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[2012] ZAGPPHC 339
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Advantage A.C.T. (Pty) Ltd v Southern African Auditor and Training Certification Authority and Others (15928/2012) [2012] ZAGPPHC 339 (18 December 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
CASE
NUMBER: 15928/2012
DATE:18/12/2012
ADVANTAGE
A.C.T. (PTY)
LTD
......................................................
Applicant
and
THE
SOUTHERN AFRICAN AUDITOR AND
TRAINING
CERTIFICATION AUTHORITY
…..................................
First
Respondent
ADRIE
DU PLESSIS
N.O.
…..........................................................
Second
Respondent
STEPHEN
JORDAN
N.O
..................................................................
Third
Respondent
CHRIS
SHIELLS
N.O
.........................................................................
Fourth
Respondent
ROD
DUARTE
N.O
. …......................................................................
Fifth
Respondent
REASONS
FOR JUDGMENT
DE
KLERK, AJ
[1]
On 6 December 2012 I granted the following order in this application:
"
1) I set aside the decision of the Appeal Tribunal of the first
respondent on the 27th of October 2011 and the decision of
the
Technical Management Board of the first respondent on the 31st of
March 2012;
2)
I substitute the following decision for the decision of the Appeal
Tribunal and such decision to read as follows: This decision
recognises Advantage ACT (Pty) Ltd’s practical audit sessions,
consisting of no more than two groups, in turn consisting
of no more
than six candidates per session, supervised by one or more lead
auditors and strictly complying with IS019011 and the
first
respondent’s Generic Criteria or Revised Criteria, such
sessions to be of a duration of no less than six hours and
preferably
extending to eight hours"
[2]
I indicated at the time of granting the above order that I shall
supply my reasons for the said order in due course and as part
of my
reasons make a suitable order as to costs.
[3]
The order quoted above was granted in an application to review and
set aside certain decisions taken by the first respondent
(“SAATCA”).
[4]
The applicant (“Advantage”) is in the business of
providing occupational safety, health, environmental and quality
training services, auditing services and consulting services to
various clients in the mining, construction and other industries.
[5]
The first respondent “SAATCA" is a certification authority
established in terms of the Accreditation for Conformity
Assessment,
Calibration and Good Laboratory Practice Act, Act No 19 of 2006, as
amended.
[6]
The second to fifth respondents were the members of an Appeal
Tribunal composed by the first respondent of whom the fifth
respondent
was the convenor. The second respondent was the lead
member or chairperson of the Appeal Tribunal, whereas the third and
fourth
respondents were ordinary members of the said Appeal Tribunal.
[7]
On or about 11 June SAATCA’s Technical Management Board (“TMB")
had a meeting at which the technical queries
were discussed and the
following was recorded in its minutes:
“
Group
audits of less than six hours on site audit activity, with
large
groups - WdC gave feedback on the EC and QMS and EMS feedback that
25% of the 120 hours 9 (i.e. 30 hours, max) were approved.
When
other scheme chairs present were asked, they did not agree with such
approval in their schemes.
Requested
that BF submit a position paper on these ‘group audits’
for the TMB consideration and benchmarking
The
abbreviations WdC and BF stands for Wendy da Cruz whilst BF stands
for Ben Fouche. Ben Fouche and his wife, Christel Fouche,
are the
directors of the applicant. Ms Christel Fouche is also a registered
lead auditor with SAATCA, the first respondent. In
a document
entitled “Auditing Sessions - A solution to the auditing days
dilemma”, appended as annexure “C14”
(at p 324 of
the papers) to the founding affidavit, Mr Ben Fouche complied with
the request at the meeting of 11 June 2011.
[8]
It is clear from the wording of what was recorded in the minutes
during the meeting of 11 June 2011 that no formal decision
was
actually taken.
[9]
During September 2011 one of the trainees taking part in the training
course provided by the applicant submitted an application
to be
certified as an auditor in terms of the first respondent’s
requirements for certification, which application was eventually
rejected by the Evaluation Committee during or about November 2011.
There were telephone conversations between Ms da Cruz, Mr and
Mrs
Fouche during the course of which Ms da Cruz, an evaluator, indicated
that the applicant could attack the “decision”
of the
TMB, but that it would run the risk of the Appeal Tribunal providing
even less recognition than the 25% concession referred
to previously.
This discussion between Ms da Cruz and the Fouches was followed by an
electronic mail communication, dated 19 September
2011 and appended
to the founding affidavit as annexure “C15”. The document
constituted the appeal submissions made
by the applicant to the first
respondent.
[10]
On 4 November 2011 the SAATCA chairperson, H F Pretorius, wrote the
following to Ms Christel Fouche:
“
Further
to your appeal to SAATCA 2011.09.19, herewith the Appeal Committee’s
decision.”
