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[2017] ZAFSHC 29
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Matoto v Free State Gambling and Liquor Authority and Others (4629/2015) [2017] ZAFSHC 29 (23 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.
4629/2015
In the
matter between:
HANS
SEUNTJI
E
MATOTO
Applicant and
FREE
STATE GAMBLING
AND
LIQUOR
AUTHOR
I
TY
1
st
Respondent
THE
CHAIRPERSON, FREE STATE GAMBLING
AND
LIQOUR
AUTHORITY
2
nd
Respondent
THE
CHIEF EXECUTIVE OFFICER,
FREE
STATE
GAMBLING AND LIQOUR
AUTHOR
I
TY
3
rd
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL
ECONOMIC
DEVELOPMENT, TOURISM
&
ENVIRONMENT
4
th
Respondent
CORAM:
RAMPAI,
J
et
MOLITSOANE,
AJ
JUDGMENT
BY:
MOLITSOANE, AJ
HEARD
ON:
5 DECEMBER 2016
DELIVERED
ON:
23
FEBRUARY 2017
[1] This
is a condonation application. The relief sought by the
applicant is to have his lateness in applying
for judicial review in
terms of sec 6(1) of the Promotion of Administrative Justice Act 3 of
2000 (PAJA) condoned. The respondents
oppose the application.
[2] The
applicant previously made an application to the First
Respondent in terms of section 41 (1) of the Free State Gambling
and
Liquor Act 6 of 2010 for the permanent removal of a tavern from 132
Vietman Street Jacobsdal to 338 Wolf Street, Ratanang Jacobsdal.
That
application was refused on 13th November 2013.
[3]
Pursuant to such refusal, the Applicant launched an application to
this court under case number 812/2014 to have the second
respondent's
decision reviewed and set aside. (the first review application) The
first review application was settled between the
parties. The
settlement agreement was made an order of court on
5th
June 2014. The court ordered that:
"1.
The first respondent's decision, in terms of which
the applicant's application for the
permanent
removal of a Tavern registration certificate
pertaining to erf 338, Wolf Street Ratanang,
Jacobsdal, Free State
Province, was refused, is hereby rescinded.
2.
The matter is referred back to the First respondent to consider the
applicant's application afresh, and well within 30 (thirty)
days from
date of signature hereof."
[4] It
would appear that the application was not considered afresh
within
30
days as per the order of the court. As a result of such
non-compliance, the applicant commenced with contempt of court
proceedings
in this court under case number
3652/2014.
The contempt of court proceedings were opposed. It would
appear that at the time of the hearing of this second review
application,
the contempt application was still pending.
[5] The
reconsideration of the application by the second respondent proceeded
on
2nd
October
2014.
The applicant was subsequently informed by the respondent that
his application had been unsuccessful. He was informed by way of a
letter dated
12
March
2015,
marked 'Annexure H' which letter the applicant received on
13th
March
2015.
[6] It is
this decision, which the second respondent made on
12
March
2015,
whereby the applicants' application for the transfer or
removal of a tavern registration certificate from one erf to another,
which
the applicant seeks to be reviewed and set aside in these
proceedings.
[7]
Before us were two applications. obviously the main
application. The review proceedings were Then there were
interlocutory
proceedings in the form of a condonation
application. The two counsels were asked to address us on both.
Having heard argument
for and against each application, we reserved
judgment. I deal with the condonation application first.
[8] The
issue was whether the applicant has advanced a reasonably
satisfactory explanation for his default to initiate the review
application in good time.
[9] It is
not in dispute that the applicant's application was launched outside
the 180 days as envisaged in section 7 of PAJA. The
one hundred and
eighty days period within which to launch the application expired on
18 September 2015. The current review
application
was issued by the registrar on 29
th
September 2015, twelve days after the 180 days envisaged in
section 7(1)(b) of PAJA had expired.
[10]
Section 7 (1) of PAJA provides as follows:
"Any
proceedings for
jud
i
cial
review in terms
of section
6 (1)
must be
instituted without
unreasonable delay
and
not
l
ater
than
1
80
days
after
the
date-
(a)
subject
to
subsection
(2)(c)
on
which
any
proceedings
instituted
in terms
of
internal
remedies
as
contemplated
in subsection 2
(a)
have been
concluded; or
(b)
where
no such
remedies
exist, on which
the person concerned
was
informed of the
admin
i
strative
action
became
aware of the
action
and
the
reasons
for
it
or
might
reasonably
have
been
expected
to
have
become
aware
of
the
actions
and
the
reasons."
[11] As
to when the 180 day period referred to in section 7( 1) of PAJA
begins to run, Brand AJ in
Camps Bay
Ratepayers'
and Residents
Association
and
Ano
v
Harrison
and
Ano
2011 (4)
SA 42
CC par 57, said the following:
".....
the
180
days
period
starts
to
run
when
the
'person
concerne
d
......
became
aware
of
the
action
and
the
reasons
for
i
t'.
