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[2013] ZAGPPHC 36
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Afriforum v Minister of Trade and Industry and Others (52545/2011) [2013] ZAGPPHC 36; 2013 (4) SA 63 (GNP); [2013] 3 All SA 52 (GNP) (28 February 2013)
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REPORTABLE
NORTH
GAUTENG HIGH COURT PRETORIA
CASE
NO: 52545/2011
Date:
2013.02.28
In
the matter between:
AFRIFORUM
…..........................................................................................
Applicant
and
THE
MINISTER OF TRADE AND
INDUSTRY
........................................
First
Respondent
THE
MINISTER OF CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL AFFAIRS
..................................
Second
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT ASSOCIATION
..............
Third
Respondent
JUDGMENT
[1]
The Minister of Trade and industry, the first respondent, deferred
the implementation of certain sections of the Consumer Protection
Act
68 of 2008, (CPA) by way of two notices. The applicant seeks the
setting aside of these two notices issued by the first respondent
being Government Notice 221 of 14 March 2011 and Government Notice
898 of 31 October 2011.
[2]
The effect of these notices defers statutorily entrenched consumer
rights which may be exercised by consumers against municipalities.
Issues such as service delivery and dissonance between consumers and
their municipalities were raised and are current challenges
of our
times.
[3]
Central to this issue is the proper interpretation of Schedule 2
being the transitional provisions of the CPA and in particular
item 2
relating to the incremental effect of the Act.
[4]
The first respondent has raised various defences. It challenged the
applicant’s legal standing to bring this application
on two
bases. This includes its standing in terms of it being a juristic
entity capable of suing in terms of Rule 14 of the Uniform
Rules of
Court. Secondly it’s standing in terms of the Promotion of
Administrative Justice Act No 3 of 2000 (PAJA) because
it has failed
to name specific consumers who have been adversely affected by the
CPA and thus the application is premature. The
first respondent
contends that he did apply his mind to the request by a member of
cabinet, the Minister of Co-operative Governance
and Traditional
Affairs, the third respondent in these proceedings, to the question
of deferral of consumer rights to the categories
of municipalities
which he excluded in terms of the CPA.
[5]
The applicant raised a number issues in respect of the notices based
on the principle of legality demanded by s33(1) of the
Constitution
read with various sections of PAJA. These issues include an argument
that the first respondent was functus officio
after he issued the
first genera! deferral of the CPA therefore could not issue the
subsequent notices. Further grounds of challenge
based on PAJA
include s6(2)(a)(4i) (not authorised by the empowering section to
issue the notices); s6(2)(b) (a mandatory and material
procedure not
complied with); s6(2)(d) (action materially influenced by an error of
law); s6(2)(e)(iii) (irrelevant considerations
taken into account and
relevant considerations not considered); s6(2)(e)(iv) (action taken
because of unauthorised or unwarranted
dictates of another body or
person); S6(2)(vi) (action taken arbitrarily or capriciously),
s6(2)(f)(i) and s6(2)(f)(ii)(cc) the
action itself contravenes a law
and is not rationally connected to the information before the first
respondent.
[6]
The effect of this deferment means that persons living in low and
medium capacity municipalities cannot seek redress for unsatisfactory
services in terms of the CPA.
The
legislative vision for municipalities
[7]
With the advent of democratisation a new constitutional vision for
local government was introduced in South Africa. Chapter
7 of the
Constitution defines the object and structure of local government In
particular one of the central objects as set out
in si52 (1 )(b) and
(c) of the Constitution is to ensure the provision of services to
communities in a sustainable way and to promote
social and economic
development.
Municipalities
with limited resources and insufficient capacity will nevertheless
have to provide basic services to people who did
not enjoy them as of
right in the past and with rising levels of poverty cannot afford
them now. These municipalities will ultimately
have to comply with
the carefully crafted legislative framework guiding their
functioning.
