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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO.  M108/2017

In the matter between:

CENTURY LOOP RITE TRADE (PTY) LTD                             Applicant

and

NORTH WEST GAMBLING BOARD                                         Respondent

OPPOSED MOTION

KGOELE J

DATE OF HEARING                       :           18 APRIL 2019

DATE OF JUDGMENT                  :           20 MAY 2019

FOR THE APPLICANT        :                    Adv. N. Jagga

FOR THE RESPONDENT :           Adv. Mello

JUDGMENT

KGOELE J.

[1]        The applicant seeks the review, correction and setting aside of two decisions which the respondent took during 2016, in respect of its bookmaker and totalizator licences.

[2]        The first decision attacked by the applicant relates to the respondent’s decision during or about March 2016 to impose special conditions on a bookmaker license as well as a totalizator license which the respondent issued to the applicant (the imposition decision). The second decision relates to the respondent’s decision to revoke the same two licenses during or about October 2016 (the revocation decisions).

[3]        The application which was launched in March 2016, is opposed by the respondent.   When it was heard on 18 April 2019, it was accompanied by a condonation application for the late filing of the replying affidavit, which application was granted after having been duly considered.

[4]        A factual background to this matter may be summarized as follows:-It is common cause that during or about April/May 2014, the applicant was issued with bookmaker and totalizator licenses by the respondent in terms of section 3 of the North West Gambling Act, (Act No. 2 of 2001), (“the Act”).

[5]        The bookmaker licenses were approved by the respondent on 24 April 2014 in respect of ten (10) bookmaker premises. The respondent eventually approved only two (2) premises as being suitable to be used with regard to the licenses approved. The approval was communicated to the applicant on 15 December 2014.  The applicant was expected to have activated its operations in respect of the two premises that were approved within a period of three months from December 2014. The respondent avers that the applicant failed to do so.

[6]        The respondent convened a sitting on 30 March 2016 to consider the recommendations of its Compliance Committee in respect of the renewal of the bookmaker licenses issued to the applicant. It was at this sitting of the respondent that the following special conditions were imposed on the renewed licenses of the applicant:

6.1         That the applicant was to operate the two approved bookmaker premises within a period of three months from 30 March 2016;

6.2         That the applicant was to furnish the respondent with forfeitable guarantees within a month from 30 March 2016; and

6.3         That the applicant must submit a roll-out plan of the remaining premises within a period of three months from 30 March 2016.

[7]        The applicant was also issued with a totalizator license on 24 April 2014 and duly informed of such a decision on 9 May 2014. The applicant was supposed to operate a total of eleven (11) branches and four (4) agencies within a period of three months from date of approval.  The respondent avers that the applicant failed to operate the said branches and agencies and the respondent made a decision to place special conditions to this license as well which were to the effect that:

         7.1         The applicant was to furnish forfeitable guarantees within a month from date of approval of renewal;

    7.2        The applicant was to submit a roll-out plan of its branches and agencies within three months; and

            7.3       The operations were to be activated within three months from   date of approval of the renewal.

[8]        The respondent further avers that the applicant failed to comply with the special conditions enumerated above in respect of both the bookmaker and totalizator licenses.  The applicant was then invited to make representations on why these licenses should not be revoked.  The representations were made at the respondent’s sitting of 16 September 2016, where-after and having considered the report of its Compliance Committee and the representations made on behalf of the applicant, the respondent resolved to revoke both licenses.  The respondent further alleges that this revocation decision was approved by the MEC on the 17 October 2016.

 [9]       The applicant relies on six grounds to show that the imposition decision is subject to review and bad in law.  The applicant further raises nine grounds why the revocation decision is reviewable.  It is the case for the applicant that in respect of both decisions, the principle of legality and the Promotion of Administrative Justice Act (PAJA) render both decisions invalid.

[10]      I do not intend dealing with these grounds in detail simply because the judgment revolves around a pre-liminary point raised by the respondent.  Furthermore, there is no dispute as to whether the impugned decisions are reviewable either in terms of PAJA or the principles of legality, but what is important is that the applicant contends that they are so reviewable on essentially the same grounds.

 [11]     The pre-liminary point raised by the respondent’s Counsel is that the applicant has failed to exhaust an internal remedy which is provided for in section 90 of the Act by referring its dispute with the decisions of the respondent to the Review Tribunal.  He submitted that section 90(6)(a) to (d) grants the Review Tribunal such powers that are almost similar to the powers of a review Court. These include the power to set aside the decision of the respondent, remit the matter to the respondent and to substitute the decision of the respondent with its own decision.

