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[2012] ZAKZPHC 15
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Chundrakumar v MEC for Transport, Kwazulu-Natal and Others (1671/10) [2012] ZAKZPHC 15 (22 March 2012)
IN THE KWAZULU-NATAL HIGH COURT,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Case No: 1671/10
In the matter between:
CHUNDRAKUMAR SOOKRAJ
..............................................................
APPLICANT
and
MEC FOR TRANSPORT, KZN
…...........................................
FIRST
RESPONDENT
THE MANAGER: VERULAM LICENCING
AND TESTING CENTRE
…..............................................
SECOND
RESPONDENT
THE MINISTER OF TRANSPORT
….....................................
THIRD
RESPONDENT
JUDGMENT
Delivered
on: 22 March 2012
MNGUNI J
Introduction
[1] This is an application to review
and set aside the decision of the first respondent refusing to issue
the applicant with a Professional
Driving Permit (PDP) together with
an application for urgent interim relief pending the outcome of such
review application.
[2] The proceedings were instituted on
4 March 2010 and are opposed by the respondents. On 15 March 2010 the
matter came before
Swain J who granted the order in the following
terms:
‘
1.
Upon the pleadings in this matter becoming closed, the parties shall,
through counsel, approach the senior civil Judge with the
view of
obtaining directions as to when this matter shall be heard on an
urgent basis.
2.
Costs are reserved.
3.
The application be and is hereby adjourned sine die.’
Factual Background
[3] In order to understand the present
dispute and to address the contentions raised thereon, it is
necessary to set out the background
in some detail. The applicant has
been a professional driver of heavy duty vehicles since 1999. He was
authorised to drive goods
vehicles with a gross vehicle mass
exceeding 3500 kilograms. He is therefore obliged to obtain a PDP as
is contemplated in regulation
115 of the National Road Traffic
Regulations (National Regulations) determined as at 1 July 2008 by GN
R155 in GG 30763 of 8 February
2008. On 25 July 2007 he was convicted
on contravention of section 65(2)(a) of the National Road Traffic Act
93 of 1996 (“the
Traffic Act”) and was sentenced to pay a
fine of R3 000 or to undergo 30 days’ imprisonment half of
which was suspended
for a period of three years on certain
conditions.
[4] In terms of regulation 122(1) of
the National Regulations, he is obliged to re-apply for PDP every two
years. He was last issued
with same on 5 December 2006 and it lapsed
on 5 December 2008. In November 2008 he made an application for the
renewal on a prescribed
form, submitted the necessary documentation
and paid a prescribed fee for such permit to be issued to him. By a
letter of 19 February
2009 the Department of Transport informed him
that in view of the time lapse of the convictions recorded against
him, he should
re-apply during July 2012. The letter incorrectly
recorded the conviction of 25 July 2007 as that of drunken driving
instead of
contravention of section 65(2)(a) of the Traffic Act.
[5] On 28 July 2009 he instituted
motion proceedings in this Court (first High Court application) under
case number 6405/09 seeking
an order, on urgent basis, in the
following terms:
‘
1.
That this application is urgent and that the Rules of this Court
relating to form and time periods be and are hereby dispensed
with.
2.
That the first and second respondents be and are hereby called upon
to show cause, why an order in the following terms should
not be
granted:
(a)
That in the event that the First Respondent has not yet considered
the Applicant’s application for a Professional Driving
Permit
in accordance with the provisions of Regulation 125:-
i.
That the First Respondent is hereby directed to consider the
Applicant’s application for a Professional Drivers Permit
in
accordance with the procedures prescribed by the Regulations and the
Act;
ii.
That the Second Respondent is hereby directed to comply with the
provisions of Regulation 125 (2) of the Regulations.
(b)
That in the event that the First Respondent has considered the
Applicant’s application for a Professional Driving Permit,
and
has refused same, that the said decision is hereby reviewed and set
aside and replaced the following order:-
i.
That the Second Respondent be and is hereby directed to issue a
Professional Driving Permit to the Applicant in accordance with
the
provisions of the National Road Traffic Regulations read with the
National Road Traffic Act.
(c)
That the First Respondent be ordered to pay the costs of this
application.
(d)
That the Second Respondent be ordered to pay the costs of this
application only in the event that he/she opposes the application.
3.
That the Second Respondent is hereby directed to issue to the
Applicant an extension Professional Driving Permit or Permits or
temporary Professional Driving Permit or Permits such permits to
remain of force and effect pending the finalization of this
application.
4.
Further and/or alternative relief.’
The application was adjourned to 31
July 2009 and on that date the parties concluded a settlement
agreement in the following terms:
‘
(1)
The applicant shall lodge a referral of the application for
professional driving permit in terms of the Provisions of
regulation
125
of the regulations in terms of the
National Road Traffic Act, by
no later than 5 August 2009.
