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DELIVERED: 27 January 2009 /BH

Not reportable

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 35393/2003

IN THE MATTER BETWEEN:

MMA SECURITY SERVICES CC t/a

BROUBART SECURITY FIRST APPLICANT

MARK TROYDEN WOOD SECOND APPLICANT

AND

PRIVATE SECURITY INDUSTRY

REGULATORY AUTHORITY FIRST RESPONDENT

S NKAMELA NO SECOND RESPONDENT

HK DLEPU NO THIRD RESPONDENT

CJ WEPENER NO FOURTH RESPONDENT

JUDGMENT AND REASONS FOR ORDER DATED 6 SEPTEMBER 2006

SITHOLE, AJ

(A) INTRODUCTION

[1] On 6 September 2006, having read the application papers in the above matter and having heard full argument from counsel for the Applicants and for the First and Second Respondent, I made the following order:

“(a) That this matter is reviewable and in the circumstance prayers 1 and 2 are granted; and

(b) Costs are to be paid by the first and second respondents on an attorney and client basis.”

I also indicated that, if need be, I shall give my full reasons for this order at a later stage.

[2] On 14 September 2006 the attorneys of record for the First and Second Respondents filed a notice in terms of Rule 49(1)(c) requesting me to furnish them with reasons for the aforesaid order. Subsequently, there has been considerable correspondence wherein the request has been persisted with by the Respondents’ attorneys. Unfortunately I was not able to accede to these requests earlier then I thought I would on account of various circumstances which were beyond my control. These included my hospitalisation late in 2006 and the pressure of judicial work during my several acting stints on the Bench. Suffice it to say that any inconvenience which might have been caused to the parties and their legal representatives is deeply regretted by me. Their patience is appreciated. Having said that, I now give my reasons by way of a full judgment below.

[3] The Applicants brought a review application in terms of Rule 53 of the Rules of Court seeking the following relief:

3.1 That the conviction and sentence by the Second Respondent on 9 October 2001 of the Applicants as set out in an annexure to the Founding Affidavit of the Second Applicant be reviewed and set aside.

3.2 That the dismissal of the Applicants’ appeal by the Third Respondent against the conviction and sentence of the First Respondent as set out in an annexure of the Second Applicants’ Founding Affidavit be reviewed and set aside;

3.3 That the costs of this application be paid by the First Respondent and should the Second, Third and Fourth Respondent oppose this application, they be ordered to pay the costs of the application jointly and severely (sic) with the First Respondent.

[4] The Applicants were represented by Adv. B Pretorius of Port Elizabeth and the First and Second Respondents by Adv. L B van Wyk. The Third and Fourth Respondents duly filed a notice of withdrawal of opposition on 25 October 2004 and confirmed that they will abide by the decision of the Court.

[B] FACTUAL BACKGROUND

[5] The parties

[5.1] The First Applicant is a close corporation trading as a security firm in Port Elizabeth. The Second Applicant is a co-member of the First Applicant.

[5.2] The First Respondent is the Private Security Industry Regulatory Authority incorporated in terms of Section 2 of the Private Security Industry Regulation Act 56 of 2001 (“the Act”).

[5.3] The Second Respondent is a presiding officer appointed by the Security Officers Interim Board in terms of the Regulations of the erstwhile Act. (i.e. The Security Officers Act 92 of 1987.)

[5.4] The First Respondent is the sole committee member of an appeal committee appointed by the Minister of Safety and Security in terms of Section 30(2) of the Act.

[5.5] The Fourth Respondent is the Appeal Secretary appointed by the Minister in terms of the Act. Only the First and Second Respondents oppose the application.

[6] The code of conduct enquiry of 9 October 2001

[6.1] On 9 October 2001, in case no EC28/2001 an improper conduct enquiry in terms of Section 20 of the Security Officers Act 92 of 1987 was held in Port Elizabeth, whereat the conduct of the Applicants was the subject matter. It is, however, common cause that Applicants were not present at this enquiry. Members of the First Applicant at the time comprised the following: Mr M T Wood, his sister Mrs. M Enslin, and his brother Mr. A A Wood.

[6.2] According to the relevant certificate of service a copy of the summons, dated 30 August 2001 informing the First Applicant, duly represented by the Second Applicant as a member of the close corporation, of the date, time and place of the enquiry, was served on the then Respondent recipient (a Mrs. S A Bull) on 3 September 2001 at 15:10 the address being 11 Lawrence Street, Port Elizabeth.

[6.3] The summons also contained the following two clauses:

“(3) Your attention is drawn to the provisions of Section 20(2) of the Security Officers Act, 1987 and Regulation 9 of the Improper Conduct Enquiries Regulations, 2001 in terms of which an enquiry, on any part thereof, may commence or be held in the absence of the Respondent.

(4) If it is your intention to apply for a postponement of the enquiry on the basis of a sound reason, you are requested to inform the Prosecutor accordingly within seven (7) days after this summons has been served on you.”

