About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2009
>>
[2009] ZAGPJHC 33
|
|
Bhugwan v JSE Limited (08/32943) [2009] ZAGPJHC 33; 2010 (3) SA 335 (GSJ) 2010 (3) SA 335 (GSJ) (31 July 2009)
IN THE SOUTH GAUTENG
HIGH COURT
(JOHANNESBURG)
Case
No. 08/32943
In the matter
between
BHUGWAN,
KAMAL SHANTILAL
Applicant
and
JSE
LIMITED
Respondent
JUDGMENT
C.J. CLAASSEN
J
[1] The
applicant has approached this court on notice of motion seeking
relief to review a decision made by the respondent
pursuant
to the provisions of Rule 53 of the Uniform Rules of Court. In the
notice of motion the following relief is asked for:
“
1. Setting
aside the decision of the respondent to find (
sic
)
that the applicant does not comply with the respondent’s
criteria of good character and high business integrity in terms
of
section 4.10.1.3 of the Equity Rules;
2. Directing the respondent to
certify that the applicant fulfills its criteria of good character
and high business integrity;
3.
Alternatively
to the order in paragraph 2 above, an order declaring that the
respondent (
sic
,
should be the applicant) fulfills the respondent’s criteria of
good character and high business integrity;
4.
Alternatively
to paragraphs 2 and 3 above, an order that the matter be remitted to
the respondent with the appropriate directions to ensure fair
procedural administrative action as the Honourable Court deems fit
including but not limited to the right to a proper hearing which
shall include:
4.1. The right (to) be presented
with the evidence of lack of good character and high business
integrity;
4.2 The right to lead evidence to
refute such allegations;
4.3 The right
to be legally represented;
4.4 The right to appear in
person;
4.5 The right to deliver oral
and/or written argument and submissions;
4.6 The rights
set out in
section 3(2)(b)
and (c) of the
Promotion of Administrative
Justice Act, 3 of 2000
;
4.7 Any other
rights which the Honourable Court deems fit.
5. Ordering the respondent to
pay the costs of the application.”
[2] By
way of introduction, it should be noted that the parties had
subsequently agreed that it would not be necessary for this
court to
make any final determination as to the correctness or otherwise of
the conclusions reached in a forensic accountant’s
report
regarding the fitness or otherwise of the applicant in regard to the
Equity
Rules. In the light of this agreement, the ambit of the current
review application has substantially decreased. In this
regard I
quote from paragraphs 23 to 25 of applicant’s heads of argument
where the following is stated:
“23. It
is submitted that ultimately the issue of whether the Applicant is
indeed guilty of such conduct as alleged by the
Respondent, is an
issue to be adjudicated and determined by the Respondent and not
the Honourable Court.
24. Indeed this is conceded in
paragraph 15 of the agreement regarding the forensic report, where
the parties agreed as follows:
“The
parties agree that it is not necessary in the light of the amendment
for the Court to make any final determination
as to the correctness
or otherwise of the conclusions reached by the forensic accountants
in the report.”
25. Therefore
it is submitted that essentially the Honourable court only has to
consider the aforesaid common cause facts and
essentially the
following issues:
25.1 Whether the communication
regarding the applicant contained in the 18 April e-mail constituted
a decision as defined in PAJA;
25.2 Whether the applicant was
afforded procedurely fair administrative action;
25.3 Whether the applicant was
obliged to exhaust the internal remedies referred to by the
respondent;
25.4 Whether
the conduct of the respondent was in the circumstances
constitutional, rational and justifiable.”
[3] At
the outset of the debate before me, I indicated that it would appear
convenient and feasible to argue first the relief sought
in par. 1 of
the notice of motion and as set out in paragraph 25.1 of applicant’s
heads of argument. The applicant alleges
that the respondent took a
decision whereas the respondent alleges that no decision was taken at
all. It would follow that,
should the court uphold the
respondent’s contention that no decision was taken at all, then
the necessity to decide the remaining
issues would fall away. It
is only in the event of a finding that a decision was indeed taken as
contained in the e-mail of
18 April, that the
other
issues will remain alive for resolution.