Before
'the
action'
nothing
happens.
In
the
find
analysis
it
i
s
awareness
of
'the
action'
that
sets the clock ticking.
That raises the
question: what 'action' did the
l
egislature
had in mind? The
answer
I
think,
i
s
the
'administrative
action'
and
according
to
the
definition
of
that
term
in
PAJA,
the
'decision'
that
i
s
challenged in
the review
proceedings.
[12] It
is thus clear that the period within which to review an
administrative action in terms of section 7(1)(b) of PAJA starts
to
run from the moment the aggrieved party becomes aware of the
administrative action and the reasons for it. The review of the
said
action must be brought without any unreasonable delay and not later
than 180 days after the aggrieved party becomes aware
of the actions
and its reasons.
[13] In
the case of
Optis Telecommunications
(Pty)
Ltd v
Minister
of
Communications
and
Others
(A571/2006 [2007] ZAGPHC 44 (30
May 2007) the court said the following:
"A
point that
has
to
be
made
i
s
that
it
i
s
not
entirely
correct
that
in
terms
of
the
Promotion
of
Administrative
Justice
Act,
2000
(Act
3
of
2000),
an aggrieved
party
has
180 days within
which to
l
aunch
review
proceedings.
I
n
terms
of
section
7(1)
of Act
3
of 2000
proceedings for
jud
i
cial
review
must
be
instituted
'without
unreasonable
delay
and
not later
than
180 days
after
the
date on which the person
concerned
was
informed
of
the
administrative
action,
became
aware
of
the action
and
the
reasons
for
it
or
might
reasonably
have
been
expected
to
have
become aware of
the
action
and
its
reasons
.
'
A reasonable
period
could
be
l
ess
than
180
day
s
.......
.
"
[14]
Section 9 of PAJA deals, however, with variation of times in
circumstances where there has been non-compliance with
the time
limits as stipulated in section 7 of the said Act. The relevant part
provides as follows:
s9(1
'
The
period
of
-
(a).........
(b)
90 days or 180 days referred to in sections 5 and 7 may be extended
for a fixed period, by agreement between the parties or
failing such
agreement by a court or tribunal, on application by the person or
administrator concerned.
(2)
The
court
or
tribunal
may
grant
an
application
in terms
of
subjection
(1)
where
the
interests
of
justice
so
require.'
[15]
The principles applicable to applications for condonation are
settled. In this regard the courts have a wide discretion
which must
be exercised judicially on a consideration of all the facts of each
case.-
See Natures Choice
Products (Pty) Ltd
v
Food
and
Allied Workers'
Union
and Others
(2014)
ILJ 1512 (LAC) at 1515 C-E.
[16]
The approach to be followed in an application for condonation in
terms of PAJA was dealt with by the Supreme Court of
Appeal in the
matter of
Camps
Bay
Ratepayers
and
Residents Associat
i
on v
Harrison
2010 (2) All SA 519 (SCA) par 54,
(confirmed on appeal -See par 11
above for a full citation).The
court said the following:
"Section
9(2)
however
allows the extension of those time frames where
the
'interest
of just
i
ce
so
require'.
And
the
question whether
the
interest
of just
i
ce
require
the
grant
of such
extension
depends
on
the
facts
and
the
circumstances of
each
case:
the
party
seeking
it
must
furnish
a
full
and
reasonable
explanation
for
the
delay
which
covers
the
entire
duration
thereof
and
relevant
factors
include
the
nature
of
the
rel
i
ef
sought,
the
extent
and
cause
of
the
delay,
i
ts
effect
on
the
administration
of justice
and other
litigants, the
importance
of the
issue
to
be
raised
in the
intended
proceedings
and
the
prospects
of
success"
[17] In
Melane
v
Santam
Insurance
Co
Ltd
1962 (4) SA 532
(A) the court explained the judicial
discretion vested in a court in granting condonation as follows:
"In
deciding
whether
sufficient
cause
has
been
shown,
the
basic
principle
i
s
that the court has discretion to be
exercised
jud
i
cially
upon
a
consideration of all the facts and in
essence
i
t
i
s
a matter of fairness
to
both
sides.
Among
the
facts
usually
relevant
are
the
degree
of
l
ateness,
the
explanation
thereof,
the
prospects
of success
and the
importance of
the case.
Ordinarily
these
facts are interrelated they are
not
individually
decisive,
for
that
would
be
a
piecemeal
approach
incompatible with a true
discretion, save of course that
i
f
there are no
prospects
of
success
there would be no point
in
granting
condonation.
