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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION PRETORIA)

 

Case No: 3896/2012

18/10/17

 

(1)           NOT REPORTABLE.

(2)           NOT OF INTEREST TO OTHER JUDGES

(3)           REVISED

 

In the matter between:

Minister of Police                                                                                                       First Applicant

The Chairperson Mr Thulu Bophela

Private Security Industry Regulatory

Authority                                                                                                                    Second Applicant

Private Security Industry Regulatory

Authority                                                                                                                     Third Applicant

 

And

Jaishankar Ramchandrin                                                                                              Respondent

 

In re:

Jaishankar Ramchandrin                                                                                               Applicant

And

 

Minister of Police                                                                                                   First Respondent

The Chairperson: Mr Thulu Bophela

Private Security Industry Regulatory

Authority                                                                                                                 Second Respondent

Private Security  Industry Regulatory

Authority                                                                                                                 Third Respondent

JUDGMENT

Maumela J.

1.         In the opposed motion roll, the applicant, the Minister of Police, brought an application for rescission in terms of   Rule 42 (1) (a) of the Supreme Court Rules, alternatively in terms of the Common Law. The order sought to be rescinded was granted by this court on 20^th  of  September 2012.

2.         Rule 42 (1) (a) of the Supreme Court Rules provides for rescission in instances where an order of the court was erroneously sought or granted. Respondent contends that in this case the order sought to be ordered to be rescinded was neither erroneously sought nor granted. Alternatively applicant seeks for the order to be rescinded on the basis of Common Law.

3.         Around July 2012 the respondent launched an application seeking orders inter alia:

2.1.      Declaring that Respondent's exemption application in terms of section 20(2) of the Private Security Industry Regulatory Act 56 of 2001 be deemed to be refused.

2.2.      Reviewing and setting aside the First Applicant's deemed refusal of the Respondent's application for exemption from the Private Security Industry Regulatory Authority, more specifically section 20(2) and Regulation 3 thereof.

2.3.      An order ordering the First Applicant to issue an order exempting the Respondent from section 20(2) of the Act and Regulation 3 of the regulation, alternatively,

2.4.      Alternatively, an order compelling the First Applicant to make a decision on the exemption application within 10 (ten) days from the date of the granting of an order by the above Honourable Court.

2.5.      An order that the First Applicant (Respondent) pays the costs of the application on a scale as between attorney and client in respect of the Second and Third applicant.

 

4.         The matter was to be heard in the unopposed roll on the   31^st  of July 2012. The applicant contends that the First applicant  had granted the Respondent  the exemption  on the 19^th  of July 2012. The respondent's attorney sent a   letter to both the First and the Third applicants dated the  23^rd  July 2012, stating the following: "We thank you for your decision. As you might be aware, there is an application on roll in the motion court in Pretoria for the 31^st  July 2012, a copy of which is attached. In the circumstances we will only take an order for costs as per prayer 5    of the application".

5.          Applicant states further that on the 30^th  of July 2012, a notice of intention to oppose was served and filed on behalf of the applicant. On the 31^st  of July 2012 the matter was not on the roll and could not be heard.

6.         On the 2nd of August 2012, the respondent's attorney sent a letter to his attorney  stating inter alia:  "We attach a copy of   a letter from the Minister where the Minister has exempted  our client  from the relevant Provisions  of the Private Industry Regulatory Authority Legislation. In the circumstances it follows that your client is now free and in  fact obliged to register our client as a security officer in   terms of the legislation. We would suggest that your client does so, confirms that this has been done to these offices and thereafter we will withdraw the application, subject to your client tendering our party and party costs;  '.

7.         On the 27^th  of August 2012 the applicant's attorney sent a letter to the respondent's attorney requesting certain documents to enable the third applicant to process the respondent's application for registration. In the same letter the first applicant tendered to the respondent party and  party costs on an opposed scale. On the 13th of September 2012, the respondent's attorney sent a letter to the applicant's attorney stating the following: "we refer to the above matter -and your letter dated 27 August 2012. You filed Notice of Intention to Oppose. This entitles our client to oppose costs. Should your client not tender opposed costs, argued on this issue on 20 September 2012."

