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[2016] ZAGPPHC 425
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Ailine Pilots Association and Anotther v Khoza and Others (7300.2013) [2016] ZAGPPHC 425 (4 May 2016)
CASE
NO:73600/2013
DATE: 26 MAY 201
In
the
matter between:
AIR
LINE
P
I
L
OTS'
ASSOCIATION
OF
SOUTH AFR
I
CA
1
st
Appl
i
cant
THEUN
I
S
L
OU
I
SE
ZERWICK
2
nd
Appl
i
cant
and
POPPY KHOZA N
.
O.
1st
Respondent
GAWIE
B
E
STB
I
ER
N
.
O.
2
nd
Respondent
THORND
I
KE
THABANG
PHAHLANE N.O.
3rd
Respondent
SOUTH
AFRICAN C
I
VIL
AVIATION
4th
Respondent
AUTHOR
I
TY
THE
M
I
N
I
STER
OF TRANSPORT
5
th
Respon
dent
JUDGMENT
Baqwa
J
Administrative
Law
-
Administrative action
-
Grounds
-
No
room for
rescission
where
functionary
imposes
a
penalty
prescribed by
law
-
Where
the
offence
is
admitted
-
Functionary merely
exercising
a
statutory
function which
is
not an
exercise of
a
discretion
-
Confirmation and
endorsement of
same
cannot be
said
to be unfair
or
capricious
where respondents
given
notices
and they
fail
to
make representations
Summary
This is
a review appl
i
cation
of certain
decisions
which were taken by
the
respondents subsequent
to
a runway
incursion
incident
on
14 October
2013
at
OR Tambo
airport. As
a
result of the
said
incident the third
respondent who was
an
enforcement
officer
of the
South
African
Civil
Aviation
Authority
had
issued
an
enforcement
notice in
terms
of
which
the
second
applicant
was
not
i
fied
that
he
had committed
an offence
in terms
of
the
regulations promulgated
under the
Civil
Aviation Act,
13 of 2009
.
A
penalty
of
R10 000.00 was
imposed
as
a
result
of
the
said offence.
The
first
respondent
had
after receiving
a
report
from the third
respondent endorsed
and
confirmed
the
third
respondent's
decision.
The
second
respondent
had
i
n
the
absence
of
the
first
respondent conveyed the
decision to the second applicant. The latter was a member of the
first applicant and
jointly, they
brought this application
for review against the three respondents.
Held,
hat
as against the first
respondent
it had not been proved
that she had not properly
considered the report
received from the third responden
Held,
that as against the
second respondent that he merely conveyed the first respondent's
decision
to
the
second
appl
i
cant
on
the
prescribed
form.
He
had
not
taken any decision
and
there
was
therefore
no
decision
to
be
reviewed
as
far
as
he
was
concerned.
Held,
as
against the
third respondent
that
he had taken
the
decision to
issue
an
enforcement notice
and
impose
a
penalty as prescribed in the egulations
promulgated
i
n
terms
of
the
Civil
Aviation
Act.
Held
,
as against all the
respondents that they
had neither
acted u
n
fairly,
capriciously,
nor
had they
been
motivated by
i
rrelevant
considerations or
committed
an
error
i
n
law in contravention of the
Promotion of Administrative Justice Act 3
of 2000
.
Held,
therefore, that the application
for review stands to be dismissed with costs.
Annotations:
Unreported
Cases
Opposition
to
Urban Tolling
Alliance
and Others
v The
South African
Roads Agency
Limited and Others case
number (90/2013)
[2013] ZASCA
148
(9 October 2013)
R
eported
cases
MEC for Environmental Affairs
and Development v Clairison's CC
2013 (6) SA 235
SCA
at
239
-
240
Lester
v Ndlambe Municipality (514/212) [2013] ZASA 95 (22 August 2013)
Bapedi Marota Mamone v
Commission on Traditional Leadership Disputes and Claims and Others
[2014] ZACC 3
Statutes
The
Civil Aviation Act 13 of 2009
The
Promotion of Administrative Justice Act 3 of 2000
[1] This is a
review application in which the applicants seek an order in terms of
which the decisions by the third respondent,
Thorndike Thabang
Phahlane in his capacity as an enforcement officer on 31 January 2013
whereby he fined and issued the second
applicant a penalty notice for
payment of R10 000.00; by the first respondent, Poppy Khoza in her
capacity as the Acting Director
of Civil Aviation, on 12 March 2013
whereby she confirmed the penalty fee
of
R10 000.00 against the second applicant; the second
respondent, Gawie Bestbier, in his capacity as the Acting Director of
Civil
Aviation, on 19 March 2013 whereby he delivered a final
decision and confirmed that the second applicant should pay R10
000.00
be reviewed and set aside.
