Bester v MEC, Department of Transport, Roads and Public Works, Northern Cape (629/2004) [2005] ZANCHC 76 (1 January 2005)

Reportable: Yes / No

Circulate to Judges: Yes / No

Circulate to Magistrates: Yes / No

IN THE HIGH COURT

OF SOUTH AFRICA

(Northern Cape Division)

Case no: 629/2004

Date heard: 2005-02-25

In the matter of:

Petrus Jacobus Bester Applicant

versus

MEC, Department of Transport, Roads andPublic Works, Northern Cape Respondent

Coram:

MAJIEDT J et

MUSI

AJ

REASONS

FOR ORDER

MAJIEDT J:

On 25 February 2005 we had issued the following order:

“1. That the decision of the respondent to order the applicant to subject himself to a retest be set aside.

2. That the decision of the respondent to withdraw the applicant’s driver’s licence be set aside.

3. That the respondent is ordered to re-instate the applicant’s driver’s licence forthwith.

4. That the respondent pay the costs of this application.”

We had reserved our reasons, which we now furnish.

It is common cause between the parties:

2.1 That a learner’s licence was issued to the applicant on 8 May 2002 at the Warrenton Traffic Department after the applicant had paid the requisite registration fee and after his eyes had been tested and he had passed the prescribed examination.

2.2 That the applicant had presented himself at the Warrenton Traffic Department on 21 January 2003 where his eyes had been tested again and a driver’s licence had been issued to him on the said date after he had passed the requisite examination.

2.3 That the Department of Transport, Roads and Public Works (the Department) had addressed a letter to the applicant on 5 September 2003 advising him that the Department had obtained information that the applicant’s driver’s licence could have been issued without the requirements and procedures prescribed in the National Road Traffic Act, no. 93/1996 (“the Act”), having been complied with in all respects. The letter stated further that the applicant was required to make telephonic contact within 60 days of the date of the letter with one of the station commanders on a list attached to the said letter.

2.4 That the applicant was thereafter on 14 November 2003 requested to submit himself to a retest for his driver’s licence on 14 January 2004.

2.5 That the applicant’s attorney addressed letters to the Department, inter alia requesting further particulars relating to the allegations in respect of the applicant’s driver’s licence.

2.6 That during January 2004 the applicant received a letter from the Department advising him that his driver’s licence had been withdrawn by reason of the fact that he had not submitted himself for a retest as requested by the Department. This withdrawal had occurred at a time when the applicant’s attorney was still attempting to elicit reasons for the request for a retest – see par. 2.5 supra.

The aforementioned withdrawal of his driver’s licence prompted the applicant to bring this review application for the relief which we had granted in the terms set forth in paragraph one hereof.

The respondent’s decisions firstly to order the applicant to submit himself to a retest and secondly to withdraw the applicant’s driver’s licence were attacked on a number of grounds by Mr Knoetze for the applicant, but for the reasons that follow, it is necessary to deal with only two of them, namely the unlawful abdication of power and the audi alteram partem principle. In doing so, I am prepared to accept that it had in fact been the respondent, and not the Department (as had been contended by Mr Knoetze, not without merit, it must be said), who had taken the decisions aforementioned.

Section 25 of the Act authorizes the MEC of a province to suspend or cancel a driver’s licence under certain circumstances. It is common cause herein that in the present matter, the respondent had purported to act in terms of this provision in taking the decisions which form the subject of this review.

Section 25(1) reads as follows:

“If the holder –

(a) of a learner’s or driving licence issued in terms of this Chapter, a repealed ordinance or any prior law, is disqualified in terms of section 15 from holding it, the MEC of the province concerned shall cancel such licence; or

(b) of a licence referred to in paragraph (a) would constitute a source of danger to the public by driving a motor vehicle on a public road, the MEC of the province concerned may cancel or suspend such licence.”

It is further common cause in this matter that section 25(1)(b), supra, is the specific provision which the respondent relies upon for his decision to withdraw the applicant’s driver’s licence.

Section 25(2) provides that the MEC may request the holder of a driver’s licence to submit himself to certain tests within such period as the MEC may determine. It is also common cause in this matter that such a request was in fact directed to the applicant, as I have already alluded to hereinbefore.

