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[2017] ZAGPPHC 140
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Road Traffic Infringement Agency Board v Fines 4 U (Pty) Ltd and Another (30586/2014) [2017] ZAGPPHC 140 (5 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
CASE
NO: 30586/2014
DATE:
5/5/2017
Not
reportable
Not of
interest to other judges
Revised.
In
the application for leave to appeal brought by
THE
ROAD TRAFFIC INFRINGEMENT
4
TH
RESPONDENT
A QUO
AGENCY
BOARD
In
the original matter between
FINES
4 U (PTY)
LTD 1
ST
APPLICANT
BRETT
HUDSON (PTY) LTD t/a AUDI
CENTRE 2
ND
APPLICANT
JOHANNESBURG
(PTY) LTD
AND
SHERMAN
M AMOS, DEPUTY REGISTRAR:
ROAD 1
ST
RESPONDENT
TRAFFIC
INFRINGEMENT AGENCY
THE
MINISTER OF
TRANSPORT 2
ND
RESPONDENT
THE
DIRECTOR-GENERAL, DEPARTMENT
OF 3
RD
RESPONDENT
TRANSPORT
THE
ROAD TRAFFIC INFRINGEMENT
AGENCY 4
TH
RESPONDENT
BOARD
MR R
MANNAFELA 5
TH
RESPONDENT
ADV 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
IN THE 4
TH
RESPONDENT'S APPLICATION FOR LEAVE TO APPEAL
PRINSLOO,
J
[1]
The fourth respondent applies for leave to appeal to the Supreme
Court of Appeal against my judgment dated 22 February 2017.
[2]
The fourth respondent was the only respondent which took an active
part in the proceedings before me.
[3] To
avoid confusion, I shall refer to the parties, for purposes of this
application, as they were cited in the proceedings before
me even
though the applicants in those proceedings are now the respondents
opposing the application for leave to appeal and the
fourth
respondent is the applicant for leave to appeal.
[4]
Before me, Mr Hopkins appeared for the fourth respondent and Mr
Dreyer SC with Mr Schabort, for the applicants.
[5]
The reasons for the conclusions I arrived at appear from the
judgment, and I do not intend to embark upon unnecessary repetition.
[6] In
the application for leave to appeal, it is stated that I held that
the impugned decisions were reviewable on "three
broad bases"
namely that they were:
(a) tainted with bias,
(b) irrational and
(c) taken without the mandatory statutorily prescribed process being
followed.
These
three "bases" are then dealt with in the application.
Whilst I do not necessarily concede that my conclusions,
as they
appear from the judgment, can necessarily be limited to these three
"bases", I shall deal with the submissions
made in respect
of each of those subjects.
[7]
These subjects or "bases" are categorised into three
grounds of appeal by the fourth respondent and I will deal with
them
along those lines:
•
The first ground of appeal:
bias
[8]
This has to do with the scathing letter which the first respondent,
Deputy Registrar of the Agency, wrote to Van Niekerk in
response to
the letter written by the National Chairman of the Justice Project
South Africa ("NPC").
[9]
The subject is dealt with in paragraphs [28] to [33] of the judgment.
[10]
It was argued that the letter of the 1
st
respondent does
not display any bias. My conclusion was that on a general
reading of all the exchanges, including the
refusal to furnish
reasons, the apparent bias and unreasonableness displayed by the
first respondent and the refusal to disclose
the identity of the
representations officers I was 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.
[11] I
am not persuaded that an appeal on this ground
would
have a
reasonable prospect of success as intended by the provisions of
section 17(1)(a)(i) of the Superior Courts Act 10 of
2013 ("the
Act").
In
their comprehensive heads of argument, counsel for the applicants
reminded me of recent authorities to the effect that it has
now
become accepted that the use of the word "would" indicates
a measure of certainty that another Court will differ
from the Court
whose judgment is sought to be appealed against. Counsel,
correctly in my view, submitted that "to this
extent the
threshold for granting leave to appeal has been raised".
It seems that this is now generally accepted to
be the position.
•
The second ground of appeal: irrationality
[12]
This subject is dealt with in paragraphs [87] and [88] of the
judgment. It involves a consideration of the "standing
operating procedure" containing a provision 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". I came to the conclusion
that this is
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.
I concluded that 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.
[13]
In support of its argument, the fourth respondent relied on the case
of
Agri Wire (Pty) Ltd and Another v Commissioner, Competition
Commission, and Others
2013 5 SA 484
(SCA).
Counsel
for the fourth respondent submitted that this was a matter that
concerned the Competition Commission's power to create an
internal
policy document that gives them the authority to grant immunity to
whistle blowers, and it was held that this was not
inconsistent with
the broad powers given to the Commission to "bust cartels"
even though that specific power was not
expressly provided for in the
Competition Act, Act 89 of 1998. Similarly, so it was argued,
in this matter, RTIA's Operating
Manual is not expressly authorised
in the AARTO Act but its provisions are consistent with achieving the
broad objectives given
to RTIA.
