Recycling and Economic Development Initiative of South Africa NPC v Tubestone (Pty) Ltd (16077/19) [2021] ZAWCHC 270; [2022] 1 All SA 774 (WCC) (22 December 2021)

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[2021] ZAWCHC 270
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Recycling and Economic Development Initiative of South Africa NPC v Tubestone (Pty) Ltd (16077/19) [2021] ZAWCHC 270; [2022] 1 All SA 774 (WCC) (22 December 2021)

IN THE HIGH
COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case Number:
16077/19
In
the matter between:
RECYCLING
AND ECONOMIC DEVELOPMENT
INITIATIVE
OF SOUTH AFRICA NPC
(Registration
no. 2010/022733/08)

Applicant
and
TUBESTONE
(PTY) LTD

Respondent
(Registration no.
2000/028590/07)
Judgment
delivered electronically on 22 December 2021
PANGARKER
AJ
Introduction
and background
1.
The applicant is a non-profit company which was developed to
implement the Integrated
Industry Waste Tyre Management Plan
(the
plan)
[1]
which
was promulgated by the Minister of Water and Environmental Affairs
(the
Minister)
in November 2012
[2]
in terms of
the National Environmental Management: Waste Act
[3]
.
The applicant was at all material times an organ of State and the
plan, an instrument of subordinate legislation
[4]
.
The respondent is a private company which has as its business the
importation, production and manufacturing of tyres.
2.
The purpose of the plan, seen against the backdrop of the Act, was to
ensure the
disposal and/or recycling of waste tyres which has harmful
effects on the environment. The objectives of the Act may be seen as
the
regulation of waste management in order to,
inter alia,
protect health and the environment by providing reasonable measures
to combat pollution and ecological degradation and to secure
an
ecologically sustainable development. In terms of clause 2.1 of the
plan, the Department of Environmental Affairs (DEA) has the
task and
role to protect the environment and public health.
3.
The plan has its genesis in section 28 (1) of the Act which vests the
Minister
with a discretion to require a person or by notice in the
Government Gazette, require a category of persons or an industry that
generate
waste, to prepare and submit an industry waste management
plan to him/her for approval. Section 28 must be read with the Waste
Tyre
Regulations, 2008
[5]
which
regulate the content of such plan.
4.
The applicant was administered for purposes of implementing the plan
and it was
required to have a Memorandum of Incorporation governing
its activities. Producers of tyres, such as the respondent, were
required
in terms of Regulation 6 and clause 4 of the plan to
subscribe to the said plan. Failure to subscribe would result in an
offence
in terms of Regulation 17(1). Subscribers to the plan were
required to sign a Deed of Adherence acknowledging compliance with
the
plan, the provision of monthly subscriber returns and compliance
with administrative requirements. The respondent was a subscriber
to
the plan
[6]
.
The
applicant's case
5.
The applicant alleged that the respondent undertook in its Deed of
Adherence to
act in accordance with the plan and to submit monthly
returns. The Deed of Adherence was signed by the respondent’s
managing director,
Mr. Kruger, on 18 January 2012. In terms of clause
17 of the plan, a waste tyre management fee
(the fee)
was
levied on all subscribers thereto and would be calculated to cover
the cost of waste tyre management, which included tyres produced
or
imported into South Africa. The fee was also levied on products
containing tyres. The fee would be levied at R2,30/kg tyres excluding
VAT. Subscribers’ monthly returns, indicating the mass of disposed
tyres for a specific period, were followed by the applicant
issuing
invoices and collecting payment of the fees.
6.
The principle motivating the fee was that all tyres disposed of must
be subject
to payment of the fee. Subscribers were to pay by
electronic funds transfer (EFT) 90 days after delivery of their
monthly declarations
to the applicant. Clause 28.2 of the plan deals
with the applicant's compliance monitoring of a subscriber's
obligations, including
the failure to pay the fee, which equated to
non-compliance with the plan. This non-compliance would result in
certain actions being
taken by the applicant, such as reporting the
subscriber to the DEA or SARS
[7]
.
7.
The primary issue in this application relates to the respondent’s
non-payment
of waste tyre management fees pursuant to its issuing of
returns to the applicant for October to December 2016 and the
respondent’s
collateral challenge. The applicant subsequently
issued invoices for this period totaling R2 479 335
[8]
.
The applicant claims that the invoices are overdue and that the
respondent is liable to it for payment of the amounts as per the
invoices. On 1 August 2019, the applicant’s attorney addressed a
letter of demand seeking payment in respect of the outstanding
invoices on the basis of the respondent’s non-compliance with its
obligations in terms of the plan
[9]
.
The applicant’s case is that the respondent, as a subscriber to the
plan, is required to pay the fees to the applicant.
The
respondent's collateral challenge
8.
The respondent admits the existence of the plan, the conclusion and
signing of
the Deed of Adherence, that it was a subscriber to the
plan and that it undertook to adhere to the plan. The respondent's
case is
that the applicant is not entitled to compel compliance with
the plan and demand payment of the fee. Its case is premised on the
following contentions: with reference to clause 17 of the plan
relating to the fee, the cost determination factors would be as set
out in clauses 17.1 and 25.1, meaning that the fee would be reviewed
annually, all subscribers would be notified thereof and it was
subject to change depending on actual costs and the number of tyres
manufactured and imported.
9.
Furthermore, the respondent agrees that in terms of clause 40, the
fee was set
at R2,30/kg. The respondent devotes part of its answering
affidavit to references to a Western Cape High Court judgment which
granted
a final winding up order against the applicant and its
management company, Kusaga Taka (Proprietary) Ltd
(KT)
[10]
in
proceedings initiated by the Minister. The order was successfully
appealed in the Supreme Court of Appeal (SCA) in the reported
judgment
Recycling
and Economic Development Initiative of South Africa NPC v Minister of
Environmental Affairs
(the REDISA judgment)
[11]
.
10.
The respondent confirms that in terms of the
Retail
Motor Industry
[12]
judgment,
the plan constituted subordinate legislation and that it was binding
on subscribers as well as the applicant. It admits
that when the plan
was approved in November 2012, the waste tyre management fee was
determined at R2,30/kg. The fee was an estimate
and the applicant had
to revise the figure on the first anniversary of the plan and
thereafter the fee had to be based on actual
costs in year one and
projected fluctuating variable costs, taking into account all other
influencing factors, and the CPI.
11.
The respondent's argument is that the fee never changed since 2013
and thus it concludes that the
applicant's board failed to review the
fee either annually or at all, alternatively, the applicant's board
reviewed the fee annually
but resolved to maintain it at R2,30/kg. In
the event that the board had failed to review the fee at all, the
submission is made
that the applicant acted
ultra vires
as it
had failed to review and update cost estimates in light of
operational experience; failed to attempt to minimize the fee; failed
to ensure that the fee was based on actual costs in the first year of
its inception and projected fluctuating variable costs, CPI
and other
influencing factors, and, the applicant had failed to fulfil its
objective to contain the fee amount in real terms to be
equal to or
less than the initial amount. It is thus submitted that, in light of
the above, the applicant's board had deviated from
the plan and had
committed an offence in terms of regulation 17(1)(b).
