.2
seize and deface his/her driver's licence and/or professional driving
permit;
3.5.1.3
remove and deface the licence discs of
all
his/her vehicles;
3.5.1.4
if applicable, seize and deface the operator cards of all the
vehicles for which he/she
is the registered operator;
3.5.1.5
immobilise all his/her vehicles.
3.5.2
A warrant may also be issued by the Registrar after non-compliance
with notification in terms
of section l9B(l )(a) and (ii)(a) to make
payment of outstanding penalties and fees.
3.5.3
An infringer may, upon issuance of a warrant, be reported to a credit
bureau by the Registrar.
3.6
Court:
(section 22)
3.6.1
When an infringer elects to be tried in Court as a result of an
infringement notice or the advice
of the representations officer or
the Courtesy letter the issuing authority must prepare a summons in
terms of the Criminal Procedure
Act 51 of 1977 ("the CPA")
after cancellation of the infringement notice, summonsing him/her to
appear in Court.
3.6.2
In the event that the execution of a warrant produces no movable
property to seize and sell
in order to satisfy the enforcement order
or the execution of the warrant renders less than what is required to
satisfy it, the
issuing authority is likewise obliged to prepare a
summons (after cancellation of the infringement notice) summonsing
the
infringer to appear in Court.
3.6.3
Once a summons has been prepared by the issuing authority
the CPA
applies.
3.6.4
When the infringer, after having elected to appear ir. Court and
having been summoned to appear in or attend Court fails to do so, the
Court must not, despite the provisions of section
5
5
of
the CPA, issue a warrant for his/her arrest, but the clerk of the
Court must notify the issuing authority which must inform the
agency,
and the Registrar must proceed to issue an enforcement order.
3.6.5
In instances where an infringer was summoned to appear m Court
because the execution of a warrant had not produced movable property
capable of being seized and sold or the infringer having failed
to
comply with the enforcement order after execution of the warrant, the
case must be handled in terms of the CPA.
[12]
So much for the "simplified exposition" of the AARTO
process.
Joinder
of some representations officers, the fifth to eighth respondents and
others
[13]
An allegation is made in the founding affidavit that the respondents
"bluntly refused" to disclose the identity of
the
representations officers who dealt with the representations made by
the first applicant on behalf of the second applicant.
The applicants
were keen to join these representations officers as interested
parties.
[14]
It appears that, after the record was obtained in terms of rule
53(4), details of some of these representations officers became
evident so that an application was launched by the applicants, in
October 2014, to join the fifth to eighth respondents and also
some
other representations officers who could only have been identified by
their employee and/or internal identification numbers.
[15]
The application was opposed but the order was granted joining the
fifth and eighth respondents as co-respondents in the main
application and granting leave to the applicants to join other
presumed representations officers known only by their employee and/or
internal identification numbers. I assume that this resulted in the
ninth respondent also being cited as a party.
[16]
Nothing turns on this, because, in the event, the applicants are only
seeking relief against the fourth respondent.
The
relief sought
[17]
After the joinder of the fifth to eighth respondents and, it seems,
also the ninth respondent, as mentioned, the applicants
filed an
amended notice of motion seeking the following relief:
"1.
That the first,
alternatively fourth, alternatively fifth to
ninth respondents' decision in terms whereof the first
applicant's
representations lodged in terms of section 18 of the
Administrative Adjudication of Road Traffic Offences Act (Act 46 of
1998)
were rejected, be set aside or reviewed and set aside;
2.
That the decision
by the first, alternatively fourth, alternatively
fifth to ninth respondents to impose additional penalties in terms of
the Administrative
Adjudication of Road Traffic Offences Act (Act 46
of 1998) subsequent to the rejection of the first applicant's
representations,
be reviewed and set aside;
3.
That the first, alternatively
fourth, alternatively fifth to
ninth respondents' decisions to decline the first applicant's
representations in respect of
those infringement notices listed in
the schedules annexed hereto marked as annexure 'D', be reviewed and
set aside, and that the
representations filed in respect thereof be
upheld;
4.
That the first, alternatively
fourth, alternatively fifth to
ninth respondents be ordered to pay the costs of this application,
alternatively that those
respondents who elect to oppose the relief
applied for herein be ordered to pay the costs."
[18]
The respondents initially accepted certain of the representations
made by the first applicant on behalf of the second applicant
("the
successful representations"), rejected others ("the
unsuccessful representations") and initially failed
to
adjudicate on some of the representations ("the pending
representations").
[19]
Prayer 3 was introduced into the notice of motion to cater for the
pending representations. However, after the record was filed
m terms
of rule 53(4) it transpired that the fourth respondent disposed of
the pending representations on 23 October 2013
by rejecting
them, save for one, on 21 May 2014. The last-mentioned
representation was
successful.
Accordingly, the pending
representations may resort under the unsuccessful representations
(prayer 1 of the amended notice of motion) so that the relief sought
under prayer 3 as quoted falls away.
Some
background notes and some arguments offered on behalf of the
parties
[20]
The first applicant company conducts business and renders services in
respect of the management of traffic offences by representing
members
of the public, as well as corporate and state entities in making
representations to the respondents and/or facilitating
the payment of
traffic fines and penalties, no doubt also working inside the ambit
of the AARTO process.
The
managing director of the applicant is Ms Cornelia Johanna van Niekerk
("Van Niekerk") who was duly appointed by the
second
applicant to act as its proxy for purposes of these services. This is
in accordance with the provisions of regulation 336
of the National
Road Traffic Regulations promulgated under the National Road Traffic
Act, Act 93 of 1996.
[21]
During or about September 2013 Van Niekerk, in her representative
capacity, made enquiries on behalf of the second applicant
with the
agency. In reply thereto the agency provided her with a schedule
listing the second applicant's infringements as at 11
September 2013.
It appeared that some 639 infringement notices were issued against
the second applicant resulting in penalties
coming to some R322
000,00. The infringements spanned the period 2008 to 2013. Van
Niekerk submitted representations in terms of
section 18 of the Act
in respect of 424 alleged infringements.
[22]
Of particular importance, for purposes of deciding this application,
is the fact that it is common cause that the fourth respondent
(or
any of the other respondents for that matter, although relief
ultimately was only sought against the fourth respondent) failed
all
together to comply with the mandatory provisions of the Act,
described earlier, dealing with the service of notices. This applies
to infringement notices, courtesy letters, reasons for rejecting
representations and so on.