Section 25(5) makes provision for the suspension or cancellation of a driver’s licence by the MEC, should a person fail to adhere to a request to submit him or herself to a retest. Due to the importance of this particular aspect, I quote the subsection in full:

“If any person fails to comply with a request in terms of subsection (2), the MEC may forthwith suspend or cancel, as the case may be, the licence concerned unless such person is able to satisfy the MEC within a period determined by the MEC that such failure was due to a reason beyond his or her control and that such licence should not be so suspended or cancelled.”

(emphasis supplied).

During argument, Ms Henriques for the respondent conceded that the only document in the papers before us which indicates that the respondent had taken the decisions now under review, is annexure GB1 to the deponent Botha’s affidavit which forms part of the respondent’s answering affidavit. Annexure GB1 is a submission addressed to inter alia the respondent by a senior administrative officer within the Department. The objective of the submission is said to be “the submission of several persons to an interrogation and a test to determine his/her competence to drive a motor vehicle, in accordance with section 25 of the National Road Traffic Act, 1996 (Act 93 of 1996)”. The background is then set forth as well as a motivation. The motivation primarily concerns allegations concerning corruption on the part of certain officials of the Traffic Department at Warrenton. This corruption is said to be related to the fraudulent issuing of learners’ licences and driver’s licences to several people at Warrenton. It is alleged in the submission that these corrupt practices had occurred during a specific period of time.

A number of recommendations are then made in the submission and it is important to quote in full the following:

“7.3 Indien enige persoon versuim om na skriftelike kennisgewing vanaf hierdie departement aan te meld vir ‘n ondervraging en toets, of versuim om binne veertien (14) dae na die datum van die betrokke kennisgewing ‘n skriftelike oortuigende rede te verskaf dat sodanige versuim te wyte is aan ‘n rede buite sy/haar geheer, sy/haar bestuurslisensie(s) ingetrek word;

7.4 die oorweging van die bogemelde redes aan die beslissing van die ondersoekspan, in oorleg met die Direkteur: Provinsiale Verkeerbeheer, oorgelaat word;”

(the emphasis is mine).

Ms Henriques was driven to concede during her argument that the contents of par. 7.4 of the submission constitutes a blatant and undisguised, unlawful abdication of power on the part of the respondent. This concession is well made, since it is hard to imagine a more obvious unlawful abdication of power than the one in question. The power to suspend or cancel a driver’s licence is specifically and unambiguously vested in the respondent in terms of section 25(5) of the Act, supra. This is a discretionary power to be exercised by the respondent and by no one else. As Baxter Administrative Law, at 434 correctly points out, the respondent has presumably been chosen to exercise this discretionary power for a specific reason, for example, his accountability, expertise, seniority or advantageous position. By allowing this power (i.e. to consider the cogency of the reasons submitted by a person for his or her failure to adhere to a request to submit him of herself to a retest) to be exercised by an unnamed, faceless investigating team, is to effectively abdicate such power. This is not in compliance at all with the provisions of the Act set forth hereinabove. It is common cause, or at the very least conceded on the papers, that the applicant’s failure to present himself for a retest, was the direct and sole causa for the respondent’s decision to cancel the applicant’s licence.

Baxter op cit, 443 refers to this type of adjudication of power as “passing the buck”. While Ms Henriques has referred us to section 91 of the Act which makes provision for an MEC to delegate powers, it is abundantly clear that in the present case there can be no room whatsoever for an argument that there had been a delegation of the respondent’s powers in respect of the provisions contained in section 25(5). Quite understandably, Ms Henriques did not even attempt to argue that this constitutes proper delegation in terms of section 91 of the Act. With regard to the unlawful abdication of power as has occurred in the present case, see:

Hofmeyr v Minister of Justice and another 1992(3) SA108 (C) at 117 F-G;

President of the RSA v South African Rugby Football Union 2000(1) SA1 (CC) at 28D – 29A.

It is abundantly clear therefore that the respondent has unlawfully abdicated the discretionary power vested in him by virtue of the provisions contained in section 25(5) by authorizing an investigating team to consider reasons furnished by a person for his or her failure to take a retest as requested by the respondent. On this ground alone, the impugned decisions should be set aside.