[4] Counsel
then proceeded to argue the question whether or not a decision was
indeed taken whereafter I
reserved judgment. I gave the assurance that should I uphold the
applicant’s contentions in this regard, the matter will
be set
down again for further argument before me to deal with the remaining
issues referred to above. I shall then proceed to
deal with the
question whether or not the email of 18 April 2008 is to be construed
that a decision was made by the respondent.
THE LAW
RELATING TO AN ADMINISTRATIVE ACT
[5] In
Gamevest
(Pty) Ltd v Regional Land Claims Commissioner,
Northern
Province and Mpumalanga and Others
2003 1 SA 373
(SCA) at paragraphs [11] and [12], Olivier JA stated in
regard to the “ripeness”
1
of the case for judicial review as follows:
“
[11] It
is patently clear that the fundamental right created by s
33(1) and (2) of the Constitution is that of lawful and procedurally
fair
administrative
action
.
I emphasise the words ‘administrative action’, because
they emphasise the very first question to be asked and answered
in
any review proceeding: what is the
administrative
act
which
is sought to be reviewed and set aside? Absent such an act, the
application for review is stillborn.
[12] What is
an
administrative
act
for the purpose of justiciability? There is no neat, ready-made
definition in our case law, but in
Hira
and Another v Booysen and Another
1992 4 SA 69
(A) Corbett CJ at 93 A-B required, for common-law
review, the non-performance or wrong performance of a statutory duty
or power;
where the duty/power is essentially a decision-making one
and the person or body concerned has taken a decision, a review is
available…”
[6]
The
existence of a decision as a prerequisite for any judicial review
thereof was reiterated by Nugent JA in
Grey’s
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
[2005] ZASCA 43
;
2005 6 SA 313
(SCA) at par.
[22]
:
“
At the
core of the definition of administrative action is the idea of action
(a decision) ‘of an administrative nature’
taken by a
public body or functionary.”
[7]
The
Promotion of Administrative Justice Act 3 of 2000
defines in
s 1
administrative
action
as denoting “any decision taken, or any failure to take a
decision, ……” It further defines “decision”
as meaning:
“…
any decision of
an administrative nature made, proposed to be made, or required to be
made, as the case may be, under an empowering
provision, including a
decision relating to –
m
aking,
suspending, revoking or refusing to make an order, award or
determination;
g
iving,
suspending, revoking or refusing to give a certificate, direction,
approval, consent or permission;
i
ssuing,
suspending, revoking or refusing to issue a licence, authority or
other instrument;
i
mposing
a condition or restriction;
m
aking
a declaration, demand or requirement;
r
etaining,
or refusing to deliver up, an article; or
d
oing
or refusing to do any other act or thing of an administrative
nature, and the reference to a failure to take a decision must
be
construed accordingly.”
[
8] The
cumbersome definition of “decision” in
s 1
of PAJA does
not assist one in coming to a conclusion whether or not a certain set
of facts constituted the making of a decision.
The definition
assumes the existence of a decision of an administrative nature and
then proceeds to indicate what kind of decisions
are included. What
kind of action will constitute a decision, will depend upon the
circumstances of each case.
[9] It will be the
task of this court to ascertain the meaning of the words used in the
particular e-mail as understood in the
context of the relevant
surrounding circumstances which led to the drafting and sending
thereof. In so doing it will be necessary
to give every word or
expression its ordinary meaning and in this regard lexical research
may be useful and possibly indispensable.
(a) The
new Shorter Oxford English dictionary at page 608 defines “decision”
as follows:
“1.
The action of deciding a contest, dispute, etc.; settlement, a
final (formal) judgment or verdict….. 2…..
3. The action of coming to a determination or resolution with regard
to any point or course of action; a resolution or conclusion
arrived
at.”
(b)
The
American Heritage Dictionary of the English Language, 4
th
Edition, gives the following definition of “decision”:
“1.
The passing of judgment on an issue under consideration. 2. The act
of reaching a conclusion or making up one’s
mind. 3. A
conclusion or judgment reached or pronounced; a verdict.”
