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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case Number:  34290/15 

27/3/2019

In the matter between:

SOUTH AFRICAN BUREAU OF STANDARDS            Applicant

and

THE PUBLIC PROTECTOR                                          First Respondent

JAMES THEOPHILLUS PRABUDASS                         Second Respondent

 

JUDGMENT

 

POTTERILL J

[1]     The South African Bureau of Standards [the SABS] is applying for the reviewing and setting aside of the Public Protector’s Report titled “Regulating Justice; a report on an investigation into a complaint against the South African Bureau of Standards relating to the withdrawal of a permit for the manufacturing and sale of motor vehicle number plates” [report number 4 of 2014/2015] [the Report]. Although condonation was sought for bringing the review not within the 180 days required by The Promotion of Justice Act 3 of 2000 [PAJA], it is now common cause that the decisions of the Public Protector is not subject to review in terms of PAJA.[1]  The decision of the Public Protector is however subject to the principle of legality; rationality pertaining to procedure and substance.[2] All condonation applications were granted or where unopposed at the stage of the hearing.

 

          Common cause factual background

[2.1]   I find it necessary to set out a short factual background due to the long delays throughout the matter and to give necessary context.  I do not find it necessary to repeat what the purpose and power of the Public Protector or the SABS is;  the relevant legislation defines same.

 

[2.2]  The second respondent [Prabudass] was in the business of manufacturing registration number plates. He did it under the name of two entities, but for purposes hereof I will refer to Prabudass as the entities, because nothing turns hereon.

[2.2]  On 2 March 1998 Prabudass was issued with a SABS report confirming that his registration number plates complied with the compulsory specification for retro-reflective number plates for motor vehicles. This was necessary because at that time under the Road traffic Act 93 of 1996, regulation 35, it was compulsory for a number plate to bear a certification mark; practically thus a registration number plate had to have an issued SABS mark.

[2.3]  On 17 March 2000 the SABS confirmed that Prabuduss’ silk-screen method of manufacturing registration plates were acceptable in terms of SABS 1116, provided all aspects thereof where complied with.

[2.4]  During 2001 Prabudass lodged a complaint [the first complaint] of maladministration with the Public Protector against the SABS. The complaint related to the SABS’s indifference of enforcing the set standards, SABS 1116-4:1996, in respect of the acrylic number plates manufactured by means of the “kiss-cut” method. The SABS disputed any suggestion that it failed to discharge its regulatory functions. Neither had it failed to enforce compliance with the specifications provided for in SABS 1116-4:96. The Public Protector made no finding on this first complaint due to a break in communication with Prabudus and “put the file on hold.”

[2.5]  In 2001 Prabudass had also lodged a complaint [the second complaint] at the provincial office of the Public Protector in Kwa-Zulu Natal.  This complaint referred to the withdrawal of the SABS mark to his registration number plates.  Prabaduss received this notice with effect from 18 September 2000. It reads as follows:

 

“I hereby wish to advise that due to product that clearly does not comply with the SABS Specification or the compulsory specification VCB062 your permit is hereby withdrawn.

 

Please be advised that you may not place the SABS logo on any Number Plates effective immediately.  In terms of the compulsory specification VCB062 you may not manufacture a Number Plate that does fully comply with SABS 111B-IV.  Failure to comply with this will result in Legal Action.”

 

[2.6]  The Public Protector consolidated the two complaints. The reason for this was that upon investigation the Public Protector expected that the outcome of the second complaint would be related to the issues raised in the first complaint. “This was because Prabudass, with the second complaint, had alleged that there was a nexus between the withdrawal of his manufacturing permit and the complaints raised by him with SABS regarding the kiss-cut methodology.  Prabudass had suspected that the withdrawal of the manufacturing permit was linked to the fact that he had vociferously and actively engaged senior officials at SABS with his concerns on the kiss-cut method of number plate manufacturing.  He was also concerned that he was being perceived as a threat to existing stakeholders in the number plate industry owing to his design and development of a manufacturing process in competition with established manufacturers who were using the wanting kiss-cut methodology to manufacture acrylic number plates.”[3]

 

 [2.7] Just as with the first complaint the second complaint was also just filed. This was because upon receipt of the information and feedback from the SABS further feedback was required from Prabudass. Prabudass failed to respond to the Public Protector’s request and the Public Protector could make no findings.   