[12]      To the extent that the applicant herein relies on the provisions of PAJA to attack the decisions of the respondent herein, the respondent’s Counsel argued, the need to exhaust internal remedy is also articulated in section 7(2)(a) of PAJA.  There are no exceptional circumstances which call for the exemption of the applicant from invoking an internal remedy provided for in section 90 of the Act. His arguments continued to the effect that, even if there were any, the applicant has not applied for such exemption, it therefore follows that the remedy available in section 7(2)(c) of PAJA cannot be availed to the applicant.

[13]      In support for his arguments the respondent’s Counsel relied heavily on the following remarks found in the case of Koyabe v Minister of Home Affairs And Others (Lawyers for Human Rights as Amicus Curiae) 2010 (4) SA 327 (CC):-

           [34]     “Under the common law, the existence of an internal remedy was not in itself sufficient to defer access to judicial review until it had been exhausted. However, PAJA significantly transformed the relationship between internal administrative remedies and the judicial review of administrative decisions…Thus, unless exceptional circumstances are found to exist by a court on application by the affected person, PAJA, which has a broad scope and applies to a wide range of administrative actions, requires that available internal remedies be exhausted prior to judicial review of an administrative action”

[14]      He also relied on similar remarks which were made in the case of Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining & Development CO Ltd and Others 2014 (5) SA 138 (CC) at page 172 I to 173A.

[15]      The respondent’s Counsel concluded by submitting that the application falls to be dismissed with costs.

[16]      The applicant’s answer to this preliminary point is to the effect that this objection is technical in nature because a proper reading of Section 90 does not purport to oust the jurisdiction of this Court.  Counsel representing the applicant argued that the section and the regulations made thereunder create an alternative mechanism to expedite reviews but do not and cannot alter or amend the Court’s jurisdiction.  Further that, the Section provides that any person aggrieved by the decision or proceedings of the Board may by way of review proceedings, submit him or herself before a review tribunal.  This in itself is not couched in peremptory terms nor is there any Section making a provision whereby such an aggrieved person may not approach a Court of law without submitting to the jurisdiction of the Review Tribunal.

[17]      He also relied on the matter of Koyabe v Minister for Home Affairs already quoted above but specifically to the following remarks in supplementing his argument: –

“Under the common law, the existence of an internal remedy was not in itself sufficient to defer access to judicial review until it had been exhausted.”

[18]      As a second leg to their argument the applicant’s Counsel, Advocate Jagga, submitted that Section 90 is not an internal remedy that is created tantamount to an internal appeal board.  According to him, the procedure established by Section 90 is therefore not within the meaning of any internal remedy as set out in Section 7(2) of PAJA.

[19]      He heavily relied on the following remarks by Plasket J in the case of Reed v Master of the High Court [2005] 2 All SA 429 (E) at para 20 for the proposition that Section 7(2) of PAJA applies to remedies and not to other forms of potential extra curial redress:-

           [20]     ‘A remedy, in this context, is defined in the New Shorter Oxford English Dictionary as a "means of counteracting or removing something undesirable, redress, relief; legal redress”. Inherent in this concept as it is used in its legal context is the idea that a remedy, in order to qualify to be regarded as such, must be capable, as a matter of law, of providing what the Constitution terms appropriate relief: it must be an effective remedy. Section 7(2) does not, in other words, place an obligation on a person aggrieved by a decision to exhaust all possible avenues of redress provided for in the political or administrative system – such as approaching a parliamentary committee or a Member of Parliament, or writing to complain to the superiors of the decision-maker. Similarly, it is not required of an aggrieved person that he or she approach one or more of the Chapter 9 institutions – such as the Public Protector or the Human Rights Commission – prior to resorting to judicial review.’

[20]      He emphasized the fact that in this matter Plasket J went on to say at para 24 that:-

[24]      ‘The word "internal” qualifies the word "remedy” in s7(2) of the PAJA. The New Shorter Oxford English Dictionary defines internal (in this context) to mean "intrinsic”, "of or pertaining to or interior of something; within the limits of something” and "used or applying within an organization”.’

