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[2015] ZAGPPHC 209
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Barloworld South Africa (Pty) Ltd t/a Avis Rent A Car v Director-General of the Department of Labour and Another (16524/2004) [2015] ZAGPPHC 209 (17 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
[GAUTENG
DIVISION, PRETORIA]
CASE NO:
16524/2004
DATE: 17 April
2015
In
the matter between
BARLOWORLD
SOUTH AFRICA (PTY)
LTD
t/a AVIS RENT A
CAR
.............................................................................................................
Applicant
and
DIRECTOR-GENERAL
OF THE
DEPARTMENT
OF
LABOUR)
.............................................................................................
First
Respondent
COMPENSATION
COMMISSIONER
............................................................................
Second
Respondent
JUDGMENT
SKOSANA AJ
[1] In this matter
the applicant seeks a review and setting aside of the second
respondent’s decision to reclassify the business
activities of
Avis rent a car (“Avis”) from a sub-class 1720 Industry
to a sub-class 1710 Industry with retrospective
effect from 01
October 2008 (“the first decision”). The applicant also
seeks the review and setting aside of a decision
taken by the second
respondent on 09 November 2012 confirming the classification of Avis
as a sub-class 1710 Industry (“the
second decision”).
[2] Furthermore, the
applicant seeks the review of all the assessments issued by the
second respondent in respect of the business
activities of Avis which
were based on the first and second decisions of the second
respondent, namely the tariff of assessment
applicable to sub-class
1710 Industry.
[3] The applicant
also seeks an order that, upon the reissue of such assessment on the
correct tariff of assessment with retrospective
effect from 01
October 2008, the first and second respondents be ordered to refund
to the applicant the overpayments made by the
applicant from 01
October 2008. The applicant also seeks a costs-order against the
first and second respondents.
[4] At the beginning
of the hearing, counsel for the applicant, Adv van den Heever SC,
indicated that he was to address me under
3 sub-topics, namely the
application for leave to submit the further affidavit in evidence;
the application for condonation for
the applicant’s failure to
bring the review application within a period of 180 days as envisaged
in section 7(1 )(b) of the
Promotion of Administrative Justice Act
no. 3 of 2000 (“PAJA”); and, on the merits of the
application. Upon my enquiry
from counsel for the respondent, Adv
Matebese, he indicated that he opposes all 3 aspects of the case but,
should I admit the further
affidavit, the respondent will not require
an opportunity to file a responding affidavit thereto as the facts
contained in such
further affidavit are the objective facts based on
correspondence.
FURTHER
AFFIDAVIT
[5] Adv van den
Heever SC submitted that the affidavit was filed in amplification of
the grounds for condonation. The application
for condonation was
brought in terms of prayer 1 of the notice of motion and supported in
the founding affidavit. However, subsequently
the applicant or its
legal team realized that they had overlooked certain facts in
relation to such condonation application as
stated in paragraph 2.3
of such further affidavit.
[6] Adv van den
Heever SC further submitted that the facts contained in such further
affidavit do not bring about a new cause of
action but are in support
of the very condonation application that had already been instituted.
He added that there is no prejudice
to the respondent and this
contention is fortified by the respondent’s counsel’s
concession that there is no need for
the respondent to respond to
such further affidavit as the facts contained therein are objective
and supported by correspondence.
[7] Adv Matebese
argued that this further affidavit should not be admitted as it does
not explain why the evidence contained therein
was not included in
the applicant’s founding affidavit but only introduced after
the filing of the replying affidavit and
simultaneously with the
filing of the applicant’s heads of argument.
[8]
Adv Matebese emphasized that it is trite law that an applicant should
make out its case in its founding papers. The applicant,
so he
continued, only filed the further affidavit when it felt that
‘
the
shoe was beginning to pinch'
after
the respondents had filed their opposing affidavit to such
condonation application. He referred me to the case of
Hano
Trading CC v
JR
209
Investments
(Pty) Ltd & Another
2013(1)
SA
161
(SCA)
para
[10]-[14] at 164-165.