[6.4] It is common cause that the Applicants never applied for a postponement of the enquiry and that the First Respondent proceeded with the enquiry in the absence of the Applicants. The Applicants were to face and answer to certain charges involving contraventions of regulations of the Security Officers Act 92 of 1987, consequent upon an inspection of the First Applicant conducted by an SOIB inspector, Mr. Johan Pietersen, on 20 February 2001. The outcome of the enquiry was that the First Applicant was convicted of the charges against it and sentenced to a penalty of R70 400,00 with a suspended penalty of a further R500,00. The Second Applicant was convicted of the four charges against him and sentenced to a penalty of R2000-00 in total.

[6.5] It is also common cause that subsequently the Applicants lodged an appeal against their conviction and sentence by the Second Respondent to the Appeal Committee in terms of Section 30(1) of the Act. On 15 September 2003 the Applicants’ attorneys, Messrs Schoeman Oosthuizen Inc, received a letter from Mr C J Wepener, the Appeals Secretary, dated 3 September 2003, in which inter alia, they were informed that the Applicants’ appeal was considered by the Appeal Committee on 8 August 2003 and that it was dismissed for the following reasons:

- “The appellant is in total disregard of legislation.

- The appellant’s continued conduct of transgressions is alarming and warrant (sic) a heavy penalty and positive suspension.

- The appellant has failed to prove beyond reasonable doubt (sic) that it unintentionally defaulted.

- The appellant would not have succeed (sic) on the merits.”

[6.6] The Appellant, being dissatisfied with the above developments and state of affairs, decided to launch the present application which has been brought in terms of Rule 53 of the Uniform Rules of this Court and in terms of Section 6 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), “to review and to correct the Presiding Officer’s improper conduct finding on (sic) the 9^th of October 2003 and the decision of the Appeal Committee on (sic) the 8^th of August 2003.”

[6.7] This application is opposed by the First and Second Respondents on the following grounds:

“- that Applicants’ appeal against Second Respondents (sic) decision is ab initio void;

- that Applicants’ appeal lapsed on 12 February 2002;

- that Applicant’s review application had been delayed unreasonable by them since 12 February 2002 and that this delay should not be condoned;

- that Applicants’ (sic) were properly notified of the date of the hearing;

- that Applicants (sic) own negligence and failure to process the summons served on them and which notified them of the date of the hearing was solely to blame for them not attending to hearing, and

- that Second Respondent’s continuance of the improper conduct proceedings in the absence of Applicants was justified, fair and reasonable under the circumstances.”

(C) THE ISSUE(S) TO BE DECIDED

[7] The question to be decided by this Court is whether, in the light of the foregoing factual background and circumstances adumbrated above, the Applicants are entitled to the relief they ask for in their notice of motion as stated in paragraph (3) supra.

(D) CONTENTIONS AND SUBMISSIONS ON BEHALF OF THE APPLICANTS

[8] In his heads of argument, Adv. Pretorius contended and submitted on behalf of the Applicants that:

[8.1] The three members of the Applicant mentioned in sub-paragraph [6.1] supra, were principally involved in the core functions of the First Applicant with Mrs. M Enslin attending to the administrative functions up to the beginning of 2003.

[8.2] Mrs. S A Bull, on whom the summons was served, was employed by the First Applicant as a data capturer and her main duty was to capture data sheets. She did not inform any of the First Applicant’s members or managers that a summons was served on her. Consequently, the Applicants were not aware of the Improper Conduct Inquiry proceedings that were held in their absence on 9 October 2001.

[8.3] Mrs. Bull resigned and left the service of the First Applicant on 31 December 2001 and the Applicants do not know where to contact her and could accordingly not make any enquiries from her.

[8.4] Mrs. Enslin went on leave from 10 December 2001 to 16 January 2002 and when she returned from vacation she received a letter from the First Respondent dated 30 November 2001 (Annexure “MTW1”) in which she was informed of the enquiry and the outcome thereof. Thereupon she immediately contacted one Mrs. Stella Izait, an employee of the First Respondent and enquired about the improper conduct enquiry proceedings whereafter the Applicant’s attorneys immediately started with proceedings so as to appeal and set aside the conviction and sentence imposed on the Applicant’s by the First and Second Respondents. The events mentioned above as well as the charges which were brought against the Applicants by the First and Second Respondents were set out fully in a letter written by the Applicants’ attorneys to Mr. Stefan Badenhorst of the First Respondent dated 5 March 2002. This letter is Annexure “MTW8” to the Applicants’ founding papers.

[8.5] Although there appear to exist major factual disputes between the version of the Applicants in respect of the enquiry and their defences to the charges brought against them, on the one hand and that of the First Respondent on the other hand, the defences raised by the Applicant are bona fide, and that as is required by the Constitution and the relevant legislation, the Applicants must be afforded the opportunity to raise these defences in a proper enquiry to be conducted by the First and/or Second Respondent. That this is so if regard is had to the facts and defences raised by the Applicants from the outset after they became aware of the finding by the First and Second Respondent.

