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South Africa Judgment

North Gauteng High Court, Pretoria

Moeketsi v Gauteng Tourism Authority and Another (34046/2021) [2021] ZAGPPHC 816 (1 December 2021)

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01

Holding and result

The court found that the law is settled regarding the permissibility of collateral challenges to unlawful administrative decisions, and that such challenges are not restricted to private citizens. The applicant failed to provide any authority to the contrary and conceded that there are no conflicting judgments on the issue. The court held that the MEC's decision was unlawful and in violation of the principle of legality, and that the applicant's attempt to circumvent proper legal process by persuading the MEC to interfere with the disciplinary chairperson's decision was impermissible. The grounds of appeal were found to lack merit, and there were no reasonable prospects of success. The application for leave to appeal was dismissed with costs.

Court disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.

02

Material facts

Parties

Montsheng Sarah Moeketsi

Applicant Counsel: Mr L. Dixon

Gauteng Tourism Authority

Respondent Counsel: Adv R. Ram SC

MEC for Economic Development, Agriculture, Environment and Rural Development-Gauteng

Respondent

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Main Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant argued that the decision of the MEC, even if invalid, could only be set aside through a formal review application or a counter application in the present proceedings. The applicant maintained that the collateral challenge raised by the first respondent was procedurally improper and that the appeal had reasonable prospects of success. The applicant conceded there were no conflicting judgments on the issue.
Respondent
The first respondent contended that the law is settled regarding the permissibility of collateral or defensive challenges against coercive administrative action, and that such challenges are not limited to private citizens. The respondent relied on several Constitutional Court and Supreme Court of Appeal authorities to support this position. The respondent argued that the MEC's decision was unlawful and that the applicant's conduct was an attempt to circumvent proper legal process. The respondent requested costs on a punitive scale.

05

Court’s reasoning

  1. 01

    Merafong City Local Municipality v Anglo Gold 2017 (2) BCLR 182 (CC) para 55

    A collateral or defensive challenge may be mounted against coercive administrative action and is not limited to private citizens.

  2. 02

    Department of Transport & Others v Tasima (Pty) Ltd 2017 (2) SA 622 (CC) para 86

    The principle of legality requires that administrative decisions be lawful and that unlawful decisions may be challenged defensively.

  3. 03

    Gobela Consulting CC v Makhado (910/19) [2020] ZASCA 180 (22 December 2020)

    A collateral challenge is permissible where a party is faced with coercive action based on an unlawful administrative act.

  4. 04

    Oudekraal Estates (Pty) Ltd v City of Cape Town & Others 2004 (6) SA 222 (SCA) para [32]

    Unlawful administrative acts may be challenged without the need for a formal review application in certain circumstances.

  5. 05

    Section 17(1)(a) of the Superior Courts Act no. 10 of 2013

    Leave to appeal may only be granted if there are reasonable prospects of success or compelling reasons, including conflicting judgments.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the law is settled regarding the permissibility of collateral challenges to unlawful administrative decisions, and that such challenges are not restricted to private citizens. The applicant failed to provide any authority to the contrary and conceded that there are no conflicting judgments on the issue. The court held that the MEC's decision was unlawful and in violation of the principle of legality, and that the applicant's attempt to circumvent proper legal process by persuading the MEC to interfere with the disciplinary chairperson's decision was impermissible. The grounds of appeal were found to lack merit, and there were no reasonable prospects of success. The application for leave to appeal was dismissed with costs.

Obiter and limits

  • The applicant and the MEC were admonished that the MEC had no authority to interfere with or set aside the decision of the disciplinary hearing chairperson.
  • The applicant's conduct in persuading the MEC to act outside her authority was an attempt to avoid challenging the chairperson's decision through legally recognized processes.
  • There is no basis for awarding costs on a punitive scale in this matter.

Court disposition

Application for leave to appeal dismissed with costs.