[21]      As to the meaning of the composite expression “internal remedy” he relied heavily on what Plasket J said at para 25 that –

[25]      ‘The dictionary definitions of the words "internal” and "remedy” that I have cited are in harmony with the way the composite term "internal remedy” is understood in the more specialized context with which this matter is concerned: when the term is used in administrative law, it is used to connote an administrative appeal – an appeal, usually on the merits, to an official or tribunal within the same administrative hierarchy as the initial decision-maker – or, less common, an internal review. Often the appellate body will be more senior than the initial decision-maker, either administratively or politically, or possess greater expertise. Inevitably, the appellate body is given the power to confirm, substitute or vary the decision of the initial decision-maker on the merits. In South Africa there is no system of administrative appeals. Instead internal appeal tribunals are created by statute on an ad hoc basis.’  [Footnotes omitted]

[22]      Advocate Jagga argued that the following remarks by Plasket J at para 26 are crucial and put the last nail to the coffin of the respondent’s case:-

[26]      ‘A distinctive feature of internal remedies is that they are extra-curial (or domestic). In Golube v Oosthuizen 1955 (3) SA 1 (T) for instance, De Wet J, in the context of deciding whether the applicant was under a duty to exhaust internal remedies, observed that the "mere fact that the Legislature has provided an extra-judicial right of review or appeal is not sufficient to imply an intention that recourse to a Court of law should be barred until the aggrieved person has exhausted his statutory remedies”.  [Footnotes omitted]

[23]      As a last attempt to salvage the case of the applicant, Advocate Jagga submitted that, in any event the pre-liminary point raised by the respondent loses sight of the fact that this application was not brought solely under PAJA, but also on the basis that the decisions of the respondent offended the Constitutional guarantee of the principles of legality.

[24]      To this end he relied on the case of State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited (CCT254/16) [2017] ZACC 40, wherein the Constitutional Court held albeit vis-à-vis a State Organ who wished to review its own decision that:

“What we glean from this is that the exercise of public power which is at variance with the principle of legality is inconsistent with the Constitution itself.  In short, it is invalid”.

[25]      He submitted that the above quoted remarks support his proposition that if it is held that PAJA is not available to the applicant for want of compliance with Section 90 of the Act, the principle of legality nevertheless saves this application and this Court is at liberty to continue with the main application.  His argument is that the decision to impose new special conditions to the 2016 renewal of the licenses fell foul of the principle of legality as well as the provisions of PAJA in so far as it was irrational, and simply did not appreciate the provisions of the Act.  According to him it was simply unconstitutional.

[26]      In addition to the above and in the event that this argument is rejected, he submitted further that, by virtue of the fact that there is no proof before Court that the revocation was in fact approved by the MEC,  this in itself renders the revocation invalid.

ANALYSIS

[27]      All the arguments put forward by the applicant in response to the preliminary point raised by the respondent do not have merits.  It must be emphasized at the onset that the applicant pins its colours of the most in both PAJA and the principle of legality and critically, on the same grounds.  This has been made clearer during the submissions during the hearing by Advocate Jagga and in paragraph 74 of the applicant’s heads which was couched as follows:-

            “It is submitted that the applicant has made out a case for the relief it seeks under PAJA and/or the principle of legality.

A choice or no choice to rely on both

[28]      In the case of the Minister of Health and Another v New Clicks SA (Pty) Ltd and Others (Treatment Action Campaign and Innovative Medicines SA as Amici Curiae) 2006 (1) BCLR 1 (CC) it was held as follows in paragraphs 431 and 432:-

“[431]   Now there can be no question that the Pharmacies sought judicial review of the recommendation of the Pricing Committee and the Regulations based on that recommendation.  For their causes of action, they expressly relied upon the provisions of section 6 of PAJA.  They were right.  In Bato Star this Court held that “the cause of action for the judicial review of administrative action now ordinarily arises from PAJA, not from the common law as in the past.”  And it went on to hold that “the authority of PAJA to ground such causes of action rests squarely on the

Constitution.” 

