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[2018] ZASCA 110
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Matoto v Free State Gambling and Liquor Authority and Others (987/2017) [2018] ZASCA 110 (12 September 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 987/2017
In
the matter between:
HANS
SEUNTJIE
MATOTO
APPELLANT
and
FREE
STATE GAMBLING AND LIQUOR AUTHORITY
FIRST
RESPONDENT
THE
CHAIRPERSON, FREE STATE GAMBLING AND
LIQUOR
AUTHORITY
SECOND
RESPONDENT
THE
CHIEF EXECUTIVE OFFICER, FREE STATE
GAMBLING
AND LIQUOR AUTHORITY
THIRD
RESPONDENT
THE
MEMBER OF THE EXECUTIVE COUNCIL
ECONOMIC
DEVELOPMENT, TOURISM AND
ENVIRONMENT
FOURTH
RESPONDENT
Neutral
citation:
Matoto v Free State
Gambling and Liquor Authority and others
(987/2017)
[2018] ZASCA 110
(12 September 2018)
Bench:
Ponnan, Zondi, Van Der Merwe and
Makgoka JJA and Nicholls AJA
Heard:
17 August 2018
Delivered:
12 September 2018
Summary:
Promotion of Administrative Justice Act
3 of 2000 (PAJA) – whether in the interests of justice for the
180 days envisaged
in s 7(1) to be extended in terms of s 9 –
nature of discretion to be exercised – whilst prospects of
success may be
an important consideration they are by no means
decisive.
ORDER
On
appeal from
:
Free
State Division of the High Court, Bloemfontein (per Molitsoane AJ,
Rampai J concurring, sitting as court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Ponnan
JA (Zondi, Van Der Merwe and Makgoka JJA and Nicolls AJA concurring):
[1]
On 21 September 2012 a special liquor licence for a eating house,
namely Senti’s Lounge, then conducted by Ms Senti Jane
Mathekeng at Erf No 132, Vetman Street, Jacobsdal (the first
premises) was transferred by the first respondent, the Free State
Gambling and Liquor Authority (the Authority) to the appellant, Mr
Hans Seuntjie Matoto, in terms of s 116 of the Liquor Act 27
of 1989
(the Act). Some 7 months later, on 3 May 2013, the appellant lodged
an application in terms of s 41 of the Free State Gambling
and Liquor
Act 6 of 2010 (the FSGLA) with the Authority for the permanent
removal of that registration from the first premises
to Erf No 338,
Wolf Street, Ratanang, Jacobsdal.
[2]
The appellant’s application was refused on 13 November 2013.
The appellant, thereupon, lodged a review application with
the Free
State Division of the High Court, Bloemfontein (the high court),
which came to be settled between the parties on 5 June
2014. In
accordance with the settlement agreement, the high court issued an
order by consent:
(a) rescinding the decision to refuse
the appellant’s application in terms of s 41 of the FSGLA; and
(b) referring the
matter back to the first respondent to be reconsidered within 30
days.
[3]
On 17 September 2014 the appellant was notified that his application
will be reconsidered on 2 October 2014. According to the
appellant,
on the latter date both parties were afforded an opportunity to
present their case, whereafter the proceedings were
postponed
ostensibly for the purposes of obtaining further affidavits from
interested parties. That apparently did not happen.
Instead, by
letter dated 12 March 2015, which was received on 18 March 2015, the
appellant’s attorney was informed:
‘
We
regret to inform you that your application was refused on the
following grounds;
1.
The proposed premises are situated in close proximity to two places
of worship namely, Roman Catholic Church and Dutch Reform
Church
there is therefore a non-compliance with Regulation 8(2),
2.
Proposed premises are in close proximity to an institution of
learning namely, Ikanyegeng Combined School, which fact also indicate
non-compliance with Regulation 8(2) read with s 28 of the Free State
Gambling and Liquor Act;
3.
The proposed premises are also located in an area where there is an
already existing similar liquor outlet, in its close proximity.’
(The
second decision.)