(c) The
Oxford Thesaurus (1991) pp 83 and 84 defines the word as:
“1.*settlement, *determination, *resolution, settling,
resolving, arbitration: 2. *judgment, conclusion, resolution,
verdict, *sentence, ruling, *finding, *decree, *settlement,
*outcome: 3. *determination, firmness, decidedness, *resolve,
decisiveness, conclusiveness, steadfastness, *purpose,
purposefulness:…”
[10]
Having
regard to the aforesaid definitions and authorities, it would seem to
me correct, as submitted by Mr. Marcus, that for a
decision to have
been taken which is capable of review, all or at least some of the
following steps must have been completed in
the decision-making
process:
Save
where
an authority legitimately acts cohersively or of its own accord,
a
final application, request or claim
must have been addressed by a subject to an authority which
exercises statutory or public powers to exercise those powers in
relation to a set of factual circumstances applicable to the
subject;
All
relevant
information
,
either presented by the subject or otherwise reasonably available
must
have been gathered
(which may require an investigative process)
and
placed before the authority
which is to make the decision;
There
must have been an
evaluative
process
where the authority considers all of the information before him or
her, identifies which components of such information are
relevant
and which are irrelevant and in which the authority assigns, through
a process of value judgments, a degree of significance
to each
component of the relevant information, regard being had to the
relevant statute or other empowering provision in terms
of which the
authority acts;
A
conclusion
must have been reached by the authority, pursuant to the evaluative
process, as to how his or her statutory or public power should
be
exercised in the circumstances; and
There
must have been an
exercise
of the statutory or public power
based on the conclusion so reached.
[11] Ultimately
the facts in each circumstance will have to be evaluated to determine
whether or not the processes referred to above
have been complied
with or to what degree these processes exist, for purposes of
deciding whether an administrative decision had
been taken. When
applied to a set of facts it will be a matter of degree to determine
whether an issue is ripe for review adjudication
on the basis that
the decisional process had been completed. In Baxster
“Administrative Law” 1984 page 720, the
following is said
in regard to the process of determining whether or not a decision had
been taken:
“
It i
s
submitted that the appropriate criterion by which the ripeness of the
action in question is to be measured is whether prejudice
has already
resulted or is inevitable, irrespective of whether the action is
complete or not. Once unlawfulness is manifest in
a form which
cannot be corrected no matter how the public authority continues to
act, there is no point in insisting that the complainant
should
continue to go through the motions before bringing the matter to
court.”
[12] O
f
importance is for the adjudicator to evaluate the decision-making
process in the context in which it is alleged a decision was
taken.
In
Aktiebolaget
Hässle and Another v Triomed (Pty) Ltd
2003
1 SA 155
(SCA) at paragraph [1] Nugent JA quoted with approval the
remark made by Lord Steyn in
R
v Secretary of State for the Home Department
,
ex
parte Daly
2
‘context is everything’. Nugent JA continued:
“
And so
it is when it comes to construing the language used in documents,
whether the document be a statute, or a contract, or, as
in this
case, a patent specification.”
THE
CONTEXT
IN WHICH THE E-MAIL OF 18 APRIL 2008 WAS DRAFTED AND SENT
[
13] The
facts in regard to the contextual background giving rise to the email
are not really in dispute. This factual matrix is
set out in
paragraph 60 to 76 of the respondent’s answering affidavit.
The respondent’s allegations are to be read
with certain
agreements concluded between the parties produced by the applicant
pursuant to a notice in terms of
Rule 35(12)
of the Rules of this
court.