[2.8]  However, in February 2012, pursuant to Prabuduss contacting the Public Protector, both complaints were revived. The Public Protector exercised her discretion to entertain these complaints despite the expiry of 11 years from which the second complaint was lodged and despite s6(9) of the Public Protector Act 23 of 1994 [the PP Act] which reads as follows:

“Except where the Public Protector in special circumstances, within his or her discretion, so permits, a complaint or matter referred to the Public Protector shall not be entertained unless it is reported to the Public Protector within two years from the occurrence of the incident or matter concerned.”

         

[2.9]  The motivation for the exercise of the discretion is provided in para 2.7 and 2.8 of the provisional report and is set out identically in paras 2.2.4 and 2.2.5 of the final report:  “… it was decided to re-open the complaints after it was established that the events that led to the complaints matter had such a psychological effect on the Complainant that he subsequently went into a state of severe depression. The complainant found it difficult to continue with his ‘normal’ life, and to find the necessary resolve and will to go through the mental challenge of what was at that time a drawn out dispute with the SABS. The Complainant wanted to resume his business interests in the manufacturing and distribution of motor vehicle number plates … He discovered that the earlier events had a lasting effect on his reputation and credibility and hindered his chances of being accepted as a legitimate role-player and contributor to the number plate industry. The only way to continue with his goal … was to achieve a conclusion of the matters that he had originally raised with the Public Protector.”

         

[2.10] On 13 March 2013 the Public Protector released the provisional report; “Lasting Consequences.” In this report the Public Protector indicated her intention on finding on the second complaint that:   

“the process followed by the SABS to withdraw the permit was procedurally unfair because the complainant was not afforded of the right to be heard, nor was he advised of the fact that he had the right to submit written representations to the SABS’ Chief Executive Officer. Furthermore the withdrawal of the permit was unlawful because it did not comply with the Regulations issued in terms of the Standards Act 29 of 1993. Nor did the conduct of the SABS comply with the requirements for a fair administrative process as required by s33 of the Constitution and s3(2)(b) of PAJA.”  This constituted maladministration as contemplated in the PP Act prejudicing Prabudass.

 

[2.11] The suggested remedial action is to direct the SABS’ CEO to enable and assist Prabudass to apply for the necessary permission to be registered as a manufacturer, distributor or reseller of number plates to the public and to provide him with R250 000 to do so. An amount of not less than R150 000 to re-establish a business to manufacture number plate machines and supply number plate accessories in selected areas. Furthermore Prabudass must be awarded a reasonable amount as settlement for consolatory compensation, to address the distress and trauma experienced by him and his family as a result of the matter in which the matter has been handled.[4]

[2.12] On 14 May 2013 the SABS who was called on to formally respond to the provisional report before the 12^th of April 2013, did so. In essence the SABS objected to the Public Protector entertaining the complaints 11 years after the complaints were lodged. This was specially so as the second complaint was never received by the SABS, and no comment made thereon by the SABS at the relevant time. This was evidenced by the provisional report setting out no version of the SABS. This left the SABS prejudiced to recall what happened 11 years ago. Eleven years after the fact the SABS’ employees who dealt with the matter were no longer in the employ of the SABS. The SABS was at a serious disadvantage because the SABS’ documentary proof was destroyed.

[2.13] To address this problem the CEO of the SABS requested copies of all the documents upon which the intended findings in the provisional report were based on. In the response from the Public Protector the SABS was reminded that it was provided with a draft document that encapsulated a complete summary of the evidence obtained in the initial investigation as well as “some documents”. The second complaint did not form part of the documents. There were also no documents from which the Public protector could have concluded that Prabudass in fact had such severe depression for 10 years that he could not function.

