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[2015] ZAGPPHC 427
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Fines 4 U (Pty) Ltd and Another v Mamos and Others (30586/14) [2015] ZAGPPHC 427 (26 June 2015)
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 30586/14
REPORTABLE: YES
I
NO
OF
INTEREST TO OTHER JUDGES: YES/NO
DATE:
26/6/2015
IN
THE MATTER BETWEEN
FINES
4 U
(PTY)
LTD
First Applicant
BRET
HUDSON (PTY) LTD
T/A
AUDI CENTRE JOHANNESBURG (PTY)
LTD
Second
Applicant
and
SHERMAN
M AMOS, DEPUTY REGISTRAR, ROAD
TRAFFIC
INFRINGEMENT
AGENCY
First Respondent
THE
MINISTER
OF
TRANSPORT
Second Respondent
THE
DIRECTOR-GENERAL, DEPARTMENT
OF
TRANSPORT
Third Respondent
THE
ROAD
TRAFFIC INFRINGEMENT AGENCY BOARD
Fourth Respondent
JUDGMENT
LEGODI
J
[1]
The application before me revolves around whether the interlocutory
application for the joinder of certain persons referred
to in these
proceedings as representations officers and other such officers
identified only by their employment numbers, should
be granted. The
applicants want them to be joined in the main application for review
as additional respondents. In the review application,
the
representations officers' rejection issued in terms of section 18(5)
(c)(ii) of the Administrative Adjudication of Board Traffic
Offences
Act no. 46 of 1998 ("the Act"). of the applicants'
representations, not to be held liable for the penalty payable
in
terms of the infringement notices issued under section 17 of the Act,
is challenged.
[2]
In terms of section 17(1) of the Act, if a person is alleged to have
committed an infringement, an authorized officer or a person
duly
authorized by an issuing authority, must instead of notice
contemplated in
section 56
or
341
of the
Criminal Procedure Act no.
51 of 1977
and subject to
section 23
serve or cause to be served on
that person an infringement notice, which must specify certain
particulars and information set out
in paragraphs (a) to (f) of
thereof.
[3]
Subjection (1) of
section 18
allows an infringer who has been served
with an infringement notice alleging that he or she has committed a
minor infringement,
to make representations with respect to that
notice to the agency.
[4]
The applicants, Fines 4 U (PTY) Ltd and Brett Hudson (PTY) Ltd t/a
Audi Centre Johannesburg (PTY) Ltd, had brought a review
application
challenging the decisions by various representations officers who
rejected the representations by the applicants pursuant
to several
infringement notices issued in terms of section 17 of the Act against
the applicants. That review application is opposed
and the present
interlocutory is also opposed by the fourth respondent, i.e. the Road
Traffic Infringement Agency Board. The first,
second and third
respondents are Deputy Registrar of Traffic Infringement Agency,
Minister of Transport and Director-General Department
of Transport
respectively.
[5]
As I said, the only application before me is interlocutory. The
grounds for the objection in the present application are no
different
from those in the main application. In a nutshell, the challenge is
as follows: The representations officers do not make
reviewable
decisions, their decisions cannot be reviewed under PAJA and they
have no legal interest in the subject matter of review.
[6]
In paragraph 11 of the fourth respondent's written heads of argument,
the contention is crystalized as follows:
"11. The
applicants
suggest
that
the
representations officers'
decisions
to
"reject" their representations
are reviewable
under
PAJA. They are, with
respect,
incorrect.
That
is so
because
their
decisions
to
"reject"
the representations
do
not
amount to administrative action. "Administrative
action" in this context is defined in section 1(a)(ii) of PAJA
as
follow:
"Administrative
action"
means
any
decision
taken,
or
a
failure
to
take decision by an organ of state when
executing
a
public power or performing
a
public
function
in
terms
of
any
legislation
which
adversely
affects
the
rights of any person and which
has
a
direct, external
effect".
[7]
I must be careful not to deal with the present application as if one
is dealing with the main application, issues of which,
as I said, are
no different from the issues before me. Whatever I say hereunder,
should therefore not be understood as a final
determination on the
issues.
[8]
The scheme of the legislative framework and issues under discussion,
introduce some novelty in the approach prompted by the
infringement
notices in terms of section 17 of the Act. I will deal with
what I think is relevant for the present application.
[9]
In issuing infringement notice, the infringer's attention and of
relevance, must be drawn to the following:
9.1
That the demerit points position may be ascertained from the national
contraventions register at the office of any issuing authority,
registering authority or driving licence, and or testing centre
(section 17(1)(e).
9.2
That not later than 32 days after the date of service of the
infringement notice,
the infringer may:
9.2.1
pay the penalty, as reduced by the discount contemplated or make
representations
to the agency in case of a minor infringement
(section 17(1)(f)(i).
