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2024
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[2024] ZAECMHC 38
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Ninja Protection Services & Security and Another v Private Security Regulatory Authority (2047/2024) [2024] ZAECMHC 38 (30 May 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(
EASTERN
CAPE LOCAL DIVISION, MTHATHA)
Case
No: 2047/2024
Heard:
1505/2024
Delivered:
30/5/2024
In the matter between:
NINJA PROTECTION
SERVICES & SECURITY
(PSIRA REG. NO.
2261662) 1
ST
APPLICANT
THAMSANQA STEVEN HAKO
(PSIRA REG. NO.
2074755)
2
ND
APPLICANT
and
PRIVATE SECURITY
REGULATORY AUTHORITY RESPONDENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives via e-mail. The date and
time
for hand-down is deemed to be
09
H
30
on
30 May
2024.
REASONS FOR THE ORDER
MJALI J
1.
On 15 May 2024 immediately after hearing
the matter I gave an order dismissing the application with costs on
the scale C. I indicated
that the reasons would follow. This judgment
is aimed at providing reasons for that order.
2.
The applicant approached this court on an
urgency basis seeking an order suspending the decision of the
respondent to immediately
suspend the registration of the first
respondent and second applicant with the respondent, pending an
appeal to be lodged by the
applicants in terms of section 30(1) of
the Private Security Regulation Act No.56 of 2001 as well as the
review process that was
to be launched. The applicants also sought an
order authorising them to operate as security service providers
pending the finalisation
of the appeal. They also sought a punitive
cost order against the respondent.
3.
The first applicant is a security company
registered in terms of the laws of South Africa and provides security
predominantly in
the area of the Eastern Cape. The second applicant
is the Director of the first applicant. The respondent is the private
security
regulatory body established in terms of the Private
Regulatory Security Industry Regulation Act No. 56 of 2001(The PSIRA
Act).
4.
Following upon the information it had at
its disposal the respondent addressed a letter to the applicants on
15 March 2024, calling
upon them to submit written representations
answering to the allegations and stating reasons as to why their
registration as service
provider should not be suspended. Upon
consideration of the representations dated 4 April 2024, the
respondent nevertheless decided
to suspend the registration of the
applicants pending the outcome of the Code of Conduct Enquiry. A
letter in this regard was penned
to the applicants on 25 April 2024.
It is not in dispute that the applicants’ attention to the
letter was drawn when it was
called to attend to the local offices of
the respondent and served with the letter of suspension on 10 May
2024.
5.
The aforesaid letter of suspension informs
the applicants inter alia that following the consideration of their
representations by
the Industry’s Regulatory Sub-Committee, it
was the view of the committee that the facts presented fall within
the ambit
of the provisions of section 26(1) of the PSIRA Act. That
section empowers the respondent to suspend the registration of the
security
service provider pending the conclusion of an investigation
or enquiry by the authority into the alleged improper conduct.
Further
that it was concluded that it would be in the best interests
of the Private Security industry to suspend their registration as
security service provider. The applicants were thus required in terms
of section 26(6) of the PSIRA Act to return to the Authority
the
certificate of registration that was issued to them in terms of
section 25 of the PSIRA Act. Importantly, the applicants were
informed of the right to appeal the decision to suspend in terms of
section 30(1), the time within which to launch the appeal as
well as
the address to which the appeal were to be submitted.
6.
This application is a sequel to that
suspension of the operating licence of the first and second
applicants pending the envisaged
investigation into the alleged
improper conduct by the applicants.
7.
The application is opposed on the grounds
that the applicants have not made a case for the relief sought. In
this regard the respondent
argued that the applicants have not
pleaded any case for either interim or final relief. No prima facie
or clear right has been
pleaded in the applicants’ founding
affidavit.
8.
Considering the fact that the applicants’
relationship with the first respondent is governed by the PSIRA Act
and that the
applicants are subject to the provisions of that Act in
terms of which the respondent exercised its authority, it is
difficult,
if at all possible, for the applicants to claim any right
albeit prima facie or clear, to have the decisions taken in terms the
Act suspended. That is particularly so when one considers that all
the challenges put up by the applicants on the validity of the
decision taken or procedural fairness namely, that it is
unreasonable, irrational, or unjustifiable. Further it constitutes an
unlawful act, violates the constitutional rights of NINJA’s
clients to private security and is in conflict with the PSIRA’s
legislative mandate, simply do not hold water.