[14] It
is common cause that the applicant was formally employed as a stock
broker by a firm called Cahn Shapiro. Thereafter he
was employed by
various other firms,
inter
alia
Africor Securities (Pty) Ltd, Metam Asset Management and Legae
Securities (Pty) Ltd. During March 2008 the applicant concluded
a
series of agreements with a company known as Groombridge Securities
(Pty) Ltd. The agreements included a loan agreement, a
shareholders
agreement, a cession
in
securitatem debiti
,
a service agreement and a subscription agreement. The subscription
agreement set out the terms and conditions upon which the
applicant
offered to subscribe for certain shares in Groombridge Securities and
upon which such shares would be allotted and issued
to him. Clause
3 thereof contained certain conditions precedent. In short it
stipulates that the agreement between Groombridge
Securities (Pty)
Ltd and the applicant is subject to the fulfillment of
inter
alia
the condition “that each of the persons, individually
constituting the Subscriber are accepted by the JSE as being fit and
proper and capable of being directors and/or shareholders in and to
the Company” (Groombridge Securities (Pty) Ltd). It
further
states that should “the conditions precedent remain
unfulfilled”, then the agreement “shall not come
into
force and effect”.
[15] Pursuant
thereto and on 7 April 2008, one of the directors of Groombridge, Mr.
Peter Coutromanos, addressed an e-mail letter
to certain officials in
respondent’s employ: Ann Clayton (a senior manager,
surveillance dealing
inter
alia
with membership applications), Alex Naicker (who deals with
membership applications in the customer services division) and
Assimina
Karamitsos (who deals with membership applications in the
surveillance division). A copy of this e-mail is annexure “LC18”
attached to the respondent’s answering affidavit. Mr.
Coutromanos stated the following therein:
“
I hereby advise that the
share register of Groombridge Securities will be as reflected in the
attached spreadsheet.
We are
proceeding with the necessary subscription agreements and related
documentation and will have this finalized by the end of
this week.
In the interim if you could let
me know if the register and individuals are in conformance with JSE
requirements.”
[16]
The
attached spreadsheet indicated that the applicant was to take up a
12% shareholding in Groombridge. This shareholding has
a bearing
on the “fit and proper requirements” of the Equity Rules.
In this regard Rule 4.10 provides as follows:
“4.10
Fit and Proper Requirements
4.10.1 An officer or
non-executive director of a member, or a shareholder who is a natural
person and who directly or indirectly
holds in excess of 10% of the
issued shares of a member, must, subject to any waiver by the JSE –
4.10.1.1 be
of full legal capacity;
4.10.1.2 not
be an unrehabilitated insolvent; and
4.10.1.3
comply
with such criteria of good character and high business integrity as
the JSE deems fit.
4.10.2 In
determining whether a person
complies with Rule 4.10.1.3, the JSE will take into account,
inter
alia
,
whether the person has been –
……..
4.10.2.4 the
subject of a formal investigation by any regulatory or government
agency;
……
..
4.10.2.8 r
efused
entry to or expelled from any profession or vocation or been
dismissed or requested to resign from any office or employment,
or
from any fiduciary office or similar position of trust ……..
“
[17]
On
the same day, Ann Clayton addressed an e-mail letter to Gary Clarke,
the company secretary of the respondent, enquiring what
would be
required to evidence compliance with Rule 4.10 in respect of
shareholders or directors listed in the spreadsheet. The
e-mail was
copied to Shaun Davies who is now the director: surveillance, of the
respondent. A copy of this e-mail is attached
as annexure “LC19”
to the respondent’s answering affidavit.
[18] On
Wednesday 9 April 2008 Shaun Davies read the e-mail forwarded by Alex
Naicker and attaching the spreadsheet indicating that
the applicant
was to take up 12% of the shareholding in Groombridge. He was
immediately concerned when he noticed that the
applicant was to be
the “Alternate Settlement Officer” of Groombridge.
Davies was aware of the investigation that
had been instituted
surrounding the departure of the applicant from the employment of
Cahn Shapiro. He immediately addressed
an e-mail
3
to Ann Clayton saying the following:
“Is
Kamal also their Compliance Officer? He has a history. I’ve
got a file on him.”
Ann
Clayton
responded
by stating:
“O
dear! Yes, he is their compliance officer – I will chat to
you”.