[23]
In this regard, the following observations can be made:
•
In terms of
regulation 3(1) of the AARTO regulations, 2008, ("the
regulations") the infringement
notice:
"...
shall
be issued and served or caused to be served on
the infringer -
(a)
m person, ...
(b)
by
registered
mail,
on a form similar to
form AART0.03 as shown in Schedule 1,
within
forty
days
of the
commission
of the
infringement."
(Emphasis added.)
The
same would apply in respect of courtesy letters and, for example,
section 18(7) notification of rejection of representations
by the
representations officer and the reasons for such rejection.
•
In paragraph 15.14 of the
founding affidavit Van Niekerk says the following:
"As
set out aforesaid the time period over which the infringements
against the second applicant span, goes as far back as 2008.
None of
these notices were served in the prescribed manner on the
second applicant.·
This
is not disputed in the opposing affidavit. Instead, the fourth
respondent's deponent says the following:
"I
have, in any event, already acknowledged that RTIA has experienced
difficulties in consequence of the South African Post
Offices'
dysfunctionality. However, RTIA's method of dealing with a
dysfunctional Post Office is entirely irrelevant in this review.
If
the applicants mean to suggest that the Regulations are irrational
because they cannot work without a properly functioning Post
Office,
then that is surely a different matter to be dealt with in a
different application. Applicants who feel truly aggrieved
that they
are not receiving notices because the prescribed manner of service is
not being complied with, should either challenge
the
constitutionality of the AARTO Act and Regulations (which expressly
provide for service by registered post) or else bring a
mandamus
compelling RTIA to do things differently ..."
I
find myself in respectful disagreement with these submissions. In her
replying affidavit, Van Niekerk, correctly in my view, says
the
following about the stance adopted by the fourth respondent:
"46.2
The failure to comply with the peremptory notice requirements in
respect of the AARTO Act, ie the service of infringement
notices and
courtesy letters, is central to this review.
46.3
The respondents' failure to comply with these peremptory provisions
in fact constitute grounds for the review of the decisions,
as more
fully explained and dealt with in the applicants' founding affidavit
as amplified."
•
Because the failure of
the fourth respondent (which is common cause) to comply with the
peremptory provisions of the AARTO structure,
with particular
reference to service of the documents such as infringement notices,
courtesy letters and section 18(7) reasons,
goes to the root of this
review application, it is useful to quote further from the fourth
respondent's opposing affidavit:
"67.
I have already made the concession that RTIA experienced teething
problems when first implementing the AARTO Act and regulations.
The
teething problems were experienced
inter
alia
because of the challenges faced by the South African Postal
Service. As the applicants point out in their founding affidavit,
certain
documents need to be 'served'. As they also rightfully point
out, apart from personal service there can
only
be service if
service is effected by registered post. This requires the active
participation of the South African Post Office. Thus,
if the Post
Office does not properly function then infringement notices cannot
properly be served nor can courtesy letters.
I
readily accept that this has happened in many instances. The
challenges experienced by the Post Office
have
impeded RTIA's
ability to properly implement the AARTO regulatory regime. It is a
massive cause of concern to RTIA that the regulatory
framework relies
so heavily on the Post Office for its work." (The emphasis is
that of the deponent on behalf of the fourth
respondent.)
•
On the same subject of
the fourth respondent's failure to comply with the peremptory
provisions of the AARTO process, Van Niekerk,
in the founding
affidavit, correctly, points out that the duty to issue a courtesy
letter if an infringer has failed to comply
with an infringement
notice, as described, is also couched in peremptory terms ("the
agency
must
issue a courtesy letter") in section
19 and it is also prescribed, in peremptory terms, what information
the courtesy letter
must
contain.
Van
Niekerk then goes on to point out the following:
"10.11
In addition to these facts, a report entitled
'AARTO
Pilot
Project
Status Report'
dated 26 July 2013,
attached hereto as annexure 'E', which was tabled
before the Department of Transport categorically
states that
infringement notices identical in nature to the notices issued
against the second applicant matter in question have
'stagnated
and will eventually have to be cancelled.
10.12
The second applicant's infringement notices were issued during the
period 2008 to 2013 and since then, it has not progressed
beyond the
stages of infringement notices. I therefore respectfully submit that
these infringement notices should be cancelled,
since the prescribed
processes have not been adhered to and it cannot proceed any further
without violating the provisions of the
Act herein described."
The
reference to what is stated in the AARTO Pilot Progress Status Report
is also not contested in the opposing affidavit.
The
AARTO Pilot Project Status Report is obviously an official document
which goes under the banner of the Department of Transport.
It is
dated 26 July 2013, not long before Van Niekerk lodged her
representations. In the introductory summary of the report a
statement is made that on 1 April 2010 the pilot phase was completed
and both pilot sites (this would be Johannesburg and Tshwane)
were
proclaimed as full AARTO sites.
I
take the liberty to quote a few extracts from the report, which, as I
said, is not disputed, and which would have a bearing on
the present
subject under discussion:
"Due
to a lack of practical knowledge of the implementation process it is
evident that the role players do not have a full
insight into the
practical implementation and are short-sightedly looking at hardware
issues only. It is therefore clear
that the role players are
not really in a state of readiness to implement AARTO."
And
"No
courtesy
letters
and enforcement
orders
being sent out and/or
granted
AARTO administrative process is severely depended
(sic)
upon
very strict timelines and prescribed methods of serving documents via
registered mail.
Failure
from the infringer to respond to any notices within a period of
thirty two days must result in the serving of a courtesy
letter by
the RTIA (registered mail) and after day 64 with an enforcement order
by the RTIA (again registered mail).
As
an example within the City of Johannesburg it took up to 3 years to
re-align the budgetary process to fund the registered mail
process
for the first infringement notices.
Due
to severe financial constraints within the City of Johannesburg,
there was a period that all Johannesburg AARTO infringement
notices
were sent by ordinary mail in direct conflict with section 30(1).
However
after consultation with the budget office, an amount of approximately
R10 million per month was made available as from 22
December 2012.
The projection and motivation was that the payment rate (compliance
that was approximately 25% with normal mail)
will be increased to at
least 50% or 60% with the granting of an enforcement order that will
automatically result in an e-Natis
block. This additional income
would have 'subsidised' the registered mail costs incurred by the
City.