[4]
Two days after receipt of that letter, the appellant’s attorney
wrote to the Authority on 20 March 2015:
‘
Kindly
advise as a matter of extreme urgency as to when the decision was
taken to refuse the above application and also please advise
as to
who made the decision to refuse the application. We await your urgent
reply.’
That
letter went unanswered, prompting the appellant’s attorney to
once again write a month later:
‘
We
need your reply urgently as we need the information to proceed with
the review application.’
On
8 May 2015 the appellant’s attorney wrote yet a further letter
which inter alia stated:
‘
After
we received Mr Lejone’s letter of 12 March 2015 we discuss[ed]
the above matter with your Mr Johan de Bruyn. We informed
him that it
is our instructions to once again proceed with a court application
and that we have to cite the MEC the reason being
that the MEC must
appoint another board to hear the application again.
.
. .
[W]e
are willing to settle the matter on the basis that we have explained
to him that if the authority gives us an undertaking that
they will
not oppose the review application we will not cite the MEC but we
will still be asking for an attorney and client cost
order as it is
clear from the above that the CEO erred in refusing the application
without referring the matter to a hearing again
as the matter was
never finalised at the previous hearing.
.
. .
If
we do not receive before or on close of business on 12 May 2015 a
letter from the authority that the authority will not oppose
the
applicant’s second review application we have been instructed
to then proceed with such an application without the letter
in which
event we will be asking for an appropriate
de bonis propriis
cost order and we will have to cite the MEC so that he could appoint
somebody else to hear the application afresh.’
That
letter elicited the following reply from the Authority on 12 May
2015:
‘
Please
be advised that the Authority will not litigate on correspondence but
will however oppose your client’s application
for review.
Kindly further be advised that allegations contained in your above
letter are denied as far as they relate to what
ought to have been
done by both officials and/or the Board and correct facts will be
placed before the courts at the relevant time.’
[5]
On 29 September 2015 the appellant launched a fresh application
seeking to review and set aside the second decision of the Authority.
The Authority was cited as the first respondent, the Chairperson of
the Authority as the second, the Chief Executive Officer of
the
Authority, as the third and the Member of the Executive Council
Economic Development, Tourism and Environment, as the fourth.
By
then, the 180 days envisaged in s 7(1) of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) had expired. The
appellant
accordingly sought an order that the period be extended in
terms of s 9 of PAJA. The high court (per Molitsoane AJ, Rampai J
concurring)
refused the extension and consequently dismissed the
application without entering into the substantive merits of the
review. The
appeal against that order is with the leave of this
court.
[6]
In terms of s 7(1) of PAJA:
‘
Any
proceedings for judicial review in terms of s 6(1) must be instituted
without unreasonable delay and no later than 180 days
after the date
–
(a)
subject to ss (2)(c), on which any proceedings instituted in terms of
internal remedies as contemplated in ss 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(1) of PAJA, however, provides that the 180 day period may be
extended for a fixed period by agreement between the parties
or,
failing such agreement, by a court on application. In terms of s 9(2)
a court may grant an application in terms of s 9(1) where
the
interests of justice so require.
[7]
It is important to first determine whether the discretion exercised
by the high court in refusing the extension sought by the
appellant
was one in the ‘true’ or ‘loose’ sense.
[1]
The importance of the distinction is that it dictates the standard of
interference by this court. In
Trencon
Construction (Pty) Limited v Industrial Development Corporation of
South Africa Limited and Another
[2015]
ZACC 22
[2]
(26 June 2015),
the Constitutional Court explained:
‘
[84]
In
Media
Workers Association
,
the Court defined a discretion in the true sense:
“
The
essence of a discretion in [the true] sense is that, if the
repository of the power follows any one of the available courses,
he
would be acting within his powers, and his exercise of power could
not be set aside merely because a Court would have preferred
him to
have followed a different course among those available to him.”
[85]
A discretion in the true sense is found where the lower court has a
wide range of equally permissible options available to
it. This
type of discretion has been found by this Court in many instances,
including matters of costs, damages and in the
award of a remedy in
terms of section 35 of the Restitution of Land Rights Act. It
is “true” in that the lower
court has an election of
which option it will apply and any option can never be said to be
wrong as each is entirely permissible.