[8]
The Legislature's protection of citizens living within municipal
structures also includes another very detailed statute. The
Local
Government Municipal Systems’ Act 32 of 2000 (the Act) assented
to on 14 November 2000 and is very detailed in the
role required of
the municipalities. The preamble to this Act refers to the core
principles, mechanisms and processes that are
necessary to enable
municipalities to move progressively towards the upliftment of loca"
communities and ensure universal
access to essential services. In
addition the new system of local government requires efficient,
effective and transparent local
administration that conforms to
constitutional principles.
[9]
Section 73 of the Act defines the general duties of a municipality. A
municipality must give effect to the provisions of the
Constitution.
It must give priority to the basic needs of the local community,
promote the development of the local community,
and ensure that all
members of the local community have access to at least the minimum
basic municipal services. Municipal services
must be equitable and
accessible. It must be provided in a manner that is conducive to the
prudent economic, efficient and effective
use of available resources
and the improvement of standards of quality over time; be financially
sustainable; be environmentally
sustainable and be regularly assessed
with a view to upgrading, extension and improvement.
[10]
It follows therefore that the role of municipalities in our society
is in fact at the centre of the quality of life of every
person who
lives in an area designated as such and is also the fulcrum around
which civil society gravitates. Professor Jacklyn
Cock, Professor
Emeritus of sociology at the University of the Witwatersrand
describes a municipality as being akin to a local
state and one of
the material bases for defining human dignity. Improving the output
and quality of municipal services to the
people living within
metropolitan, district and local municipalities is entrenched in
various pieces of legislation and not only
those that referred to.
Legislative Framework of the CPA
[11]
The extensive and wide reach of consumer protection is imbedded in
the CPA itself. Section 3 of the CPA defines its purpose
and policy
in minute detail The detailed provisions provide in particular for
the achievement and maintenance of a consumer market
that is fair,
accessible, efficient, sustainable and responsible for the benefit of
consumers generally.
[12]
A commission was appointed to protect and advance the interests of
all consumers and even to report to the responsible Minister,
the
first respondent on an annual basis any matter relating to the supply
of goods and services. Clearly therefore, the reach of
Parliament
into consumer matters was defined and any deviation from its
implementation must bear close scrutiny.
[13]
The ambit of the CPA is to develop and employ innovative means to
promote the full participation of consumers and to ensure
accessible
transparent and efficient redress. It is also the purpose of the CPA
to strengthen a culture of consumer rights, responsibilities,
business innovation and to enhance performance. Once the Legislature
has
circumscribed
the reach of the CPA in such detail it follows that the first
respondent can only defer the rights of those living
within those
municipalities with caution and precision. Such deferment must
obviously be linked to the exigency of the situation
and an intention
to exclude them from the protection of the CPA can only be done for
the shortest possible time period.
[14]
The review record which runs to some 800 pages reveals that there are
certain municipalities which will never be self-sufficient
financially but nonetheless it would be unlawful to exempt those
municipalities from the reach of the CPA in perpetuity in the
absence
of the Legislature making that an express provision.
[15]
Once this high bench-mark for consumers has been set by the
Legislature itself, deviation from the standard can only take place
under conditions of strict control as that set out very clearly in
schedule 2 items 23 (a) and (b).
[16]
The consumer rights which have been deferred by the first respondent
relate to fundamental consumer rights as dealt with in
the CPA such
as s 8 to 10 differential treatment; s10 provides for equality court
jurisdiction where parties can approach the Equality
Courts in order
to protect their rights. The second tranche of rights which had been
deferred are those in s 53 to 61. In particular
a consumer in section
54 has the right to demand quality service, so therefore a person
living within a particular municipality
has an entrenched consumer
right to demand quality service. A consumer also has the right to
demand to good quality goods and those
that are safe.
[17]
The CPA was assented to on 24 April 2009. Item 1 of schedule 2
provided that certain sections of the CPA would take effect
within 12
months and item 2 the balance of the CPA provisions within 18 months
after signature by the president. There is a proviso
that 20 business
days before the date contemplated in item 2 the first respondent may
defer may defer certain provisions for not
more than an additional 6
months on the ground that additional time is needed for adequate
preparations to ensure effective implementation
or on the request
from the member of cabinet responsible for local government until
further notice. The first respondent contends
that 'or' must be read
as ‘and’.