[2.14] The SABS also set out that although the letter of the withdrawal of the permit was inelegantly put the SABS did not withdraw the permit, but simply recorded the fact that Prabudass had relocated his manufacturing facility without seeking the SABS’ approval thereof with the result that the permit issued to him expired by operation of law in terms of item 7(1)(d).[5]

 

[2.15] In 2014 the final report is issued by the Public Protector.  The Public Protector brought out no finding on the first complaint.  The findings pertaining to the second complaint was as follows:

                   

“8.2    Regarding whether the SABS fairly or unfairly withdrew the Complainant’s permit to manufacture and distribute motor vehicle number plates, accordingly action constituting improper conduct and maladministration, I find that:

8.2.1   The Complainant was in possession of a test report and letter of confirmation from the SABS dated 02 March 1998 and 17 March 2000, respectively, stating that the Complainant’s ‘silkscreen’ method of manufacturing number plates as well as the number plates manufactured by him, complied with SABS specifications SABS 1116-4:199

8.2.2   On 18 September 2000 the SABS issued a notice to the Complainant advising him that the product that he was manufacturing, in terms of the permit, did not comply with SABS specifications SABS 1116-4:1996, and that his permit was withdrawn;

8.2.3   The notice addressed to the Complainant was intended to inform him of a decision by the SABS that the permit had been withdrawn, but merely informing him of the expiry thereof as a result of alleged relocation of his premises.

                   8.2.4   The SABS failed to –

                             a)       Inform the Complainant of its intention to withdraw the permit;

                             b)       provide adequate reasons for the withdrawal of the permit;

c)       provide the Complainant with an opportunity to respond to adverse information that affected the decision to withdraw the permit;  and

d)       inform the Complainant that he had the right to submit written representations to its Chief Executive Officer (CEO).

8.2.5   The SABS therefore failed to comply with the provisions of the Regulations Relating to Permit Fees and Certification Mark Permits, issued in terms of the Standards Act, 1993, which empowered the Chief Executive Officer to suspend or cancel the registration of a manufacturer of number plates in terms of section 5(4) of the Standards Act, 1993 after prior notification of such intention to the permit holder;

8.2.6  The process followed by the SABS to withdraw a permit was procedurally unfair and not in compliance with the requirements for a just administrative process contained in section 33 of the Constitution and section 3(2)(b) of PAJA.

8.2.7   The conduct of the SABS constitutes maladministration as envisaged in section 6 of the Public Protector Act and improper conduct as envisaged in section 182 of the Constitution.

8.2.8   Because of the continued nature of administrative functions and the consequences for the Complainant, the interests of justice and in an effort to uphold the rights and principles that are espoused in our Constitution, the maladministration and improper conduct in this matter cannot be cured by the mere passage of time.

8.3     Regarding whether the actions of the SABS had caused the Complainant to suffer any prejudice, I find that:

8.3.1   At the time when the permit was withdrawn the Complainant was self-employed and building a business on an innovation in which he invested a large part of his life in order to establish himself as an individual in an industry where long-established businesses had been controlling the market in terms of vested processes and practices;

8.3.2   The withdrawal of the permit had the effect that the Complainant was not able to lawfully pursue this manufacturing business venture and ended up without any income.

8.3.3   Apart from the financial impact, the the [sic] failure to provide reasons resulted in the complainant not being able to exercise his rights and in essence to victimisation.

8.3.4   The maladministration referred to above has prejudiced the Complainant in that he suffered and continues to suffer severe distress and loss of income.”     

 

[2.16] At the hearing it was conceded on behalf of the Public Protector that the remedial action ordered by the Public Protector should be set aside and referred back to the Public Protector.

 

          Is the final report of the Public Protector to be reviewed and set aside?

          Entertaining the complaints after the expiry of two years

[3]     Entertaining a complaint 11 years after it was laid certainly calls for exceptional circumstances. As with most claims and complaints, there is for good reason, time-frames within which such must be instituted or laid.  In this instance the PP Act has set a time-limit of 2 years. The underlying reason for time-frames is the trite maxim; justice delayed is justice denied. Underpinning this principle is the prejudice parties suffer when time has lapsed. To mention but a few; no finality of a matter, evidence lost, memories failing and legislation and policies evolving.

