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[2024] ZAECMHC 73
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Umahluko Protection Security (Pty) Ltd v Private Security Industry Regulatory Authority (2154/2024) [2024] ZAECMHC 73 (3 September 2024)
FLYNOTES:
CIVIL
PROCEDURE – Interdict –
Security
industry authority
–
Applicant’s
registration suspended pending investigation – Applicant
seeking upliftment of suspension pending
appeal –
Allegations of misconduct were serious – Authority exercised
discretion in suspending registration –
No unlawful conduct
by the authority – Court unable to interfere with powers
preserved for authority in terms of Act
– Application
dismissed – Private Security Regulatory Act 56 of 2001, ss
26(1) and 26(8).
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION,
MTHATHA)
CASE NO: 2154 / 2024
In the matter between:
UMAHLUKO PROTECTION
SECURITY (PTY) LTD
Applicant
REG NO. 2022 / 738147 /
07
And
PRIVATE SECURITY INDUSTRY
REGULATORY
Respondent
AUTHORITY
JUDGMENT
KUNJU AJ
A.
Introduction
[1]
What Maya JA (as she then was) said in
Private
Security Industry Regulatory Authority V Anglo Platinum Management
Services Ltd
[2007] 1 All SA 154
(SCA)
reverberates
throughout this application and it bears repeating. She aptly said:
“
[24]
It is so that there is a legitimate and compelling public interest in
the control of the large and enormously powerful private
security
industry. This is to ensure, for example, that security officers have
no links to criminal activities, are properly trained
and are subject
to proper disciplinary and regulatory standards and avoid any abuses
which might be perpetrated by security officers
against the
vulnerable public. There is therefore a compelling need for vigilance
on the Authority’s part to ensure that
the objects of the Act
are not undermined”.
[2]
The above quoted statement finds resonance in the
circumstances of this application. The question that is raised in
this application
is whether the mere lodgement of an appeal against a
suspension of an operating licence in terms of Section 26(1) of the
Private
Security Regulatory Act no. 56 of 2001 (the Act) gives rise
to the suspension being uplifted.
[3]
This application has been brought by the applicant
against the respondent consequent to a suspension of its operating
licence as
a security company.
[4]
In taking up the cudgels on behalf of the
applicant, the applicant’s legal representatives brought an
urgent application before
this Court, crafted along the following
terms:
“
[1]
Dispensing, so far as needs be, with the forms of service provided
for in the uniform rules
of court and disposing of this application
at such time and place and in such manner and according to such
procedure as this court
deems fit in terms of the rule 6 (12)
of the uniform rules.
[2]
It is declared that the applicant
has
formally lodged and noted an appeal
under
reference number: SEC26/UmahlukoProc.Sec/4563009 in terms of Section
30 (1) of Private Security Industry Regulatory Act No.
56 of 2001 on
16 May 2024.
[3]
The respondent is directed in terms of section
26 (8) of the Private Security Industry Regulation Act No. 58 of 2001
to uplift the applicant’s
suspension of registration
status
dated 25 April 2024,
pending the
finalization of an appeal formally lodged
and
noted under reference number SEC26/UmahlukoPro.Sec/4563009 on 16 May
2024 in terms of section 30(1) of Private Security Industry
Regulation Act No. 56 of 2001 on 16 May 2024.
[4]
The respondent is interdicted and restrained
from suspending and withdrawing the registration number status of the
Applicant as
a registered security service provider
pending
the finalisation of judicial review, if any, filed within 180 days
from the date the respondents dismisses the appeal mentioned
above
,
in terms of the Promotion of Administration Justice Act No. 3 of
2000.
[5]
Directing the Respondent to pay the costs of
this application on a scale as between attorney and client”.
B.
Background facts
[5]
The uncontested background facts set out in the
applicant’s founding affidavit are:
[5.1] the applicant is a
registered private security company with offices situated at Mt
Ayliff, Eastern Cape.
[5.2] during January
2023, the applicant’s services were hired by Uncedo Taxi
Association, to provide security services. This
entailed escorting
taxi owner.