[86]
In contrast, where a court has a discretion in the loose sense, it
does not necessarily have a choice between equally permissible
options. Instead, as described in
Knox
,
a discretion in the loose sense –
“
means
no more than that the court is entitled to have regard to a number of
disparate and incommensurable features in coming to
a decision.”
[87]
This Court has, on many occasions, accepted and applied the
principles enunciated in
Knox
and
Media Workers
Association
. An appellate court must heed the standard of
interference applicable to either of the discretions. In the
instance
of a discretion in the loose sense, an appellate court is
equally capable of determining the matter in the same manner as the
court
of first instance and can therefore substitute its own exercise
of the discretion without first having to find that the court of
first instance did not act judicially. However, even where a
discretion in the loose sense is conferred on a lower court,
an
appellate court’s power to interfere may be curtailed by
broader policy considerations. Therefore, whenever an appellate
court interferes with a discretion in the loose sense, it must be
guarded.
[88]
When a lower court exercises a discretion in the true sense, it would
ordinarily be inappropriate for an appellate court to
interfere
unless it is satisfied that this discretion was not exercised –
“
judicially,
or that it had been influenced by wrong principles or a misdirection
on the facts, or that it had reached a decision
which in the result
could not reasonably have been made by a court properly directing
itself to all the relevant facts and principles.”
An
appellate court ought to be slow to substitute its own decision
solely because it does not agree with the permissible option
chosen
by the lower court.
[89]
In
Florence
, Moseneke DCJ stated:
“
Where
a court is granted wide decision-making powers with a number of
options or variables, an appellate court may not interfere
unless it
is clear that the choice the court has preferred is at odds with the
law. If the impugned decision lies within
a range of
permissible decisions, an appeal court may not interfere only because
it favours a different option within the range.
This principle
of appellate restraint preserves judicial comity. It fosters
certainty in the application of the law and favours
finality in
judicial decision-making.”’
(Footnotes
omitted.)
[8]
As it was put in
Camps
Bay Ratepayers and Residents Association and another v Harrison
and another [2010] ZASCA 3
[3]
(17 February 2010) para 54 in respect of s 9(2) of PAJA: ‘
the
question whether the interests of justice require the grant of such
extension depends on the facts and circumstances of each
case: the
party seeking it must furnish a full and reasonable explanation for
the delay which covers the entire duration thereof
and relevant
factors include the nature of the relief sought, the extent and cause
of the delay, its effect on the administration
of justice and other
litigants, the importance of the issue to be raised in the intended
proceedings and the prospects of success.’
That,
in my view, plainly contemplates the exercise of a discretion in the
‘loose’ sense.
[9]
The high court found that the appellant had failed to furnish a
reasonably satisfactory and acceptable explanation for both
his
primary delay in failing to meet the 180 day deadline, as also, his
further delay subsequent to the expiry of the deadline.
In
Opposition
to
Urban
Tolling Alliance and others v The South African National Roads Agency
Limited and others
[2013]
ZASCA 148
(9 October 2013) para 26
[4]
this court
observed:
‘
Before
the effluxion of 180 days, the first enquiry in applying s 7(1)
is still whether the delay (if any) was unreasonable.
But after the
180 day period the issue of unreasonableness is pre-determined by the
legislature; it is unreasonable
per
se
.
It follows that the court is only empowered to entertain the review
application if the interest of justice dictates an extension
in terms
of s 9. Absent such extension the court has no authority to
entertain the review application at all. Whether or not
the decision
was unlawful no longer matters. The decision has been ‘validated’
by the delay . . . That of course does
not mean that, after the 180
day period, an enquiry into the reasonableness of the applicant’s
conduct becomes entirely irrelevant.
Whether or not the delay was
unreasonable and, if so, the extent of that unreasonableness is still
a factor to be taken into account
in determining whether an extension
should be granted or not . . . .’
In
this regard it is important to emphasise that s 7(1) does impose an
obligation on an aggrieved party to institute proceedings
for
judicial review without unreasonable delay. Thus, whilst the launch
of an application for review after the 180 days is unreasonable
per
se, the converse does not necessarily hold true. In other words, the
launch of an application within 180 days is not reasonable
per se.