 

[4]     The Public Protector’s own finding on the first complaint, is in itself an excellent example of why after the expiry of so many years negates against entertaining a complaint:

“In considering whether or not the investigation process should continue with the view to obtain independent information, I took into account that the areas of concern raised by the Complainant at the time, are likely to have found different application in the current manufacturing and distribution practices in the motor vehicle number plate industry, to such an extent that the responses and information that were provided at the time might not have the same evidentiary value in the current environment.  In addition, the Compulsory Specification for Retro-Reflective Number Plates for Motor Vehicles (VC8082) has in the meanwhile been withdrawn by the Minister of Trade and Industry and acrylic plates are being phased out in new motor vehicle registrations in favour of aluminium plates.  Since the matter is no longer regulated by the Standards Act, 1993 or the Regulations, the issues raised in respect this complaint currently falls outside the mandate of the SABS.”

 

[5]     The Public Protector however found that since both complaints were lodged within two years from the occurrence of the incidents she need not exercise her discretion in terms of sec6(9).  But, in any event, she has a discretion and there is no “reference or link to the time limitations in the prescription legislation.” [6]  She also took into account the nature of the complaint and the redress sought and accepted a prima facie indication of improper conduct in state administration and unremedied prejudice to Prabudass. Another factor was “the likelihood of concluding the matter due to the delay having regard to the nature of the allegations.”[7]  She considered the availability of information and records. She also took into account that “an organ of State to manage and maintain its records properly, balanced against concerns that a remedy for an administrative injustice could be denied or compromised as a result of incorrect or lack of authentic records or failure to retrieve records.” [8]  In casu the fact that a finding was never made and the outcome or suspension was never communicated to the parties in terms of s8(1) of the PP Act was a factor she considered.

[6]     The facts relied on to entertain the complaints were that the withdrawal of the permit led to a 10 year depression that disabilitated Prabudass. The beliefs by Prabudass that he had an important contribution to make to both the licence manufacturing industry and road traffic law enforcement influenced the Public Protector to accept his complaints. The withdrawal of his permit had tainted his reputation and credibility with the industry seriously hindering his chances of being a legitimate role-player and contributor to the number plate industry. The only way he could resume his involvement in the number plate manufacturing industry was if the complaints he had lodged were revived.

[7]     The question to be answered is whether the Public Protector acted fairly when entertaining these complaints, 12 years after the fact, not only to Prabudass but also to the SABS. I think not. It is clear the Public Protector accepted on the say so of Prabudass that, despite the expiry of 12 years, unidentified people in the registration number plate industry knew that his permit was twelve years ago withdrawn and remembered same. She jumped to the conclusion these “people”, because of the withdrawal of his permit, thought his reputation to be tainted to such an extent that he would not be accepted back into the industry. I am not clear on what his non-acceptance by industry means and it is not explained. A person that wants to sell number plates must have a SABS mark. He must apply to the SABS, not through an industry, and is not reliant on somebody else in the industry to do so, or approve same. If Prabudass wants to manufacture and sell registration number plates, the same applies, he must approach the relevant authorities. The fact that his SABS mark permit was withdrawn will not in the minds of the people in the industry leave an impression of bad manufacturing because it is two different processes. In fact on his own version his number plates were of excellent quality and, if so, the people in the industry will remember that. The Public Protector accepted that the only way Prabudass could get back into the industry was if the complaints were reopened. This simply is factually incorrect; he can follow the channels, that he knows well, and apply to manufacture and to obtain a SABS mark permit. No basis is laid as to what qualifies him as a role-player in road traffic law enforcement and this could never be a factor as to why the complaints should have been entertained. Prabudass never expressed, and the Public Protector did not mention or find, that Prabudass was afraid that the SABS would treat him unfairly should he apply for a SABS mark permit again. On these facts the Public Protector should not have re-opened the investigations.