[5.3] due to lack of
resources and sufficient personnel the applicant engaged
V. Bhengu
Security Services
in order to assist the applicant in discharging
its duties for Uncedo Association. In doing so, the applicant
concluded a joint
venture agreement with V. Bhengu Security Company
for the provisioning of the services required by Uncedo Association.
[5.4] while they were
providing the services by escorting and protecting the taxi owners of
Uncedo and its passengers, the applicant
and V. Bhengu Securities
(the security guards) were allegedly brutally attacked by taxi owners
and drivers of Boarder Alliance
Taxi Association of Port St Johns,
Eastern Cape.
[5.5] It would appear
that there emerged a shooting incident between the association and
the members of the applicant. As a culmination
of this shooting
incident three (3) employees of the applicant were killed. One taxi
driver was also killed.
[5.6] On 3 April 2024,
the applicant received a notice from the respondent calling upon it
to show cause within seven (7) days of
receipt of the notice why the
registration certificate and the business operations of the applicant
were not liable to be suspended
pending an inquiry or investigations
contemplated under section 26 of PSIRA Act No. 56 of 2001 (the Act)
in connection with their
involvement in the incident mentioned in
paragraph 5.5 above.
[5.7] The discernible
infractions and transgressions which were being investigated and to
which a response was required are summarised
as follows:
[5.7.1] during the
shooting incident under investigations applicant used firearms
registered under VBhengu Security Services; and
[5.7.2] the applicant
entered into an unregistered joint venture agreement with VBhengu
Security Services for the provisioning of
firearms.
[5.8] On 8 April 2024,
the applicant’s attorneys in response to a notice to show cause
mentioned above, on behalf of the applicant,
addressed a letter and
the most relevant part thereof is quoted hereunder:
“
[3]
It is admitted that there is a contractual agreement between our
clients wherein
Umahluko
Security Services requested VBhengu Security Services
to
assist the company as the company was not that much experienced and
it
lacked
some resources which VBhengu had
”
.
[5
.
9] The response
also denied any conduct on its part on the date alleged that was
inconsistent with the regulations governing it.
Instead, it alleged
that it acted in accordance with the regulations. In turn, it pleaded
with the respondent not to suspend its
registration certificate and
business operations. No motivation was offered for the plea.
Importantly, at this stage suspension
had not taken place.
[5.10] On receipt of the
response stated above the respondent on 7 May 2024 sent an email to
the applicant through his attorney
informing the applicant about a
decision taken on 11 April 2024 to suspend the registration of the
applicant as a security provider
pending the outcome of the
inquiry on the improper conduct of the applicant
. The respondent
placed reliance on the provisions of section 26 of the Act for its
actions. By operation of law (
ex – lege)
the provisions
of Section 26(3) were activated as soon as the suspension took
effect.
[5.11] Significantly,
paragraph 5 of the notice of suspension mentioned in the preceding
paragraph states:
“
[5]
It is on this basis that the committee believed that it will be in
the best interest of the industry to suspend your registration
status
and afford you the opportunity to present your case before a tribunal
on the following reasons:
“
[5.1]
the nature of the allegations levelled against you are of such a
serious nature that it will be undesirable to the public
and the
industry itself, that your active participation in the industry will
cause instability”.
[5.12] It was brought to
the attention of the applicant that it was available to it to appeal
the decision within a period of 60
days from the date of service of
the decision and lodge its appeal with the Minister of Police –
using the prescribed forms.
In this regard, applicant’s
attention was drawn to the provisions of section 30 (1) of the Act.
[5.13] On 14 May 2024,
the same day the certificate of urgency and the notice of motion were
issued, an appeal adverted to in the
letter of suspension was also
served. I should record that the appeal does not constitute an
application to uplift a suspension.
[5.14] The application
got to be opposed and it is now before this Court on urgent basis.
C.
The applicant’s contentions
[6]
The applicant contends that this is an application
that meets the provisions of rule 6 (12) of the uniform
rules of Court.
