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[2013] ZASCA 58
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MEC for Health, Province of Eastern Cape NO and Another v Kirland Investments (Pty) Ltd t/a Eye & Laser Institute (473/12) [2013] ZASCA 58; 2014 (3) SA 219 (SCA) (16 May 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No: 473/12
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL FOR HEALTH,
PROVINCE
OF THE EASTERN CAPE, N.O.
.............................................
First
Appellant
THE
SUPERINTENDENT- GENERAL
OF
THE DEPARTMENT OF HEALTH,
EASTERN
CAPE PROVINCE
.................................................................
Second
Appellant
and
KIRLAND
INVESTMENTS (PTY) LIMITED
t/a
EYE & LASER INSTITUTE
.........................................................................
Respondent
Neutral
citation:
Member of the Executive Council for Health, Eastern
Cape Province v Kirland Investments
(473/12)
[2013] ZASCA 58
(16
May 2013)
Coram:
Mthiyane
DP, Maya JA & Plasket, Saldulker et Meyer AJJA
Heard:
03 May
2013
Delivered: 16 May 2013
Summary:
Administrative law – finality of decisions –
functus
officio
rule – effect of invalid administrative decisions –
administrative action may only be set aside in proceedings properly
brought for judicial review.
ORDER
On
appeal from:
Eastern Cape High Court, Grahamstown (Makaula J
sitting as court of first instance):
(a)
The appeal is dismissed with costs, including the costs of two
counsel.
(b)
The cross-appeal is upheld with costs, including the costs of two
counsel.
(c)
The order of the court below is amended by the deletion of paragraphs
1 and 4.
___________________________________________________________________
JUDGMENT
PLASKET
AJA (MTHIYANE DP, MAYA JA, SALDULKER and MEYER AJJA concurring)
[1]
The facts of this matter disclose a sorry tale of mishap,
maladministration and at least two failures of moral courage. The
appeal concerns three issues. In the first instance, it concerns the
validity of two administrative decisions, taken by the second
appellant (the superintendent-general of the Department of Health in
the Eastern Cape province), to revoke approvals granted to
the
respondent (Kirland Investments) to establish two private hospitals
which were given during his absence from office by the
person who
acted in his stead (the acting superintendent-general). Secondly, it
concerns the validity of the decision taken by
the first appellant
(the MEC of the Department of Health) in an internal appeal upholding
the decisions to revoke the approvals.
Thirdly, it concerns a
cross-appeal by Kirland Investments against an order setting aside
the approvals granted to it by the acting
superintendent-general and
remitting the applications for approval to the
superintendent-general. The matter was heard by Makaula
J sitting in
the Eastern Cape High Court, Grahamstown and both the appeal and
cross-appeal are before this court with his leave.
The
facts
[2]
Kirland Investments conducts business as an owner and operator of
private hospitals. This is an activity that was regulated,
at the
time relevant to this matter, by the Health Act 66 of 1977 and
regulations made under that Act. The administration of the
relevant
provisions of the Act was assigned to the Eastern Cape provincial
government. Regulation 7 of the Regulations Governing
Private
Hospitals and Unattached Operating Theatre Units
1
vests the power to take
decisions to grant or refuse approvals to operate private hospitals
in the superintendent-general, and reg
20 creates an internal appeal
to the MEC.
[3]
By letters dated 11 July 2006 and 15 May 2007, Kirland Investments
applied for approvals to build and operate a 120 bed hospital
in Port
Elizabeth and two unattached operating theatres and a 20 bed hospital
in Jeffreys Bay. According to the superintendent-general
in office at
the time, Mr Lawrence Boya, he took advice on a number of
applications from an advisory body that he had established
for the
purpose and decided to refuse Kirland Investments’
applications. He gave instructions for letters to this effect
to be
drafted but before they could be signed by him, mishap struck when he
was involved in a motor accident which resulted in
him taking sick
leave for six weeks. An acting superintendent-general, Dr Nandi
Diliza, was appointed to perform his functions
during his absence.
