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[2015] ZAGPPHC 658
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Associated Equipment Company CC v International Trade Administration Commission and Another (15201/13) [2015] ZAGPPHC 658 (13 August 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Date:
13/8/15
CASE
NO: 15201/13
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
12/12/2014
DATE
SIGNATURE
In
the matter between:
ASSOCIATED
EQUIPMENT COMPANY
CC
Applicant
and
THE
INTERNATIONAL TRADE
ADMINISTRATION
COMMISSION
First Respondent
THE
MINISTER FOR ECONOMIC DEVELOPMENT
Second Respondent
JUDGMENT
MASETI,
AJ
INTRODUCTION
[1]
This is an application by the respondents for leave to appeal against
the whole of the judgment and order, including leave on
the issue of
costs, handed down by this Court on 4 April 2014.
[2]
Leave to appeal is based on the legal and factual grounds set out in
paragraphs 1 to 18 of the application for leave to appeal.
[3]
The matter was set down for hearing on 13 November 2014. The
respondents' Counsel handed in her Heads of Argument during the
hearing.
[4]
The applicant opposed the application on the date of the hearing and
also handed in his Heads of Argument during the hearing.
[5]
Judgment was delivered on 4 April 2014 and the application for leave
to appeal was lodged on 2 May 2014.
THE
ISSUES
[6]
The issues are whether there are reasonable prospects of success and
whether another court may come to a different conclusion.
THE
LAW
[7]
The application for leave to appeal is brought in terms of Section
20(1) of the Supreme Court Act, 59 of 1959 and Rule 49(1)(b)
of the
Uniform Rules of this Court.
[8]
Rule 49(1)(b) provides:
“
When leave
to
appeal
is
required
and it
has not been requested
at the
time of the
judgment
or
order,
application
for such
leave shall
be made
and the grounds
therefor
shall be
furnished
within
fifteen
days
after
the date
of the order appealed against:
Provided
that
when the reasons
or the full reasons
for the Court's
order are
given
on
a
later
date
than
the
date
of
the
order,
such
application may be made
within fifteen days
after such later date:
Provided
further
that
the
Court
may,
upon
good
cause shown
, extend
the aforementioned periods of fifteen days.”
[9]
The application for leave to appeal complies with Rule 49( 1)(b) as
it was lodged, within the period prescribed by the Rule
excluding
public holidays, Saturdays and Sundays.
[10]
Erasmus in his book titled “
Superior
Court
Practice”
(81-356) in his commentary under Rule 49(3)
states that there are four objects to be served by a notice of appeal
namely:
10.1. to enable the
presiding officer to frame his reasons for judgment;
10.2 to give the
respondent an opportunity of abandoning the judgment;
10.3 to inform the
respondent of the case he has to meet;
10.4 to notify the appeal
court of the points to be raised. See
Kilian
v Geregsbode
Uitenhage
1980 (1) SA 808
(A) at 815.
[11]
The court has to consider whether the application for leave to appeal
complies with all the jurisdictional requirements namely:
11.1 reasonable prospects
of success;
11.2 whether grounds of
appeal are not bad in law in that they are so widely expressed as to
leave the appellant free to canvas
every finding of fact and every
ruling of law. See
Himunchol
v Moharom
1947 (4) SA 778
(W) at 780 judgment by Hathorn JP;
11.3 whether the grounds
of appeal inform the respondent in clear and unambiguous terms
exactly what case he has to meet; and
11.4 whether the grounds
of appeal comply with the 4 (four) objects to be served by a notice
of appeal in terms of Rule 49(3) mentioned
in paragraph [10] above.
[12]
The application for leave to appeal meets the requirements stated in
paragraphs [10] and [11] above.
[13]
In their Heads of Argument the respondents contend:
13.1 That the court a
quo
reduced the legislative weight of the respondents' Import Control
Policy to a “
report”.
13.2 That the court
further erred in referring to a letter dated 14 December 2012 whilst
the letter was in fact dated 14 September
2012.