[8.6] In response to the Respondents’ point in limine that the appeal was a narrow one which was based on the record of proceedings of the improper conduct enquiry, and that the Third Respondent did not have the power to set aside the Second Respondent’s decision, based on submissions presented to her by the Applicants, the Applicants deny that the appeal is a narrow and limited one. More so that it was brought inter alia on the following basis:

8.6.1 Applicants were not aware of the date, time and place of the disciplinary enquiry;

8.6.2 Applicants raised bona fide defences in regard to the charges brought against them.

8.6.3 A party to an administrative action, as the Applicants were, is at law entitled to administrative action that is lawful, reasonable and procedurally fair;

8.6.4 Regulation 6 of the Appeal Regulations does not contemplate the Appeal Committee sitting as a court of law which on appeal can only have regard to the record of proceedings. The Appeal Committee may hear oral evidence or other submissions and representations made by an appellant;

8.6.5 It is trite law that an administrative appeal authority can, in an appeal before it, conduct a re-hearing of the whole enquiry. (Turner v Jockey Club of South Africa 1974 (3) SA 633 at 650 (A). The Applicants consequently submit that the point in limine that the appeal is a narrow one based on the record only, is without substance.

[8.7] On the Respondents allegations that:

(a) Applicants failed to disclose to the Court the whole process surrounding the service of the charge sheet and that it was served on them together with covering letters;

(b) The covering letters informed the Applicants of the nature and seriousness of the improper conduct enquiry;

(c) The covering letters and charge sheet were served on Mrs. Enslin on 24 August 2001;

(d) The Applicants thereafter failed to revert to the SOIB with their purported defence;

(e) The Applicants chose not to be present at the enquiry and failed to take the Honourable Court into their confidence regarding such decision;

(f) The Applicants disingenuously failed to disclose Mrs. Enslin’s knowledge of the relevant procedure to the Honourable Court; and

(g) The Second Respondent was entitled to assume that the Applicants had exercised their right not to attend the enquiry …”

The Applicants state that this is an attempt by First and Second Respondents to persuade the Court that the Applicants are not bona fide in that they do not disclose certain facts and that, at the time the enquiry was conducted, they were in fact aware of the date, time and place of the enquiry and they intentionally exercised a right not to be present at the enquiry. Such attempt, however, cannot be supported by the following undisputed facts:

8.7.1 The covering letters served on Mrs. Enslin do not refer to a particular date, time and place where the enquiry would take place. They merely state that the Board “intends to institute an enquiry into the charges of alleged improper conduct contained in the charge sheet.”

8.7.2 In terms of Regulation 7 of the Improper Conduct Enquiry Regulations, a party who intends to plead not guilty or one who did not reply to notices sent to him/her are on the same footing and the Registrar is obliged to summon such party by indicating the date, time and place of the enquiry.

8.7.3 The fact that a party does not wish to disclose his/her defence at the stage when the charge sheet is served on him/her cannot be construed as any admission or confession on his/her part. Besides, in our law, a party to a disciplinary meeting is entitled to exercise his/her right to silence as well as not to testify during the proceedings.

8.7.4 It is common cause that when the summons in which the Applicants were to be notified of the date, time and place of the enquiry was served by Mr. Pietersen, none of the members of the First Applicant were available to receive the summons. In their absence Mr. Pietersen served the summons on Mrs. Bull who was employed in an administrative capacity.

8.7.5 It appears from page 53 of the Improper Conduct enquiry record that the Second Respondent realised that the summons could have been served on an administrative clerk and obviously anticipated that the date, time and place of the hearing did not come to the attention of one of the executive personnel of the Applicants.

8.7.6 It appears from the record of the First and Second Respondents that the Regulation 15 requirement of an affidavit was not complied with because no such affidavit was presented to the Second Respondent. Instead, a certificate of service was presented.

8.7.7 No evidence was presented by both Respondents to contradict the Applicants’ version that Mrs. Bull did not inform the Applicants of the said proceedings or that she left the services of the Applicants on 31 December 2001. Neither was an affidavit of any person who has personal knowledge of whether the said Mrs. Bull was not only a data capturer employed by the Applicants filed by the First and/or Second Respondent.

8.7.8 The Applicants were entitled and in fact intended to be present at the disciplinary hearing to present their defences and case. The sole reason why the Applicants did not attend the hearing was because they were not aware of the date, time and place of the enquiry. It follows that a party who is not aware of the date, time and place of an enquiry cannot exercise the right not to be present at such enquiry. Knowledge of the enquiry is a prerequisite for exercising the right not to be present.

8.7.9 The Applicants submit that the fact that Mrs. Bull was aware of the enquiry does not justify any inference that she informed the Applicants about it.

8.7.10 The Applicants further submit that, notwithstanding the Respondents’ attitude which is incomprehensible to the Applicants, the averment by Applicants that they were not aware of the date, time and place of the enquiry stands uncontradicted and that this application ought to be adjudicated on that basis.

[8.8] In response to the Respondents’ allegation that Applicants had various opportunities to raise defences against the charge sheet and that they preferred not to do so, the Applicants contend and submit that:

8.8.1 The private Security Industry Regulation Act 56 of 2001 does not compel a “Respondent” to raise any defence prior to the hearing of the disciplinary enquiry.