The applicant applies that it be heard by this Court
on urgent basis.
[7]
The applicant contends that it has made out as
case for an interim interdict.
D.
The respondent’s contentions
[8]
The respondent’s answering affidavit is
devoted only on points of law. The points of law raised in response
to the application
are:
[8.1]
lack of jurisdiction;
[8.2]
non- compliance with the provisions of section 35 of the General Law
Amendment Act 62
of 1955 (the General law amendment Act); and
[8.3]
lack of urgency.
[9]
The respondent argues that this application is
without merit and it stands to be dismissed with costs.
E.
The discussion
(a)
Points of law
[10]
I deem it appropriate that I entertain the points
of law which have been raised by the respondent before I deal with
the merits
of this application. I hasten to do so.
(i)
Jurisdiction
[11]
The respondent under this point argues that in its
observation the basis upon which this Court is alleged to have
jurisdiction is
that the Uncedo and Border Alliance altercation and
incident took place in Port St Johns, a town that falls within the
area of
jurisdiction of this Court.
[12]
In its view, the cause of action relevant to this
matter is not the altercation or the incident that took place in Port
St Johns
but the decision to suspend the operations of the applicant.
It argues that the decision was taken in Gauteng province. In
paragraph
7.2 of the answering affidavit the contention of the
respondent is:
“
[2.7]
It is my contention that the cause of action is the decision of the
Regulatory sub – committee to suspend the applicant
after
having established prima facie case of improper conduct, and not the
shooting incident that occurred in Port St Johns”.
[13]
In paragraph 2.9 of the answering affidavit
reference is made to section 21 (1) of the Superior Court Act 10 of
2013. The section
in relevant parts provides:
“
21
(1) In relation to
all causes arising … within, its area of jurisdiction
and all
other matters of which it may according to law take cognisance …”
[14]
In the answering affidavit and in argument before
me nothing was said about the latter part of the provisions of the
section i.e
“
and all other matters
of which it may according to law take cognisance
”
.
In short, in my view the Section is not properly interpreted by the
Respondent. More on this below.
[15]
I am not at all convinced that the point of
jurisdiction enjoys any merit. It is destitute of merit on the
following summarized
grounds:
[15.1] the relief sought
is an interdict against the respondent in respect of facts which
originated from this Court. The word “causes
arising”
have been interpreted as signifying not “
causes of action
arising
”, but legal proceedings duly arising, that is
proceedings duly arising or originating within the area of
jurisdiction according
to common law (
Vulindlela Furniture MNRS v
MEC, Department of Education and Culture Eastern Cape
1998 (4) SA 908
(TK) @ page 919 J – 920 A).
[15.2] The order sought,
if granted will be implemented within the jurisdiction of this Court.
Justice
Van Zyl DJP
in the matter of Vulindlela Furniture
above, at page 924 – aptly stated the position as follows:
“
If
the relief claimed is granted, the effect thereof would be to order
the respondents to carry out their statutory functions and
obligations within this Court’s area of jurisdiction…”
“
For
these reasons I am of the view that sufficient jurisdictional
connecting factors exist and that the cause has arisen within
the
area of jurisdiction of this Court. In my view every consideration of
convenience and common sense dictates that this Court
has
jurisdiction to hear and determine the applicant’s cause”.
[15.3] As said in
Cordinant Trading CC v Daimler Chrysler Financial Services
2005
(6) SA 205
SCA
– para 11:
“
Plainly
what is meant in the above interpretation is
that
causes arising does not refer to causes of action but to all factors
giving rise to jurisdiction under the common law
”
.
[15.4]
Alkema J
in
Zokufa v Compuscan (Credit Bureau
2011 (1) SA 272
(ECM)
with
his extraordinary analytical skill illustrates the issue at hand as
follows:
“
[33]
The approach generally in considering jurisdictional connecting
factors is now, I believe, firmly established by the Supreme
Court of
Appeal. The enquiry depends on (a) the nature of the proceedings, (b)
the nature of the relief claimed therein, or (c)
in some cases, both
on (a) and (b). In Estate Agents Board v Lek (supra) at 1063 F,
Trollip JA, said: “I therefore turn to
consider whether the
court a quo had jurisdiction in these proceedings according to the
general principles of our law. That depends
on (a) the nature of the
proceedings, (b) the nature of the relief claimed therein, or (c) in
some cases, both (a) and (b).