The Parties
[2]The first applicant is the Airline Pilots Association of South
Africa
("ALPA
SA")
a body corporate and trade union acting in this application on behalf
of its body of members, which membership includes
the second
applicant. The primary objectives of ALPA SA are to promote the
highest standard of flight safety in the aviation industry
and to
promote the interests and welfare of its members.
[3]The fourth respondent is the South African Civil Aviation
Authority ("SACAA") a juristic person established in terms
of Section 71 of the Civil Aviation Act 13 of 2009
("
The
Acf') whilst the fifth respondent is the
Minister of Transport in the cabinet of the Republic of South
Africa.
The Background
[4] The second applicant was a captain in command of Boeing 737
aircraft on 14 October 2012. The aircraft had a call sign or
identification
number CAW 215 with Ms Delport as his co-pilot.
[5] CAW 215 was taxiing on taxiway Bravo (B) whilst Ms Delport
acting under command of the second applicant conducted a radio
telecommunication
with Air Traffic and Navigation Services (ATNS)
controllers.
[6] During the said communication CAW 215 was instructed by the
ATNS to give way to Airbus 546 and thereafter instructed to give
way
to Aircraft C 208.
[7] Three to four aircraft were lined up in front of C215 in line
for take-off, namely SAA 323, SAA 222, SAA 405 and Botswana 212
awaiting instructions prior to take-off.
[8] It is the applicants' contention that a line up instruction
means that an aircraft can await its turn in the line and should
proceed, in turn, after take-off by the aircraft ahead of it, to the
runway to take-off without any further instruction or authorisation
by ATNS.
[9] On the contrary, the respondents contend that the procedure is
that each time an aircraft has to move from a stationary position
it
requires the authorisation of the ATNS and that that is the position
particularly at OR Tambo airport which is the busiest airport
in the
country with aircraft movement at any and every conceivable moment.
The
I
ncursion
[10] The crew of CAW 215 were under the impression that they had
been given the
"line
up
and
waif'
instruction
similar to, and simultaneously, with other aircraft ahead of them and
in accordance with that understanding they followed
the aircraft
lining up ahead of them at the intersection.
[11] In between the aforesaid communications and manoeuvres, the ATNS
cleared the Botswana (BOT 212) flight to take-off whereafter
CAW 215
lined up across holding point 2 at 03
L.
At that point the ATNS requested the crew to confirm
that they had been given a line up clearance. The co-pilot, Ms
Delport, responded
to the effect that they thought they had been
given a clearance whereupon the operator from ATNS replied that she
did not think
so. She nevertheless proceeded to give an instruction
to CAW 215 to line up in runway 03 L and stand by for departure.
Steps taken by the Respondents
[12]Upon receiving a report from the ATNS about the incident the
third respondent conducted an investigation and in the process
obtained ATNS voice recordings.
[13] Subsequently, on 5 December 2012 the third respondent issued and
served the second applicant with a Notice of Intended Enforcement
Action in terms of Regulation 185.00.3 (a) of the Civil Aviation
Regulations, 2011 (CAR). In terms of that notice the second applicant
was notified that the third respondent intended to carry out an
investigation as to whether the second applicant had committed
an
offence in terms of Regulation 185.00.1 (1
)(f)
of the CAR namely -
"any person
who
does
or
causes,
any
act
contrary
to or
who
fails to comply
with, any provision
of
the regulations,
or
a
direction given or
a
prohibition made or
a
condition imposed in terms thereof shall be guilty
of an
offence.