9.
On
the issue of the rationality or otherwise of the decision to suspend
the registration of the applicants, it is crucial to bear
in mind
that the respondent is the registering authority with a primary
objective of regulating the private security industry and
to exercise
effective control over the practice and occupation of security
service providers. It derives that mandate from the
PSIRA Act. The
applicants are as described in paragraph 3 of this judgment
registered with the respondent and subject to the PSIRA
Act which
governs their relationship with the respondent as well as the manner
of conducting their business. The respondent had
received information
pertaining to allegations of conduct by the applicants which in its
view is in contravention of the provisions
of the PSIRA Act. The
applicants’ registration was suspended as a precautionary
measure pursuant to them being afforded an
opportunity to make
representations to influence that decision. Quoting from the decision
of the Constitutional Court in Long v
South African Breweries
[1]
,
that “
where
the suspension is precautionary and not punitive, there was no
requirement to afford ………..an opportunity
to
make representations”,
the respondent contends that there was no obligation on it to request
for representations from the applicants. Bearing all the
aforesaid
facts, the argument that the decision to suspend the registration of
the applicants was irrational has no basis and must
fail. On the same
considerations, the same goes for the argument that the decision to
suspend the registration was unreasonable
and unjustifiable.
10.
As regards the argument that the decision
to immediately suspend the registration was unlawful, the applicants’
only basis
thereof is that it lacks practicality by not taking
account of the many clients that would be without security services.
It is
not in dispute that the PSIRA Act makes provision to suspend
the registration of the service provider under certain circumstances
and further that the circumstances under which the impugned decision
was taken fall squarely within the provisions of the Act.
Further, it
is not in dispute that the respondent acted in terms of that Act in
this case. There is no challenge to the validity
of the Act itself.
The return of the certificate of registration is not a decision that
was taken by the respondent but is a consequence
provided for by the
Act itself. Regard being had to the above facts, the argument that
the decision is unlawful must fail. On the
same basis the same can be
said about the argument that the decision is in contravention of the
PSIRA Act.
11.
That
being the case it is unclear on what the basis the appeal or review
foreshadowed in paragraph 2 of their Notice of Motion can
be
launched. The fact that the applicants’ challenge on the
lawfulness of the decision to suspend has flopped, is as good
as no
challenge to the lawfulness and is fatal to the application
[2]
.
12.
There are yet other hurdles that compound
the problem for the applicants. The first one is that this
application was launched without
taking advantage of the appeal
process that is provided for in the PSIRA Act. In the very letter of
suspension, the applicants’
attention was drawn to the
availability of that process as well as the procedure to be followed
should the applicants wish to take
that route. In the applicants’
own case that route has not been followed. As such the applicants do
have an adequate alternative
remedy in terms of the provisions of the
PSIRA Act to have the suspension lifted. That would be an adequate
redress considering
the relief sought in the notice of motion.
13.
In the view that I take of this matter, I
do not consider it necessary to address other issues as the
application falls flat on
the issues already addressed in this
judgment.
14.
On the issue of costs. The general
rule is that costs follow the event. I find no reason to deviate from
the general rule. The applicants
brought this ill-conceived
application on an urgency basis without properly following the
internal processes. This kind of behaviour
is something that our
court should frown upon and show their disapproval by means of
punitive cost orders. The applicants
were warned very early in
the answering affidavit of this fact and that a punitive cost order
will be sought yet they persisted
with the application. There is no
reason that the respondent in the circumstances of this matter should
be left out of pocket and
not be able to fully recover it fees.
15.
In the result the following order shall
issue.
The application is
dismissed with costs on the scale C.
__________________________
GNZ MJALI
JUDGE OF THE HIGH
COURT.
On
behalf of the applicant
Adv
Matera
Instructed
by
Notyesi
Attorneys
On
behalf of the respondent
Adv
Mvubu
Instructed
by
Seanego
Incorporated
[1]
(CCT61/18)
[2019 ZACC 7
;
2019 (5) BCLR 609
(CC);2019 6 BLLR515(CC) (19 February
2019) para 24.
[2]
Democratic
Alliance and Another v Public Protector of South Africa and Others
(CCT252/22; CCT299/22[2023] ZACC 25(13July 2023)
para103.