The
words ‘and ‘or’ in statutory interpretation and the
functus officio doctrine.
[18]
In terms of item 2 of schedule 2 of the
Consumer Protection Act, the
incremental effect of the Act is clearly defined, initially the
entire Act was deferred for some 18 months to 31 March 2011 after
it
was signed by the President. Thereafter deferral was permissible in
limited and statutorily defined circumstances.
Item
2(3) provides as follows:
‘
The
Minister may by notice publish in the Government Gazette at least 20
business days before the date contemplated, in sub-item
2
(a)
defer the effective date of any provision contemplated in that sub-
item for a period of not more than 6 additional months on
the grounds
that additional time is required for adequate preparation of the
administrative assistance necessary to ensure the
efficient and
effective implementation of that provision, or (my emphasis)
(b)
on request from the member of Cabinet responsible for local
government; defer until further notice the application of this Act
to
-
(i)
any particular municipality other than a high capacity municipality
as defined in terms of the Local Government Municipal Finance
Management Act, 56 of 2003; or
(ii)
any organ of state that is responsible to a municipal authority in
its capacity as a supplier of any goods or services to consumers
on
the grounds that additional time is required for adequate preparation
of the administrative systems necessary to ensure that
the
municipality or organ of State can meet its obligations in terms of
this Act efficiently and effectively. ’
[19]
item 2(3)(a) is followed at the end of the paragraph with the word
or’ in that upon a request from a member of Cabinet,
the first
respondent may defer until further notice the application of the CPA
to any particular municipality other than a high
capacity
municipality on the grounds that additional time is needed for
adequate preparation of the necessary administrative system.
[20]
A member of Cabinet that is the third respondent requested a deferral
just days before the end of the 18 month period contemplated
being
the commencement date to 31 March 2011. The first respondent granted
the request and published the first notice. On a proper
construction
of Schedule 2 the incremental provisions of the CPA was anticipated
and necessary to provide for administrative delays.
The applicant
attacks the fact that the decision by the first respondent was not
made a full 20 days before the date contemplated
in Item 2(2) i.e.
before the expiry of the 18 month period. The record reflects a
shortfall in dies. It would be unnecessarily
formalistic to non suit
the first respondent on the shortfall of a few days.
[22]
it the applicant's case that once the first respondent had made the
decision to defer for 18 months he could not again exercise
a
decision to issue the first notice. He was functus officio, if that
challenge was not upheld the further functus officio challenge
is
that the first respondent could not revoke the first notice and then
issue the second notice. He again was functus officio.
[23]
The first respondent defence to this was that the word OR at the end
of item 3(2)(a) has to be interpreted to mean AND. It
is settled law
that the primary meaning of the word is relevant but the context and
subject matter and its scope and purpose is
also relevant. (Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitation and Others
[2008] ZACC 16
;
2009 (1) SA 390
(CC) and Radebe and another
v Premier, Free State and Others
2012 (5) SA 100
(LAC).
[24]
In Standard Bank Investment Corporation Ltd V Competition Commission
And Others; Liberty Life Association Of Africa Ltd V Competition
Commission And Others
[2000] ZASCA 20
;
2000 (2) SA 797
(SCA)in (Liberty Life
Association of Africa Ltd v Competition Commission and others)
[2000] ZASCA 20
;
2000
(2) SA 797
(SCA) Schutz JA at para 21 stated;
“
However,
as I have endeavoured to show, our law is an enthusiastic supporter
of 'purposive construction' in the sense stated by
Smalberger JA in
Public Carriers Association and Others v Toll Road Concessionaries
(Pty) Ltd and Others 1990 (1) SA925 (A) at
943G - H - “'Mindful
of the fact that the primary aim of statutory interpretation is to
arrive at the intention of the Legislature,
the purpose of a
statutory provision can provide a reliable pointer to such intention
where there is ambiguity."