[8]     She accepted prima facie indication of improper conduct in state administration and unremedied prejudice to Prabudass. Even if at first blush she prima facie concluded that because Prabudass was not given fair warning of the withdrawal of his permit, neither was he told that he can appeal against such withdrawal, the SABS did not follow a fair procedure, she in view of the excessive time-lapse and the nature of the industry, being regulated, should have at the very least have obtained a version from the SABS in the process of investigating the complaints. This is specially so as the SABS never had sight of Prabudass’ second complaint. I accept that the Public Protector has adopted a certain work method which entails that she only consults with a complainant and not the organisation complained of, before bringing out a provisional report, but in exercising her discretion fairly on these set of facts, she should have obtained comment from the SABS as to the process followed by the SABS. Investigation must always be undertook fact specific. The fact that the industry is regulated, 11 years had lapsed and the SABS was not shown the complaint or asked to respond thereto renders the procedure followed herein unfair.  She should not have revived the complaints, unless she put specific safeguards in place, which she did not.

[9]     She considered the availability of information and records. She also took into account that “an organ of State to manage and maintain its records properly, balanced against concerns that a remedy for an administrative injustice could be denied or compromised as a result of incorrect or lack of authentic records or failure to retrieve records.”[9]  The Public Protector dismissed the complaint of the SABS that after 11 years the file and documents pertaining to this matter were destroyed and therefore she should not consider the complaint. In fact, she took umbrage with the SABS for this loss of records. This is an astonishing stance; if the SABS knew there was a complaint 11 years earlier they could have safe-guarded the documents, but the Public Protector simply did not inform the SABS of the complaint. She ignored the fact that the relevant person who withdrew the permit, was available for an interview in lieu of the destroyed documents. What makes matters worse is the Public Protector herself submitted that her office unfortunately misplaced the original complaints and correspondence submitted by Pradubass; the pot calling the kettle black. The Public Protector balanced the “mismanagement” of the documents of the SABS with the prejudice Prabudass would suffer. Herein lies the substantive irrationality of the decision of the Public Protector as set out below.

[10]   The Public Protector should not have after a 10 -12 year period have investigated the complaints in the manner she did, and acted irrational in doing so.

                   

          Procedural fairness

[11]    But even if I should be wrong and she did exercise her discretion fairly in investigating the complaints, the investigation process was unfair and irrational and should be set aside.

 

[12]    No court will prescribe to the Public Protector how to conduct an investigation, but with a review the Court will have to assess if the procedure followed was fair and rational in the circumstances.[10]  In entertaining complaints that were laid 11 years earlier, these complaints cannot fit in the same mould as the “normal” investigation process set out in par 32 of the answering affidavit.

[13]    The specific process followed in this instance as set out in par 74 of the answering affidavit is unfair and irrational.  The submissions by Prabudass on the second complaint was accepted at face value. This complaint of Prabudass was never provided to the SABS for comment and the review record reflects same. The Public Protector’s avers that after having considered the response from the SABS to the closing report, the Public Protector decided to issue the provisional report. The SABS denied that it ever received such report and from the review record there is no evidence that the Public Protector did consider such response.

[14]    The Public Protector joined the second complaint with the first complaint because of the view that the withdrawal of the permit was directly connected, and in revenge, to Prabudass’ allegations against the SABS. Despite not being able to decide the first complaint the Public Protector persisted in entertaining the second complaint. Upon a reading of the papers this acceptance of Prabudass’ view was not done with an enquiring mind as required of the Public Protector.  There was no reflection as to whether this was indeed true and what other possibilities existed. In those circumstance the fair and rational investigation would in the very least include requesting a response from the SABS before the provisional report and especially so in view of the excessive time-lapse.

[15]    The fact that the SABS officials and, specifically Mr Prince, was implicated in the complaint rendered the next fair and logical step to have an interview with this official, this was however never done. To reiterate, the issues in the second complaint was allegedly a knee jerk malicious reaction to the first complaint. Despite no finding made on the first complaint, without ever interviewing Mr Prince the report was finalised. Upon a reading of the papers I cannot find that the Public Protector investigated this matter with an enquiring open mind, in fact, my distinct impression is that the Public Protector upfront decided that they must protect the man on the street from this organisation, worked on assumptions and did not attempt to find the truth. Listening only to Prabudass, with 9 interviews, led to only discovering the truth as told by Prabudass and simply because no evidence, not a single interview with officials of the SABS, was obtained to prove the contrary.[11]  The SABS’ averments that Prabudass failed to comply with the permit requirements was not traversed with Mr Prince.

