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[2010] ZAECGHC 137
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Clur v Keil and Others (448/2010) [2010] ZAECGHC 137; 2012 (3) SA 50 (ECG) (17 December 2010)
IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE – GRAHAMSTOWN)
CASE NO: 448/2010 DATE HEARD: 10/12/10 DATE DELIVERED: 17/12/10 REPORTABLE
In the matter between:
GREGORY LOUIS CLUR …..............................................................................APPLICANT
and
JOHN KEIL ….........................................................................................1ST RESPONDENT TERRANCE ELEFTHERIOU ….............................................................2ND RESPONDENT JOHN RANCE …....................................................................................3RD RESPONDENT GARY THOMPSON …............................................................................4TH RESPONDENT THE KEI MOUTH SKI BOAT CLUB …..................................................5TH RESPONDENT
The applicant operated a fishing charter operation. On 6 January 2010, his boat, skippered by one Love, was seen stationary in a marine reserve. As a result of this and other incidents, the applicant was charged with disciplinary infractions by the fifth respondent. It is a voluntary association which has been granted a licence to manage the launch site at Kei Mouth. The applicant was not a member of the fifth respondent. He was convicted as charged and ‘permanently banned’ from using the Kei Mouth launch site. In an application to review these findings it was held that, on an analysis of the legislation by which the fifth respondent was granted its licence, it had never been empowered to conduct disciplinary proceedings and to sanction non-members. The finding of guilty and the sanction were accordingly set aside and the respondents were directed to pay the applicant’s costs.
JUDGMENT
PLASKET J
[1] The applicant (Clur) was summoned to a disciplinary hearing of the fifth respondent (the Kei Mouth Ski Boat Club – the KMSBC) which was presided over by its chairperson, the first respondent (Keil). Clur, in his capacity as the operator of a charter operation called Extreme Charters, was convicted as charged. The sanction imposed was that ‘the operation known as Extreme Charters, its vessel and/or any vessel operated by Mr Greg Clur or its/his authorised representatives and/or any future charter operation for which Mr Clur is partly or wholly responsible, as well as Mr Clur, be permanently banned from using the Kei River Launch Site’.
[2] Clur seeks to review and set aside the proceedings of the disciplinary tribunal on the basis that they were procedurally unfair, the decision to convict him was tainted by irregularity and the sanction imposed was disproportionate and hence unreasonable.
[3] The facts, briefly stated, are these. On 6 January 2010 Clur’s boat was launched at the Kei River launch site in Kei Mouth. It put to sea through the mouth, skippered by one Lawrence Love, with three paying clients. During the course of the morning the boat was seen by members of the KMSBC to be stationary in a marine reserve which stretches from the mouth of the Kei River to the mouth of the Nyara River and extends for three nautical miles out to sea measured from the high water mark. It is an offence to fish in a marine reserve.
[4] When the boat returned to the launch site, two of the respondents, Terrance Eleftheriou and John Rance, both members of the KMSBC – were present at the slipway. The fourth respondent (Thompson) also arrived. Clur, who had not gone to sea in his boat, was also present at the slipway. Love was accused by Rance of having been fishing in the marine reserve. He denied this, stating that he and his clients were merely preparing tackle in the marine reserve.
[5] This incident formed the main charge against Clur in the disciplinary proceedings. Other less serious charges were also put to him. The charge sheet that was served on him reads as follows: ‘The Kei Mouth Ski Boat Club in its capacity as the Kei Mouth launch site authority, hereby officially lays a formal charge against the charter operator, Extreme Charters. The charges being laid against the “accused” include amongst others: 1. It is alleged that the charter operation was fishing in the reserve off Kei Mouth on the 6th January 2010, which is clearly demarcated at the launch site from which the charter operation launched. 2. The charter operation cleaned fish at the launch site which is against instructions given to the charter operation in December 2009. 3. The charter operation did not have the vessel’s radio operational and did not reply to warnings informing the vessel that it was fishing in the reserve. 4. The charter operation did not comply with the launch site conditions which are clearly displayed on a notice board at the launch site.’