[34]
The learned Judge proceeded to point out at 1063H-1064A that approach
(b)
is based on the principle of effectiveness;
but that it
is possible for one court to have jurisdiction based on the nature of
the proceedings, and for another based on the
nature of the relief
claimed
. I turn first to the nature of the proceedings in this
application.
[61]
In my respectful view, the preferred approach
which accords with the accepted interpretation of s.19(1) and with
general principle,
is advocated by Joubert in LAWSA (First Reissue)
(Vol. 11) p.287 para 305. Relying on Mtshali (supra), Kibe (supra)
and Ex parte
Hay Management Consultants 19 (Pty) Ltd
2000 (2) All SA
592
(W), the learned author on the subject (Harms)
states
that if the requirements for the grant of an interdict are satisfied
by facts within the territorial jurisdiction of a High
Court, the
court will possess jurisdiction to decide the matter
.
For the reasons more fully discussed above, I respectfully agree with
this approach and I intend to follow it in this case.
[62]
I therefore conclude that in interdict
proceedings a court will have jurisdiction if the requirements for
the grant of an interdict
are satisfied by facts within the
territorial area of jurisdiction of that court. I believe, with
respect, that this is the only
test which should be applied in
deciding jurisdiction in interdict proceedings
”
.
[16]
All the facts in support of the interdict sought
are located within the jurisdiction of this Court. The facts which
gave rise to
the withdrawal of a certificate of operation occurred
within the jurisdiction of this Court. If successful, the interdict
will
reverse that which took effect within the jurisdiction of this
Court and the order will also be implemented in this area of
jurisdiction.
[17]
The suspension of the applicant’s business
operations occurs and is felt within the jurisdiction of this Court.
If the order
is granted the resumption of applicant’s business
activities or operations will take place within the jurisdiction of
this
Court. Thus, the nature of the proceedings brought gives this
Court jurisdiction to hear this application. So is the relief sought.
With these observations I grapple to appreciate and understand the
contention against the jurisdiction of this Court raised by
the
respondent.
[18]
I am in disagreement with the interpretation of
the phrase “cause of action” contended for by the
respondent, I hold
a view that the Johannesburg High Court has a
concurrent jurisdiction with the Mthatha High Court over this matter.
For these reasons,
the point of lack of jurisdiction taken by the
respondent is dismissed.
(ii)
Lack of urgency
[19]
Suspension of business operations and withdrawal
of operating licence renders this matter urgent. These are matters
that cannot
wait for too long.
[20]
I am disagreement with the contention of the
respondent that this matter is not urgent
[21]
I am persuaded that in accordance with the
provisions of rule 6 (12) a case is made out for the abridgement of
Court rules.
(iii)
Non – compliance with General Law Amendment
Act 62 of 1995
[22]
Section 35 of the General Law Amendment Act
provides:
“
35
Interim interdicts against the State
Notwithstanding
anything to the contrary contained in any law, no court shall issue
any rule nisi operating as an interim interdict
against
the
Government of the Union including the South African Railways and
Harbours Administration or the Administration of any Province,
or any
Minister, Premier or other officer of the said Government or
Administration
in his capacity as such, unless notice of the
intention to apply for such a rule, accompanied by copies of the
petition and of the
affidavits which are intended to be used in
support of the application, was served upon the said Government,
Administration, Minister,
Premier or officer at least seventy-two
hours, or such lesser period as the court may in all the
circumstances of the case consider
reasonable, before the time
mentioned in the notice for the hearing of the application”.
[23]
The provisions of Section 35 do not make reference
to the respondent. It is not alleged why the respondent believes that
it was
necessary for it to benefit from the provisions of section 35.
