South Africa: High Courts - Gauteng

In the matter between

and

THE MINISTER OF SAFETY
AND SECURITY     FIRST RESPONDENT
THE DEPUTY MINISTER OF SAFETY
AND SECURITY SECOND RESPONDENT

VAN OOSTEN J

INTRODUCTION

[1] This application in essence turns on the validity of certain regulations of “The Regulations Relating to Appeals and Applications for Exemptions, 2003” (“the regulations”) promulgated under the Private Security Industry Regulation Act 56 of 2001 (“the Act”).

[2] The applicant companies are wholly owned subsidiaries of Anglo American Platinum Corporation Ltd, all forming part of the Anglo Platinum Group of companies, which is the world’s primary producer of platinum group metals. The group operations comprise six mines, two smelters, a base metals refinery and a precious metals refinery, situated in the Limpopo and North West provinces of South Africa.

[3] The first and second applicants are rendering security services as defined in the Act to the various companies constituting the Anglo Platinum Group. For this purpose security officers are employed, who are responsible for a variety of security functions. The first applicant also provides training and instruction to its own security officers; has its own intelligence function and manages the rendering of security services within the Anglo Platinum Group. The third and fourth applicants do not strictly have an interest in the matter and were joined in these proceedings merely because the first exemption to which I shall presently refer, was granted to all companies in the Anglo Platinum Group, including the third and fourth applicants. See par [18] infra

[4] For a proper understanding of the nature of the security services rendered by the first and second applicants, it is important to bear in mind that those services are rendered strictly on an in-house basis within the Anglo Platinum Group and therefore not outside of the group to the general public.

[5] The first and second respondents are the Minister and Deputy Minister of Safety and Security respectively. The third respondent is a juristic person established in terms of the Act S 2 whose primary objects in general are to regulate and control the private security industry.

[6] The history of the Act is set out in the recent judgment of the Supreme Court of Appeal in The Private Security Industry Regulatory Authority and Another v Association of Independent Contractors and Another (case no 127/04 dated 31 March 2005, as yet unreported) [par 9]). It is this. The forerunner of the Act was the Security Officers Act 92 of 1987 (“the repealed Act”). The repealed Act was aimed at regulating security officers who were employees of the person or entity that made their services available, and did not deal at all with security officers who stood to the provider in an independent contractor relationship. This obviously led to abuse in that independent contactors who provided security services were not subject to minimum wage legislation and other material statutory provisions. The Act which came into force on 14 February 2002, has the object of overcoming this problem. Its ambit is much wider and it uses provisions and definitions, which substantially extend its scope and operation.

[7] Under the repealed Act, the applicants were not required to register as security service providers. The expanded provisions of the Act however potentially imposed on the applicants a duty to register as security service providers. In this regard s 44(6) of the Act provides as follows:       

The date of registration contemplated in sub-section (a), was originally set by the Minister, as 1 October 2002, and thereafter extended to March 2003.

BACKGROUND

[8] In view of the new legislation and in order to consider their position as well as the various options open to them, the Anglo Platinum Group through their attorneys addressed a letter to the first respondent under the heading “Applications for Exemption of Registration of Security Businesses as Security Service Providers in terms of Private Security Industry Regulation Act, 56 of 2001” The provisions relating to exemptions are contained in s 1(2) and 20(5) of the Act. in which the difficulties they foresaw in procuring registration are set out and an extension of time until 15 February 2003 is sought to register as security service providers “as an interim and temporary measure”. A copy of the request was sent to the third respondent. In response thereto an exemption (“the first exemption”) was granted to all four the applicants on 16 October 2002 by the second respondent which was published in the Government Gazette of 6 December 2002. Published by means of Government Notice No R1500 in Government Gazette No 24119, dated 6 December 2002. In terms thereof the applicants were exempted from the duty to register in terms of s 20(1)(a) of the Act “on condition that the subsidiaries (i.e. the applicants) do not deploy security officers outside the holding company Anglo American Platinum Limited”. No further conditions were imposed. Nor was a time limit imposed.

[9] The first exemption however did not include 22 security officers who were in the employ of the second applicant (“the employees”). They were all foreign citizens from neighbouring countries. They of course were, in terms of the Act, also required to register in their individual capacities. See s 20(1)(a) read with the definition of “person” in s 1. An application for their exemption was made on 28 February 2003. Under the heading “Nature of Exemption” it is stated in the application that “The Company The second applicant. accordingly applies for the exemption from the requirement set out in section 23(1)(a) That the applicant for registration must be “a citizen of or has permanent residence status in South Africa”. of the Act for an indefinite period…” (emphasis provided.) The exemption was granted on 4 July 2003 by the second respondent Published under Government Notice No R1119 in Government Gazette No 25278 dated 8 August 2003. “on the condition that they (the employees) only render a security service within Rustenburg Platinum Mines Ltd, and that these individuals do not render a security services (sic) for other security businesses” (“the second exemption”).