12.
The further contention is that to the extent that the applicant
reviewed the fee annually, such
determination of the fee was
procedurally unfair. It is submitted that the annual determination of
the amount payable by subscribers,
constituted administrative action
and thus has to be lawful, reasonable and procedurally fair. The
respondent was not notified of
the applicant's intention to review
the fee and to the best of Mr. Kruger's knowledge and belief, the
applicant did not review the
fee annually as set out in the plan and
in the applicant's Memorandum of Incorporation. Furthermore, the
respondent advances that
the applicant did not hold a public inquiry
nor decided to follow a notice and comment procedure prior to the
annual determination
of the plan and that this was contrary to the
provisions of section 4(1) and 10(1) of the Promotion of
Administrative Justice Act
(PAJA)
[13]
.
13.
It is contended that the provisions of PAJA are peremptory and had
the applicant complied with those
requirements, the annual review and
determination would have been brought to the respondent’s attention
and the latter would have
been in a position to comment on such
review. It is furthermore submitted that the applicant never
consulted with the Retail Motor
Industry organization (RMI) which
represents the interests of a large number of subscribers to the plan
and which is a consumer body
contemplated in clause 25.1 thereof. The
averment is supported by a confirmatory affidavit of RMI’s CEO who
confirmed that from
date of approval of the plan, the applicant never
consulted it in respect of the review and determination of the
fee
[14]
. It is submitted that
the applicant’s review (if any) of the fee was procedurally unfair
and unlawful as it was reviewed without
the knowledge of the
respondent and the public and not in consultation with the relevant
consumer bodies.
14.
The opposition to the application is that the determination of the
fee was not authorized by the
enabling legislation because irrelevant
considerations were taken into account or relevant considerations
were not considered and/or
the applicant's determination of the fee
was irrational, arbitrary and done in bad faith. In support of this
ground of opposition,
it is submitted that, according to the
Minister, the applicant’s  directors had developed a scheme to
misappropriate the applicant's
funds and had flagged certain payments
as being suspicious
[15]
. In
this regard, the respondent seems to rely on the Minister’s
affidavit in the
REDISA
yet admits that the SCA majority dealt with the Minister’s concerns
and that it found that the Minister had failed to make out
a
prima
facie
case
in this regard
[16]
. The
majority in the SCA also concluded that the alleged unlawful payments
by the applicant to its management company KT and to certain
shareholders, had been fully explained by the applicant.
15.
Interestingly, though, in support of its opposition, the respondent
nonetheless relies on the minority
judgment of the SCA which found
that there were enough facts to support the legal conclusion of an
abusive corporate identity and
that substantial payments had been
made by the applicant to KT, contrary to the provisions of the plan
and that the directors’
remuneration was excessive.
16.
The respondent submits that the applicant is not entitled to enforce
payment of the amount which
it claims as this was based on a fee of
R2,30/kg which was unlawful and illegal. It is submitted that the fee
is not in accordance
with the plan and the applicant's Memorandum of
Incorporation. It is thus denied that the respondent is legally
obliged to pay the
amounts as set out in the invoices. Lastly, at
paragraphs 16.2 to 16.3.4, the respondent states that it had no
access to the applicant's
records and requests an order so that
discovery in terms of uniform rule 35 may occur with the result that
the application be postponed
sine die
for the process to
occur.
The
applicant’s reply
17.
The applicant submits that the respondent misconceives that the fees
were required to be revised
and amended on an annual basis and that
the applicant's failure to do so, rendered the respondent's
obligation to pay the fees void.
The submission in this regard is
that there was no obligation on the applicant to amend the fees on an
annual basis. In elaboration,
the applicant contends that the fees
were reviewed in consultation with the Department as required by the
plan and the Department’s
view was that the fees should be kept at
the approved rate.
18.
Secondly, the respondent's attack that the fees were determined as a
result of an unfair process
is also rejected on the basis that the
fees were determined following extensive consultation and public
participation as part of
the approval of plan. Because no change
occurred in respect of the fees payable, in the circumstances there
was no need for any consultation:
had there been any change which was
sought to be implemented, then this would have been followed by a
consultation process.
19.
Furthermore, the applicant indicates that the respondent’s reliance
on the submission that the
fee was initially irregularly determined
is predicated on the minority judgment of the SCA in
REDISA
,
is improper. The applicant asserts that the majority judgment in that
case had found the Minister’s allegations to be unmeritorious
and
therefore the respondent’s averments should not be given any
credence. The applicant makes an important point that the respondent
does not deny that in terms of the Act, the Regulations and the plan,
it was required to pay a waste tyre management fee and that
such fee
was payable to the applicant. The applicant submits that the fee rate
was approved in 2012 following a lengthy consultation
process and the
respondent, as a subscriber, at all times complied with its
obligations to pay the fee but has belatedly waited to
launch the
collateral challenge, notwithstanding its previous compliance.
20.
The applicant’s stance is that these are not the correct
proceedings or appropriate circumstances
for the respondent to raise
a collateral challenge. Furthermore, the respondent does not question
the invoices. The applicant is
of the view that the respondent has
not argued that it was not liable to pay the waste tyre management
fee nor that such fees were
not due to the applicant. The applicant’s
submission is that the respondent should have brought review
proceedings that directly
impugn the decision to determine the fees
in the first place. The collateral challenge, it is submitted, cannot
succeed as it may
only be entertained in exceptional circumstances
and the respondent places no exceptional circumstances before the
Court which would
warrant this Court coming to its assistance.
21.
In the applicant's view, the respondent seems to have an issue with
the quantum of the fees payable
but the validity of the levying of
the fees has not been disputed. Importantly, the applicant points out
that the respondent's allegations
arise from conduct which occurred
in 2013 that there is no explanation given as to why it has taken
approximately seven years for
the respondent to now challenge the
determination of the fees. In support hereof, the applicant submits
that at least since February
2013 and up until October 2016, the
respondent submitted its returns and paid fees to the applicant. The
belated challenge is as
a result of the respondent becoming aware and
hoping that the Minister’s attempts to shut down the applicant
would succeed and
in so doing it would avoid having to meet its
obligations to the applicant in terms of the plan and the Act.
22.