[
1
4]
The
notice
further
informs
the
second
applicant
that
"It
is
alleged
that
on 1
4
1
1
0
12012,
you
were
the
pilot
in
command
of
ZS.OKC,
and
you
lined
up
the aircraft
on
the
runway
without
aircraft
clearance.
Therefore
you
have
violated the
Civil Aviation
regulations. We
have
in
our possession
the following:
•
A
TNS
voice
recordings
•
The
incident
report
from ATNS.
This will
be used in the
investigation
.
"
[15] The notice further invites the second applicant to submit, or
cause to be delivered, his representations concerning the allegations
against him in person or through legal assistance, in writing, to the
Director of Civil Aviation (DCA) within thirty (30) days
of receipt
of the notice and that such representations may include evidence to
show that he did not commit the
alleged
offence.
[16]
The
second
appl
i
cant
responded
to
the
notice
on
5
December
2012
and confirmed
receipt thereof.
He stated further that
they had filed an air safety
report
and
wanted to re
i
terate
that
they had
C
208
l
i
ned
up
on
"E"
intersection as
well as
aircraft
crossing
runway 03L
on
"L'
visual.
[
1
7]
No
further
representations
were
received
form
the
second
appl
i
cant
and
on 31 January 2013 the
third respondent took a decision to
i
mpose
an administrative
penalty
against the second
applicant
in terms
of
Regulation185.00.3
of the CAR,
2011. The second
applicant
was then
issued with a
penalty
notice
on
31
January
2013.
[18] In the notice he was advised that he had to pay the penalty
amount, namely, ten thousand rands (R10 000.00) to the Director
of
the Civil Aviation Authority within thirty days of receipt of the
Penalty Notice and that he had the right of appeal to the
Director
within fourteen days of the notice.
[19]The first applicant representing the second applicant lodged
an appeal against the penalty notice on 12 February 2013.
[20] The third respondent addressed a memorandum to the first
respondent in which he makes reference to the applicant's appeal and
annexes a copy thereof. In the memorandum, the third respondent
addresses the applicant's grounds of appeal in terms of Regulation
185.00.0 (13) and (20) of CAR 2011, and also submits the ATNS report
to the first respondent.
[21] The first respondent considered the documents submitted and
thereafter confirmed the penalty fee of ten thousand rand (R10
000.00) issued against the second applicant.
[22] On 19 March 2013, the second respondent who was then the
Acting Director (CM) and in the absence of the first respondent
communicated
the decision of the first respondent in the prescribed
form to the second applicant.
[23] Subsequently the respondents were served with an application
in which the applicants seek to review and set aside the decisions
referred to in the Notice of Motion.
[24] The application is opposed by the respondents and in their
opposition they have raised a point in
limine,
namely,
that the applicants are time barred from bringing the application in
terms of Section 7 (1) of The Promotion of Administrative
Justice Act
3 of 2000
("
P
A
J
A"),
or what has become known as the delay rule.
[25] The delay rule is dealt with in numerous decisions in other
courts but for purposes of this case I merely wish to refer briefly
to what was said in the unreported decision of
Opposition to
Urban
Tolling
Alliance and
Others
v
The
South
African
Roads
Agency
Limited
and
Others
case
number (90/2013)
[2013] ZASCA 148
(9 October 2013) paras 23 - 24
"[23] Although
the delay rule has its origin
in common law, it now finds it has
basis in Section
7(1)
of PAJA which
provides in relevant
part:
"1.
Any proceedings
for
judicial
review in terms of
Section 6(1) must be
instituted
without
unreasonable
delay
and
not
later
than
180
days
after
the date
-
(a)
....
(b)
....
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
the reasons"
[24]
Section
9
(1)
provides,
however, that
the 180
day
period
'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'. Section
9
(2)
provides that such an application may be granted
'where
the interests of
justice
so
require..
[26] The applicants deny being in contravention of the delay rule or
alternatively claim that if there was a delay, it was caused
by the
failure of the respondents to furnish them with a record of
proceedings to enable them to exhaust their internal remedies
in
terms of Section 120 of the Act.
