National Council of and for Persons with Disabilities v Independent Communications Authority of SA (581/2024) [2025] ZASCA 161 (24 October 2025)

Case Note

National Council of and for Persons with Disabilities v Independent Communications Authority of South Africa (581/2024) [2025] ZASCA 161 (24 October 2025)

Reportability

This judgment is reportable because it provides authoritative guidance on the application of section 7(1) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) to review challenges directed at subordinate legislation, where reasons for the administrative action were published contemporaneously with the decision. It clarifies that when reasons accompany the impugned decision, requests for “further reasons” do not delay, suspend, or reset the 180-day period in section 7(1), and that the “clock” begins to run when the decision and its reasons are known or reasonably should be known.

The decision is significant in reaffirming that the promulgation of regulations by a statutory regulator constitutes administrative action to which PAJA applies, and that an affected party’s right to participate in a notice-and-comment process does not translate into an enforceable duty on the decision-maker to adopt that party’s proposals. It also underscores the importance of the finality of administrative decisions, the prejudice inherent in upsetting regulatory schemes relied upon by regulated parties, and the limited role of courts in substituting their policy preferences for those of the empowered regulator.

Further, the judgment is important for appellate practice and constitutional litigation procedure. It cautions against the introduction, for the first time on appeal, of new constitutional relief seeking to invalidate regulations, emphasising fairness, prejudice, the peremptory requirements of rule 16A of the Uniform Rules of Court, and the need to join or at least notify parties with a direct and substantial interest, such as affected licensees. It thus reinforces procedural safeguards ensuring that constitutional challenges proceed on a properly pleaded and participatory footing.

Cases Cited

City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd [2009] ZASCA 87; 2010 (3) SA 589 (SCA); 2010 (1) All SA 1 (SCA).

Esau and Others v Minister of Co-Operative Governance and Traditional Affairs and Others [2021] ZASCA 9; 2021 (3) SA 593 (SCA); [2021] 2 All SA 357 (SCA).

Joubert Galpin Searle Inc and Others v Road Accident Fund and Others [2014] ZAECPEHC 19; 2014 (4) SA 148 (ECP); [2014] 2 All SA 604 (ECP).

Opposition to Urban Tolling Alliance and Others v South African National Roads Agency Limited and Others [2013] ZASCA 148; [2013] All SA 639 (SCA).

Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd [2019] ZACC 15; 2019 (6) BCLR 661 (CC); 2019 (4) SA 331 (CC).

Valor IT v Premier, North West Province and Others [2020] ZASCA 62; [2020] 3 All SA 397 (SCA); 2021 (1) SA 42 (SCA).

Commissioner, South African Revenue Service v Sasol Chevron Holdings Ltd [2022] ZASCA 56; 85 SATC 216 (SCA).

City of Cape Town v Aurecon South Africa (Pty) Ltd [2017] ZACC 5; 2017 (6) BCLR 730 (CC); 2017 (4) SA 223 (CC).

Centre for Child Law and Others v South African Council for Educators and Others [2024] ZASCA 45; 2024 (4) SA 473 (SCA).

Sasol Chevron Holdings Limited v Commissioner for the South African Revenue Service [2023] ZACC 30; 2023 (12) BCLR 1525 (CC); 2024 (3) SA 321 (CC); 86 SATC 456 (CC).

4 Africa Exchange (Pty) Ltd v Financial Sector Conduct Authority and Others 2020 (6) SA 428 (GJ).

Mostert NO v Registrar of Pension Funds and Others [2017] ZASCA 108; 2018 (2) SA 53 (SCA).

City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd [2009] ZACC 34; 2010 (5) BCLR 445 (CC).

Associated Institutions Pension Fund and Others v Van Zyl and Others 2005 (2) SA 302 (SCA); [2004] 4 All SA 133 (SCA).

Gqwetha v Transkei Development Corporation Ltd and Others [2005] ZASCA 51; 2006 (2) SA 603 (SCA); [2006] 3 All SA 245 (SCA).

Doctors for Life International v Speaker of the National Assembly and Others [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC).

Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others [2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC).

DHB v CSB [2024] ZACC 9; 2024 (5) SA 335 (CC); 2024 (8) BCLR 1080 (CC).

Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC).

Modder East Squatters and Another v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (187/03, 213/03) [2004] ZASCA 47 (27 May 2004).

Zealand v Minister of Justice and Constitutional Development and Another [2008] ZACC 3; 2008 (2) SACR 1 (CC); 2008 (6) BCLR 601 (CC); 2008 (4) SA 458 (CC).

Shaik v Minister of Justice and Constitutional Development and Others 2004 (3) SA 599 (CC); 2004 (4) BCLR 333 (CC); 2004 (1) SACR 105 (CC).