As far as legal proceedings against the applicant are concerned, the
Minister’s directive that
it would take over the applicant's
operations resulted in an interdict  granted by this Division in
case number 24404/2016
[17]
and
the final liquidation orders (which were set aside on appeal by the
SCA). Furthermore, the applicant contends that neither the
respondent
nor any other subscriber ever complained that the applicant had
failed to implement the plan. Thus, it is submitted that
the belated
collateral challenge is not a genuine dispute but an opportunistic
attempt to evade payment obligations. The applicant
submits that if
the respondent was genuinely concerned about the alleged failure to
revise the fee and the apparent lack of consultation
in respect of a
determination of the fee, then it should have launched review
proceedings as far back as 2013 when the plan was promulgated,
but it
had failed to do so. The submission is that the Court cannot
entertain the collateral challenge and even if it did, there
is no
merit to the challenge.
23.
The applicant avers that the fee was reviewed regularly and in
accordance with the Act, Regulations
and the plan. The applicant is
furthermore on the view that the respondent is incorrect to require
that the fee be revised or amended
annually as this is not what is
required by clause 17.1 of the plan which requires a review annually.
From paragraph 19 of the replying
affidavit, the applicant sets out
how the fee was determined, the proposed amendments from 2013 and
engagement with National Treasury.
The issue of review received
appropriate attention from the Department and the applicant was
obliged to comply with the latter’s
decision not to adjust the fee
for the period of the plan approved until 30 November 2017. The fee
never increased from the initial
rate of R2, 30/kg of tyres but it is
submitted that the fee in real terms reduced by approximately 20%
between 2012 and 2017 because
of inflation.
24.
The second argument that the determination of the fee was
procedurally unfair is not accepted by
the applicant which submits
that there was extensive public participation in the processes. The
fee review was an ongoing internal
process and the cost determination
factors referred to in clause 17.1 of the plan was within the
applicant's own personal knowledge,
and no representations from
subscribers were required. It is submitted that only in circumstances
where there was a proposal to amend
the plan and where it affected
interested parties such as subscribers, then a public participation
process would be required, but
as such an amendment never occurred,
there was thus no process of engagement necessary.
25.
Furthermore, the applicant states that neither the plan, nor the Act
and its Regulations impose
any obligation on the applicant to notify
subscribers of its intention to undertake a review. The review
process went no further
than discussions with the Minister or
Department which did not wish to amend the fee. It is submitted that
subscribers were at all
times aware of the fee through the subscriber
returns and invoices. As to the respondent’s reliance on
allegations related to the
winding up proceedings, the SCA had dealt
with the matter and had found material non-disclosures by the
Minister. The applicant submits
that it is incompetent and wrong for
the respondent to repeat such allegations in these proceedings and
that the minority findings
in the
REDISA
judgment
are not binding.
26.
The applicant argues that a review of the fee could either be an
increase or decrease in the fee.
The fee was reviewed but remained
the same. The applicant denies that the fee was unlawful and illegal
for the reasons already indicated.
Condonation was sought for the
late replying affidavit and was granted during the hearing of the
matter. The respondent’s request
for discovery and a postponed
sine
die
of the matter was not pursued during argument.
The
parties’ submissions
27.
The applicant’s counsel submitted that it is common cause that the
respondent rendered returns
and that there is no dispute as to the
amount owing for October to December 2016. At no stage prior to its
answering affidavit delivered
in November 2019, had the respondent
ever raised an issue regarding the waste tyre management fee which it
was obliged to pay as
a subscriber to the plan. Furthermore, the
respondent does not say what the increase should be and is attempting
to evade payment.
28.
I was referred to
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[18]
and
Merafong
City v Anglogold Ashanti Ltd
[19]
in
respect of the respondent’s collateral challenge to the applicant’s
administrative action or decision regarding the fee. It
is submitted
that in
Merafong
,
the Constitutional Court set out the pre-constitutional challenges of
collateral challenges. Counsel referred me to paragraphs 69
to 71 of
Cameron J’s judgment which I address below but essentially the
submission is that a collateral challenge is a narrow defense
which
depends on the circumstances and a distinction would need to be made
whether the ruling or decision which is being challenged,
was
directed in general or whether it was intended specifically at the
challenging party or subject and known to it
[20]
.
Counsel submitted further that the applicant seeks payment of a debt
which was agreed upon between the parties by virtue of the
plan which
the respondent was obliged to comply with and in respect of the Deed
of Adherence which is a contractual undertaking to
comply with the
plan.
29.
On the question of a delay related to the collateral challenge, I am
asked to determine the matter
on the basis that this is not the
so-called classic collateral challenge Cameron J referred to in
Merafong
. On the contrary, as the argument goes, the
circumstances in this matter are that the respondent had simply sat
back and done nothing
to challenge the particular fee which was known
to it for years and therefore the issue of delay or the lateness of
the challenge
is applicable. It is thus submitted that the
respondent's case should be dismissed as the proceedings in this
application are not
the correct proceedings nor are the correct
parties before the Court as only the Minister can review the fee in
line with section
34 of the Act and Regulation 12.
30.
It is further submitted that there was no obligation on the applicant
to revise or review the initial
fee and that consultation had
occurred prior to promulgation of the plan. The fee did not increase
with inflation and was intended
to cover startup costs. In
conclusion, the applicant's counsel submits that the delay in raising
the collateral challenge is a substantial
delay which is not
explained by the respondent and there is no merit in the respondent’s
challenge. The applicant seeks an order
as per the Notice of Motion,
including costs of two counsel where so employed.
31.
The respondent’s submissions are essentially that the applicant
breached the plan, that the determination
of the fee was unlawful and
in the circumstances, the applicant is precluded from seeking payment
of the fee. On the issue of whether
the Minister needed to have been
joined to the proceedings, the respondent’s counsel
submitted that the Minister need
not have been joined to the
proceedings. The respondent agrees that the plan is binding on both
parties, and that in terms of clause
16, in year two of the plan, the
costs would be more accurate. The respondent disagrees that its case
is that the fee should have
been reduced, however, it is submitted
that the fee was excessive and persists with the view that the review
of the fee must be done
annually in lieu of a consultation process.
32.
The respondent's counsel referred to the applicant's Memorandum of
Incorporation
[21]
. The
argument was that the applicant and not the Minister, reviews the
plan. Furthermore, the respondent contends that prior consultations
with the Minister are irrelevant and that there was no consultation
regarding the fee with any consumer body. As for the
REDISA
judgment, the submission is that the respondent was not a party to
those proceedings and that the SCA did not pronounce on the validity
of the fee, but dealt with the winding applications, and that the
issue in this matter was not raised in
REDISA
.
33.
The respondent’s argument was that the attempt by the applicant to
enforce the fee is unlawful.
I was reminded that with reference to
Oudekraal
and
Merafong
,
there is a distinction between a situation when an organ of State
raises a collateral challenge as opposed to when a subject raises
it:
counsel submitted that in the latter circumstances, delay does not
play a part. Counsel also referred me to
3M
South Africa (Pty) Ltd v CSARS and Another
[22]
and
National
Industrial Council for the Iron, Steel, Engineering &
Metallurgical Industry v Photocircuit SA (Pty) Ltd and Others
[23]
.