[9]
In that case, first, there was no application for leave to file
further affidavit
1
.
Second, further affidavits that were sought to be filed were dealing
with the merits of the case, being whether or not the agreement
was
valid and binding upon the parties
2
.
[10] In the present
case, there is an application for leave to submit this further
affidavit in evidence. The further affidavit
also deals, not with the
merits of the case, but with the condonation application.
[11]
Although the reason not to have included these facts in the founding
papers of the applicant may not be satisfactory, the overriding
consideration for me is that it contains objective facts which, as
conceded on behalf of the respondents, could not be gainsaid.
This
would have been the case even if the facts were in the applicant’s
founding affidavit. The respondents would in any
way have had
difficulty convincing me that they are entitled to an opportunity to
file an affidavit in opposition thereof since
they had been invited
by the applicant to respond thereto, if they so wished, already in
October last year
3
.
[12] It must be kept
in mind that in review proceedings an applicant has normally a second
chance to amplify its paper after the
record has been furnished. This
further affidavit serves to amplify the applicant’s case in
respect of condonation, albeit
out of sequence.
[13]
In considering the factors which I must take into account in
exercising my discretion as set out in the Superior Court Practice:
Erasmus, Juta vol. 1 at B1-48 to 49, I accept that all these factors,
except for one or two
4
,
have been satisfied.
In
addition, this affidavit only relates to condonation which is a
procedural matter and which could have been raised by the court
mero
motu
5
.
[14] In the
circumstances, the further affidavit is admitted and will be taken
into account in considering whether or not to grant
condonation.
CONDONATION
[15]
There is now a plethora of cases dealing with the defence of
unreasonable delay. It has been found that, when the defence of
unreasonable delay is raised in review proceedings, the court must
embark on a twofold enquiry. The first one is whether a reasonable
time has elapsed from the time the decision was taken to the time
when the review proceedings were instituted. In this regard the
court
does not have a discretion as this is a purely factual enquiry. If
the court finds that the delay was reasonable, the enquiry
ends there
and need not be taken any further. If it is found that the delay was
unreasonable, the court has to embark on the second
enquiry namely,
whether the unreasonable delay should be condoned. During this second
enquiry the court exercises a discretion
6
.
[16]
It is also well established that an applicant who fails to bring a
review application within a reasonable time may forfeit
his right to
have the administrative action complained of, reviewed and set aside,
unless the delay is satisfactorily explained
7
.
[17] In this matter
the first decision was taken in March 2009 but the applicant became
aware thereof in February 2010. Both counsel
agreed in this regard.
The review application was instituted in February 2014, i.e. 4 years
after the first decision had been taken.
The delay is unreasonably
long by any measure. The period also falls outside the 180 days as
required by the PAJA.
[18] Prayers 2 to 5
of the notice of motion are structured in such a way as to reflect
the applicant’s contention that a series
of decisions were
taken by the second respondent, the first being the reclassification
in March 2009, the second being the assessments
which were made from
01 October 2008 to 09 November 2012 based on the first decision, the
third being the confirmation of the sub-class
1710 Industry
classification on 09 November 2012 and the fourth being the
assessments made by virtue of the decision of 09 November
2012 to
date.
[19] This contention
is contradictory to and flies in the face of the applicant’s
claim that it ought to have been assessed
on the basis of sub-class
1720 Industry from 01 October 2008 when it applied for registration.
Clearly the second respondent took
only one decision and, as will
appear more fully hereunder, it could only have taken one decision in
connection with the classification
of the business of the applicant.
Such a decision was taken in March 2009 and reaffirmed by the second
respondent in June 2011
and on other occasions.
[20] It is my
finding therefore that the clock started to tick from February 2010
with regard to the timeous institution of the
review proceedings.