[27] At paragraph 25 of the applicants' founding affidavit, they
state as follows:
"25.
In order
not to delay
the matter any further and comply
with the period
of
180 days
provided
for in Section
7
of PAJA, the applicants
resolved to
commence
with
the
review
proceedings. The Honourable
Court is,
accordingly, respectfully
requested
to
exercise its discretion to exempt the
applicants
form
the
obligation
to
exhaust
any
internal
remedy,
in the interests of
justice,
alternatively
to extend the time limits
prescribed in Section
7
of the PAJA,
in
accordance
with the provisions
of Section
7
(2)(a) and (c) of the PAJA."
[28] The respondents deny that.the applicants requested a record
of proceedings and they submit that when the applicant lodged an
appeal to the first respondent which was decided on 12 March 2013,
they had exhausted their internal remedies and had no further
remedy
under Section 120 of the Act.
[29]I have considered the point raised in
limine
concerning
the delay and in light of the background to the case I am of the view
that in the interests of justice the applicants
ought not to be
barred from proceeding with the application on the merits. Barring
them would be shutting the door in their face
and preventing them
from pursuing their rights on technical grounds where circumstances
and facts do not justify such a course
of action
Oral Evidence
[30} Even though there is a recording of the radio communication
between ATNS and CAW 215 which was recorded on the day of the
incident
in question, the parties agreed that the applicants could
present oral evidence in that regard only. I permitted the tendering
of that evidence as I considered it in the interests of justice to do
so.
[31} The applicants tendered the evidence of Captain Mario Santos
who is also the deponent to both the applicant's founding affidavit
and replying affidavit. His evidence constituted a clarification and
an elaboration of the ATNS transcript which is already part
of the
applicants' documentation and Ido not propose to repeat it in this
judgement.
[32} He was cross examined by Advocate Matebese on behalf of the
respondents and during cross examination he conceded that the
procedure
is that every time an aircraft has to move from a
stationary position it requires the authorisation and go ahead from
Air Traffic
Control and that CAW 215 did not obtain such
authorisation before entering runway 03
L.
[33} Summarised, the basis for application for review is as
follows. The applicants submit that mandatory procedure and
conditions
prescribed by CAR in terms of the Act were not complied
with and that the actions of the respondents were therefore
procedurally
unfair or materially influenced by an error of law. They
further contend that the decisions taken were based on irrelevant
considerations
or were taken because relevant considerations were not
considered. Lastly they contend that the decisions are not rationally
connected
to the information before the first to third respondents
and to reasons given for the decisions by the first and second
respondents.
[34] In his memorandum to the first respondent in support of his
decision to impose the penalty, the third respondent states,
inter
alia,
as follows:
"Taking all
his
experience
and
/eve/
of
training,
a
higher
level
of
compliance
is expected
from
him."
The applicants
submit that this manifestly indicates that his decision was
materially influenced by an error of law in that he applied
a higher
standard in his assessment than was required in the circumstances.
[35]
The applicants further contend that the third respondent made use of
the ATNS recordings of the communications between the air
traffic
controllers and the crew of CAW
215
whilst being aware of the provisions of Section
54
(2)
of the Act which provide as follows:
"54(1)
....
(2)
A
communication
record
obtained
under this Act
must not be used
against
any
person
referred
to in
Section
57
in
any legal
or
disciplinary
proceedings. "
[36] They also contend that he failed to take into consideration
the concept of Just Culture which is accepted and subscribed
to
by the international aviation industry and that South Africa is a
member state of the International Civil Aviation Organisation
("/CAO") and a signatory to the Chicago Convention of
1944.
[37]
'Just Culture" has
been described as
"An atmosphere of trust in which
people
are
encouraged (even
rewarded)
for
providing
essential
safety-related information,
but
in
which
they
are
also
clear
about
where
the
line
must
be
drawn
between
acceptable and unacceptable behaviour."
