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[2014] ZACC 6
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MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd (CCT 77/13) [2014] ZACC 6; 2014 (5) BCLR 547 (CC); 2014 (3) SA 481 (CC) (25 March 2014)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 77/13
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HEALTH, EASTERN
CAPE
............................................................................
First
Applicant
SUPERINTENDENT-GENERAL
OF THE
EASTERN
CAPE DEPARTMENT OF
HEALTH
................................................
Second
Applicant
and
KIRLAND
INVESTMENTS (PTY) LTD t/a
EYE
& LAZER
INSTITUTE
.......................................................................................
Respondent
Neutral
citation:
MEC for Health, Eastern
Cape and Another v Kirland Investments (Pty) Ltd
[2014]
ZACC 6
Coram:
Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza
AJ, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J and
Zondo J
Heard
on:
12 November 2013
Decided
on:
25 March 2014
Summary:
Administrative action – validity
of administrative decision not the subject of counter-application or
separate review application
– beneficiary of decision
prejudiced – proper process must be followed to set the
decision aside – validity of
decision not before the Court
Administrative
action – status of administrative decision improperly taken –
decision remains effectual until properly
set aside and cannot be
ignored – application of
Oudekraal
judgment
ORDER
On
appeal from the Supreme Court of Appeal (hearing an appeal from the
Eastern Cape High Court, Grahamstown) (majority judgment
of Cameron
J, concurred in by Moseneke ACJ, Skweyiya ADCJ, Dambuza AJ, Froneman
J, Mhlantla AJ and Nkabinde J):
1.
Leave to appeal is granted.
2.
The appeal is dismissed with costs,
including the costs of two counsel.
The
order is at [107] of the judgment.
JUDGMENT
JAFTA
J (Madlanga J and Zondo J concurring):
Introduction
[1]
This
case concerns decisions taken by various functionaries in relation to
the establishment of private hospitals in the Eastern
Cape. The
relevant subordinate legislation requires approval of the Head of
Department of Health, Eastern Cape before a private
hospital may be
established.
[1]
[2]
Kirland
Investments (Pty) Limited t/a Eye & Lazer Institute (Kirland)
instituted a review application impugning some of those
decisions
[2]
in the Eastern Cape High Court, Grahamstown (High Court). It
cited, as respondents, the then Member of the Executive Council
for
Health, Eastern Cape (MEC); the Superintendent-General for Health,
Eastern Cape; and the Director-General of Health, Eastern
Cape (state
parties).
[3]
The High
Court set aside the impugned decisions. The state parties’
appeal to the Supreme Court of Appeal was
unsuccessful, hence this
application for leave before us.
The
legislative scheme
[3]
Before
setting out the facts, I must outline the relevant legislation for a
better understanding of the case. At the relevant time,
the
establishment of private hospitals was governed by the Health Act
[4]
and the Regulations made under it.
[5]
Regulation 7 empowers the Superintendent-General to approve the
establishment of private hospitals in the province of the
Eastern
Cape. But before approval, the regulation requires that two
conditions be met. First, the Superintendent-General
must
consult the Director responsible for hospital services in the
provincial administration. Second, the Superintendent-General
must satisfy himself or herself that the proposed private hospital is
necessary.
[4]
Regulation 7 provides:
“
1.
No person shall erect, alter, equip or in any other way prepare any
premises for use as a private hospital or unattached
operating-theatre
unit without the prior approval in writing of the
Head of Department.
2. (i) Any person
intending to establish a private hospital or an unattached
operating-theatre unit shall first obtain permission
in writing from
the Head of Department, who, after consultation with the Director,
shall satisfy himself as to the necessity or
otherwise for such a
private hospital or unattached operating-theatre unit before granting
or refusing permission.
(ii)
Having obtained such permission, the applicant shall complete Form I
(Annexure B) and submit plans for approval by the
Head of Department,
together with the necessary information, and shall supply any
additional information which the Head of Department
may require.
3.
Permission and approval in terms of regulation 7 are not
transferrable.”
[5]
This
regulation forbids the establishment of a private hospital without
prior approval of the Superintendent-General. Approval granted
under
it must be in writing. Having obtained written permission, an
applicant is required to complete the relevant form and
submit his or
her plans, together with any information demanded by the
Superintendent-General. The establishment of a private
hospital
without prior approval constitutes a criminal offence in terms of
regulation 59.
[6]
The
facts
[6]
It is now convenient to set out the facts.
They are largely not in dispute. In July 2006 and May 2007,
Kirland applied for
approvals to establish a 120-bed hospital in Port
Elizabeth, two unattached operating theatres and a 20-bed hospital in
Jeffreys
Bay. These applications were among a number of applications
received by the Superintendent-General.
[7]
An Advisory Committee considered Kirland’s
applications and recommended that they be refused. Accepting the
recommendation,
the Superintendent-General declined to approve them.
The decisions taken by the Superintendent-General were reduced to
writing.
But before he signed them, the Superintendent-General was
involved in a motor-vehicle accident and as a result he took sick
leave
for six weeks.
[8]
During his absence an Acting
Superintendent-General was appointed. Meanwhile the MEC who was then
in office had a meeting with officials
to inform them that she was
going to meet and discuss Kirland’s applications with the
Provincial Chairperson of the African
National Congress, the ruling
political party in the provincial government. This meeting occurred
in September 2007, before the
Superintendent-General’s decision
to refuse approval. The meeting convened by the MEC illustrated her
willingness to be involved
improperly in a matter where she had no
role to play. The Superintendent General declined the
applications on 9 October 2007
and, two days later, he had the
accident.
[9]
Having realised that approval was refused,
the MEC summoned the Acting Superintendent-General to her office on
23 October 2007.
At this meeting, the MEC had in her possession a
file that contained the Superintendent-General’s decision in
which he refused
approval.
[10]
In her affidavit the Acting
Superintendent-General avers:
“
On
23 October 2007 Ms Jajula [the then MEC] summoned me to her office
.
Upon my arrival in her office Ms Jajula
:
7
.
1
.
had a file in her possession;
7
.
2
.
said that she saw in the file that the applicant’s
applications for private hospitals in Port Elizabeth and Jeffreys Bay
respectively
had not been approved
;
7.3
.
informed me that she was under political pressure to approve
the applicant’s applications because the refusal to grant the
applicant’s applications put her in a bad light in the
political arena
;
and
7.4
.
gave me the file and instructed me to approve the applicant’s
aforesaid applications
.”
[11]
According to the Acting
Superintendent-General, both she and the MEC were aware of the
Superintendent-General’s decision to
refuse approval. They were
also aware that the refusal was based on a recommendation by the
Advisory Committee. When this was pointed
out, the MEC is reported to
have said that, as the political Head of the Department, “she
had authority to make the final
decision on behalf of the
Department”. She handed the file to the Acting
Superintendent-General.
[12]
Apart from the letter addressed to Kirland,
the Acting Superintendent-General signed all the letters which
recorded the Superintendent-General’s
decisions and dispatched
them to various applicants. With regard to Kirland, the Acting
Superintendent-General states that
“[i]n accordance with the
verbal instruction from Ms Jajula I drafted a letter to the
applicant informing it that its
applications had been approved.”
[13]
Although Kirland attempted to dispute the
facts deposed to by the Acting Superintendent-General, it failed to
place on record evidence
by the then MEC. It was content to
base its denial of the allegations by the Acting
Superintendent-General on hearsay evidence.
It explained that
the MEC refused to sign an affidavit but she was willing to testify
in court. Despite her willingness to
testify, Kirland did not
ask that the matter be referred for the hearing of oral evidence in
the High Court. Instead, it
chose to proceed on the basis of
evidence contained in affidavits.
[14]
As
these are motion proceedings, the averments by the Acting
Superintendent General must, in the present circumstances, be
taken to be correct. The attempt by Kirland to deny them does
not rise to the level of raising a genuine dispute of fact.
[7]
This is the footing on which the Supreme Court of Appeal approached
the matter.
[15]
To continue with the narrative of the
facts, having received the purported approvals, Kirland sought to
increase the capacity of
the proposed hospitals. To this end,
it applied for further approvals. Meanwhile, the
Superintendent-General had resumed
duties. Again he declined to
approve Kirland’s applications. By that time Kirland had
already submitted its plans in
compliance with regulation 7.
[16]
By letter dated 20 June 2008, the
Superintendent-General informed Kirland that the approval by the
Acting Superintendent-General
was withdrawn. This letter reads:
“
I
refer to the above matter, more particularly the letter dated 23
October 2007 that the Acting Superintendent-General of this
department addressed to you. In that letter you were informed
that your
applications for a licence in
respect of the above hospitals had been approved. This approval
is contrary to
our view that the area is
over supplied.
I
regret to inform you that the Department has withdrawn the approval.
I point out that on 9 October 2007
and
after I had considered all applications, I decided to refuse the
application because Port Elizabeth is over
serviced
with private health facilities.
I
advise that you have a right to appeal in writing to the MEC for
Health against my decision. That appeal must be lodged with the
MEC
within 60 days from the date of this letter and must set out the
grounds of
appeal.”
Litigation
history
[17]
In the High Court, Kirland sought orders:
overturning the MEC’s decision rejecting its appeal against the
withdrawal of the
purported approval; reinstating the approval; and
setting aside the initial decision of the Superintendent-General in
terms of
which Kirland’s applications were refused. However,
the main challenge was directed at the withdrawal of the purported
approval
and the MEC’s decision that upheld it.
[18]
The withdrawal was impugned on two broad
grounds. First, Kirland asserted that “the
Superintendent-General was
functus
officio
and could not set aside the
decision of the Acting Superintendent-General”. Second, it
contended that, in any event: the
withdrawal was irrational,
arbitrary and capricious, and so unreasonable that no reasonable
person could have taken such decision;
the decision-maker took
irrelevant considerations into account while ignoring relevant ones;
the decision maker was reasonably
suspected to have been biased;
the withdrawal was not authorised by the empowering legislation; and
the withdrawal was effected
for a reason not authorised by the
empowering legislation.
[19]
With regard to the initial refusal by the
Superintendent-General, Kirland asserted that—
“
the
purported decision of the Superintendent-General, even if made,
(which is not admitted), was not published or made known either
to
the applicant or to anyone else (including the Acting
Superintendent-General) and accordingly was wholly ineffective and
did
not constitute a decision properly taken alternatively that the
respondents must be estopped from contending that the Acting
Superintendent
General’s purported decision was a
proper decision, and from contesting the validity thereof”.
[20]
In opposing the application and in view of
the initial refusal by the Superintendent-General, the state parties
submitted that:
“
18.1.
Dr Diliza [the Acting Superintendent-General] could not legally have
taken a decision on [Kirland’s] applications when
a decision
had already been taken in respect thereof;
18.2.
the decision was of no force and effect; and
18.3.
there is no merit in the contention that the [Superintendent-General]
was
functus officio
.”
[21]
The state parties also impugned the Acting
Superintendent-General’s purported approval on the ground that
she was irregularly
instructed by the MEC to approve applications in
respect of which a decision had already been taken to decline them.
Reliance was
placed on the affidavit by the Acting
Superintendent-General which set out the details on how the
instruction was made.
[22]
The
High Court classified the issues raised into three categories. The
first was the Superintendent-General’s initial refusal;
the
second was the Acting Superintendent-General’s approval; and
the third was the withdrawal. In regard to the refusal,
the High
Court accepted that the Superintendent-General had decided to decline
Kirland’s applications, relying on the recommendations
from the
Advisory Committee. What remained, the High Court held, was the
dispatch of the letter communicating the refusal. Without
giving
reasons, the High Court found that the failure to communicate the
refusal “flouted the provisions of regulation 7”.
[8]
Proceeding from this premise, the Court held that the refusal was not
reviewable administrative action under the Promotion of
Administrative Justice Act
[9]
(PAJA) “because such a decision did not adversely affect
applicant’s rights nor had direct external legal effects on
the
applicant”.
[10]
The High
Court declined to set aside the refusal.
[23]
In
relation to the purported approval, the High Court held that it
should be set aside because it was influenced by the pressure
exerted
by the MEC on the Acting Superintendent-General.
[11]
Regarding the withdrawal of the approval, the Court held that it
should also be overturned on the basis that when the decision
to
withdraw was taken, the Superintendent-General did not comply with
the requirements of procedural fairness.
[12]
[24]
Consequently, the High Court set aside the
purported approval, its withdrawal by the Superintendent-General and
the decision of
the MEC which upheld the withdrawal. The state
parties were ordered to pay the costs of the application.
In
the Supreme Court of Appeal
[25]
Unhappy
with the order, the state parties appealed to the Supreme Court of
Appeal. Kirland cross-appealed the order setting
aside the
approval. The Supreme Court of Appeal defined the issues before it as
the validity of the withdrawal, the MEC’s
decision upholding it
and the order setting aside the approval. With regard to the first
two issues, the Supreme Court of Appeal
held that both the purported
withdrawal and the MEC’s decision were invalid because the
Superintendent-General was precluded
by the principle of
functus
officio
from effecting the withdrawal.