[21] Both counsel
agreed that the empowering legislation, being the Compensation for
Occupational Injuries and Diseases Act no.
130 of 1993 (“COIDA”)
does not make provision for the second respondent to classify or
reclassify business activities
of the applicant other than at the
time of its application for registration in terms of section 80 of
the COIDA. The assessments
were also not made in accordance with a
varied tariff of assessment as contemplated in section 85 of the
COIDA.
[22]
This state of affairs presents another problem relating to the
principle of
functus
officio,
which
prevents a functionary from revisiting its own decision. When this
issue was raised with Mr Van den Heever SC, he submitted
that the
functus officio
principle
only applies to final decisions and not decisions which are erroneous
or obviously mistaken. He relied on the work of
C Hoexter,
Administrative Law in South Africa, 2
nd
edition pp. 278 to 280.
[23]
On page 280, Hoexter makes the following statement:
"Where
mistaken decisions are concerned, the general position would seem to
be that the administrator will be
functus
officio
irrespective
of whether the mistake
was
one of fact or
law, and whether it
was
within or beyond
the administrator’s jurisdiction. An exception may exist where
an error comes to the administrator's attention
as soon as the
decision has been announced”.
[Footnotes
excluded]
[24]
In my view, the quotation above does not support the submission made
by Adv van den Heever SC. In this case, there being no
statutory
provision for the respondents to revisit their decision of
classification, the
functus
officio
rule
applies to their decision even if such decision was made in error.
The last sentence of the quotation above refers to the error
coming
to the attention of the administrator concerned and not to the
attention of the affected parties. In his submission, Adv
Van den
Heever SC seems to suggest that the alleged error in the decision of
the respondents was obvious and came to the applicant’s
attention immediately it had occurred. This is not in line with the
common cause facts. On the contrary, the second respondent
adamantly
maintained its stance that the original classification of the
applicant in March 2009 was correct. This approach therefore
does not
assist the applicant.
[25]
In MEC for Health, EC v Kirland Investments
2003 (3) SA 481
(CC) at
paras [87]-[90], it was held that the
functus
officio
principle
applies to erroneous or even grossly erroneous decisions as it avoids
self-help by administrators. This should bring the
argument about the
applicability of the
functus
officio
rule
to rest in so far as the first decision of the second respondent is
concerned.
[26]
Adv Matebese correctly submitted that, if the
functus
officio
rule
applies, then the applicant was knocking at the wrong door when it
was writing letters to the second respondent with a view
to persuade
him to change the classification made in March 2009. The applicant
was simply flogging a dead horse. This must be seen
against the
background that the applicant is not without financial means. It then
stands to reason why it only decided to instruct
attorneys to bring a
review application in 2013 (the aborted one). The applicant could
have sought advice as soon as it became
aware of the decision to
reclassify it as sub-class 1710 in February 2010.
[27]
In Associated Institutions Pension Fund & Others v Van Zyl
& Others 2005(2) SA 302 (SCA) para [46], the Supreme
Court
of Appeal held that there is a duty on an applicant not to take an
indifferent attitude but rather to take all reasonable
steps
available to him to investigate the reviewability of administrative
decision as soon as he becomes aware thereof. The steps
taken by the
applicant to negotiate with the second respondent were, in the first
place, unreasonable as they could not have borne
any fruits in view
of the
functus
officio
principle.
In the second place, it was not reasonable for the applicant to have
continued to negotiate with the second respondent
for such a long
time especially after it had been unequivocally informed in June 2011
by the second respondent that he maintains
his stance with regard to
the original classification of the applicant. The applicant’s
failure to seek legal advice on the
reviewability of the decision
demonstrates its indifference on the matter and the steps it took
fall short of the test laid down
in
Associated
Institutions Pension Fund
case
(supra).
[28] My finding is,
with regard to the first stage of the two stage enquiry referred to
earlier, that the delay of 4 years in bringing
the review application
is not only unreasonable but also falls outside the period of 180
days prescribed in section 7(1) of the
PAJA.