8.         On 20 September 2012 the court granted the order now sought to be rescinded. The applicant cites the grounds for the application for rescission.

9.         Section 23 (1): "Any natural person applying for registration in terms of section 21 (1), as a security service provider if the applicant fit and proper person to render a security service, and

(a). As a citizen of or has permanent resident status in SA; (b). This at least 18 years of age;

(c). Has complied with the relevant training requirements prescribed for registration as security service  provider;

(d). ... . ... ... .. . ... ....

(e). ... ... ... ... ... ... ..

(f). Submit a prescribed clearance certificate, together with such other information as the Authority may reasonably require; ... ... ... .....

(g).Has played the relevant application fee and

(h). Is not a person referred to in subsection (5).

 

10.       Applicant submits that the respondent was exempted from the requirements of section 23 (1) (c). This means that the respondent is exempted from undergoing training as a security provider as required by the Act. The respondent has not submitted the certified Identity Document, certified police clearance certificate, certified copy of permanent resident permit and original fingerprint as required by section 23 (1) (a) and (f).

11.        Applicant argued that the respondent did not comply with all other provisions of section 23 of the Act. For that reason the applicant contended that the order was erroneously granted. At the same time the respondent admits that he   did not comply with the other requirements of section 23 (1) of the Act.

12.       The applicant argues that it is on the basis of this non­compliance with the provisions of section 23 (1) that he applies for the rescission of the order granted. He argued that the order violates existing statutes. It is submitted that the respondent was well aware of his non-compliance with section 23 (1) when he obtained an order which obliged the applicant to comply within 10 days.

13.        The order was not granted subject to a condition that they shall be compliant with section 23 (1) before it is implemented. The applicant submits that the same time that while the court retains its discretion, there are no special circumstances obtaining in this case which justify the granting of a punitive cost order. The applicant argues that it would be wrong for the respondent to obtain competitive cost order while at the same time not comply with the prescripts of the Act.

14.       The applicant also argues that the conduct of the respondent is tantamount to misrepresentation with an intention to mislead. Applicant argues therefore that it has made a sufficient case for the rescission of the order and the valuation of the cost order made.

15.        The respondent opposes this application. The Minister of police is the chairperson of the Private Security Industry Regulatory Authority "PSIRA". It is the PSIRA itself which launched an application for the rescission of the court order granted by consent on the 20th of April 2012. The said rescission order was granted by consent in terms of rule 42 (a) and the common law.

16.       The respondent makes the point that no affidavit was filed on behalf of the Minister of Police, and that authority was granted to the Department through one Mr Chauke; an employee of the third applicant. The first applicant is not before court. The respondent indicates that in paragraph number 2 of the founding affidavit the Department states that he is authorised to launch the application on behalf of the third respondent in terms of a resolution attached as annexure "MSC1".

17.       In the affidavit the Department also states that he has authority to impose on behalf of the second and third applicants. He states that on 20^th  of September 2012 the court granted an order wearing the second applicant, alternatively that said applicant, ordered to register the respondent with the third applicants in accordance with the exemption granted by the first applicant within 10 days after service of the order.

18.       A copy of the order is attached as annexure "MSC2". This order was obtained unopposed. Respondent states that this is indeed incorrect because the State Attorney filed a notice of intention to oppose on behalf of the three respondents. However  not  answering  affidavit  was  filed  and the  matter was to be enrolled in terms of the Practice Manual on the unopposed roll.

19.       However the matter is composed, having regard to rule 6 (5) (b), (c), (d), (e) and (f) of the Uniform Rules of court. It is pointed out that the application is opposed as soon as the notice of intention to oppose is filed. It is only as a result of the provisions of the Practice Manual that the matter is enrolled on the unopposed roll at the respondent is "barred" from filing and answering affidavit without agreement or the leave of the court.

