Copper Curve Investments CC t/a Naledi Private Test Station v Premier of the Free State and Another (2196/2005) [2005] ZAFSHC 12 (14 October 2005)

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[2005] ZAFSHC 12
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Copper Curve Investments CC t/a Naledi Private Test Station v Premier of the Free State and Another (2196/2005) [2005] ZAFSHC 12 (14 October 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 2196/2005
In
the matter between:-
COPPER
CURVE INVESTMENTS CC t/a
Applicant
NALEDI
PRIVATE TEST STATION
(Registration
No. CK2004/045568/23)
and
THE PREMIER OF THE
FREE STATE
1
st
Respondent
MEC
: FOR TRANSPORT ROADS & PUBLIC
2
nd
Respondent
WORKS,
FREE STATE PROVINCE
_____________________________________________________
CORAM:
HANCKE
J
et
C.J. MUSI J
_____________________________________________________
HEARD
ON:
10
OCTOBER 2005
_____________________________________________________
JUDGMENT
BY:
HANCKE J
_____________________________________________________
DELIVERED
ON:
14 OCTOBER 2005
_____________________________________________________
[1] The applicant applies
for the review and setting aside of the second respondent’s
decision to refuse to register the applicant
in terms of regulation
130 issued in terms of the National Road Traffic Act, No. 93 of 1996
(“the Act”).
[2] It is the applicant’s
case that before he started off, he engaged the services of an expert
in this field who was involved in
various applications for the
registration of private testing stations throughout the country. The
expert advised the applicant that
according to the Act and the
Regulations, the applicant was obliged to first set up a proper test
station, fully equipped with personnel,
equipment and quality
documentation at the premises, whereafter he can apply for the
registration of the private test station to
the second respondent who
would thereafter authorise an inspection from the South African
Bureau of Standards (SABS).
[3] The applicant alleges
that he purchased a premises for the amount of R205 147,60.
Thereafter he erected and set up a private
test station according to
the prescribed requirements by
inter alia
erecting a building
and a walk-in inspection pit; he installed all the necessary
equipment at the cost of about R583 567,71. After
he completed the
set-up, he offered employment to six employees. Thereafter he made
an application to the second respondent on 19
January 2005.
[4] After his application
was submitted, he was informed by an employee of the second
respondent that the second respondent instructed
the SABS as required
and prescribed by the Act and Regulations to inspect, evaluate and
recommend the private test station, which
was done on 24 February
2005. After the inspection the SABS recommended that the applicant
should be registered as an A grade private
testing station.
[5] Since the said
recommendation the applicant made numerous inquiries (in total more
than 300 telephone calls), to the office of
the second respondent in
an attempt to find out whether the applicant was registered, but
without success. According to the applicant’s
expert, Mr. van der
Nest, a similar application and procedure in other provinces, which
is also governed by the same National Act
and Regulations, usually
takes between three to seven days to finalise. About two and a half
months later, on 9 May 2005 the applicant
was informed that the
second respondent refused to register the applicant as a private test
station.
[6] After the applicant
approached his attorney the respondents were requested on 12 May 2005
to give reasons for his decision to
refuse to register the applicant
as a private test station. Despite the intervention of Mr. Venter,
the legal advisor of the first
respondent, no reasons were
forthcoming. On 20 May 2005 Mr. Venter confirmed that there were no
other internal remedies and procedure
to follow in accordance with
the Promotion of the Administrative Justice Act, No. 3 of 2000 (PAJA)
and the only remedy available
to the applicant was to bring an
application for review to this court. The present application was
then filed on 25 May 2005. In
the meantime the second respondent
notified the applicant in writing on 23 May 2005 that the application
was not approved, whereafter
reasons for the decision was furnished
on 30 June 2005. In reply thereto the applicant filed a
supplementary affidavit dealing with
the allegations contained in the
reasons dated 30 June 2005.
[7] The second respondent
opposes the application mainly on the following two grounds:
1. Insofar as the
applicant seeks to be furnished with the reasons for the second
respondent’s decision, it ought to have proceeded
in terms of PAJA.
The application is therefore premature by reason of the applicant’s
failure to follow the prescribed process
outlined in PAJA; and
2. The second respondent
acted within the confines of the Act and the Regulations and
correctly came to the conclusion that he was
not satisfied that the
prescribed requirements for registration of the testing station
concerned have been met.