[432]   The rationale for the holding in Bato Star appears from the following

     passage:

“In Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others, the question of the relationship between the common-law grounds of review and the Constitution was considered by this Court.  A unanimous Court held that under our new constitutional order the control of public power is always a constitutional matter.  There are not two systems of law regulating administrative action — the common law and the Constitution — but only one system of law grounded in the Constitution.  The Courts' power to review administrative action no longer flows directly from the common law but from PAJA and the Constitution itself.  The grundnorm of administrative law is now to be found in the first place not in the doctrine of ultra vires, nor in the doctrine of parliamentary sovereignty, nor in the common law itself, but in the principles of our Constitution.  The common law informs the provisions of PAJA and the Constitution, and derives its force from the latter.  The extent to which the common law remains relevant to administrative review will have to be developed on a case-by-case basis as the Courts interpret and apply the provisions of PAJA and the Constitution.”  (Footnotes omitted.)

[433]   PAJA  is  national  legislation  contemplated  in  section  33(3)  of  the

Constitution, which   the legislature was required to enact to give effect to the rights guaranteed in section 33.  As its long title proclaims, the purpose of PAJA is:

“To give effect to the right to administrative action that is lawful, reasonable and procedurally fair and to the right to written reasons for administrative action as contemplated in section 33 of the Constitution”.

[29]      The following remarks which were made in paragraphs 436 and 437 of the in the same Constitutional matter quoted above sums up the answer to the question this Court has to answer as to whether the applicant has a choice or not to rely on PAJA or principles of legality:-

“[436]  In my view, there is considerable force in the view expressed in NAPTOSA.  Our Constitution contemplates a single system of law which is shaped by the Constitution.  To rely directly on section 33(1) of the Constitution and on common law when PAJA, which was enacted to give effect to section 33 is applicable, is in my view inappropriate.  It will encourage the development of two parallel systems of law, one under PAJA and another under section 33 and the common law.  Yet this Court has held that there are not two systems of law regulating administrative action – the common law and the Constitution – “but only one system of law grounded in the Constitution.”  And in Bato Star we underscored this, holding that “[t]he Courts’ power to review administrative action no longer flows directly from the common law but from PAJA and the Constitution itself.”  [My Emphasis]

[437]   Where,  as here ,  the Constitution  requires Parliament to enact

legislation to   give effect to the constitutional rights guaranteed in the Constitution, and Parliament enacts such legislation, it will ordinarily be impermissible for a litigant to found a cause of action directly on the Constitution without alleging that the statute in question is deficient in the remedies that it provides.  Legislation enacted by Parliament to give effect to a constitutional right ought not to be ignored.  And where a litigant founds a cause of action on such legislation, it is equally impermissible for a court to bypass the legislation and to decide the matter on the basis of the constitutional provision that is being given effect to by the legislation in question.  Thus in Bato Star this Court held that “[t]o the extent, therefore, that neither the High Court nor the SCA considered the claims made by the applicant in the context of PAJA, they erred.”  A fortiori here where the cause of action is expressly founded on PAJA. [My Emphasis]

[30]      The following remarks made in the Supreme Court of Appeal case of State Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd [2016] 4 All SA 842 (SCA), wherein the case of New Clicks quoted supra was referred to, are apposite in casu:-

“[33]   It is necessary to distinguish between a PAJA review, on the one hand and a legality review, on the other. PAJA was enacted to give effect to the right to lawful administrative action in s 33 of the Constitution. And, as it was intended to be, and in substance is, a codification of the rights in s 33, so the Constitutional Court said in New Clicks, it was not possible for litigants to go behind it, by relying either directly on s 33(1) or on the common law, when reviewing unlawful administrative actions as this would undermine the very purpose for which it was enacted. So, PAJA covers administrative action while private (contractual) power remains reviewable at common law. In short, if the unlawful administrative action falls within PAJA’s remit there is no alternative pathway to review through the common law.  

[34]      But the ‘burgeoning principle of legality’ is arguably a greater threat to PAJA than recourse to the common law because it regulates the exercise of all public power. This includes, in addition to administrative decisions covered by s 33 and PAJA, power exercised by the legislature and the executive. Lord Bingham, one of Britain’s most eminent jurists, pithily captured the principle thus:

‘Ministers and public officials at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.’                                                               

[35]      Because of the ubiquitous reach of the principle of legality, and the fact that administrative actions also fall within its remit, it is unsurprising that litigants and the courts have sometimes deliberately sidestepped PAJA. The reason is obvious; it is at times difficult to work out whether the unlawful action complained of qualifies as administrative action. Many of the elements of the definition remain unsettled. One only has to look to the difficulty courts have had in establishing whether the action in question has satisfied the element of having ‘a direct, external legal effect’ to demonstrate the nature of the problem. 