[29] With regard to
the second leg of the enquiry, I am not satisfied by the explanation
given by the applicant. If an applicant
brings a review application
outside 180 days, he is in fact barred from bringing such proceedings
and the court may only entertain
such application if it is satisfied
that the interest of justice so require in terms of section 9 of the
PAJA.
[30]
In this case, the explanation given by the applicant for the delay is
not satisfactory, first in view of the
functus
officio
principle
being applicable to the decision of the respondents and second, even
if I am wrong on the applicability of the
functus
officio
rule,
on the basis that the applicant did not take reasonable steps to
ascertain the reviewability of the decision as stated in
the
Associated
Institutions Pension Fund
case
(supra).
[31] As regards
prejudice, Adv van den Heever SC emphasized that the respondents have
not established prejudice and that the applicant
stands to suffer
severe prejudice. Adv Matebese countered that there is prejudice to
the respondents and beyond, i.e. the public
on the basis of the
public interest element in the finality of administrative decisions.
[32]
I agree with Adv Matebese that, underlying the aspect of finality, is
the inherent potential for prejudice both to the efficient
functioning of the public body and those who rely upon its decisions,
if the validity of its decisions remains uncertain. Consequently,
proof of actual prejudice to the respondents is not a precondition
for refusing to entertain review proceeding by reason of undue
delay
8
.
[33] In view of the
length of delay and the potential prejudice to the respondents and
public they serve, even if it is not directly
proved, as well as
unsatisfactory explanation proffered by the applicant, I am
disinclined to grant the condonation application
on this basis.
[34]
In the circumstances, I am of the view that the application for
condonation ought to be dismissed. Since unreasonable delay
constitutes a complete defence
9
,
it follows that the application for review falls to be dismissed as
well. It is therefore not necessary for me to deal with the
third
aspect, namely the merits of the review application.
[35] In the result,
I make the following order:
[35.1] The
application for leave to file the further affidavit in evidence is
granted.
[35.2] The
application for condonation for the late bringing of the review
application is dismissed.
[35.3] The review
application is dismissed.
[35.4] The applicant
is ordered to pay the costs of this
DT SKOSANA AJ
Acting Judge of the
High Court
On behalf of the
applicant: Messrs Dyson Inc.
134 Muckleneuk
Street West
Nieuw Muckleneuk
Pretoria
Tel: (012) 452 3500
Fax (012) 452 3669
Adv BC van den
Heever SC
Adv VWV Geyser
On behalf of the
respondent: State Attorney
SALU Building
316 Thabo Sehume
Street
…
Tel: (012)
309 1672
...Fax: 086 507
8342
...Adv
ZZ Matebese
1
See
para [7] of that case
2
See
para [8] of that case
3
See
para 2 of the notice of intention to apply for leave to submit this
evidence in supplementary affidavit
4
Probably,
the reason why the evidence was not produced timeously and the
possibility that it may have been shaped to ‘relive
the pinch
of the shoe’
5
See
Mkhwanazi v Minister of Agriculture & Forestry, Kwa-Zulu
Natal
1990 (4) SA 763(D)
at 767 E-F
6
Harvey
v Umhlatuze Municipality
&
Others
2011 (1) SA 601
(KZP) at 627 para [70|; Associated Institutions
Pension Fund & Others v Van Zyl & Others
2005 (2)
SA 302
(SCA) at 321 para [46|~[48]
7
Lion
Match Co. Ltd v Paper Printingwood &Allied Workers Union
& Others
2001 (4) SA 169
(SCA) at 156-157E
8
See
Wolgroiers Afslaers (Edms) Bpkv Munisipaliteit van Kaapstaad
1978
(1) SA 13
(A) at 41 E-F; Gqwetha v Transkei Development Corporation
Ltd
&
Others
2006 (2) SA 603
(SCA) at 612H-613B
9
See
Kirland case (supra) para [97|