The decisions taken by Boya were never communicated to Kirland
Investments.
[4]
By letter dated 23 October 2007 and signed by Diliza, however,
Kirland Investments was informed that both of its applications
had
been approved. It was told that building plans would have to be
submitted to the department within three months. (This period
was
later extended.) After Boya returned to work, he dealt with
applications from Kirland Investments for amendments to the approvals
that had been granted. Kirland Investments wanted an increase in the
number of beds at both hospitals. Boya refused these applications
because, he stated, ‘according to departmental norms, Nelson
Mandela Metro is over serviced’. The plans for both hospitals
had, by this stage, already been submitted.
[5]
By letter dated 20 June 2008, and without any prior notice to Kirland
Investments, Boya purported to withdraw the approvals
that Diliza had
granted in respect of both hospitals. The letter stated that the
approvals granted by Diliza were ‘contrary
to our view that the
area is over supplied’. It then stated:
‘
I
regret to inform you that the Department has withdrawn the approval.
I point out that on 9 October 2007 and after I had considered
all
applications, I decided to refuse the application because Port
Elizabeth is over serviced with private health facilities.’
[6]
Kirland Investments was informed of its right to appeal against these
decisions to the MEC in office at the time, Ms Pemmy Majodina,
which
it did. The appeal was unsuccessful. The letter notifying Kirland
Investments’ attorneys of the dismissal of the appeal
was to
the following effect:
‘
I
point out that on
9 October
2007
the
Superintendent-General decided to refuse your client’s
applications to establish private hospitals at Port Elizabeth and
Jeffreysbay. After the above decision was taken, and unbeknown to the
Superintendent-General, the Acting Superintendent-General
took
another decision on
23
October 2007
to grant
permission to your client to establish private hospitals at Port
Elizabeth and Jeffreysbay. There was no rational basis
for granting
permission to your client to establish private hospitals at Port
Elizabeth and/or Jeffreysbay.
The
proper functionary had already taken a proper decision at the time
when the Acting Superintendent-General took a contradictory
decision.
.
. .
It
is clear from the above that the Superintendent-General did not
withdraw his own decision. He withdrew the decision of the Acting
Superintendent-General which could and should not have been taken
under the above circumstances. With respect, your contention
that the
Superintendent-General was
functus
officio
is based on a wrong
premise. In my view, the Superintendent-General was within his right
to withdraw the Acting Superintendent-General’s
decision.
.
. .
Regarding
paragraph
20.4
of
your client’s grounds of appeal, I point out that when it came
to the attention of the Superintendent-General that his
decision had
been altered for no apparent reason, he had to act. He decided to
withdraw a decision that should never have been
taken. A hearing to
you at that stage would not have made any difference to the decision
made by the Superintendent-General. In
any event, I have now
considered all your client’s grounds of appeal.
I
have considered your client’s applications in respect of Port
Elizabeth and Jeffreysbay, the recommendations made by the
Advisory
Committee to the Superintendent-General, the Superintendent-General’s
decision on
9 October 2007
,
the circumstances under which the Acting Superintendent-General took
the decisions on
23 October
2007
and the
Superintendent-General’s decision to withdraw the Acting
Superintendent-General’s decisions. I have thereafter
decided
that there is no need for the establishment of a private hospital at
either Port Elizabeth or Jeffreysbay. I can accordingly
not grant the
relief sought in paragraphs
28.1
and
28.2
of your client’s grounds of
appeal. In all the circumstances, I have decided to dismiss your
client’s appeal.’
[7]
In the first sentence of this judgment I spoke of maladministration
and failures of moral courage. Diliza stated in her affidavit
that
prior to her making the decisions in favour of Kirland Investments,
the MEC at the time, Ms Nomsa Jajula, had informed a meeting
of
senior staff that she had been approached by a Mr Stone Sizani, the
provincial chairperson of the African National Congress
(the ruling
party in the Eastern Cape) and that she was going to Port Elizabeth
to meet him to discuss Kirland Investments’
applications for
approval and to be shown its clinic.