[10] Section 35 of the Act empowers the Minister to make regulations relating to a variety of matters. It is worth recording that the section (which is the empowering section in respect of the promulgation of regulations) does not specifically provide for the making of regulations in respect of exemptions. In the view I take of the matter the impact hereof need not to be considered. On 5 September 2003 Government Notice No 1253 in Government Gazette No 25394 dated 5 September 2003. the first respondent published the “Regulations relating to Appeals and Applications for Exemptions 2003”, which contain the regulations pertinent to this application.

(2)(a) Any person who wishes an exemption to be renewed must apply for a renewal not earlier than 90 days and not later than 45 days before the date on which the exemption will lapse as contemplated in sub-regulation (1).
(b) An application for renewal of an exemption is subject to the provisions, with the necessary changes, applicable to the submission and consideration of an application for exemption in terms of these regulations.
(c) If an application for the renewal of an exemption has been submitted to the Authority in terms of these regulations, the exemptions remain valid, subject to these regulations, until the application is decided by the Minister.
(3) The Minister may at any time review an exemption that has been granted or renewed in terms of the Act and, if there is sound reason therefore-
(a)     

withdraw the exemption;
(b)      amend or remove any condition to which the exemption is subject, or add the conditions that may be necessary;
(c)      amend the scope of the exemption; or
(d)      take any other step permitted by law in regard to the exemption.”

“10(1) With effect from the date of commencement of these regulations, any appeal pending in terms of the repealed regulations must continue and be disposed of as though these regulations have not been made, unless the interest of justice require otherwise.

[13] The basic question I am called upon to decide is whether the exemptions are hit by the renewal provisions in the regulations. It is the applicants’ case that the regulations have not in any way affected their status quo ante and that they armed with the exemptions, which they contend are indefinite in duration, remain exempted. The respondents, of course, hold the opposite view and on several grounds contend that the regulations are of application to the exemptions. The primary basis on which this application is brought is for an order declaring regulations “5 to 8, 10(2) and 10(3) (alternatively regulations 8 and 10(3))” of the regulations “unconstitutional, unlawful, invalid and of no force or effect”. In prayer 2 of the notice of motion a further declarator is sought which is somewhat tautologous seeking to provide for the situation that would in any event prevail should the impugned regulations being declared invalid. Prayer 2 reads as follows:

         “2. Declaring that-
                  2.1 the (first exemption) is valid;
                  2.2 the (second exemption) is valid;

2.3 the (first and second exemptions) are indefinite in duration and are not subject to lapsing in terms of regulation 8(1) or 10(3) of the above regulations;
2.4 the first to fourth applicants are not required to apply for renewal of the exemptions as provided for in regulation 8(2) of the above regulations, whether annually or otherwise, in order to ensure their continued validity;
2.5 the first respondent and the second respondent are not entitled to review the said exemptions or to withdraw or amend same as provided for in regulation 8(3) and 8(3)(a) – (c) of the said regulations.”

POINTS IN LIMINE

[14] Before proceeding to the merits of this matter, it is necessary to consider a number of points that the respondents have raised in limine. In general terms they concern the locus standi of the second applicant; the alleged non-joiner of the employees as well as the directors and executives of the applicants and finally the alleged misjoinder of the third and fourth applicants in these proceedings. See generally on joinder of parties Herbstein & Van Winsen The Civil Practice of the Supreme Court of South Africa 4th ed 165. In response to the points in limine the employees have filed an application in terms of Rule 12 of the Uniform Rules of Court for intervention in the proceedings of the employees conditional upon this court finding that the applicants have no locus standi or are not entitled to the relief sought on account of the employees not having been joined as respondents in the main application. In support of the application for intervention all the employees have filed confirmatory affidavits in which firstly, the right to demand to be joined as respondents in the main application is waived and secondly, they associate themselves with the relief sought by the applicants in the main application. Although the respondents have filed a notice of opposition to the application, no opposing affidavits were filed. In the view I take of the matter, it will not be necessary to decide the application for intervention except for the costs thereof which I propose to do later in the judgment.