Gory v Kolver NO and Others (Starke and Others Intervening) [2006] ZACC 20; 2007 (4) SA 97 (CC); 2007 (3) BCLR 249 (CC).

Equal Education and Another v Minister of Basic Education and Others [2018] ZAECBHC 6; [2018] 3 All SA 705 (ECB); 2018 (9) BCLR 1130 (ECB); 2019 (1) SA 421 (ECB).

Economic Freedom Fighters and Others v Speaker of National Assembly and Others [2016] 1 All SA 520 (WCC).

Legislation Cited

Independent Communications Authority of South Africa Act 13 of 2000, section 4(3)(j).

Electronic Communications Act 36 of 2005, sections 4(1), 4(4), and 70.

Promotion of Administrative Justice Act 3 of 2000, sections 5, 6(1), 6(2)(e)(iii), 6(2)(f)(ii)(cc)–(dd), and 7(1)(b).

Constitution of the Republic of South Africa, 1996, sections 7(2) and 36.

White Paper on the Rights of Persons with Disabilities (2015) (referenced as contextual policy).

Rules of Court Cited

Uniform Rules of Court, rule 16A.

HEADNOTE

Summary

The appellant, the National Council of and for Persons with Disabilities, reviewed the Independent Communications Authority of South Africa’s decision to promulgate the 2021 Code for Persons with Disabilities under the Electronic Communications Act. It contended that ICASA failed properly to consider its submissions, particularly the call to mandate open live captioning or subtitling for news and other broadcasts of national importance, thereby inadequately accommodating deaf and hearing-impaired persons.

The High Court dismissed the review for unreasonable delay under section 7(1) of PAJA and refused condonation. On appeal, the appellant sought, for the first time, a declaration that the Code is unconstitutional to the extent that it does not mandate open captioning/subtitling. The Supreme Court of Appeal held that the review was instituted after an unreasonable delay without a full and reasonable explanation, that condonation was rightly refused given prejudice and finality considerations, and that there was little prospect of success on the merits because a regulator is not obliged to accept any particular stakeholder’s proposals in notice-and-comment rulemaking.

The Court further refused to entertain the new constitutional relief introduced on appeal. It found this would be unfair and prejudicial to the regulator and affected broadcasting licensees, who had neither been joined nor notified under rule 16A, and had no opportunity to raise and substantiate a section 36 limitation defence. The appeal was dismissed without a costs order.

Key Issues

The first issue concerned the operation of section 7(1) of PAJA where reasons for the impugned administrative action were published with the decision. The Court had to determine whether subsequent requests for additional or clarificatory reasons postponed the commencement of or interrupted the 180-day period. It held they did not, and that the “proverbial clock” begins to run when the decision and its reasons are known or reasonably should be known.

The second issue was whether the High Court properly refused condonation. This required consideration of the length of the delay, the reasons advanced, inherent and actual prejudice flowing from regulatory uncertainty, the public interest in finality of administrative decisions, and the prospects of success. The Court concluded that the explanation was inadequate, the delay was undue in the circumstances, prejudice and finality weighed decisively against condonation, and the merits were weak because there is no duty on a regulator to adopt a particular stakeholder’s proposals.

The third issue involved appellate procedure and constitutional litigation safeguards. The appellant’s attempt to secure a declaration of constitutional invalidity for the first time on appeal raised questions of fairness, prejudice, rule 16A notification, and joinder of interested parties such as broadcasting licensees. The Court held it was not in the interests of justice to entertain new constitutional relief on appeal in the absence of proper pleading, notification, joinder, and an opportunity for the regulator and interested parties to justify any limitation under section 36.

Held

The Court held that the promulgation of the Code constituted administrative action to which PAJA applies. Because the decision and reasons were published on 9 April 2021, the section 7(1) 180-day period commenced then. The appellant’s later requests for other parties’ submissions and for “further reasons” could not suspend or extend the statutory period. The delay in launching the review on the 180th day was unreasonable on the facts, and the explanation did not cover the entire period.

Condonation was refused because the delay was undue; the Code had already come into operation, regulated entities had ordered their affairs and incurred costs to comply; and there was an inherent public interest in the finality and certainty of administrative schemes. The review’s prospects were poor because the Authority’s duty is to consider, not to accept, stakeholder submissions in the rulemaking process, and the record showed it had considered the appellant’s inputs.

The Court further held that the appellant’s new constitutional relief could not be entertained on appeal. Raising constitutional invalidity for the first time, without rule 16A notice and without joinder of broadcasting licensees with a direct and substantial interest, would be unfair and prejudicial, especially as it deprived the regulator and others of the opportunity to justify any rights limitations. The appeal was dismissed, with no order as to costs.