Contained
in the said document was a section headed "Conclusion”,
containing two parts, the first being “Decision:
Committee
rejected the decision to allow 25% of the time spent by auditors on
group auditing sessions, to contribute towards the
total of 120 audit
hours required for initial auditor registration with SAATCA”.
Under the heading “Justification”
the following was
stated:
“
The
TMB decision was rejected on the basis that the on-site group
auditing performed by individual applicants was not of sufficient
completeness to substantiate acceptance of 25% of group auditing
sessions time, and to allow for meaningful oversight and guidance
of
individual auditors."
The
document contained a further section reading as follows:
“
After
serious deliberation at the board meeting of 2011-11-01, the SAATCA
Board has accepted without alteration the Appeals Committee
recommendation regarding the concession, as follows:
Recommendation
One (1) hour of the time spent by auditors on group auditing sessions
per audit day, to contribute towards the total
of 120 audit hours
required for initial auditor registration."
No
reasons were advanced for the recommendation {accepted by the first
respondent’s Board) that only one hour(7 of 6 hours)
of the
time spent by auditors on group auditing sessions per audit day would
contribute towards the total of 120 audit hours required
for initial
auditor registration.
[11]
At the technical board meeting of 31 March 2012, the following
was
recorded in its minutes as regards “technical queries - group
audits":
“
From
2011-10-22 - the Appeal Committee outcome on group audits was to
accept one hour per day of group audits, with recommendations
to
consider for clarifying the size of the groups. Refer new item."
Under
the item “New matter” the following appears:
“
Appeals
Committee Recommen- TMB Decisions: dation:
The
maximum number of TMB Decision - The maximum participating auditors
in group number of participating non-auditing sessions,
per
certificated auditors in audits guiding/overseeing lead auditor.
qualifying towards SAATCA Recommendation - Two (2) certification
overseen by a registered participants together, overseen by a lead
auditor is 4 (four), thereby, registered lead auditor. Larger
than
creating a ratio of 4:1, and assuming this - accept the one hour as
per that adequate auditing time and scheme. experience
can be gained
by all participants. For groups larger than this - revert to
accepting 1 hour per audit as per the Appeal Committee
decision”.
[12]
It is against the decisions of the Appeal Tribunal, dated 27 October
2011 and the decision of the TMB on 31 March 2012 that
the applicant
launched the present review application. In application papers
running into some 564 pages and supported by complete
and thorough
heads of argument by counsel on behalf of both parties, the applicant
and the first respondent aired their views in
this regard.
[13]
In short, the grounds of review on which the applicant relied can be
summarised as follows:
13.1
The Appeal Tribunal’s decision of November 2011 is reviewable
because the Appeal Tribunal was not empowered to take the
decision,
the decision was procedurally unfair and the decision was
inconsistent with the first respondent’s own criteria
for
registration of applicants as auditors and is therefore reviewable
under sections 6(2)(a)(i), 6(2)(c), 6(2)(e)(iii) and 6(2)(f)(i)
of
the Promotion of Administrative Justice Act, Act No 3 of 2000, as
amended (“PAJA”).
13.2
The TMB’s decision of March 2012 is reviewable in terms of
section 6(2)(a)(i)
of the
Promotion of Administrative Justice Act,
2000
, in that in terms of the first respondent’s own internal
procedure the Technical Management Board has no power to vary the
decision of the Appeal Tribunal given on 27 October 2011 and to the
extent that the TMB purported on 31 March 2012 to alter the
Appeal
Tribunal’s decision, its decision falls to be reviewed and set
aside.
[14]
Ms van Rooyen appearing on behalf of the first respondent was
constrained to concede that the fact that there is no explanation
on
the papers or any reasons advanced as to how the Appeal Tribunal
arrived at its decision of accepting only one hour out of a
minimum
of six hours, but preferably eight hours, of practical training. She
honestly, frankly and correctly conceded this shortcoming.
The end
result of this concession is that the Appeal Tribunal’s
decision was arrived at arbitrarily and perhaps also capriciously.
That being so, the Appeal Tribunal’s decision is subject to
review and to be set aside in terms of both
sections 6(2)(a)(i)
and
6
(2)(e)(vi) of PAJA.
[15]
The TMB’s decision of 31 March that there should be a ratio of
4:1 non-certified auditors to a registered lead auditor
and the
accepting of the recommendation of only one hour per audit for a
group larger than four auditors suffers the same fate,
as no reasons
were given for these decisions. It is in any event unthinkable how a
subordinate board can differ from the Board
of Directors, who
accepted the Appeal Tribunal’s decision in their meeting of 1
November 2011.
