20 October 2020 by and Dispute Resolution Alert

Administrative bodies: Stay in your lane!

Each administrative body has a role to play, obligations to fulfil and functions to perform within their own areas of expertise. The line can at times be blurred between what is the right thing to do and what is the required thing to do. In the recent judgment of Vumacam (Pty) Ltd v Johannesburg Roads Agency and Others (14867/20) [2020] ZAGPJHC 186 the court makes it clear that instead of veering over the solid white line, the Johannesburg Roads Authority should have stayed in its own lane.

Vumacam is a security service supplier which installs CCTV cameras across neighbourhoods to ensure the safety of streets, properties and homes. Whilst the purpose of these cameras is to detect crime, the majority of the persons under surveillance are not partaking in crime. In order to install the CCTV cameras, Vumacam requires written permission from the Council in the form of a wayleave in accordance with the City of Johannesburg Metropolitan Municipality Public Road and Miscellaneous By-Laws (by-laws).

Vumacam was successful in obtaining wayleaves from the JRA for some time. JRA wayleave’s department temporarily closed from 20 March 2020 due to the COVID-19 outbreak. On 9 June 2020 JRA issued a letter to various parties, including Vumacam, informing them that it would be accepting wayleave applications from 10 June 2020, save for ones concerning aerial or CCTV installations. These applications would remain suspended until further notice, which meant that Vumacam was precluded from rolling out its CCTV network (suspension decision).

Court a quo

Vumacam approached the court to seek the following order:

(i)    declaring the suspension decision to be unlawful and invalid;

(ii)   setting aside the suspension decision;

(iii)  a direction that the receipt of the wayleave applications be entertained, considered and determined; and

(iv)  that all its wayleave applications that have been lodged prior to the suspension decision be determined within seven days of the date of the order.

The essence of JRA’s case was that the prevention and detection of crime is not the primary reason for the installation of the cameras and Vumacam is spying on individual’s movements and thereby infringing their rights to privacy.

JRA was of the view that wayleaves cannot be disjoined from the right to privacy of the public to use public spaces without having their movements monitored. The court indicated, however, that a wayleave application is very narrow in scope, as is the jurisdiction of JRA. The bylaws specifically define a wayleave as “a formal approval to carry out work in the road reserve”. The bylaws further provide that if the application conforms with the requirements of schedule 2 “a wayleave will be issued” by JRA.

The court held that in terms of the bylaws, the only reason JRA could refuse to entertain the application of Vumacam would be if Vumacam had failed to secure the approval of any other municipal department or authorised agent if this is necessary, or if its application failed to conform with the requirements set out in schedule 2. No requirement exists in the bylaws (or in any other law) which require Vumacam to first obtain approval for collecting and using data obtained from the CCTV cameras it wishes to install. It should be noted that it was never disputed that Vumacam complies with its obligations in terms of the Protection of Personal Information Act 4 of 2013. The court held that JRA’s case was without merit.

JRA alleged that to cope with the problems that arise from such spying activities, a regulatory framework should be established which protects the privacy rights of people. JRA argued that until a law allowing for the regulation of CCTV cameras is put in place, it is entitled to refuse to entertain Vumacam’s applications for wayleaves. In essence, JRA is stating that the law is deficient in this respect, and until the deficiency is remedied it is entitled to suspend the duties imposed upon it by the bylaws.

In response to this argument, the court held that –

“there is simply no basis for such a bold averment from an administrative body whose function in this case is to oversee the work that is undertaken at a road reserve and no more. It had no power to decide that the law is deficient”.

Even if, for argument sake, the law is deficient, the JRA is not entitled to suspend its duties pending promulgation of regulations or the enactment of a statute to deal with issues concerning the collection or usage of data obtained from CCTV cameras. Whilst JRA’s conduct is admirable and valiant in that it is trying to protect peoples privacy rights, it is not lawful. The lack of a legal framework is not a matter that falls within JRA’s proverbial ‘lane’.

The court concluded that the JRA had to consider Vumacam’s wayleave applications and issue a determination and if need be furnish supporting reasons as to why the applications are refused (High Court Order).

Application for leave to appeal & execution application

The JRA applied for leave to appeal in the High Court before Vally J. Ordinarily, orders are suspended pending an outcome of an appeal. Vumacam simultaneously brought an application in terms of section 18(1) and (3) of the Superior Court Act 10 of 2013 in terms of which the High Court Order is made operational pending the outcome of any appeal and the automatic suspension is lifted. Vumacam claims that the application for leave to appeal has been brought purely for purposes of delaying compliance with the order and to frustrate its business. Vumacam was required to indicate that;

  1. there exists “exceptional circumstances” warranting the operation and execution of the judgment pending the outcome of the appeal; and
  2. the party who applies for such an order (Vumacam in this case) will suffer irreparable harm if the order is not put into execution pending the appeal
  3. the respondent (the JRA) will not suffer irreparable harm in the event that the Order is put into execution pending the appeal
  4. Additionally, the common law has iterated that the prospects of success in the appeal application remains a factor that a court is required to consider and take into account when determining an application in terms of section 18.

Vally J was of the view that Vumacam had met all of the above requirements and importantly, and that there was “absolutely no prospects whatsoever of an appeal succeeding”, to the extent that the prospects were “non-existent”.

It should be noted that where the prospects of success on appeal are very weak, there is no need to find that the victorious party has demonstrated ‘a sufficient degree of exceptionality to justify an order in terms of section 18 of the Act’. The court dismissed the application for leave to appeal and granted the execution order.

Conclusion

The important take away from this case is that, whilst administrative bodies may have heroic intentions of protecting peoples’ rights, it cannot flout its regulated duties to protect those rights and must still comply with its obligations in terms of the law.

Furthermore, this judgment provides businesses with some comfort that where litigants merely appeal a judgment to frustrate their business operations and prolong an inevitable outcome in which they have no prospects of success, courts will consider granting an execution order which lifts the automatic suspension and which order can be enforced immediately.

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