[10]
Here, as the correspondence exchanged between the parties shows, by
12 May 2015 the stance of the Authority had been made clear
to the
appellant’s attorney. From that date the appellant still had in
excess of 160 days before the 180 days contemplated
in s 7(1) were to
expire. As early as 8 May 2015, the appellant’s attorney first
intimated that he had ‘instructions
to once again proceed with
a court application’. And then, notwithstanding the unambiguous
assertion by the Authority that
it would be opposing the contemplated
application, the appellant’s attorney reiterated his threats in
further letters dated
9 June, 6 July and 11 September of that year.
In the first of those three letters it was stated: ‘If we do
not receive your
settlement proposals to dispose of this matter
within the next 3 days we have been instructed to proceed . . . with
a new review
application of which the costs will be astronomical’.
The second asserted that the matter is ‘extremely urgent’.
It added: ‘We therefore await your urgent reply within the next
3 (three) days failing which we have no other choice but
to proceed
for a second time with a review application and we will most
certainly ask for an appropriate cost order’. And,
the third
intimated ‘we are proceeding with a court application if this
matter is not resolved by 12.00 today’. Even
then, a further
eleven days were to elapse before the appellant’s attorney came
to depose to the founding affidavit in the
matter on 22 September
2015. And, a further six days elapsed before the appellant signed his
confirmatory affidavit. The explanation
proffered is that he was
‘far’ from Bloemfontein. Where exactly, is not stated.
Nor, why he could not be reached by
courier or electronically. The
application ultimately issued on 29 September 2015. By then, some
four months had expired from the
time the appellant’s attorney
first intimated that he had ‘instructions to once again proceed
with a court application’.
[11]
In this regard it is important to emphasise that in refusing the
appellant’s application, the Authority had made a final
decision. It was accordingly functus officio. It was thus not open to
it to reconsider the decision. Aggrieved, the appellant had
no choice
but to apply to court to review and set aside the decision. This, the
appellant’s attorney appeared to appreciate
right from the
outset. However, instead of simply instituting the review
proceedings, he first sought an undertaking that the Authority
would
not oppose the threatened application. That, in circumstances where
it was by then still unclear precisely what allegations
would be
levelled against the Authority.
[12]
The explanation proffered for the delay is woefully inadequate. The
superficial manner in which the application was prepared,
the lack of
attention to matters which obviously called for an explanation and
the significant gaps in the narrative obviously
weigh heavily against
the appellant. I would thus find it impossible to hold that the delay
in bringing the review application
has been explained in a manner
which is even remotely satisfactory. On appeal, counsel for the
appellant was accordingly driven
to the contention that,
notwithstanding the appellant’s otherwise poor showing on this
score, the prospects of success in
the contemplated review are such
as to tip the scales in his favour.
[13]
In
Asla Construction (Pty) Ltd v Buffalo
City Metropolitan Municipality
[2017]
ZASCA 23
(24 March 2017) it was pointed out:
‘
[12]
Although a consideration of the prospects of success of the
application for review requires an examination of its merits, this
does not encompass their determination. In
Beweging
vir Christelik-Volkseie Onderwys v Minister of Education
[2012]
ZASCA 45
;
2012 (2) All SA 462
(SCA) paras 42-44, the proposition that
a court is required to decide the merits before considering whether
the application for
review was brought out of time or after undue
delay and, if so, whether or not to condone the defect, was rejected.
Thereafter,
in
Opposition
to Urban Tolling Alliance v South African National Roads Agency Ltd
[2013] ZASCA 148
;
2013 (4) All SA 639
(SCA) paragraphs 22, 26 and 43,
it was decided that a court was compelled to deal with the delay rule
before examining the merits
of the review application, because in the
absence of an extension the court had no authority to entertain the
review application
. . . However, in
South
African National Roads Agency Limited v Cape Town City
[2016] ZASCA 122
;
2016 (4) All SA 332
(SCA);
2017 (1) SA 468
paragraph 81, a submission based upon this decision, namely that the
question of delay had to be dealt with before the merits of
the
review could be entertained, was answered as follows:
“
It
is true that . . . this court considered it important to settle the
court's jurisdiction to entertain the merits of the matter
by first
having regard to the question of delay. However, it cannot be read to
signal a clinical excision of the merits of the
impugned decision,
which must be a critical factor when a court embarks on a
consideration of all the circumstances of a case in
order to
determine whether the interests of justice dictates that the delay
should be condoned. It would have to include a consideration
of
whether the non-compliance with statutory prescripts was egregious.”