[6] Clur was informed of the time and the place of the hearing and that he could answer to the charge and call witnesses. He was further informed: ‘This is not a legal case and no legal representation allowed. This is a formal hearing of the Kei Mouth Ski Boat Club, which is the custodian of the launch site awarded to it by the Department of Environmental Affairs. The outcome of the hearing will be final and no further correspondence will be entered into. An appropriate disciplinary action will be decided upon if necessary.’
[7] It is common cause that Clur pleaded guilty to the charges. In his founding affidavit he stated, however, that he conveyed to the tribunal that ‘I deemed it appropriate to plead guilty on behalf of Lawrence Love in so far as it is shown that he transgressed in any way and I would ensure that this never happened again’.
[8] Perhaps because of the equivocal nature of this plea, Keil decided that evidence should be led. Evidence was indeed led. It indicated, inter alia, that Clur’s boat had been stationary well within the marine reserve for a period of about two hours and that when it landed it had fish on board. The opinion was expressed that, in the light of the rough sea and weather conditions prevailing at the time, the fish could not have been caught anywhere but in the marine reserve.
[9] It is common cause that the KMSBC is a voluntary association and Clur is not a member. It is also common cause that the KMSBC was issued with a licence by the Chief Directorate: Environmental Affairs of the Department of Economic Development and Environmental Affairs of the Eastern Cape Province to manage the launch site at Kei Mouth. The launch site, according to the licence, ‘is to be used strictly as a public facility’.1
[10] In the light of the above I caused a letter to be sent to the parties by the Registrar in which they were asked to address me on ‘whether the fifth respondent had the lawful authority to impose discipline on, and to sanction, the applicant, who is not a member [of the fifth respondent]; and if it is argued that the fifth respondent does have such powers, the source of those powers’.
[11] It appears to me that the issue of whether the KMSBC had the lawful power to discipline Clur is a point of law that is not dependant on the facts. It is, as a result, a point that can be raised even if it was not taken by Clur or is otherwise dealt with in the papers.
[12] It is, furthermore, an issue that ante-cedes the merits: it must be determined at the outset because if I was to find that the proceedings were unimpeachable and the sanction proportionate, the rule of law would have been violated if, as a matter of law, the KMSBC did not have the lawful authority to do what it did.
[13] The South African Constitution is founded, inter alia, on the rule of law. Section 1(c) says so in express terms. While there may be room for debate about the outer boundaries of the rule of law,2 there is no doubt that both public bodies and private persons and bodies are subject to the rule of law3 and that, as far as those who exercise public powers are concerned, the rule of law ‘requires that they act within the powers that have been conferred upon them’ and that all of their decisions and acts must be authorised by law.4 Within the context of administrative decision-making, this first principle of the rule of law is encapsulated in s 6(2)(a)(i) of the Promotion of Administrative Justice Act 3 of 2000 – the PAJA – which provides that administrative action may be reviewed and set aside if the administrator who took the impugned action ‘was not authorised to do so by the empowering provision’.5
[14] In Fedsure Life Assurance Ltd and others v Greater Johannesburg Transitional Metropolitan Council and Others,6 Chaskalson P, Goldstone J and O’Regan J, stated that it was a ‘fundamental principle of the rule of law, recognised widely, that the exercise of public power is only legitimate where lawful,’7 and that, speaking specifically of the executive and legislative branches of government in every sphere of government, it is ‘central to the conception of our constitutional order’ that they ‘are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law’.8 In the context of the exercise of judicial power, Nugent JA, in S v Mabena9 said the following: ‘The Constitution proclaims the existence of a State that is founded on the rule of law. Under such a regime legitimate State authority exists only within the confines of the law, as it is embodied in the Constitution that created it, and the purported exercise of such authority other than in accordance with the law is a nullity. That is the cardinal tenet of the rule of law. It admits of no exception in relation to the judicial authority of the State. Far from conferring authority to disregard the law the Constitution is the imperative for justice to be done in accordance with the law. As in the case of other State authority, the valid exercise of judicial authority otherwise than according to law is simply invalid.’