[36]     But it is not a problem that can legitimately be avoided. For if a

litigant or a court could simply avoid having to conduct the sometimes testing analytical enquiry into whether the action complained of amounts to administrative action, PAJA, in Professor Hoexter’s words:

‘. . . would soon become redundant, for no sane applicant would submit to its definition of administrative action (or to the strict procedural requirements of section 7) if he or she actually had a choice.’ 

[37]      Put differently, the consequence of this would be that the principle of legality, unencumbered by PAJA’s definitional and procedural complexities, would become the preferred choice of litigants and the courts – which is happening increasingly – and PAJA would fall into desuetude. This would be a perverse development of the law, one that the framers of the Constitution would not have contemplated when they drafted s 33(3) of the Constitution. Neither would the lawmaker have imagined this when enacting PAJA.    [My Emphasis]

[38]     In my view, the proper place for the principle of legality in our law is to act as a safety-net or a measure of last resort when the law allows no other avenues to challenge the unlawful exercise of public power. It cannot be the first port of call or an alternative path to review, when PAJA applies. As this court said in National Director of Public Prosecutions & others v Freedom Under Law: 

‘The legality principle has now become well established in our law as an alternative pathway to judicial review where PAJA finds no application.’ [My Emphasis] 

[31]      In casu, there are more reasons why the applicant cannot be allowed to bypass PAJA and rely directly on the principle of legality.  Firstly, the Constitutional matter of the State Information Technology Agency Soc Limited v Gijima Holdings, which the applicant heavily relied upon, can be distinguished from our matter because it dealt with a situation where the State was reviewing or setting aside the contract it awarded.  As correctly put by Advocate Jagga in his heads of argument at paragraph 61, the Constitutional Court in that matter concluded that, “PAJA was not available to the State yet it could rely on legality”.  In simplier terms, the Constitutional Court rightly so in my view, found that where a State Organ wished to review its own decision, PAJA is not available, but the principle of legality is available.  Of importance is that the Constitutional Court in this Gijima matter made it clear and concluded that, it is not a question of choice, but simply that, PAJA does not apply because “No choice is available to an organ of State wanting to have its own decision reviewed”.  Thus, the Constitutional Court held, distinguishing the Organs of State from the word “any person” referred to in Section 6(1) of PAJA that, it did not include the State and further that, there is no basis for suggesting that “an Organ of State seeking a review of its own decision may simply choose to avoid a review under PAJA for reasons of expediency”.

 [32]     It is therefore clear that the Constitutional matter of Gijima heavily relied upon by the applicant specifically referred to circumstances where an Organ of the State sought to review its own decision.  In the same breath, I do not understand the decision of the Constitutional Court in this matter to be giving a blanket authority to “any person” as referred to section in 6(1) of PAJA and where circumstances are such that PAJA is applicable, to choose between PAJA and the principles of Legality.

[33]      Secondly, as it appears from the Constitutional Case of Gijima quoted above this approach has long been settled and well established in our law.  I can do no better than the following remarks made by Brand JA in the case of NDPP v Freedom Under Law 2014 (4) SA 298 which were couched as follows:-

“[28]    The legality principle has by now become well-established in our law as an alternative pathway to judicial review where PAJA finds no application. Its underlying constitutional foundation appears, for example, from the following dictum by Ngcobo J in Affordable Medicines Trust & others v Minister of Health & others 2 006 (3) SA 247 (CC) para 49:

‘The exercise of public power must therefore comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law. The doctrine of legality, which is an incident of the rule of law, is one of the constitutional controls through which the exercise of public power is regulated by the Constitution.’

[29]      As demonstrated by the numerous cases since decided on the basis of the legality principle, the principle acts as a safety net to give the court some degree of control over action that does not qualify as administrative under PAJA, but nonetheless involves the exercise of public power. Currently it provides a more limited basis of review than PAJA. Why I say currently is because it is accepted that ‘[l]egality is an evolving concept in our jurisprudence, whose full creative potential will be developed in a context-driven and incremental manner’ (see Minister of Health NO v New Clicks SA (Pty) Ltd & others 2006 (2) SA 311 (CC) para 614; Cora Hoexter op cit at 124 and the cases there cited). But for present purposes it can be accepted with confidence that it includes review on grounds of irrationality and on the basis that the decision-maker did not act in accordance with the empowering statute (see Democratic Alliance & others v Acting National Director of Public Prosecutions & others 2012 (3) SA 486 (SCA) paras 28-30).”