(2)
The Head of the Department of Transport for the Province of
KwaZulu-Natal shall issue a temporary Professional Driving Permit
upon the application referred contemplated in paragraph 1 above,
being lodged.
(3)
The aforesaid application under case number 6405/09 is withdrawn.
(4)
Each party to pay its own costs.
(5)
This is the entire agreement between the parties and no cancellation,
variation, amendment or alteration of this agreement shall
be of any
force and effect unless, reduced to writing and signed by the parties
and their lawfully appointed representatives.’
[6] The applicant subsequently lodged
a referral of his application to the first respondent and was issued
with a temporary PDP
in accordance with the provisions of the
settlement agreement of 31 July 2009. On 18 November 2009 the
applicant’s attorneys
received a written notification from the
Directorate, Road Traffic Inspectorate, Department of Transport,
KwaZulu-Natal, advising
him that his application was not approved
because he was convicted of ‘driving whilst under the influence
of intoxicating
liquor’ on 25 July 2007 and that only two years
and three months had then lapsed since the conviction and therefore
did not
satisfy Regulation 117(c) of the National Regulations.
[7] The decision of 18 November 2009
drove him to institute the second motion proceedings on 27 November
2009 in which he sought
an interim relief pending the outcome of a
review application (the second High Court application). On 14
December 2009 the matter
served before Gorven J and in the hearing it
became apparent that the second respondent had not yet furnished a
recommendation
whether the application should be re-considered in
terms of the provisions of regulation 125(2) of the National
Regulations. Consequently,
the matter was adjourned sine die and the
applicant undertook to take steps to ensure that the second
respondent complies with
the provisions of regulation 125(2) of the
National Regulations.
[8] On 18 December 2009 he approached
P Naidoo, the Manager of the second respondent in charge of the day
to day management of the
second respondent. What transpired between
him and Naidoo is a subject of a dispute between the parties. The
applicant asserts
that, whilst he was in Naidoo’s office, there
was a telephone conversation between Naidoo and Cedric Miya (Miya) of
the office
of the first respondent and Naidoo enquired from Miya as
to what exactly was required of him (Naidoo) to do in the matter.
Immediately
after terminating the said telephone conversation with
Miya, he (Naidoo) informed him that Miya had instructed him not to
approve
his application to the first respondent. These averments are
denied by the first respondent. In the scheme of things, this dispute
is not pertinent to the issues which require determination, and it is
not necessary for me to express any definite view one way
or the
other. Importantly, on the same day the second respondent addressed a
letter to the applicant advising him, inter alia,
that in the light
of his conviction of drunken driving on 25 July 2007, the provisions
of regulation 117 of the National Regulations
disqualified him from
obtaining the PDP as all other applicants, who had been convicted of
a similar offence, and concluded by
advising him that his application
was not recommended.
[9] On 12 January 2010 the applicant’s
attorney forwarded to second respondent his application in terms of
regulation 125(1)(b)
of the National Regulations which was
accompanied by the second respondent’s recommendation for the
referral of the application
for a PDP for a decision by the first
respondent to determine whether or not a PDP may be issued to him. On
9 February 2010 the
first respondent addressed a letter to the
applicant’s attorney which, inter alia, stated:
‘
2.
Cognisance has been taken of your representative and whilst this
Department sympathise with your predicament, the Department
has no
legal basis upon which to grant you a Professional Driving Permit. In
this respect, I refer you to Regulation 117 of the
National Road
Traffic Act, 1996 (Act No. 93 of 1996), which states that “A
professional driving permit shall not be issued
by a driving licence
testing centre:
(a)
…
(b)
…
(c)
If the applicant has, within a period of five years prior to the date
of application, been convicted of or has paid an admission
of guilt
on -
(i)
driving a motor vehicle while under the influence of intoxicating or
a drug having a narcotic effect;
(ii)
driving a motor vehicle while the concentration of alcohol in his or
her blood or breath exceeded a statutory limitation.”
(3)
In view of the above mentioned and the prescripts of the National
Road Traffic Act 1996 (Act No 93 of 1996), I cannot accede
to your
application of granting Professional Driving Permit.
(4)
Therefore in the exercising my discretion, your application is
declined.’
[10] The applicant will again become
eligible to re-apply for the renewal of a PDP on 25 July 2012 when
the suspension period imposed
on him by Regulation 117 of the
National Regulations will expire.
Legislative Framework
[11] Section 91 of the Traffic Act
provides:
‘
(1)
The Minister may-
(a)
delegate to any other person any power conferred upon him or her by
this Act other than the power conferred by section 75; and
(b)
authorise any other person to perform any duty assigned to the
Minister by this Act,
and
may effect such delegation or grant such authorisation subject to
such conditions as he or she may deem fit.
(2)
The MEC concerned may-
(a)
delegate to any other person any power conferred upon him or her by
or under this Act; and
(b)
authorise any other person to perform any duty assigned to the MEC by
or under this Act,
and
may effect such delegation or grant such authorisation subject to
such conditions as he or she may deem fit.