34.
The further submissions are that neither the plan nor the Act provide
for an appeal process. Furthermore,
it was never the applicant's case
in its founding papers that there is a contractual relationship
between the parties based on the
Deed of Adherence. The respondent is
entitled to withhold performance, so it is argued, until the
applicant determines an amount
and the respondent does not ask that
the fee be set aside but seeks a finding that the application be
dismissed with costs.
35.
In reply the applicant's counsel submits that the
3M
case is distinguishable from the matter at hand. I am referred to
paragraph 19.8 of the replying affidavit which indicates that the
plan was withdrawn at the end of September 2017 by the Minister and
the basis for the fee to be collected by the applicant remained
intact until an amendment to legislation which resulted in SARS being
in a position to collect fees as from 1 February 2017. It is
submitted that SARS collected the same fee as the applicant at the
rate of R2, 30/kg.
36.
It is submitted that this matter deals with fees, which were due to
be paid prior to 1 February
2017. As to the Memorandum of
Incorporation, the respondent's reliance on paragraph 19.6.2 thereof
and the insistence that it was
the applicant which was required to
review the fee annually, counsel for the applicant is of the view
that this argument does not
excuse the non-payment of the fee and
that the Memorandum of Incorporation is a red herring. I discuss the
issues raised in the paragraphs
which follow below.
Review
proceedings or collateral challenge?
37.
It is settled between the parties that the applicant is a non-profit
company and an organ of State,
and that the plan is subordinate
legislation. The respondent, as a juristic entity, may be regarded as
subject for purposes of its
collateral or reactive challenge against
an administrative decision. At paragraph 30 of
REDISA
,
Plasket AJA (as he then was) stated that the plan imposed obligations
on subscribers and all those who entered into contractual
relationships with the applicant once the plan was implemented.
38.
It is evident that this matter does not envisage a review of an
administrative decision taken by
the applicant and is not launched in
terms of PAJA. The respondent does not seek to set aside the
applicant's decision regarding
the fee of R2,30kg. Furthermore, the
respondent does not dispute it rendered returns for October to
December 2016, as required by
the plan, consequent upon which the
applicant then issued its invoices which form part of its case
herein. In addition, the respondent
also does not dispute receipt of
the applicant's invoices, neither the plan, nor that it had in fact
made payment of the waste tyre
management fees until September 2016.
39.
The respondent's case turns on its challenge or defense to the
applicant's claim for payment of
R2 479 335, on the basis that the
applicant unlawfully and impermissibly failed to review the fee
annually, failed to consult with
various consumer bodies and
furthermore, failed to determine the fee on a costs recovery basis.
Its case is thus that it is not liable
for the payment.
40.
Section 195 (1) read with sub-section (2)(b) of the Constitution
[24]
requires
that   public administration, which includes organs of
State, must be governed by democratic values and principles
enshrined
in the Constitution, which include a high standard of professional
ethics, impartiality, accountability, transparency and
good human
resource management. The applicant exercised a public power or
performed a public function in terms of the Act
[25]
and
as a result, the applicant is accountable for the exercise of its
public powers in terms of section 195 of the Constitution. The
applicant’s coercive action is that it seeks to hold the respondent
liable for the fee for October to December 2016.
41.
As the respondent contends, for the reasons already summarized above,
it is entitled to raise a
collateral or reactive challenge to the
validity of the applicant’s administrative act
[26]
.
This challenge or defence is raised in proceedings which are not
concerned with the impeachment of the validity of the administrative
act. As Maya JA (as she then was) held at paragraph 13 in
City
of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd
[27]
,
‘
[13]
The validity of an administrative act is generally challenged by way
of judicial review. It is, however, not
uncommon for a challenge to
arise, not by the initiation of such proceedings but by way of
defence, as a collateral issue in a claim
for the enforcement or
infringement of a private law right, as the case may be. A citizen is
not required to comply with an administrative
act which is bad on its
face as it is unlawful and of no effect. He or she is entitled to
ignore it if so satisfied and justify that
conduct by raising a
‘defensive’ or ‘collateral’ challenge to its validity.
[28]
’
42.
A challenge to an administrative act, as in this case, may be either
by review or collaterally.
The authority referred to in the preceding
paragraph as well as those referred to such as
Oudekraal
,
Merafong
and
3M
,
support this view. It is thus not entirely correct to argue that the
respondent should have proceeded by review in terms of PAJA
to
challenge the applicant’s administrative act. More so, in
circumstances where it does not seek to set aside the R2, 30/kg fee.
Legally, there is no bar to raising a collateral challenge.
Failure
to join the Minister of Environmental Affairs
43.
In terms of section 34 read sections 28 (1) and 29(1) of the Act and
Regulation 12 (1), the Minister
was required to review the plan at
certain intervals. Clauses 17 and 25.1 of the plan requires of the
applicant to review the plan
annually based on operational experience
and in consultation with consumer bodies. I do not understand the
respondent's case to be
that a fee could not be fixed at R2, 30/kg.
The submission is that the failure by the applicant to comply with
clauses 17 and 25
of the plan, renders its determination of the fee
for October to December 2016, as invalid.
44.
I agree with the respondent that neither the Act, Regulations nor the
plan make provision for the
Minister to review the fee annually. In
this regard, I am inclined to agree with the respondent's counsel’s
submission that the
Minister need not have been joined nor cited as a
party to these proceedings. In any event, the collateral challenge
relates to or
affects the applicant and the enforcement of its
administrative action or failure to comply with the plan in its
capacity as an organ
of State. Thus, the collateral challenge, in my
view, is not defective for want of joining or citing the Minister.
Does
delay play a role in the collateral challenge
?
45.
Having regard to the authorities and the affidavits together with the
submissions of counsel, I
am of the view that the most important
issue in this matter relates to the question of delay in raising the
collateral challenge.
The respondent submits that the delay in
raising the collateral challenge plays no part in the matter: it is
entitled to rely on
the collateral challenge to seek to impugn the
applicant's coercive action in enforcing the fee. The respondent
relies on various
authorities and publications which I consider
below. The counter argument in the applicant’s supplementary
written submissions
is that indeed, the question of delay is
pertinent and relevant to the determination of the collateral
challenge and due to the respondent’s
lack of explanation for the
delay in raising such defence, the collateral challenge must fail.
46.
The respondent refers to two academic works, namely,
Collateral
challenge and the Rule of Law
by Dr Christopher Forsyth
[29]
and
Oudekraal
after fifteen years: The second act (or, a reassessment of the status
and force of defective administrative decisions pending
judicial
review)
[30]
by
DM Pretorius. The respondent’s counsel submitted that these
academics do not suggest that a subject which challenges an
administrative
action which it views as being unlawful, is
time-barred. It is submitted that the reason for this is because the
right to challenge
the validity of an administrative act collaterally
is an incidence of the rule of law.