[25]
The author E. A. Kell aw ay in Principles of Legal Interpretation
states that although words in a statute have a particular
meaning
there are words that have acquired a recognised genera! meaning. For
example words such as 'or1 and 'and 'when the natural
meaning would
give rise to an interpretation which is unreasonable or if the
context renders it absolutely necessary.
[26]
Schedule 2 provides specifically for transitional matters and the
incremental effect of the CPA. In that context the word ‘or’
must mean ‘and’ and therefore the applicant’s
submission that once a deferment has been made by the first
respondent
he can issue no further notice as he is functus officio. I
find that the interpretation contended for by the first respondent
must
prevail in that he could issue a notice after the 18 month
initial deferral.
[27]
it follows therefore that the first respondent was entitled to extend
the time period. The context of item 2(3) of schedule
2 introduced
flexibility but not unbridled flexibility.
[28]
The applicant through its attorneys of record engaged in discussion
with the first respondent to try and address the consequences
of the
publication of the notices. This much is clear from the letters in
the" application. The parties could not resolve
their
differences and seven months after the publication of the first
notice the first respondent revoked it and published Government
Notice 898 of 31 October 2011. The second notice was published in the
midst of negotiations and meaningful engagement between the
parties.
The applicant terminated these discussions when the second notice was
published.
What
exactly has been deferred?
[29]
It is important to consider what it is the first respondent has
deferred. In the second notice of the 31st October 2011 the
following
is stated:
7
maintain the deferment granted in March 2011 in relation to section 8
to 10 and
sections 53
to
61
of the
Consumer Protection Act in
respect
of medium capacity municipalities until 31 December 2012 subject to
the findings of a joint review by the Minister of Trade
and industry
and cooperative Governance and Traditional Affairs to be completed
before this date. ” The date of 31 December
2012 has passed and
the respondents contend that in relation to the medium capacity
municipalities the issue is moot.
The
Minister goes on to say the following:
“
I
also maintain the deferment granted in March 2011 for low capacity
municipalities in relation to
sections 8
to
10
and
sections 53
to
61
subject to the findings of a joint review by the Minister of Trade
and Industry and Cooperative Governance, and Traditional Affairs,
to
be completed before 30 June 2014."
[30]
It is clear therefore that the deferment notices go to the very heart
of consumer rights and those rights that affect the day-to-day
functioning of a person living within a municipality.
Locus
Standi of the applicant
[31]
The central defence which the respondent has proffered in this matter
was a challenge to the locus standi of the applicant.
The applicant
has cited itself as a non-profit company with its main purpose and
objective being the promotion and advocacy of
democracy, equality,
civil human rights and constitutional rights. The applicant attached
its memorandum of incorporation and articles
of association. The
respondents take the point that the annexure shows the name
“Solidariteit Burgerlike Beweging”
and this does not
enable the appficant to sue as a trade name. A supplementary
affidavit was handed in where the applicant explained
that the name
“Solidariteit Burgerlike Beweging” was changed to
“Afrikaanse Forum vir Burgerlike Regie".
!t also
registered the name Afriforum as a trade mark and attached the
certificate of registered trade mark.