9.2.2
elect in the prescribed manner to be tried in court on a charge of
having
committed the alleged offence (section 17(1)(f)(iv).
9.2.3
provide information in the prescribed manner, to the satisfaction of
the issuing
authority that he or she was not the driver of the motor
vehicle at the time of the alleged infringement, coupled with the
name,
acceptable identification and residential and postal address of
the alleged driver or person in control of the vehicle, failing
which
the matter will be referred to the agency and a courtesy letter will
be issued in terms of section 19, whereafter the penalty
and the
prescribed fee of the courtesy letter (section 17(1)(f)(v), will be
payable
[10]
In terms of subsection (2) of section 17, if an infringer fails to
comply with an infringement notice within the period contemplated
in
subsection (1)(f), the issuing authority must give notice of the
failure, in the prescribed manner, to the agency for further
action
in terms of section 19.
[11]
Section 18 deals with the making of representations upon service of
the infringement notice and if such representations are
rejected, in
terms of subsection (7) the representations officer may advise the
infringer to elect in the prescribed manner to
be tried in court and
must serve or cause to be served on the infringer a prescribed
written notification, drawing his attention,
of relevance, to the
following:
11.1 That if he or she
does not elect to be tried in court -
11.1.1
the penalty, the prescribed representations fee and the prescribed
fee of the courtesy letter
if any, are payable to the agency or that
the arrangements can made with the agency in the prescribed manner to
pay in installments,
not later than 32 days after the date of service
of the notification. (section 18(7)(b)(i); and
11.1.2
failure to pay the penalty and fees or to make arrangements to pay in
installments will result in
an enforcement order being served on the
infringer and that the infringer will become liable to pay the
penalty, and fees and the
prescribed fee of the enforcement order
(subsection (7)(b)(ii); and
11.1.3
The infringer elects to be tried in court, which may only be done on
the advice of the representations
officer, the provisions of section
22 will apply (subsection (7) (c) ).
[12]
From the scheme of things, if the infringer fails to comply with
infringement notice in any manner, that will trigger the enforcement
steps envisaged in section 20 of the Act. In terms of subsection (1)
thereof, if an infringer fails to comply with the infringements
of
the notification contemplated in section 18(7) or a courtesy letter
contemplated in section 19(2)(b) or has failed to appear
in court as
contemplated in section 22(3)(a), as the case may be, the registrar
must subject to subsection (2) of section 20 issue
enforcement order,
and serve it on the infringer. Before the issue of enforcement order,
the registrar should be satisfied that
all procedural processes have
been complied with.
[13]
The contention on behalf of the fourth respondent is that the
decision to reject representations is not final and therefore
does
not qualify as administrative action subject to review. One needs to
look at the legislative framework in isolation in order
to come to
the conclusion as suggested by the fourth respondent. For example, if
not satisfied with the rejection, an infringer
can either pursue the
matter in court or wait for the enforcement step to take place and
then apply for revocation of the enforcement
in terms of subsection
(9) of section 20 which provides that an enforcement order can be
revoked by the registrar if the infringer
applies to the agency in
the prescribed manner and submits reasons to the satisfaction of the
registrar why an enforcement order
must be revoked.
[14]
The gist of the contention by the fourth respondent is that, failure
to respond positively to the infringement notice after
rejection of
the representations, has no legal consequences and does not adversely
affect the infringer's right, until a court
of law has taken a
decision or until enforcement order has been issued. As I said, one
needs to look at the scheme in isolation
to come to this conclusion.
[15]
The registrar of the Road Traffic Infringement Agency Board, (the
first respondent) is the custodian of a register for contraventions
or infringements. In terms of subsection (3) of section 17, if
infringer complies with an infringement notice by arranging to pay
the penalty in installments or by paying the penalty, as reduced by
the discount contemplated in subsection (1)(d), the agency
must
update the national contraventions register in the prescribed manner,
(paragraph (a), record the demerit points incurred by
the infringer
in terms of section 24 in the national contraventions register
(paragraph (b).
[16]
It appears from the provisions of subsection (3) of section 17 that
once an allegation of infringement is made and an infringement
notice
issued, the particulars of the alleged infringer and probably with
all alleged infringements are entered into the national
register.
Subsection (8) of section 17 provides as follows:
"(8)
If
an
infringer
pays
the
penalty
and fee
as
contemplated in
subsection (7)(b)(i) or makes
arrangements
to pay
in installments,
the agency must
-
(a)
Update
the national
contraventions
register
in
the
prescribed
manner;
(b)
Record
demerit
points incurred by the infringer in the
national
contraventions
register;
(c)
Notify
the infringer
by
registered
mail
in the prescribed
manner
that the demerit
points
have been recorded
against his or her name in the national
contraventions register
in
respect
of
the
infringement
in question;
and
(d)
Provide
the
infringer with
a
printout
of
the
demerit
points incurred to
date,
together
with an indication
of
the number
points
left
before
his
or her
driving
licence,
professional driving permit
or
operator
card is suspended
in
terms
of section
25
or cancelled
in
terms of section
27".