8.8.2 Although the Act provides a mechanism in terms of which a “Respondent can raise his/her defences, he/she is not obliged to do so;

8.8.3 This is the rationale of Regulation 7 referred to above which provides that the Registrar shall treat a “Respondent” who indicated that he/she is going to plead not guilty on the same footing as a “Respondent” who did not respond to the charge sheet;

8.8.4 As in any trial, the “Respondent” in an enquiry is entitled to exercise his/her right to remain silent until such time as the actual enquiry commences;

8.8.5 The fact that a “Respondent” to an enquiry exercised his/her right to remain silent does not entitle the First and Second Respondent in casu to draw an inference that such “Respondent” admitted the said charges.

[8.9] In response to the allegation by Respondents that applicants did not lodge their appeal within a period of 60 days after service of the notification of the second Respondent’s decision, the Applicants contend and submit that:

8.9.1 This allegation by the Respondents is without any foundation, especially if regard is had to the following facts:

(a) The Second Respondent conducted the improper conduct enquiry on 9 October 2001 and convicted and sentenced the Applicants as appears from annexure MTW1, a letter dated 30 November 2001 written by Mr. Patrick Ronan the Registrar of the Security Officers’ Board to Mr. M T Wood, notifying the latter about the outcome of the improper conduct enquiry;

(b) When the attorney for the Applicants approached Mr. Badenhorst of the First Respondent on 30 January 2002, no appeal regulations and procedure for appeal, save an appeal to the relevant Minister, were available to the Applicants. This is on account of the fact that the Appeal Regulations promulgated in terms of Act 56 of 2001 (the Act) were only published on 14 February 2002.

(c) The Applicants launched their first appeal to the Minister on 5 March 2002. This is apparent from MTW8, a letter written by Mr. S Oosthuizen of the Legal firm Schoeman Oosthuizen Incorporated to Mr Stefan Badenhorst of the First Respondent, which letter is dated 5 March 2002. It cannot be denied that the First and Second Respondents delayed in supplying the Applicants with the record of the Second Respondent’s proceedings until November 2002.

8.9.2 The Applicants therefore submit that:

(a) The Applicants proceeded timeously with their appeal and noted the appeal within the period provided for in the Act and Regulations; and besides;

(b) In his information note to the Appeal Committee of the Private Security Industry Mr. C J Wepener (the Fourth Respondent) in his capacity as secretary of the Private Security Industry, accepted the fact in (a) above.

[8.9] In response to the First and Second Respondents’ allegation that the Applicants have no bona fide defence against the charges which were brought against them, the Applicants contend and submit that:

(8.9.1) The Applicants set out their defences against the charges as early as 5 March 2002 as is evident from annexure MTW8, and, as the record indicates, Applicants stuck to these defences throughout.

(8.9.2) It is also apparent from the record that First and Second Respondents vehemently dispute the defences raised by Applicants. This creates a dispute of facts whose extent appears more clearly from pages 240-281 of the Second Applicant’s replying affidavit.

(8.9.3) The proper forum to adjudicate on the defences raised by the Applicants is in a disciplinary enquiry to be conducted by the Second Respondent; and that, except for a finding that the Applicants in fact raised bona fide defences to the various charges, this Court ought not to enter the arena of deciding the merits of the disciplinary proceedings.

(8.9.4) The Applicants have, in fact, raised bona fide defences to the various charges and in view thereof, the review application as set out in the Notice of Motion ought to succeed.

[8.10] Lastly, insofar as the appeal itself and the finding by the Third and Fourth Respondents are concerned, the Applicants contend and submit that:

(8.10.1) One of the most fundamental principles in any modern legal system is that a party has the right to be heard and to state its case before a court or a tribunal. Hence the audi alteram partem rule as a principle of natural justice of Roman Dutch law. This right is entrenched in section 33(1) of our Constitution (Act 108 of 1996) which provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

(8.10.2) Whatever the First and Second Respondents inferred or assumed from the fact that the Applicants were not present during the proceedings before them, the Third and Fourth Respondents were fully aware that the Applicants made Representations to them that they wish to be heard and to state their case. Furthermore, that Applicants presented evidence that they were not aware of the date, time and place of the proceedings before the First and Second Respondents.

(8.10.3) The Third and Fourth Respondents however found that: “The Appellants have failed to prove beyond reasonable doubt that it unintentionally defaulted.” This is a serious misdirection of the law because in both the High Court Rules and the Magistrate’s Court Rules where a summons has been served and default judgment has been granted, a party in whose absence such judgment has been granted may approach the Court for a rescission of the judgment provided that such party has to prove on a balance of probabilities that:

(a) he/she has shown good cause, and

(b) that he/she has a bona fide defence.

(8.10.4) In criminal procedure there exists no provision to proceed in the absence of an accused where summons was served on him/her and he/she does not attend Court. A warrant for the arrest of such accused is issued by the Court. The reason for the aforesaid procedures in the civil and criminal law is, inter alia, to give effect to the audi alteram partem rule.

(8.10.5) Furthermore, the Third Respondent in her reasons for the decision also found that: “the Appellants would not have succeeded on the merits”. The Applicants maintain that:

(a) Third Respondent could not, where major disputes of fact exist, come to such a finding without hearing oral evidence and the Applicants being afforded an opportunity to cross-examine the witnesses of the First Respondent;

(b) The procedure to give evidence and to cross-examine witnesses during a disciplinary hearing is fundamental to the principle in Section 33(1) of the Constitution referred to above.