(3)
Any delegation effected or authorisation granted under subsection (1)
or (2) may at any time be withdrawn by the Minister or
by the MEC
concerned, as the case may be.’
[12] The third respondent has in terms
of section 75 of the Act promulgated certain regulations to the
Traffic Act. Regulation 125
provides:
‘
Referral
of application to MEC
(1)
If an applicant for a professional driving permit complies with all
the requirements and conditions specified in the regulations
but has-
(a)
not been certified to be medically fit as referred to in regulation
117 (b); or
(b)
within a period of five years prior to the date of the application,
been convicted of an offence referred to in regulation 117
(c),
he
or she may request the driving licence testing centre concerned to
refer his or her application to the MEC for a decision whether
or not
a professional driving permit may be issued.
(2)
An application referred to the MEC for a decision shall be
accompanied by the applicant’s reasons why the application
should be re-considered as well as a recommendation from the testing
centre whether the application should be re-considered.
(3)
If the MEC approves that a professional driving permit may be issued,
he or she shall-
(a)
ensure that such approval is recorded on the register of professional
driving permits; and
(b)
inform the driving licence testing centre concerned accordingly,
and
the testing centre shall deal with the application in accordance with
regulation 119.
(4)
If the MEC refuses the application, the testing centre concerned and
the applicant shall be informed accordingly.’
Locus Standi
of minor
children
[13] This application is also brought
by the applicant in his capacity as the natural father and guardian
of his two minor children.
Mr Haasbroek, for the applicant, contends
that the decision taken by the first respondent directly impacts on
the care and well
being of his two minor children. He continued to
contend that the first respondent was obliged to take into
consideration the provisions
of section
9
of the Children’s
Act 38 of 2005. This section provides that ’[i]n all matters
concerning the care, protection and
well being of a child the
standard that the child’s best interest is paramount importance
must be applied.’ As I understood
Mr Haasbroek’s
argument, he sought to rely on the phrase ‘concerning…a
child’ and advocated for the interpretation
that the first
respondent ought to have considered the provisions of this section.
[14] Mr Moodley SC, for the
respondents, disagreed. He contends that the phrase ‘concerning…a
child’ must be
given its ordinary literal meaning in accordance
with the rules of interpretation and must therefore be read as
meaning about a
child or children or about the care, protection and
well being of that child or those children. He argued that an
application for
a renewal of PDP is not an application that concerns
a child nor is such application about the care, protection or well
being of
a child.
[15] Section 28(2) of the Constitution
Act of the Republic of South Africa, Act 108 of 1996 provides that a
child’s best interests
are of paramount importance in every
matter concerning a child and the similar provision is to be found in
section 2(b)(iv) of
the Children’s Act. The Children’s
Act does not define the word ‘concerning’ when used in
relation to the
child. The shorter Oxford Dictionary on Historical
principles defines the word ‘concerning’ as: ‘regarding,
touching,
in reference or relation to, about.’ Having carefully
considered the matter, I incline to agree with Mr Moodley on this
issue.
I am mindful of the fact that the refusal of such a permit may
adversely affect the interests of the applicant’s children.
In
my view, however, the children in their capacity do not have a right
nor are they eligible to acquire a PDP. I would observe
further that
the applicant’s minor children do not have a vested legal
interest in the relief being sought by him and therefore
lack the
necessary
locus
standi
to institute these proceedings.
The Issues
[16] The first issue which requires
determination is whether in the exercise of his discretion, the first
respondent based his decision
entirely on a wrong premise that he was
not empowered to grant the application by virtue of the provisions of
Regulations 117 of
the National Regulations. The applicant contends
that it is so and it is evident from the reasons he furnished for his
decision
and which are contained in annexure V to his founding
affidavit. The applicant’s approach which is in line with this
contention
is to be found on paragraphs 41 and 42 of his founding
affidavit wherein he states:
‘
41
It would appear from the underlined words “…
the
Department has no legal bases upon which to grant you a Professional
Driving Permit
…”
that the First Respondent approached the matter on the basis that he
was constrained, in law, by virtue of the provisions
of Regulation
117, either from considering my application or from deciding that a
professional license be issued to me. In other
words, because I was
precluded from being issued with a permit by virtue of the provisions
of Regulation 117, the First Respondent
appeared to have dealt with
the matter on the premise that he was not in law entitled to
reconsider or “overturn” that
position.
42.
I have been advised that the approach followed by the First
Respondent is wrong in law. I have been advised that, Regulation
125
(1) (b) provides that the matter be referred to the First Respondent
for a “
decision whether or not a professional driving permit
may be issued
.” This process requires the exercise of a
discretion after having considered all the relevant evidence. The
First Respondent
clearly has not exercised his discretion accordingly
in reaching a conclusion.’