Legal
principles: collateral challenge and delay
47.
My evaluation of the dispute regarding delay
commences with the seminal judgment of
Oudekraal
.
The appellant launched proceedings in the High Court in August 2001
for an order declaring the extensions granted by the Administrator
of
the Western Cape Province in 1957 for the lodging of a general plan
to establish a township, to have been lawfully granted and
for a
declaration that the development rights for a portion of the farm
Oudekraal, on the slopes of Table Mountain, was in full force
and
effect. This occurred after the Respondent notified it in 1996 that
the Administrator’s approval had lapsed and that he had
acted
beyond his powers when granting the extension. The respondent opposed
the application on the basis that the approval was invalid
in
circumstances where there were several
kramats
[31]
in
the ravines and on the slopes of the mountain
[32]
and
their existence was not disclosed during the application for plan
approval. Van Reenen J dismissed the application, holding that
the
Administrator had acted beyond his powers in extending the time limit
allowed for the lodgment of the general plan.
48.
Van Reenen J took into account the time delay of 30 months and went
on to consider the second leg
[33]
of
the enquiry relevant to a delay: whether, in the exercise of his
discretion, the delay should be condoned. The learned Judge
considered
the period of time that had lapsed since the
Administrator’s decision, the extent to which the appellant or
third parties might
have relied upon the decision, and lastly, the
consequences for the public at large were the decision to be allowed
to stand.
49.
On appeal, the SCA considered the circumstances in which an unlawful
decision may be ignored and
in which circumstances the law would
recognize such acts. It furthermore considered the Court
a quo’s
consideration of the delay in launching the proceedings. The SCA
emphasized that a Court has a discretion and that relief may be
withheld in circumstances of an undue and unreasonable delay which
causes prejudice to the other party, notwithstanding that substantive
grounds may be present for setting aside the administrative decision.
The delay rule was based on a rationale that there could be
prejudice
to interested parties in circumstances of an unreasonable delay and
the requirement of public interest in the finality
of administrative
decisions and acts was an important factor in the consideration
regarding delay.
50.
Navsa JA in
Oudekraal
stated
that the Court
a
quo,
in the exercise of its discretion, was mindful to promote the spirit
and object of the Bill of Rights
[34]
.
The SCA was willing to accept that there was an unreasonable delay in
the review brought by the respondents and having regard to
all the
facts and circumstances of the matter, the importance of the ecology
of the area and the religious significance of the graves,
the
degree of delay was found to be unprecedented, but the delay was
balanced against the unique circumstances of the case
[35]
.
Public  interest required the finality of administrative
decisions and acts, thus the SCA agreed with the High Court that the
decision should be based on the principle of legality
[36]
.
The result was that the appeal was dismissed.
51.
In
Khumalo
and Another v MEC for Education, Kwa-Zulu Natal
[37]
,
the
MEC successfully challenged her own department’s administrative
action regarding a promotion of the appellants. It was held
that a
legality review must be brought without undue delay, failing which
Courts have a discretion to refuse an application or overlook
the
undue delay. But as in
Oudekraal
,
the
discretion had to be informed by constitutional values which required
of public functionaries to uphold the rule of law and
redress
unlawful decisions
[38]
. At
paragraph 48 of the judgment, the Constitutional Court held that in
circumstances of a considerable delay, a Court’s ability
to assess
an instance of unlawfulness from the facts of a matter may be
weakened
[39]
. The Court found
that the MEC had failed to provide any account for the delay and
given the obligation she had to act expeditiously
in fulfilling her
constitutional obligations, the unreasonableness of her unexplained
delay was considered to be serious. As to the
second part of the
enquiry, in the absence of an explanation for the delay, the Court
considered potential prejudice to affected
parties and consequences
of setting aside the impugned decision. On my understanding of the
judgment, notwithstanding an absence
of an explanation regarding
delay, the Constitutional Court nonetheless considered the merits of
the legality review.
52.
In
Merafong
City v Anglogold Ashanti Ltd
[40]
an
organ of State raised a collateral challenge to an administrative
ruling. Cameron J writing for the majority of the Constitutional
Court
[41]
, held the view that
the approach adopted by the High Court and SCA that a collateral
challenge was only available to an individual/citizen
whom the public
authority threatens with coercive action, pigeon-holed the issue of a
collateral challenge into a rigid format which
was not warranted.
53.
The collateral challenge by Merafong City was lodged in August 2011
and at that stage, the particular
Minister’s ruling had already
stood for more than six years. The Court considered the question
regarding the lapse of time
[42]
and
held that a collateral challenge should be available to a litigant
where justice requires it to be but that was dependent on the
facts
and circumstances of each case. The important discussion for purposes
of this matter and the dispute between the parties is
found at
paragraphs 69 to 72 of the majority judgment
[43]
where
Cameron J states that:
‘
[69]
First, we must note that Merafong’s reactive challenge has
distinctive attributes.  These render it
different from those a
subject raises when the state threatens imprisonment or coerces
payment.
In these cases, which we may call
“classical” collateral challenges, delay plays no role.  The
subject is entitled, as of
right, to scrutinise the lawfulness of
coercive action because the rule of law requires that official power
not be exercised against
the liberty or property of a subject unless
it is lawfully sourced
.
[70]
The virtue of “classical” reactive challenges lies precisely
in the fact that they provide a defence to parties who face the
enforcement
of the law but who never previously confronted it.
And it is for this reason that they may sometimes be disallowed.
Where
a statute provides for an appeal or other remedy, and the
disputed decision was specifically directed to the challenging party,
our
courts have forbidden a collateral challenge
.
[71]
The point of
these cases is that the ruling or decision was not directed to the
world at large.  It was specific.  It was
known to the
subject.  They stand in contrast to instances where the law is
of general application, and is possibly unknown
to the person against
whom it is sought to be enforced.  There, delay cannot be a
disqualifying consideration
[44]
.
[72]
Here, Merafong was well aware of the Minister’s decision, which
was specifically addressed to it.  It does not dispute that
it
knew that a legal challenge was immediately available to it.
This means that Merafong’s reactive challenge is of the category
that necessitates scrutiny in regard to delay.’
54.
From the above, it is evident that in the classical collateral
challenge, delay plays no role and
the subject is entitled to
challenge the lawfulness of the coercive action because the rule of
law would require that official power
not be enforced against the
liberty or property of such subject unless it is lawful
[45]
.