[14]
On behalf of the applicants it was argued, correctly in my view, that
Agri Wire
does not find application in this matter. The
representations officer has to duly consider a representation and
cannot be
hamstrung in exercising that duty. The prescribed
measure to reject a representation where the infringer does not
dispute
committing the offence, is not a measure enabling a
representations officer to perform his function. Indeed, it
amounts to
unlawfully fettering the discretion of the representations
officer. In this sense, the present matter, and the creation of
paragraph 18 of the Operating Manual, is distinguishable from what
was found in
Agri Wire
: it was submitted by counsel for
the applicants that the representations officers' power to consider
representations requires them
to take into account any reasonable
grounds on which those representations may be based – see
sections 18(2) and (4)(2)(b)
of the AARTO Act. This would
include the grounds contained in the representations, to the effect
that the AARTO regime or
procedure was not followed. The
discretion of the representations officers cannot be fettered by the
dictates of an Operating
Manual as it does not afford them the
opportunity to make an informed decision. I agree with these
submissions. It
follows that the decisions by representations
officers to reject representations on the ground proposed in
paragraph 18 of the
Operating Manual are irrational and fall to be
reviewed for that reason.
[15]
In the result, I am also not persuaded that this second ground of
appeal is one which would have a reasonable prospect of success.
•
The third ground of appeal: remedy
[16]
In the judgment, and more particularly in paragraph 23 thereof, it
was illustrated that it is common cause between the parties
that, in
imposing fines and penalties on the second applicant, the respondents
completely failed to comply with the statutorily
prescribed AARTO
regime. The mandatory requirements were not met. In the
judgment, there was extensive references
to the contents of the
"AARTO Pilot Project Status Report" of 26 July 2013 where
it was acknowledged that the AARTO regime
was not complied with 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."
[17]
In pargraph 8 of the application for leave to appeal, the following
is stated on behalf of the fourth respondent:
"In para 40 of the judgment, the Court
a quo
held that
RTIA did not follow the statutorily mandated process and, in so
doing, the 'representations officers acted beyond their
statutorily
conferred powers' and that this 'offends the principle of legality
which dictates that they may exercise no power and
perform no
function beyond that conferred upon them by law ...' With
respect, these statements are entirely
correct
. (The
emphasis is that of the applicant.) We take no issue with
the finding that because RTIA did not strictly
comply with a mandated
procedure, the infringement notices that were issued cannot be
enforced. In other words, we accept
that RTIA cannot
permissibly compel Fines 4 U to pay fines issued in an
ultra
vires
manner. However, the court
a quo
then set
aside the impugned decisions taken by the representations officers,
after finding that the process was
ultra vires
. It is,
with respect, submitted that the court
a quo
erred in its
choice of remedy and that 'setting aside' ought not to have
followed a finding that the impugned decisions were
reviewable on the
basis of legality."
[18]
It is difficult to understand why a successful legality review should
not have followed upon a finding that the officials acted
beyond
their statutorily conferred powers. This is common cause.
It seems to me that these are exactly the circumstances
under which a
legality review is indicated.
[19]
Counsel for the fourth respondent argued, correctly, that "legality
may, on occasion, be overwritten by competing considerations
including those of practicality". Counsel referred to the
well-known case of
Oudekraal Estates v City of Cape Town
2004
6 SA 222
(SCA) at paragraph [36] and
Bengwenyama Minerals (Pty)
Ltd v Genorah Resources (Pty) Ltd
2011 4 SA 113
(CC) at paragraph
[85]. It seems to me that the situation is clearly explained in
Chairperson, Standing Tender Committee and Others v
JFE Sapela Electronics (Pty) Ltd and Others
2008 2 SA 638
(SCA) where the learned Judge says the following in paragraph [28] at
649J 650B:
"In appropriate circumstances a Court will decline, in the
exercise of its discretion, to set aside an invalid administrative
act. As was observed in
Oudekraal Estates (Pty) Ltd v City
of Cape Town
2004 6 SA 222
(SCA) paragraph [36] at 246D:
'It is that discretion that accords to judicial review its essential
and pivotal role in administrative law, for it constitutes
the
indispensable moderating tool for avoiding or minimising injustice
when legality and certainty collide.'
A typical example would be the case where an aggrieved party fails to
institute review proceedings within a reasonable time ..."
On a
general reading of these decisions, it is clear that a Court will
decline to set aside an invalid administrative act, in the
exercise
of its discretion, when failure to do so could result in prejudice to
the respondent or to third parties. In the
present case, no
case was made out by the fourth respondent which suggests such
prejudice or injustice. It is clear,
as argued by counsel
for the applicants, that the fourth respondent will suffer no
prejudice if the invalid administrative acts,
the invalidity of which
is common cause, are set aside, as was done in this judgment under
attack.
[20]
The case of the fourth respondent that the relief claimed "is
academic" was, in my view, compellingly countered by
the
applicants during the main proceedings, and again when opposing the
application for leave to appeal. The issue was dealt
with in
the judgment in paragraphs [78] to [84]. It was therefore
necessary for the applicants to apply for the unlawful
administrative
acts to be set aside on review. It is trite that "our law
has always recognised that even an unlawful
administrative act is
capable of producing legally valid consequences for so long as the
unlawful act is not set aside" –
Oudekraal
at
242B C.