[17] The first respondent denied this
approach and provided the following answer to the aforementioned
paragraphs:
‘
46.1
I deny that I approached the application on the basis that I was
constrained in law and specifically by the provisions of Regulation
117 to refuse the application.
46.2
I record that I am fully aware of the powers that I have to
reconsider an application for a PrDP which has been previously
refused and that I further have the discretion to overturn such
decision upon good cause being demonstrated to me.
46.3
I record that I did indeed exercise such discretion in this matter
but that in weighing up the information submitted by the
Applicant
including his personal factors and the interests of the public, the
Department’s policy considerations, statistical
information
concerning intoxication as a cause of accidents, death and mayhem on
our roads which information I am privy to in my
capacity as MEC, the
prescripts of the
National Road Traffic Act and
all other relevant
information including the Affidavit deposed to by Schnell in the
previous application as was before me, I exercised
my discretion
against the Applicant’s renewal of his PrDP. I should mention
that I also took into account the applicant’s
non disclosure of
his previous convictions in annexure “TWM2” and the fact
that he had a previous conviction for reckless
and negligent driving.
46.4
The Department of Transport has embarked on a concerted programme
spanning some two decades to curb the offence of drunken
driving and
related offences and their undisputed devastating consequences on the
lives of the individuals involved, the community
at large and its
negative impact on the economy. Research indicates that an estimated
50% of people who die on South African Roads
have a blood alcohol
concentration level above the maximum permissible blood alcohol limit
of 0, 05g per 100 millilitre. The Department,
as part of its ongoing
drive to curb offences lodged an Alcohol Evidential Testing Centre
(AEC) in Pietermaritzburg on the 21
st
October 2009. I
annex hereto a speech delivered by myself at the opening of the
centre marked
TWM 4,
which sets out in greater detail the
reasons and statistics that prompted the establishment of that
centre.
46.5
I further annex hereto the KZN Road Traffic Inspectorate’s
monthly crime statistics for the period 1
st
December 2009
to 31
st
December 2009 and for the period 1
st
January 2010 to 31
st
January 2010, marked
TWM 5
and
TWM 6
, respectively. The Court will note that for the first
mentioned period reflected in Annexure TWM 5, the Inspectorate made
731 arrests
for drunken driving and 395 arrests for the latter period
as reflected in Annexure TWM 6. It must be emphasised that these are
monthly figures and computes on average for a period of one year into
approximately 5000 arrests for drunken driving alone.
46.6
It is also evident from these statistics that the prevalence of
drunken driving offences escalates towards the end of the year
and in
particular over the festive period. It is not insignificant that the
applicant’s offence was committed on the 18
th
November 2006.
46.7
The Departments campaign against the commission of this offence has
yielded progressive and significant results year on year
and this is
evident from comparative statistics taken over the same period of
time. In this regard, I by way of illustration annex
hereto a
document which reflects comparative drunken driving arrests for
various regions in KwaZulu-Natal for the Easter Vacation
Period for
the 2009 and 2010 year; marked Annexure
TWM 7
. It will be
noted that the overall decrease in the number of arrests for drunken
driving is more than fifty percent. In the circumstances
I verily
believe that the “Arrive Alive Campaign”; the “Zero
Tolerance Campaign” and the soon to be introduced
Points Merit
System are all initiatives that are gradually managing to stem the
tide against driving offences and in particular
against drunk driving
offences.
46.8
Moreover, I have recently commissioned an investigation into the
feasibility of suspending or cancelling a driver’s licence
automatically upon that driver’s conviction for drunken
driving. Such an outcome necessitates legislative changes to Section
35 (3) of the Road Traffic Act in terms of which it is envisaged that
it will become compulsory for the court to suspend or cancel
such
drivers licence upon conviction. I annex hereto a discussion document
compiled at my request by the Manager of the Road Traffic
Inspectorate, KZN which deals with the issues involved in greater
detail, marked Annexure
TWM 8
.’
[18] The record filed by the first
respondent in terms of Rule 53(1)(b) of the rules of this Court
reveals that before the first
respondent made his decision on the
matter he sought and was given a legal opinion on 3 February 2010 by
the Manager: Legal Services.
Paragraph 3 thereof sets out the factors
which the first respondent was required to consider in the exercise
of his discretion,
and reads as follows:
‘
3.
Facts
to consider
3.1
The powers of upholding or dismissing the appeal vest with the MEC in
terms of the NRTA;
3.2
Each case should then be decided according to its own merits, taking
into account the attitude of drivers in the position of
Mr. Sookraj
(too quick to plead that they are the sole bread winners and that the
decision not to grant PRDP is, in his view unethical
and
unconstitutional);
3.3
The number of road fatalities in the attributed to drunken driving or
excessive alcohol levels in the blood is too high (Too
many
breadwinners are killed by the inconsiderate driving of one drunken
driver);
3.4
The social standing of the Applicant; and
3.5
The Verulam Testing Ground’s report (on whose jurisdiction Mr.