So far, so good for the respondent's collateral challenge. However,
the learned Judge extended and qualified the distinction: the
classical collateral challenge provides a defence to the citizen who
faces the enforcement of an administrative act or decision which
is
of general application and which it had never previously been
confronted with, but where the act or law is specifically directed
at
the subject, known to it and the legislation provides no appeal or
other remedy, then the collateral challenge is forbidden. This
distinction becomes important in this matter. It follows from Cameron
J’s reasoning in
Merafong
that
where the particular action or decision was known and was directed at
the citizen, then the question of delay in raising the
collateral
challenge plays a part.
55.
Shortly after
Merafong
,
the Constitutional Court delivered its judgment in
Department
of Transport and Others v Tasima (Pty) Ltd
[46]
which
also dealt with a collateral challenge faced by an organ of State. On
the question of delay, at paragraph 160, the majority
judgment
referred to the test in
Gqwetha
[47]
and
cautioned again that undue delay should not be tolerated and that a
Court should display ‘
vigilance,
consideration and propriety before overlooking a late review,
reactive or otherwise
’
[48]
.
The Constitutional Court weighed up the prejudice to the parties
where the Department of Transport’s decision regarding the transfer
of the eNatis system came under the spotlight. Ultimately, the
Constitutional Court overlooked the undue delay in bringing the
counter
application and hence, the reactive challenge succeeded.
56.
There must be a basis for the Court, in circumstances where there was
a delay in raising the collateral
challenge or review, to exercise
its discretion to overlook the delay as ‘
no
discretion can be exercised in the air’
[49]
.
In
Gijima,
the Constitutional Court held that where a delay was inordinately
long, there must be a basis for a Court to exercise its discretion
and such basis should be evident from the facts placed before it or
objectively available factors
[50]
.
The delay was undue, the applicant sat idly by and only raised the
challenge when Gijima instituted arbitration proceedings.
57.
In the more recent decision of
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
[51]
,
the question of delay under PAJA and in legality challenges arose
again. The Court agreed with the tests applied in the earlier
decisions of
Khumalo
and
Gijima
.
Whether
the delay was under PAJA (a review) or under legality (a collateral
or reactive challenge), the yardstick was whether the
delay was
unreasonable
[52]
. Theron J
stated that ‘
the
clock starts running from the date that the applicant became aware or
reasonably ought to have become aware of the action taken’
[53]
.
My
understanding from this authority and the earlier cases cited above
is that there is no material distinction in the ‘delay rule’
test
applicable to reviews of an administrative decision under PAJA and a
challenge to an administrative action or decision by way
of a
collateral challenge in terms of the principle of legality.
Naturally, the 180 day requirement in terms of a PAJA review does
not
apply to a collateral challenge
[54]
.
58.
In my view, paragraphs 50 to 53 of
Buffalo City
are
insightful and provide guidance on the approach to delay, more
especially when there is an absence of explanation regarding a
delay
in launching a collateral challenge. Theron J states that:
‘
[50]
The approach to undue delay within the context of a legality
challenge necessarily involves the exercise of
a broader discretion
than that traditionally applied to section 7 of PAJA.
The
180-day bar in PAJA does not play a pronounced role in the context of
legality.  Rather, the question is first one of reasonableness,
and then (if the delay is found to be unreasonable) whether the
interests of justice require an overlooking of that unreasonable
delay
.
[51]
The second difference between PAJA and legality review for the
purposes of delay is that when assessing
the delay under the
principle of legality
no explicit condonation application is
required.
A court can simply consider the delay, and
then apply the two-step Khumalo test to ascertain whether the delay
is undue and, if so,
whether it should be overlooked
.
[52]
The second principle relating to delay under legality is that the
first step in the Khumalo test, the reasonableness of the delay,
must
be assessed on, among others, the explanation offered for the delay.
Where the delay can be explained and justified, then
it is
reasonable, and the merits of the review can be considered
.
If there is an explanation for the delay, the explanation must cover
the entirety of the delay.
But, as was held in Gijima, where
there is no explanation for the delay, the delay will necessarily be
unreasonable
.
[53]
Even if the
unreasonableness of the delay has been established, it cannot be
“evaluated in a vacuum” and the next leg of the test
is whether
the delay ought to be overlooked.  This is the third principle
applicable to assessing delay under legality.
Courts have the
power in a legality review to refuse an application where there is an
undue delay in initiating proceedings or discretion
to overlook the
delay.  There must however be a basis for a court to exercise
its discretion to overlook the delay.  That
basis must be
gleaned from the facts made available or objectively available
factors
’
[55]
.
59.
Thus, even where no explanation is provided for delay and the delay
is unreasonable, the Court must
nonetheless decide whether it could
overlook the unreasonableness of the delay but it cannot do so in a
vacuum. Importantly, the
learned Judge states that in a legality
review, Courts have the power to refuse an application where there is
an undue delay in initiating
proceedings or a discretion to overlook
the delay. In overlooking a delay, the Court should adopt a flexible
approach
[56]
.
60.
The SCA in
Valor
IT v Premier, North West Province and Others
[57]
,
held that the provincial government which acted under the principle
of legality was required to bring the review of its decision
within a
reasonable time but it had failed to do so. Plasket JA considered the
question of an unreasonable delay and reiterated that
this was a
factual issue which involved the making of a value judgment
[58]
.
The learned Judge of Appeal held that the consideration of
condonation in circumstances where a delay was unreasonable involved
various factors such as the length of the delay, the reasons for it,
the prejudice to the parties which it may cause, the fullness
of the
explanation and the prospects of success on the merits
[59]
.
61.
From the above discussion, it may be said with certainty that the
question regarding delay is an
important one when one considers a
collateral challenge. I do not agree with the submission made by the
respondent's counsel that
with reference to the authors Forsyth and
Pretorius, that time-barring does not apply to the subject who raises
a collateral challenge.
While I appreciate and recognize that the
principle of legality would allow the subject to raise the challenge
as a defence to the
proceedings seeking to enforce the administrative
action, and that it is not required to have acted in terms of PAJA,
the bald submission
that delay does not play a part in the collateral
challenge is problematic.
62.
Firstly, Dr Forsyth’s work used in support of the respondent's
submission that delay plays no
role in collateral challenges was
published in 1999. The publication explores English law and so the
reliance thereon to support
the respondent’s view regarding delay
is, with respect, tenuous. Our law has advanced substantially as can
be seen from the judgments
which counsel referred me to and which
this judgment refers to. Our authorities have contributed
substantially to the principles
a Court should adopt when faced with
a collateral challenge, whether delayed or not.
63.
This brings me to the respondent’s reliance on the publication by
Pretorius. Pretorius’ recent
work in the Stellenbosch Law Review
deals specifically with
Oudekraal
and the advent of various judgments in the 15 years since that
judgment was delivered. The learned author’s excellent review
explores
whether subjects and organs of State can ignore unlawful
administrative decisions within the context of the principle of
legality
and with reference to
Oudekraal
and subsequent authorities of the Constitutional and Supreme
Courts
[60]
. However, nowhere
does the author discuss the question of delay in respect of
collateral challenges. In my view, the work takes a
certain approach
and addresses fundamental issues related to collateral challenges and
reviews of administrative decisions. In my
view, as the review by
Pretorius does not address delay, it does not assist the respondent’s
stance that delay plays no role in
collateral challenges by a
subject.