[32]
The issue of standing can be decided by both Section 38 of the
Constitution and Rule 14 of the Uniform Rules of court. Rule
14 of
the uniform rules of court is sufficiently wide to include a
defendant trading under a name or style which was up until the
amendment to the Rule not recognised as being specifically covered by
the Rule. In (Mega Flex ('n Divisie van Sentrachem Bpk) en
’n
Ander v White River Motor Trading (Edms) Bpk)
1996 (1) SA 616
(T) at
618A Le Roux J, in discussing the problem with regard to the citation
of defendants and its relation to Rule 14, referred
with particular
reference to the judgment of Levison J in (Two Sixty Four Investments
(Pty) Ltd v Trust Bank)
1993 (3) SA 384
(W), said the following:
’
Levison
R bevind (myns insiens. korrek) dat Reel 14 van die Eenvormige
Hofreeis 'n nuwe era ingelui het wat die locus standi van
firmas,
verenigings en besighede aanbetref wat deur 'n "aileeneienaar
daarvan onder ’n ander naam as sy eie bedryf word"
(sien
omskrywing van "firma" in Reel 14(1)). Reel 14(2) laat !n
vennootskap, firma of vereniging toe om in sy eie naam
te dagvaar of
gedagvaar te word. Op 386B se die geleerde Regter die volgende in
verband hiermee:
"Of
these Rules Joubert (ed) The Law of South Africa vol 3 para 55 says
that they 'are designed to solidify and facilitate
actions and
applications by or against partnerships, firms and associations which
at common law cannot generally sue or be sued
in their own names
apart from the members constituting it', i have no doubt that the
respondent falls squarely within the definition
of 'firm'. It has a
sole proprietor, the name of which is set out in the citation in the
summons as 'Bankorp Bpk' ”.
[33]
In Cupido v Kings Lodge Hotel
1999 (4) SA 257
(E) Horn J found,
'The
Rule was introduced in order to simplify the method of citation in
respect of a number of situations where a business or businesses
were
being conducted or bore names which were descriptive of them.
(Erasmus, Breitenbach and Van Loggerenberg Superior Court Practice
at
B1-112; see also De Meillon v Montclair Society of the Methodist
Church of Southern Africa
1979 (3) SA 1365
(D) at 1369D.) Rule 14 is
a procedural remedy whereby a litigant can be brought to Court. It
has nothing to do with the substantive
law concerning the nature and
status of a defendant. !t does not elevate a defendant to a status
which it did not possess before.
In citing a defendant by its trading
name, one merely addresses it by the name it is commonly Known.
(Parker v Rand Motor Transport
Co and Another
1930 AD 353
at 358;
Simpsons Motors v Flamingo Motors
1989 (4) SA 797
(W) at 798G-799A;
Ahmed v Belmont Supermarket
1991 (3) SA 809
(N) at 811B.)
[34]
Section 38 of- the Constitution is wide and provides in s38 (d) that
anyone can approach the court acting as a member of or
in the
interest of a group or class or persons. A narrow approach is
unnecessary and in this regard a variety of cases were relied
upon.
(Freedom Under Law v Acting Chairperson: Judicial Service Commission,
and Others 2011 (3) SA (Lawyers for Human Rights and
Another v The
Minister of Home Affairs
[2004] ZACC 12
;
2004 (4) SA 125
(CC); Albut v Centre for the
Study of Violence and Reconciliation and Others
2010 (3) SA 293
CC
para [33] to [35].
[35]
Accordingly [ find that the applicant does have locus standi based
upon a proper application of the above principles to the
facts in
this case.
Judicial
deference in Administrative Law and the publication of the Notices
[36]
The further question that must be addressed is whether this court can
interfere with a decision and policy of the first respondent
having
regard to the complexity of the entire municipal structure, the types
of problems experienced by municipalities and the
expertise required
to evaluate its functioning. Furthermore whether there should be
judicial deference in the technical sense of
the word before setting
aside these notices. Having said that and mindful of questions of
separation of powers, judicial deference
and also mindful of
transformative constitutionalism it Is important that the facts
underpinning any decision which this court
makes, must be carefully
evaluated. In addition the tier of judicial scrutiny which a court
must make at this stage without making
a finding on the merits of the
policy and the facts is a relevant consideration. An 800 page record
has been submitted and in my
view the contents cannot be ignored
because it underpins the assessment and procedural fairness or
otherwise of the decision made
by the first respondent to defer very
important rights. Such judicial scrutiny as it affects the procedure
adopted by the first
respondent requires a transparent approach.