[24]
It may very well be that the view point of the
respondent is that it is the organ of the State. That is not the
point I have to
decide. Even if it was, the section does not mention
the respondent. The Section is specific that it regulates interdicts
against
the State. The Respondent is not the Government of the Union
or Republic of South Africa. If it is perceived to be a State, the
papers do not explain the factual or legal basis for that conclusion.
If anything, I would speculate if I were to conclude that
the
respondents is a state. I lack facts to reach that conclusion. Due to
lack of adequate information I do not make conclusion
as to whether
the respondent is a State or not.
[25]
Even if it was entitled to benefit, it did benefit
because:
(a)
the application papers were served upon the
respondent on 16 May 2024 at 15h28; and
(b)
the application was set down and heard on 21 May
2024.
[26]
The application served before me after 14h30 on 21
May 2024. The time that was afforded to the respondent is way above
the stipulated
time in the Act. In any event, respondent did not
suffer any prejudice even if it was less. Evidently, the respondent
had enough
time to the extent that it filed heads of arguments. I am
not aware that it is a requirement that heads of argument should be
filed
in urgent applications. Yes, it is a good practice do so, the
Courts receive the necessary assistance from the parties. I only
raise this to demonstrate the ample time that was at the disposal of
the respondent. Consequently, I would have been inclined to
grant
condonation if it was necessary.
[27]
For reasons set out in paragraphs 25 and 26 of
this judgment I equally dismiss this point.
(b)
the merits
[28]
I am now left with the merits of this application.
In essence the applicant seeks for an order set out in paragraph 3 of
the notice
of motion, that pending an appeal, the suspension and the
withdrawal of his certificate should be interdicted. In its
affidavits
and heads of argument the case is predicated on the law of
interdict.
[29]
My analysis of the facts of this matter reveal
that the suspension and the withdrawal of the applicant’s
licence took effect
on 11 April 2024 and in turn such decision was
communicated to the applicant on 7 May 2024.
[30]
This being an interim interdict it remains to be
seen how the applicant meets the requirements for an interlocutory
interdict. It
is to this I now turn.
(i)
Interdicts
[31]
Just as a starting point, interdicts are not
designed for the past invasion of rights. They are designed to
protect present and
future violation of rights.
[32]
The suspension and withdrawal of business
operations is something that took place on 11 April 2024 as adverted
to above. In colloquial
terms : I want to say : the horse has bolted.
Generally, this should be the end of this application. However, for
completion, I
deal with individual requirements for a temporal
interdict below. I limit my discussion to the requirements I believe
are dispositive
of this aspect of the case.
Prima facie right
[33]
In order for the above requirement to be resolved
in favour of the applicant, the applicant ought to show the Court the
basis upon
which it argues that the mere lodgement of its notice of
appeal entitles it to the suspension being uplifted. The right
envisaged
under this requirement is a prima facie right that is
threatened by an impending or imminent harm.
[34]
Section 26 (1) of the Act provides:
“
If
there is a prima facie case of improper conduct in terms of this Act,
or of the commission of an offence referred to in the Schedule,
against a security service provider,
the
Authority may suspend the registration of the security service
provider—
(a)
pending the conclusion of an investigation
or enquiry by the Authority into the alleged improper conduct;
or
(b)
pending the conclusion of the criminal
investigation by the State into the offence in respect of that
security service provider,
or a determination by the prosecuting
authority or the finalisation of criminal proceedings in regard to
the offence”.
[35]
On the other hand Section 26 (8) of the Act
provides:
“
The
Authority may uplift the suspension of the registration of a security
service provider if there is reason to do so”.
[36]
Section 30 (1) of the Act provides:
“
(1)
Any person aggrieved by—
(a)
the refusal by the Authority to grant his or
her application for registration as a security service provider;
(b)
the suspension or withdrawal of his or her
registration as a security service provider by the Authority; or
(c)
a finding against him or her, of improper
conduct in terms of this Act, or the punishment imposed in
consequence of the finding,
may
within a period of 60 days after service of the notification of the
relevant decision contemplated in paragraph (a), (b) or
(c), appeal
to an appeal committee
”
.