[8]
At a subsequent meeting, Jajula informed staff members, including
Diliza, that she had met with Sizani, she had seen Kirland
Investments’ clinic and that it was small and needed expansion,
that it would be unfair to refuse its applications and that
she was
under pressure from the executive council of the provincial
government ‘because the Department was seen as withholding
licences from BEE companies to establish private hospitals’.
2
[9]
On 23 October 2007, Jajula summoned Diliza to her office. Jajula had
a file in her possession and told Diliza that she had seen
in the
file that Kirland Investments’ applications had not been
approved. She said that she was under political pressure
to grant the
applications ‘because the refusal to grant the Applicant’s
applications put her in a bad light in the
political arena’ and
instructed Diliza to approve the applications. (Jajula has not
deposed to an affidavit and so, despite
the denial of these
allegations by Kirland Investments and competing allegations as to
whether Jajula made certain admissions or
denials, no proper dispute
of fact is created. Therefore, for purposes of this matter, Diliza’s
version must be accepted.
3
)
[10]
So much for the maladministration. It was followed by the first
failure of moral courage: Diliza simply granted the applications
as
she had been instructed to do, lamely stating that she was ‘obliged’
to give effect to Jajula’s instruction.
She granted the
applications, what is more, in the full knowledge that the advisory
committee had recommended that they be refused
and aware of why it
had so recommended.
[11]
The second failure of moral courage followed soon thereafter. Boya
returned to work and discovered what had happened. In order
to
explain why he had dealt with the applications for the expansion of
the original approvals in the way in which he had, and had
not acted
immediately to rectify what he considered to be unlawful decisions,
he stated:
‘
With
Mrs Jajula still operating as the MEC of the Department, it was
virtually impossible for anyone to do anything about the dilemma
that
was caused by her instructing Dr Diliza to approve the Applicant’s
applications.’
[12]
Legal advice had been sought concerning how to deal with the problem.
That advice was apparently to the effect that Diliza’s
decisions could simply be revoked. Boya followed that advice and, as
stated above, informed Kirland Investments on 20 June 2008
that the
approvals that had been granted to it had now been withdrawn.
The
issues in the appeal
[13]
In respect of the appeal against both the setting aside of Boya’s
withdrawal of the approvals and the MEC’s upholding
of those
decisions on internal appeal there are, it seems to me, four main
issues that must be addressed in sequence. They are:
(a) the effect
of Boya’s decisions on 9 October 2007 to refuse the
applications; (b) the effect of Diliza’s decisions
to grant the
applications on 23 October 2007; (c) whether, when he purported to
withdraw Diliza’s decisions, Boya was
functus
officio
4
or whether he had the
lawful authority to do what he did; and (d) the regularity of the
MEC’s decision in the internal appeal.
Boya’s
decisions of 9 October 2007
[14]
Boya’s decisions of 9 October 2007 to refuse Kirland
Investments’ applications were never communicated to it and
neither were they made public in any way. The evidence is clear: the
letters that would have informed Kirland Investments of the
refusal
of their applications lay, unsigned and unsent, in a file in the
department.
[15]
The fact that the decisions were not communicated or otherwise made
known has an important effect: because they were not final,
they were
subject to change without offending the
functus
officio
principle.
In
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
5
the Constitutional Court,
in dealing with the President’s power to appoint a commission
of enquiry, held that the appointment
‘only takes place when
the President’s decision is translated into an overt act,
through public notification’
and that prior to this overt act,
he was ‘entitled to change his mind at any time’. More
generally, Hoexter sums up
the position as follows:
6
‘
In
general, the
functus officio
doctrine applies only to final
decisions, so that a decision is revocable before it becomes final.
Finality is a point arrived at
when the decision is published,
announced or otherwise conveyed to those affected by it.’