[37]
It would appear from the record that whilst the first respondent has
done a considerable amount of work to assess whether the
provisions
of the CPA can indeed be implemented he it nevertheless overlooked
relevant considerations, a contravention described
in (s6(2)(e)(ii)
of PAJA: for example whether particular municipalities in the medium
and low capacity category were ready , e.g.
one of the reports by the
Cooperative Governance Department deals with section 8 - 10 of the
CPA the very sections that I have
referred to and under the column
“Is the service provided without discrimination or restriction
to all consumers?" The
answer is; “Yes". This is one
of the jurisdictional facts upon which the first respondent has come
to the decision in
order to support the Minister of Cooperative
Governance's request to grant a deferment when clearly the document
states the service
can be provided without discrimination or
restriction to all consumers.
[38]
The record also reflects criticism by the third respondent about the
manner in which these municipalities have been classified
that is low
medium and high capacity municipalities. In the result Item 2 of
Schedule 2 and the first respondent follow the threefold
classification despite its own record reflecting that these
categories are not appropriate tools to assess a municipality's
ability
to assess services. From the very records submitted by the
first respondent there seems to be a different classification: those
categories of municipalities that are most vulnerable, the second
most vulnerable, the second highest performing and the highest
performing. This lack of consensus on even something as basic as
categories amply demonstrates that the first respondent should
have
been more particular about which individual municipality should be
deferred from the provisions of the CPA.
[39]
The record also reveals that some six months before the first
deferral notice a report by the Department of Cooperative Government
showed that certain municipalities were experiencing difficulties and
there is a very detailed analysis of each and every municipality
that
is experiencing difficulties. It is therefore inexplicable why the
first respondent could not list each and every municipality
as
required in terms of the schedule 2 for deferral. I find that a
particular municipality must indeed be mentioned in the notice
and
not simply form part of a global group. The first respondent applied
a global categorisation to the municipalities and this
in my view was
administrative action which was materially influenced by an error in
law as required by s6(2)(d) of PAJA.
[40]
Some of the difficulties experienced by the municipalities, referred
to in the record show that despite years of democracy,
increased
pressures by communities for the delivery of services and the
introduction of free basic services, a number of municipalities
are
still not in a position to deliver on their mandate. Weaknesses
within the present system are especially apparent in a few
main
categories, financial, service delivery and infrastructure and
inability to cope with the growth in population. There is therefore
a
very detailed amount of information available about what each and
every municipality is capable of and what it is able to comply
with
in terms of the CPA. In addition during the course of the
negotiations between the applicant and the first respondent a
questionnaire
was prepared to assess the readiness of municipalities.
Some 23 questionnaires were sent to the municipalities and as at the
hearing
of this matter the results of those 23 questionnaires were
not available. The avenue of enquiry seems to have been abandoned by
the first respondent. What is clear is that there is a very detailed
mechanism in place whereby the first respondent is able to
ascertain
exactly what services are lacking and which services cannot comply
with the CPA, e.g. the research questionnaires deal
with every aspect
of life within a municipality, water, sanitation library services,
air control, tourism, airports, health services,
public transport,
building regulations and alike.
[41]
In my view, therefore, the first respondent should have already been
in a position to deal with each and every individual municipality
when assessing which individual municipality should be exempted from
the provisions of the CPA.
[42]
The first respondent also had at its disposal a report, a 2011 report
from the President of the South African Institute of
Civil Engineers
where there is a very detailed report on the structures within
municipalities and these include reference to water
affairs, waste
collection and the like. The report unfortunately reveals
deterioration in certain categories but an improvement
in others. It
is not a difficult task for the first respondent to compile a
detailed list of a particular municipality and presumably
why such a
municipality, where the consumer has entrenched rights, should be
exempted from the provisions of the CPA, Nothing of
this is said in
the answering papers.
[43]
There may be some concern that once the CPA applies to every
municipality there would be an avalanche of citizens living within
those municipalities rushing to enforce their rights in terms of the
CPA against those particular municipalities. This is not something
which must form the basis of a decision that this court has to make
at this stage.
[44]
The rights and concerns of consumers cannot be deferred indefinitely.