20.       In terms of section 20 of the Private Security Industry regulations and the Act, it is very important for a security service provider to register with PSIRA. It is also  provided that a security business may only be thought is that if all persons performing executive or management functions in respect of such security business are registered as security providers. This is also applicable to the directors of trusts and companies.

21.       The applicants base their application on the fact that the order, MSC2 was granted erroneously for two reasons namely:

21.1.    That ex facie the order, the second alternative is that the third applicant is ordered to register the  respondent in accordance with the exemption granted by the first applicant.

21.2.    That the exemption provides that the applicant may remain a director of the company provided that he meets all other registration requirements as contemplated in the Act.

 

22.       The exemption was granted in terms of section 23 (1) (c) of the PSIRA Act which is the prescribed training requirements in respect of security service providers. Respondent argues further that it should be noted that the Afrikaans translation of the notice which was to be published was an exemption  in terms of section 23 (1) of the Act.

23.        The respondent argues that the use of the words "in accordance with" connotes that the registration is to be done so as to be in line with the exemption. The exemption provides that the respondent is only exempted from the provisions of section 23 (1) (c) and that he still has to comply  with all other relevant  requirements for registration.

24.        Should the registration be done in accordance with the exemption, it must also be in accordance with the conditions stated therein. The respondent has maintained throughout that he has met all the relevant. He provided the chronology of events in this founding affidavit. He indicated how long he has been waiting. If regard is to be had to PSIRA's motivation in respect of the exemption dated 18th of November 2009, and attached to the founding affidavit as Annexure "B", it is abundantly clear that the third respondent support the application for exemption in terms of section 23 (1) (c).

25.        For a recommendation to have been made a check on compliance with other relevant requirements must have been done. Besides, it is clearly stated in the founding affidavit in the main application that again on 28^th  of March 2012 the Minister of Police was requested to expedite the matter.

26.        Annexure "I" attached to the founding affidavit is a letter which was delivered by hand by the respondent's attorney of record, Andile Mdlankomo on the 22^nd  of May 2012. It was stated that the applicant's  attorneys of record  submitted the police clearance certificate, and Experian reports, permanent residence permit, confirmation  of dated 5 June 2012 SA IDB certified copy of the training certificates, passport size photos, duly completed  application form and proof of  payment.

27.        Surprisingly before the exemption was granted by the Minister of police, the attorneys  for the respondent  received a document dated the 5th of June 2012, wherein it was stated that the application  is not approved for lack  of original documentation or an original police clearance.

28.       It was stated in the answering affidavit that the original documentation was not required in terms of any letter of directive or request. As a result the documentation that had been submitted was complied with in all respects by the respondent. The only remaining question was about the originality of the police clearance certificates.

29.       Applicant makes the point that on applying for the order, it was incumbent upon the respondent to indicate to the court that he seeks the order subject to him, complying with the other requirements indicated under section  23.

30.        Common Law dictates that a party who seeks rescission has to furnish reasons for his default. Applicant indicates that at the time its impression was that the only outstanding issues are those that have to do with costs. That in the event where the respondent complies with the request to furnish documents, then there shall be no need for litigation. It is clear that at the time the order was given, not all was in place in terms of compliance with the provisions of section 23. It is important for the court to satisfy itself that the provisions of section 23 have been complied with before the order is given.

31.        The application for rescission stands to be granted. It is fact that the order sought to be rescinded was not erroneously sought or granted. As such the rescission granted is not in terms of Rule 42 (1) (a) of the Supreme Court Rules, but on the basis of Common Law. Consequently the following order is made:

ORDER.

 

1.       The application for a rescission of the order granted on the 20th of September 2012 is granted.

2.       The respondents shall pay the costs of the application.

 

 

 

Maumela J.

Gauteng North High Court.

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