[16]
The result is that as the power to approve or refuse to approve the
operating of private hospitals vests in the
office
of superintendent-general
as head of the department,
7
and that office includes
an acting superintendent-general,
8
Diliza was not precluded
from taking decisions contrary to those taken by Boya but never
communicated to Kirland Investments. She
had the authority to take
the decisions which she took but
w
hether
her decisions were valid decisions for other reasons is another
matter.
Diliza’s
decisions of 23 October 2007 and Boya’s revocation thereof
[17]
I have set out Diliza’s evidence as to how and why she took the
decisions to approve Kirland Investments’ applications.
The
validity of those decisions is not the subject of challenge in these
proceedings. That is an issue to which I shall return
when I deal
with the cross-appeal.
[18]
On Diliza’s own evidence in the papers before us, however, the
decisions were invalid because they were taken as a result
of the
unauthorised dictation of Jajula, contrary to s 6(2)(
e
)(iv)
of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA).
9
[19]
It was argued by the appellants, however, that because the decisions
are invalid, Boya, on his return to work, was entitled
to revoke
them: an unlawful administrative action, so the argument goes, is a
nullity and can simply be ignored by the administrative
authority
that took it. The correctness of this argument is at the heart of
this appeal.
[20]
This argument runs contrary to authority in this court. In
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
10
Howie P and Nugent JA set
out the position thus:
‘
For
those reasons it is clear, in our view, that the Administrator's
permission was unlawful and invalid at the outset. Whether
he
thereafter also exceeded his powers in granting extensions for the
lodgement of the general plan thus takes the matter no further.
But
the question that arises is what consequences follow from the
conclusion that the Administrator acted unlawfully. Is the permission
that was granted by the Administrator simply to be disregarded as if
it had never existed? In other words, was the Cape Metropolitan
Council entitled to disregard the Administrator's approval and all
its consequences merely because it believed that they were invalid
provided that its belief was correct? In our view, it was not. Until
the Administrator's approval (and thus also the consequences
of the
approval) is set aside by a court in proceedings for judicial review
it exists in fact and it has legal consequences that
cannot simply be
overlooked. The proper functioning of a modern State would be
considerably compromised if all administrative acts
could be given
effect to or ignored depending upon the view the subject takes of the
validity of the act in question. No doubt
it is for this reason that
our law has always recognised that even an unlawful administrative
act is capable of producing legally
valid consequences for so long as
the unlawful act is not set aside.’
[21]
There is no suggestion in the above passage that the obviousness of
the unlawfulness is a factor of any relevance. Indeed,
Hoexter
understands
Oudekraal
to mean – and she
is, in my view, correct – that ‘even an obvious
illegality cannot simply be ignored’.
11
One can easily understand
why this is so. It would be intolerable and lead to great uncertainty
if an administrator could simply
ignore a decision he or she had
taken because he or she took the subsequent view that the decision
was invalid, whether rightly
or wrongly, whether for noble or ignoble
reasons. The detriment that would be caused to the person in whose
favour the initial
decision had been granted is obvious. Baxter says
the following:
12
‘
Indeed,
effective daily administration is inconceivable without the
continuous exercise and re-exercise of statutory powers and
the
reversal of decisions previously made. On the other hand, where the
interests of private individuals are affected we are entitled
to rely
upon decisions of public authorities and intolerable uncertainty
would result if these could be reversed at any moment.
Thus when an
administrative official has made a decision which bears directly upon
an individual’s interests, it is said
that the decision-maker
has discharged his office or is
functus
officio
.’
[22]
I therefore conclude that Boya could not validly take the view that
because the decisions taken by Diliza were invalid, he
could treat
them as nullities and formally revoke them. For as long as the
decisions taken by Diliza had not been set aside on
review they
existed in fact and had legal consequences. As Boya had no authority
arising from the empowering legislation to revoke
final decisions
already taken – much less in the absence of a hearing being
granted to Kirland Investments – he was,
in relation to the
decisions taken by Diliza in her capacity as acting
superintendent-general,
functus
officio
.