Sookraj resides)’
In paragraph 4 thereof, the Manager:
Legal Services concluded:
‘
4.
Conclusion
4.1
It is recommended that the MEC consider the facts mentioned
hereinabove in considering this Appeal in line with the provisions
of
Regulation 125 of the Act;
4.2
Consider the rights of Mr Sookraj in contrast those law abiding
citizen killed on public roads by ill considerate drunken drivers;
and
5.
By virtue of the powers vested on the Honorable MEC, we are of the
view that the MEC will be in the position to make an informed
decision in this matter.’
[19] In my view, it is clear from the
evidence presented by the first respondent that he did not adopt a
one dimensional approach
in the exercise of his discretion in the
matter. I am therefore satisfied that the first respondent weighed up
the information
submitted by the applicant against the interests of
the public, and correctly took into account the policy considerations
of his
Department, statistical information concerning intoxication as
a cause of accidents, death on the roads, the prescripts of the
Traffic Act and all other relevant information pertaining to his
department on the matter.
[20] The second issue which requires
determination relates to the report of the convictions in terms of
Regulation 118(4) of the
National Regulations which provides that If
the driving licence testing centre is satisfied that the application
is in order, it
shall request the officer in charge of the nearest
South African Police Station for a report of the convictions
identified in Regulation
117(c) if any, recorded against the
applicant and for the purpose of such report, any member of the South
African Police Service
may take the finger and palm prints of the
applicant.
[21] The form on which the enquiry is
recorded by the South African Police Service in terms of this
regulation is called SAPS 91
(a). It is common cause that the
applicant completed the SAPS 91 (a) which is annexure TWM2 to the
first respondent’s answering
affidavit. Amongst the questions
which the applicant was required to answer is the following: ‘Have
you ever been convicted
of any offence? If so, state case, date and
sentence.’ The question appears immediately below the
applicant’s personal
details, and he responded as follows,
‘No’. The answer which was given by the applicant to the
question was specifically
endorsed by him in that he appended his
signature alongside it confirming the correctness thereof.
[23] The answer was given against the
backdrop of a computer printout from the Criminal Record Centre of
the South African Police
Service, demonstrating that on 29 December
1994 he was convicted of the contravention of section 120(1) of the
Road Traffic Act
29 of 1989, and that on 25 July 2007 he was
convicted of the contravention of section 65(2)(a) of the Traffic Act
which conviction
is the focus of this application. The applicant did
not disclose the conviction of 25 July 2007 even though he completed
annexure
“TWM2” on 3 November 2008. The first respondent
contends that from the applicant’s answer an irresistible
inference
could be drawn that the applicant intended to conceal his
previous convictions in the hope that they would have gone undetected
by his Department. In the exercise of his discretion in terms of
regulation 125 (2) this is one of the factors that he had to
consider. In paragraphs 19.4 and 19.5 of his answering affidavit, he
expressed himself in this regard as follows:
‘
19.4
In the premises it would appear that the Applicant has not been
honest in the completion of annexure “TWM2”,
alternatively
in failing to correct the response referred to, by
disclosing his previous criminal convictions. I can only presume that
such non
disclosure was motivated by the erroneous belief that
annexure “TWM2” would not be forwarded to the
respondents.
19.5 I should indicate
that such an apparent demonstration of dishonesty was sufficient
reason in itself for me to decline the Applicant’s
referral to
me in terms of Regulation 125 for the renewal of his PrDP, but I did
not do so on this ground alone and considered
all the other relevant
facts alluded to hereunder.’
[24] Pausing here further for a
moment, I observe that the applicant did not deal with the
circumstances under which he answered
the question aforesaid as he
did in his founding affidavit. It would seem, from the perusal and
consideration of the papers, that
the only time the applicant sought
to provide an explanation on the issue is in paragraphs 36 and 37 of
his reply affidavit where
he states:
‘
36.
I
have no recollection that I was asked whether I had been convicted of
any offense. If I had been asked that question I have no
doubt that I
would have answered in the affirmative. I recall that I was asked to
sign at various places on the form which I did.
I deny that anything
was written in the space under hearing “
Have you ever been
convicted of any offence etc.
” when I signed it. It was
abundantly clear to me that my fingerprints would be taken for the
purpose of conduction a criminal
record search. To that end it would
be ludicrous to declare that I have not been convicted when I knew
full well that the search
would reflect that I had been convicted.
37.
In
any event, I respectfully submit that at the time when the First
Respondent made the decision not to renew my permit it clearly
did
not take this evidence into consideration at all for it simply
decided the matter on the basis that it “…
has no
legal basis upon which to grant …(me
) …a
Professional Driving Permit
…” as it stated in
annexure “V”
to my Founding Affidavit. I
respectfully submit that, in annexure “V”, the First
Respondent clearly set out the reasons
for its decision. The First
Respondent clearly decided the matter on the basis that it was not
“entitled in law” to
even consider approving my
application. The First Respondent is now simply purporting to create
the impression that it had considered
this “evidence”
when it clearly had not.