[13]
[26]
In relation to the cross-appeal, the
Supreme Court of Appeal found that, on the evidence of the Acting
Superintendent-General, the
approval was invalid because it was
influenced by the MEC’s unauthorised dictation. However,
that Court overturned
the High Court’s order that set the
approval aside, on the basis that the validity of the approval was
not an issue before
the High Court. As a result the Supreme
Court of Appeal dismissed the appeal but upheld the cross-appeal.
In
this Court
[27]
It
cannot be gainsaid that this matter involves the exercise of public
power and that it was instituted as a review application
under PAJA.
It is by now settled that the application of PAJA raises a
constitutional issue.
[14]
This is because PAJA gives effect to section 33 of the Constitution.
[28]
But the presence of a constitutional issue
alone is not enough to warrant the grant of leave. It must also
be in the interests
of justice to allow leave. I think the
interests of justice favour the granting of leave here. The
matter raises an
important issue relating to administrative justice.
The issue is what should be the response from a court where serious
maladministration
and abuse of public power is established but there
is no request for the review of the offending administrative action.
This
issue goes to the heart of the role played by our courts in
ensuring that public power is properly exercised within the bounds of
the Constitution. The issue must be examined in the light of
the duty imposed on the courts to uphold the Constitution.
Issues
[29]
The purported approval of Kirland’s
application by the Acting Superintendent General lies at the
centre of the issues
arising from the judgment of the Supreme Court
of Appeal. The first issue is whether that approval constitutes
a valid administrative
action or, differently put, whether the
approval is valid. If it is not, the next issue is whether its
invalidity was an issue
raised for determination in the High Court.
If it was, the last issue is whether the Supreme Court of Appeal
granted the right
orders, following its finding on the invalidity of
the approval.
[30]
Both in written and oral argument before
us, the state parties directed their submissions at the validity of
the purported approval
by the Acting Superintendent General.
They did not pursue the challenge against the orders of the High
Court which dealt
with other decisions that were attacked on review
by Kirland. Instead, they focused on the Supreme Court of Appeal’s
order
which upheld the cross appeal. The subject matter of the
cross-appeal was the order in terms of which the High Court had
reviewed
and set aside the approval. Consequently, it is not
necessary to consider the other decisions which were challenged in
the
High Court.
Is
the approval valid?
[31]
The
Supreme Court of Appeal enquired into the validity of the approval.
Relying on
Plascon-Evans
,
[15]
that Court accepted as correct the version given by the Acting
Superintendent-General, pertaining to the circumstances surrounding
the grant of the approval by her. On its assessment of the
papers, the Supreme Court of Appeal concluded that there was “no
proper dispute of fact created” by Kirland. It reasoned thus:
“
In
the first sentence of this judgment I spoke of maladministration and
failures of moral courage. Dr Diliza stated in her
affidavit
that prior to her making the decisions in favour of Kirland
Investments, the MEC at the time, Ms Nomsa Jajula, had informed
a
meeting of senior staff that she had been approached by a
Mr Stone Sizani, the provincial chairperson of the African
National Congress (the ruling party in the Eastern Cape) and that she
was going to Port Elizabeth to meet him to discuss Kirland
Investments’ applications for approval and to be shown its
clinic.
At
a subsequent meeting, Ms Jajula informed staff members, including Dr
Diliza, that she had met with Mr Sizani, she had seen Kirland
Investments’ clinic and that it was small and needed expansion,
that it would be unfair to refuse its applications and that
she was
under pressure from the executive council of the provincial
government ‘because the Department was seen as withholding
licences from BEE companies to establish private hospitals’.
On
23 October 2007, Ms Jajula summoned Dr Diliza to her office. Ms
Jajula had a file in her possession and told Dr Diliza
that she had
seen in the file that Kirland Investments’ applications had not
been approved. She said that she was under
political pressure
to grant the applications ‘because the refusal to grant the
Applicant’s applications put her in
a bad light in the
political arena’ and instructed Dr Diliza to approve the
applications. (Ms Jajula has not deposed to an
affidavit and so,
despite the denial of these allegations by Kirland Investments and
competing allegations as to whether Ms Jajula
made certain admissions
or denials,
no proper dispute of fact is
created
. Therefore, for purposes
of this matter,
Dr Diliza’s
version must be accepted
.)
So
much for the maladministration. It was followed by the first
failure of moral courage: Dr Diliza simply granted the applications
as she had been instructed to do, lamely stating that she was
‘obliged’ to give effect to Ms Jajula’s
instruction.
She granted the applications, what is more, in the
full knowledge that the advisory committee had recommended that they
be refused
and aware of why it had so recommended.”
[16]
(Footnotes omitted and emphasis added.)
[32]
Having accepted the evidence of the state
parties, the Supreme Court of Appeal held:
“
On
Dr Diliza’s own evidence in the papers before us, however, the
decisions were invalid because they were taken as a result
of the
unauthorised dictation of Ms Jajula, contrary to section
6(2)(e)(iv) of [PAJA].”
[17]
[33]
As I see it, the approach adopted by the
Supreme Court of Appeal in assessing the evidence cannot be faulted.
Absent an affidavit
from the MEC who allegedly gave instructions for
the approval of the applications, Kirland’s denial did not
raise a genuine
dispute of fact. But even if it did, the Court
would have been entitled to prefer the state parties’ version
of events
because Kirland did not apply for the referral of the
matter for the hearing of oral evidence in the High Court. This
option
was available to Kirland even if a genuine dispute of fact was
not raised. And Kirland was aware that the MEC declined to
sign
a draft affidavit prepared by it but had indicated that she was
willing to testify in court. But it chose not to follow
that
route, something it was entitled to do. Therefore it must now
live with the consequences of its choice.
[34]
The
Plascon-Evans
rule is to the effect that in motion proceedings, if disputes of fact
have arisen on affidavit, a final order may be granted only
if the
facts averred by the applicant and which are admitted by the
respondent, together with the facts alleged by the respondent,
justify the granting of the order.
[18]
This rule was endorsed by this Court in
Thint
.
[19]
[35]
It will be recalled that the orders sought
by Kirland in the High Court included “an order that the Acting
Superintendent-General’s
decision of 23 October 2007 be
confirmed”. For the Court to confirm that decision, it
had to have recourse to the version
given by the state parties,
especially the evidence of the Acting Superintendent General.
That evidence reveals, as
the Supreme Court of Appeal found, that the
decision of the Acting Superintendent-General was invalid.
Was
the validity of the approval raised in the High Court?
[36]
While it is true that the validity of the
approval was not challenged in an application for review by the state
parties in the High
Court, the question whether the approval was
valid was raised by Kirland when it sought that the approval be
confirmed. Kirland
was aware that the confirmation could not be
granted unless it convinced the High Court that the Acting
Superintendent-General’s
decision was valid. In an attempt to
show that, it contended that the decision-maker was empowered to make
the decision and that
the approval was made “in terms of the
statutory provisions, and the Regulations, and having been published
and announced
and conveyed” to it.
[37]
To underscore this point the deponent to
Kirland’s founding affidavit stated:
“
I
aver that the Acting Superintendent-General’s
decision
was valid, and unassailable
, and could
not be withdrawn.
In
the premises, I aver that the Acting Superintendent-General’s
decision was one properly taken, and placed in the public
domain, was
final and could not be revoked by the same functionary as purported
to do so.” (Emphasis added.)
The
order of the Supreme Court of Appeal
[38]
Despite the finding that the approval was
invalid and its scathing criticism of the MEC and the Acting
Superintendent-General, the
Supreme Court of Appeal left the invalid
approval intact after reviewing the High Court’s order that set
the approval aside.
The Court held that it lacked “jurisdiction
to set aside Dr Diliza’s decisions because they have never been
taken on
review”. It is apparent from the record that the
Supreme Court of Appeal adopted an unduly narrow approach to the
matter.
In doing so, it left intact an administrative decision
which that Court had found to be invalid. A decision which was
made
under circumstances described by that Court as “a sorry
tale of mishap, maladministration and at least two failures of moral
courage.”
[39]
While it is true that the state parties
failed to take the approval on review, this failure did not mean that
the High Court had
no jurisdiction to pronounce on the validity of
the approval. Kirland, as the applicant, had sought the
approval’s
confirmation on the ground that it was valid.
The state parties had resisted that claim successfully. There
was a duty
on the High Court to rule on this claim.
[40]
Since the Supreme Court of Appeal had found
that the approval was invalid as it was unlawfully made, that Court
ought to have declared
it invalid. It did not require the
request for review to assume jurisdiction over the matter. The
Court already had
jurisdiction because the validity of the approval
was one of the issues pertinently raised in the pleadings and
canvassed in evidence.
[41]
What happened in this case is unacceptable
and disgraceful. The MEC who was in office at the relevant time
bullied the Acting
Superintendent-General to take a decision contrary
to an earlier, properly considered decision of the
Superintendent General.
At that stage, the MEC was aware
of the earlier decision to decline Kirland’s applications.
Opportunistically, she
exploited the absence of the
Superintendent General to achieve the illegitimate goal through
a more pliable official who aided
and abetted her in the process.
[42]
The MEC had no business in the
reconsideration and approval of Kirland’s applications because
the power was reposed in the
Superintendent-General. It is
apparent that she was aware of this fact because instead of approving
the applications herself,
she forced the Acting
Superintendent-General to approve them.
[43]
The
MEC’s conduct illustrates a complete disregard for the relevant
legal prescripts and the abuse of public authority to
facilitate a
desired outcome. The conduct is incompatible with the
principles and values enshrined in the Constitution.
[20]
Furthermore, the Constitution imposes an obligation on officials to
act reasonably and lawfully when exercising public power.
[21]
What occurred here was neither reasonable nor lawful. A
decision flowing from such conduct must not be allowed to remain
in
existence on the technical basis that there was no application to
have it reviewed and set aside. The uncontroverted evidence
on
record establishes that the decision to approve the applications was
a contravention of the law and the Constitution.
Therefore it
ought to have been declared invalid and set aside.
[44]
I have read the judgment prepared by my
Colleague Cameron J. At the heart of our difference lies the
simple fact of court
process. Because the state parties failed
to institute an application for review, he concludes that a decision
which, on
the face of uncontroverted evidence on record, was
fraudulent, must be left intact for as long as there is no review
application
to set it aside. The motivation for this approach is that
Kirland has acted on the decision to its financial prejudice and that
it enjoys a procedural protection under the Constitution to defend
the unlawful decision. On the contrary, I hold the view that
because
the validity of the approval was one of the issues raised before the
High Court, that Court was entitled to declare the
approval invalid
and set it aside.
[45]
The undisputed evidence on record
illustrates that the impugned approval was not based on the merits of
the applications by Kirland
but was influenced by the corrupt
interference of the MEC. The MEC sought to advance both Kirland’s
interests and her own
by having the initial refusal changed to an
approval. On the evidence of the Acting Superintendent-General, the
MEC forced her
to approve the applications “because the refusal
to grant [Kirland’s applications] put her in a bad light in the
political
arena”. This is corruption.
[46]
Corrupt
practices should not escape the reach of our courts solely on the
basis that no application to have them set aside was made.
If
the validity of a corrupt decision was raised in the pleadings, a
court is duty-bound to declare it invalid if that is established
by
evidence. Section 172(1)(a) of the Constitution obliges every
court, when deciding a constitutional matter within its
powers, to
declare invalid any conduct that is inconsistent with the
Constitution.
[22]
The
section admits of no discretion.
[47]
Corruption
and maladministration do not only pose a serious threat to our
democratic order, but are also inconsistent with the Constitution.
As observed by this Court in
Shaik
,
[23]
corruption is “antithetical to the founding values of our
constitutional order.” In
Heath
this Court held:
“
Corruption
and maladministration are inconsistent with the rule of law and the
fundamental values of our Constitution. They
undermine the
constitutional commitment to human dignity, the achievement of
equality and the advancement of human rights and freedoms.
They
are the antithesis of the open, accountable, democratic government
required by the Constitution. If allowed to go unchecked
and
unpunished they will pose a serious threat to our democratic
state.”
[24]
[48]
As Zondo J points out, Kirland asked the
High Court to refer the matter back to the Superintendent-General, in
the event of that
Court not confirming the approval. In its
founding affidavit, Kirland stated:
“
I
should point out, that if the principal argument on review in this
matter is successful, and that the Superintendent-General was
functus
officio
, then, and in that event, it
falls simply for the above Honourable Court to set aside the decision
of the MEC (and insofar as is
necessary that of the
Superintendent-General withdrawing the earlier permission given),
and
ordering that the Acting Superintendent-General’s decision,
already taken, stands
. In such
circumstances it would be inappropriate and unnecessary in any event
for the matter to be referred back, the earlier decision
properly
taken remaining in position and being effective.
If,
on the other hand, the above Honourable Court rejects the principal
argument, and
determines the review on
the alternative arguments advanced above, finding that the Acting
Superintendent-General’s decision
is no longer operative and
was withdrawn, albeit wrongly, then, and in that event, it is
possible that the Court could refer the
matter back and not
substitute its own decision for that of the MEC
.”
(Emphasis added.)