In addition the report that I have referred to deals
with challenges
which the Government has in respect of these municipalities. They are
under resourced. There is a lack of leadership
in the municipalities,
inadequate accountability measures and poor compliance with
legislative and regulatory framework for municipalities.
There is
Reference in the record to a lack of policy coherence and the
weakening of institutional and organizational abilities
in many of
the municipalities and obviously these have to be addressed and it is
not within the ambit of this tier of judicial
scrutiny to determine
why these particular aspects may impede the particular provision of
the CPA. What is clear, however, is that
there is a complex problem
facing the first respondent in this matter particularly in relation
to the entrenched rights in the
CPA enjoyed by every consumer. Such
complexity or polycentric nature of the problem should not deter a
court from assessing whether
the first respondent’s action is
rationally connected to the information available as defined by
s6{2)(f)(it)(cc) of PAJ'A.
[45]
Cameron JA in Logbro Properties CC v Bedderson NO and others
2003 (2)
SA 460
(SCA) at para [20] dealt with policy-laden or polycentric
issues and judicial deference.
'[21]
it is in just such circumstances that a measure of judicial deference
is appropriate to the complexity of the task that confronted
the
committee. Deference in these circumstances has been recommended as a
judicial willingness to appreciate the legitimate and
constitutionally-ordained province of administrative agencies; to
admit the expertise of those agencies in policy-laden or polycentric
issues; to accord their interpretation of fact and law due respect;
and to be sensitive in general to the interests legitimately
pursued
by administrative bodies and the practical and financial constraints
under which they operate. ... It ought to be shaped
not by an
unwillingness to scrutinize administrative action, but by a careful
weighing up of the need for - and the consequences
of - judicial
intervention.
1
In a more recent book Professor Hoexter
2
analyses the foundations of the principles of deference in
administrative review and also refers to the fact that ‘the
discourse
of deference is ineluctably bound up with the separation of
powers and areas of competence of the three branches of law.’
[46]
O'Regan J in Baio Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) while recognising the proper
constitutional role of the executive and treating the executive
decisions with respect, stated
that the complexity of the policy and
material should nonetheless not be a barrier to judicial scrutiny.
Professor Eric Berger
associate professor University of Nebraska in
Vol 98 p465 (2012) Iowa law Journal writes that that there must be
consistency when
judges apply deference or not in review proceedings.
A court must be encouraged to do due diligence of the record when
making a
deference determination. Judicial deference must be
addressed openly and systematically ‘...deference so "important
and . . . omnipresent" that it deserves a “sincere effort
to craft a principled doctrine,”.
[47]
Upon a proper application of the above principles and taking into
account the roie of the court in ensuring that there is fairness
in
administrative decisions, the applicant must succeed in having the
second notice set aside. I agree with the many jurists that
within
the adjudication process there must be a transformative design to
promote a culture of justification in sphere of public
law.
Pieterse
3
,
Former Chief Justice Langa (The separation of powers in the South
African constitution
2006 SAJHR 2)
and Mosenyeke Deputy Chief Justice
(Oliver Schreiner memorial lecture: separation of powers, democratic
ethos and judicial function
2008 SAJHR 341)
encourage transformative
adjudication in all spheres. It is this that I find foundational to
the proper interpretation that the
first respondent cannot defer
without accuracy rights as fundamental as consumer rights to the
citizenry living within a particular
municipality.
[48]
Transformative adjudication is enjoined by the Constitution to uphold
and advance its transformative design. The ingredients
of
transformative adjudication must promote a culture of justification
in public law. In adjudicating the act of deferring a consumer
right
the role of judicial deference and the separation of powers has been
fully analysed and weighed issue by issue. Despite the
intense level
of scrutiny which the court has made in relation to the record I
still have to take into account the competing interests
of the policy
makers as well as those of the applicant and the public interest it
serves.