THE FACTS

The Independent Communications Authority of South Africa promulgated the Code for Persons with Disabilities Regulations on 9 April 2021 under the Independent Communications Authority Act 13 of 2000 and the Electronic Communications Act 36 of 2005. The Code prescribes accessibility requirements for broadcasting service licensees. Regulation 3 addresses access for those who are deaf or hearing-impaired by specifying standards for audio description, sign language, subtitles, and closed captioning.

The promulgation followed ICASA’s publication, on 12 June 2020, of a Draft Code calling for public comment. The appellant, a long-established advocacy organisation for persons with disabilities, submitted detailed representations on 10 July 2020. Its central contention was that closed captioning alone was inadequate to secure effective access to news and other broadcasts of national importance for deaf and hearing-impaired viewers, many of whom lack the technology to activate or use closed captions. It urged the Authority to mandate open live captions or subtitles for news and to expand definitions to align with the White Paper on the Rights of Persons with Disabilities.

When the final Code was published together with a Reasons Document, the appellant remained dissatisfied, believing that its core proposals—especially the mandatory use of open captioning/subtitling on news broadcasts—had effectively been ignored. On 16 June 2021, through its attorneys, it requested copies of all submissions made on the Draft Code, which ICASA provided via a link on 21 June 2021. On 11 August 2021, the appellant requested “reasons” under section 5(1) of PAJA for why its proposals were not adopted. ICASA did not respond. The appellant launched its review application on 5 October 2021, the 180th day from 9 April 2021, alleging in terms of PAJA that ICASA failed to consider relevant considerations, acted irrationally in relation to the information and the reasons provided, and that the procedure was unfair.

The High Court dismissed the review, holding that it was instituted after an unreasonable delay within the meaning of section 7(1) of PAJA and that condonation should not be granted. The court found inherent and actual prejudice to regulated broadcasting licensees, who had already put compliance measures in place, and little prospect of success on the merits because the Authority had considered the appellant’s submissions and had no legal obligation to adopt them. With the leave of the Supreme Court of Appeal, the appellant pursued an appeal and, at the outset of the hearing, presented a draft order for the first time seeking a declaration that the Code was unconstitutional to the extent that it failed to mandate open captioning/subtitling on news broadcasts and other broadcasts of national importance.

THE ISSUES

The primary issue was whether the appellant instituted review proceedings “without unreasonable delay” as required by section 7(1) of PAJA and whether, in the circumstances, condonation of any undue delay ought to be granted. This required the Court to determine the point at which the 180-day period begins to run where reasons accompany the decision, and whether steps taken by the appellant to obtain other parties’ submissions and to seek “further reasons” served to suspend or extend the statutory time period.

A further issue was whether the High Court properly exercised its discretion in refusing condonation in light of the explanation for the delay, the degree of prejudice to the regulator and regulated broadcasting licensees, the public interest in the finality of administrative decisions, and the review’s prospects of success. The appellant maintained that investigatory prudence justified its timing and relied on case law permitting a litigant to seek reasons before launching review proceedings.

The third issue arose only on appeal: whether it was in the interests of justice for the Supreme Court of Appeal to entertain new constitutional relief—namely a declaration of invalidity of the Code for failing to mandate open captioning—for the first time on appeal. That question implicated fairness, prejudice to the Authority, the peremptory notification duty under rule 16A, non-joinder of licensees with an immediate legal interest, and the absence of any pleaded or proven justification by the Authority under section 36 of the Constitution for limits on implicated rights.

ANALYSIS

On the question of delay, the Court confirmed that the promulgation of regulations by a statutory agency constitutes administrative action reviewable under PAJA. It found that the appellant became aware of both the Code and the Reasons Document on 9 April 2021, and thus the section 7(1) “clock” began then. The Court endorsed the principle that the 180-day period commences when the applicant is, or reasonably should be, aware of the decision and the reasons for it. Where reasons accompany the decision, requests for clarificatory or additional explanations do not defer the commencement of the period or “stop the clock”.

The Court distinguished authority permitting delays where reasons have not been provided or are inadequate to determine whether a review is warranted. Here, reasons were published with the decision, and the appellant’s requests thereafter did not alter the statutory timeframe. It further held that the appellant’s invocation of section 5(1) of PAJA was misplaced because that provision is available only where reasons were not given for the administrative action. In any event, the appellant’s request under section 5(1) fell outside the 90-day window and did not explain the delay that ensued. The explanation tendered did not cover the full period between April and October 2021 and revealed a lack of diligence inconsistent with the urgency of the rights the appellant sought to vindicate.