13
The
MEC’s decision on appeal
[23]
The MEC’s decision to uphold the revocation of the approvals is
premised, inter alia, on Boya not being
functus
officio
.
In her reasons for dismissing the appeal, she stated that Boya had
withdrawn Diliza’s decisions ‘which could and should
not
have been taken under the above circumstances’, that he was
‘within his right to withdraw the Acting
Superintendent-General’s
decision’ and that the
contention that he was
functus
officio
was
‘based on a wrong premise’.
[24]
It is clear from what I have said above that she committed an error
of law in that respect: as a matter of law, Boya was
functus
officio
and
so could not validly do what he had purported to do. The error of law
was, without doubt, material in the sense that, had she
not erred,
her decision would have had to be to uphold Kirland Investments’
appeal.
14
In the result, her
decision falls foul of s 6(2)(
d
)
of the PAJA.
The
cross-appeal
[25]
At paragraph 8 of the judgment of the court below, Makaula J spoke of
Kirland Investments having sought the review of four
decisions
including ‘the
ASG’s
[acting
superintendent-general’s] decision of 23 October 2007 approving
the establishment application’. He then proceeded
to find, at
paragraph 27, that this decision (perhaps more correctly ‘these
decisions’) was to be ‘reviewed and
set aside’
because Diliza had ignored the advisory committee’s
recommendations and had acted under dictation. Finally,
he made
orders reviewing and setting aside ‘the decision of the Acting
Superintendent-General dated 23 October 2007 . . .’
15
and remitting ‘the
applicant’s applications for establishment of private hospitals
and unattached operating theatres
in Port Elizabeth and Jeffreys Bay’
to the superintendent-general for reconsideration.
16
[26]
Kirland Investments never applied for this relief. They would not
have wanted to because the approvals that were granted by
Diliza were
precisely what they had applied for. The MEC and
superintendent-general, on the other hand, never applied for the
review and setting aside of the approvals and neither did they bring
a counter-application to this effect. It is therefore clear
that when
Makaula J said that Kirland Investments had sought the setting aside
of Diliza’s decisions (and the consequential
remittal order) he
erred.
[27]
In my view Makaula J had no jurisdiction to set aside the approvals
granted by Diliza in the absence of either an application
or a
counter-application in which that relief was sought. Section 6(1) of
the PAJA, not surprisingly, postulates proper proceedings
having been
instituted as a pre-condition to a court’s exercise of its
powers of judicial review when it states that ‘[a]ny
person may
institute proceedings in a court . . . for the judicial review of an
administrative action’. In terms of s 8(1),
a court may grant
just and equitable relief, including the setting aside of an
administrative action, ‘in proceedings for
judicial review in
terms of s 6(1)’. Taken together, these provisions mean no more
than that, before a court may set aside
an administrative action,
there must have been proceedings for judicial review that were
brought for that relief, in exactly the
same way that, before a court
may grant an award of damages, there must have been a claim
instituted in accordance with the proper
procedure.
[28]
Not surprisingly, the case law is in harmony with what I consider to
be the trite proposition that I have stated above. In
Oudekraal
,
for instance, this court, after finding that the approval of the
township in issue was invalid, proceeded to say:
17
‘
One
of those consequences is that the invalid approval is liable to be
set aside in proceedings properly brought for judicial review.
It is
not open to us to stifle the right that any person might have to
bring such proceedings, or to pre-empt the decision that
a court
might make if it is called upon to exercise its discretion in that
regard.’
[29]
The Constitutional Court arrived at much the same conclusion in
CUSA
v Tao Ying Metal Industries & others
,
18
a matter concerning the
review of an arbitration award made by a commissioner of the
Commission for Conciliation, Mediation and
Arbitration (the CCMA) in
a labour dispute. Ngcobo J stated that ‘the role of the
reviewing court is limited to deciding
issues that are raised in the
review proceedings’ and that it ‘may not, on its own,
raise issues which were not raised
by the party who seeks to review
an arbitral award’.