[49]
The applicant's case is that the principle of legality has been
transgressed by the first respondent. The foundational principle
of
administrative law is that the exercise of power must be authorised
by the law. The first respondent failed in the respects
referred to,
[50]
I find that the first respondent was not authorised and empowered to
couch the notice in the way that he did. The first respondent
in its
answering affidavit has been very careful to detail the great lengths
with which he went to in order to come to the decision
that he did to
publish the notices. In fairness it seems to me that despite those
difficulties which the first respondent experienced
and relying on
the different reports that I have already referred to it is clear
that in applying his mind to the request by the
Minister of Local
Government, that the implementation of the CPA be deferred was not
rationally connected to the facts before him.
He made no order at ail
in respect of the medium capacity municipalities. He deferred the
application of the CPA to low capacity
municipalities until a report
was produced and this report had to be produced before the 30th June
2014. This deferral does not
ensure that the CPA would apply at that
stage.
[51]
In summary I find that there has been a contravention of s6(2)(d),
s6(2)(e)(iii) and s6(2)(f)(ii)(cc) of PAJA.
[52]
The applicant has requested the court to set aside both notices. In
fact the first notice has been revoked so it would be an
empty
exercise to set aside a notice which has already been revoked. The
first respondent was not functus officio. Therefore that
particular
aspect of the relief sought by the applicant cannot succeed. In
relation to the second notice it seems to me that based
on a judicial
scrutiny and a due diligence of the record that has been presented to
court and which unfortunately neither counsel
took the court through
to the most important aspect, the first respondent could have
pinpointed with greater precision those municipalities
which should
be exempted from the provisions of the CPA.
I
have already referred why that is so, having regard to the extensive
nature of the research and record that was at the disposal
of the
first respondent and which has also been placed before me.
Costs
[53]
As regards the question of costs, clearly the first notice has been
revoked, yet the applicant has continued to seek relief
in respect of
that particular notice. It persisted in seeking the setting aside of
the first notice right up until the argument
in this matter. In
addition the question of locus standi although the applicant has
succeeded on that point, in my view the question
of locus standi had
it been extensively amplified and- pleaded, in the founding affidavit
would not have necessitated the first
respondent to go to the length
it did and ultimately the length which the applicant had to go to
substantiate its locus standi
in this matter. Again the applicant, in
that regard, has caused unnecessary costs.
[54]
There is a further feature. A record of some 800 pages was placed
before me which was full of information, however the parties
hardly
touched on what was relevant and what had to be read. On the other
hand the first respondent in the midst of bona fide negotiations
with
the applicant simply published the second notice and because of this
the negotiations broke down and the matter is before
court. This too
resulted in unnecessary costs.
[55]
Both parties have succeeded and failed on the various justiciable
issues. In the result although the applicant is successful
in
relation to the second notice, I find that this is an appropriate
case where each party should pay its own costs.
The
order that I would make is the following:
1.
Government Notice 898 of 31 October 2011 published in Government
Gazette 34724 is reviewed and set aside.
2.
The setting aside will take effect within 30 days of this order.
3.
The first respondent is directed to publish a notice as contemplated
in item 23(b)(1) of schedule 2 of the
Consumer Protection Act 68 of
2008
by no later than 31 July 2013 listing each and every
municipality in respect of which
sections 8
—
10
and
53
-
61
of
the said Act should be deferred.
4.
Each party is to pay its own costs.
Victor
J
Date
of hearing: 28 February 2013 Counsel for Applicant:
Advocate
Q Pelser SC and Adv A T Lamey Attorney for Applicant: Hurter Spies
Inc.
Counsel
for first Respondent
Advocate
R Bedhesi SC and Adv K Lengani
Attorney
for Respondent: State Attorney Attention Mr S M Davvood
1
'Cameron J refers to the works of Cora Hoexter The Future of
Judicial Review in South African Administrative Law1
(2000) 117 SALJ
484
at 501 - 2, citing A Cockrell '"Can You Paradigm?" -
Another Perspective on the Public Law/Private Law Divide'
1993 Acta
Juridica 227.
2
In Administrative Law in South Africa 2011
3
“what
do we mean when we talk about transformative Constitutionalism
(2005) 20 S A PublicLaw 155,161-63.