38
I
further respectfully submit that the First Respondent should have
given me an opportunity to respond to the “evidence”
and
had failed to do so.’
[25] In my view, the applicant’s
explanation aforesaid is drivel. The other factors which, in my view,
militate against this
explanation and drove me to agree with the
submission by Mr Moodley that the applicant is not entirely honest
can be gleaned from
his affidavit in support of his request for a
recommendation for him to be issued with PDP where, in his affidavit,
he described
himself as a sole breadwinner, contrary to the averments
contained in his founding affidavit in these proceedings in which he
records
that his wife is also employed and earns a salary of R 2400
per month. This is further perpetuated by the applicant’s
attorneys
during the address in mitigation of the sentence before the
Magistrate in which he (the attorney) informed the Court on behalf of
the applicant that he earned R 2000 per month as a driver, which was
not correct.
[26] It is to be observed that,
Regulation 117 of the National Regulations prescribes more onerous
minimum requirements for an applicant
for a PDP as opposed to an
applicant for an ordinary driver’s licence in view of the very
real risk that such driver would
otherwise pose to innocent members
of the public, be they motorists, passengers or pedestrians. This is
evident in Regulation 117(aA)
which prescribes the minimum age at
which a person could be issued with PDP for categories ‘P’
and ‘D’
to be 21 and 25 years respectively. A category
‘P’ authorises the driving of a motor vehicle as referred
to in regulation
115 (1) (a), (b), (c), (d), (e) and (g) of the
National Regulation. In terms of regulation 117 (b) of the National
Regulation such
driver is required to be medically fit and in
possession of a certificate by a health practitioner testifying to
that fact, whilst
Regulation 117 (c) (iii) and (iv) of the National
Regulation will bar a driver from being issued with a PDP if he or
she has been
convicted of reckless driving or an offence involving
violence.
To my mind, by enacting regulation 117
of the National Regulations, the legislature’s intention was to
protect members of
the public from the risk and harm inherent in the
conduct of those drivers who engage themselves in driving a vehicle
whilst their
blood alcohol content exceeds the legal limit. Clearly,
the possession of PDP confers a privilege on the holder which
requires
of him to be more circumspect in ensuring that he does not
engage in any conduct that would jeopardise such possession. It is
apparent
from the provisions of regulation 117 of the National
Regulations that whether an applicant for a PDP has been convicted of
an
offence specified under Regulation 117(c) (i); (ii); (iii) or
(iv), such conviction results in the same penalty or sanction in that
such an applicant will not be issued with a PDP.
[27] In paragraphs 39 to 46 of his
replying affidavit, the applicant deals with his previous conviction
of 29 December 1994 contending
that was not a previous conviction
because there is no such offence as reckless and negligent driving
and that it could only have
been reckless driving or negligent
driving. Section 120(1) of the Road Traffic Act which was contravened
by the applicant resulting
in such previous conviction provides that
no person shall drive a vehicle on a public road recklessly or
negligently. I have considered
this submission and in my view, the
fact that the word ‘and’ instead of ‘or’ was
used in the SAP 91 does
not mean that the applicant did not commit
the offence of either reckless or negligent driving. Interestingly,
the applicant recalls
the incident and sought to contend that it was
a minor, that a summons was issued in relation thereto and delivered
to his place
of employment in his absence, that his employer decided
to pay the admission of guilt fine of R 200 for and on his behalf
whilst
he was away but without his permission. He was not aware that
the incident was recorded as a criminal record against him.
Strangely,
this explanation was raised for the first time in his
replying affidavit. It is trite that the applicant must make his case
in
the founding affidavit and that, save in exceptional
circumstances, he will not be allowed to make or supplement his case
in his
replying affidavit (see
Ponntas’ Trustee v Cananas
1924 WLD 6
at 68). This argument is untenable.
[28] The third issue which requires
determination is whether the second respondent was obliged to
indicate in his recommendation
the factors that were taken into
consideration in deciding not to recommend that the applicant’s
application for a renewal
of his PDP be reconsidered. The decision of
the second respondent constituted an administrative action as defined
in section 1
of the Promotion of Administrative Justice Act 3 of 2000
(PAJA) and it was incumbent upon the applicant to request reasons in
terms
of section 5 of PAJA if he required same. Having carefully
considered the matter, I incline to find that, there is no obligation
on the first respondent to require a more detailed motivation for the
recommendation made by Naidoo. It is clear to me that, it
was the
first respondent who was required to bring his mind to bear on the
facts and information before him and to make an informed
decision
thereon.
[29] The fourth issue which requires
the determination is whether there exists a conflict between section
34 of the Traffic Act
and regulation 117 of the National Regulation.