(c) Consequently, regard being had to the facts and legal considerations set out above, the Third Respondent should have set aside the decision of the Second Respondent and referred the matter back to the Second Respondent to be heard de novo, alternatively, the Third Respondent ought to have ordered that the mater proceed on evidence de novo before the Third Respondent.

(8.10.6) The Applicants conclude by making the submission that the application ought to succeed and they pray that prayers 1 to 3 as set out in the relevant Notice of Motion be granted.

(E) CONTENTIONS AND SUBMISSIONS ON BEHALF OF THE FIRST AND SECOND RESPONDENTS

[9] In his heads of argument, Adv. L B van Wyk contended and submitted on behalf of the First and Second Respondents that:

[9.1] The appeal lodged by Applicants against the decision of the First Respondent is void ab initio due to failure by the Applicants to ledge it within the prescribed period in that:

(a) The Applicants had to lodge their appeal within 60 days after notification of the Second Respondent’s decision as required by Section 21(1)(c) of Act 92 of 1987;

(b) The Applicants were notified of the outcome of the Improper Conduct Enquiry on 13 December 2001. The sixty day period within which Applicants had to ledge their appeal, calculated from 13 December 2001, expired on 12 February 2002, i.e. two (2) days before Act 56 of 2001 and the Appeal Regulations of 2002 were put into operation;

(c) The Security Officers Board (SOB) made both Applicants aware of the applicable statutory provisions relating to the improper conduct enquiry including an appeal by serving two charge sheets together with a covering letter on Mrs. Enslin of the Applicants. This was on 21 August 2001;

(d) On 16 January 2002 Ms. Enslin became aware of the outcome of the enquiry. On 29 January 2002 the Applicants attorneys requested the SOB to rescind (review and set aside) the conviction and sentence of the Applicants. This letter was not an appeal and was not intended as such because it was sent after the 60 day appeal period had expired, and it was therefore ab initio void and of no consequence. Besides, it was not served on the Minister or Chairman of the SOB in the manner prescribed in Regulation 10 of the regulations published under Act 92 of 1987 in Government Notice 796 of 1990. It follows that the Applicants’ denial that they did not lodge their appeal within 60 days after service of notification of the decision is incorrect;

(e) Neither the Minister nor the Chairman of the SOB can condone the fixed period of 60 days within which Applicants had to lodge their appeal. Furthermore, the Third Respondent (as the Appeal Committee) and the Fourth Respondent (as the Appeals Secretary), being creatures of statute, have no power to extend the appeal period or to condone the late noting of an appeal in terms of Act 92 of 1987 (or Act 56 of 2001) and the regulations made thereunder respectively. Besides, the Applicants did not apply for an extension of the 60 day appeal period to the SOB before their appeal lapsed on 12 February 2002.

(f) Even if the Third Respondent did consider the Appellants’ late appeal on the basis of an incorrect information note submitted to it by the Fourth Respondent that “the appellants appealed within 60 days as stipulated by section 30(1) of the Act”, such incorrect information can not and did not validate Applicants’ late appeal as it was ab initio void and of no consequence. It follows that the Applicants were not entitled to appeal to the Third Respondent in terms of the 2000 Appeal Regulations, more so that Applicants can simply not use the non-existence of Act 56 of 2001 of an appeal procedure to appeal to the Third Respondent.

(g) Lastly, any delay by the First and Second Respondent after 5 March 2002 in supplying the Applicants with the record of proceedings is irrelevant and can be of no consequence as the Applicants’ right to appeal had already lapsed on 12 February 2002.

[9.2] The judicial review proceedings instituted by Applicants against the First Respondent’s decision have been delayed unreasonable and should not be condoned because:

(a) The Applicants were convicted and sentenced on 9 October 2001 and they were notified about the verdict on 13 December 2004. The sixty (60) day period within which they were entitled to lodge an appeal expired on 12 February 2002. Furthermore, the Applicants instituted proceedings for judicial review during the second part of December 2003 and served it on the First and Second Respondents on 5 January 2004;

(b) The application was instituted with unreasonable delay and considerably later than 180 days after Applicants’ internal remedy of appeal had lapsed on 12 February 2002. The Respondent have not agreed that the 180 day period be extended and the Applicants have not applied to Court in terms of section 9 of Act 3 of 2000 to extend the period;

(c) The Applicants lodged and persisted with two late appeals (dated 5 March 2002 and 5 December 2002) while being fully aware that the appeal period had long lapsed;

(d) The Applicants waited until 5 December 2002 (more than a year after service of notification) before appealing, the reason being that they had requested a copy of the transcript, which was provided to them on 21 November 2002 after the prescribed fee was paid on 12 November 2002;

(e) This reason is not valid and cannot justify this long or any delay in lodging an appeal. Only after an appeal has been lodged must the transcript of the proceedings appealed against be prepared. The Applicants were not entitled to insist on a copy of the proceedings to be appealed against, or to delay appealing until after receipt of a copy of the proceedings, or to insist on an extension of the 60 day appeal period until after provision of a record;