64.
I agree with the applicant's counsel that the respondent’s
collateral challenge should have been
launched without any undue or
unreasonable delay. The respondent’s collateral challenge, however,
was raised after a considerable
delay. Having regard to the answering
affidavit, it is notable that there is no explanation why the
respondent, who takes issue with
the applicant’s failure to review
the waste tyre management fee annually, had never raised an objection
prior to November 2019.
65.
My view is that the question of delay does indeed play a part in this
collateral challenge. Given
the facts and circumstances of the
matter, it is common cause that the respondent became a subscriber to
the plan and signed the
Deed of Adherence in January 2012.
Subsequently, it at all times rendered returns as it was required to
do in terms of the plan and
Regulations. Furthermore, the respondent
paid the waste tyre management fee without demur after the plan was
promulgated in 2012
and in January 2017, it received the first of the
applicant’s unpaid invoices
[61]
.
On my calculation of the time periods, bearing in mind that payment
commenced at least from February 2013, more than six and a half
years
passed before the respondent decided to object to or challenge the
plan and the fee
[62]
. The
respondent had paid the fee without objection for four years before
it stopped making payment
[63]
.
66.
The respondent was at all times bound by the Act, the Waste Tyre
Regulations and plan and there
is no evidence of a dispute regarding
the amounts reflected on the unpaid invoices. The non-payment of the
October to December 2016
invoices amounted to non-compliance with the
respondent’s obligations in terms of the plan. From the objective
facts, it can by
no means be argued by the respondent that it only
became aware of its obligations in terms of the plan much later or
that it had
no knowledge of the alleged failure to review the fee in
2019 when the applicant launched this application. There is simply no
explanation
for a delay in raising the collateral challenge only in
November 2019, more than six years after commencing to comply as a
subscriber.
As the respondent is a tyre producer, it follows that the
administrative decision of setting a fee at R2,30/kg was specifically
directed
at it as a subscriber to the REDISA plan and not at the
world at large. The decision was most definitely known to the
respondent
since 2012/early 2013.
67.
Having regard to the absence of an explanation for its delay of
several years in raising a challenge
to the fee and/or plan, I must
agree with the applicant's counsel that with reference to
Gijima
[64]
,
the delay is most definitely unreasonable or undue
[65]
.
The applicant requests that the collateral challenge should be
dismissed in the absence of an explanation for the delay but being
mindful of the approach of the Constitutional Court, the enquiry
regarding delay does not simply end once a finding of unreasonable
delay is made. I agree that the merits of the challenge can only be
considered once the delay is found to be reasonable (this presupposes
that an explanation was provided)
[66]
or
if I were to overlook the unreasonable delay.
68.
The unreasonableness of the delay cannot be seen in a vacuum. As to
whether I should overlook the
delay, I am required to adopt a
flexible approach. Here, questions as to prejudice, the effect of the
impugned decision or action,
the consequences of a declaration of
unlawfulness, the nature of the impugned decision, and whether the
applicant acted in good faith
[67]
,
are relevant.
69.
In deciding whether I should exercise a judicial discretion to
overlook the unreasonable delay,
I have regard to the following: this
is a matter where, notwithstanding the fact that returns were issued
by the respondent in 2016
and  invoices were provided as far
back as January 2017, the applicant has had to resort to legal action
in order to compel
compliance with the respondent’s obligations in
terms of the plan. No issue was taken with the plan and the
respondent had no issue
paying the fee for several years, but it
seems that because of the liquidation proceedings and the applicant’s
successful appeal
in the SCA in the
REDISA
judgment,
the respondent dragged its feet and jumped upon the opportunity to
stop paying as it was obliged to. In my view, to rely
on the minority
judgment of the SCA to support its challenge is  incorrect.
70.
Furthermore, one sees from the
RMI
judgment, that the subscribers had entered into contractual
relationships with the applicant
[68]
.
Had the fee been prejudicial, or the failure to review it caused
prejudice or hardship to the respondent, then one would have expected
the respondent to have taken action a few years ago but it failed to
do so. I have to ask why, if the respondent had felt that the
plan
and fee were unlawful and that a consultation process had not
followed, it did not act sooner to raise objections to the plan’s
implementation.
71.
The respondent has not shown that the fee should have been amended
downward in 2016. If the delay
were to be overlooked, and the merits
considered, it would result in a situation where the respondent is
given an opportunity to
challenge obligations in circumstances where
it has sat back for years and paid consistently, but only sprang into
action to raise
a defence after the 2019 SCA judgment in
REDISA
.
The impression I gain by the respondent’s support of the erstwhile
Minister’s allegations in the liquidation proceedings, which
the
SCA rejected, is that it had hoped the appeal would succeed and it
would so escape payment of the outstanding fees.
72.
Even accepting that the plan itself requires an annual review, what
the respondent nonetheless fails
to appreciate is that in terms of
clause 17 which requires the fee to be reviewed annually, the plan
provides that the applicant
should strive at all times to minimize
the fee, while still meeting its mandate and that its objective would
be to contain the amount
in real terms to be equal to or less than
the initial amount. The respondent has simply made out no case that
the applicant failed
to contain the fee.
73.
As the basis for the collateral challenge is the applicant’s
alleged failure to review the fee
and that it had acted unlawfully, I
hold the view that the respondent has a further insurmountable
problem. In the replying affidavit,
one sees from paragraph 19
onward
[69]
, that the applicant
submitted proposals to the Department to incorporate an annual
increase based on changes in the CPI
[70]
.
The response from the Department in January 2014
[71]
was
that the plan need not have been revised at that stage and that it
was decided that the fee was to remain constant at R2,30/kg.
The
evidence indicates that the subscribers, including the respondent,
had complied in submitting returns as required in January
2015,
subsequent to the applicant’s proposed amendments to the plan
[72]
.
The evidence indicates that the questions related to the review were
addressed and that the applicant was in the circumstances obliged
to
comply with the Department's decision not to increase or adjust the
fee up to the end of November 2017.
74.
It is evident from the evidence that the applicant had discharged its
obligations in terms of the
plan. In my view, there is no evidence of
bad faith on the applicant’s part and on this score, issues
relating to alleged mismanagement
and siphoning of funds are
irrelevant to this matter. I must emphasise that the public interest
requires finality of administrative
decisions and aside from the
above facts and findings, to allow a hearing on the merits of a
collateral challenge on these facts,
would certainly not promote the
interests of the public. If anything, the need for finality of
administrative action is another factor
militating against the
exercise of my discretion in favour of overlooking the unreasonable
delay by the respondent. Several years
have passed, a consultation
process was concluded, SARS took over the collection of the fee in
2017 and still the applicant awaits
payment for the October, November
and December 2016 outstanding fees. The delay in reaching finality on
this dispute is considerable
and in my view, the prejudice to the
applicant given all the circumstances I describe above, is
substantial.