[19]
On
Friday 11 April, Davies and Clayton discussed the matter and Clayton
undertook to telephone Coutromanos of Groombridge. She
did so on
Monday 14 April and informed him of the respondent’s concern in
relation to the applicant’s fit and proper
status. She
requested Coutromanos to discuss the circumstances surrounding the
termination of the applicant’s employment
with Cahn Shapiro in
March 1999, with the applicant. Clayton informed Coutromanos that
should the applicant make a frank disclosure
of the circumstances
surrounding the termination of his employment with Cahn Shapiro, the
respondent would be open to considering
accepting his fit and proper
status even if it involved admission of some impropriety on the
applicant’s part. She conveyed
to Coutromanos that the
respondent would consider the matter with an open mind.
4
[20]
On
17 April 2008, Coutromanos telephoned Clayton and informed her that
he and Burrell (the other director of Groombridge) had met
with their
attorney Mr. Michaelides and that they had decided on his legal
advice to invoke the non-fulfillment of the condition
precedent
clause in the agreement with the applicant. They requested the
respondent to provide something in writing which documented
the
respondent’s concern regarding whether or not the applicant
complied with the respondent’s fit and proper requirements.
Clayton’s impression was that this request also emanated from
the advice of Groombridge’s attorney Mr. Michaelides.
5
[21] Clayton
discussed this request from Groombridge’s directors with Gary
Clarke, the company secretary of the respondent.
They decided to
agree to the request and hence on 18 April 2008 the e-mail
6
was sent by Gary Clarke to Coutromanos of Groombridge. This e-mail
was also copied to Clayton and Davies. It records that the
subject
of the e-mail is “shareholders – Rule 4.10”. In
the e-mail Clarke sets out the provisions of s 4.10
of the
respondent’s Equity Rules. The e-mail then concludes with the
following:
“
The JSE has information at
its disposal which indicates that Mr. Kamal Bhugwan does not comply
with such criteria of good character
and high business integrity as
the JSE deems fit.
The JSE has no objection to any
of the other proposed shareholders as set out below.
………
Please contact me, or Ann Clayton
should you wish to discuss this matter further.”
[22]
In
paragraph 74 of the answering affidavit the deponent makes the
following important statements:
The
information which the respondent had at its disposal consisted of 3
reports obtained from Loss Adjusters.
No
decision had been taken by the respondent to the effect that the
applicant did not comply with the fit and proper requirements
before
sending the e-mail of 18 April nor has any such
decision
been taken subsequently.
The letter draws
attention to the fact that the respondent has at its disposal
information and invites further discussion of the
matter.
The
request as t
o
whether or not the applicant satisfies the fit and proper
requirements, was not addressed to the respondent by the applicant
but by the directors of Groombridge Securities in order for them to
decide whether or not to invoke the condition precedent provisions
of their agreement with the applicant.
The e-mail was sent
at the specific request of Groombridge who were acting on the advice
of their attorney Mr. Michaelides in
this regard.
[23] In
response to the e-mail of 18 April Mr. Michaelides, acting on behalf
of the applicant, wrote a letter dated 23 April 2008
7
.
Far from regarding the e-mail of 18 April as a “decision”,
this letter purports to respond to the invitation to
discuss the
matter further. On page 3 of the letter “KB4” the
following is stated:
“
Our
client has instructed
us
to assist with the finalisation of any matters that require to be
dealt with in order that our client may be declared fit and
proper
and to this end, and in order to assist our client, we would be
grateful if you would furnish our offices with the following
information and/or documentation.”
A
list of 8 items of information requested appear
.
The letter continues:
“
Our
client requires the above information and documentation in order to
be appraised of the position and in particular where our
cli
ent
can assist in finalising the relevant processes and actions in order
that the matter/matters against our client may be finalised.
It is
apparent however, to our client that:
There has
been an inordinate delay occasioned by the JSE in finalisation of
matters to which our client is a party…..”.
[24]
In
response to the aforesaid letter the respondent wrote a letter dated
19 May 2008
8
wherein the following is stated:
“
1. We refer to our recent
discussion and your letter of 23 April 2008. It has come to the
attention of the JSE that there are
certain facts and circumstances
that may indicate that your client does not comply with the requisite
criteria of good character
and high business integrity.”