[37]
In a nutshell, these provisions of the Act
mentioned above are the sections which are relevant in the
determination in this matter.
[38]
The effect of suspension which in this matter was
activated or given effect to in terms of Section 26 (1) is that the
applicant
is not permitted to render any security services –
unless with a written permission of the
respondent
. This simply applies by
operation of law. Section 26(3) of the Act provides:
“
(3)
The
effect of a suspension of registration is that the security service
provider whose registration is suspended may not render
any security
service, unless the prior written permission of the Authority has
been obtained
,
but during the period of such suspension the security service
provider is still bound by all the obligations of a registered
security service provider provided for in this Act and in the Levies
Act”.
[39]
What emerges from the sections quoted above is
that the respondent is granted through a statute powers to suspend
the operations.
As said above, it would appear the that there are
prima facie
ground
of misconduct which have been established by the respondent against
the applicant. They are set out in subparagraph 5.7 of
this judgment.
The rhetorical question is : did the applicant make an application to
the respondent to uplift the suspension pending
the finalisation of
the inquiry or investigations including the appeal? That was not
done.
[40]
From a letter of suspension dated 25 April 2024 it
appears that a consideration was made whether to suspend or not the
applicant.
Ultimately, it seems that a decision was taken in the
interest of Private Security Industry to suspend the applicant. When
the
respondent suspended the applicant’s business operations,
it exercised a discretion.
[41]
In this application, the applicant makes out a
case that once an appeal is issued, the operation of suspension of
business operation
is uplifted. It appears from the provisions of
Section 26 (8) of the Act to be the prerogative of the respondent
whether to uplift
or not the suspension. How it exercised such a
discretion or its powers is not attacked in these proceedings. In
fact, no application
was ever made to the respondent, seeking to
uplift the suspension pending the finalisation of the inquiry.
[42]
It would seem to me that it would have been
necessary for the applicants to apply to the respondent to uplift the
suspension activated
in terms of section 26 (3). Potentially, it is
where the respondent would have gleaned if there are good reasons or
not for the
respondent to uplift the suspension. It is these
considerations that make it difficult for me to interfere with the
statutory power
given to the applicant. I see no ground for
interference at all. This appears to be a serious defect in this
application. I find
no unlawful conduct that has been committed by
the respondent on the facts of this matter. It will be
constitutionally incorrect
for the Court to usurp the powers and
duties given to the respondent by law in the absence of an unlawful
conduct.
[43]
As Moseneke CJ points it in
National
Treasury and Others v Opposition to Urban Tolling Alliance and Others
2012 (6) SA 223
(CC)
:
“
[50]
Under the Setlogelo test, the prima facie right a claimant must
establish is not merely the right to approach a court in order
to
review an administrative decision.
It
is a right to which, if not protected by an interdict, irreparable
harm would ensue
.
An
interdict
is meant to prevent future conduct and not decisions already made
.
Quite apart from the right to review and to set aside impugned
decisions, the applicants should have demonstrated
a
prima facie right that is threatened by an impending or imminent
irreparable harm
.
The right to review the impugned decisions did not require any
preservation pendente lite”.
[44]
To me, the applicant has failed to make out a
prima facie
case
that brings its
application within the
provisions of section 26 (8) of the Act. Without the respondent
first
exhausting the provisions of section 26 (8) of the Act, I do not see
how it can claim entitlement to have the suspension uplifted.
For
this reason this requirement is not satisfied.
Balance of convenience
[45]
It is necessary for this Court to weigh the harm
to be suffered or endured by the applicant if temporary interdict is
not granted
as against the harm the respondent will suffer or bear if
the interdict is granted.
[46]
The
National
Treasurer
case above in paragraphs 63,
64, 65 and 66 reminds us thus:
“
[63]
There is yet another and very important consideration when the
balance of convenience is struck. It relates to separation of
powers.