[21]
Counsel for the fourth respondent even suggested, in the application
for leave to appeal, that the correct order would have
been a
declarator to the effect that the administrative actions were
unlawful. It is put as follows in the application for
leave to
appeal:
"An order reviewing the representations officers' decisions and
declaring them to be unlawful on account of a statutorily
mandated
procedure not being followed was required, but setting aside was
not."
It is
difficult not to accept that this argument amounts to little more
than semantics. It was argued on behalf of the
applicants,
correctly in my view, that to review and set aside an unlawful
administrative act is tantamount to a declaration of
its
unlawfulness. It was argued that a mere declaration of
unlawfulness would have been inadequate in the absence of
a review
and setting aside of the unlawful action. With this submission
I also agree. I add that the argument that
a declarator would
have been more appropriate only emerged during the hearing of the
application for leave to appeal and not during
the main proceedings.
[22]
In all the circumstances, I have come to the conclusion, and I find,
that there is no reasonable prospect that another Court
would come to
a different conclusion with regard to the third ground of appeal.
In the result, the application for leave
to appeal ought to be
refused because "it may only be given where the Judge or Judges
concerned are of the opinion that –
"(a)(i) the appeal would have a reasonable prospect
of success" ...
section 17(1)(a)(i)
of the
Superior Courts Act."
[23
]
Mr Hopkins also relied, in support of the application for leave to
appeal, on the alternative ground for granting leave to be
found in
section 17(1)(a)(ii):
"There is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration."
There
are no conflicting judgments, but the "compelling reason"
was argued to be a situation where this matter "raises
extremely
important issues not only of a legal nature but, indeed, of practical
consideration too. Moreover, the issues raised
are of national
importance."
In
countering this argument, counsel for the applicants submitted that
the judgment cannot be said to impact nationally or cause
prejudice
because it only affects the relationship between the fourth
respondent (and other respondents) and the applicants.
The
judgment has pronounced on the administrative action taken by the
respondents in its relationship with the applicants and nothing
more. I was reminded by counsel for the applicants that the
fourth respondent, in the main proceedings, echoed these sentiments
in its heads of argument in the following terms:
"However, there are no factors in this case that would interest
the broader public nor are there any factors in this case
that are of
a greater public interest. Audi is only seeking to review two
different kinds of decisions taken by the representation
officers.
These decisions are peculiar to its own circumstances because they
were taken on the basis of reasons that Audi
gave to the
representation officers. They were also rejected because the
reasons were improper and/or inadequate. Nobody
else is
interested in this nor could they be. Other infringers in the
AARTO Act will presumably provide substantive reasons
when they make
representations to RTIA's representation officers. Other cases
will therefore be completely different to this
one. This case
has no value to anybody else."
Against
this background, the apparent change of stance by the fourth
respondent is difficult to understand or, with respect, take
seriously.
In the
result, where there is no clear evidence of "some other
compelling reason" of the nature contended for, it must
also be
concluded that there is no justification for granting leave to appeal
on the basis of the provisions of
section 17(1)(a)(ii)
of the
Superior Courts Act.
[24
] I
add, that counsel for the applicants also argued that the application
for leave to appeal should fail in view of the provisions
of
section
17(1)(b)
of the
Superior Courts Act which
stipulate:
"17(1) Leave to appeal may only be given where the Judge
or Judges concerned are of the opinion that –
(a) ...
(b) the decision sought on appeal does not fall within the ambit of
section 16(2)(a)
..."
Section
16(2)(a)
provides:
"(i) When at the hearing of an appeal issues are of such a
nature that the decision sought will have no practical effect or
result, the appeal may be dismissed on this ground alone.
(ii) Save under exceptional circumstances, the question whether the
decision would have no practical effect or result is to be
determined
without reference to any consideration of costs."
[25]
It is difficult to see what practical result or effect a decision
sought to set aside the review of admittedly invalid administrative
action can have. Indeed, this question becomes even more
pronounced if one considers that the fourth respondent, in the main
proceedings, stated that "nobody else is interested in this nor
could they be ... Other cases will therefore be completely
different
to this one. This case has no value to anybody else."
[26]
In the result, it seems that the fourth respondent has also failed to
pass the test foreshadowed in
section 17(1)(b)
, so that, for that
reason too, the application for leave to appeal falls to be
dismissed.
Costs
[27]
Both parties employed the services of two counsel in the main
proceedings. There is no reason why the applicants can
be
penalised for having taken the precaution of employing the services
of the same two counsel to oppose the application for leave
to
appeal.
The
order
[28] I
make the following order:
1. The application for leave to appeal is dismissed.
2. The fourth respondent is ordered to pay the costs of the
application which will include the costs flowing from the employment
of two counsel.
W R C
PRINSLOO
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
HEARD
ON: 20 APRIL 2017
FOR
THE APPLICANTS: J H DREYER SC WITH J W SCHABORT
INSTRUCTED
BY: GRIESEL & BREYTENBACH ATTORNEYS
FOR
THE 4
TH
RESPONDENT: K HOPKINS
INSTRUCTED
BY: MAJAVU INCORPORATED