The
RTIA being the legally required body to send out and
fund
the
courtesy letters and enforcement order notifications literally has
had
no funds
to comply with the AARTO Act section 30. No
courtesy letters and enforcement orders have been sent out since 22
December 2012."
(The
emphasis is that of the author of the report.)
And
"The
cases
that cannot be complied
with in
terms of
an enforcement order will eventually need to be
cancelled/withdrawn
from
the
e-Natis system.
Due
to
the
fact
that
the
RTIA is
not
complying
with the
administrative prescription
of sending
out courtesy letters and enforcement
orders all infringement notices are legally null and
void
.
It
therefore makes all law enforcement fruitless and wasteful
expenditure.
National
roll-out
cannot be
considered
unless the
RTIA is financially sustained to comply with section 30.
"
(My
emphasis.)
•
Section 30, which, by the
fourth respondent's own admission was not complied with, stipulates:
"(1)
Any document required to be served on an infringer in terms of this
Act, must be served on the infringer personally or
sent by registered
mail to his or her last known address.
(2)
A document which is sent by registered mail in terms of subsection
(1), is regarded to have been served on the infringer on
the tenth
day after the date which is stamped upon the receipt issued by the
Post Office which accepted the document for registration,
unless
evidence to the contrary is adduced, which may be in the form of an
affidavit."
(According
to the statute which I consulted, the date of commencement of section
30 was 1 July 2008, in the area of the City of
Tshwane and 1 November
2008 in the Johannesburg City
Metropolitan area. In annexure
"D" to the
founding affidavit, which is a schedule of the infringement notices
issued against the second applicant, the
earliest infringement notice
I could find is dated 25 October 2008 which is well after the
commencement of section 30 in the Tshwane
area and only days before
the commencement thereof in the Johannesburg area. Chronologically
the next "oldest" infringement
notice is dated December
2008.)
•
I have already quoted the
contents of paragraph 67 of the opposing affidavit in which the
deponent on behalf of the fourth respondent,
quite properly in my
view, makes the concession that RTIA experienced teething problems
inter alia
because of the challenges faced by the South
African Postal Service. The allegation is made, as I quoted, that the
challenges experienced
by the Post Office have impeded RTIA's ability
to properly implement the AARTO regulatory regime, and that it is a
massive cause
of concern to the agency that the regulatory framework
relies so heavily on the Post Office for its work.
This
submission is made on behalf of the fourth respondent in support of
the latter's argument,
in limine,
that the relief claimed by
the applicants is academic. I will revert to a number of arguments
in
limine
offered on behalf of the fourth respondent.
For
the sake of detail, and while on the subject of the acknowledged
failure by the fourth respondent to comply with the AARTO process,
it
is useful to quote paragraphs 68 to 70 of the opposing affidavit as
well, dealing with the argument
in limine,
to which I will
revert, to the effect that the relief sought has become academic:
"68.
In other words, I am more than happy to accept that many courtesy
letters may not have been
properly
served. But I also
made the point in earlier parts of this affidavit that the Registrar
is mandated by section 20(2) of the AARTO
Act to only ever issue an
'enforcement order' if he is satisfied that the jurisdictional facts
had been met. Because he has not
always been satisfied that those
jurisdictional facts had been met, he has not issued enforcement
orders against the applicants.
Not even in respect of the 208
unsuccessful representations. As far as I am aware, no enforcement
orders have been issued against
the applicants.
69.
The applicants also do not make any positive allegation in their
founding
papers to assert that any of the impugned decisions ever
culminated in enforcement orders. For reasons already advanced, only
enforcement
orders themselves have a direct external legal effect.
Infringement notices on their own do not. Neither do courtesy
letters. A
party's
rights
can therefore only ever be
adversely effected (sic) if an enforcement order has been issued.
Since none have been issued there has
been no adverse impact on the
applicants.
70.
Absent any enforcement orders being issued, and absent any
administrative
action being produced, there is nothing to review. The
review is consequently academic."
(The
emphasis is that of the fourth respondent's deponent.)
•
In the founding
affidavit, Van Niekerk, correctly in my view, also makes the
submission -
"...
that the Agency's compliance with the prescribed periods of
notification is obligatory and not a discretionary matter.
It is an
absolute requirement for the issuing of any enforcement order and
fundamental to the due administrative process envisaged
in terms of
the Act."
[24]
Having now dealt, at some length, with the subject of service of
documents in terms of the AARTO scheme, I return to a few
more
remarks about the background facts and some arguments advanced on
behalf of the parties.
[25]
I return to the subject of the representations made by Van Niekerk
in terms of section 18 after she received the
schedule
listing the second applicant's alleged infringements as at 11
September 2013. In the founding affidavit, Van Niekerk says
she made
570 representations. They were all identical except that some were
suggested to be made at the infringement notice stage
and some at the
courtesy letter stage. It is not clear why this had to be done
because it is common cause that the process was
never advanced beyond
the infringement notice stage and the infringement notices were never
served on the second applicant in terms
of section 30. Nevertheless,
according to the founding affidavit some 155 of the representations
were successful and some 208 unsuccessful
although they were based on
exactly the same grounds, to which I will refer later. Some 207 had
not yet been adjudicated upon and
the unsuccessful representations
had a fee of R200,00 added to each of them thereby incurring a
total penalty of
R4 l 600,00 for the account
of the second applicant. I mentioned earlier that
after the application
was launched the remaining pending
representations were considered and rejected with the exception of
one of them which was successful.
This is why the relief sought
in prayer 3 fell away.
[26]
Van Niekerk received "only a few" so-called "AARTO 09"
or "result of representation" forms at
a late stage in her
capacity as the duly appointed proxy. There was no compliance with
section 30. It may be that the figures as
to the successful and
unsuccessful and pending representations given by Van Niekerk are
wrong because in their heads of argument,
counsel pointed out that
there were only 424 representations and not 570. In the greater
scheme of things, nothing turns on this
for purposes of deciding the
dispute.