Mr Haasbroek argued that there is such a conflict, and submitted that
the same presents
itself in that the Magistrate who convicted and
sentenced him considered all the facts pertaining to the matter
(conviction of
25 July 2007) and found that it was not necessary to
suspend or cancel his licence and permit. He thereafter proceeded to
operate
as a professional driver only to be arbitrarily disqualified
from renewing his permit some sixteen months later by virtue of the
provisions of regulation 117 (c) (i). It is to be observed that
provisions of section 34 of the Traffic Act are of general
application
and it empowers a Magistrate, after holding an enquiry,
to exercise his discretion to suspend or cancel a licence or permit.
On
the other hand, Regulation 117 of the National Regulations
peremptorily directs a driver’s licence testing centre not to
issue an applicant with a PDP if he has been convicted or has paid an
admission of guilt fine on any one of the offences referred
to in
Regulation 117 (c) of the Nation Regulations. Regulation 117 (c) of
the National Regulations specifies particular kinds of
offences which
disqualify an applicant from obtaining a PDP. In other words an
applicant with a conviction for an offence specified
in Regulation
117 (c) of the National Regulations is ineligible to be issued with a
PDP unless a period of five years has lapsed
from the date of his
conviction. Mr Moodley is, in my view, correct when he stated that
the regulation is aimed at ensuring that
an applicant with a
conviction is not automatically entitled to obtain a PDP from an
administrative body such as a driving licence
testing centre, unless
the MEC approves of his application notwithstanding such applicant’s
previous conviction. The applicant’s
argument on this issue is
unsustainable. To my mind this argument contains a subtle of
confusion of thoughts because, Regulation
117 of the National
Regulations serves to protect the public interest at the time that an
application is made to an administrative
body such as a driving
license testing centre in the sense that it is barred from issuing a
PDP to a driver who has been convicted
of any of the offences
specified in that Regulation whereas s 34 of the Act confers upon the
Magistrate a judicial discretion to
suspend or cancel a licence or
permit, on conviction.
[30] The applicant’s counsel in
his argument referred me to certain provisions of section 6 of PAJA
on which he contends further
that the decision of the applicant is
reviewable. I deal hereunder, in
seratiam
, with the provisions
he referred me to.
The action was materially
influenced by an error of law Section 6(2)(d) of PAJA
[31] I have pertinently dealt with
this contention in paragraphs 16 to 19 of this judgment. In my view,
to repeat the same will
serve no purpose but only to instil boredom.
Lack of procedural fairness
(Section 6(2)(c)) of PAJA
[32] The attack under this head is
predicated on that the first respondent took into account a
substantial amount of facts none
of which were communicated to the
applicant beforehand so as to enable the applicant to respond
thereto. It was argued, on behalf
of the applicant, that the facts
taken into account constitute, in essence, all the negative facts
based on which the application
was refused. I have considered this
submission. It seems to me that the regulation does not contemplate
the situation where the
first respondent, before exercising his
discretion, would give notice to the applicant of what factors he
intend taking into account
in weighing up the information submitted
to him by the applicant. It ought to be born in mind that the first
respondent’s
portfolio dictates that he must have knowledge of
public interests and policy considerations which he ought to take
into account
in the exercise of his discretion. In my view, that is
the underlying reason why he is the ultimate arbiter on the matter.
That the action was taken because
irrelevant considerations were taken into account or relevant
considerations were not considered
– Section 6(2)(e) (iii)
[33] The applicant’s attack
under this head is centred on the answer furnished by the applicant
on annexure TWM 2 when he
was asked ‘Have you ever been
convicted of an offence?’ calling for the conclusion that the
applicant had attempted
to conceal his previous convictions, that
this was a demonstration of dishonesty. Under paragraphs 20 to 27 of
this judgment I
have cogently demonstrated how the applicant’s
contention is unsustainable. Accordingly, no more need be said in
this regard.
The decision was taken arbitrarily
or capriciously – Section 6(2)(e(vii)
[34] The applicant’s attack
under this head is predicated on that, considering the overwhelming
evidence placed by the applicant
before the first respondent, he
(first respondent) ought to have found that the applicant was a fit
and proper person to be issued
with a PDP and therefore ought to have
exercised his discretion and issue a PDP to him. Mr Haasbroek
submitted that the applicant
poses no threat to the public and that
the inference is inescapable that the decision was made arbitrarily
or capriciously. Not
so, argued Mr Moodley. He submitted that the
first respondent exercised his discretion in the context of taking
into account and
weighing up of all the information submitted to him
by the applicant, which included his personal factors, the interest
of the
public, the policies of the Department of Transport,
statistical information concerning intoxication as a cause of
accident, statistics
of death toll on the country’s roads, the
prescripts of the
National Road Traffic Act and
all other relevant
information in particular the evidence of Schnell in the previous
application relating to this matter. In my
view, if the argument of
the applicant was to be accepted, the entire process would amount to
administrative incantation the mere
stating thereof would satisfy the
requirements and compel the first respondent to issue PDP.