[16]   The process followed by the Public Protector was unfair and irrational.

 

          Substantive irrationality

[17]    The whole premise of the enquiry was irrational. On analysis of the complaint the Public Protector considered and investigated the following issue: “Whether the SABS unlawfully or unfairly, withdrew the Complainant’s permit to manufacture and distribute motor vehicle number plates, accordingly action constituting improper conduct and maladministration” and “Whether the actions of the SABS had caused the Complainant to suffer any prejudice?”[12] 

 

[18]    Prabudass was not issued a permit by the SABS to manufacture and distribute motor vehicle number plates. The starting point of the investigation was thus wrong, bad in law and irrational.  The investigator of the Public Protector in his answering affidavit goes as far as to submit under the heading the “LEGISLATIVE FRAMEWORK WITHIN WHICH SABS OPERATES” Prabudass thus operated as both a manufacturer and distributor of motor vehicle number plates manufactured in accordance with the silkscreen method in terms of a permit issued to him by the SABS. SABS’s approval also allowed him to operate as a designer and distributor of manufacturing machines to other distributors.”[13]  In par 80 of the answering affidavit the Public Protector avers that “the Public Protector found that the letters from SABS dated 2 March 1998 and 17 March 2000 amounted to a manufacturing permit, and that the permit had been withdrawn without adequate prior notice or proper reasons being given.” In argument it was rightly conceded that the SABS mark permit is not a permit under the legislative framework authorising Prabudass to manufacture registration number plates. The SABS does not in terms of the legislation approve manufacturing methods or for Prabudass to operate as a manufacturer or distributor. Although through the report there are glimpses of acknowledgement that the SABS mark permit is not a manufacturing permit, the Public Protector worked form the wrong premise that resulted in her make an irrational finding.

[19]   The resultant remedy ordered, i.e. to enable and assist Prabudass to apply for the necessary permission to be registered as a manufacturer, distributor or reseller of motor vehicle number plates is totally irrational. The R350 000 ordered to do so is simply irrational. This would include an amount to re-open a business. There is no rational connection between the withdrawal of the mark permit and the SABS being to order to assist Prabudass to reopen a business to manufacture. A further R150 000 ordered to re-establish a business is quite astounding. The vague, non-descript and unobtainable remedy ordered of “Provide the Complainant with a remedy, including a reasonable amount as a settlement for consolatory compensation, to address the distress and trauma experienced by him and his family as a result of the manner in which this matter has been concluded”  leaves one dumbfounded and needs no further address. 

[20]   It is no wonder the Public Protector requested the remedy to be set aside and referred back to the Public Protector.

[21]    I accordingly make the following order:

21.1    The Public Protector’s Report titled “Regulating Justice; a report on an investigation into a complaint against the South African Bureau of Standards relating to the withdrawal of a permit for the manufacturing and sale of motor vehicle number plates” [report number 4 of 2014/2015] is reviewed and set aside;

21.2    The first respondent, the Public Protector, is ordered to pay the costs of the application.

 

 

 

S. POTTERILL

JUDGE OF THE HIGH COURT

 

 

CASE NO:  34290/15

 

HEARD ON:   20 February 2019

 

FOR THE APPLICANT:  ADV.  N.H. MAENETJE SC

                                           ADV. T. MOSIKILI

 

INSTRUCTED BY:  Gildenhuys Malatji Inc.

 

FOR THE FIRST RESPONDENT:  ADV. S. COWEN SC

 

INSTRUCTED BY:  Bowman Gilfillan Inc.

 

FOR THE SECOND RESPONDENT:  MR. D.M. DE BRUYN

 

INSTRUCTED BY:  De Bruyns Attorneys

 

DATE OF JUDGMENT:  27 March 2019    

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