[27]
When Van Niekerk enquired about all the "AARTO 09 result of
representation" forms in respect of the representations
she was
told by personnel of the agency who did not want to be identified
that "we don't send them anymore". This is
undisputed. This
also serves to confirm the common cause fact that the fourth
respondent failed completely to comply with the provisions
and
requirements of the AARTO system. Moreover, this failure flies in the
face of the peremptory provisions of section 18(7) directing
the
representations officer, if the representations are rejected, to
advise the infringer of the options available and to serve
or cause
to be served on the infringer a prescribed written notification
informing him or her,
inter alia,
of the reasons for the
decision and provide the issuing authority concerned with a copy
thereof.
In
addition, failure by the administrator to furnish reasons for
administrative action could also be in conflict with the provisions
of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA'')
and, more particularly, section 5 thereof.
[28]
When no reasons in terms of section 18(7) or, for that matter, AARTO
09 forms, were received, Van Niekerk called in the assistance
of the
National Chairman of the Justice Project South Africa ("NPC")
who wrote a Jetter to the members of the section
6 Board representing
the section 3 Agency. Their attention was drawn to the provisions of
section 5 of PAJA and also the fact that
no AARTO 09 forms had been
received. They were reminded of the fact that Van Niekerk was
informed by their staff, with reference
to the AARTO 09 forms, that
"we don't send them anymore". They were also confronted
with the fact that identically worded
representations were upheld in
some instances and rejected in others. They were asked to furnish the
legal grounds on which the
inconsistent decisions were based.
[29]
In response to the letter of the National Chairman, the first
respondent, Deputy Registrar of the Agency, wrote a scathing
Jetter,
not to the National Chairman but to Van Niekerk pointing out to her
that she was not attacking the merits of the alleged
infringements
but simply complaining about failure to serve infringement notices,
courtesy letters and enforcement orders which
was merely an attempt
to circumvent the penalties imposed.
The
first respondent also accused Van Niekerk of acting in breach of her
fiduciary duty towards the second applicant "in terms
of both
common and statutory Jaw failing which you may be held criminally
liable in terms of the provisions of sub-section 5 of
section 332
of
the
Criminal Procedure Act, 1977
". With respect, this is totally
inc01Tect. There are other questionable observations made in the
letter which I need not dwell
upon.
In
conclusion of the letter the first respondent, obviously displaying
bias and unnecessary aggression towards Van Niekerk, stated
-
"...
please note that I have instructed all representations officers to
mark all representations submitted by you under the
same or similar
circumstances as unsuccessful with immediate effect. I am also
considering the reversal of all representations
made successful under
the above circumstances to correct the inconsistencies, as decisions
of representations officers are not
functus
officio.
It would appear that you indeed were informed of the outcome
hence your complaint of inconsistencies in the adjudication results
albeit not on the prescribed form. The fact that AARTO 09 forms are
not being dispatched may be ascribed to the same financial
difficulty
the Agency finds itself as with courtesy letters and enforcement
orders. This is no secret and has been made public
..."
The
fact that all the pending representations were subsequently rejected
(barring the one successful one) may well be the result
of the first
respondent's declared intention to order the representations officers
to act accordingly. Moreover, under these circumstances
it would be
arguable, as did counsel for the applicants, that the representations
officers were not allowed to exercise their discretion
freely and
that they were unduly influenced.
All
these developments, including the obvious unreasonable and biased
approach adopted by the first respondent, would be relevant
to the
review grounds offered by the applicants in terms of
section 6
of
this PAJA review. I add that the applicants were at pains to point
out that the review was not necessarily only based on PAJA
but was
also properly launched as a so-called "legality review". I
will briefly return to these subjects.
[30]
The National Chairman wrote a further letter to the first respondent
confronting him with the contents and tenor of his letter
to Van
Niekerk and pointing out that a
section 6
PAJA review was being
contemplated.
[31]
Added to all this, was the refusal by the Agency, in answer to a
request for those details by Van Niekerk's erstwhile attorney,
to
furnish particulars of the identities of the representations
officers. This, as I have explained, had to be obtained by means
of
the
Rule 53(4)
record and the subsequent joinder application.
[32]
The reasons, as requested, were never furnished. Reasons for the
conflicting decisions of the representations officers in respect
of
identical representations only emerged after this application was
launched and when the
Rule 53(4)
record was supplied. Broadly
speaking, it appears that some of the representations officers felt
that failure to attack the merits
of the alleged infringements was
fatal to those representations which justified their rejection. Other
representations officers,
as I mentioned, upheld the representations.
[33]
On a general reading of all these exchanges, including the refusal to
furnish reasons, the apparent bias and unreasonableness
displayed by
the Deputy Registrar and the refusal to disclose the identity of the
representations officers I am left with the impression
that there is
much to be said for the review grounds offered by the applicants in
their PAJA review, alternatively their legality
review. I will return
to this subject.
[34]
So much for the background facts and some arguments offered on behalf
of the respective parties.
[35]
I turn to the details of the
identically worded representations submitted
by Van Niekerk.
Particulars
of the representations
submitted
by Van Niekerk
[36]
Two examples of these representations are attached to the founding
papers. They are identical, except that in one instance
the words
"infringement notice" in the last paragraph was replaced
with the word "courtesy letter". Nothing
turns on this.
[37]
1 quote the "motivation" which forms part of the
representation prepared on a forn1 AART0 08:
"Section
19(1) of the AARTO Act states that 'if an infringer has failed to
comply with an infringement notice as contemplated
in section l
7(l)(f) and the Agency has been notified of the failure in terms of
section 17(2),
the Agency
must
issue a
courtesy
letter and serve it
on the infringer'
. The
period contemplated in section 17(1)(t) is currently 32 days
after the
date
of service
of the infringement
notice.
Section
20( l )(a) of the AARTO Act, states that 'if an infringer fails to
comply with the requirements of a notification contemplated
in
section 18(7) or a courtesy letter contemplated in section I 9(2)(b)
or has failed to appear in Court as contemplated in section
22(3), as
the case may be,
the
Registrar
must,
subject
to
subsection
(2)
issue
an
enforcement
order,
serve it on the infringer and update the National Contraventions
Register accordingly'.
The
word
'must'
does not infer that these are optional
provisions and the periods of time referred to are in no way
ambiguous or open to interpretation.
Additionally, the e-Natis system
automatically disallows the discount after an automatically
calculated period has expired, on
which date, the courtesy letter
must
be generated. It is therefore not reasonable to
expect that the issuing authority would need to 'notify the Agency'
in order for
a courtesy letter to be issued, given the fact that the
Agency, and the e-Natis system would in fact be in a better position
to
know whether an infringement notice has been paid or not.