[15] In R v Somerset County Council, ex parte Fewings and others,10 Laws J made the point that while private persons are free to do anything that the law does not forbid, the opposite is true of public bodies: any action taken by a public body ‘must be justified by positive law’. In my view, the same principle applies to a private body that exercise public powers: it is not permitted to be, as Goldstone J put it in Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange and others,11 ‘a law unto itself’.
[16] I turn now to an analysis of the sources of the KMSBC’s powers to manage the Kei River launch site as a public facility and whether it has been vested with powers of coercion and sanction.
[17] As stated above, the launch site licence granted to the KMSBC is recorded in what is termed a record of decision. It is signed by two officials, an Assistant Director: Biodiversity and Coastal Management and a Regional Manager, Environmental Affairs: Amathole Region. It emanates from the office of the Chief Directorate: Environmental Affairs in the Department of Economic Development and Environmental Affairs in the Eastern Cape Provincial Government. The decision was, according to the record of decision, made in terms of regulation 7 of the Regulations for the Control of Vehicles in the Coastal Zone.12 Those regulations were, in turn, made in terms of s 44 of the National Environmental Management Act 107 of 1998 – the NEMA.
[18] The NEMA is intended, according to its long title, to ‘provide for co-operative environmental governance by establishing principles for decision-making on matters affecting the environment, institutions that will promote cooperative governance and procedures for co-ordinating environmental functions exercised by organs of state; to provide for certain aspects of the administration and enforcement of other environmental management laws; and to provide for matters connected therewith’. Section 44 empowers the Minister of Environmental Affairs and Tourism to make regulations ’dealing with any matter which under this Act must be dealt with by regulation’;13 ‘prohibiting, restricting or controlling activities which are likely to have a detrimental effect on the environment’;14 and ‘generally, to carry out the purposes and the provisions of this Act’.15 The Minister’s regulation-making powers include the power to make different regulations for ‘different activities, provinces, geographical areas and owners or classes of owners of land,16 and the power to ‘provide that infringements of certain regulations constitute criminal offences and prescribe penalties for such offences’.17
[19] Acting in terms of s 44, the Minister has, as I have indicated above, made regulations which are aimed at controlling and regulating the use of motor vehicles in the coastal zone. Regulation 7 deals with the issuing of licences for boat launch sites. This is the regulation from which the KMSBC derives its powers to manage the Kei River launch site. Regulation 7(1) stipulates who may issue a boat launch site licence. Regulation 7(2) provides that no-one may operate a boat launch site or use a vehicle at such a site unless the operator of the site has a valid licence issued under the regulations. Regulation 7(3) states that a launch site operator or a prospective launch site operator must apply to the relevant authority mentioned in regulation 7(1) for a licence. Regulation 7(4) prescribes what must be contained in or accompany an application for a launch site licence. In terms of regulation 7(4)(e), the application must ‘include a plan for managing activities at the site in a manner that avoids or minimises damage to the environment’.
[20] The licence granted to the KMSBC (which is valid for three years) authorises the ‘use of vehicles in the coastal zone at Kei River Mouth (Pont launch) for the purposes of boat launching’ and is restricted to the ‘existing concrete slipway in the Kei River, at Kei Mouth’. Paragraph 5 of the record of decision states that the licence was granted subject to eight conditions listed in paragraph 7. They are: ‘1. The site is to be used strictly as a public facility. 2. The applicant must implement appropriate measures to ensure that the users of the facility have the necessary certification to utilize their particular crafts. 3. The applicant must likewise implement appropriate measures to ensure that all users of the facilities comply with all applicable conditions relating to safety of vessels at sea. 4. The applicant must further implement measures to ensure general compliance by users of the facility with the provisions of the Marine Living Resources Act, Act 18 of 1998. 5. The applicant must within 60 days of the date of signature of this licence compile and submit to this Department for endorsement an Environmental Management Plan for the launching facility. The plan must deal expressly with:
6. In the event of any non-compliance, this department reserves the right to withdraw this authorisation. 7. The licence holder must within 30 days institute a permit system and all users of the site must be issued with a permit authorising their use of the launch site. 8. This authorisation does not absolve the holder from complying with all other relevant legislation.’