  • The application for leave to appeal is dismissed with costs.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment text

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Source document

North Gauteng High Court, Pretoria

Judgment

[2021] ZAGPPHC 816

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH

AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

CASE NO: 34046/2021

In the matter between:-

MONTSHENG

SARAH MOEKETSI

Applicant

And

GAUTENG

TOURISM

AUTHORITY First Respondent

MEC FOR ECONOMIC DEVELOPMENT,

AGRICULTURE, ENVIRONMENT AND

RURAL

DEVELOPMENT-GAUTENG Second Respondent

Delivered. This judgment was handed down electronically by circulation to the parties’ representatives by email. The date and time for hand down is deemed to be 10h00 on 01 December 2021.

JUDGMENT-LEAVE TO APPEAL

SKOSANA AJ

[1] This is an application for leave to appeal against my judgment handed down on 02 November 2021. The factual background is set out in the main judgment and need not be repeated herein.

[2] The central issue in this application is whether I misdirected myself when I allowed the collateral or reactive challenge brought by the first respondent in his opposing affidavit in relation to the validity of the decision of the second respondent (the MEC). The applicant persists with its submission that the decision of the MEC, even if it was invalid, could only be set aside through either a review application or a counter application in the present proceedings.

[3] I am required to decide whether there are reasonable prospects of success of the appeal and/or whether there are compelling reasons including conflicting judgments for me to grant such leave[1]. It was conceded though by the applicant’s counsel that there are no conflicting judgments in relation to the issue at hand.

[4] I am in agreement with the first respondent’s counsel that the law has been settled in relation to whether a collateral or defensive challenge can be mounted against coercive action and there is no reason to limit the right to such challenge to private citizens. In this regard reliance was placed on the Merafong case[2], Tasima case[3], Gobela case[4] and Oudekraal case[5]. No authorities were cited on behalf of the applicant to counter the latter. Understandably, there is no contrary authority and the applicant’s counsel rightly conceded that there are no conflicting judgments on that subject.

[5] As reasoned in my main judgment, the MEC’s decision was clearly unlawful and in violation of the principle of legality. Moreover, both the MEC and the applicant had been admonished by the first respondent that the MEC has no authority to interfere with or set aside the decision of the chairperson of the disciplinary hearing. Notwithstanding this, the applicant proceeded with persuading the MEC to do what she did merely to avoid challenging the chairperson’s decision through any legally recognized process. The MEC fell headlong into this folly.

[6] The other grounds of appeal have been sufficiently addressed in my judgment and have no merit.

[7] In the circumstances, there are no reasonable prospects of success of the appeal. I am not persuaded that this applicant warrants costs on a punitive scale as requested by the first respondent.

[8] Accordingly, I make the following order:

The application for leave to appeal is dismissed with costs.

DT

SKOSANA

Acting Judge of the High Court

Gauteng Division, Pretoria

Date of hearing: 29 November 2021

Date of judgment: 01 December 2021

Appearances:

For the Applicant:

Mr L. Dixon

Instructed by Phosa Loots Inc.

Eros Street

Boardwalk Office Park, Block 12

First Floor

Faerie Glen

Pretoria

For the First Respondent: Adv R. Ram SC

Instructed by Office of the State Attorney

95 Albertina Sisulu and Corner Kruis Streets

Johannesburg

For the Second Respondent: No appearance

[1] See section 17(1)(a) of the Superior Courts Act no. 10 of 2013.

[2] Merafong City Local Municipality v Anglo Gold 2017 (2) BCLR 182 (CC) para 55.

[3] Department of Transport & Others v Tasima (Pty) Ltd 2017 (2) SA 622 (CC) para 86.

[4] Gobela Consulting CC v Makhado (910/19) [2020] ZASCA 180 (22 December 2020).

[5] Oudekraal Estates (Pty) Ltd v City of Cape Town & Others 2004 (6) SA 222 (SCA) para [32].

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Merafong City Local Municipality v Anglo Gold 2017 (2) BCLR 182 (CC) para 55

Case cited

Department of Transport & Others v Tasima (Pty) Ltd 2017 (2) SA 622 (CC) para 86

Case cited

Gobela Consulting CC v Makhado (910/19) [2020] ZASCA 180 (22 December 2020)

Case cited

Oudekraal Estates (Pty) Ltd v City of Cape Town & Others 2004 (6) SA 222 (SCA) para [32]

Case cited

Superior Courts Act no. 10 of 2013

Legislation

Legislation referenced in the available case record.

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