In
addition to these facts, the report entitled 'AARTO Pilot Project
Status Report' dated 26 July 2013 which was allegedly tabled
before
the Department of Transport categorically states that infringement
notices identical in nature to the matter in question
have
'stagnated' and will eventually have to be cancelled. Ibis
infringement notice was issued on 2013/03/20 and since then, it
has
not progressed beyond 'infringement notice' despite the fact that it
should have been an Enforcement Order already. I therefore
respectfully submit that this infringement notice should be
cancelled, since the prescribed processes have not been adhered to
and it cannot proceed any further without violating the provisions of
the Act herein described."
(The
emphasis is that of Van Niekerk who crafted the representations.)
[38]
This particular representation was signed by Van Niekerk on 25
September 2013. This is shortly after the Agency provided Van
Niekerk
with the schedule listing the second applicant's alleged
infringements as at 11 September 2013.
[39]
As I pointed out, a substantial number of these representations were
upheld, and rightly so in my view, whereas a substantial
number of
the identically worded representations were rejected, presumably on
the basis that the "merits" of the alleged
infringement
were not attacked in the representation and a further substantial
number remained pending by the time when the application
was
launched. As I pointed out, they were later, barring one that was
upheld, rejected, presumably after the first respondent Deputy
Registrar instructed the representations officers to do so, as he
mentioned in his scathing letter to Van Niekerk of 29 October
2013. I
take the liberty, at the risk of unnecessary repetition, to revisit
his conclusionary words in this letter:
"In
conclusion, please note that I have instructed all representations
officers to mark all representations submitted by you
under the same
or similar circumstances as unsuccessful with immediate effect. I am
also considering the reversal of
all
representations made successful
under the above circumstances
to correct the
inconsistencies, as decisions of representations officers are
no
t
functus
officio."
This
letter of the first respondent Deputy Registrar is dated 29 October
2013 and the pending representations were rejected after
that, and
after this application was launched in April 2014.
[40]
It is convenient, at this point, to deal, in part, with the merits of
the review application of the applicants, with particular
reference
to the so-called "legality review" which is offered in
addition to or in the alternative to the PAJA review:
•
The fourth respondent
concedes that in exercising their functions the representations
officers do so as part of the administrative
process.
•
As counsel for the
applicants correctly point out in their comprehensive heads of
argument, decisions of an administrative nature
which may not amount
to "administrative action" as defined in PAJA, may
nevertheless constitute grounds for judicial
review under the
principle of legality, which is applicable to all exercises of public
power and not only to administrative
action as defined in PAJA
and which requires that all exercises of public power be, at the
minimum, lawful and rational –
see
Khumalo v
MEC
for Education, Kwa-Zulu Natal
2014 5 SA 579
(CC) at
587G-588A; Freedom Under Law v National Director of Public
Prosecutions and Others 2014 I SA 254 (GNP) at 290E-G.
•
It seems to me that this
principle of legality was initially recognised in the leading case of
Fedsure
Life
Assurance v
Greater
Johannesburg Transitional
Metropolitan
Council
and
Others
1999 I SA 374 (CC) at
400D-401A where the following is said:
"[58]
It seems central to the conception of our constitutional order that
the Legislature and Executive in every sphere are
constrained by the
principle that they may exercise no power and perform no function
beyond that conferred upon them by law. At
least in this sense, then,
the principle of legality is implied within the terms of the interim
Constitution. Whether the principle
of the rule of law has greater
content than the principle of legality is not necessary for us to
decide here. We need merely hold
that fundamental to the interim
Constitution is a principle of legality.
[59]
There is of course no doubt that the common-law principles of
ultra
vires
remain under the new constitutional order.
However, they are underpinned (and supplemented where necessary) by a
constitutional
principle of legality. In relation to 'administrative
action' the principle of legality is enshrined in section 24(a). In
relation
to legislation and to executive acts that do not constitute
'administrative action', the principle of legality is necessarily
implicit
in the Constitution. Therefore, the question whether the
various local governments acted
intra vires
in this case
remains a constitutional question."
•
In this
case, the official AARTO Pilot Project Status
Report pronounces that -
"Due
to the fact that the RTIA is not complying with the administrative
prescription of sending out courtesy letters and enforcement
orders
all infringement notices are legally null and void.
It
therefore makes all law enforcement fruitless and wasteful
expenditure.
National
roll-out cannot be considered unless the RTIA 1s financially
sustained to comply with section 30."
As
I pointed out, this report is dated 26 July 2013, shortly before the
schedule presented to the applicants by the Agency saw the
light in
September 2013 and was followed by Van Niekerk's representations in
the same month.
•
I have also pointed out
that the fourth respondent's deponent, correctly, conceded that the
whole process is flawed and that no
enforcement orders can be or have
been issued against the applicants. I quoted paragraphs 67 to 70 of
the opposing affidavit. Indeed,
I recorded that the deponent on
behalf of the fourth respondent submitted that the review application
is of no more than academic
significance because there is "nothing
to review".
•
Under these
circumstances, the Agency, represented by the representations
officers, acted beyond their statutorily conferred powers
by not
following the AARTO process, couched in peremptory terms, but
nevertheless imposing fines and penalties after adjudicating
upon the
representations. By their own admission, these were fruitless
exercises, amounting to nothing more than "wasteful
expenditure".
In
addition, their actions, such as they were, amounted to irrational
conduct in that conflicting decisions were given in respect
of
identically worded representations, no reasons were given for the
decisions, there was a refusal to disclose the identity of
the
representations officers and the actions of
the
first
respondent were patently biased and unreasonable,
inter alia,
where he instructed the representations officers to "mark
all representations submitted by you under the same or similar
circumstances
as unsuccessful with immediate effect".
•
In short, they offended
the principle of legality which dictates that they may exercise no
power and perform no function beyond
that conferred upon them by law
as stated by the learned Judge in
Fedsure
at 400D-E.
[41]
For these reasons, I have come to the conclusion, and I find, that
the review application falls to be upheld on the basis,
at least,
that the fourth respondent, represented by the representations
officers and others, performed actions which fly in the
face of the
principle of legality.