1
See
Manual
on
the
Prevention
of
Runway
Incursion,
1
•
(approved and adopted
by ICAO)
The
Law
Ed
i
tion
-
2007
[38] PAJA,
which
i
s
the
l
egislation
enacted
to
give
effect
to
the
right
to
just administrative
action ensures a close scrutiny of admin
i
strative
decisions.
I
t
does not,
however
empower the
courts
to
subst
i
tute
their
own
opinion
i
n
place of
those
administrative
decisions.
I
t
i
s
not
required
that
a
decision
of
an administrative
body
be
perfect
or,
i
n
the
court's
estimation,
be
the
best decision
on
the
facts.
See
Bapedi
Marota
Mamone
v
Commission
on
Traditional
Leadership
Disputes and Claims
and
Others
[2014]
ZACC
36
para 78.
[39] The courts ought to treat the decisions of administrative bodies
with appropriate respect and give due weight to findings
made by
those with special expertise and experience. This application is a
case in point as it also
deals
with
issues
of
Aviation
Safety
and
Control.
See
Bapedi
Marota
M
amone
(supra)
at
paras
79
-
80.
[40]
I
n
review
proceedings,
the
court
is
l
ess
concerned
with
the
decision
by
a
functionary but
with
whether
the functionary.
has
performed the
function
with
which
i
t
was entrusted by following the correct procedures and executed
i
ts
function
i
n
a
fair
manner.
[41] When a functionary
is entrusted with a discretion it means that the law gives
recognition to the evaluation by a functionary
to whom the decision
is entrusted and it is not open to a court to second guess his
evaluation. In the matter of MEC for Environmental
Affairs and
Development v Clairison's CC
2013 (6) SA 235
SCA at 239 - 240 para
18, the Court stated as follows:
"[18]
We think
it
apparent
from
the
extracts
from
her
judgment we have
recited,
and
the
judgment read
as
a
whole,
that
the
learned
judge blurred
the
distinction
between
an
appeal
and
a
review.
It
bears
repeating
that
a
review
i
s
not
concerned
with
the
correctness
of
a
decision
made by
a
functionary,
but
with
whether he performed
the
function with which
he was
entrusted.
When
the
law
entrusts
a
functionary
with
a
discretion
it
means
just
that:
the law
gives
recognition
to
the
evaluation
made
by
the
functionary
to
whom
the
discretio
n
i
s
entrusted,
and i
t
i
s
not
open to
a
court
to
secon
d
-g
u
ess
his
evaluation.
The
role
of
a
court
i
s
no
more
than
to
ensure
that
the
decision-maker
has
performed
the
function
with
which
he
was
entrusted.
Clearly
the
court
below,
echoing
what
was
said
by Clairisons,
was
of
the
view
that
the
factors
we
have
referred
to
ought
to have counted in favour of the application, whereas the MEC weighed
them
against
it,
but
that
i
s
to
question
the
correct
n
ess
of
the
M
E
C
'
s
decision,
and
not
whether
he
performed
the
function
with
which
he
was
entrusted."
[42]
The
weight
to
be
attached
to
particular
facts
and
how
for
a
particular
f
act affects the
eventual determination of the issue, is a matter for the functionary
to decide as long as he acts in good faith
and in a reasonable and
rational manner. In those circumstances, a court of law ought not to
interfere.
See
Clairson's
CC (supra)
at para 22
.
[4
3
]
When a statute has declared that a particular act
constitutes an offence, an administrator tasked with the
administration of the
said statute and regulations promulgated
thereunder is under an obligation to enforce the provisions of the
statute and is not
afforded any discretion in that regard. This is to
ensure that an on-going illegality is curbed and to uphold the rule
of law.
This principle was enunciated further in
Lester v Ndlambe
Municipality
(51
4
1
212)
[201
3
]
ZASA
95
(22
August
2013)
paras
23
-26
as follows:
“
{26)
Local
government,
like
all
other
organs
of
state,
has
to
exercise
its
powers
within the bounds
determined
by
the law and such powers
are subject to
constitutional
scrutiny, including
a
review
for
legality.