(f) Applicants are to blame for the long delay in taking the First Respondent’s decision on review. They simply cannot allege that they did not know about the 60 day period in which their appeal had to be lodged and that it had lapsed on 12 February 2002. They simply cannot allege that they had not been planning since at least 29 January 2002 to take First Respondent’s decision on review. They simply cannot allege that they were not able to appeal against Second Respondent’s decision of 9 October 2001 to the Minister on the ground that no procedure existed then to lodge such appeal;

(g) The Applicants failed to explain the delay in bringing the review application so long after the appeal had lapsed on 12 February 2002. They have been fully aware of the 60 day appeal period and must have realised since at least 5 March 2002 that this period had already lapsed. They failed to give a plausible explanation why they persisted with an appeal which had long lapsed in February 2002 until August 2003. Their bold denial that their appeal was not lodged within the prescribed 60 day appeal period is of no consequence and provides no reason for justification for such denial;

(h) Applicants own negligence and failure to process the summons which had been served on them properly and which timeously notified them of the date of the hearing was the reason why they had not attended the hearing. Applicants are therefore solely to blame for their non-attendance. The Second Respondent’s continuance of the improper conduct proceedings in the absence of the Applicants was justified, fair and reasonable under the circumstances.

(i) The First and Second Respondents submitted that Applicants are to blame for the unreasonable delay. It would not be in the interests of justice to condone the Applicants delay in bringing the review application and to enable Applicants to challenge improper conduct proceedings which had been conducted in their absence, after being properly summoned to such hearing and after they failed to attend such hearing as a result of their own negligence and the negligence of their employees.

(j) The First and Second Respondents further submit that the nature and extent of the private security industry, the enormous power that it wields over its clients and the public in general, and that the public is extremely vulnerable to any absence that may be penetrated (sic) by members of the industry, make it necessary that private security providers such as the First Appellant and its members be properly regulated and disciplined without any delay;

(k) Delays and the duplication of disciplinary and regulatory proceedings of the industry caused by the negligent disregard of summons, non-attendance of disciplinary proceedings and unreasonable delay caused by members of the industry by persisting with appeals that have long lapsed seriously inhibit the First Respondent’s ability to discipline and regulate the industry in the public interest.

(l) The First and Second Respondents lastly submit that the Applicants’ review application against the decision of the First Respondent should be dismissed as a result of undue delay for which Applicants are to blame.

[9.3] As far as the review and setting aside the Second Respondent’s decision by the court is concerned, the Respondents state that:

(a) The First Respondent no longer contends that Second Applicant and/or Ms. Enslin were aware of the enquiry and intentionally decided not to be present. However, the First Applicant, who is a close corporation, was indeed made aware of the enquiry through proper service as prescribed on its employee Mrs. Bull. Not one of the First Applicant’s managers stated that they had no knowledge of the summons. The third member of the First Applicant also made no affidavit as to lack of knowledge;

(b) Second by Applicant’s lack of knowledge cannot be blamed on any of the Respondents. First Applicant’s own employer failed to inform two of the three members of the First Applicant about the summons. There is no evidence that she did not inform any of the First Applicant’s managers or the third member thereabout. But even if there were such evidence, First Applicant, as a closed (sic) corporation, would have had proper notice of the enquiry and therefore knowledge thereof. The First Applicant can not deny notification and knowledge of the enquiry because some of its members were not informed by its employees about the summons and because it did not have any administrative system to process documents which had to be received by its employees on its behalf in terms of any law which its members were aware of the charges and pending enquiry;

(c) The Second Respondent acted reasonably in concluding that Applicants had exercised their right not to attend the enquiry;

(d) The Second Respondent did not deny the Applicants any of their rights as claimed and did not act procedurally unfair (sic) towards Applicants. At the very best for Applicants they failed to attend the enquiry solely as a result of their own negligence in not responding to the summons which was served on them in the prescribed manner. Such failure was true to their own employee not reporting such summons to two of the three members of First Applicant. A real possibility however exists that Mrs. Bull also could have reported the summons to any of First Respondent’s (sic) managers or to the remaining member or Third Respondent as Applicants had failed to provide any evidence to the contrary;

(e) Even if she did not report the summons to any other employee or member of First Applicant, the fact remains that both Applicants had received proper notification and the only reason why Applicants did not respond thereto was that First Applicant and Second Applicant did not have an effective internal system to respond to such notification. Notwithstanding that Applicants were aware of the pending enquiry as a result of the service of the charge sheets on Mrs. Enslin, they recklessly failed to make any arrangements to deal with such enquiry during her absence and holiday or to inform First Respondent that Applicants will not be able to deal with the pending enquiry during Mrs. Enslin’s absences; and

(f) The First and Second Respondents submit that it would not be in the public interest to allow Applicants to use the First Applicant’s reckless disregard of the summons as an excuse to insist on a rehearing. It is further submitted that such a precedent will result therein that First Respondent’s regulatory and disciplinary role will become extremely cumbersome as First Respondent will no longer be able to rely on and proceed with its duties on the basis of properly served summons.