[49]
This makes it plain that Kirland itself
appreciated that the approval might not be confirmed. In that
event, it asked the
High Court to remit the matter to the
Superintendent-General. Indeed the High Court, having set aside
the approval, remitted
the matter to the Superintendent-General,
granting Kirland the alternative relief it sought. It is
therefore inconceivable
that Kirland would have asked for remittal,
albeit in the alternative, if it thought that the validity of the
approval was not
an issue to be determined by the High Court.
The averments quoted above, coupled with remittal as an alternative
remedy,
establish that the validity of the approval was one of the
issues the High Court was called upon to determine.
[50]
The
invalidity of the approval was fully canvassed in the opposing
papers. What is missing is a sentence to the effect that
the
state parties sought to have the approval reviewed. Therefore,
in these circumstances, to require that there should have
been an
application for review before the High Court pronounced upon the
validity of the approval, constitutes a narrow technical
approach to
the matter. It is an approach that places form way above
substance and consequently insulates a clearly unconstitutional
administrative action from judicial scrutiny. The main
motivation for this narrow approach is that government must follow
due process and “tread respectfully when dealing with
rights”.
[25]
To
underscore this point, reference is made to
Chief
Lesapo
[26]
and
Motswagae
.
[27]
Both of these cases are not on point. They dealt with self-help which
is not an issue here.
[51]
The issue here is whether the High Court
was asked to pronounce on the validity of the approval. As shown in
this judgment and in
the judgment of Zondo J, Kirland had asked
the High Court to do so. And in opposition, the state parties asked
that the approval
be declared “invalid and of no force and
effect”.
Just
and equitable order
[52]
If
the coming into effect of an order invalidating an administrative
action would result in an injustice, section 8 of PAJA, read
with
section 172 of the Constitution, empowers a court to prevent the
injustice by making a just and equitable order.
[28]
This
power enables our courts to regulate consequences flowing from a
declaration of constitutional invalidity. This suggests
that
the need to exercise this power arises if there is a declaration of
invalidity or an administrative action is set aside.
If there
is no declaration of invalidity, generally the exercise of the power
may not be triggered.
[53]
The
principle was affirmed by this Court in
Bengwenyama
Minerals
.
[29]
There
the principle was pronounced in these terms:
“
The
apparent rigour of declaring conduct in conflict with the
Constitution and PAJA unlawful is ameliorated in both the
Constitution
and PAJA by providing for a just and equitable remedy in
its wake. I do not think that it is wise to attempt to lay down
inflexible rules in determining a just and equitable remedy following
upon a declaration of unlawful administrative action.
The rule
of law must never be relinquished, but the circumstances of each case
must be examined in order to determine whether factual
certainty
requires some amelioration of legality and, if so, to what extent.
The approach taken will depend on the kind of
challenge presented –
direct or collateral; the interests involved, and the extent or
materiality of the breach of the constitutional
right to just
administrative action in each particular case.”
[30]
(Footnotes omitted.)
[54]
It must be emphasised that the power to
grant a just and equitable remedy may not be exercised to withhold
the declaration of invalidity.
It cannot be invoked as
justification for not declaring invalid an administrative action that
is inconsistent with the Constitution
and PAJA. This is so
because section 172(1) of the Constitution compels every court to
declare invalid any conduct that is
inconsistent with the
Constitution. As mentioned earlier, the performance of this
function is not discretionary. But
the granting of a just and
equitable order is discretionary.
[55]
In
Bengwenyama
Minerals
, Froneman J defined the
discretionary power to grant a just and equitable order in these
words:
“
It
would be conducive to clarity, when making the choice of a just and
equitable remedy in terms of PAJA, to emphasise the fundamental
constitutional importance of the principle of legality, which
requires invalid administrative action to be declared unlawful.
This would make it clear that the discretionary choice of a further
just and equitable remedy follows upon that fundamental finding.
The discretionary choice may not precede the finding of invalidity.
The discipline of this approach will enable courts to consider
whether relief which does not give full effect to the finding of
invalidity, is justified in the particular circumstances of the
case
before it. Normally this would arise in the context of third parties
having altered their position on the basis that the administrative
action was valid and would suffer prejudice if the administrative
action is set aside, but even then the ‘desirability of
certainty’ needs to be justified against the fundamental
importance of the principle of legality.”
[31]
(Footnote
omitted.)
[56]
Just like any discretionary power, this
power too must be exercised judicially. This means that there
must be circumstances
that convince a court to exercise it one way or
the other. It is apparent from
Bengwenyama
Minerals
that prejudice is one of the
factors which may influence a court to grant a just and equitable
order in addition to declaring an
administrative decision invalid.
In this matter Kirland has failed to show prejudice and I agree with
the following observation
made by Cameron J:
“
Kirland
acted on the approval. In its founding affidavit, it says it
took substantial steps to acquire land, expend money
and hire
professional advisors. This is all rather vague. It is
not enough to conclude that Kirland’s reliance
irretrievably
prejudiced it. . . . The reason it asserted
prejudice in its founding papers was because it
resisted delay.”
[32]
[57]
The type of prejudice raised relates to the
delay in deciding Kirland’s applications. This sort of
prejudice may be
addressed by fixing the period within which the
Superintendent-General must consider the applications, if they are
remitted to
him.
[58]
Cameron
J holds that, even if the approval is properly before us, we should
decline to set it aside because the issue of prejudice
to Kirland
ought to be explored properly before the approval is set aside.
[33]
There are two answers to this proposition. First, there is no
explanation for Kirland’s failure to show the prejudice
it will
suffer if the approval were to be set aside. Kirland set out in
great detail factors militating against remittal
of the matter to the
decision-maker. If it wished to show that remittal would also
prejudice it, it could have easily established
that. It is
doubtful that Kirland would have asked for remittal if it were to
suffer prejudice. The assertion that,
following the approval,
its shareholders purchased immovable property for R15 million
does not establish prejudice at all.
This is more so if the
matter is remitted to the decision-maker for him to consider the
application afresh. The possibility
of the applications being
successful cannot be discounted. But even if they are
unsuccessful, the acquisition of property
does not suggest that
Kirland will be prejudiced. It owns the property which
presumably now is worth more than R15 million.
It is free
to do as it pleases with that property. It may even sell it at
a profit.
[59]
Second, a proper explanation of the issue
of prejudice in present circumstances will make no difference to the
question whether
the approval should be declared invalid. As
stated earlier, such declaration precedes the exercise of the
remedial power
to grant a just and equitable order. The
granting of an additional remedy under the rubric of justice and
equity has no bearing
on the declaration that the approval is
unconstitutional and consequently invalid.
[60]
Under our Constitution the courts do not
have the power to make valid administrative conduct that is
unconstitutional. What
may be done by the courts is to regulate
the consequences of their declaration of invalidity. This means
that in deciding
a constitutional matter, a court adopts a two-stage
approach where an enquiry involves the determination of
constitutional validity.
During the first stage, once a court
finds that the impugned conduct is inconsistent with the Constitution
it must make a declaration
of invalidity. This does not involve
the question whether the order is just and equitable. The
latter enquiry belongs
to the second stage.
[61]
Once a declaration of invalidity is made,
the court may proceed to the second stage. At this stage the
court considers the
effects of the declaration of invalidity on
parties or persons to whom the order applies. The interests of
those parties
are carefully examined for the purposes of making an
order that is just and equitable in the circumstance of each case.
It
is only at the second stage that a court enjoys a discretionary
choice. However, that choice does not include the reversal
of
what was done during the first stage at which there is no discretion
but an obligation to make a declaration of invalidity.
The two
stages ought not to be conflated.
[62]
In
the present circumstances the proper explanation of Kirland’s
interest would make no difference. The approval in question
is
clearly unconstitutional and as a result must be declared invalid.
Beyond that declaration of invalidity there is nothing to
preserve
because nothing tangible was done following the impugned approval
except the acquisition of property for R15 million.
It is not
Kirland’s case that as a result of the approval it has since
built and is currently running the hospitals.
The dispute about
the validity of the approval arose before the building plans
submitted by Kirland were approved. Therefore
construction
could not commence before the approval of the plans.
Accordingly, this matter is different from cases like
JFE Sapela
[34]
and
Millennium
Waste Management
.
[35]
In
JFE
Sapela
,
the contracted work was almost completed at the time judgment was
delivered by the court of first instance. The question
that
confronted the court was whether the illegal tenders should be set
aside in those circumstances. The Supreme Court of
Appeal
overturned the High Court’s order setting aside the illegal
tenders. The Supreme Court of Appeal held that our
courts have
a discretion not to set aside administrative action where doing so
will achieve no practical purpose.
[63]
In the result, I support the order proposed
by Zondo J.
CAMERON
J (Moseneke ACJ, Skweyiya ADCJ, Dambuza AJ, Froneman J, Mhlantla AJ
and Nkabinde J concurring):
Introduction
[64]
Can a decision by a state official,
communicated to the subject, and in reliance on which it acts, be set
aside by a court even
when government has not applied (or
counter-applied) for the court to do so? Differently put, can a
court exempt government
from the burdens and duties of a proper
review application, and deprive the subject of the protections these
provide, when it seeks
to disregard one of its own officials’
decisions? That is the question the judgment of Jafta J (main
judgment) answers.
The answer it gives is Yes. I
disagree. Even where the decision is defective – as the
evidence here suggests
– government should generally not be
exempt from the forms and processes of review. It should be
held to the pain and
duty of proper process. It must apply
formally for a court to set aside the defective decision, so that the
court can properly
consider its effects on those subject to it.
[65]
The
reasons spring from deep within the Constitution’s scrutiny of
power. The Constitution regulates all public power.
[36]
Perhaps the most important power it controls is the power the state
exercises over its subjects. When government errs
by issuing a
defective decision, the subject affected by it is entitled to proper
notice, and to be afforded a proper hearing,
on whether the decision
should be set aside. Government should not be allowed to take
shortcuts. Generally, this means
that government must apply
formally to set aside the decision. Once the subject has relied
on a decision, government cannot,
barring specific statutory
authority, simply ignore what it has done. The decision,
despite being defective, may have consequences
that make it
undesirable or even impossible to set it aside. That demands a
proper process, in which all factors for and
against are properly
weighed.
[66]
That has not happened here. Kirland
instituted these proceedings to ensure that an approval communicated
to it, and in reliance
on which it acted, prevails. In answer,
the government respondents made no move to set aside the approval.
They took
the attitude that they could withdraw or ignore it.
They branded the approval a “non-decision”. Their
principal
deponent resisted Kirland’s application on the simple
basis that the defective decision did not exist. That was a
fundamental
error. For the decision does exist. It
continues to exist until, in due process, it is properly considered
and set
aside.
[67]
In
the face of government’s attitude, Kirland succeeded in the
High Court and the Supreme Court of Appeal. The main
judgment
would reverse this, on the basis that all the evidence about the
controversial approval is before us, and that it shows
the approval
was defective. This outcome, and the reasoning supporting it,
would have untoward consequences for those subject
to government
decision-making. The evidence is not all before us. And
it would be fundamentally unfair to Kirland to
set aside the decision
now, without requiring government to bring a proper application, in
which it explains the history of the
decision, its shifting attitudes
towards it and its delay in dealing with it. In response,
Kirland is entitled to be heard
on whether it has been prejudiced and
why it would be unfair to it to set the decision aside now.
This is a protection the
Constitution itself affords Kirland.
[37]
The main judgment would abrogate that protection. The Court
should not do so.
[68]
Once
we conclude, as I respectfully suggest we must, that government
cannot take a shortcut across Kirland’s constitutional
protections, then we have to deal with other questions the main
judgment does not address. These include the Department’s
contention that it was entitled simply to ignore the approval as a
“non-decision”, and that this Court should reconsider
the
correctness of the decision of the Supreme Court of Appeal in
Oudekraal
.
[38]
Should
the validity of the approval be decided in these proceedings?
[69]
The problem arises from two decisions on
applications Kirland submitted to the Eastern Cape government in 2006
and 2007 to establish
private hospitals in the province. The
first said No. The second said Yes. The first, the
refusal, was never
signed off or communicated to Kirland. This
was because Mr Boya, the Superintendent-General who took that
decision, became
incapacitated. The second, the approval, was
taken on 23 October 2007 by an Acting
Superintendent-General, Dr Diliza,
while Mr Boya was away.
That decision was communicated to Kirland, but Dr Diliza took it
in circumstances that make
it vulnerable to challenge on review.
[70]
Inter-related reasons indicate that the
validity of the approval cannot fairly be decided in the proceedings
in their present form.
The first is that the government
functionaries dealing with the imbroglio dallied for seven months
before doing anything.
They must account for that period.
They have not done so. The Court and Kirland are entitled to
know what happened
in that time. Then, too, if government is
allowed to take a shortcut, Kirland will be deprived of important
procedural protections.
And Kirland’s prejudice has not
been adequately canvassed.
[71]
To start with dilly-dallying. After
being indisposed, Mr Boya returned to work in late November 2007.
He then discovered
that, in conflict with his uncommunicated
decision, Dr Diliza had approved Kirland’s application.