[34]      Thirdly, the case of Reed heavily relied upon by the applicant was decided before PAJA was enacted.

[35]      The fourth reason is that the applicant set out in full in his papers why the application was not launched within the 180 - day period prescribed by PAJA and seeks the Court’s approval for the variation of this time.

Section 90 not an internal remedy within the meaning of PAJA

[36]      Lastly, the North West Gambling Act, (the Act) under Section 90 (1) provides that “any person aggrieved by the decision or proceedings of the Board, may by way of review proceedings, submit himself or herself before a Review Tribunal”.  I do not agree with the submissions of the applicant that the procedure established by Section 90 is not within the meaning of any internal remedy as set out in Section 7(2) of PAJA.  As correctly submitted by the respondent, Section 90 (6) (a) to (d), grants the Review Tribunal such powers that are almost similar to the powers of a review Court.  It is therein where it is indicated that the Tribunal has the power to set aside the decision or proceedings of the respondents, remit the matter to the respondent with an order to take a decision in accordance with the correct procedure or make such a decision as in its opinion ought to have been given by the Board and furthermore, direct the Board to do everything necessary to give effect to that decision.

[37]      In addition to the above, the composition of the Review Tribunal is prescribed as follows in Section 90 (3):-

        (a)         an advocate or retired Judge appointed as a Presiding Officer;

         (b)       one member designated by the Board for the staff;

         (c)          one member appointed on the basis of having either proven Business of acumen, or suitability qualified for such appointment as a member of the tribunal.

         [38]        All of the above mentioned are characteristics which are concomitant to the quote heavily relied upon to by Advocate Jagga in paragraph 21 of this judgment above regarding what the meaning of the composite expression “internal remedy” is as espoused in paragraph 25 of the Reed’s matter.  The argument by Advocate Jagga to the effect that the procedure as laid down in the regulation prescribing how the Section 90 review can be brought before the Review Tribunal is not cost effective an thus cannot amount to an internal appeal board and is therefore without merit as well.

      [39]           In my view, Section 90 of the Act provides a tailor made detailed internal remedy structured to afford the aggrieved persons with administrative relief as a first step towards addressing their claim of irregularities.  Although it does not oust the jurisdiction of this Court as Counsel representing the applicant argued, and is furthermore not couched in the peremptory manner, our Courts have already pronounced that, the tailored statutory remedy must be exhausted first.   The following remarks found in paragraph 55 of the case of the Koyabe already quoted above succinctly summarises the current position of the law in this regard in our country:-

                        “………. It is sufficient to emphasize that where the Legislature has tailored a statutory remedy to address a specific administrative harm, that remedy must be exhausted before resort is had to a judicial review, under PAJA, unless exceptional circumstances exist”

CONCLUSION

[40]      I fully agree with the respondent’s Counsel Advocate Mello that, to the extent that the applicant herein relies on the provisions of PAJA to attack the decisions of the respondent based on the same grounds as those that he relies on the principles of legality, the applicant cannot be allowed to circumvent the provisions of the Act (North West Gambling Act) that brought us here.  This is so because the decisions they seek to impugne amount to administrative decisions reviewable under PAJA. The applicant has therefore no choice to choose between PAJA and the principle of legality in Sshow any exceptional circumstances which call for the exemption of the applicant from invoking an internal remedy provided for in Section 90 of the Act.

[41]      I therefore come to the decision that the internal remedy that has been provided for by the Act should be complied with first in terms of Section 7(2) of PAJA before the main application can be proceeded with.  This Court cannot even begin to entertain the grounds of the main application based on the principle of legality without the applicant showing why the provisions of PAJA cannot apply to the circumstances of this matter.

[42]      The following Order is thus made:-

            42.1    The point in limine raised by the respondent is upheld.

            42.2    The main application is removed from the roll.

            42.3    The applicant is ordered to pay the costs.

                                               

A.M. KGOELE

JUDGE OF THE HIGH COURT

ATTORNEYS

For the Applicant  :Smit Stanton Incorporated                                                                                    29 Warren Street   MAHIKENG

For the Respondent : Maponya Incorporated    

Mega City Shopping Complex 

Sekame Road, 1^st Floor     Office 29 CB      

MMABATHO

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