[9.4] As regards the review of the Third Respondent’s decision, the First and Second Respondents, after referring to Applicants’ review grounds against such decision, contend and submit that:

(a) In view thereof the Applicants’ appeal is ab initio void and the dismissal of their appeal should stand on this ground;

(b) If it is found that the appeal is not ab initio void in that it had indeed been lodged within the prescribed period of 60 days, it is submitted that the grounds of review for setting aside of Third Respondent’s dismissal of Applicants’ appeal are without substance;

(c) The appeal in question is a narrow appeal which may be restricted to the record of the improper conduct enquiry of what transpired at the said enquiry;

(d) The First Respondent did not have the power to review Second Respondent’s condition on the ground of procedural unfairness as no express or implied provision is made for this in the authorising statute;

(e) As the appeal was a narrow appeal third Respondent was restricted to have regard to matters as contained inside the record of proceedings and which transpired before Second Respondent;

(f) On the record there was proper service and notification and no mention of any lack of knowledge of the enquiry by any of the Applicants. In the result Third Respondent did not have the power to maintain (sic) the appeal on this ground and;

(g) As Applicants did not raise any bona fide defences in response to the charges that were being heard against them at the enquiry there (sic) and any such defences did not form part of the record of proceedings Third Respondent was not empowered to maintain the appeal and the basis thereof. Applicants’ grounds of appeal are disputed and are not valid. So too are the Applicants’ grounds of review. In the premises, the First and Second Respondents’ request that the Application be dismissed with costs.

(F) ANALYSIS AND FINDINGS

[10] Having read the application papers and having heard argument by both counsel on behalf of the parties, the Court arrives at the following findings that:

(10.1) It is apparent ex facie the application papers that this review application revolves around two basic questions, namely:

(a) Whether the Applicants had knowledge of the improper conduct enquiry and whether they intentionally chose not to attend it; and

(b) Whether the dismissal of the Applicants’ appeal by the Third Respondent against the conviction and sentence imposed by the First Respondent is at law sustainable.

(10.2) It is also clear from the averments and allegations of the parties that there is a dispute of fact whether the Applicants had knowledge of the improper conduct enquiry. The Applicants state that they were completely unaware of the enquiry that was set down for 9 October 2001, and, as a result, did not attend it. According to Applicants, they first became aware of the enquiry when a Mrs. Enslin of the Applicants returned from vacation on 16 January 2002 and received a letter from the First Respondent dated 30 November 2001 in which Applicants were notified that such enquiry was held at Port Elizabeth on 9 October 2001. This, Applicants say, took them by surprise.

(10.3) The Respondents, on the other hand, at first strenuously disputed the Applicants’ lack of awareness of the enquiry and, simply persisted that Applicants “were well aware of the enquiry and that they exercised their rights not to be resent at such enquiry.” Respondents also allege that the evidence that Applicants were unaware of the enquiry “is vague, contradictory and not revealing of the truth.” In their Replying Affidavit, the Applicants, inter alia, reiterate that they were unaware of the proceedings of the Respondents that Mrs Bull did not inform the Applicants of such proceedings and that bona fide (sic) the Applicants did not attend the proceedings due to their unawareness of such date and time of the proceedings. Furthermore, that Applicants only discovered the summons after Mrs. Enslin returned from holiday and in the circumstances as is set out in the Founding Affidavit.

(10.4) It should be mentioned, however, that the Respondents, for some unknown reason, backed down from their initial contention and position by stating that “the First Respondent does no longer contend that Second Applicant and/or Ms Enslin were aware of the enquiry and intentionally decided not to be present.” (See par 9.3(a) supra.) This may have occurred for reasons of qualifying their initial denial that Applicants were well aware of the enquiry. Such qualification can be inferred from what follows after the abandonment of the initial contention by the Respondents, in which they say: “However First Applicant who is a closed (sic) corporation was indeed made aware of the enquiry through proper service as prescribed on its employee Mrs. Bull. Not one of First Applicant’s managers stated that they had no knowledge of the summons. The third member of First Applicant also made no affidavit as to lack of knowledge.”

(10.5) If indeed it is meant to qualify the abandonment of such contention, then it does not make sense to attribute awareness to a juristic person because it operates by means of its functionaries (administrative staff) and Mrs. Bull’s position has long been explained in the Founding Affidavit. Also, the fact that third member of the First Applicant did not make an affidavit as to lack of knowledge does not necessarily mean that one can infer that he had the said knowledge. If anything, the immediate reaction and steps taken by Mrs. Enslin as soon as she became aware that the enquiry was held on 9 October 2001 leads one to believe that she was indeed surprised to receive a letter from the First Respondent upon her return from vacation.

(10.6) Besides, an affidavit not being a pleading, a respondent cannot content himself in his answering affidavit with bare or unsubstantiated denials (vide Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634I-635A. Stated otherwise, it is my considered opinion that it is not good enough for the Respondents merely to say Applicants simply cannot allege this and that and simply cannot deny this and that, as Respondents contended in their papers and heads of argument (vide par 9.2(f) supra). What is more, the Second Respondent has not advanced reasons (if any) why he acted on the assumption that the Applicants had exercised their right not to attend the enquiry. The upshot of this assumption was, of course, that he continued with the enquiry in the absence of the Applicants, convicted and sentenced them in absentia.

