Moeketsi v Gauteng Tourism Authority and Another (34046/2021) [2021] ZAGPPHC 816 (1 December 2021)
- Citation
- [2021] ZAGPPHC 816
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- SKOSANA
- Case number
- 34046/2021
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- SKOSANA
- Case number
- 34046/2021
On this page
Professional case brief
Research organized from the available case record
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. DixonGauteng Tourism Authority
Respondent Counsel: Adv R. Ram SCMEC for Economic Development, Agriculture, Environment and Rural Development-Gauteng
Respondent03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Main Judgment
04
Questions and positions
Legal issues
- 01
Whether the court misdirected itself by allowing a collateral challenge to the validity of the MEC's decision in the first respondent's opposing affidavit.
- 02
Whether the decision of the MEC could only be set aside through a review or counter application.
- 03
Whether there are reasonable prospects of success for the appeal.
- 04
Whether costs should be awarded on a punitive scale.
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
Legal principles
- 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.
- 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.
- 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.
- 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.
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
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 partiesâ 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 applicantâs counsel that there are no conflicting judgments in relation to the issue at hand.
[4] I am in agreement with the first respondentâs 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 applicantâs counsel rightly conceded that there are no conflicting judgments on that subject.
[5] As reasoned in my main judgment, the MECâs 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 chairpersonâs 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].
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