[15] Turning now to the first point in limine. It is this. The second applicant, and for that matter all the applicants it is said lack locus standi in respect of the relief sought relating to the second exemption, as the second exemption was granted to the employees and not to the second or other applicants. The applicants so the argument went, consequently have no direct and substantial interest in the relief they seek relating to the second exemption. In my view the objection cannot be upheld. The second applicant, in its capacity as their employer applied for the exemption on behalf of the employees. A commonality of interest based on the employment relationship existed not only in obtaining the second exemption but also in the relief sought in this application. But it does not end there. It has by now become firmly entrenched that legal standing is much wider than what the common law embraced. Section 38 of the Constitution provides for expanded locus standi with regard to the protection of rights enshrined in the Bill of Rights. Cf Highveldridge Residents Concerned Party v Highveldridge TLC and Others 2002 (6) SA 66 (T) par [6]. Legal standing is given inter alia to “anyone acting as a member of, or in the interest of, a group or class of persons.” S 38(a) The second applicant applied for the second exemption on behalf of the employees and thus did so in its own as well as in the employees’ interests. The relief the applicants seek also involve the protection of their constitutional rights, the nature of which will be touched on later in the judgment. It matters not that the reliance on the constitutional provisions only emerged in the replying affidavit: it should be stressed that the right to rely on protection of constitutional rights can never be denied merely because it was raised at a late stage in the proceedings. The Court will always jealously guard those rights no matter when protection thereof is claimed. The respondents’ reliance on cases such as Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others 1974 (4) SA 362 (T) at 368B-369A and Union Finance Holdings Ltd v IS Mirk Office Machines II (Pty) Ltd and Another 2001 (4) SA 842 (W) at 847H, 848H in support of the proposition that the applicants should not be entitled “to make out a case” for legal standing in their replying affidavit by relying on the constitutional provisions, no doubt is ill-conceived and cannot be sustained. Cf Ferreira v Levin NO and Others: Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) par [165] – [166]; JR De Ville Judicial Review of Administrative Action in South Africa 400 et seq.

[16] The second point in limine concerns the non-joinder of the employees as parties to the proceedings. The objection is short-lived: the basis for upholding a plea of non-joinder generally is the prejudice that may be caused to such party if the relief sought is granted. Compare President of the RSA v SA Rugby Football Union 2000 (1) SA (1) at par [233] where the Constitutional Court approved the following formulation of “interest” in the subject matter of the action that would require joinder in Henri Viljoen (Pty) Ltd v Averbach Brothers 1953 (2) SA 151 (O) at 167H “a legal interest in the subject matter of the action…which could be prejudicially affected by he judgment”. (underlining provided.) See also Herbstein & Van Winsen 170. In the present matter such prejudice is completely absent, on the contrary the employees only stand to benefit should the relief be granted. In any event the objection is finally laid to rest by operation of the waiver of the right to demand their joinder, to which I have already referred.

[17] Still under the non-joinder objection the respondents contend that the applicants ought to have joined the applicants’ directors as well as those persons in their employ performing executive functions on the basis that, absent an exemption, they would have had to register as security service providers in their individual capacities. Again, it is difficult if not wholly impossible to conceive how their rights could be prejudicially affected by the judgment of the court in this application. But there is this further consideration: the directors, shareholders and employees of the applicants are directly involved in the relief sought and it would lead to glaring absurdities and manifest impracticalities if their joinder were required. It follows that this objection too, is without substance and falls to be dismissed.

[18] The final objection concerns the alleged misjoinder of the third and fourth applicants who as I have mentioned, are not security service providers. The first exemption as I have indicated above included them as companies forming part of the Anglo Platinum Group. More importantly perhaps is the fact that the exemption conferred vested rights upon them which may be exercised in future. In view hereof they were in my view entitled to join forces with the other companies in the same group in launching this application. I am accordingly satisfied that an interest sufficient to establish legal standing in these proceedings, has been shown to exist. It follows that this objection likewise is doomed to failure.

THE MERITS OF THE APPLICATION

[19] This brings me to the merits of the application. At the outset it will be necessary to examine the nature and scope of the relief sought in an attempt to define the real issue which I am called upon to decide. The applicants in the relief they seek and in the arguments presented before me, not surprisingly, have cast the net wide. In the view I take of the matter it is not necessary to decide all those aspects. On a proper analysis this matter essentially turns on the retrospectivity of the regulations. The starting point is the given fact that it is only by the provisions of regulation 10(3) - which provides for the retrospectivity of the regulations - that the applicants are brought within the purview of regulation 8. The validity of the other impugned regulations in their prospective operation ie from the date of commencement thereof in my view cannot be challenged. Nor did the applicants attempt to do so. The applicants’ real complaint concerns the retrospectivity of the impugned regulations which as I have mentioned is created in regulation 10(3). That being so I do not think that I am in the circumstances of this case required to go beyond the question of the validity of regulation 10(3). The validity of the other impugned regulations will be considered later in the judgment but then only as an alternative on the postulation of the assumption that retrospectivity does apply to the regulations.