A
background is then s
ketched
in regard to the circumstances under which the applicant’s
employment was terminated with Cahn Shapiro and then the
letter
continues as follows:
“
12. The
JSE hereby requests your client to furnish the JSE and Groombridge
with all the facts and information at his disposal that
will indicate
that he satisfies the JSE’s fit and proper requirements
notwithstanding the serious allegations of improper
conduct that have
been leveled against
him. We would specifically appreciate your client’s
submissions relating to his failure to mention the reasons for the
termination of his employment with Cahn Shapiro during his current
and previous applications to the JSE.
13. The JSE will, after receipt
of your client’s reply consider all the facts and information
at its disposal and decide whether
Mr. Bhugwan does indeed comply
with the JSE’s fit and proper requirements.”
[25] Thereafter
an impasse occurred whereby the applicant declined to respond
substantively to the invitation to provide an explanation and the
respondent took up the attitude that the applicant had a duty of full
disclosure to the respondent to divulge all relevant information
in
this regard. And that is where the matter presently stands.
EVALUATION
[26]
Mr
Kairinos for the applicant was obliged to argue the matter on the
aforesaid facts. He stressed that the e-mail of 18 April
constituted a final and definitive decision which had immediate and
direct legal consequences for the applicant. In the alternative,
he
submitted that the e-mail of 18 April constituted a preliminary
decision which will have serious consequences for the applicant
and
relied for this submission on
Oosthuizen’s
Transport (Pty) Ltd and Others v MEC, Road Traffic Matters,
Mpumalanga and Others
2008 2 SA 570
T at paragraphs [25] – [27].
[27]
I
cannot agree with the submissions made by Mr. Kairinos. Let me say
immediately that a simplistic linguistic reading of the e-mail
does
not conform to the dictates of a decision having been taken by the
respondent. In my view, the operative word is “indicates”.
The drafter of the letter did not use words such as “confirms”,
“establishes” or “proves”.
These words are
consistent with a decision having been taken. Instead the word
“indicates” was used. The ordinary
understanding of the
word “indicate” according to the Shorter Oxford
Dictionary page 1056 is:
“
To
point out, point to, make known, show
.
2. To be a sign or symptom of. 3. To point out,
direct
attention to
4. To state or express; to express briefly,
likely,
or without development
;
to give an indication of”.
[28]
In
my view, the letter, properly construed linguistically, was to give
the applicant an indication of information in possession
of the
respondent which would tend to indicate that he did not comply with
the requisite requirements. I am fortified in this
linguistic
interpretation by the fact that the letter invites further discussion
of the matter. It does not purport to close
the door after a final
and determinative decision had been made.
[29] However,
even if the aforesaid linguistic interpretation constitutes an over
simplification, I am of the view that a contextual
approach puts the
matter beyond doubt. In the founding affidavit no case is made
out that the applicant “applied”
to the respondent for a
determination as to whether he complied with the Equity Rule s 4.10.
The only allegation made in this
regard is found in par. 17 of the
founding affidavit which states as follows:
“
17. Pursuant
to the conclusion of the aforesaid agreements and in mid April 2008,
I was advised by Peter Coutromanos of Groombridge,
that the
application submitted to the respondent for a determination of
whether I complied with such criteria of good character
and
high
business integrity as the respondent deemed fit, had failed. In
this regard I attach hereto as annexure “KB1”
a copy of a
letter received by myself from Groombridge.”
No
details are supplied of “the application submitted to the
respondent” for such a determination. In fact
,
there was no such formal application, request or claim by the
applicant to the respondent to exercise a statutory power in this
regard. Instead there was an informal query by e-mail from someone
other than the applicant, namely Groombridge for the purpose
of
establishing whether a condition precedent in a private agreement was
or was not satisfied. On this simple ground the applicant’s
case should fail. There is no basis in law to review a so-called
decision if the applicant does not make out a case that he had
applied for such decision to be made.
[30]
Furthermore,
the response of the applicant’s attorney Mr. Michaelides in the
letter dated 23 April 2008 is completely destructive
of any
understanding that a decision had been taken. The letter requires
further information in order to assist the finalisation
of the
applicant’s status. Such allegation is directly in conflict
with any contention that the e-mail of 18 April constituted
a final
and definitive decision. The applicant cannot be permitted to
reprobate and approbate: If there was a decision, no
further
assistance afforded by the applicant would have served any purpose;
alternatively, if there was no decision, the offered
assistance
would serve some purpose in order for the respondent to come to a
decision on the matter.