[21] The Environmental Management Plan (the EMP) that the KMSBC drafted raises the possibility of disciplinary action being taken against people. For instance, after introducing a system of launch permits, the EMP states in paragraph 4 that the permit will state that non-compliance with the conditions for the use of the launch site ‘will result in disciplinary action by officials of the KMSBC, the police or other prosecuting authority’. In paragraph 6, it is stated that, while during times of ‘low activity’, an honesty system would be used, random checks would also be made. In the event of non-compliance with the permit system, disciplinary action could be taken against transgressors. Finally, paragraph 7, headed ‘Non Compliance’ provides: ‘Should any users be suspected of, or reported to be, in contravention of any of the conditions of use of the launch site, management will investigate, hold a disciplinary hearing if necessary and at its discretion, impose penalties on the user in proportion to the seriousness of the offence. However, should the offence be of a serious nature, management will involve such authorities as it may deem necessary to deal with the offender.’
[22] From the above scheme, it is clear that regulation 7 does not empower the KMSBC to impose disciplinary measures on users of the launch site who are not members of the club and who do not comply with conditions of use or environmental norms provided for in other legislation. Even though I have my doubts that it is legally possible to empower the KMSBC to impose disciplinary measures on users of the launch site by way of the conditions contained in paragraph 7 of the record of decision, it is not necessary for me to decide this issue: the conditions, even though they speak of the KMSBC having to ‘implement appropriate measures’ in respect of certain issues, also do not purport to authorise the KMSBC to impose disciplinary measures on non members of the club. Clearer language would be necessary before one could find that such authority had been conferred on it and one would have expected a code of conduct, together with a list of permissible sanctions, to have been enacted if it had been the intention to authorise licence holders to impose disciplinary measures on recalcitrant users of launch sites.
[23] The fact that the KMSBC assumed to itself the power to impose disciplinary measures (in its EMP) cannot avail it either because it cannot pull itself up by the boot straps and empower itself: it could not, in the words of Leach J in Toto v Special Investigating Unit and others,18 ‘confer upon itself a function which it did not in law possess’. The fact that Clur appeared to accept the jurisdiction of the KMSBC to discipline him can also not confer jurisdiction on it.
[24] It was argued by Mr Van Der Walt, who appeared for the respondents, in his supplementary heads of argument that in truth the respondents did not subject Clur to disciplinary measures: the permanent ban imposed by Keil amounted to no more than a decision taken in the exercise of the KMSBC’s discretion as licence holder to refuse to issue Clur with a launch permit for as long as it is the licence holder. I do not accept this argument. The KMSBC did not purport to take a decision to deny Clur a launch permit. It presented him with a charge sheet in which the various charges made against him were set out, it informed him that he was taking part in ‘a formal hearing’ of the KMSBC and warned him that ‘appropriate disciplinary action will be decided upon if necessary’. Keil headed his findings as follows: ‘Disciplinary Hearing of the Kei River Launch Site Authority … .’ He did not purport to exercise any discretion to refuse to issue Clur with a launch permit but rather, in his capacity as presiding officer in a disciplinary hearing, upheld ‘the Kei Mouth Launch Site Authority’s request’ that Clur, his charter operation, his representatives and any charter for which Clur may in future be responsible in any way ‘be permanently banned from using the Kei River Launch Site’.
[25] From what I have said, it will be clear to the reader that the application must succeed. I am also of the view that costs must follow the result. I wish, however, to make three things clear. First, I have arrived at this conclusion on the basis of an analysis of the legislative and administrative scheme that has been created in order to licence private bodies to manage launch sites as public facilities, and I have not had to make, and neither have I made, any findings on the merits of the case. Secondly, while the respondents did not have the power to do what they did in this case, they are nonetheless to be commended for their on-going, voluntary efforts to safeguard the environment and to protect the marine reserve between the Kei and Nyara river mouths. Their efforts have been hampered by the fact that they have been given an imperfect and poorly thought out administrative scheme with which to work. Thirdly, this last fact does not mean that they are powerless. They have the same powers as any other citizen when offences are committed in their presence or they reasonably suspect offences to have been committed,19 they can report infractions of environmental laws to the competent authorities, including the police if needs be, and Rance is vested with certain powers as a honorary marine conservation officer appointed in terms of the Marine Living Resources Act.