In Fedsure Life
Assurance
Ltd
v Greater
Johannesburg
Transitional
Metropolitan
Counci/
[1998] ZACC 17
;
1999 (1) SA 374
(CC) 20 the court expounded on
the
doctrine of legality as an essential component of the rule of law as
follows:
"These provisions fie
ss
174(3)
and 175(4) of the Constitution] imply that
a
local government may
only
act
within the
powers lawfully conferred upon it. There
is nothing
startling in this
proposition
-
it is
a
fundamental
principle of the rule of law, recognized widely, that the exercise of
public power is only legitimate
where
lawful. The
rule
of
law
-
to
the
extent
at
least
that
it expresses this
principle
of
legality
-
is
generally
understood to
be
a
fundamental
principle of constitutional law."
The
power
to
approach
a
court
for
a
demolition
order
in s
21
is unquestionably
a
public power
bestowed
upon
local authorities. As such,
its
exercise
must
conform
to
the doctrine
of
legality.
Put
differently,
a
failure
to exercise
that power
where
the exigencies
of
a
particular
case
require
it,
would
amount
to
undermining
the
legality
principle
which, as stated,
is inextricably
linked
to the rule of
law.
See
AAA
Investments
(Pty)
Ltd
v
Micro
Finance
Regulatory
Council
and another where
the court held as follows:"(t)he
doctrine of
legality which requires that power should have
a
source in law, is
applicable whenever public power is exercised
.
. . .
Public
power
. .
.
can
be
validly exercised
only
if
it
is
clearly sourced in
law.
"
In
National Director of Public Prosecutions
v
Zuma23 Harms DP
emphasized
that the courts
are similarly
constrained by the
doctrine of
legality,
i
e
to exercise only
those powers
bestowed
upon
them by
the law.24 The
concomitant obligation to uphold the rule of law and, with it,
the doctrine of legality,
is self-evident.
In this regard,
the court
below was
constrained by
that doctrine to
enforce the
law by issuing
a
demolition
order
once
the jurisdictional
facts
for
such
an
order
were
found to
exist."
Evaluation
(
44]
After
consideration
of the
admissions
made
by the
appl
i
cants
regarding the incident on
1
4
October 2012 and the evidence of Captain Mario Santos -
i
t
i
s
quite
evident
that the conduct
of the second
applicant
constitutes an offence
in
terms
of
Regulation
185.00.1 (1)(f)
read with
Regulation 91.06.18 (1)
of the
CAR
2011. The third
respondent
exercised
no
discretion
i
n
th
i
s
regard. The
second
applicant was then
issued with a penalty
notice on 31 January
2013.
The second
applicant was
served with the
notice and given
an opportun
i
ty
to
make
representations.
This
constituted
an
application
of
the
audi
alteram
princip
l
e
i
n
regard
to
the
second appl
i
cant
who was also
informed
about
information the third respondent
had in his possession.
I
t
is therefore
evident
from the enforcement
notice
i
tself
that the third respondent
not only assessed
the evidence but also that he
verified
i
t
by utilising other available
i
nformation.
[45] In my view, the memorandum submitted by the third respondent
explains the basis on which he came to his decision to issue the
notice against the second applicant. The penalty is prescribed by law
and the third respondent exercised no discretion in that
regard. The
R10 000.00 penalty is the minimum penalty prescribed in the CAR for a
person who commits an offence for the first time.
[46] According to the evidence tendered by Captain Mario Santos
the Just Culture Principles are utilised,
inter alia,
as
a tool for managing errors by aviation personnel who are encouraged
to report those errors without expecting punitive action
against
themselves. The result is that in the long term, risk management is
enhanced utilising real life experiences. In
casu,
the
challenge faced by the applicants has been, as submitted by the
respondents and conceded by the applicants that these principles
have
not yet been incorporated into the CAR. The fourth respondent is a
creature
of
Statute and it must act within the confines of the
statute and regulations within which it is created. If this is
accepted it cannot
be validly contended that the respondents ignored
relevant considerations when it ignored the 'Just Culture' principles
when they
decided the issues concerning the second applicant.