[17]
Subsections (7) and (8) raise an issue which in my view, can properly
be dealt with in the main application. That is, whether
the decision
by the representations officer, to reject the infringer's
representations in the absence of an election to go to court
or to
wait for the enforcement to be triggered in terms of section 18, and
or failure to pay in terms of the infringement notice
upon rejection
of the representations, adversely affect the infringer's right. To
want to deal with the issue at this stage, in
my view, would be to
anticipate the outcome of the main application.
[18]
The provisions of sections 17, 18 and 19 referred to in paragraphs 9,
11, 12, and 17 of this judgment do not make it obvious
that the
decisions by representations officers in rejecting the infringers'
representations are not administrative actions. Administrative
action
means any decision taken or a failure to take a decision by an organ
of state, when exercising a public power or performing
a public
function in terms of the legislation which adversely affects the
rights of any person and which has a direct. external
legal
effect. [Underlining is my emphasis]. I
refrain from expressing a final view on
this aspect.
[19]
The application before me is interlocutory and the terms of the
relief sought are:
"
1.
That
the
following
persons
be joined
as
respondents
to
the
application under
the above
case
number:
1.1
Mr
Reuben Mannafela
as
fifth
respondent;
1.2
Adv HT Mbatha
as
sixth respondent;
1.3
Mr
JB Jacobs
as
seventh respondent;
1.4
Ms
M Lippert
as
eighth respondent;
2.
That the applicant be granted leave to
join
to these
proceedings
any such further so-called representation officers
whose identity may be
established with
specific
reference, but
not
limited, to
the
representation officers known by
the
following
employee and/or
internal identification numbers:
2.
1
…………
2. 2
…………
2.3
…………..
3.
The first and fourth
respondents
are ordered
to
forthwith
and
by no later than five (5) days after date
of service of this order to make known
to the applicants'
legal
representatives the
names
and particulars
of
therepresentation
officers
who
are
identified
by
the following
employee
and/or
internal
identification
numbers:
3. 1
………..
3.2
………
..
3.3
………….
4. That
the
costs
of
this
application for the joinder
of
the
aforesaid representation
officers
be costs in
the review
application,
alternatively,
and in the
event
of
any
of
the
respondents opposing same
that
such
respondent
be ordered
to pay
the costs.
5.
Further
and/or
alternative
relief'.
The
applicants seek to join the said representations officers to the main
application in that they have taken the decisions in terms
of which
they rejected the representations made by the applicants.
[20]
The dispute between the parties, in my view, is the subject of
several questions, which are best suited to be argued during
the
hearing of the main application. For example, is the infringer's
right adversely affected when his or her representations are
rejected
and he or she pays the penalty and fee imposed for the infringement
in terms of section 24(2) dealing with the demerit
points system? Is
the infringer's right adversely affected when his or her
representations are rejected and penalty and fee for
the infringement
are paid and the agency updates the national contraventions register
and record of the demerit points incurred
by the infringer in the
national contraventions register as contemplated in section 18(8) of
the Act? Is the representations officer's
decision final and thus
amounting to administrative action seen in the light of the nature of
the enquiry the representations officer
is expected to launch in
terms of section 17(5) read with subsection (4) thereof, and the fact
that the register in dealing with
the enforcement, does not consider
the merits of the rejection of the representations, but only the
procedural compliance as envisaged
in section 20(2) of the Act? Is
the infringer's right adversely affected after rejection of his
representations if he or she elects
not to go to court or to wait
until enforcement order is issued in terms of section 20,
particularly seen the light of section
17(2)(c) read with section
20(1) dealing with the updating of the national contraventions
register and recording of demerits as
provided in paragraphs (a) and
(b) of subsection (1)?
[21]
Consequently an order is hereby granted in terms of prays 1, 2, 3 and
4 of the notice of motion quoted in paragraph 19 above
and the fourth
respondent to pay the costs of the application as envisaged in the
alternative in prayer 4 of the notice of motion.
M
F LEGODI
JUDGE OF THE HIGH
COURT
Attorneys
for the Appl icants:
GRIESEL
& BREYETENBACH ATTORNEYS
761 Park Street
Clydesdale P
RETORIA
012 343 2407
FF7245 Mr Griesel/hvz
Attorneys
for the Respondents:
MAJAVu INC.
C/O FRIEDLAND HART
SOLOMON & NICOLSON
Suite 301, Block 4
79 Steenbok Avenue
Monument Office Park
PRETORIA
TEL: 012 424 0200
REF: TRUDIE VAN
STRAATEN/nm/321419