Yet he did nothing
for over seven months. Why? His
affidavit invokes the political power of the MEC on whose
instructions Dr Diliza apparently
granted approval. He said
that, for so long as she remained in office, “it was virtually
impossible to do anything
about the dilemma”. That is an
intriguing statement. But what does it mean? Did he have
no power?
Or was he too scared to exercise it? If the
latter, why should Kirland be prejudiced because he stayed his hand
for seven
months in deference to the seemingly improper conduct of a
political superior?
[72]
But there is more to the seven-month
period. On the strength of the approval, Kirland in November
2007 applied to the Department
for an increase in the number of beds
at its now-approved facilities. The Department replied,
refusing the requests.
It did so on the plain premise that the
preceding approval was valid. The refusals, signed by Mr Boya,
did not say the approval
was invalid. Instead, they told
Kirland that, “according to departmental norms, Nelson Mandela
Metro is over serviced”
by private providers, hence the
refusals.
[73]
This raises the question whether the
Department had not in fact reconciled itself to the approval.
Its correspondence to Kirland
suggests that at least it was resigned
to the approval. We do not know the facts, because they have
not yet been put before
any court. But the point is this.
If Mr Boya for a time thought the approval should be accepted as
valid, that may
count against reversing it when a reviewing court
considers how to exercise its discretion for or against the
Department.
[74]
Only on 16 July 2008 did Kirland for the
first time receive warning that its approval was in jeopardy.
Even then, it was given
no glimmering of the reason. On this
date, it received a fax in which Mr Boya regretted
“
to
inform you that the Department has withdrawn the approval”.
Even then, he made no mention of invalidity. His
letter speaks
of withdrawing a valid approval – not repudiating an invalid
decision. The reason he gave Kirland had
nothing to do with
taint or irregularity. He said the approval was being withdrawn
because it was “contrary to our
view that the area is over
supplied.” This, too, suggests that the Department may
have thought the approval was valid,
but that it also thought Mr Boya
could validly withdraw it. Is this so? Again, we do not
know. The facts have
not been put before us.
[75]
Meanwhile, the clock was ticking.
Kirland acted on the approval. In its founding affidavit, it
says it took substantial
steps to acquire land, expend money and hire
professional advisors. This is all rather vague. It is
not enough to conclude
that Kirland’s reliance irretrievably
prejudiced it. To get there, a court would need to know much
more. What
precise steps, what land, how much money? But
Kirland was not called on to say more. The reason it asserted
prejudice
in its founding papers was because it resisted delay.
Its argument was that the court should not remit that matter, but
should
itself set aside the “withdrawal” of the approval
in its favour. So setting aside the approval on the ground that
it was tainted by improper political interference was not at all an
issue. When it lodged its founding papers, Kirland had
no
inkling of this. All it knew is that the Department had
“withdrawn” its approval because “the area is
over
supplied”. This was the issue Kirland took to court, and
the issue it asked the court to adjudicate: whether the
Department
had power to “withdraw” a valid approval.
[76]
The first time Kirland heard that
irregularities allegedly tainted the approval was 28 months after
receiving it, towards the end
of February 2010, when the government
respondents lodged their answering affidavits in this litigation.
It was then that
the Department proffered the whole unappetising
account of political interference leading to the approval.
There was never
a suggestion that Kirland had a hand in any of the
questionable dealings.
[77]
It is against this background that the
relief Kirland sought in its notice of motion must be assessed.
The Department contended
that since Kirland itself had sought the
Court’s confirmation of the approval, the Department was
obliged to defend its withdrawal
and hence to disavow the approval.
It would therefore, so its argument went, be needless formalism to
require it to bring
a counter-application to set aside the approval.
[78]
It
is true that Kirland in its notice of motion sought an order that the
approval “be confirmed”. But in context
it is clear
that what it sought was not an inquiry into and vindication of the
legal pedigree of the approval it received –
it did not even
know then that the approval was regarded as suspect. Instead,
what it sought was a re assertion of the
status quo before the
withdrawal of the approval. For this reason, the founding
affidavit asks the Court to “reinstate”
the approval by
setting aside its withdrawal.
[39]
The High Court, in upholding Kirland’s claim to relief,
mistakenly granted it an order setting aside the approval.
But
Kirland had never asked for that, and the Supreme Court of Appeal
rightly set that order aside.
[40]
[79]
So Kirland did not come to court to sustain
an approval impeached by political shenanigans. It sought only
to sustain an approval
that, according to everything it knew, had
been unfairly and invalidly withdrawn because of oversupply of
hospital facilities.
Indeed, nearly half of its founding
affidavit advances a statistical analysis of hospital-bed supply in
the region, seeking to
show that the Department’s conclusion on
oversupply was wrong.
[80]
Against this background, it would be very
unfair indeed to hold Kirland’s feet to the fire of a dispute
it did not then even
realise existed. What it took to court was
a baffling withdrawal, on the basis of oversupply, of a seemingly
valid approval.
It had no interest in defending, or any need to
defend, an approval impugned on grounds it did not know existed.
After the
state impugned the validity of Dr Diliza’s approval
in its answering affidavit in the High Court, Kirland rightly took
the
view that that was not an issue before the Court. In its
replying affidavit it stated that, if Mr Boya “wished to set
aside the decision taken by Dr Diliza, he ought to have instituted
review proceedings which would have enabled applicant to place
its
case before the tribunal or court dealing with the matter”.
[81]
The
Supreme Court of Appeal stated that the approval was, on Dr Diliza’s
own evidence, tendered by the Department, “invalid”.
[41]
This was incautious. The approval was not before the Court.
But the Court itself said so. It pointed out
that the validity
of the approval “is not the subject of challenge in these
proceedings”.
[42]
So it is wrong to take its statement as a definitive finding.
The Court was merely categorising Dr Diliza’s conduct
for the
purpose of reaching the issue that was in fact before it, namely
whether Mr Boya was entitled to revoke her approval.
The Court
was saying that, even on the Department’s version, its legal
argument must fail.
[82]
All
this indicates that this Court should not decide the validity of the
approval. This would be in accordance with the principle
of
legality and also, if applicable,
[43]
the provisions of PAJA. PAJA requires that the government
respondents should have applied to set aside the approval, by way
of
formal counter-application.
[44]
They must do the same even if PAJA does not apply.
[45]
To demand this of government is not to stymie it by forcing upon it a
senseless formality. It is to insist on due process,
from which
there is no reason to exempt government. On the contrary, there
is a higher duty on the state to respect the law,
to fulfil
procedural requirements and to tread respectfully when dealing with
rights.
[46]
Government
is not an indigent or bewildered litigant, adrift on a sea of
litigious uncertainty, to whom the courts must extend
a
procedure-circumventing lifeline. It is the Constitution’s
primary agent. It must do right, and it must do
it properly.
[83]
Counsel
for the Department told this Court, as he told the Supreme Court of
Appeal,
[47]
that, if the
Department had to bring a counter-application under PAJA, it would
face the PAJA 180-day rule.
[48]
Well, precisely. An explanation for the delay is a strong
reason for requiring a counter-application. But even
outside
PAJA, the position is the same.
[49]
This Court recently confirmed in
Khumalo
that litigants, including public functionaries, are bound by
statutory and common-law time limits and may not circumvent them
using procedural tricks.
[50]
The same is true here.
[84]
And Kirland may call for Mr Boya to be
cross-examined, particularly in the light of his letters that make no
mention of the alleged
unsoundness of the approval, but proceed on
the premise that the approval was regarded as valid and effective.
Did Mr Boya
at any point before June 2008 take the view that the
approval was in fact a fait accompli that may have to be accepted?
Kirland
is entitled to know. Litigation involves complex
choices at every point. Kirland should not be denied the
options available
to it should the Department apply formally and
properly for the approval to be set aside. A departmental
counter-application
is therefore far from a needless formality.
It is an essential part of confronting the subject of an
administrative approval
with the case it has to meet, and the options
available to it in meeting that case.
[85]
What
is more, in the Department’s counter-application, Kirland will
be the respondent. This will afford it important
protections.
In the absence of oral evidence, its version, and not that of the
Department, will be decisive.
[51]
This is because the
Plascon-Evans
rule
[52]
operates in favour of
the respondent in the counter-application. The facts set out by
the respondent in that application
must, subject to the operation of
the rule, form the basis of any findings. To decide the
validity of the approval on the
papers before us will thus deprive
Kirland of an important procedural right.
[86]
And
finally, even if the setting aside of the approval is properly before
us, the Department would have to convince the Court that
it ought to
exercise its discretion to grant that remedy. Under the “just
and equitable” remedial powers this
Court enjoys in
constitutional adjudication and also under PAJA, a number of factors
must be considered.
[53]
This includes the fact that Kirland relied on the lawfulness of the
decision. Kirland says that, based on the approval,
certain of
its shareholders purchased immovable property for R15 million.
Kirland is a commercial entity, whose entrepreneurial
activities are
directed at increasing healthcare facilities, on a profit basis, in
one of our country’s poorest provinces.
The perilous
circumstances in which entities like it increase amenities while
pursuing profit should not be disregarded.
They should, at
least, be properly explored and considered before a decision on which
the entity in good faith relied is set aside.
Was
the approval an effective decision until set aside?
[87]
The Department also urged that it was
entitled to ignore the approval as a “non decision”.
Its main deponent
claimed that because Dr Diliza’s decision was
not taken in terms of any statute or regulation, the Department was
entitled
to ignore it. Counsel for the Department urged these
propositions on us, and also urged this Court to reconsider the
correctness
of the decision in
Oudekraal
.
[88]
The
argument mistakes the nature of the mandate the Constitution entrusts
to public officials. This does not require them
to act without
erring.
[54]
On the
contrary, the Constitution anticipates imperfection, but makes it
subject to the corrections and constraints of the
law. The task
of public officials is thus to act in accordance with the law and the
Constitution, which includes being subject
to correction when they
err.
[89]
By corollary, the Department’s
argument entails that administrators can, without recourse to legal
proceedings, disregard
administrative actions by their peers,
subordinates or superiors if they consider them mistaken. This
is a licence to self help.
It invites officials to take
the law into their own hands by ignoring administrative conduct they
consider incorrect. That
would spawn confusion and conflict, to
the detriment of the administration and the public. And it
would undermine the courts’
supervision of the administration.
[90]
The question is thus whether, despite its
vulnerability to review, the approval given to Kirland constituted
administrative action.
To argue otherwise is at odds with both
the Constitution and PAJA, which proceed on the premise that
administrators may err, and
even that they may err grossly.
When they do, their actions are not nullities. They exist in
fact and may have legal
consequences. The solution is to
challenge the decision on review.
[91]
The
Constitution entrenches the right to lawful, reasonable and
procedurally fair administrative action. But in the same
breath, it obliges Parliament to “provide for the review of
administrative action by a court or, where appropriate, an
independent
and impartial tribunal”.
[55]
In doing so, the Constitution foresees that the administration that
would answer to it would be imperfect. Those charged
with state
administration will inevitably on occasion fall short of the high
aspiration of just administrative action. When they
do, the courts
are able to intervene.
[92]
It is true that the word “decision”
in its ordinary meaning may signify a proper decision, namely one
taken lawfully
after a full application of the mind. Yet in
administrative law an approval granted under unlawful dictation is
still a decision.
Like any other, it has effect until it is
reviewed and set aside. That it was granted under dictation makes it
vulnerable to judicial
review. It does not mean that it is a
non-decision.
[93]
This
is clear from PAJA. The statute, which was enacted to give
effect to the right to just administrative action, envisages
that
officials will take decisions that do not constitute just
administrative action and are therefore invalid. The statute’s
definition of “administrative action”
[56]
is not limited only to administrative action that is just. It
plainly includes unjust administrative action. Thus,
it
encompasses both a decision and a failure to take a decision.
[57]
This shows that the mere fact that an administrator failed to apply
her mind properly – by failing to take a proper
decision –
does not mean that her conduct does not constitute administrative
action.
[94]
What
is more, the statute’s definition of “decision”
embraces
“
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”.
[58]
That
a decision “required to be made” can be reviewed means
that, under PAJA, a decision may exist if an administrator
is
required to decide but as a matter of fact has not decided.
[95]
In
addition, some of PAJA’s grounds of review expressly target
cases where an administrator has not considered a decision
properly
or at all. Thus, a decision affected by bias is administrative
action that is liable to be set aside on review.
[59]
So is action not authorised by the empowering provision,
[60]
taken for a reason not authorised by the empowering provision,
[61]
for an ulterior purpose or motive,
[62]
or for irrelevant considerations or in disregard of relevant
considerations.
[63]
The
list of unjust conduct that constitutes administrative action to
which PAJA applies goes on.
[64]
[96]
Pertinent
to this case, PAJA provides that decisions taken because of the
unauthorised or unwarranted dictates of another person
or body
constitute administrative action that is reviewable.
[65]
If this Court were to hold that a decision taken under dictation is
not a decision at all, and has no effect even before it is
set aside,
then there would be no need for PAJA. This provision of PAJA
exists precisely because a decision taken under dictation
is
nevertheless a decision, and must be reviewed and set aside just like
any other unjust administrative action.
