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[2017] ZAFSHC 80
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Matoto v Free State Gambling and Liquor Authority and Others (4629/2015) [2017] ZAFSHC 80 (8 June 2017)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. 4629/2015
In
the matter between:
HANS
SEUNTJIE
MATOTO
Applicant
and
FREE
STATE GAMBLING AND LIQUOR
AUTHORITY
1
st
Respondent
THE
CHAIRPERSON,FREE STATE GAMBLING
AND
LIQOUR
AUTHORITY
2
nd
Respondent
THE
CHIEF EXECUTIVE OFFICER,
FREE
STATE GAMBLING AND LIQOUR AUTHORITY
3
rd
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL
ECONOMIC
DEVELOPMENT,TOURISM
&
ENVIRONMENT
4
th
Respondent
HEARD ON:
15 MAY 2017
JUDGMENT BY:
DAFFUE,
J
DELIVERED ON:
8 JUNE
2017
[1]
The unsuccessful applicant in the review proceedings seeks leave to
appeal. The review application was filed outside the
period of
180 days envisaged by s 7(1) of the Promotion of Administrative
Justice Act, 3 of 2000 (“PAJA”) and the applicant
sought
condonation for the late filing thereof. The condonation
application was dismissed by Rampai J and Molitsoane AJ on
23
February 2007.
[2]
In the absence of Molitsoane AJ, who acted in this division during
the fourth term of 2016 when the application was heard, the
application for leave to appeal was allocated to me as his
substitute.
[3]
On 15 May 2017 my brother, Rampai J and I heard the application for
leave to appeal where after we reserved judgment.
[4]
The application for leave to appeal shall now be considered in
accordance with the provisions of
s 17
of the
Superior Courts Act, 10
of 2013
and I quote from
ss 17(1)
:
“
17.
(1) Leave to appeal 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; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under
consideration;
(b)
…
(c)
…”
(emphasis
added)
[5]
There can be no doubt that the bar for granting leave to appeal has
been raised. Previously, the test was whether there
was a
reasonable prospect that another court might come to a different
conclusion. Now, 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.
See
Acting
National Director of Public Prosecutions and Others v Democratic
Alliance
(19577/2009)
[2016] ZAGPPHC 489 (24 June 2016)
.
The use
by the legislature of the word “only”, emphasized
supra,
is a further indication
of a more stringent test.
[6]
In
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd and Others
[2013]
2 ALL SA 251
(SCA) the Supreme Court of Appeal held as follows
at paras [11] & [12]:
“
[11]
Factors which usually weigh with this court in considering an
application for condonation include the degree of non-compliance,
the
explanation therefor, the importance of the case, a respondent’s
interest in the finality of the judgment of the court
below, the
convenience of this court and the avoidance of unnecessary delay in
the administration of justice (per Holmes JA in
Federated Employers
Fire & General Insurance Co Ltd & another v McKenzie
1969 (3)
SA 360
(A) at 362F-G).
[12]
In Uitenhage Transitional Local Council v South African Revenue
Service
2004 (1) SA 292
(SCA) para 6 this court stated:
'One
would have hoped that the many admonitions concerning what is
required of an applicant in a condonation application would be
trite
knowledge among practitioners who are entrusted with the preparation
of appeals to this Court: condonation is not to be had
merely for the
asking; a full, detailed and accurate account of the causes of the
delay and their effects must be furnished so
as to enable the Court
to understand clearly the reasons and to assess the responsibility.
It must be obvious that, if the non-compliance
is time-related then
the date, duration and extent of any obstacle on which reliance is
placed must be spelled out.'”
[7]
In
Commissioner
for the South African Revenue Service v Candice-Jean Van der Merwe
[2015]
ZASCA 86
at para
[19]
the Supreme Court of Appeal stated as follows:
“
[19]
In applications of this sort the prospects of success are in general
an important, although not decisive, consideration. It
has been
pointed out (
Finbro
Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein
[1985]
ZASCA 71
;
1985
(4) SA 773
(A)
at 789C) that the
court is bound to make an assessment of an applicant's prospects of
success as one of the factors relevant to
the exercise of its
discretion, unless the cumulative effect of the other relevant
factors in the case is such as to render the
application for
condonation obviously unworthy of consideration. … This court
has often said that in cases of flagrant breaches
of the rules,
especially where there is no acceptable explanation therefor, the
indulgence of condonation may be refused whatever
the merits of the
appeal. This applies even where the blame lies solely with the
attorney.”