In ITAC we followed earlier statements in Doctors for Life and warned
that: “
Where
the Constitution or valid legislation has entrusted specific powers
and functions to a particular branch of government, courts
may not
usurp that power or function by making a decision of their
preference. That would frustrate the balance of power implied
in the
principle of separation of powers. The primary responsibility of a
court is not to make decisions reserved for or within
the domain of
other branches of government, but rather to ensure that the concerned
branches of government exercise their authority
within the bounds of
the Constitution
.
This would especially be so where the decision in issue is
policy-laden as well as polycentric.”
[64] In a dispute as
the present one, this does not mean that an organ of state is
immunised from judicial review only on account
of separation of
powers. The exercise of all public power is subject to constitutional
control.40 In an appropriate case an interdict
may be granted against
it. For instance, if the review court in due course were to find that
SANRAL acted outside the law then
it is entitled to grant effective
interdictory relief. That would be so because the decisions of SANRAL
would in effect be contrary
to the law and thus void.
[65]
When it evaluates where the balance of
convenience rests,
a court must
recognise that it is invited to restrain the exercise of statutory
power within the exclusive terrain of the Executive
or Legislative
branches of Government. It must assess carefully how and to what
extent its interdict will disrupt executive or
legislative functions
conferred by the law and thus whether its restraining order will
implicate the tenet of division of powers.
Whilst a court has the
power to grant a restraining order of that kind, it does not readily
39 ITAC above n 17 at para 95. 40 Pharmaceutical
Manufacturers
Association of South Africa and Another: In Re Ex Parte President of
the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA
674
(CC);
2000 (3) BCLR 241
(CC)
at para 20. MOSENEKE DCJ 32
do so
except when a proper and strong case has been made out for the relief
and, even so, only in the clearest of cases
.
[66]
A court must carefully consider
whether the grant of the temporary restraining order pending a review
will cut across or prevent
the proper exercise of a power or duty
that the law has vested in the authority to be interdicted. Thus
courts are obliged to recognise
and assess the impact of temporary
restraining orders when dealing with those matters pertaining to the
best application, operation
and dissemination of public resources.
What this means is that a court is obliged to ask itself not whether
an interim interdict
against an authorised state functionary is
competent but rather whether it is constitutionally appropriate to
grant the interdict”
.
[47]
I observe as I stated above that it is the
preserve of the respondent whether or not to suspend the applicant. I
also observe that
it is equally the prerogative of the respondent
whether to uplift or not the suspension. As said above, the way the
discretionary
power was exercised is not attacked. The reasons
advanced by the respondent for suspending the licence of the
applicant negates
any contention that balance of inconvenience is
passed. On the information available, the respondent is not allowed
to use firearms
approved for use by another security entity. I do not
believe that this should be allowed to carry on.
[48]
Importantly, in this matter the complaint is not
that a case predicated on the provisions of section 26 (8) was not
properly considered.
The case is that the mere existence of an appeal
necessitates the suspension to be uplifted without more. That power
is bequeathed
to the respondent by the Act and there is no case that
it has not been properly considered. On this point too, I do not
believe
that the applicant has met this requirement. The respondent
acted according to law. The suspension occurred by operation of law
as mentioned above.
Other remedy
[49]
As said above, I believe that it was available to
the applicant to invoke the provisions of section 26 (8) by writing
to the respondent
and ask it to uplift the suspension on whatever
grounds the applicant would have furnished to the respondent. If that
had been
done the Court would not have been confronted with an
application seeking it to usurp its powers by engaging on matters
that are
statutorily bequeathed and endowed to the respondent. That I
cannot do without more.
[50]
I do not get a sense that it was impossible for
the applicant to expedite the appeal process in respect of
suspension. No case is
made out that there has been an attempt to
have the appeal quickly heard or considered. The appeal itself would
have constituted
an alternative remedy. The fact that the respondent
is allowed by the Act to uplift a suspension – presupposes that
the applicant
had internal remedy – that is to apply for the
respondent to uplift the suspension. The applicant did not do so.