[97]
The
point is this. Far from unjust administrative conduct not being
administrative action at all, PAJA makes clear that it
falls within
the definition of administrative action but is subject to review.
This approach to the nature of administrative
action and decisions
meshes with the premise inherent in both the common-law rule against
unreasonable delay and PAJA’s requirement
that proceedings for
judicial review must be instituted without unreasonable delay and,
subject to condonation, within 180 days.
[66]
Both proceed on the basis that irregular administrative actions
may become insulated from review because of delay.
This means
they will never be declared invalid. They therefore retain
lawful consequence. No other approach is practicable.
[98]
The
outcome does not change if we consider the approval from the
perspective of whether the decision-maker acted within her
jurisdiction
in granting approval. Jurisdictional facts refer
broadly to preconditions or conditions precedent that must exist
before
the exercise of power, and the procedures to be followed when
exercising that power.
[67]
It
is true that we sometimes refer to lawfulness requirements as
“jurisdictional facts”. But that derives
from
terminology used in a very different, and now defunct, context
(namely where all errors, if they were to be capable of being
reviewed at all, had to be construed as affecting the functionary’s
“jurisdiction”).
[68]
In our post-constitutional administrative law, there is no need to
find that an administrator lacks jurisdiction whenever
she fails to
comply with the preconditions for lawfully exercising her powers.
She acts, but she acts wrongly, and her decision
is capable of being
set aside by proper process of law.
[99]
So
the absence of a jurisdictional fact does not make the action a
nullity. It means only that the action is reviewable, usually
on the grounds of lawfulness (but sometimes also on the grounds of
reasonableness). Our courts have consistently treated
the
absence of a jurisdictional fact as a reason to set the action aside,
rather than as rendering the action non-existent from
the
outset.
[69]
The absence
of jurisdictional facts did not entitle Mr Boya to withdraw the
approval, but only to approach a court to set
it aside.
[100]
It
was on these principles that the Supreme Court of Appeal drew in
Oudekraal
.
The Court explained at the outset that the question before it was
wide: it was “whether, or in what circumstances,
an unlawful
administrative act might simply be ignored, and on what basis the law
might give recognition to such acts.”
[70]
The narrow dispute for decision was whether the invalidity of a
preceding administrative act (the Administrator’s grant
of
township development rights) entitled a local authority to refuse to
do something (approve an engineering services plan for
the township)
it would have been obliged to do if the Administrator’s
preceding act had been valid. The Court said
No. The
local authority could not simply treat the Administrator’s act
as though it did not exist. Until it was
properly set aside by
a court of law, it engendered legal consequences.
[71]
[101]
The essential basis of
Oudekraal
was that invalid administrative action may not simply be ignored, but
may be valid and effectual, and may continue to have legal
consequences, until set aside by proper process. The Court expressed
it thus:
“
For
those reasons it is clear, in our view, that the Administrator’s
permission was unlawful and invalid at the outset. .
. . But
the question that arises is what consequences follow from the
conclusion that the Administrator acted unlawfully.
Is the
permission that was granted by the Administrator simply to be
disregarded as if it had never existed? In other words,
was the
Cape Metropolitan Council entitled to disregard the Administrator’s
approval and all its consequences merely because
it believed that
they were invalid provided that its belief was correct? In our
view, it was not. Until the Administrator’s
approval (and
thus also the consequences of the approval) is set aside by a court
in proceedings for judicial review it exists
in fact and it has legal
consequences that cannot simply be overlooked. The proper
functioning of a modern State would be
considerably compromised if
all administrative acts could be given effect to or ignored depending
upon the view the subject takes
of the validity of the act in
question. No doubt it is for this reason that our law has
always recognised that even an unlawful
administrative act is capable
of producing legally valid consequences for so long as the unlawful
act is not set aside.”
[72]
[102]
In
the present case, the Supreme Court of Appeal relied on this passage
in concluding that the Department was not entitled simply
to ignore
the approval.
[73]
And
rightly. In doing so, the Court acted in accordance with the
stature
Oudekraal
has
acquired over the last decade. It has been consistently applied
by the Supreme Court of Appeal
[74]
as well as by this Court.
[75]
The underlying principle, that public officials may not take the law
into their own hands when seeking to override conduct
with which they
disagree, has also been given effect in three cases involving
schools’ policies on admission of learners.
[76]
[103]
The
fundamental notion – that official conduct that is vulnerable
to challenge may have legal consequences and may not be
ignored until
properly set aside – springs deeply from the rule of law.
[77]
The courts alone, and not public officials, are the arbiters of
legality.
[78]
As
Khampepe J stated in
Welkom
,
“[t]he rule of law does not permit an organ of state to reach
what may turn out to be a correct outcome by any means.
On the
contrary, the rule of law obliges an organ of state to use the
correct legal process.”
[79]
For a public official to ignore irregular administrative action on
the basis that it is a nullity amounts to self-help.
And it
invites a vortex of uncertainty, unpredictability and irrationality.
The clarity and certainty of governmental conduct,
on which we all
rely in organising our lives, would be imperilled if irregular or
invalid administrative acts could be ignored
because officials
consider them invalid.
[104]
It does not assist the debate to point out
that what happened in this case seems to have
been
highly unscrupulous and deplorable. This is because, in the
next case, the official who seeks to ignore departmental
action may
not be acting with pure motives. Though the official here seems
to have been on the side of the angels, the risk
of vindicating the
Department’s approach lies in other cases where the revoker may
not be acting nobly.
[105]
The approval communicated to Kirland was
therefore, despite its vulnerability to challenge, a decision taken
by the incumbent of
the office empowered to take it, and remained
effectual until properly set aside. It could not be ignored or
withdrawn by
internal administrative fiat. This approach does
not insulate unconstitutional administrative action from scrutiny.
It merely requires government to set about undoing it in the proper
way. That is still open to government.
[106]
In summary: having failed to counter-apply
during these proceedings, the Department must bring a review
application to challenge
the approval granted to Kirland, which
remains valid until set aside. In those proceedings, the
Department will no doubt
explain its dilly-dallying by accounting for
the long months before it acted. As respondent, Kirland will in
turn be entitled
to defend the decision, whether on the ground of its
validity, or on the ground that it should not be set aside, even if
it is
invalid.
Order
[107]
For these reasons, leave to appeal is
granted, but the appeal is dismissed with costs, including the costs
of two counsel.
FRONEMAN
J (Cameron J concurring):
[108]
I concur in the judgment of Cameron J, but,
because of contrasting assertions about the issues that arose from
the papers, I feel
compelled to set out additional reasons for doing
so.
[109]
It is a worrisome feature of this case that
political interference appears to have played a role in Dr Diliza’s
refusal to
give effect to Mr Boya’s original decision to refuse
Kirland’s application. I too would have preferred a
situation
where we would have been in a position to determine the
substantive merits relating to this issue. Somewhat
reluctantly,
though, I have come to the conclusion that we are not in
a position to do so, because the full story is not before us.
[110]
First,
the replying affidavit of Dr Marais, on behalf of Kirland, makes it
clear that Kirland did
not
accept
that a review of Dr Diliza’s decision was properly before the
High Court. The statement by Dr Marais that if
the then
Superintendent-General “wished to set aside the decision taken
by Dr Diliza, he ought to have instituted review
proceedings which
would have enabled [Kirland] to place its case before the tribunal or
court dealing with the matter”, means
what it says. I
disagree that Cameron J quoted it out of context. There are, in
fact, a number of other statements
to the same unambiguous
effect.
[80]
[111]
Second,
even if we accept that in substance, if not in form, a review
application is before us, we are still
obliged
to determine whether the application for review was brought in time.
It is not simply a question whether the 180-day requirement
under the
Promotion of Administrative Justice Act
[81]
(PAJA) was an issue between the parties.
[82]
[112]
In
Khumalo
[83]
this Court reiterated that—
“
courts
have the power (as part of their inherent jurisdiction to regulate
their own proceedings) to refuse a review application
in the face of
an undue delay in initiating proceedings or to overlook the delay.
This discretion is not open-ended and must
be informed by the values
of the Constitution”.
[84]
(Footnotes omitted.)
After
quoting section 237 of the Constitution,
[85]
Skweyiya J continued:
“
Section
237 acknowledges the significance of timeous compliance with
constitutional prescripts. It elevates expeditious and
diligent
compliance with constitutional duties to an obligation in itself.
This principle is thus a requirement of legality.
This
requirement is based on sound judicial policy that includes an
understanding of the strong public interest in both certainty
and
finality. People may base their actions on the assumption of
the lawfulness of a particular decision and the undoing
of the
decision threatens a myriad of consequent actions.”
[86]
(Footnotes omitted.)
[113]
Khumalo
was
also a case where a public official sought to review conduct of a
state organ. Our Constitution allows state organs to
do so in
order to strengthen the rule of law and accountable government.
But the rule of law entails duties:
“
In
keeping with her duty to uphold the rule of law, the MEC
is
not
permitted to circumvent the express provisions of the [Labour
Relations Act]
:
compliance with the time limit set in section 145(1)(a)
is
a requirement of legality.”
[87]
[114]
Before us counsel for the government
parties candidly conceded that a separate review application was not
brought because it was
considered that it would run afoul of the time
limit for review applications. In other words the attempt to
have the issue
decided on the papers was an attempt to circumvent the
express provisions of PAJA. That, this Court said in
Khumalo
,
cannot be done. The law does not allow us to uphold the rule of
law while at the same time circumvent and undermine it.
In the
long run, shortcuts of this kind will erode the rule of law as one of
the foundational values of our Constitution.
[115]
Nothing prevented, or prevents, the
applicants from rectifying a potential wrong in accordance with the
proper legal prescripts.
[116]
For these further reasons, I concur in
Cameron J’s judgment.
ZONDO
J:
Introduction
[117]
I
have had the benefit of reading the judgments of my Colleagues,
Jafta J, Cameron J and Froneman J. For convenience I shall
refer
to Jafta J’s judgment as the main judgment, Cameron J’s
one as the second judgment and Froneman J’s one
as the third
judgment.
[88]
I agree
that leave should be granted. I am unable to agree with the second
judgment that the appeal should be dismissed.
I agree with the
main judgment that it should be upheld and that the Acting
Superintendent-General’s (Acting S-G) decision
approving
Kirland Investments (Pty) Ltd t/a Eye and Lazer Institute’s
(Kirland) applications for permits should be set aside.
However, I take the view that Kirland’s applications for
permits should be referred back to the Superintendent General
for a fresh determination.
[118]
The main judgment has set out the factual
background. I shall, therefore, not repeat that exercise.
However, I shall refer
to parts of the background where to do so is
necessary for a proper understanding of this judgment or where it is
necessary for
emphasis.
[119]
On the evidence that was before all the
Courts, the Acting S-G’s decision to approve the applications
by Kirland for permits
to build two private hospitals and unattached
operating theatres was made unlawfully and was invalid. It was
made as a result
of unlawful political interference by the then
Member of the Executive Council for Health Eastern Cape (MEC for
Health), Ms Jajula,
with the performance by the Acting S-G of her
duty. That was the duty of deciding applications for permits to
build private
hospitals. The Acting S-G, Dr Diliza, simply
followed Ms Jajula’s instruction when she approved Kirland’s
applications.
She did not apply her own mind on whether the
applications should be approved.
The
issues
[120]
The only issue before us is whether the
High Court was correct in setting aside the Acting S-G’s
decision. Put differently,
the only issue before us is whether
the Supreme Court of Appeal was correct in overturning the High
Court’s order setting
aside the decision and referring
Kirland’s applications for permits back to the
Superintendent-General (S-G) for a fresh
decision.
[121]
With regard to the issue before us, it is
important to bear in mind that—
(a)
prior to the Acting S-G’s decision,
the S-G had turned Kirland’s applications for permits down but
that decision was
not conveyed to Kirland;
(b)
subsequent to the Acting S-G’s
decision, the S-G purported to withdraw the Acting S-G’s
decision; and
(c)
when Kirland appealed to the new MEC
against the S-G’s decision to withdraw the Acting S-G’s
decision, the appeal was
dismissed.
[122]
The reason why Jafta J and Cameron J arrive
at conflicting conclusions is that they differ on whether the
decision of the Acting
S-G approving Kirland’s applications for
permits should be set aside or not. In other words they differ on the
same point
on which the High Court and the Supreme Court of Appeal
differed. Although the High Court and the Supreme Court of
Appeal
differed on whether the Acting S-G’s decision should be
set aside, they agreed that it was invalid.
[123]
The main judgment holds that the Acting
S-G’s decision was invalid and should be set aside. The
second judgment holds
that that decision should not be set aside. The
difference between them is based on the fact that they take different
views on
whether the validity or invalidity of the Acting S-G’s
decision was an issue before the High Court. The main judgment says
it was. The second judgment says it was not.
Was
the validity or invalidity of the Acting S-G’s decision an
issue before the High Court?