[8]
Mr Pienaar on behalf of the applicant relied on
Camps
Bay Ratepayers’ and Residents’ Association and Another v
Harrison and Another
2011 (4) SA 42
CC at paras [53] – [57]
and
Mamobolo
v Rustenburg Local Council
2011
(1) SA 135
(SCA) at para 10 for the submission that where a court
wishes to raise a point of non-compliance
mero
motu
,
the least the court should do is to give the applicant an opportunity
to supplement the affidavits in order to deal specifically
with the
apparent delay.
In
casu
the
respondent did not in its answering affidavit attack the applicant’s
reasons for the delay, but the applicant should have
been forewarned
insofar as the respondents’ counsel specifically dealt with the
matter in his heads of argument as well as
during oral argument.
It can therefore not be argued that this court raised the issue of
delay
mero
motu
without
giving the applicant an opportunity to supplement his affidavits.
[9]
Undue delay should not be tolerated. See:
Aurecon
v Cape Town City
2016(2)
SA 100 (SCA) at para [19]. As stated by Khampepe J in
Department
of Transport v Tasima
2017
(2) SA 622
(CC) at para [160]:
“
Delay
can prejudice the respondent, weaken the ability of a court to
consider the merits of a review, and undermine the public interest
in
bringing certainty and finality to administrative action. A
court should therefore exhibit vigilance, consideration and
propriety
before overlooking a late review, reactive or otherwise.”
[10]
In
Tasima
supra
condonation
was granted notwithstanding a five year delay, but the facts in that
case are so different from the facts
in
casu
that
a proper comparison cannot be made. I do not deem it necessary
to refer to the distinctions. In
casu
the applicant filed his
review application just outside the period of 180 days and it might
be argued – as Mr Pienaar did
- that the delay was properly
explained, bearing in mind the few days with which the applicant
missed the deadline and that another
court would come to a different
conclusion. The facts in this matter must be considered and I
briefly need to emphasize the
following:
1.
The
applicant received confirmation of his unsuccessful application on 18
March 2015.
2.
In
terms of
s 7
of PAJA the 180 days as envisaged therein expired on 18
September 2015 whilst the review application was issued by this court
on
29 September 2015.
3.
Section
7
is clear: review proceedings 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. Therefore, a reasonable period could be less than 180
days.
See
Optis
Telecommunication (Pty) Ltd v Minister of Communications and Others
(A571/2006)
[2007] ZAGPHC44 (30 May 2007). The applicant, through his
attorneys abstained from taking action during the period
of 180 days,
although his attorneys entered into correspondence with the first
respondent’s officials.
4.
As
early as 13 May 2015 the applicant’s attorneys were informed
that the first respondent “will not litigate on
correspondence”.
Clearly the applicant should have
realised at that stage that it should stop wasting time writing
letters and launch its contemplated
review application without
further delay.
5.
Although
further letters were written hereafter in anticipation that a
settlement could be reached, the applicant could not seriously
have
harboured such a belief.
[11]
As mentioned in
Commissioner
for the South African Revenue Service
supra
,
prospects of success must be considered in the exercise of a court’s
discretion whether to grant condonation or not, unless
the cumulative
effect of the other relevant factors is such as to render the
application for condonation unworthy of consideration.
The
respondents have an interest in the finality of the dispute and
unnecessary delay in the administration of justice should be
avoided. The applicant unnecessarily delayed the institution of
the review proceedings in the face of respondents’
unwavering
stance communicated to him as early as May 2015. If the
cumulative effect of all the factors referred to
supra
is considered, there is
no room for a finding that another court would differ from the
judgment of this court.
[11]
Therefore the application for leave to appeal is dismissed with
costs.
____________
JP
DAFFUE, J
I
concur
____________
MH
RAMPAI, J
On
behalf of applicant: Adv CD Pienaar
Instructed
by: Honey Attorneys
Northridge
Mall
BLOEMFONTEIN
On
behalf of respondents: Adv ABG Choudree
Instructed
by: Matsepes Inc
26-28
Aliwal Street
BLOEMFONTEIN