[8] As far as non
compliance with PAJA is concerned, section 5 of PAJA reads as
follows:
“
5. (1) Any person whose rights have
been materially and adversely affected by administrative action and
who has not been given reasons
for the action may, within 90 days
after the date on which that person became aware of the action or
might reasonably have been expected
to have become aware of the
action, request that the administrator concerned furnish written
reasons for the action.
(2) The administrator to whom the
request is made must, within 90 days after receiving the request,
give that person adequate reasons
in writing for the administrative
action.....”
[9] As to a reduction of
the 90 days period referred to in section 5(2) of PAJA, section 9
reads as follows:
“
Variation
of time
9. (1) The period of –
(a) 90 days referred to in section 5
may be reduced; or
(b) 90 days or 180 days referred to
in sections 3 and 7 may be extended for a fixed period,
by agreement between the parties or,
failing such agreement, by a court or tribunal on application by the
person or administrator
concerned.
(2) The court or tribunal may grant
an application in terms of subsection (1) where
the interests of
justice so require
.”
(My underlining.)
[10] It is clear that the
time limits referred to in section 5 of PAJA are indicative/directory
and not peremptory. See
Judicial Review of Administrative Action
in South Africa
(Revised First Edition) by J R de Ville p. 292.
[11] Having regard to the
considerable time wasted since the applicant applied for
registration; the date on which the decision was
taken; the
considerable amounts of money expanded by the applicant; the fact
that the applicant has to maintain the established test
station at a
monthly expense of approximately R40 000,00 without generating any
income from it; the fact that the second respondent
eventually
furnished reasons for his decision, and the fact that there is no
prejudice, I am of the view that it is in the interests
of justice
that the applicant’s non-compliance should be condoned.
[12] As for the merits:
The court’s power to review any administrative action derives from
section 33 of the Constitution of the
Republic of South Africa, Act
108 of 1996 and PAJA, which has codified the grounds of judicial
review to a large extent. An applicant
who seeks to review
administrative action is generally required to identify both the
facts and legal basis upon which his or her
cause of action is based.
BATO STAR FISHING
(PTY) LTD v MINISTER OF ENVIRONMENTAL AFFAIRS AND OTHERS
[2004] ZACC 15
;
2004
(4) SA 490
(CC).
[13] The
onus
is
on the applicant to establish the grounds on which a court can review
a functionary’s decision.
KIMBERLEY GIRLS
HIGH SCHOOL v HEAD, DEPARTMENT OF EDUCATION NORTHERN CAPE PROVINCE
AND OTHERS
2005 (5) SA 251
(NC).
[14] The registration of
testing stations is provided for in chapter V of the National Road
Traffic Act, No. 93 of 1996 (“the Act”).
Section 38 provides
that any person desiring to operate a testing station shall apply in
the prescribed manner to the MEC concerned
for the registration of
such testing station.
[15] In terms of section
39 if the MEC is satisfied that the prescribed requirements for
registration of the testing station concerned
have been met, he or
she shall register and grade such testing station on the conditions
and in the manner prescribed. Regulation
130 deals with the manner
of registration of testing stations and reads as follows:
“(1) The MEC
shall,
upon receipt of an application for
registration of a testing station made in terms of regulation 128 –
require from the inspectorate of
testing stations to –
evaluate the testing station
concerned according to code of practise SABS 0216 ‘Vehicle test
station evaluation’; and
recommend the appropriate grading
thereof in terms of regulation 132;
(b) with due regard to the
evaluation and recommendations of the inspectorate of testing
stations, satisfy himself or herself that
the testing station
concerned complies with the requirements referred to in regulation
129; .......
(2) (a) If the MEC is satisfied as to
the suitability of the testing station in terms of subregulation (1),
he or she shall –
(i) subject to the conditions he or
she may deem fit, register and, in terms of regulation 132, grade
such testing station; .....
(b) If the MEC is not satisfied as
to the suitability of the testing station in terms of subregulation
(1), he or she shall refuse
to register such testing station, and
shall notify the applicant accordingly."
[16] By way of a letter
dated 23 May 2005 the second respondent notified the applicant’s
attorney as follows:
“Currently be
informed that having considered the application by your client I am
not satisfied as to the suitability of the testing
station and
consequently the application is not approved.”
[17] Before reaching a
decision the second respondent does not personally conduct
investigations. He states that it is standard practice
and has
become customary that officials of the SABS, such as T.H. Nxumalo,
would conduct the inspections, alternatively, investigations
and
prepare a report in terms of which they would set out their
evaluation of the testing station concerned and recommend the
appropriate
grading thereof.