13.3 That the court erred
in failing to take into account the impact of the judgment in
International
Trade
Administration v SCAW South
Africa (Pty)
Ltd
2012 (4) SA 618
(CC) in particular the
finding by the Constitutional Court that a court should only intrude
into the terrain of the executive in
the clearest of cases and only
when irreparable harm is likely to ensue if interdictory relief is
not granted.
13.4 That the court
failed to take into account the discrepancy between the number of
TLB's that the applicant was allowed to import
in accordance with
previously issued import licenses
vis-a-vis
the amount of
TLB's that the applicant actually imported and further that the
discrepancy clearly indicates that there is a sufficient
local supply
of TLB's.
13.5 That the letter
written by Mr Rokebrand of Bell Equipment Sales SA Ltd to a third
party called Dura Equipment Sales, which
was not under oath, did not
carry more weight than that carried by an affidavit deposed to by
Prince Ndlela of Bell Equipment Sales
SA Ltd which confirmed that
Bell would not support importation of TLB's and that Rokebrand's
letter which supports the granting
of the import licence was not
before the first respondent when the permit was refused.
[14]
In his opposition applicant's Counsel contended that in examining the
rationality of the decision of the respondents, it is
perfectly bound
and proper for the court to:
14.1 look at the reasons
given by the respondents when asked to justify its decision;
14.2 look at the reasons
given by the respondents in their answering affidavit.
[15]
If the court finds:
15.1 that there is a
difference between the reasons originally given for the decision and
those ultimately given, this may call
to question the rationality of
the administrative functionary's decision;
15.2 the reasons
ultimately given are, in themselves, not sound or justifiable, this
too may call to question the rationality of
the administrative
functionary's decision.
[16]
The respondent had formulated a policy to quote the relevant portion
of the reasons given in advance:
“
The prevailing
import
control
policy
entails
that the
importation
of used
or second
hand
goods
is
allowed
only
in
the
event
of
similar
or
substitute
new goods not being available
from
local
manufacturers.
”
[17]
The law in regard to the use of administrative functionaries of a
general policy is that if an administrative functionary simply
applies a policy guideline without considering the merits of each
particular application, it has failed to exercise the discretion
given to it and has therefore not made a proper decision.
[18]
In their answering affidavit, the respondents then proceeded to
provide different reasons through Collin's affidavit with specific
reference to Collin's visit to the Bell factory. Those reasons were
nothing more than bald conclusions. If valid the respondents
would
have adduced some data in support of those reasons.
[19]
The applicant is claiming prejudice by its inability to import second
hand TLB's.
[20]
The respondents contend that the applicant is limited to the grounds
it raised in its founding papers when challenging the
respondents'
reasoning whilst they ignore the fact that the respondents changed
the reasons that they gave for their decision in
their answering
affidavit.
[21]
The respondents raise two linked points in their notice, namely:
21.1 that the learned
judge reduced the legislative weight of the policy and in so doing
nullified its weight and importance”
and
21.2 failed to take into
account the reasoning in
SCAW
South Africa
case of the
Constitutional Court dealing with the role of the legislative,
executive and judiciary.
[22]
The reasoning of the respondents here is confusing. The policy is not
anything that has
legislative weight
. It is an administrative
guideline.
[23]
In the overall constitutional structure the courts only set aside
legislation under very limited circumstances. However, the
courts
have a constitutional mandate to test administrative action on
various grounds including rationality. In this case the court
was
concerned with whether or not irrelevant considerations were taken
into account and relevant considerations not taken into
account. The
court found that the respondents had made an irrational decision.
[24]
The respondents blindly followed their guidelines without applying
their mind and therefore without exercising any discretion
in regard
to the applicant's request for an import permit. That respondents did
not act properly was demonstrated by an analysis
of the reasons that
they sought to give to justify their decision.
[25]
In considering the reasonableness of the grounds of appeal, that is,
the reasonable prospects of success and whether another
court may
come to a different conclusion this court has to address the question
of law and facts raised in the following manner:
25.1 The contention by
the respondents that the use of the word “
report”
to the respondents' import control policy reduced the legislative
weight of the policy, leads to confusion as the policy does not
have
any legislative weight other than being and administrative guideline
and has thus been treated as such. This document termed
Import and
Export Control Policy was presented by ITAC to the Minister of Trade
and Industry on 1 August 2007 and the document
was accepted by the
Minister as a policy on 3 October 2007. It never passed any
legislative test.