[30]
I conclude therefore that, as no application or counter-application
was ever made before Makaula J for the review and setting
aside of
the approvals granted by Diliza, the cross-appeal must succeed.
Conclusion
and order
[31]
Mr Buchanan, who appeared with Mr Bloem for the MEC and the
superintendent-general, made much of the fact that if the appeal
fails and the cross-appeal succeeds, two invalid administrative
actions will remain in effect. This situation, he said, should
not be
permitted to persist because the effect of this court’s
decision will be, he argued, to clothe the invalid approvals
with the
cloak of validity.
[32]
It is incorrect to say that Diliza’s decisions are valid: they
exist as a fact and can have legal consequences for as
long as they
have not been set aside but the fact that they have not been set
aside does not mean that they have somehow become
valid. That is not
what
Oudekraal
says. Moreover, Hoexter
makes the point that administrative action ‘is
treated
as though it is valid
until a court pronounces authoritatively on its invalidity, but that
does not mean that it is in fact valid’.
19
[33]
The answer to their dilemma lies in the hands of the MEC and the
superintendent-general: if they want Diliza’s decisions
to be
set aside, they must bring a proper application for that relief, and
in all likelihood, their standing to do so will not
be open to
challenge.
20
[34]
It was suggested by Mr Buchanan that such an application would be
doomed to failure because of the long delay from when the
decisions
were taken (on 23 October 2007) to when the application would be
launched. Section 7(1) of the PAJA requires proceedings
for review to
be brought ‘without unreasonable delay’ and ‘not
later than 180 days’ after any internal
remedy has been
exhausted or, in the absence of an internal remedy, after the person
affected became aware of the administrative
action concerned and the
reasons for it, or ‘might reasonably have been expected to have
become aware of the action and the
reasons’. Section 9(1)
allows for the granting of condonation in appropriate cases in which
proceedings have been instituted
outside of the 180-day period.
21
The answer lies in
bringing the application and applying for condonation. If a good
explanation for the delay is given, the delay
may be condoned.
Indeed, in the
Oudekraal
saga, an application to
set aside the approval of the township was brought subsequent to the
first decision of this court, and a
delay of 47 years was condoned by
this court.
22
[35]
There is a far more fundamental reason why we are not able to assist
the MEC and superintendent-general in the way suggested:
this court,
like the court below, has no jurisdiction to set aside Diliza’s
decisions because they have never been taken
on review.
[36]
In the result, the appeal must fail and the cross-appeal must
succeed. I make the following order:
(a)
The appeal is dismissed with costs, including the costs of two
counsel.
(b)
The cross-appeal is upheld with costs, including the costs of two
counsel.
(c)
The order of the court below is amended by the deletion of paragraphs
1 and 4.
___________________
C Plasket
Acting Judge of Appeal
APPEARANCES:
For
the First Appellant: R G Buchanan SC (with him G H Bloem SC)
Instructed
by:
Whitesides
Attorneys, Grahamstown
The
State Attorney, Bloemfonein
For the Respondent: L A
Rose-Innes SC (with him H L Du Toit)
Instructed by:
Wheeldon
Rushmere & Cole, Grahamstown
Lovius
Block, Bloemfontein
1
Government
Notice R158 of 1 February 1980.
2
Kirland
Investments was not at the time of the applications ‘BEE
compliant’ but in the Jeffreys Bay application it
stated: ‘At
this stage we confirm that we will comply with Government
Legislation regarding BEE. We are committed to source
the
appropriate shareholders and provide the employment opportunities as
envisaged in the published BEE charters. We undertake
to provide the
Department of Health with the necessary documentation.’
3
See
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C;
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 26.
4
V
G Hiemstra and H L Gonin
Trilingual
Legal Dictionary
(3
ed)(1992) define the term
functus
officio
to mean ‘nie
meer diensdoende nie; nie meer in funksie nie// no longer in office
(officiating); having discharged his office’.