[20] To revert to the question relating to retrospectivity. The rule against retrospectivity has become firmly entrenched in administrative law. It is founded upon the principle of legal certainty which in turn is derived from the rule of law. De Ville 191 Where the exercise of powers affects rights and/or legitimate expectations retrospectivity clearly undermines the constitutional principle of the rule of law. This aspect received the attention of the Constitutional Court in Pharmaceutical Manufacturers Association of SA and Another: In re Ex Parte President of the Republic of South Africa [2000] ZACC 1; 2000 (2) SA 674 (CC) [39] where the following extract from De Smith, Woolf and Jowell Judicial Review of Administrative Action 5^th ed 14-15 was quoted with approval:

“(T)he standards applied by the courts in judicial review must ultimately be justified by constitutional principles, which govern the proper exercise of public power in any democracy. This is so irrespective of whether the principles are set out in a formal, written document. The sovereignty or supremacy of Parliament is one such principle, which accords primacy to laws enacted by the selected Legislature. The rule of law is another such principle of the greatest importance. It acts as a constraint upon the exercise of all power. The scope of the rule of law is broad. It has managed to justify – albeit not always explicitly – a great deal of the specific content of judicial review, such as the requirements that laws as enacted by Parliament be faithfully executed by officials; the orders of court should be obeyed; that individuals wishing to enforce the law should have reasonable access to the courts; that no person should be condemned unheard; and that power should not arbitrarily be exercised. In addition, the rule of law embraces some internal qualities of all public law: that it should be certain, that is ascertainable in advance so as to be predictable and not retrospective in its operation; and that it be applied equally, without unjustifiable differentiation.” (emphasis added.)

[21] The respondents’ answer to this is that the applicants have not acquired any rights under the exemptions. The exemptions so the argument proceeded, are in the nature of an indulgence in that they merely excuse the applicants from the obligation to register and in the case of the employees, also from the statutory requirement regarding citizenship. S 23 (1) (a) of the Act. The exemptions so the argument developed, do not constitute a disposition; nor do they create any rights, resulting in them being precarious in nature all of which entitle the grantor thereof to revise, amend or withdraw them at any stage. Neatly fitted into this framework the conclusion was reached that the regulations in merely enacting what the grantor in any event was entitled to do, are valid and binding on the applicants. I am unable to agree. While it may be true that the exemptions are in the nature of a privilege or indulgence that does not mean that no rights have accrued to the grantees pursuant thereto. The right the applicants have acquired under the exemptions in my view, is the enjoyment of the privilege resulting from the exemption, See Lourens M du Plessis An Introduction to Law 2^nd ed 130-146. which is to provide security services free from firstly, the formal requirements relating to registration imposed by the Act and secondly, the sanctions for non-compliance. See s 38 of the Act.

“33(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair;

The national legislation contemplated in section 33(3) is the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”). Section 3 thereof deals with procedurally fair administrative action affecting any person, and the relevant part thereof reads as follows:

(b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1)-
(i)     

adequate notice of the nature and purpose of the administrative action;
(ii)     a reasonable opportunity to make representations;
(iii)    a clear statement of the administrative action;
(iv)     adequate notice of any right of review or internal appeal, where applicable; and
(v)      adequate notice of the right to request reasons in terms of section 5.”

The provisions of the Constitution must be regarded as being complementary to the common law rules of natural justice which include the right to be heard and intrinsically encapsulates due notice to be given of the opportunity to be heard. Administrator Transvaal and Others v Theletsane and Others [1990] ZASCA 156; 1991 (2) SA 192 (A) at 206 A; See generally De Ville 71.

Regulation 10(3) of the Regulations Relating to Appeals and Applications for Exemptions, 2003 promulgated under the Private Security Regulation Act 56 of 2001 is hereby declared null and void and of no force and effect.
2.       It is declared that
2.1     

the exemption granted to the first to fourth applicants in Government Notice No R1500 dated 6 December 2002 and contained in Government Gazette No 24119 is valid;
2.2      the exemption granted to the second applicant in Government Notice No R1119 dated 8 August 2003 and contained in Government Gazette No 25278 is valid;
2.3      the exemptions referred to in 2.1 and 2.2 above are of indefinite duration and not subject to lapsing in terms of regulation 8(1) of the above regulations;
2.4      the first to fourth applicants are not required to apply for renewal of the exemptions as provided for in regulation 8(2), whether annually or otherwise, in order to ensure their continued validity;
2.5     

the said exemptions are not subject to withdrawal or amendment as provided for in regulation 8(3) of the said regulations.
3.      

The respondents are ordered to pay the costs of the application, such costs to include
3.1     

the costs consequent upon the employment of two counsel; and
3.2     

the costs of the application for intervention in terms of Rule 12.

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

COUNSEL FOR THE APPLICANTS                ADV A DODSON with him
                                                               ADV M SIKHAKHANE

APPLICANTS’ ATTORNEYS                      LEPPAN BEECH INC c/o                                                          ADAMS & ADAMS ATTORNEYS

COUNSEL FOR THE RESPONDENTS               ADV JH DREYER SC

RESPONDENTS’ ATTORNEYS                     THE STATE ATTORNEY

DATE OF HEARING                             5 MAY 2005
DATE OF JUDGMENT                                    2 JUNE 2005