[47] The applicant also contended that the third applicant was
procedurally unfair and in contravention of Section 54 of the Act
in
that he made use of the ATNS recordings of the communication between
the air traffic controllers and aircraft members of CAW
215 which is
prohibited by Section 54 during the conduct of their investigation.
[48] It is contended by the respondents and conceded by the
applicants that the provisions of Section 54 had not yet been
promulgated
at the time of the incursion and were therefore of no
application. Section 54 was therefore not a relevant consideration to
be
considered by any of the respondents and failure to take it into
consideration is neither an irregularity nor an error of law.
[49] The decision by the first respondent confirming the third
respondent's decision was taken 12 March 2013. The first respondent
was the person who had the legal authority to do the confirmation.
[50] The applicants contend that on 19 March 2013 the second
respondent recorded his final decision under his signature and in his
purported capacity as the acting director of Civil Aviation, he
confirmed the penalty notice that the second applicant should pay
R10
000.00 as stipulated in the penalty notice dated 31 January 2013.
This is denied by the respondents who contend that what the
second
respondent did was to communicate a decision that was taken by the
first respondent on 12 March 2013 by using a form that
is prescribed
by regulations. He did this in the absence of the first respondent.
[51] It is common cause that the first respondent was the person
to whom the third respondent reported to at the time the notice
was
issued. It therefore does not make any sense not only on the facts
presented but also on a common sense basis that the second
respondent
would usurp the authority of the first respondent and purport to
confirm the decision of the third respondent when he
had no authority
to do so. On a balance of probabilities therefore, I accept that the
position contended for by the respondents
is the correct one, namely,
that he merely acted as a conduit for the first respondent in
conveying the decision of the first respondent
on the prescribed form
to the second applicant. I accordingly find that there was no
decision taken by the second respondent. The
format used by the
second respondent is the format usually utilised in couching
decisions made in a legal context.
[52] The applicants also submit that the decision of the first
respondent dated 12 March 2013 is reviewable regard being had to the
reasons given by the first respondent on 3 June 2013. They submit
that her reasons constitute a repetition of the contents of the
report by the third respondent in his memorandum dated 20 February
2013 which follows the principle that the responsibility for
the
exercise of discretionary power rests with the authorised body and no
one else.
[53] As has already been alluded to, it is common cause that an
offence has been committed in terms of the regulations. The
commission
of the offence has been evaluated in terms of the
available evidence, more particularly the ATNS record. That evidence
had not
been disputed when an opportunity was availed to the second
applicant to make representations. Subsequently the third respondent
had presented his memorandum to the first respondent who appeared to
agree with the contents thereof. The exercise of discretionary
power
would have meant that the first respondent would have either rejected
or accepted the third respondent's report. One could
imagine that she
could have also called for further information had she deemed that
necessary. It so happens that in the present
case she accepted the
third respondent's report. It may be that the applicants do not agree
with the weight that the first respondent
accorded to the evidence
received from the third respondent but that can hardly be the basis
upon which this court is called upon
to review the decision of the
first respondent.
[54] In the
circumstances Ifind that the respondents' version is consistent with
the proven facts and the probabilities of this
case[55] More
specifically I find that the actions of the third respondent were in
accordance with the provisions of the Act and
the regulations
prescribed thereunder. Ifurther find that no decision was taken by
the second respondent who only communicated
a decision that had
already been taken by the first respondent using the prescribed form
in terms of the regulations. Lastly Ifind
that there was no improper
exercise of her discretion by the first respondent.
[56] The fifth respondent filed a Notice to Abide the decision of
this court.
[57] In the result Ifind that there is no reviewable
administrative action as defined in
Section 1
of The
Promotion of
Administrative Justice Act 3 of 2000
.
[58]Iaccordingly make the following order: The application is
dismissed with costs.
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAU
TENG
DIVISION, PRETORIA
Date
of Hearing:
3
&
4 May
2016
Date
of Judgment:
2 June 2016
For
the
Applicant:
Advocate Sieberhagen
I
nstructed
by: Bouwers (Rooderpoort)Inc
For
the
Respondents:Advocate
Matebese
I
nstructed
by:Mchunu
Attorney