Any
attempt to
formulate a rule of thumb would only serve to harden
the
arteries of what should be a flexible discretion. What
i
s
needed
i
s
an objective conspectus of
all
the
facts. Thus a
slight
delay and
a good
explanation may help to
compensate for prospects of success which
are
not
strong.
Or
the importance of
the
i
ssue
and
the
strong prospects
of
success
may
tend to compensate
for a
l
ong
delay.
And
the
respondent's
interest i
n
finality
must
not
be
overlooked."
[18] The
thrust of the applicants' explanation for non-adherence to the
prescripts of section 7(1) (b) is that he intended
to settle
the matter out of court. This court was referred to a number of
letters written to the first respondent in this regard.
However, most
of the letters written on behalf of the applicant did not support his
excuse. The tone of all those letters was threatening.
The letters
were mostly about threats and not settlement negotiations. Analysis
of the correspondence aforesaid
will
reveal that the applicant was informed of the
decision by way of a letter dated
12
March
2015.
He
then began with his correspondence on
20th
March
2015.
In a letter dated 8 May
2015,
marked 'Annexure L' to the founding affidavit he set out in
detail, the reasons for his disgruntlement. He
informed the respondents that if the undertaking he sought was
not forthcoming he will "
immediately proceed with a review
appl
i
cation
". (my emphasis)
[19]
On
12th
May
2015
the first respondent duly responded by way of a letter marked
'Annexure M' to the contents of Annexure 'L'. I need to pause and
indicate that Annexure 'M' is dated
12
February
2015.
It is my considered view that this date is incorrect. Firstly,
on
1
i
h
February
2015
a decision had not been taken to refuse the application.
Secondly, the applicant had not yet written Annexure 'M'. Thirdly,
the
first respondent clearly wrote in Annexure 'M', "Your letter
of 8 May
2015
refers". I am inclined to accept that Annexure 'M' was
actually written on the
12
May
2015.
[20]
In 'Annexure M' sent by email to the applicant's attorneys on
13th
MAY
2015,
which the attorney acknowledges having received on the same
day (See par
8.13
of the founding affidavit), the applicant was unequivocally
informed that "...the Authority will not litigate on
correspondence
.....". This obviously implied that the applicant
should stop wasting time writing letters and that he should launch
his contemplated
review application without further delay.
[21] It
is thus clear that as early as 13th May 2015 the applicant should
have realized that attempting to resolve the matter out
of court was
futile and that it was not going to bear any fruit. In the said
Jetter the applicant was expressly challenged to bring
his
application for the review of the respondents' decision.
Notwithstanding that clear and unequivocal indication that there
would be no settlement out of court, the applicant still persisted
with his threats instead of actually approaching the court for
review. However, such useless threats of taking the matter on review
were repeated in subsequent letters dated 5th July 2015, as
well as
11th September 2015,marked Annexures
'T'
and 'U' respectively.
[22] For
this court to grant an indulgence for non-compliance with section
7(1)(b) of PAJA the applicant must fully explain the
delay for the
entire period of his default. In other words, he ought to have given
us a reasonably satisfactory and acceptable
explanation of his
primary delay prior to the expiry date of the 180 day deadline as
well as his residual delay subsequent to the
expiry of such deadline.
That the applicant has failed to do. He was aware as early as 13 May
2015 that pursuing settlement was
not an option. Yet he persisted
with useless threats. It was argued before us that the
applicant was out of time with only
twelve days. This argument misses
the point. The point of departure in the exercise of the discretion
whether to grant condonation
in matters of PAJA is not to look at the
days after the 'cut off" 180 day period per se but
an enquiry should
cover
the entire period after
the applicant was informed of the administrative decision and its
reasons. At the time the respondents repudiated
him, the applicant
still had well over 162 days left within which he could and should
have launched his review application.
[23] It
is my considered view that the applicant failed to explain adequately
why he did not bring his application at least in time
after he was
informed by way of a letter of 12 May 2015 that the respondents were
not going to litigate by way of correspondence.
Moreover the
applicant has poor prospects of success as regards the review
application itself. Bearing all the aforesaid factors
in mind, it
becomes obvious that a reasonably diligent person, in those
circumstances, would have acted differently. The respondents
are
entitled to have finality.
[24] I
am, therefore, inclined to dismiss the condonation application. In
view of this conclusion, it becomes unnecessary to deal
with the
review application.
[25]
Accordingly I propose the following order.
The
application is dismissed with costs.
__________________
PE
MOLITSOANE, AJ
I
concur. It is so ordered
__________________
MH
RAMPAI, J
For the
Applicant: Adv ABG Choudree
Instructed
by:
Matsepes Inc
26-28 Aliwal Street
BLOEMFONTEIN
For the
Respondent: Adv Le R Pohl SC
Instructed
by:
Honey
Attorneys
Northridgemall
BLOEMFONTEIN