[42]
In conclusion on this subject, I add, with respect, that counsel for
the fourth respondent, in their comprehensive heads of
argument,
failed, in my view, to offer any persuasive arguments to counter what
I consider to be a compelling case for a. legality
review. This is,
with respect, perhaps not surprising in view of the proper concession
that the AARTO process was not complied
with and any steps which may
have been contemplated against the second applicant were rendered
unenforceable.
The
main thrust of the fourth respondent's argument on legality appears
to be that a case for a legality review was not made out
in the
founding papers but rather in the replying affidavit.
In
my view, the relevant facts were fully canvassed in a comprehensive
founding affidavit with annexures, to which I have referred
in some
detail. The facts relating to a PAJA review, in this instance,
do not differ from the facts relating to the legality
review. The
reliance on a legality review amounts to legal argument. No new
matter was introduced in the replying affidavit to
sustain a legal
argument on legality review which did not already appear in the
founding papers.
In
my view, this is not a classic case such as that in the well-known
judgment of
Titty's
Bar
and
Bottle
Store
(Pty)
Ltd
v A.B.C.
Garage
(Pty) Ltd
and
Others
1974 4 SA 362
(TPD). In
that case, it seems to me, the principle was reaffirmed that facts
necessary to sustain the case ought, generally, to
appear in the
founding affidavit and ought not to be introduced anew, to the
surprise and prejudice of the respondent, in the replying
affidavit -
see
Titty’s Bar
at 368H-369B.
In
any event, "it lies, of course, in the discretion of the Court
in each particular case to decide whether the applicant's
founding
affidavit contains sufficient allegations for the establishment of
his case"
(
Titty's Bar
at 369A-B).
In
the present case, I am satisfied that the necessary allegations, also
to sustain a case for a legality review, appear in the
founding
affidavit and, inasmuch as it may be necessary, I exercise my
discretion in favour of the applicants in this regard.
[43]
I add, that it is stated emphatically in the replying affidavit that
the applicants' review was not only located in PAJA "as
is
suggested by the respondent ... to the extent that PAJA may not
apply, which is not conceded, the review is based on the principle
of
legality".
Later
in the replying affidavit it is also stated that the application is
primarily directed at a review of the legality of the
decisions
sought to be impugned and that "if PAJA does not apply, the
principle of legality will".
The
following submission is also made in the replying affidavit:
"It
is denied that the decisions of the representations officers cannot
be characterised as administrative action. It is submitted
that the
decisions of the representations officers constitute administrative
action which is reviewable in terms of PAJA or on
the basis that the
decisions lack legality."
[44]
Inasmuch as the reliance on a legality review may not have been
pertinently stated in the founding affidavit, this could not
have led
to any prejudice on the part of the fourth respondent. Indeed, this
is not a case where the fourth respondent may have
required an
opportunity to file a further affidavit in order to remedy such
prejudice. As I mentioned, the facts alleged in the
founding
affidavit also cover the argument for a legality review.
[45]
This, in my view, is really the end of the matter, but, where the
fourth respondent raised a number of arguments
in limin
e
,
which do not have a direct bearing on the legality review, and
which counsel urged me not to rule on at the commencement of the
proceedings but only after the issues had been fully canvassed, I
will, nevertheless, briefly deal with those arguments in deference
to
the fact that they were raised on behalf of the fourth respondent.
The
arguments
in limine
(i)
First
argument
in
limine:
the
review,
located in
PAJA, was
instituted
out
of time and
there
was
no
condonation application
or
an
application
for
an
extension
of the permissible
time
periods
afforded under PAJA
[46]
As I pointed out, this argument, in any event, does not apply to a
legality review.
[47]
As l explained, no reasons were supplied for the rejection of the
unsuccessful representations despite such reasons having
been
requested. No AARTO 09 forms were supplied in this regard and Van
Niekerk was informed that the Agency did not "send
them
anymore". Consequently, the fourth respondent failed to comply
with the peremptory provisions of section 18(7) to which
I have
referred.
[48]
AARTO 09 forms were only obtained by the applicants after they had
instituted this application in April 2014. It only happened
when the
fourth respondent was requested, in terms of Rule 53(4), to produce
the record. This happened in three tranches in June,
July and August
2014.
[49]
It follows that the applicants were only informed of the
administrative action or became aware of such action that had been
taken and the reasons therefore as required by section 7(l)(b) of
PAJA, after the record was finally filed which occurred on 12
August
2014. Until that date there was no compliance with the provisions of
section 18(7) of AARTO.
[50]
Counsel for the applicants argued that even if the impugned decisions
do not constitute "administrative action" as
intended by
PAJA, the decisions taken in terms of section 18(5) of AARTO are
nevertheless of an administrative nature, reasons
for which, in terms
of section 18(7) of AARTO, were only given on 12 August 2014 when the
full record had been filed.
[51]
No delay could have occurred as the outcome itself, divorced of its
reasons, does not constitute a decision contemplated by
AARTO in the
absence of service of the reasons for the decision. Put differently,
as counsel argued, the decision-making process
is only completed on
service of the reasons for the decision.
[52]
Moreover, as mentioned, the fourth respondent furnished Van Niekerk
with a spreadsheet of all outstanding infringement notices
and it was
this document that was used to establish which infringement notices
should be the subject of representations.
The
spreadsheet was authored by the fourth respondent's members on 11
September 2013 and the representations were submitted on 25
September
2013. The dates of the unsuccessful representations range from 30
September 2013 to 23 October 2013.
[53]
The fact remains, as was argued by counsel, that no reasons were
given for the action until service of the record in August
2014 so
that the periods referred to in section 7(l)(b) of PAJA are not
applicable and no delay occurred, nor did it occur if that
section
does not apply. The applicable period, in terms of this subsection,
is that the proceedings for review must be instituted
within 180 days
(about six months) from the time when the aggrieved person became
aware of the action and the reasons for it or
might reasonably have
been expected to have become aware of the action and the reasons. Of
course, in this case, the applicants
only became so aware after they
instituted the proceedings, because no reasons were furnished,
despite a request for that to happen
and no AARTO 09 forms were
supplied.
[54]
Counsel for the applicants argued, correctly in my view, that the
dates of the alleged transgressions between December 2008
and August
2013, are irrelevant for purposes of deciding this issue. On a proper
reading of PAJA, it is the date on which the applicants
were informed
of the reasons for the rejection of the representations which is
relevant.