In assessing condonation, the Court emphasised both inherent and actual prejudice. The Code had commenced after an 18-month lead-time expressly designed to allow compliance by broadcasters. By the time of the High Court hearing, licensees had incurred compliance costs and structured their operations on the footing of the Code’s validity. Setting the Code aside would introduce uncertainty detrimental to the regulator’s efficient functioning and to those who rely upon the Code. The Court cited the public interest in finality as a core rationale of the undue delay rule and reiterated that proof of actual prejudice is not a precondition to refusing review on account of undue delay, although demonstrated prejudice can be decisive where the delay is slight. It further found that the review’s prospects were poor, as participatory law-making requires genuine consideration of submissions but does not oblige the rule-maker to accept them; the record showed the Authority had considered the appellant’s submissions.

Turning to the new relief sought on appeal, the Court held that introducing a constitutional challenge at that stage was impermissible on multiple grounds. The issues had not been properly pleaded, the Authority was not called upon in the High Court to justify, with facts and policy considerations, any limitation of rights that the non-mandatory treatment of open captioning might entail, and the High Court had not determined any constitutional breach. Allowing new relief would be unfair and prejudicial, as it would deprive the Authority of the opportunity to raise and substantiate a section 36 limitation defence. The Court stressed the peremptory nature and purpose of rule 16A in ensuring notification of constitutional issues to those with an interest in the case so they may act to protect those interests.

The Court also found non-joinder to be a further impediment. Broadcasting licensees regulated by the Code and directly affected by any order of constitutional invalidity had not been joined, even though they were easily identifiable and at least some had participated in the original rulemaking process. While not all parties potentially affected by a constitutional ruling can or should be joined, a pragmatic approach requires joinder of those with a direct and substantial interest, particularly regulated entities bound by the impugned instrument. Finally, the Court noted a material contradiction: the appellant’s founding affidavit acknowledged that open live captioning on news “may not currently be achievable” in South Africa and was a long-term goal, a position inconsistent with the categorical constitutional relief later proposed on appeal.

REMEDY

The Court dismissed the appeal. It held that the High Court correctly concluded that the review application was instituted after an unreasonable delay and that the appellant failed to provide a full, satisfactory explanation covering the entire period. In consequence, and given prejudice to regulated entities and the public interest in the finality of administrative schemes, condonation was properly refused.

As to the new constitutional relief sought for the first time on appeal, the Court declined to entertain it. It held that fairness and procedural regularity required that such relief be properly pleaded in the court of first instance, accompanied by rule 16A notice and joinder or at least participation opportunities for parties with a direct and substantial interest. The absence of a pleaded constitutional breach and of any section 36 justification record confirmed that it was not in the interests of justice to address the new claim on appeal.

In view of the appellant’s role in seeking to vindicate the rights of deaf and hearing-impaired persons, the Court considered it prudent not to penalise it with an adverse costs order. The appeal was accordingly dismissed with no order as to costs.

LEGAL PRINCIPLES

The decision affirms that the making of regulations by a statutory authority constitutes administrative action reviewable under PAJA. Where reasons for the administrative action accompany the decision, the section 7(1) 180-day period runs from the date the decision and reasons are known or reasonably should be known. Requests for “further reasons” in such circumstances do not delay, suspend, or reset the statutory period, and section 5(1) of PAJA cannot be invoked to solicit reasons for why particular stakeholder proposals were not adopted.

On unreasonable delay and condonation, the Court restated the two-stage inquiry: first, whether the delay was unreasonable on the facts and, second, whether it should be condoned in the exercise of the court’s discretion, considering the length of the delay, the completeness and cogency of the explanation, prejudice to the parties and the public interest, and the prospects of success. The rationale for the undue delay rule lies in the inherent prejudice and uncertainty that protracted challenges create for public administration and those who rely on administrative decisions, and in the public interest in finality.

The judgment elucidates the scope of participatory rulemaking obligations. An empowered functionary must give adequate notice, provide a reasonable opportunity to comment, and genuinely consider all inputs, but has no duty to accept any particular submission. A failure to adopt a stakeholder’s proposals is not, without more, procedural unfairness or irrationality.

On appellate and constitutional procedure, the Court underscored that it is generally impermissible to seek new constitutional relief for the first time on appeal, absent pleadings that crystallise the issues, rule 16A notification, and joinder of necessary parties. Fairness and absence of prejudice are pivotal. Where a constitutional infringement is established, a court may grant appropriate relief even if not originally pleaded, but the precondition is that the breach emerges on the evidence and that prejudice is addressed. Parties seeking to invalidate legislation or subordinate legislation must ensure that affected persons and entities have a proper opportunity to be heard, including on justification under section 36 of the Constitution.