I have been furnished with a copy of the decision handed down by the Companies Tribunal this afternoon.
The Tribunal concluded that it is not able to review and set aside the decision by the Commissioner even if there are grounds to impugn it (paragraph 12.5).
I am surprised to note that the Tribunal refers only to the argument advanced by the Commissioner and does not mention, even in passing, the case made out by me.
In very simple terms, the background to the matter is that the Commissioner had issued a compliance notice to me, on grounds which were entirely irregular in my submission, and threatened criminal prosecution against me if I did not comply with its compliance notice.
The compliance notice was a nullity and irregular.
The Companies Tribunal did not address these issues but held that as I have provided a copy of the compliance notice to the Minister of Finance and the Board of SAA, I had in law complied with the compliance notice and the compliance certificate which was issued ended the matter and the Tribunal had no authority to review the Commissioner’s findings.
I took issue with the basis for the finding by the Commission that I had contravened the Companies Act but I nevertheless forwarded copies of the notice to the Minister and the Board, as required in terms of the compliance notice. However, I did so under protest and specifically reserved my right to bring a review application to the Tribunal to challenge the decision by the Commission.
There is authoritative case law for the proposition that unlawful administrative conduct does not become moot, as the question whether the authorities acted lawfully remains a “live issue”. This was made clear by the Supreme Court of Appeal in the cell phone signal jamming case [Primedia (Pty) Limited and Others v Speaker of the National Assembly and Others 2017 (1) SA 572 (SCA)], the Dalai Lama visa case [Buthelezi and Another v Minister of Home Affairs and Others 2013 (3) SA 325 (SCA)], and the Al Bashir case [Minister of Justice and Constitutional Development and Others v Southern Africa Litigation Centre and Others 2016 (3) SA 317 (SCA)]. In all those cases the court emphasised that unlawful administrative action must be set aside and the court retained its jurisdiction to review the matters as the question whether the authorities had acted lawfully remains a “live issue”.
In fact, in a recent decision in a matter exactly on point by the National Consumer Tribunal, this very principle was endorsed.
In its judgment today the Companies Tribunal simply states, without providing any reasons, that it disagrees with the National Consumer Tribunal.
It is trite law that a person whose rights have been materially and adversely affected by administrative action, as mine were and are, is entitled to reasons for the administrative action. The Commission failed to provide reasons and only provided them when it was forced to do so by my review application. The Commission’s answer to my review application shows that its procedure in issuing the notice was irregular and unlawful. Prior to the issuing of the compliance notice I was never told what provisions of the Companies Act I was alleged to have contravened, and I was never given an opportunity to provide an explanation to defend myself against the alleged contraventions.
I wish to point out that the I did not intentionally mislead the Minister of Public Enterprises. My misstatement to the Minister was an honest error which was corrected immediately thereafter, more than a year before the complaint to the Commission was lodged.
I reiterate that at all times I had acted in accordance with my obligations as required by the Companies Act, in good faith, for a proper purpose and in the best interests of SAA.
DUDU MYENI 29 June 2017