[55]
In any event, the scathing letter from the first respondent,
addressed to Van Niekerk, is only dated 29 October 2013, and
correspondence from the National Chairman flowing from that is dated
November 2013. That is when it became apparent that a review
application was indicated and the National Chairman said as much in
his letter of 5 November 2013. Only on 12 November 2013 did
the attorneys representing Van Niekerk ask the
Registrar of the Agency for details of the representations officers
concerned. This was declined only on 28 November on the basis that
the relevant proxy in terms of which Van Niekerk was acting
had to be
furnished. The application was lawiched well inside six months after
this .development. I add that it appears clearly
from the replying
affidavit that a challenge by the fourth respondent of the validity
of Van Niekerk's proxy was unfounded. The
proxy, attached to the
papers, was also registered on the e-Natis system.
[56]
Even if l were to find that there was an unreasonable delay
(which appears to be not to be the case) it seems that such
delay is
fully explained in the papers and must largely be laid at the door of
the fourth respondent and its officers. I see no
prejudice for the
fourth respondent, particularly in view of the latter's admission
that the enforcement process has stagnated
and that enforcement
orders will not, because jurisdictional requirements have not been
met, be issued.
[57]
Counsel reminded me of the provisions of section 9 of PAJA allowing
for a Court to extend the periods, including the 180 day
period "for
a fixed period" on application by the aggrieved party where the
interest of justice so require. Such an "application"
can
be said to have been introduced in the heads of argument of counsel,
although it seems to me to be unnecessary because there
would be no
point in a fixed period extension, the proverbial horse having bolted
and the application having been launched almost
three years ago.
[58]
In all the circumstances, I see no merit in the argument offered on
behalf of the fourth respondent that the PAJA review application
was
out of time. This argument
in limine
therefore falls to be
dismissed.
(
ii )
The
decisions
of
the
representations
officers
are
not
reviewable
because
they
do
not
constitute
"administrative
action" as defined in section 1 of PAJA
[59]
Of course, this argument, also, does not apply to the legality
review.
[60]
The definition of "administrative action" in PAJA, provides
that it includes any decision taken, or any failure to
take a
decision by -
"(a)
an organ of state ... or
(b)
a natural juristic person other than an organ of state when
exercising a public power
or performing a public function in terms of
an empowering provision
which
adversely
affects
the
rights
of
any
person
and
which
has
a
direct,
external legal effect
,
..." (Emphasis added.)
[61]
The main thrust of the argument of the fourth respondent is that the
action of the representations officers cannot amount to
administrative action because it has no final effect on the rights of
the infringers. It is argued that where the representations
officer
rejects an infringer's representation it is not yet the "end of
the road" for the infringer. The latter has the
opportunity to
elect to be tried in Court under section l 8(7)(b) and (c). Of
course, such an election will not even come into
play given the fact
that the AARTO procedure was not followed at all. It was argued that
the decisions of the representations officers
had no adverse legal
effect, in the spirit of the definition, because, for the reasons
mentioned, no enforcement orders can, or
will, be issued.
[62]
It was argued on behalf of counsel for the applicants that the
mere presence of entries on the National Contraventions
Register of
the alleged infringements, as happened in this case, adversely
affects the rights of the applicants and has a direct,
external legal
effect.
Examples
of the provisions in AARTO providing for
updating of this National Contraventions Register
("NCR")
and, indeed, for
cancellation
of infringement notices
appear in sections 17, 18, 19 and 20 and were briefly referred
to in the condensed summary of the
AARTO structure mentioned earlier
in this judgment.
Consequently,
so it was argued, the alleged infringements of the second applicant
which have been recorded on the NCR will continue
to stand (unless
removed as a result of a successful review application) despite the
fact that it may be tainted by a materially
flawed and unlawful
procedure which led to the recordal, as happened in this instance.
Moreover, such irregular infringement notices
will continue to be
displayed on the NCR, despite the fact that the authorities may have
no intention of enforcing them by way
of an enforcement order.
[63]
Counsel also argued that there is no effective guarantee that
enforcement orders may not become a reality some time in future.
[64]
Moreover, counsel pointed out that the laws on prescription are not
applicable to penalties and fees payable in terms of AARTO
and may be
collected at any time - see section 31(2) of the Act.
[65]
It was argued by counsel that the adverse effect is a result of the
representations officers' decisions to ignore the representations
that the whole process was flawed and unlawful. In so doing, so the
argument goes, the infringer is affected in that he will neither
obtain the rights that a company has following a successful
representation, namely the cancellation of the infringement notice
on
the NCR at the instance of the Agency, nor will he be able to elect
to go to court. Remaining on the NCR for all to see while
the process
was flawed and unlawful affects the reputation and dignity of the
infringer as well as his right to just administrative
action.
[66]
It was also argued on behalf of the applicants that, at the
very least, the adverse decisions of the representations
officers
have the capacity to affect adversely the alleged infringer's rights
in the respects mentioned - see
Gray's
Marine
Hout
Bay (Pty) Ltd
and Others v
Minister
of Public
Works and Others
[2005] ZASCA 43
;
2005
6 SA 313
(SCA) at 323D-F.
[67]
It was also argued that the decisions have a direct external
legal effect, in the spirit of the definition, because the infringer
does not have an automatic choice to elect to go to Court because it
is the representations officer, within his discretion, who
has to
advise the infringer that he has a choice whether or not to elect to
be tried in Court - see section 18(7) of the Act. Having
availed the
infringer of his choice to elect to be tried when the record was
served long after 32 days had passed to do so, effectively
deprived
the infringer to make such election. The decisions accordingly
produced a final effect.
[68]
It was also argued on behalf of the applicants that it is apparent
that an infringer's details should not be recorded on the
NCR if he
is not guilty of an offence or infringement. It was argued that the
infringer's details should not be recorded on the
NCR until his
representation, whether at infringement stage or courtesy letter
stage, is rejected. It is only after an infringer
elects to pay that
he is, quite correctly, considered to be guilty of the infringement
whereafter his details will be recorded
on the NCR. Of course, given
the fact that the AARTO process was not complied with in any sense of
the word, these options, including
representations made in regular
fashion, are no longer open to the applicants.
[69]
In any event, it seems to me that where the process was tainted it
would not be in the interest of justice to allow details
of the
alleged offences, which could not be addressed because of the tainted
procedure, to remain on the NCR on a permanent basis.