[26] In the result, the following order is made. (a) The finding of the first respondent, in the hearing held on 9 January 2010, that the applicant was guilty of the charges brought against him, as well as the sanction imposed on him, are hereby set aside. (b) The respondents are directed, jointly and severally, the one paying the others to be absolved, to pay the applicant’s costs of suit.
______________ C. PLASKET JUDGE OF THE HIGH COURT
APPEARANCES: For the applicant: Mr S. Cole instructed by Neville Borman and Botha, Grahamstown. For the respondents: Mr T. van der Walt instructed by Whitesides, Grahamstown.
1The granting of the licence and the terms on which it is granted are recorded in a ‘record of decision’ signed on 18 December 2008. More will be said about this document in due course. 2See for instance, Mathews ‘The Rule of Law – A Reassessment’ in Kahn Fiat Iustitia: Essays in Memory of Oliver Deneys Schreiner Cape Town, Juta and Co: 1983, 294. 3See Chief Lesapo v North West Agricultural Bank and another [1999] ZACC 16; 2000 (1) SA 409 (CC); 1999 (12) BCLR 1420 (CC), para 11 in which Mokgoro J stated: ‘No one is entitled to take the law into his or her own hands. Self-help, in this sense, is inimical to a society in which the rule of law prevails, as envisaged by s 1(c) of our Consttution … .’ See too R v Somerset County Council, ex parte Fewings and others [1995] 1 All ER 513 (QB) 524e-f. 4Jowell ‘The Rule of Law and its Underlying Values’ in Jowell and Oliver (eds) The Changing Constitution (6 ed) Oxford, Oxford University Press: 2007, 5, 10. See too Baxter Administrative Law Cape Town, Juta and Co: 1984, 301 who says that in administrative law, the principle of legality comprises, inter alia of the principles that a person who exercises administrative power ‘must be legally empowered to perform the act’ and that ‘administrative action may only be taken by the lawfully constituted authority’. 5See for example, The Monastry Diamond Mining Corporation (Edms) Bpk v Schimper en andere 1983 (3) SA 538 (O), 549B-F; Toto v Special Investigating Unit and others 2001 (1) SA 673 (E), 685A-C; Van Schalkwyk and others v Mkiva and others [2008] JOL 21622 (O), para 8.2. 6[1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC). See too President of the Republic of South Africa and others v South African Rugby Football Union and others 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC), para 148; Affordable Medicines Trust and others v Minister of Health and others [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC), paras 48-49; Albutt v Centre for the Study of Violence and Reconciliation and others 2010 (3) SA 293 (CC); 2010 (5) BCLR 391 (CC), para 49. 7Para 56. 8Para 58. 9 2007 (1) SACR 482 (SCA), para 2. See too Charkaoui and others v Minister of Citizenship and Immigration and others [2007] 5 LRC 95 (SCC), para 134 in which McLachlin CJ said: ‘The rule of law incorporates a number of themes. Most fundamentally, it requires government officials to exercise their authority according to law, and not arbitrarily.’ 10Note 3, 524e-g. 11 1983 (3) SA 344 (W), 364E-F; R v Panel on Takeovers and Mergers, ex parte Datafin PLC and another 1987 QB 815 (CA); Coetzee v Comitis and others 2001 (1) SA 1254 (C); Tirfu Raiders Rugby Club v SA Rugby Union and others [2006] 2 All SA 549 (C). 12These regulations were promulgated in Government Notice GN1399 of 21 December 2001. 13Section 44(1)(a). 14Section 44(1)(aA). 15Section 44(1)(b). 16Section 44(2). 17Section 44(3). 18Note 5, 685A-B. See too Minister of Public Works v Hafferjee NO [1996] ZASCA 17; 1996 (3) SA 745 (A), 751F-G. |