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[2016] ZAGPPHC 323
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National Council of Societies for the Prevention of Cruelty to Animals (NSPCA) v Senior Magistrate Pretoria, Mr Tsatsi and Others (36121/2015) [2016] ZAGPPHC 323 (6 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 36121/2015
Date:
6/5/16
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
NATIONAL
COUNCIL OF SOCIETIES FOR THE PREVENTION OF CRUELTY TO
ANIMALS
("NSPCA") APPLICANT
Versus
SENIOR
MAGISTRATE PRETORIA, MR TSATSI FIRST
RESPONDENT
MCLAREN
CIRCUS
CC SECOND
RESPONDENT
DAVID
DALLAS
MCLAREN THIRD
RESPONDENT
JUDGMENT
TOLMAY.
J:
INTRODUCTION
[1]
The applicant brought a review application in which it sought the
review of the first respondent's decision taken on 30 December
2014
to renew the licence and certificate of second and third respondents
issued in terms of sec 2 and 3 of the Performing Animals
Protection
Act 24 of 1932 ("PAPA").
[2]
The first respondent did not oppose the application nor did he
furnish any reasons for his decision. Second and third respondents
opposed the application.
BACKGROUND
[3]
The second and third respondents operate a travelling circus under
the name Mclarens circus which operates throughout South-Africa
and
have incorporated animals in their acts since 2006.
[4]
PAPA requires persons who use animals for exhibition or training
purposes to be licenced to do so, which licences in terms of
sec 2
are currently issued by magistrates. Licences are valid for a
calendar year until 31 December of the relevant year. The licence
may
be renewed for further annual periods upon the applicant bringing an
application for each year.
[5]
Section 3 of PAPA provides that the holder of a licence is not
permitted to exhibit or train any animals unless he/she is in
possession of a certificate authorising the exhibition or training of
all the animals specified in the licence.
[6]
Regulation 2(3) of PAPA states that the magistrate may, before
considering the application for a licence, gather all available
information from local animal welfare organisations. It is common
cause that the magistrate did not call for any information from
the
applicant or any other local animal welfare organisation before
granting the licence.
[7]
It is further common cause that the licence which is the subject of
this application expired on 31 December 2015. The respondent
argued
that as a result the application has become academic and that I
should therefore refuse to entertain the application. The
parties
only argued the possible mootness of the dispute before me, and I was
requested to determine this aspect only.
[8]
Counsel on behalf of the applicant conceded that the licence has
lapsed and that there would be no point in setting aside the
decision
made by the magistrate and to refer it back for reconsideration. The
applicant however insisted that the Court should
still pronounce on
the validity of the decision. What is sought at this stage is a
declaratory order of invalidity, in his heads
of argument Mr Cilliers
(SC) on behalf of the applicant asked that the administrative action
be declared unconstitutional and invalid.
[9]
The provisions of sec 2 and 3 of PAPA have been declared
unconstitutional and invalid.
[1]
The court found that the function of granting of the licence by a
magistrate was non-judicial, and that there exists no compelling
reason why it should be issued by a member of the judiciary. The
Court confirmed the order of constitutional invalidity made by
the
High Court, but suspended the order initially for 18 months to enable
parliament to cure the constitutional defect. An application
for
extension was brought and an extension of 6 months followed. A
further extension of 12 months was later granted after a further
application was brought.
[2]
Zonda J in the judgment pertaining to the last extension remarked
that Parliament would have been granted 3 years to cure the defect
in
the Act and would have been granted more than enough time for the
bill to be passed into law. I infer from the aforementioned
remark
that no further extensions will be granted. The period of extension
lapses on 27 August 2016. Under these circumstances
one must accept
that the existing dispensation will only last until 27 August 2016.
The proposed new legislation grants the authority
to issue licences
to veterinarians and animal scientists.
[3]
LEGAL
PRINCIPLES
[10]
It is trite that a case is moot and therefore not justiciable if it
no longer presents an existing or live controversy.
[4]
It is also trite that Courts should not decide issues of academic
interest only.
[5]
In this case
this Court now has to determine whether there still exists a live
controversy between the parties on which the Court
must decide, or
whether a discrete legal issue of public importance arises which will
affect matters in the future and which will
require the Court to
entertain the matter despite of the mootness of the issue.
[11]
As already stated the licence granted in this matter has lapsed on 31
December 2015. The applicant now wants this Court to
grant a
declaratory order pertaining to the validity of the decision of the
first respondent despite the fact that the licence
has lapsed and the
matter has become on the face of it academic. There is an existing
policy that a Court should not decide a point
that has become
academic. In
JT
Publishing
(Pty) Ltd v Minister of Safety and Security
[6]
the
following was said which finds application in this matter:
"I interpose that
enquiry because
a
declaratory order is
a
discretionary
remedy, in the sense that the claim lodged by an interested party for
such an order does not in itself oblige the
Court handling the matter
to respond to the question which it poses, even when that looks like
being capable of
a
ready answer.
A corollary is the
judicial policy
governing the discretion thus
vested in the Courts. a well-established and uniformly observed
policy which directs them not to exercise
it in favour of deciding
points that are merely abstract. academic or hypothetical ones.
(my emphasis)
And
further:
[7]
"But, for reasons
that will emerge in a moment, nothing warrants a departure from the
policy this time. A further word or two
had better be said on the
topic before I leave it. Section 98(5) admittedly enjoins us to
declare that a law is invalid once we
have found it to be
inconsistent with the Constitution. But the requirement does not mean
that we are compelled to determine the
anterior issue of
inconsistency when, owing to its wholly abstract, academic or
hypothetical nature should it have such in a given
case, our going
into it can produce no concrete or tangible result, indeed none
whatsoever beyond the bare declaration."