[124]
I agree with the main judgment that the
issue of whether the Acting S-G’s decision was invalid was
before the High Court and
the High Court was called upon to decide
it. In this judgment I refer to more proof in the affidavits
filed in the High Court
to show that this was, indeed, the case.
[125]
The view that the validity of the Acting
S-G’s decision was not an issue before the High Court is not
borne out by the contents
of the affidavits. In support of the
view that the validity of that decision was one of the issues before
the High Court
for decision, reference can be made to various
contentions that were made by Dr Andries Marais in Kirland’s
founding affidavit
in the High Court. In the High Court
Dr Marais contended, among other things, that—
(a)
the Acting S-G’s decision was taken
“in terms of the statutory provisions” and was one
“properly taken”.
(b)
“
the Acting S-G’s decision
was
valid and unassailable and could not be withdrawn
.”
(Emphasis added.)
(c)
“
the [Acting S-G] was properly
authorised in his position as Acting S G”, and “was
in a position to bind the government
parties acting in accordance
with his statutory and regulatory authority.”
(d)
“
the approval given by the [Acting
S-G] was lawful approval.” (Emphasis added.)
(e)
the [Acting S-G’s] decision was
“effective”.
[126]
In case what has been quoted is not enough
to show that the validity of the Acting S-G’s decision was an
issue before the
High Court, reference to certain parts of the
applicants’ answering affidavit (as respondents in the High
Court) should put
the issue to bed. In his answering affidavit
Dr Litha Matiwane said that at the hearing of the matter it would be
submitted
on behalf of the government parties that—
(a)
“
[Dr Diliza’s]
decision
was of no force and effect
”.
(Emphasis added.)
(b)
given the circumstances under which Dr
Diliza took the decision on 23 October 2007; “
[t]he
Respondents cannot, in law, be estopped from contesting the validity
of Dr Diliza’s decision
”.
(Emphasis added.)
(c)
“
Dr Diliza’s decision was not
taken in terms of any Act or regulation. The Department denies
that her decision was properly
taken or that it was valid,
unassailable and could not be withdrawn”.
(Emphasis added.)
(d)
“
Dr Diliza’s decision was bound
to be set aside. A hearing to the applicant before the
withdrawal of Dr Diliza’s
decision would not have made a
difference.” (Emphasis added.)
Even
in Dr Marais’ replying affidavit Kirland persisted in its
contention that its applications for permits had been “properly
granted” by Dr Diliza. Kirland specifically said that Dr
Diliza had “clearly applied her mind and did her own
research”.
[127]
It is, therefore, clear that the validity
of the Acting S-G’s decision was an issue placed squarely
before the High Court
for decision. Kirland wanted the High Court to
give its
imprimatur
to that decision so that it could enforce it. It contended that that
decision was valid and unassailable and sought to have it
confirmed
by the High Court. Kirland specifically contended that the decision
was effective in law. The MEC and the S-G (government
parties)
opposed the application to have that decision confirmed and upheld as
valid and effective in law. The government
parties
contended
that the decision was invalid and of no force and effect
.
It said that that would be its case in court. In other words it
said that it would ask the court to hold that the
Acting S-G’s
decision was invalid and “of no force and effect”.
Did
the present applicants ask the High Court to set aside the decision
of the Acting S G?
[128]
The Supreme Court of Appeal held that the
High Court could not set aside the decision of the Acting S-G because
the applicants did
not ask the High Court to set aside that
decision. Even though the Supreme Court of Appeal found that
decision to be invalid,
it said that, until that decision was set
aside, the decision stood. It said that, if the applicants had
wanted to have that
decision set aside, they should have asked the
High Court to set it aside but they did not do so. The
Supreme Court
of Appeal held that the High Court had erred in setting
aside the Acting S-G’s decision and in referring Kirland’s
applications for permits back to the S-G for a fresh decision.
[129]
The second judgment is in agreement with
the approach of the Supreme Court of Appeal. That is
why in terms of that
judgment the appeal falls to be dismissed.
I take the view that the applicants did in effect ask the High Court
to set aside
the decision of the Acting S-G. I say this because
in the main answering affidavit in the High Court, Dr Matiwane said
explicitly
that at the hearing of the matter it would be submitted on
behalf of the Department that the “Acting
Superintendant-General’s
decision
was
of no force and effect
.”
(Emphasis added.) The view that the applicants did not ask the
High Court to set aside the Acting S-G’s
decision raises the
question of what the difference is between asking a court to decide
that a certain administrative decision
is invalid and of no force and
effect and asking it to set such an administrative decision aside.
In my view there is no
difference in law. If a court decides
that a certain administrative decision is invalid and of no force and
effect, the position
is as if that administrative decision was never
taken in the first place. The same applies if a court sets
aside an administrative
decision. Therefore, where a litigant
has asked a court to set aside an administrative decision or where he
or she has asked
a court to find the administrative decision to be
invalid and of no force and effect, the result would be the same
whichever of
the two the court adopted.
[130]
It
is because a court’s decision that a certain administrative
decision is invalid and of no force and effect has the same
effect as
a court’s decision setting aside that administrative decision
that, for example, in
Mokoena
and Others v Administrator, Transvaal
,
[89]
Goldstone J was content to make an order simply declaring the
dismissal of the employees as “wrongful and
unlawful
and of no force or effect
”
without setting aside the decision to dismiss.
[90]
(Emphasis added.) It is also the reason why, in
Sibiya and
Another v Administrator, Natal and Another
[91]
where the applicants had obtained a
rule
nisi
for the Administrator of Natal to show cause why their dismissals
should not be declared “
unlawful
and of no force and effect
,”
[92]
Didcott J was content to nullify the dismissals by confirming the
rule
nisi
without setting aside the decision to dismiss. (Emphasis
added.) That is also why, after declaring section 8(a) of
the
Judges’ Remuneration and Conditions of Employment Act
[93]
invalid in
Justice
Alliance v President of the Republic of South Africa and Others
,
[94]
this Court was content to declare the President’s decisions [to
request the then Chief Justice of South Africa to continue
performing
active service as Chief Justice and to extend his term of
office as Chief Justice] to be “of no force and
effect”
without setting aside those decisions. In
Zondi
and Others v Administrator, Natal and Others
[95]
the then Appellate Division was also content to grant an order
declaring the purported dismissals of certain employees of the then
Natal Provincial Administration “to have been unlawful and null
and void” without setting aside the dismissals.
[131]
In the light of the above it can therefore
not be said that the applicants did not ask the High Court to set the
Acting S-G’s
decision aside. In my view the Supreme Court
of Appeal erred in holding that the validity of the Acting S-G’s
decision was not an issue before the High Court. The government
parties had asked in effect for the equivalent in law of an
order
setting aside the Acting S-G’s decision when they asked the
Court to find that the decision
was
invalid and of no force and effect
.
Accordingly, I am of the view that the present applicants did ask the
Court to set aside the Acting S G’s decision
although they
did not use that term.
Was
Kirland given a fair opportunity to meet the applicants’ case
on the invalidity of the Acting S-G’s decision?
[132]
If the government parties placed enough
evidence before the Court to enable the Court to hold that the Acting
S-G’s decision
was invalid and of no force and effect and
Kirland was given a fair opportunity to deal with that case but
failed to do so persuasively
or effectively, the Court was bound to
find that that decision was invalid and of no force and effect or to
set it aside.
[133]
To strengthen their case that the Acting
S-G’s decision was irregular as indicated in Dr Diliza’s
affidavit, the government
parties also relied upon an affidavit of
the new S-G (who took over from the S-G who had refused Kirland’s
applications for
permits), Dr Sivapragas Pillay. In her
affidavit Dr Pillay says that on 15 February 2010 she
telephoned the former
MEC for Health (Ms Jajula) in Dr Diliza’s
presence to put to her Dr Diliza’s allegations about her.
Dr Pillay
says that she put the phone on speaker and she informed the
former MEC that the phone was on speaker and that she was with Dr
Diliza
in her office at the time. Dr Pillay says that, when Dr
Diliza’s version was put to the former MEC, the former MEC
initially denied Dr Diliza’s version but she later admitted
it. However, Dr Pillay says Ms Jajula said that she would
not
be prepared to depose to an affidavit. Apparently Kirland also
asked the former MEC to depose to an affidavit but she
refused.
However, she did furnish Kirland with a signed statement in which she
dealt with Dr Diliza’s version of how
Kirland’s
applications for permits were approved. The fact that Ms Jajula
furnished Kirland with an unsworn statement
but refused to depose to
an affidavit means that she refused to depose to an affidavit even to
refute Dr Diliza’s version.
[134]
It seems to me that in these circumstances
the government parties did everything they were essentially required
to do to obtain
a decision of the High Court that the Acting S-G’s
decision was
invalid and of no force and
effect.
Kirland was given enough
opportunity to present its case on this issue but failed to secure an
affidavit from Ms Jajula.
It was not Kirland’s case
on the papers that it had not been afforded a fair opportunity to
meet the applicant’s case.
Kirland must suffer the same
consequence that every litigant suffers when its witness refuses to
depose to an affidavit and there
is no referral of the matter to oral
evidence. All the evidence of how the decision was taken was
before the High Court.
All the relevant parties were before
that Court. Kirland had already placed the validity of the
decision squarely before
the Court. The government parties
placed their contention that the decision was invalid and of no force
and effect before
the Court. In these circumstances the High
Court was correct in setting aside the decision.
Should
Kirland’s application for permits be referred back to the S-G
for decision?
[135]
The High Court referred Kirland’s
applications for permits back to the S-G to consider and decide
afresh. This was an
order that Kirland had asked for in its
Notice of Motion as an alternative if the court was not prepared to
confirm the Acting
S-G’s decision or was not prepared to leave
that decision intact or to uphold its validity. Coincidentally,
this is
what the government parties also asked for as an alternative
to having the Court substituting its decision for that of the S-G.
In support of this route Dr Matiwane said in the main answering
affidavit that much had also changed since the decision of
the Acting
S-G. He said that there was a new S-G and a new MEC and there
had been an increase in the population serviced
by the Provincial
Department of Health. I understand this last point to be a
suggestion that, whereas in 2007 there may not
have been a need for
more private hospitals in the Eastern Cape Province, it could well be
that, with the passage of time, a change
had occurred and there could
then be a need for more private hospitals in the province. All
of this would be relevant if
the S-G were to consider Kirland’s
applications for permits afresh. In such a case, implied
Dr Matiwane, a proper
decision would be taken either way without
any unlawful political interference.
[136]
The entire foundation upon which the second
judgment is based is that the government parties did not apply to the
High Court to
have the approval of Kirland’s applications for
permits (that is the Acting S-G’s decision) set aside.
That foundation
is not supported by the facts. I have referred
to the fact that in their answering affidavits the government parties
did
ask the High Court to find that decision invalid and of no force
and effect which meant the same as asking the Court to set aside
that
decision. That is how the government parties sought to counter
Kirland’s review application.
[137]
I have already pointed out above that the
government parties made their request for a decision that the
approval was invalid and
of no force and effect in circumstances
where Kirland had already brought before the Court all parties with a
direct and substantial
interest in an order that the approval was
valid or invalid and whether the approval should stand or be set
aside. Accordingly,
the government parties did not need to cite
any additional parties. Once the government parties, as
respondents in Kirland’s
review application, had identified the
decision they wanted the Court to declare invalid and of no force and
effect and all the
interested parties were before the Court, all that
the government parties were required to do was to place their
evidence before
the Court. That is what they did.
[138]
The second judgment says that the
government parties should have instituted a separate counter-review
application or counter-application
with its own notice of motion and
founding affidavit but under the same case number as Kirland’s
review application to which
Kirland would then file its own answering
affidavit. With respect, that is not required of a respondent
in an application
when he or she desires a certain order in the same
proceedings in which he or she is a respondent. Even in
proceedings instituted
by way of action, a defendant who wishes to
counter-claim is not required to issue a separate summons for his or
her counter-claim.
He simply needs to include his counter-claim
in the same document that contains his plea. The position is no
different in
a matter brought by way of motion proceedings. In
the latter case it is enough if in his answering affidavit the
respondent
makes it clear that he seeks a certain order and places
the necessary evidence before the court and ensures that all parties
with
a direct and substantial interest are before the court.
[139]
Unlike the second judgment, which says that
it would be unfair to Kirland if the approval was set aside in these
proceedings because
Kirland did not have a fair opportunity to deal
with a case that the approval should be set aside, Kirland did not
only not raise
such a complaint in its replying affidavit but, on the
contrary, it sought to meet the government parties’ request and
case
head-on. It did not take any procedural and technical
points. Otherwise, how does one explain the fact that in Kirland’s
replying affidavit Dr Marais—
(a)
disputes the government parties’
contention that the approval was invalid and of no force and effect
and persists in Kirland’s
contention that that decision was
valid, had been properly taken and was binding upon the government
parties?
(b)
obtained Ms Jajula’s side of the
story on Dr Diliza’s version of how the approval came about and
sets it out in the
replying affidavit?
(c)
did not anywhere say Kirland needed more
time to deal with the government parties’ request to the Court
to find the approval
invalid and of no force and effect?