[70]
Against this background, I have come to the conclusion, and I find,
that the actions of the fourth respondent, represented
by the
representations officers, fell inside the ambit of the PAJA
definition of administrative action.
Consequently, this argument
in limine,
also, falls
to be dismissed.
(iii)
Internal
remedies
have
not been exhausted
[71]
Section 7(2) of PAJA stipulates that subject to section 7(2)(c), no
Court or tribunal shall review an administrative action
in terms of
PAJA unless any internal remedy provided for in any other law has
first been exhausted. Subsection (c) stipulates that
in exceptional
circumstances and on application of the person concerned, the Court
or tribunal may exempt such person from the
obligation to exhaust any
internal remedy if it is deemed to be in the interest of justice.
[72]
In this instance, it was argued on behalf of the fourth respondent
that the internal remedies lie in
the choice to
approach the Court or by applying to the respondent to revoke the
infringement order.
[73]
It was argued on behalf of the applicants that, on a proper
interpretation of AARTO, there is no provision for internal remedies
which need first to be exhausted as contemplated in PAJA or the
common law.
[74]
The representations officers' decisions are also a final
determination on the matters which serve before them having regard
to
their functions as defined in terms of AARTO.
[75]
Moreover, the non-compliance by the respondents with the
AARTO procedure resulted in the second
applicant, as
described, being unable to elect to go to Court and there is an
indication that there are no enforcement orders to
be issued which
may be revoked.
[76]
In any event, it appears that the only remedy left for the applicants
was to approach this court on the basis of a review application.
[77]
In the result, this argument
in limine
also falls to be
dismissed.
(iv)
The relief claimed
is academic
[78]
I have dealt with this issue, to some extent, when quoting from
paragraphs 67 to 70 of the answering affidavit.
[79]
Counsel for the applicants argued that the suggestion by the
respondent that no enforcement orders may be issued affords no
answer
to the fact that the infringements nevertheless remain on the NCR.
With this submission I agree.
[80]
Penalties and fees imposed, which do not prescribe, and infringements
recorded on the NCR remain despite the illegality of
the decisions
taken and it can hardly be contended, so it was argued, that the
matter is academic.
[81]
It was argued that the administrative action remains present and
detrimental to the rights or interests of the applicants as
well as
those of the public against whom AARTO may be enforced.
[82]
As I mentioned, the applicants have no guarantee that enforcement
orders may not in due course be issued, and the question
of
prescription also does not come into play.
[83]
It was argued that when the matter is in the public interest, such as
in this case, it is in the interest of justice to have
it adjudicated
upon.
[84]
In the result, I have come to the conclusion, and I find, that the
relief sought has not become academic in nature so that
this argument
in limine
should also be rejected.
[85]
So much for the arguments
in limine.
Revisiting
the fourth respondent's "defence on the merits"
[86]
The main thrust of the fourth respondent's case lies in the arguments
in limine
which I have dealt with.
[87]
Under the heading "RTIA's defence on the merits" the fourth
respondent offers no more than an analysis of an internal
policy
document referred to as its "Standard Operating Procedure:
Adjudications". This document purports to provide guidelines
to
representations officers as to what requirements are to be met before
representations can be adjudicated upon and examples when
representations are to be successful and when they are to be
unsuccessful.
[88]
In view of this, it is argued on behalf of the fourth respondent that
it was quite understandable that some representations
officers could
uphold representations identical to other representations which were
rejected by other representations officers.
With respect, I find this
argument unconvincing, and only make the following remarks:
•
In my view, it remains an
indication of irrationality on the part of the decision-makers if
they come to diametrically opposed conclusions
in respect of
identically worded representations.
•
There is a provision in
the "Standing Operating Procedure" to the effect that
"representations will always be unsuccessful
if the infringer
has not actually disputed the road traffic
violation or if the infringer's
explanation is not supported by any acceptable evidence
or else is simply improbable". This is clearly
ultra vires
the provisions of AARTO: there is no provision in AARTO to the
effect that the section 18 representations are limited to a debate
on
the merits of the infringement. There are not, and· cannot be,
any prohibitions against an infringer advancing a technical
argument
such as irrationality and/or illegality on the part of the Agency and
its officers who failed to comply with the AARTO
structure or
procedure.
[89]
No other defences on the "merits" are offered on behalf of
the fourth respondent.
[90]
I have already dealt with a rather cursory argument offered in an
attempt to counter the case for a legality review. That
argument I have already rejected.
The
grounds of review offered on behalf of the applicants
[91]
The review grounds are properly described and tabulated and clearly
fall inside the ambit of section 6 of PAJA and also the
ambit of what
is required to sustain a successful legality review.
[92]
The grounds are,
inter alia,
concisely tabulated in paragraphs
22 to 24 of the founding affidavit. They are compelling and need not
be repeated.
Conclusion
[93]
In all the circumstances, I have come to the conclusion, and I find,
that the review application falls to be upheld, either
in terms of
PAJA, or as a legality review, or both.
[94]
As to costs, there is no reason why these should not follow the
result in terms of the general practice. The costs flowing
from the
employment of two counsel would also be justified.
The
order
[95]
I make the following order:
1.
The first, alternatively fourth, alternatively fifth to ninth
respondents'
decisions in terms whereof the first applicant's
representations lodged in terms of section 18 of the Administrative
Adjudication
of Road Traffic Offences Act (Act 46 of 1998) were
rejected, are reviewed and set aside.
2.
The decisions by the first, alternatively the fourth, alternatively
fifth
to ninth respondents to impose additional penalties in terms of
the Administrative Adjudication of Road Traffic Offences Act (Act
46
of 1998) subsequent to the rejection of the first applicant's
representations
mentioned in 1
above
, are
reviewed and set aside.
3.
The fourth respondent is ordered to pay the costs of this application
which
will include the costs flowing from the employment of two
counsel.
W
R C PRINSLOO
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
30586/201
4
HEARD
ON: 7 SEPTEMBER 2016
FOR
THE APPLICANTS: J H DREYER SC ASSISTED BY J W SCHABORT
INSTRUCTED
BY: GRIESEL & BREYTENBACH ATTORNEYS
FOR
THE 4rn RESPONDENT: KEVIN HOPKINS & AYITEY AYAYEE
INSTRUCTED
BY: MAJAVU INCORPORATED