[12]
In this matter, as the licence has lapsed, no concrete or tangible
result will follow if the declaratory order is granted.
The question
arises then whether the Court should, despite that fact, deviate from
the policy not to entertain a matter which is
moot.
[13]
The Court has a discretion to entertain a matter notwithstanding the
mootness of the issue between the parties to the litigation
if a
discrete legal issue of public importance arises that would affect
matters in the future and where it will be in the interest
of
justice.
[8]
One has to determine
whether these requirements are met in this matter. In
Qoboshiyane
[9]
the
Court set out the principle that should apply when a Court exercises
its discretion to, despite the mootness of the issue, pronounce
on
the matter:
"[5] The
disclosure of the report means that any judgment or order by this
court will have no practical effect or result as
between the parties.
In the circumstances this court may dismiss the appeal on that ground
alone. The court has
a
discretion in that regard and there are
a number of cases where, notwithstanding the mootness of the issue as
between the parties
to the litigation, it has dealt with the merits
of an appeal. With those cases must be contrasted
a
number
where the court has refused to deal with the merits.
The
broad distinction between the two classes is that in the former a
discrete legal issue of public importance arose that would
affect
matters in the future and on which the adjudication of this court was
required, whilst in the latter no
such issue
arose
. In exercising its discretion the court is always
mindful of the wise words of Innes CJ in Geldenhuys and Neethling v
Beuthin,
that:
'After all, Courts of
Law exist for the settlement of concrete controversies and actual
infringements of rights, not to pronounce
upon abstract questions, or
to advise upon differing contentions, however important."'
(My
emphasis)
[14]
Counsel for the applicant argued that this is an instance where the
Court should exercise its discretion to entertain the matter.
It was
argued that the imperative of formal judicial recognition of the
applicant's right to be heard when applications in terms
of PAPA and,
later in terms of the proposed Performing Animals Protection Bill are
considered, remains a discrete legal issue of
public importance that
would affect matters in future. The fact that the magistrate did not
give the applicant a hearing means,
so it was argued, that
audi
alteram partem
was not complied with and this led to the
invalidity of the action and this Court must consequently find that
the decision was invalid
and unconstitutional.
[15]
When one peruses the contents of the application the factual matrix
of the application deals specifically with the issues relevant
to
this particular licence and not with the broader issue pertaining to
the inherent right of applicant to be heard. It must also
be noted
that the regulation as it presently stands is not peremptory as the
magistrate may and not must ask for presentations.
Despite argument
to the contrary, this implies a discretion on the part of the
magistrate. Whether this discretion was properly
exercised will be
determined in the light of the circumstances of each case. A general
pronouncement pertaining to this issue will
be to cast the net too
wide, and I am of the view that this Court should not in the light of
the fact that the licence has lapsed
and the fact that the merits of
the application was not argued make any finding in this regard.
[16]
Sections 2 and 3 of PAPA have, as already stated above, been declared
unconstitutional and therefore nothing need to be said
about it
anymore. This Court cannot pronounce on the new act as that act has
not yet come into operation, nor did the applicant
deal with the
requirements of the new act in the application before me. The fact
that regulation 2(3) still gives a discretion
to the officials
granting the licence to call for presentation is something that will
have to be considered in the future.
[17]
The licences were granted for a year and lapsed on 31 December 2015,
consequently there should not be any similar applications
before 27
August 2016, when the new act comes into operation. The future effect
of the decision is thus negligible. Therefore there
exists no
discrete legal issue that would affect matters in future.
[18]
The applicant wants me to declare the decision unconstitutional and
invalid. If an issue of public Importance and constitutional
validity
is raised the Minister of Agriculture, Forestry and Fisheries should
at least have been joined. There should also be compliance
with Rule
16(A) of the Uniform Rules of court. In the absence of the aforesaid
this Court is not empowered to declare on the constitutional
validity
of the decision.
CONCLUSION
[19]
I am of the view that as a result the matter before me is moot as no
live controversy exists which this Court should decide
on, nor is it
in the interest of justice.
[20]
It was argued that applicant should not pay the costs as it protects
a public interest. I am however of the view that the fact
that
applicant persists with an application that is clearly moot justifies
a decision that it should pay the costs of this application.
One
should also consider that the respondents are not government or
public entities who could be expected to carry the burden of
a cost
order in certain circumstances irrespective of the outcome.
Consequently I am of the view that the costs should follow the
result.
[21]
I make the following order:
21.1 The application is
dismissed; and
21.2
The
applicant is to pay the costs of the application.
_________________________
RG TOLMAY
JUDGE
OF THE HIGH COURT
[1]
NSPCA v Minister of Agriculture, Forestry and Fisheries & Others
2013(5) CC p 571
[2]
Minister of Agriculture, Forestry and Fisheries v SPCA (2015] ZACC
27
[3]
Government Gazette, 9 April 2014, No 37541
[4]
National Coalition for Gay and Lesbian Equality & Others v
Minister of Home Affairs & Others 2000(2) SA 1 CC, footnote
18,
Radio Pretoria v Chairman !CASA 2005(1) SA 47 on 55, JT Publishing
(Pty) Ltd and Another v Minister of Safety and Security
and Others
1997(3) SA 514 CC
[5]
Legal Aid South Africa v Mogidiwara & Others 2015(2) SA 568
(SCA) par 2
[6]
Supra, 1997(3) SA 514 CC on p 525 A-B
[7]
Supra, p 525 E
[8]
Qoboshiyane NO v AVUSA Publishing Eastern Cape (Pty) Ltd and Others
2013(3) SA 315 SCA), see also Legal Aid SA v Magidiwara 2015(6)
SA p
494.
[9]
Supra, p 319 par 5