Furthermore,
how does one also explain the fact that Kirland secured a detailed
signed statement (not affidavit) from Ms Jajula
denying Dr Diliza’s
version of how the approval came about?
[140]
The second judgment says that the
government parties should apply “formally” and “properly”
for the approval
to be set aside. What the government parties did
here is permissible, namely, that in their answering affidavits
they countered
Kirland’s review application with their own
request that the very decision which Kirland wanted to be confirmed
or reinstated
by the Court should be found to be invalid and of no
force and effect. What the government parties did was a sensible and
practical
way to get all issues to be decided by the same Judge in
the same proceedings.
[141]
Almost all the points upon which the second
judgment relies for its conclusion that the approval should not be
set aside in these
proceedings are points that Kirland did not take
in its replying affidavit after it had been fully informed of what
the government
parties’ case was. Kirland also did not
adopt the attitude that the Court could not make the decision that
the approval
was invalid and of no force and effect as requested by
the government parties because the Court did not have all the
evidence required
for it to make that decision or because the
government parties had no right to ask that the approval be set aside
in those proceedings.
[142]
It is true that Kirland did refer to the
fact that it had already purchased some property on the understanding
that its applications
for permits had been approved but it placed
that before the Court as one of the factors that should be taken into
account and not
in support of a submission that the Court could not
set aside the approval in those proceedings. In this judgment I
take
the view that Kirland’s applications for permits should be
remitted to the S-G for determination afresh. That means
that,pending the S-G’s decision, Kirland cannot be said to have
already suffered a loss. If, ultimately, Kirland’s
applications for permits are refused, it would still be open to it to
sue the government for its loss. If the applications for
permits are
approved, the purchase of the property will not have been in vain and
can still be used.
[143]
The
second judgment refers to a statement in Dr Marais’ replying
affidavit that, if Mr Boya (the then S-G) wished to set aside
the
decision taken by Dr Diliza, he ought to have instituted review
proceedings which would have enabled Kirland to place its case
before
the tribunal or court dealing with the matter.
[96]
This statement is invoked as support for the proposition that Kirland
was opposed to the determination of the validity of
the Acting S-G’s
decision in these proceedings when the matter was in the High Court.
[144]
With respect, this statement provides no
support for the proposition. In my view that statement is
quoted out of context.
The statement is part of paragraph 37 of
Dr Marais’ replying affidavit where Dr Marais responds to
paragraph 34 of Dr Matiwane’s
answering affidavit.
In particular Dr Marais was responding to paragraph 34.1 of Dr
Matiwane’s answering affidavit.
There, Dr Matiwane said
that he denied that the S-G (Mr Boya) “was actuated by mala
fides when he withdrew Dr Diliza’s
‘decision’”.
Dr Marais then responds in paragraph 37.
[145]
When one reads the whole of paragraph 37 of
Dr Marais’ replying affidavit, one realises the context in
which the statement
was made. That context was that Kirland was
saying that the S-G was wrong to have purported to withdraw the
Acting S-G’s
decision himself and should have brought a review
application in court or another tribunal if he wanted that decision
set aside
in which event Kirland would have put its case before that
court or tribunal. In that paragraph Kirland did not complain
that the government parties were not entitled to ask the Court to
find the Acting S-G’s decision invalid and of no force and
effect.
[146]
In my view, the second judgment reaches the
conclusion favourable to Kirland on a case that Kirland did not put
up. A reading
of Kirland’s replying affidavit does not
reveal any suggestion that Kirland was objecting to the Court dealing
with the government
parties’ request for the approval to be
declared invalid and of no force and effect because they had gone
about it the wrong
way or because they had no right to make that
request the way that they did. In fact a reading of that
affidavit reveals
the opposite.
[147]
The
second judgment also refers to a statement by counsel for the
government parties during argument that, if the government parties
wanted to bring a review application, they would have had the problem
of the 180-days requirement prescribed by the Promotion of
Administrative Justice Act
[97]
(PAJA) within which a review application is required to be made.
That was on the assumption that the government parties could
have
brought, or, would have had to bring, such a review application under
PAJA. The question before us is whether the High Court
could and
should have set aside the approval of Kirland’s applications
for permits. That depends on the issues between the
parties as
defined by the pleadings (affidavits in this case), the evidence and
the law. In the present case Kirland did
not in its papers take
the point that the government parties were not entitled to ask the
High Court to set aside the approval
because, for example, of any
delay or non-compliance with any statutory requirement. That
being the case the 180-days requirement
was not an issue between the
parties.
[148]
In the light of the above I am of the
opinion that the High Court was right in referring the matter back to
the S-G for a fresh
decision. In my view the Supreme Court of
Appeal should not have amended the order of the High Court. A
referral of
the matter back to the S-G also appears to be a fair
route to follow after the finding that the Acting S-G’s
decision was
invalid and of no force and effect. Such an order
ensures that Kirland does not benefit from a decision tainted by
unlawful
political interference and the government parties and the
public are not burdened with a decision tainted with illegality.
[149]
Accordingly, in addition to declaring the
Acting S-G’s decision invalid and of no force and effect, I
would grant Kirland
the alternative relief that it had asked for and
remit its applications for permits to the S-G with leave for it to
supplement
the information in those applications should it be so
advised. I would order each party to pay its own costs.
For
the Applicants:
Advocate
R Buchanan SC and Advocate G Bloem SC instructed by the State
Attorney.
For
the Respondent:
Advocate
L Rose-Innes SC and Advocate H Du Toit instructed by Bernadt Vukic
Potash & Getz.
[1]
Regulations
Governing Private Hospitals and Unattached Operating-Theatre Units,
GN R158,
Government
Gazette
6832,
published on 1 February 1980 (Regulations).
[2]
The
first was the decision of the Superintendent-General refusing to
approve Kirland’s applications; the second was the
Acting
Superintendent-General’s decision to approve those
applications; the third was the Superintendent-General’s
decision to withdraw that approval; and the last was the MEC’s
decision to dismiss Kirland’s internal appeal.
[3]
The
Director-General of Health, Eastern Cape did not participate in the
appeal before the Supreme Court of Appeal or before this
Court.
[4]
63
of 1977.
[5]
Regulations
above n 1.
[6]
Regulation
59 provides:
“
Any
person who—
(1) establishes,
extends, conducts, maintains, manages, controls or renders a service
in any private hospital or unattached operating-theatre
unit which
is not registered in terms of the provisions of these regulations;
or
(2)
extends, demolishes or makes structural alterations to the existing
buildings of a private hospital or unattached operating-theatre
unit, or any portion of such buildings, or alters the purpose for
which such buildings are used, without the prior approval in
writing
of the Head of Department;
.
. .
shall
be guilty of an offence and liable—
(a)
upon first conviction to a fine not
exceeding R500 or to a term of imprisonment not exceeding six months
or to both such fine
and such term of imprisonment;
(b)
upon a second conviction for a similar
offence, to a fine not exceeding R1 000 or to a term of
imprisonment not exceeding
one year or to both such fine and such
term of imprisonment; and
(c)
upon a third or subsequent conviction for
a similar offence, to a fine not exceeding R1 500 or to a term
of imprisonment
not exceeding two years or to both such fine and
such term of imprisonment.”
[7]
Fakie
NO v CCII Systems (Pty) Ltd
[2006]
ZASCA 52
;
2006 (4) SA 326
(SCA) at para 55.
[8]
Kirland
Investments (Pty) Ltd t/a Eye & Lazer Institute v MEC for
Health, Province of Eastern Cape NO and Others
[2011] ZAECGHC 78 (High Court judgment) at para 21.
[9]
3
of 2000.
[10]
High
Court judgment above n 8 at para 21.
[11]
Id
at para 27.
[12]
Id
at para 26.
[13]
MEC
for Health, Province of Eastern Cape NO and Another v Kirland
Investments (Pty) Ltd t/a Eye & Laser Institute
[2013]
ZASCA 58
(Supreme Court of Appeal judgment) at paras 22-3.
[14]
Camps
Bay Ratepayers’ Association and Another v Harrison and Another
[2010]
ZACC 19
;
2011 (4) SA 42
(CC);
2011 (2) BCLR 121
(CC) (
Camps
Bay
);
Fuel
Retailers Association of Southern Africa v Director General:
Environmental Management, Department of Agriculture, Conservation
and Environment, Mpumalanga Province, and Others
[2007]
ZACC 13
;
2007 (6) SA 4
(CC);
2007 (10) BCLR 1059
(CC); and
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC).
[15]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984]
ZASCA 51
;
1984 (3) SA 623
(A) (
Plascon Evans
)
and
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA 1
;
2009 (2) SA 277
(SCA) at para 26.
[16]
Supreme
Court of Appeal judgment above n 13 at paras 7-10.
[17]
Id
at para 18.
[18]
Plascon-Evans
above
n 15 at 634E-635C.
[19]
Thint
(Pty) Ltd v National Director of Public Prosecutions and Others;
Zuma and Another v National Director of Public Prosecutions
and
Others
[2008]
ZACC 13
;
2009 (1) SA 1
(CC);
2008 (12) BCLR 1197
(CC) at para 8.
[20]
Section
195(1) of the Constitution provides:
“
Public
administration must be governed by the democratic values and
principles enshrined in the Constitution, including the following
principles:
(a)
A high standard of professional ethics
must be promoted and maintained.
(b)
Efficient, economic and effective use of
resources must be promoted.
(c)
Public administration must be
development-oriented.
(d)
Services must be provided impartially,
fairly, equitably and without bias.
(e)
People’s needs must be responded to,
and the public must be encouraged to participate in policy-making.
(f)
Public administration must be accountable.
(g)
Transparency must be fostered by providing
the public with timely, accessible and accurate information.
(h)
Good human-resource management and
career-development practices, to maximise human potential, must be
cultivated.
(i)
Public administration must be broadly
representative of the South African people, with employment and
personnel management practices
based on ability, objectivity,
fairness, and the need to redress the imbalances of the past to
achieve broad representation.”
[21]
Section
33 of the Constitution guarantees the right to administrative action
that is lawful and reasonable. This means that
when an
official makes a decision, he or she must adhere to these
requirements.
[22]
Section
172(1) provides:
“
When
deciding a constitutional matter within its power, a court—
(a)
must declare that any law or conduct that
is inconsistent with the Constitution is invalid to the extent of
its inconsistency;
and
(b)
may make any order that is just and
equitable, including—
(i)
an order limiting the retrospective effect
of the declaration of invalidity; and
(ii)
an order suspending the declaration of
invalidity for any period and on any conditions, to allow the
competent authority to correct
the defect.”
[23]
S
v Shaik and Others
[2008]
ZACC 7
;
2008 (5) SA 354
(CC);
2008 (8) BCLR 834
(CC) at para 72.
[24]
South
African Association of Personal Injury Lawyers v Heath and Others
[2000]
ZACC 22
;
2001 (1) SA 883
(CC);
2001 (1) BCLR 77
(CC) at para 4.
[25]
Cameron
J’s judgment at [82].
[26]
Chief
Lesapo v North West Agricultural Bank and Another
[1999] ZACC 16
;
2000 (1) SA 409
(CC);
1999 (12) BCLR 1420
(CC) at
paras 17-8.
[27]
Motswagae
and Others v Rustenburg Local Municipality and Another
[2013] ZACC 1
;
2013 (2) SA 613
(CC);
2013 (3) BCLR 271
(CC)
(
Motswagae
)
at para 14.
[28]
Section
8(1) of PAJA provides:
“
The
court or tribunal, in proceedings for judicial review in terms of
section 6(1), may grant any order that is just and equitable,
including orders—
(a)
directing the administrator—
(i)
to give reasons; or
(ii)
to act in the manner the court or tribunal requires;
(b)
prohibiting the administrator from acting in a particular manner;
(c)
setting aside the administrative action and—
(i)
remitting the matter for reconsideration by the administrator, with
or without directions; or
(ii)
in exceptional cases—
(aa)
substituting or varying the administrative action or correcting a
defect resulting from the administrative action; or
(bb)
directing the administrator or any other party to the proceedings to
pay compensation;
(d)
declaring the rights of the parties in respect of any matter to
which the administrative action relates;
(e)
granting a temporary interdict or other temporary relief; or
(f)
as to costs.”
[29]
Bengwenyama
Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and
Others
[2010] ZACC 26
;
2011 (4) SA 113
(CC);
2011 (3) BCLR 229
(CC)
(
Bengwenyama
Minerals
).
[30]
Id
at para 85.
[31]
Id
at para 84.
[32]
Cameron
J’s judgment at [75].
[33]
Cameron
J’s judgment at [86].
[34]
Chairperson,
Standing Tender Committee and Others v JFE Sapela Electronics (Pty)
Ltd and Others
[2005]
ZASCA 2
;
2008 (2) SA 638
(SCA) (
JFE
Sapela
).
[35]
Millennium
Waste Management (Pty) Ltd v Chairperson of the Tender Board:
Limpopo Province and Others
[2007]
ZASCA 165; 2008 (2) SA 481 (SCA).
[36]
Section
2 of the Constitution provides that the Constitution “is the
supreme law of the Republic; law or conduct inconsistent
with it is
invalid, and the obligations imposed by it must be fulfilled.”
