IN THE HIGH COURT OF SOUTH AFRICA

WESTERN CAPE HIGH COURT, CAPE TOWN

CASE NO:19372/2011

In the matter between:

TJ MOTOR VEHICLE TESTING GROUND CC - Applicant

and

MEC FOR TRANSPORT AND PUBLIC WORKS WESTERN CAPE - Respondent

JUDGMENT: 10 OCTOBER 2011

VELDHUIZEN J:

[1] The applicant applies for an order in terms of which:

‘2. It is declared that the applicant shall be entitled to continue trading as a vehicle testing station (grade A) pending the finalisation of review proceedings to be instituted by the applicant;

3. The applicant is . . . ordered to institute review proceedings within 180 days calculated from 13 September 2011 for such relief as it might be advised to claim pertaining to the Respondent's administrative action contained in annexure "K" to the founding affidavit.'

The applicant also claims certain ancillary relief and costs of the application.

BACKGROUND

[2] On 26 July 2005 the Provincial Administration: Western Cape issued a certificate certifying that the applicant is registered as ‘Vehicle testing station Grade A'.

[3] On 24 August 2011 a bus accident occurred at Rheenendal near Knysna in which fourteen children as well as the driver of the bus were killed.

[4] On 13 September 2011 the respondent served the applicant with a notice in terms of which the applicant was informed:

‘I am in possession of affidavits evidencing alleged criminal activity by yourself in your capacity as proprietor and examiner of vehicles of TJ Motor Vehicle Testing Station, due to non-compliance with the provisions of the National Road Traffic Act, 1996 and the National Road Traffic Regulations ("the Regulations"), 2000.

Regulation 141(6) stipulates that no person shall willfully or negligently certify that a motor vehicle is roadworthy if such motor vehicle is not roadworthy.

It is alleged that, on 14 April 2011, you tested and certified a TATA bus, with licence number CAW 37415, as roadworthy whilst the motor vehicle was not in a roadworthy condition. Serious defects were detected during an inspection of the said vehicle on 2 September 2011.'

The notice then sets out four alleged defects and continues:

‘As such I have decided, in the interest of road safety, to suspend the registration of your testing station in terms of Regulation 136(3) of the National Traffic Regulations, 2000 for a period of 30 days pending a final decision on whether to make the suspension a lengthier one or whether to cancel your registration.'

The notice then states that the applicant is given fourteen days to make representations in writing why the applicant should not be suspended for a lengthier period.

DISCUSSION

[5] Regulation 136 of the regulations made under s75 of the Combined National Road Traffic Act, No 93 of 1996 (‘the Regulations') reads:

‘136(1) Subject to subregulation (3), the MEC shall, upon being notified that a registered testing station does not comply with the provisions of this Act, or upon a recommendation of the inspectorate of testing stations that a testing station does not comply satisfy himself or herself of the non-compliance of such testing station.

(2) The MEC shall, in considering the suspension or cancellation of the registration of a testing station on any matter, other than alleged criminal offence-

(a) notify the testing station proprietor of the failure of such testing station to comply with the requirements of this Act; and

(b) demand from such testing station proprietor to indicate in writing within 14 days from the date of the said notification-

(i) the reason for such failure; and

(ii) the details of the measures that have been taken to rectify and prevent such failure.

(3) If the MEC has an affidavit or an affirmation on any alleged criminal offence committed by any testing station proprietor or an employee, agent or manager of such testing station, he or she may immediately suspend the registration of such testing station and seize any records and unused documents of such testing station.'

[6] Regulation 141(6) of the Regulations reads:

‘141(6) No person shall wilfully or negligently certify that a motor vehicle is roadworthy if such motor vehicle is not roadworthy.'

[7] It was submitted on the applicant's behalf that inasmuch as the respondent failed to apply the audi alteram partem rule the respondent's notice falls to be set aside.

[8] Regulation 136(3), other than regulation 136(1) of the Regulations, empowers the MEC to suspend the registration of a testing station with immediate effect.This regulation only applies in the case where an affidavit or affirmation discloses:

(a) an alleged criminal offence;

(b) committed by the proprietor or an employee, agent or manager of a testing station.

It is submitted on behalf of the respondent that the wording of regulation 136(3) indicates that it ousts the audi alteram partem rule . The question I have to answer is whether the MEC can suspend a testing station's registration, in terms of regulation 136(3) of the Regulations without prior notice.

[9] There can be no question that the notice of the MEC in this case constitutes administrative action within the meaning of the Promotion of Administrative Justice Act, No 3 of 2000 (‘PAJA'). In Zondi v MEC for Traditional and Local Government Affairs 2005 (3) SA 589 (CC) Ngcobo J held at para 101 ‘All decision‑makers who are entrusted with the authority to make administrative decisions by any statute are therefore required to do so in a manner that is consistent with PAJA. The effect of this is that statutes that authorise administrative action must now be read together with PAJA unless, upon a proper construction, the provisions of the statutes in question are inconsistent with PAJA' Section 3(1) of PAJA requires that ‘Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.' The wording of regulation 136(3) of the Regulations does not support an interpretation that s 3 of PAJA does not apply to decisions taken in terms of the regulation.

[10] Such procedure should, depending on the circumstances, at least require the giving of adequate notice of the nature and purpose of the proposed administrative action and it should provide a reasonable opportunity to make representations. (s 3(2)(b)(i) and (ii) of PAJA.) What would constitute adequate notice and a reasonable opportunity to make representations for administrative action in terms of regulation 136(3) of the Regulations would, inter alia, depend on the nature of the alleged criminal offence. Does the conduct complained of involve an intentional or negligent wrongdoing? If negligent, is it reckless or one of the lesser forms of negligence? Is the conduct complained of a once off occurrence or of an on-going nature? These are but examples of some of the factors which should be considered when deciding what would constitute adequate notice and what time should be allowed for the making of representations.

CONCLUSION

[11] It follows that, in my view, the applicant's application should be upheld and I accordingly make an order in terms of prayers 2, 3, 4 and 6 of the Notice of Motion.

A.H. VELDHUIZEN, J

JUDGE OF THE HIGH COURT

Source: ANC Western Cape, October 11 2011

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