[18] According to Mr.
Nxumalo, a senior surveillance auditor: Vehicle testing stations, the
said testing station was inspected in
accordance with the
requirements as promulgated in the
National Road Traffic Act and
Regulations regarding the opening and functioning of a testing
station. The date of inspection was 2005-02-22/24. His report is
dated 24-02-2005. The following is stated
inter alia
in his
report:
“4. FINDINGS
4.1 A total of 5 findings were made
during the inspection of which none were observations and
findingsreport is herewith enclosed.
4.2 A copy of the findingsreport
was handed to the management of the testing station.
RECOMMENDATION
5.1 Registration as a grade A testing
station is recommended.
CORRECTIVE ACTION
6.1 Corrective action correspondence
from the testing station was received on 24-02-2005 and the
corrections were verified by the
inspectorate of vehicle testing
stations.”
[19] In reaction to the
said report, the second respondent states the following:
“I have not
received any report, as it is customary, that sets out the
verification of the corrections by the so-called inspectorate
of
vehicle testing stations. It is apparent from Nxumalo’s report
that he did not personally verify the corrective action that
was
allegedly taken as he states that the verification was made by the
inspectorate of vehicle testing stations. At the time of
the posing
to this affidavit, no objective proof had been submitted by the
applicant, or any one that such verification was in fact
done.”
[20] It is also important
to note what was stated by Mr. Nxumalo in his affidavit, namely that
he confirms that the applicant complied
with all requirements as set
out in the Act, that there were no deficiencies and/or shortcomings
in the equipment of the applicant’s
private testing station and
that his report was properly submitted and there was compliance with
all the prescribed prequisites in
the Act and Regulations.
[21] It is clear that the
second respondent never afforded the applicant an opportunity to
submit proof of, nor Mr. Nxumalo to clear
up, anything which was not
clear to the second respondent. On a proper evaluation of Mr.
Nxumalo’s report it is clear that corrective
action have been taken
and that Nxumalo recommended the registration of the applicant as a
grade A testing station.
[22] It is important to
note that Mr. Nxumalo was the second respondent’s agent who
conducted the inspections on his behalf. Consequently,
the applicant
cannot be blamed if Mr. Nxumalo’s report is allegedly indistinct,
unclear or vague in any respect. To make a finding
that the
applicant was not suitable for registration on that basis is, in my
view, so unreasonable that no reasonable person could
have so
exercised the power or performed the said function, as envisaged by
section 6(2)(h) of PAJA.
BATO STAR FISHING
-case
supra
at par. [44]. It is clear that the second respondent’s action
is not rationally connected to the information before him. (See
6(2)(f) (cc) of PAJA). It also constitutes action that was
procedurally unfair as envisaged by section 6(2)(c) of PAJA.
[23] Mr. Joubert, on
behalf of the applicant, submitted that if the usual order is
granted, namely to set aside the respondent’s
decision and to have
the matter remitted to the second respondent, nothing is to be
gained. According to his argument it is clear
that there is a lack
of fairness and a reasonable possibility of prejudice to the
applicant if the matter is referred to the second
respondent for
reconsideration.
GAUTENG GAMBLING BOARD v SILVERSTAR
DEVELOPMENT LTD AND OTHERS
2005 (4) SA 67
(SCA) at 79 – 80:
De Ville op. cit. p. 204. In view of the circumstances set out above
I am of the view that the present application
should be regarded as
“exceptional” within the meaning of section 8(1)(c)(ii)(aa) of
PAJA. It is also clear that the applicant
has complied with all the
prescribed requirements set out in the regulations and that this
court is entitled to review the application
and grant the relief
claimed.
[24] As far as the first
respondent is concerned: the application was not opposed by the first
respondent; the applicant is therefore
not entitled to an order of
costs against the first respondent.
[25] In view of the
conclusion reached by me, it is not necessary to deal with the other
arguments advanced on behalf of the applicant.
[26] Consequently the
following orders are issued:
1. An order is granted
in terms of prayers 1 and 3 of the notice of motion.
The second respondent is
ordered to pay the costs of the application.
________________
S.P.B. HANCKE, J
I
agree.
__________
C.J. MUSI, J
On
behalf of applicant : Adv. D.J. Joubert
Instructed
by:
Naudes
Attorneys
BLOEMFONTEIN
On
behalf of 2
nd
respondent : Adv. T.J.B. Bokaba
Instructed
by:
The
State Attorney
BLOEMFONTEIN
/sp