. . .
[15]
A full and proper determination of the merits of the review
application was accordingly dependent upon a finding that the
respondent's failure had to be condoned. As stated in
Opposition
to Urban Tolling Alliance
supra, paragraph 26:
“
Absent
such extension the court has no authority to entertain the review
application at all. Whether or not the decision was unlawful
no
longer matters. The decision has been "validated" by the
delay . . . . “’
[14]
Whilst the prospects of success may, in general, be an important
consideration - they are by no means decisive.
[5]
I have not
dealt with the appellant's prospects of success because, in my view,
the circumstances of the present case are such that
the high court
was entitled to refuse the application for an extension
irrespective of the appellant’s prospects of
success. When
considering whether to condone a litigant’s failure to comply
with the rules, this court has said, that:
(i) in cases of flagrant
breaches of the rules, especially where there is no acceptable
explanation therefor, the indulgence of
condonation may be refused
whatever the merits of the appeal; (ii) the court is bound to make an
assessment of an applicant's prospects
of success as one of the
factors relevant to the exercise of its discretion, unless the
cumulative effect of the other relevant
factors in the case is such
as to render the application for condonation obviously unworthy of
consideration and (iii) this applies
even where the blame lies solely
with the attorney.
[6]
These
considerations apply more so to the present enquiry, where the
legislature has ordained that ‘proceedings for judicial
review
. . . must be instituted without unreasonable delay’.
[15]
As the explanation offered was so unacceptable and wanting it is not
difficult to comprehend why the high court found against
the
appellant, irrespective of his prospects of success. In that,
the high court showed due deference to the will of the legislature.
There is accordingly no warrant for this court, sitting as a court of
appeal, to interfere with the decision of that court.
[16]
In the result the appeal is dismissed with costs.
_________________
V M Ponnan
Judge of Appeal
APPEARANCES:
For
Appellant: L le R Pohl SC (with him CD Pienaar)
Instructed
by:
Honey
Attorneys, Bloemfontein
Attorney
for First, Second and
Third
Respondents: NW Phalatsi
NW
Phalatsi & Partners, Bloemfontein
[1]
Oakdene Square Properties
(Pty) Ltd and others v Farm Bothasfontein (Kyalami) (Pty) Ltd and
others
[2013] ZASCA 68
;
2013 (4) SA 539
(SCA);
2013 (3) All SA 303
(SCA) paras 18-20.
[2]
Trencon
Construction (Pty) Limited v Industrial Development Corporation of
South Africa Limited and Another
[2015]
ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 119 (CC).
[3]
Camps
Bay Ratepayers and Residents Association and another v Harrison
and another [2010] ZASCA 3; 2010 (2) All SA 519 (SCA).
[4]
Opposition
to Urban Tolling Alliance and others v The South African National
Roads Agency Limited and others
[2013]
ZASCA 148; 2013 (4) All SA 639 (SCA).
[5]
Rennie v Kamby Farms (Pty)
Ltd
[1988] ZASCA 171
;
1989 (2) All SA 155
(A) at 131E and
Mulaudzi
v Old Mutual Life Insurance Company (South Africa) Limited &
others
,
National
Director of Public Prosecutions & another v Mulaudzi
[2017] ZASCA 88
;
[2017] 3 All SA 520
(SCA);
2017 (6) SA 90
(SCA)
para 34.
[6]
Commissioner for South
African Revenue Service v Van der Merwe
[2015]
ZASCA 86
;
2016 (1) SA 599
(SCA);
2015 (3) All SA 387
(SCA) para 19.