The
functus
officio
rule does not
apply to subordinate legislation because s 10(3) of the
Interpretation Act 33 of 1957 states: ‘Where a law
confers a
power to make rules, regulations or by-laws, the power shall, unless
the contrary intention appears, be construed as
including a power
exercisable in like manner and subject to the like consent and
conditions (if any) to rescind, revoke, amend
or vary the rules,
regulations or by-laws.’
5
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
2000
(1) SA 1
(CC) para 44.
6
Cora
Hoexter
Administrative Law
in South Africa
(2 ed)
(2012) at 278.
7
Regulation
7(1).
8
Section
10(2) of the Interpretation Act 33 of 1957 states: ‘Where a
law confers a power, jurisdiction or right, or imposes
a duty on the
holder of an office as such, then, unless the contrary intention
appears, the power, jurisdiction or right, may
be exercised and the
duty shall be performed from time to time by the holder for the time
being of the office or by the person
lawfully acting in the capacity
of such holder.’ See too
Holden
v Minister of the Interior
1952
(1) SA 98
(T) at 103G-H.
9
See
Mlokoti v Amathole District
Municipality & another
2009
(6) SA 354
(E);
Hofmeyr v
Minister of Justice & another
1992
(3) SA 108
(C);
Minister of
Justice v Hofmeyr
[1993] ZASCA 40
;
1993 (3)
SA 131
(A).
See too Hoexter
(note 6) at 274.
10
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
2004
(6) SA 222
(SCA) para 26. See too
Queenstown
Girls High School v MEC, Department of Education, Eastern Cape &
others
2009 (5) SA 183
(Ck) para 20;
Norgold
Investments (Pty) Ltd v Minister of Minerals and Energy, Republic of
South Africa & others
[2011]
3 All SA 610
(SCA) paras 46-47.
11
Note
6 at 547.
12
Lawrence
Baxter
Administrative Law
(1984) at 372. See too
Hoexter (note 6) at 277.
13
See
for example,
Thompson,
trading as Maharaj and Sons v Chief Constable, Durban
1965 (4) SA 662
(D) at 667C-D:
‘Generally speaking, a person to whom a statutory power is
entrusted is
functus
officio
once he has
exercised it, and he cannot himself call his own decision in
question.’ And at 668D, the court stated: ‘The
general
rule is that, in the absence of special statutory provision, once a
judicial or
quasi
-judicial
decision has been given, the Court or officer giving it is
functus
officio
in respect of the
matter to which it relates.’ (The reference to quasi-judicial
decisions can now be read to be a reference
to administrative
decisions generally, but excluding the making of subordinate
legislation.) See too Hoexter (note 6) who says:
‘Ordinarily,
however, the administrator will be
functus
officio
once a final
decision has been made and will not be entitled to revoke the
decision in the absence of statutory authority to do
so.’
14
Hira
& another v Booysen & another
1992
(4) SA 69
(A).
15
Paragraph
1 of the order of the court below.
16
Paragraph
4 of the order of the court below.
17
Note
10 para 46.
18
CUSA
v Tao Ying Metal Industries & others
[2008] ZACC 15
;
2009
(2) SA 204
(CC) para 67. See too
Tao
Ying Metal Industry (Pty) Ltd v Pooe NO & others
[2007] 3 All SA 329
(SCA) para 61;
Mgoqi v City of Cape Town &
another; City of Cape Town v Mgoqi & another
2006
(4) SA 355
(C) paras 10-13;
Queenstown
Girls High School v MEC, Department of Education, Eastern Cape &
others
(note 10) para 13.
19
Note
6 at 546.
20
See
Municipal Manager: Qaukeni
Local Municipality & another v FV General Trading CC
2010 (1) SA 356
(SCA) para 23, and
the cases cited therein. See too Hoexter (note 6) at 511.
21
See
generally on s 7(1) and s 9(1) of the PAJA, as well as the common
law delay rule,
Beweging
vir Christelik-Volkseie Onderwys & others v Minister of
Education & others
[2012]
2 All SA 462 (SCA).
22
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
2010
(1) SA 333
(SCA).