25.2 The impact of the
judgment in
International
Trade Administration v SCAW
South Africa
(Pty) Ltd
2012 (4) SA 618
(CC), is that
the Deputy Chief Justice addressed the principle of separation of
powers that on the one hand recognizes the functional
independence of
the branches of government and on the other hand the principle of
checks and balances. The courts only set aside
legislation under
every limited circumstances. The court in granting judgment was aware
and took into consideration the submission
by respondents' counsel
that courts are ill-suited to judge on considerations of national
policy choices and specialist knowledge
by further referring to
Bato
Star
Fishing
(Pty)
Ltd
v
Minister
of
Environmental
Affairs and Others
[2004] ZACC 15
;
2004 (4) SA
490
(CC) in paragraph [28] of the judgment in addition to
SCAW
case. The courts are not totally debarred but are warned to give
due weight to findings of fact and policy decisions made by those
with special expertise and experience in their fields.
25.3 The discrepancy
between the TLB's imported and the number of TLB's allowed in
accordance with the previous permits granted
was not mentioned in the
reasons for the refusal of the import licence in the letter dated 14
September 2012. The discrepancy appeared
only in paragraph 4 of the
respondents' answering affidavit deposed to by Marius Ettienne
Collins. The fact that the applicant
ordered less TLB's in 2011 than
the number of TLB's granted in his permit issued in 2010 does not
lead to the total exclusion of
the applicant from importing any TLB's
at all. The applicant is potentially prejudiced by its inability to
import second hand TLB's
at all.
[26]
It is conceded that the letter of no objection recorded in March 2013
by Rokebrand, a commercial director of Bell Equipment
cannot be
considered since it was written after the refusal of important
licence in July 2012 and did not form part of the documents
considered by the respondents in arriving at their decision.
Paragraph 41(c) of the order is therefore flawed.
[27]
The court in paragraphs 1, 16.2 and 38.5 of its judgment has
erroneously written 14 December 2012 instead of 14 September 2012.
This has been a typographic error. This error as a result had an
effect on paragraph 41(b) of the order where the order reads 14
December 2012 instead of 14 September 2012. Paragraphs 4, 14 and 37
of the judgment refer to the correct date, that is, 14 September
2012.
[28]
This Court is of the view that the typographic errors in the judgment
itself have no material effect. Since this Court does
not have powers
to change its own order the error in the order itself does have a
negative effect and justifies the granting of
the leave to appeal on
the order only. It is trite that once judgment is given in a matter
it is final. It may not thereafter be
altered by the judge who
delivered it. He becomes
functus
officio
and may not
ordinarily vary or rescind his own judgment. That is the function of
the Court of Appeal.
[29] In so far as the
judgment is concerned this Court Is still convinced that the refusal
to grant Import licence was irrational
but at the same time another
court may come to the conclusion that my judgment has been influenced
by the letter of no objection
recorded in March 2013 by Rokebrand.
[30]
In the premises the application by the respondent for leave to appeal
against the judgment granted on 4 April 2014 succeeds.
[31]
The application for leave to appeal against the order granted on 4
April 2014 also succeeds.
[32]
Since costs generally follow the results the question of costs will
be addressed by the Appeal court that will hear the matter.
[33]
I now make the following order:
(a) The application for
leave to appeal against the judgment and order granted on 4 April
2014 is granted to the full court of this
Division.
(b) There is no order as
to costs.
__________________________________________
PLC
MASETI
ACTING
JUDG E OF TH E HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE
OF HEARING
13 NOVEMBER 2014
DATE
OF JUDGMENT
12 DECEMBER
2014
FOR
THE APPLICANT
ADV VAN
BLERK SC
INSTRUCTED
BY
FRIEDLAND HART SOLOMON & NICOLSON
79 Steenbok Avenue
Monument Park
Pretoria
FOR
THE RESPONDENT
ADV NEUKIRCHER SC
INSTRUCTED
BY
THE STATE ATTORNEY
255 Cnr Thabo Sehume &
Francis Baard Streets
Pretoria