That the action is not rationally
connected to the information before the administrator -
Section
6(2)(f)(ii)(cc)
of PAJA
[35] The applicant contends that the
facts put up by him, that show that he is not a danger to the public
clearly outweigh those
facts that show otherwise. It seems to me that
this argument overlooks the fact that the overriding intention of the
Legislature
is to protect members of the public from those drivers
who are prepared to drive a vehicle whilst the blood alcohol content
exceeds
the legal limit and from the risk and harm inherent in such
conduct.
The first respondent’s
decision was so unreasonable that no reasonable person could have
come to the same decision –
Section 6(2)(h)
of PAJA
[36] The applicant contends that the
evidence put up by the applicant clearly shows that his conviction
was a once off incident
and that there is no possibility that he
would either transgress in the same was or that he poses a threat to
the public. Upon
considering all the evidence, it was submitted, the
conclusion was inevitable that the first respondent’s decision
falls
under the abovementioned category of unreasonableness. I do not
share the same sentiments as those expressed by Mr Haasbroek on
this
issue. The evidence of the first respondent is that his discretion is
not exercised in
vacuo
. He took into account and weighing up
the information submitted to him by the Applicant he reached the
decision that he arrived
at. I am unable to fault him in this regard.
In my view, the first respondent did take into account all the
factors and struck
a reasonable equilibrium between them before
arriving at the decision. I am satisfied that the decision of the
first respondent
is a decision which any reasonable decision maker
could have reached. I therefore cannot find any substance in the
applicant’s
contention on this ground.
That the decision violates the
applicant’s right in terms of Section 22 of the Constitution –
read with Section 33 (Disporportionality)
[37] Section 22 of the Constitution
provides that every citizen has the right to choose their trade,
occupation or profession freely.
The practice of a trade, occupation
or profession may be regulated by law. The decision to refuse the
applicant’s application
for a PDP infringes on his right to
practice his occupation of a professional driver. The applicant found
comfort for this contention
in section 22 of the Constitution Act.
This section provides that every citizen has the right to choose
their trade, occupation
or profession freely. The practice of a
trade, occupation or profession may be regulated by law. The
limitation of rights is dealt
with in section 36 of the Constitution.
It is evident from the proper reading of section 22 read with section
36 of the Constitution
that the right to choose a trade, occupation
or profession cannot be limited but the practice thereof may be
regulated by law.
As Chaskalson P (in
S v Lawrence, S v Negal, S v
Solberg
SA
1997 (4) SA 1176
para 33) said in similar
circumstances (albeit in the form of section 26 of the interim
Constitution):-
‘
certain
occupations call for particular qualifications prescribed by law and
one of the constraints of the economic sphere is that
persons who
lack such qualifications may not engage in such occupations. For
instance, nobody is entitled to practice as a doctor
or as a lawyer
unless he or she holds a prescribed qualifications, and the right to
engage ‘freely’ in economic activity
should not be
construed as conferring such a right on unqualified persons; nor
should it be construed as entitling persons to ignore
legislation
regulating the manner in which particular activities have to be
conducted, provided always that such regulations are
not arbitrary…’
The principle enunciated in this
decision has been consistency followed by our Courts (see
Prince v
President, Cape of Law Society and others
[2002] ZACC 1
;
2002 (2) SA 794
(CC)
and
Food Corp (Pty) Ltd v Deputy Director – General,
Department of Environmental Affairs and Tourism, Branch Marine and
Coastal
Management
2004 (5) SA 91
(C)).
[38] It must be accepted that the
Constitution does not mean whatever we wish to mean and, furthermore,
that cases fall to be decided
on a principled basis. Having carefully
considered the applicant’s contention on the issue, I incline
to find that the relevant
regulations do not infringe the rights in
section 22 of the Constitution.
[39] Lastly, the applicant had in his
papers initially sought the urgent relief in this matter but this
point was wisely not persisted
on before me.
Costs
[40] Having regard to the history of
this matter, I am of the view that it is not necessary to depart from
the general principle
that the costs should follow the results. I do
so mindful of the decision in
Biowatch Trust v Registrar, Genetic
Resources, and Others
2009 (6) SA 232
(CC).
In the result the following order
shall issue,
The application is dismissed with
costs, such costs to include costs consequent upon the respondents’
employment of two counsel.
Date of Hearing : 17 October 2011
Date of Judgment : 22 March 2012
Counsel for the Applicant : Adv. P.
Haasbroek
Instructed by : Rajesh Hiralall
Attorneys
Counsel for the Respondent : Adv. Y.
N. Moodley SC
Assisted by : Adv. A Pillay
Instructed by : Cajee Setsubi, Chetty
Inc.