[37]
Section
172(1)(b) of the Constitution provides that, when it decides a
constitutional matter, a court “may make any order
that is
just and equitable”. See also section 8(1) of PAJA,
which confers the same remedial jurisdiction, and
Bengwenyama
Minerals
above
n 29 at paras 81-5.
[38]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[2004] ZASCA 48
;
2004 (6) SA 222
(SCA) (
Oudekraal
).
[39]
Similarly,
while it is true that Kirland in its founding affidavit said that Dr
Diliza’s approval was “valid”,
“unassailable”
and “lawful”, this was not an invitation to the High
Court to pronounce on its validity
or set it aside. It was a
necessary assertion that Dr Diliza’s approval, rather than Mr
Boya’s earlier, uncommunicated
refusal, was the extant
decision, which, Kirland argued, could not have been validly
withdrawn. That is why all of these
averments appear in the
section aimed at explaining why Mr Boya was
functus
officio
,
by reason of Dr Diliza’s decision, when he purportedly
withdrew the approval. And it is why emphasis should be given
to Kirland’s full averment. It is that Dr Diliza’s
approval “was valid, and unassailable,
and
could not be withdrawn
.”
(Emphasis added.)
[40]
Supreme
Court of Appeal judgment above n 13 at paras 25-30.
[41]
Id
at para 18.
[42]
Id
at para 17.
[43]
This
Court has not decided the extent to which organs of state can or
must use the provisions of PAJA in proceedings where they
seek the
review of their own decisions. It is not necessary to decide
the issue here either.
[44]
Section
6(1) of PAJA provides that “[a]ny person may institute
proceedings in a court or a tribunal for the judicial review
of an
administrative action”. Section 8(1) empowers courts to
set aside an administrative action “in proceedings
for
judicial review in terms of section 6(1)”. See the
Supreme Court of Appeal judgment above n 13 at paras 27-9
and 33.
[45]
Rule
53 of the Uniform Rules of Court requires proceedings for judicial
review to be “by way of notice of motion directed
and
delivered by the party seeking to review such decision” to all
affected persons and “calling upon such persons
to show cause
why such decision or proceedings should not be reviewed and
corrected or set aside”. The notice of
motion must “set
out the decision or proceedings sought to be reviewed” and “be
supported by affidavit setting
out the grounds and the facts and
circumstances upon which the applicant relies to have the decision
or proceedings set aside
or corrected.”
[46]
Motswagae
above
n 27 at para 14 and
Chief
Lesapo
above
n 26 at para 17.
[47]
Supreme
Court of Appeal judgment above n 13 at para 34.
[48]
Section
7 of PAJA is headed “Procedure for judicial review” and
provides in relevant part:
“
(1)
Any proceedings for judicial review in terms of section 6(1) must be
instituted without unreasonable delay and not later than
180 days
after the date—
(a)
subject to subsection (2)(c), on which any proceedings instituted in
terms of internal remedies as contemplated in subsection
(2)(a) have
been concluded; or
(b)
where no such remedies exist, on which the person concerned was
informed of the administrative action, became aware of the
action
and the reasons for it or might reasonably have been expected to
have become aware of the action and the reasons.”
Section
9 is headed “Variation of time” and provides:
“
(1)
The period of—
.
. .
(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.”
[49]
On
the common-law delay bar see, for example,
Associated
Institutions Pension Fund and Others v Van Zyl and Others
[2004] ZASCA 78
;
2005 (2) SA 302
(SCA) at paras 46-8 and Hoexter
Administrative
Law in South Africa
2
ed (Juta & Co Ltd, Cape Town 2012) at 532-4.
[50]
Khumalo
and Another v Member of the Executive Council for Education:
KwaZulu-Natal
[2013] ZACC 49
(
Khumalo
)
at paras 44-8, 69 and 73 (per Skweyiya J) and paras 92-5 (per Zondo
J).
[51]
Luster
Products Inc v Magic Style Sales CC
[1996] ZASCA 146
;
1997 (3) SA 13
(A) at 21E-H.
[52]
See
Plascon-Evans
above
n 15 at 634E-635C.
[53]
See
above n 37. In
Steenkamp
NO v Provincial Tender Board, Eastern Cape
[2006] ZACC 16
;
2007 (3) SA 121
(CC);
2007 (3) BCLR 300
(CC) at para
30, Moseneke DCJ described a court’s remedial powers under
section 8 of PAJA as “generous”.
Langa CJ and
O’Regan J (at paras 96-7) and Sachs J (at paras 100-2) also
emphasised the breadth of the court’s discretion.
[54]
There
is no right to a perfect administration. See
Logbro
Properties CC v Bedderson NO and Others
[2002] ZASCA 135
;
2003 (2) SA 460
(SCA) at para 17.
[55]
Section
33(3)(a) of the Constitution.
[56]
See
section 1 of PAJA
.
[57]
Id.
“Administrative action” means, subject to a list of
exceptions, “
any
decision taken, or any failure to take a decision”, by an
organ of state or natural or juristic person when exercising
a
public or constitutional power or performing a public function.
[58]
Section
1 of PAJA defines a “decision” as—
“
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—
(a)
making, suspending, revoking or refusing to make an order, award or
determination;
(b)
giving, suspending, revoking or refusing to give a certificate,
direction, approval, consent or permission;
(c)
issuing, suspending, revoking or refusing to issue a licence,
authority or other instrument;
(d)
imposing a condition or restriction;
(e)
making a declaration, demand or requirement;
(f)
retaining, or refusing to deliver up, an article; or
(g)
doing or refusing to do any other act or thing of an administrative
nature,
and
a reference to a failure to take a decision must be construed
accordingly”.
[59]
Id
section 6(2)(a)(iii).
[60]
Id
section 6(2)(a)(i).
[61]
Id
section 6(2)(e)(i).
[62]
Id
section 6(2)(e)(ii).
[63]
Id
section 6(2)(e)(iii).
[64]
Id
section 6(2)(e)(vi) goes to capriciousness or arbitrariness; section
6(2)(f)(ii)(aa) and (cc) goes to whether the action is
not
rationally connected to the purpose for which it was taken or the
information before the administrator; and section 6(2)(g)
goes to
whether the action consists of a failure to take a decision.
[65]
Id
section 6(2)(e)(iv).
[66]
See
above n 48.
[67]
Union
of Refugee Women and Others v Director: Private Security Industry
Regulatory Authority and Others
[2006] ZACC 23
;
2007 (4) SA 395
(CC);
2007 (4) BCLR 339
(CC) at para
78.
[68]
Baxter
Administrative
Law
(Juta
& Co Ltd, Cape Town 1984) at 453 and 461 and Hoexter above n 49
at 290.
[69]
See,
for example,
Walele
v City of Cape Town and Others
[2008] ZACC 11
;
2008 (6) SA 129
(CC);
2008 (11) BCLR 1067
(CC) at
para 72;
Kimberley
Junior School and Another v Head, Northern Cape Education Department
and Others
[2009] ZASCA 58
;
2010 (1) SA 217
(SCA) at para 12; and
Paola
v Jeeva NO and Others
[2003] ZASCA 100
;
2004 (1) SA 396
(SCA) at para 16.
[70]
Oudekraal
above
n 38 at para 1.
[71]
The
Court held at para 40:
“
It
follows that for so long as the Administrator’s approval (and
the extensions) continues to exist in fact the township
owner has
been permitted to develop the township and the Cape Metropolitan
Council was not entitled simply to ignore that when
deciding whether
or not to carry out its public functions.”
[72]
Id
at para 26.
[73]
Supreme
Court of Appeal judgment above n 13 at para 20.
[74]
In
Seale
v Van Rooyen NO and Others; Provincial Government, North West
Province v Van Rooyen NO and Others
[2008]
ZASCA 28
;
2008 (4) SA 43
(SCA) at para 14, the Court, applying
Oudekraal
,
held that acts performed on the basis of the validity of a prior act
are themselves invalid if and when the first decision is
set aside.
At para 13 the Court rightly rejected an argument, in misconceived
reliance on
Oudekraal
,
that the later (second) act could remain valid despite the setting
aside of the first. The decision in all its parts underscores
the exposition of
Oudekraal
’s
essential basis in the main text of this judgment. See also
Norgold
Investments (Pty) Ltd v Minister of Minerals and Energy of the
Republic of South Africa and Others
[2011]
ZASCA 49
;
[2011] 3 All SA 610
(SCA) at para 46.
[75]
Camps
Bay
above
n 14 at para 62 and
Bengwenyama
above n 29 at para 85. Also see
Njongi
v MEC, Department of Welfare, Eastern Cape
[2008] ZACC 4
;
2008 (4) SA 237
(CC);
2008 (6) BCLR 571
(CC) at paras
44-5, where the Court held that until an act is found to be unlawful
it is presumed valid, in accordance with the
maxim
omnia
praesumuntur rite esse acta
,
and agreed that only a court of law can make the authoritative
determination of whether an administrative act alleged to be
“void”
is lawful.
[76]
MEC
for Education, Gauteng Province, and Others v Governing Body,
Rivonia Primary School and Others
[2013] ZACC 34
;
2013 (6) SA 582
(CC);
2013 (12) BCLR 1365
(CC);
Head
of Department, Department of Education, Free State Province v Welkom
High School and Another; Head of Department, Department
of
Education, Free State Province v Harmony High School and Another
(Equal Education and Another as amici curiae)
[2013]
ZACC 25
;
2013 (9) BCLR 989
(CC) (
Welkom
);
and
Head
of Department, Mpumalanga Department of Education and Another v
Hoërskool Ermelo and Another
[2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC).
[77]
In
Welkom
above
n 76 at para 1, Khampepe J stated that “[s]tate functionaries,
no matter how well intentioned, may only do what
the law
empowers them to do. That is the essence of the principle of
legality, the bedrock of our constitutional dispensation,
and has
long been enshrined in our law.” (Footnote omitted.)
[78]
In
The
Master of the High Court (North Gauteng High Court, Pretoria) v
Motala NO and Others
[2011] ZASCA 238
;
2012 (3) SA 325
(SCA) the Supreme Court of Appeal,
reaffirming a line of cases more than a century old, held that
judicial decisions issued without
jurisdiction or without the
citation of a necessary party are nullities that a later court may
refuse to enforce (without the
need for a formal setting aside by a
court of equal standing). This seems paradoxical but is not.
The court, as the
font of legality, has the means itself to assert
the dividing line between what is lawful and not lawful. For
the court
itself to disclaim a preceding court order that is a
nullity therefore does not risk disorder or self-help.
[79]
Above
n 76 at para 86. (Footnote omitted.)
[80]
For
example, at para 26 of Kirland’s replying affidavit it said:
“
I
deny that the respondents may simply ignore an administrative
decision on the basis that it is ‘a non decision’.
The principle of [legality] means that the said decision stands
until set aside by a court or on appeal.”
[81]
3
of 2000.
[82]
See
n 48 above.
[83]
Above
n 50.
[84]
Id
at para 44.
[85]
Section
237 reads: “All constitutional obligations must be performed
diligently and without delay.”
[86]
Khumalo
above
n 50 at paras 46-7.
[87]
Id
at para 73. The minority judgment in
Khumalo
at paras 94-5 found that PAJA was applicable, but agreed with the
obligation to comply with prescribed time periods:
“
The
MEC did not bring any application for condonation nor did she
provide any explanation for such an inordinate delay in bringing
the
application. She was obliged to have done so. It is true
that, in the light of the decision of this Court in
Gcaba
,
the MEC’s contention that the decision to promote Mr Khumalo
and the decision to grant Mr Ritchie protective promotion
constituted administrative action is not sustainable as those
decisions do not constitute administrative action. The MEC’s
contention constituted the entire basis of her application in the
Labour Court. However, the fact that the MEC’s
contention in this regard was wrong, as the main judgment correctly
holds, does not mean that her application was not subject
to the
time-limit requirement prescribed by section 7(1) of the PAJA. The
question whether or not those decisions constituted
administrative
action would be considered and decided on the merits after she had
satisfied the Court either that she had not
delayed unduly in
bringing the application or that there was good cause to condone her
delay. The question whether she
brought her application
timeously is decided before that inquiry and on the assumption that
the decisions constitute administrative
action as she contended.
However, it is important to emphasise that the MEC’s claim was
not competent in law.
As
the MEC did not make an application for the condonation of her delay
in bringing the application and did not offer any explanation
for
the delay, the Labour Court should have dismissed her application on
this ground alone.” (Footnote omitted.)
[88]
The
reason why I refer to Cameron J and Froneman J’s judgments as
the second and third judgments respectively is that they
were
prepared in that order.
[89]
1988 (4) SA 912 (W).
[90]
Id at 921D-E.
[91]
1991 (2) SA 591 (D).
[92]
Id
at 592E-F.
[93]
47
of 2001.
[94]
[2011]
ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC).
[95]
[1991]
ZASCA 35
;
1991 (3) SA 583
(A) at 592E-G.
[96]
See
[80] above.
[97]
3
of 2000.