[51]
What is clear is that on the very date the
application was issued, the appeal got to be issued and served. That
conduct puts credence
to my observation that the appeal was issued
mainly to strengthen the ill-conceived contention that the mere
presence of an appeal
automatically uplifts suspension. Of course,
that argument is not supported by the facts and the law. I consider
it bogus in law
in any event.
[52]
There are two paragraphs of the notice of motion
that must be dealt with. Paragraph 4 suggests that there are some
review proceedings
to be launched. It reads:
“
The
respondent is interdicted and
restrained
from suspending and withdrawing the registration status of the
applicant as a registered security service provider pending
the
finalisation of judicial review, if any
,
filed within 180 days from
the
date the Respondent dismisses the appeal mentioned above
,
in terms of the
Promotion of Administrative Justice Act No. 3 of
2000
”.
[53]
As said above, this paragraph refers to past
invasion of the alleged rights. The relief has another confusion. The
applicant is
not sure whether it will file a review or not. Further,
it is not based on any existing decision susceptible to review. It is
built
on the assumption that the review appeal will be dismissed. No
review at all is before me. I have no clue what the merits of the
review will look like. There is simply no reviewable decision before
me. If anything, I can characterise this relief as a pure
fishing
expedition.
[54]
There is also paragraph 3 of the notice of motion.
As said above, this paragraph assumes that the mere existence of an
appeal renders
the suspension uplifted. Nowhere in the papers does
the applicant:
[54.1] allege that the
provisions of
section 26
(8) were not considered; or
[54.2] attack a failure
on the part of the respondent to properly consider the provisions of
section 26
(8).
[55]
The applicant’s high water mark of its case
is:
“
5.15
The applicant seeks this Court’s assistance and intervention.
Also seeks an order directing that the respondent to uplift
the
suspension,
since
there is a reason being an appeal
”
.
F.
Conclusion
[56]
As said above, no case is made out that the
conduct of the respondent is unlawful. Infact, the provisions of the
Act do not seem
to have been violated by the respondents.
[57]
The use of firearms of another security company by
the applicant is not a small matter. In that process four people were
killed.
It is not denied by the applicant that the joint venture
agreement for renting firearms was not registered. All these
uncontested
infractions are in breach of the code of conduct of the
respondent.
[58]
I consider the above allegations serious and for
that reason find myself unable to interfere with the powers that are
preserved
for the respondent in terms of the Act.
[59]
There is no right flowing form a declarator that
is sought in paragraph 2 of the notice of motion. Also, it is pursued
on the basis
that once the existence of an appeal is established, the
suspension will be uplifted. That is a wrong premise. It is the duty
of
the respondent to make that determination. The respondent could
have decided that the appeal was not a good reason for it to uplift
the suspension. The point though is that no such application was ever
directed to the respondent to uplift the suspension.
G.
Costs
[60]
Having gone through the papers and considered this
application I do not believe that applicant has made out a case for
the interim
relief sought.
[61]
I have also dismissed the legal points which were
raised by the respondent.
[62]
An appropriate costs order should be the one
directing the applicant to pay 50% of the taxed or agreed costs of
the respondent.
All the legal points raised by the respondent did not
succeed. They were all unmeritorious. I have taken that into account
in my
consideration of costs.
H.
Order
[63]
In these circumstances, an order in the following
terms shall issue:
[63.1] the
application is dismissed.
[63.2] the
applicant shall pay 50% of the respondent’s taxed or agreed
costs.
[63.3] such costs
shall be taxed on scale
A
.
V. KUNJU
ACTING JUDGE OF THE HIGH
COURT
Appearances
For
the Applicant:
Mr
S.I. Vobi
Counsel,
Johannesburg Bar
Instructed
by:
ABONGILE
DUMILE ATTORNEYS INC.
Attorneys
for the Applicant
18
park road
Mthatha
For
the Respondent:
Mr
M.C. Setlhako
Counsel,
Circle Chambers, Pretoria
Instructed
by:
NTSHINGA
ATTORNEYS INC.
Attorneys
for the Respondent
21
Owen St,
Mthatha
Heard
:
21 May 2024
Delivered
:
3 September 2024