(10.7) The proviso in Section 20(2) of the Security Officers Act 92 of 1987, prior to the repeal of this Act by Act 56 of 2001, conferred on a security officer the right to be present at an enquiry to be assisted or represented by any other person, to give evidence and, whether personally or through a representative: (a) to be heard; (b) to call a witness; (c) to cross-examine any person called as a witness in support of the charge; and (d) to inspect any document produced as evidence. The same proviso states that however it shall not be compulsory for the security officer to be present at such an enquiry. The fact that this is so, however, does not in my opinion, deny the right to be present at such enquiry and to state one’s case and be heard. Otherwise the audi alteram partem rule in our law would become nugatory. Furthermore, the fact that it shall not be compulsory for the Security Officer to be present at such enquiry does not, in my view, necessarily mean that one may, without any further ado, proceed with the enquiry in the absence of the security officer on the attested assumption that he exercised his right not to attend the enquiry. In the premises I find that the Second Respondent by making such assumption, decided to proceed with the enquiry in the absence of the Applicants and deprived them of their right to state their case and be heard.

(10.8) As to whether the dismissal of the Applicants’ appeal by the Third Respondent is sustainable at law or not, the Applicants, in their Founding Affidavit, averred that the Third Respondent acted on a complete misconstruction of the law in applying a test that the Applicants had to prove “beyond reasonable doubt” that they “intentionally defaulted”. The Respondents, in their Answering Affidavit deal with the above averment by stating the following:

“The Applicants were properly notified of the Improper Conduct Enquiry and knew that it would occur when they chose not to attend it. The Applicants were in total disregard of legislation where they approached the Third Respondent on the basis of their not being present at the Improper Conduct Enquiry but requesting an overturn of the Second Respondent’s decision. The Third Respondent knew as such and accordingly resolved that the Applicants were in total disregard of legislation. Any “alleged misconstruction of the law is therefore not material and not relevant for present purposes.” The contents hereof are accordingly denied. (My underlining for emphasis.) The Applicants in their Replying Affidavit stated that they deny the contents of the above paragraph and repeat the contents of paragraph 14.7 of their Founding Affidavit; that full legal argument will be presented to Court, and that it is significant that Third and Fourth Respondent does not oppose the application.

(10.9) The foregoing words of the Respondents, in particular the underlined ones, do not fail to leave an impression in one’s mind that the Respondents either do not understand the Applicants’ averment in the Founding Affidavit or that the Respondents cannot grasp the significant difference of the criminal standard and the civil one for the purpose of degree and quantum of proof. Even if the Respondents regarded the Applicants as persons who committed crimes in that they allegedly contravened certain provisions of the Security Officers Act 92 of 1987, there was no onus on the Applicants to prove beyond reasonable doubt that they unintentionally defaulted. This simply means that the Respondents applied the criminal standard instead of the civil one, namely, proof on a balance of probabilities. Moreover, the civil standard applies to all issues on which the burden is placed upon the accused by statute. (vide Ex parte Minister of Justice: in re R v Bolon 1941 AD 345. The same is true in those instances where the accused has the burden of proof at common law. (vide R v Kaukakani 1947 (2) SA 807 (AD). It follows that for the Respondents to allege that any misconstruction of the law is not material and not relevant for present purposes is to duck the issue and to clutch on to straws. In the premises I make the express finding that the Third Respondent indeed acted on a complete misconstruction of the law by applying the wrong test which involved the criminal standard of proof.

(G) CONCLUSION AND ORDER

(10.10) I am therefore constrained to arrive at the ineluctable conclusion that this matter is reviewable and the Applicants have to be granted prayers 1 and 2 as set out in their notice of motion. As to costs, I made the order that “they are to be paid by the Third and Second Respondents on an attorney and client basis.” Generally, such costs are not lightly granted by the court (vide Jewish Colonial Trust Ltd v Estate Nathan 1940 AD 163 at 183-184). Moreover, such costs have not been specifically claimed by the Applicants in their papers. I cannot remember what I had in mind when I granted such costs order. But upon reflection, I realise that I must have meant that the losing parties (First and Second Respondents) have to pay to the successful parties (the Applicants) all reasonable costs incurred except where such costs are unreasonable. This situation has, however, to be corrected because such costs were granted per errorem. Since rule 42(1) of the Rules of Court allows this court to mero motu, vary an order erroneously granted in the absence of any party affected thereby, I therefore have to vary the costs order. The costs order is accordingly corrected and varied to refer to party and party costs instead of attorney and client costs. In the result, the complete order I make in this matter is the following:

1. The conviction and sentence imposed on the Applicants by the Second Respondent on 9 October 2001 is hereby reviewed and set aside; and

2. The dismissal of the Applicant’s appeal by the Third Respondent of the conviction and sentence of the First Respondent against Applicants is hereby reviewed and set aside; and

3. The First and Second Respondents, jointly and severally, the one paying and the other to be absolved, are ordered to pay costs of the interlocutory application to the Applicants on a party-and-party scale.

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M N S Sithole

Acting Judge of the High Court

VAN ZYL LE ROUX & HURTER INC

ATTORNEYS FOR APPLICANTS

SAVAGE JOOSTE & ADAMS INC

ATTORNEYS FOR 1^ST AND 2^ND RESPONDENT

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