[16]
The point has already been made previously in this judgment that on a
proper interpretation of the minutes of 11 June 2011,
it cannot be
said that there was any or an unambiguous meeting of the minds of
those present. The second and third sentences as
recorded in the
minutes and quoted previously from the minute would indicate that
there was no decision to appeal against. The
document supplied by Mr
Fouche as a result of this meeting was not an appeal or submissions
towards an appeal. The electronic mail
communication of 19 September
2011 was prompted by the comment of Ms da Cruz and this led to the
Appeal Tribunal’s decision
of 27 October 2011. It would appear
that the Appeal Tribunal did not comply with paragraph 4.3.1 of their
own appeal procedure
(as it appears at p 335 of the papers) and if
they have not complied with it, then their decision was not a
procedurally fair action.
Sections 6(2)(b)
and
6
(2)(c) of PAJA would
then find application.
[17]
During argument, both in the parties’ heads and in court, there
was criticism and justification of the fact that the
first
respondent’s recommendations as recorded in the minutes of the
meeting of the TMB on 31 March 2011 and quoted hereinbefore,
imported
requirements of the Code of Conduct for Witnessing Auditors to be
read with and of the same status as the IS019001 provisions,
and/or
the first respondent’s own Generic Criteria and/or Revised
Criteria. Obviously what is stated in the Code of Conduct
for
Witnessing Auditors must be subject to what is stated in IS019011
and/or the first respondent’s own Generic Criteria
and/or any
Revised Criteria.
[18]
In view of the aforegoing, I was convinced that both the decision of
the Appeal Tribunal, dated 27 October 2011, and the decision
of the
Technical Management Board, dated 31 March 2011, should be reviewed
and set aside.
[19]
It was the first respondent’s request that the matter be
referred back to the first respondent as this was not a proper
case
for substitution. As previously stated, this application was properly
aired by both parties and in view of the decisions of
the bodies
referred to, it was submitted by the applicant that substitution is
the appropriate remedy for two reasons, namely:
19.1
the decision to recognise the applicant’s practical audit
sessions is a foregone conclusion; and
19.2
the court has all the information necessary to make this decision.
[20]
Section 8(1
)(c)(ii)(aa) of the
Promotion of Administrative Justice
Act, 2000
, empowers the court, in addition to setting aside an
invalid decision, to substitute its own decision for that of the
administrator
who arrived at the invalid decision. The court was
referred to the decision of the Supreme Court of Appeal in
Commissioner, Competition
Commission v General Council of the Bar of
South Africa and Others
2002 (6) SA 606
(SCA) and especially the
following quote from Baxter, Administrative Law, at 682-4, ending
with the following words:
“
...
fairness to the applicant may demand that the court should take such
a view.”
During
the course of the papers it was stated by the applicant that it has
diminished the size of the groups to consist of only
12 members it is
training and as a result of that, that the group has been divided
into two groups of six candidates each.
[21]
There does not appear to be any dispute between the parties about the
extent of the experience gained by the applicants who
attended the
applicant’s practical audit sessions, nor was there any dispute
that these sessions met the requirements of
the first respondent’s
own criteria and IS019011. I have already dealt with what appeared to
be the only dispute between
the parties, relating to the
applicability of the Code of Conduct for Witnessing Auditors, where
it prescribes that an applicant
auditor should be under the constant
supervision of a witnessing lead auditor when participating in audit
sessions. However, I
am of the view that one witnessing lead auditor
would certainly be capable of supervising two groups each consisting
of six members
in a proper manner so as to provide proper technical
training to such applicant auditors. In the result, I made the order
which
I granted when the matter was heard on 6 December 2012.
[22]
There remains the question of costs. There is no doubt that the
applicant was substantially successful. When a party is substantially
successful, the usual order is that a party is entitled to its costs.
The fact that the first respondent is a statutory body does
not make
any difference to the usual order as to costs. Too much emphasis was
placed by the first respondent on the fees charged
by its certified
training course provider, the applicant. The first respondent itself
levies fees annually for registering its
members. There is no reason
to deviate from the normal costs order.
[23]
The first respondent is ordered to pay the costs of the applicant.
[24]
As the second to fifth respondents were cited in their official
capacity and no-one personally opposed the application and
the fifth
respondent actually acted as deponent on behalf of the first
respondent, no order as to costs would be made against the
said
respondents.
LS
DE KLERK,ACTING JUDGE
NORTH
GAUTENG HIGH COURT
PRETORIA
13
DECEMBER 2012
Adv
Kate Hofmeyer
Counsel
on behalf of the Applicant
Instructed
by Brink Cohen Le Roux Inc
c/o
Savage Jooste & Adams
141
Boshoff Street
Nieuw
Muckfeneuk
Pretoria
Tel:
(012)452-8200
Ref:
Mrs Kartoudes/YVA/74645
Adv
Lizane van Rooyen
Counsel
on behalf of the Respondent
Instructed
by Adams & Adams, Lynnwood Bridge Office Park
4
Daventry Road, Lynnwood Manor
Tel:
(012)432-6000
Ref:
MMM/mas/LT623