Kekes v Police; Kekes v Registrar of Motor Vehicles

In Kekes v Police; Kekes v Registrar of Motor Vehicles, the appellant, Mr Kekes, appealed against the decision of the Magistrate not to order that the alcohol interlock scheme apply to the period of licence disqualification imposed on him. Mr Kekes was disqualified from driving for driving while his blood alcohol concentration was above the prescribed limit, a contravention of the Road Traffic Act 1961 (SA). Mr Kekes' licence had expired at the time of the offence, and he was under a notice of immediate suspension. The Magistrate declined to order that the alcohol interlock scheme apply to the period of licence disqualification. Mr Kekes sought judicial review of the Registrar's decision not to issue him with a driver's licence effective from the date his previous licence expired, which was a pre-condition for eligibility to participate in the alcohol interlock scheme. The central issues before the court were whether the Registrar was entitled to treat the suspension and disqualification of Mr Kekes' licence as having the same effect, whether the Registrar was entitled to predetermine Mr Kekes' eligibility to renew his licence on the basis of his suspension, and whether the decision not to send Mr Kekes a licence renewal form amounted to a pre-determination of his eligibility to renew his licence.

The court held that the concepts of suspension and disqualification were distinct and that the Registrar was not entitled to treat a suspended licence as though it were disqualified. The court found that the Registrar's decision not to send Mr Kekes a licence renewal form was a reviewable decision as it amounted to a constructive refusal or failure to exercise jurisdiction. The court concluded that Mr Kekes was entitled to renew his suspended licence, and the Registrar's decision not to send Mr Kekes a licence renewal form was a pre-determination of his eligibility to renew his licence. The court granted judicial review and made an order in the nature of mandamus, subject to the renewal of Mr Kekes' licence, allowing the appeal from the Magistrate’s decision. The court directed that counsel for Mr Kekes prepare minutes of order with respect to the judicial review proceedings and proposed minutes of order with respect to the appeal.

The court's reasoning was based on the fundamental difference between the concepts of suspension and disqualification. Under the Motor Vehicles Act, a person is disqualified from holding or obtaining a driver’s licence for a period of time, while a suspension operates on the licence rather than the person. The court held that the Registrar was not entitled to predetermine Mr Kekes' eligibility to renew his licence on the basis of his suspension and that the decision not to send Mr Kekes a licence renewal form amounted to a constructive refusal or failure to exercise jurisdiction. The court concluded that the Registrar's decision was reviewable and that Mr Kekes was entitled to renew his suspended licence. The court granted judicial review and made an order in the nature of mandamus, subject to the renewal of Mr Kekes' licence, allowing the appeal from the Magistrate’s decision.