Summary of Judgment

Introduction

The proceedings concerned an application for leave to appeal against an earlier order of the Gauteng Local Division, Johannesburg. The earlier order (dated 24 June 2016) dismissed an application in which the applicant sought to review and set aside a regulation made by the third respondent.

The applicant was Mostert, Antony Louis N.O. The respondents were the Registrar of Pension Funds (first respondent), the Chief Master of the High Court (second respondent), the Minister of Finance (third respondent), and Hislop, Raymond (fourth respondent).

Procedurally, the matter arose after the review application had been dismissed primarily on the basis of non-compliance with section 7 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The present judgment dealt only with whether leave to appeal should be granted against that dismissal, applying the framework in section 17 of the Superior Courts Act 10 of 2013.

The general subject-matter of the dispute was the reviewability of a regulation made on 22 April 2003 by the Minister of Finance, and whether the review application was barred because it was brought outside PAJA’s 180-day time limit.

Material Facts

A regulation relevant to the dispute was made by the Minister of Finance on 22 April 2003. Many years later, the applicant launched an application to review and set aside that regulation.

In the review proceedings, the founding papers did not address the question of compliance with PAJA’s section 7 time-bar, including the date on which the applicant acquired actual knowledge of the regulation or the reasons for it. At the hearing of the review application, the Minister advanced an argument from the Bar that the review was self-evidently out of time because it had not been instituted within the 180-day period contemplated in section 7 of PAJA.

The court upheld the time-bar point in the review judgment, holding in substance that the applicant was obliged to engage with section 7 and to disclose the date of knowledge, and that the application—having been brought far more than 180 days after the administrative act—could not succeed.

In the leave to appeal proceedings, the applicant advanced additional contentions directed at the correct application of section 7 of PAJA in the specific context of reviewing a regulation, particularly because a regulation affects the public at large and not only a single individual. The applicant further contended that it was not necessarily an essential element of the applicant’s cause of action to allege and prove timeousness if the parties elected not to raise the time-bar and wished the merits to be determined.

The Registrar of Pension Funds contended that the applicant’s case was weak on the merits and that this undermined prospects of success. The court noted, however, that the operative order in the review proceedings followed the time-bar ruling, and that there had been no definitive finding on the merits.

Legal Issues

The central legal question was whether the applicant had shown, for purposes of section 17 of the Superior Courts Act 10 of 2013, that there were reasonable prospects of success on appeal against the review court’s conclusion that the application was barred by section 7 of PAJA.

This question involved the application of law to fact, specifically how PAJA’s 180-day period should be applied where the administrative act attacked is a regulation of general application, and how a court should approach time-bar compliance when the record does not address the date of knowledge and the point is raised in argument rather than on the papers.

A further issue was the scope of the leave-to-appeal enquiry where the original dismissal rested on a procedural bar rather than a determination of the merits, and whether submissions about the weakness or strength of the merits could properly defeat leave to appeal when the appealed order was not based on the merits.

Court’s Reasoning

The court approached the application under section 17 of the Superior Courts Act 10 of 2013, identifying reasonable prospects of success as the primary requirement. It also referred to the proposition that a constitutional interests of justice consideration is an overriding requirement in the leave to appeal enquiry, referring in that regard to City of Tshwane Metropolitan Municipality v Afriforum and Another [2016] ZACC 19 (19 May 2016). The court indicated that this interests-of-justice consideration was likely to inform the interpretation of the current statute as well.

The ratio decidendi of the earlier judgment was that the applicant had not complied with section 7 of PAJA, and that the review application was time-barred. In the leave to appeal judgment, the court noted that the new submissions placed emphasis on difficulties that arise when section 7 is applied to the review of a regulation which affects the public at large. The applicant’s contentions highlighted a potential inconsistency if individual knowledge dates determine time-bar compliance, because different members of the public may acquire knowledge at different times.

The court also recorded the applicant’s contention that the respondent who wished to rely on the 180-day period should place facts before the court to support a deemed date of knowledge, and the applicant’s criticism of the proposition that publication alone necessarily resolves knowledge because, on the applicant’s argument, regulations are subject to proof and not judicial notice. The court did not resolve these contentions definitively in the leave to appeal judgment, but treated them as raising substantial points not previously considered.

On the Registrar’s submission that the case was weak on the merits, the court reasoned that an appeal concerns overturning the order actually made. Since the dismissal followed from the time-bar ruling and there was no finding on the merits, any discussion of the merits in the earlier judgment was not dispositive. The court therefore regarded it as conceptually difficult to oppose leave to appeal on the basis of the merits where the order appealed from was grounded in the time-bar determination.

Ultimately, the court framed the decisive enquiry as whether another court could reasonably reach a different conclusion on the time-bar point. It concluded that there was a reasonable prospect of success because weighty propositions had been advanced in the leave to appeal proceedings which the court had not considered previously. The court considered the Supreme Court of Appeal the appropriate forum for the appeal.

Outcome and Relief

The court granted leave to appeal to the Supreme Court of Appeal.

The court ordered that the costs of the application for leave to appeal would be costs in the appeal.

Cases Cited

City of Tshwane Metropolitan Municipality v Afriforum and Another [2016] ZACC 19 (19 May 2016)

Legislation Cited

Superior Courts Act 10 of 2013, section 17

Promotion of Administrative Justice Act 3 of 2000, section 7

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the decisive question for leave to appeal was whether there were reasonable prospects that another court could reach a different conclusion on the applicability and operation of PAJA section 7 in the review of a regulation of general application.

It held that such prospects existed because the applicant advanced substantial propositions concerning the application of the 180-day period to regulations affecting the public at large, propositions that had not been considered in the earlier determination.

Leave to appeal was therefore granted to the Supreme Court of Appeal, with costs in the appeal.

LEGAL PRINCIPLES

The judgment applied the principle that an application for leave to appeal under section 17 of the Superior Courts Act 10 of 2013 requires, first and foremost, reasonable prospects of success on appeal, and that the enquiry is also informed by an overriding interests of justice consideration.

It further proceeded from the principle that where the order sought to be appealed is based on a procedural bar (here, non-compliance with PAJA section 7), the leave to appeal enquiry focuses on whether the time-bar determination may reasonably be overturned, rather than on the merits of the underlying dispute where no dispositive merits finding formed the basis of the order.

The court treated as material, for prospects purposes, that the operation of PAJA’s 180-day time limit may raise particular difficulties in the context of reviewing regulations of general application, because such measures affect the public at large and may entail complexities concerning the identification and proof of relevant knowledge dates.