[31]
If
the five steps analysis to constitute the making of a decision
referred to earlier are to be applied to the facts of this case
it
seems clear to me that the applicant does not even pass hurdle No. 1.
There was no formal application by him to the respondent
to which
the respondent could have replied. The gathering of further
information to come to a decision broke down because of
the
respective parties’ intransigent views. Thus, the gathering of
information contemplated in step 2, had also not yet
commenced.
Furthermore, if the analysis proffered by Baxter
supra
,
is applied to this case, it is clear that no prejudice has been
suffered by the applicant. This is so because ultimately the
respondent and not the court, is to decide whether the applicant is
guilty of any misconduct.
[32]
In
my view the final nail in the coffin of the applicant’s case is
to be found in the fact that the allegations made in par.
74 of the
answering affidavit stand uncontradicted. The applicant’s
reply to these allegations are to be found in par.
36 of the replying
affidavit. No counter allegations of fact are made. Applicant
confines himself to a reiteration of his legal
contentions that he
had not been afforded an opportunity to explain his position. That
constitutes no answer to the factual
allegations made in par. 74 of
the answering affidavit.
[33]
That
being the case I am of the view that the application cannot succeed.
At the very best for the applicant there is a dispute
as to whether
or not a decision was made. This dispute cannot be resolved on the
papers, and therefore it must be resolved in
favour of the
respondent.
9
COSTS
Mr.
Marcus asked for costs to follow the result and
an
order to include the costs occasioned by the employment of 2 counsel.
I am of the view that this would be the correct order
to make.
The applicant also employed 2 counsel. The matter, if it had not
been disposed of on the first leg of the inquiry,
would have
constituted a very complicated matter, justifying the employment of 2
counsel.
The following order
is made:
The application is
dismissed with costs.
The costs are to
include the cost occasioned by the employment of 2 counsel.
The
costs are also to include the costs which were reserved on 2
nd
February 2009.
THUS
DATED AND SIGNED AT JOHANNESBURG ON THIS ……….
DAY OF
JULY
2009.
__________________________
C.J.
CLAASSEN
JUDGE OF THE HIGH COURT
Adv.
For the Applicant : Adv.
G.
Kairinos and Adv. J. Partington.
Attorneys
for Applicant: George Michaelides Attorneys
Adv
for Respondent: Adv. G.J. Marcus SC and Adv. A.C. Dodson
Attorneys
for Respondent: Webber Wentzel Inc.
The matter was
argued on 28 May 2009.
Judgment
Date: 31
st
July 2009.
BUGWHAN
K.S. v JSE 08/32943
This
case dealt with the question whether an administrative act
constituted a “decision” as contemplated by common-law
and the
Promotion of Administrative Justice Act No. 3 of 2000
. It
deals with the attributes and elements of administrative actions
which are required to constitute a decision which would be
reviewable.
1
See
also J.R. de Ville, “Judicial Review of Administrative Action
in South Africa”, revised first edition, pages 448
–
453.
2
[2001] UKHL 26
;
[2001] 3 All ER 433
(HL) at 477(a).
3
See
annexure “LC21” attached to the answering affidavit.
4
See
par. 71 of respondent’s answering affidavit.
5
See
par. 72 of respondent’s answering affidavit.
6
See
Annexure “KB2” attached to the applicant’s
founding affidavit.
7
See
Annexure “KB4” attached to the founding affidavit.
8
See Annexure “KB6” attached to the founding
affidavit.
9
See
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd.
[1984] ZASCA 51
;
1984
3 SA 623
AD at 634 D – 635 C;
SA
Veterinary Council v Mrs. Szymanski
2003 4 SA 42
(SCA) at paragraphs [23] – [31];
S.A.
Veterinary Council and Others v Veterinary Defence Association
2003 4 SA 546
(SCA) at paragraphs {38] – [39].