75.
Having regard to my findings above and in view of the Constitutional
Court decisions, I find no
reason to exercise a discretion in favour
of the respondent to overlook the unreasonable delay in raising the
collateral challenge.
In the circumstances, and having found the
delay to be undue and unreasonable, the respondent’s collateral
challenge is dismissed.
I am satisfied that the applicant has made
out its case for the relief sought as per its Notice of Motion and
costs of two counsel
is justified. Lastly, the judgment is delivered
in excess of the three-month period. The delay was not intentional
and the parties
and legal representatives are thanked for their
patience and co-operation
[73]
.
Order
76.1
The respondent’s collateral challenge is dismissed.
76.2
The application is granted.
76.3
The respondent is ordered to pay to the applicant the sum of R2 479
335 (two million four hundred and seventy-nine
thousand three hundred
and thirty-five rand) together with interest thereon a
tempore
morae
and costs, which shall include costs occasioned by the
employment of two counsel.
M
PANGARKER
ACTING
JUDGE OF THE HIGH COURT
For
Applicant:       Mr L Kelly with Ms R
Graham
Instructed
by:        Cliffe Dekker Hofmeyr
Inc
Mr
A MacPherson
For
Respondent:    Mr B Stoop SC
Instructed
by:        Barnard Incorporated
Mr
N van Rooyen
[1]
Referred
to by the parties as the REDISA Plan
[2]
Government
Notice 988 published in Government Gazette 35927 of 12 November 2012
[3]
59 of
2008
[4]
Retail
Motor Industry Organisation v Minister of Environmental Affairs
2014
(3) SA 251
(SCA) par 30 –
RMI
judgment
[5]
Government
Notice 31901 published in Government Gazette of 13 February 2009
[6]
FA3
[7]
Clause
28.2.3 of the plan
[8]
FA5.1
– FA5.4
[9]
FA7
[10]
See
AA4
[11]
2019
(3) SA 251 (SCA)
[12]
Supra
[13]
3 of
2000
[14]
AA7
[15]
For
example, payments to family members of one of the applicant’s
directors, deposit paid in respect of residential property,
payment
for security upgrade of a director’s private residence, etc.
[16]
See
para 102-103 of
REDISA
judgment
[17]
RA1,
copy
of the judgment
[18]
2010
(1) SA 333 (SCA)
[19]
2017
(2) SA 211
(CC)
[20]
The
subject being the respondent
[21]
AA3 –
see paragraph 19.2.1 on p 157
[22]
[2010]
3 All SA 361 (SCA)
[23]
1993
(2) SA 245 (C)
[24]
1996
[25]
See
section 239 (b)(ii) of the Constitution
[26]
See
also the
3M
judgment, supra
[27]
2010
(3) SA 589 (SCA)
[28]
Footnote
13 of the judgment:
Oudekraal
Estates (Pty) Ltd v City of Cape Town
2004
(6) SA 222
(SCA) at 244C.
[29]
(1999)
Judicial Review, 4:3, 165-169
[30]
(2020)
31 Stellenbosch Law Review 3
[31]
Sacred
b
urial
places of Muslim spiritual leaders (who attained status equivalent
to saints) who arrived in the Cape from the Dutch East
Indies to
escape slavery and promoted Islam in the Cape –
Oudekraal
,
see par 9
[32]
See
paragraphs 6 to 9 of the judgment
[33]
Oudekraal
,
see par 37
[34]
Oudekraal
,
par 38
[35]
Oudekraal
,
see para 56 and 79
[36]
Oudekraal
,
par 81
[37]
2014
(5) SA 579 (CC)
[38]
Khumalo
,
page 580
[39]
The
paragraph must be read with the preceding paragraphs 46 and 47 of
the judgment where the Constitutional Court referenced the
requirement in section 237 of the Constitution which states that:
‘
All
constitutional obligations must be performed diligently and without
delay’;
See
Gqwetha
v Transkei Development Corporation Ltd and Others
2006(2) SA 603 (SCA),
where
the two-pronged test applicable to the question of delay encompassed
the following: (1)whether the delay is unreasonable or
undue, which
was a factual enquiry, and if so (2) whether the Court’s
discretion should be exercised to overlook such delay and
hear the
application
[40]
2017
(2) SA 211 (CC)
[41]
See
Merafong
,
par 25
[42]
Merafong,
p
ar
55
[43]
For
the sake of brevity, I have excluded Footnotes 85 and 86 from the
above quoted para [69] to [72] of the
Merafong
judgment
[44]
My
emphasis
[45]
Merafong
,
par 69
[46]
2017
(2) SA 622
(CC)
[47]
Supra
- Footnote
[48]
Tasima
,
par 160
[49]
State
Information Technology Agency SOC Ltd v G
ijima
Holdings (Pty) Ltd
2018 (2) SA 23
(CC)
par
49
[50]
Par 49
[51]
2019
(4) SA 331
(CC) from par 44
[52]
Buffalo
City
,
par 49
[53]
Buffalo
City
,
p
ar
49
[54]
See
section 6(1) read with section 7 PAJA
[55]
Note,
Footnotes 39 to 46 in para 50 to 53 of
Buffalo
City
are excluded from the above reference. However, the learned Judge
refers in these Footnotes to the judgments in
Khumalo
,
Gijima
and
Tasima
,
which I have discussed above
[56]
Tasima,
para 144 and 170
[57]
2021
(1) SA 42 (SCA)
[58]
Valor
IT
,
par 30
[59]
Valor
IT
,
par 30
[60]
It is
not necessary in this judgment to address the discussion regarding
Oudekraal
and
MEC
for Health, Eastern Cape v Kirland Investments (Pty) Ltd t/a Eye &
Laser Institute
2014 (3) SA 481 (CC)
[61]
FA5.1
- FA5.6
[62]
From
approximately February 2013 to November 2019
[63]
From
February 2013 to January 2017
[64]
See
para 44 and 45
[65]
See
Buffalo
City
[66]
Buffalo
City
,
par 52
[67]
See
the discussion by Theron J in
Buffalo
City
at para 55 to 62
[68]
RMI
judgment, p
ar
30
[69]
Pages
305 – 307, record
[70]
RA4
[71]
RA5
[72]
RA4
[73]
The
delay is as a result of a lack of typing/administrative services,
time spent on research and attending to  busy criminal
court
rolls at Bellville Regional Court after conclusion of the third term
(from 20 September 2021)