I shall now consider the question of audi alteram partem. It is trite that where a person’s rights stand to be affected by an administrative decision (such as the two decisions of the respondent in casu), such a person has the right to be heard before a decision is taken. This is so, both at common law and also by virtue of the provisions contained in section 3(2)(b) of the Promotion of Administrative Justice Act, No. 3 of 2000. Moreover, the right to administrative action that is lawful, reasonable and procedurally fair is now enshrined in section 33(1) of the Constitution, Act 108 of 1996. A necessary corollary of the aforementioned right is an entitlement to the application of the audi alteram partem principle.

See: Nortje en ‘n ander v Die Minister van Korrektiewe Dienste en andere 2001(3) SA 472 (SCA) at 479 B-F (par. 14);

Masamba v Chairperson, Western Cape Regional Committee, Immigrants Selection Board 2001(12) BCLR 1239 (C) at 1254 D-J.

The exception to this well-established principle is where a statute clearly and unambiguously provides for the exclusion of the right to be heard.

See: Cooper NO v First National Bank of South Africa Ltd 2001(3) SA 705 (SCA) at 713 F – 714 B (pars [23] – [25]).

National Director of Public Prosecutions v Mohamed NO 2003(4) SA 1(CC) at 16 E (par. 37).

The right to be heard comprises two fundamental requirements, namely adequate notice of the intended action and a proper opportunity to be heard – Baxter op cit, 543-4. See also the provisions contained in section 3(2)(b)(i) and (ii) of Act 3 of 2000. In the present matter it is the second requirement which requires closer scrutiny. In order to be afforded a proper opportunity to be heard, a person has to be fully informed of the case which he/she has to meet;

See: Burns: Administrative Law under the 1996 Constitution (1998) 171-2.

In the present case there has been a complete denial of the applicant’s right to be heard before the two decisions had been taken by the respondent. I say this for the following reasons:

18.1 While the applicant, through his attorney, was engaged in bona fide attempts to obtain further and specific details of the allegations against him (to which he was fully entitled) the decision to request him to undergo a retest was taken by the respondent.

18.2 Ms Henriques quite correctly conceded that no opportunity at all was afforded the applicant beforehand to state his case as to why the two decisions should not be taken.

The applicant’s right to lawful and procedurally fair administrative action has been denied through the violation of the audi alteram partem rule and the decisions stand to be set aside on this ground as well.

I have not deemed it necessary to deal with the other contentions ably advanced by Mr Knoetze for the applicant. Suffice to say that I am of the view that there are considerable merits in his submissions that the respondent had not applied his mind at all in making these decisions and further that the decisions are not rationally justifiable at all.

One last aspect remains. In my view an important caveat should be issued in this matter. We have been told that this review application is being viewed by some as a “test case”. We have also gleaned from the papers that a considerable number of persons had acquired learner’s and driver’s licences during the period in question at the Warrenton Traffic Department. The allegations of corruption on the part of the traffic officers are very serious and, if proved, may have grave consequences.

Every individual case must, however, be treated on its individual merits.

The judgment and order of this court in the present matter should not be regarded by the public in general and the affected individuals (i.e. those who had obtained licences during the period in question at Warrenton) in particular as a blanket approval of all affected licences.

Without being prescriptive, I am of the view that the respondent and the Department ought to examine separately each and every case of the affected individuals and take the steps as may be required in each case. In such inquiry the emphasis should be on the legality or otherwise of an individual’s learner’s or driver’s licence and not on whether the particular individual had been tested by one of the allegedly corrupt traffic officers.

This judgement is most definitely no carte blanche, in particular not to those who may have acquired their licences through illegal means at Warrenton.

___

SA

MAJIEDT

JUDGE

I concur:

_____

CJ

MUSI

ACTING

JUDGE

ADVOCATE FOR THE APPLICANT : ADV B KNOETZE

ADVOCATE FOR THE RESPONDENT : ADV J HENRIQUES

ATTORNEY FOR THE APPLICANT : ELLIOTT MARIS WILMANS & HAY

ATTORNEY FOR THE RESPONDENT : MJILA & PARTNERS

DATE OF HEARING : 2005-02-25