IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION, CAPE TOWN] [REPORTABLE]
Case no. A251/22
In the matter between:
TUBESTONE (PTY) LTD Appellant
and
THE RECYCLING & ECONOMIC DEVELOPMENT
INITIATIVE OF SOUTH AFRICA NPC Respondent
JUDGMENT DELIVERED (VIA EMAIL) ON 5 FEBRUARY 2024
______________________________________________________________________
SHER, J (FORTUIN J et MANTAME J concurring):
1. This is an appeal ( with leave of the SCA) against a judgment of this C ourt,1 in
terms of which the appellant T ubestone (Pty) Ltd, a company which imports
tyres, was held liable to pay the respondent , the Recycling & Economic
Development Initiative of SA NPC ( ‘Redisa’), the sum of R 2 479 335, together
with interest and costs. The amount represented levies which were allegedly due
in the period October 2016- February 2017 in terms of a so- called ‘integrated
industry waste tyre management plan’ (‘ a WTM plan’), administered by Redisa,
which was promulgated by the Minister of Water and Environmental Affairs on 30
1 Reported sub nom Recycling & Development Initiative of SA v Tubestone (Pty) Ltd [2022] 1 ALL SA 774 (WCC).
2
November 2012 in terms of the National Environmental Management Waste Act 2
(‘the Waste Act’) and the Waste Tyre Regulations of 2008.3
2. The Regulations sought to deal with the problem of the disposal of ‘waste’ tyres
including used, retread or new tyres, which were not fit for use . They provided
that tyre ‘producers’ (who were defined as including both manufacturers and
importers) were not allowed to manufacture, import, or deal in tyres unless they
subscribed to a WTM plan which contained measures for the recycling or
disposal of waste tyres in a manner authorised by the plan. To this end,
producers were required either to prepare a nd submit their own WTM plan to the
Minister within 60 days of registering, or to subscribe to one which had already
been approved by the Minister.
The background
3. Following its incorporat ion as a non- profit company in 2010, Redisa set about
preparing what it envisaged could serve as a country -wide blueprint for a WTM
plan. As the effective disposal of waste tyres was an environmentally sensitive
issue which affected the entire country 4 it motivated for the adoption of a single,
industry-wide plan on the grounds that it would be more cost -effective and
efficient, given the economies of scale involved and given that it would allow for
better financial control than a multiplicity of smaller, individual plans developed by
various groupings within the thousands of tyre dealerships in the country . It
contended that a national plan would be easier to implement and would allow for
the maximisation of job creation and empowerment objectives , by including the
informal sector, which deals with most scrap tyres.
4. The draft plan which Redisa prepared was submitted to the Minister in February
2011. In April and December that year competing plans were filed by the SA Tyre
Process Corporation NPC (‘SA Tyre) and the Retail Motor Industry Organisation.
In November 2011 R edisa’s plan was approved, but w hen an urgent application
2 Act 59 of 2008- the ‘Waste Act’.
3 The Regulations were promulgated in terms of s 24B of the Environment Conservation Act 73 of 1989, which (save
for the Regulations made under it), was repealed by the Waste Act, with effect from 1 July 2009.
4 In terms of s 28(1) of the Waste Act a national waste management plan is required where waste affects more than
one province.
3
was launched for an order suspending its implementation the Minister withdrew
her approval. An amended plan was then submitted, which was published for
public comment , and a public participation process followed . In July 2012 the
Minister approved the amended plan but a further challenge was launched to it ,
which resulted in an interim interdict being granted, pending a review. Once
again, the Minister withdrew her approval , but regranted it to a further amended
version, which was promulgated on 30 November 2012.
5. Somewhat unusually, the plan was promulgated in the memorandum format in
which it had been submitted to the Minister , rather than in the traditional,
regulatory format which is commonly utilized when promulgating subordinate
legislation.5 As a result it was an extensive and lengthy document, which served
both as a promotional motivation for its acceptance and a loosely formulated
regulatory framework for the disposal of waste tyres.
6. As for the regulatory framework it proposed, it envisaged establishing a network
of producers, transporters and processors , who were to be registered with
Redisa. Producers, who included both manufacturers and importers, would have
to submit monthly returns in which they declared the number and mass of tyres
manufactured and imported, which were to be verified by means of annual audit
certificates. The information which was provided in these returns would serve as
the basis for the levying of a ‘waste tyre management fee’.
7. Waste tyres were to be collected from producers, dealers and public spaces and
conveyed to storage depots and process ors, by transporters, who were to be
paid on a per kilogram/per kilometre basis pursuant to transportation contracts
which would be awarded, on tender. The transporters and processors were
similarly required to render returns as to the number , type and tonnage of tyres
collected and transported to storage depots and disposal facilities , as were the
managers of these facilities..6 The disposal of waste tyres (primarily by recycling)
was to be carried out by the processors, who would tender for and be awarded a
5 As the plan was held to be in Retail Industry Organization & Ano v Minister of Water & Environmental Affairs &
Ano 2014 (3) SA 251 (SCA) paras 29-30.
6 Clause 9.1.
4
specified annual tonnage of waste tyres , which they would dispose of at a range
of processing facilities which were to be established.
8. As far as funding the project was concerned, this was an aspect which was not
conveniently dealt with in a single section of the memorandum, but in several
clauses thereof and an annexure.7
9. Essentially, it was envisaged that the plan would be funded from a ‘waste tyre
management fee’ which was to be paid by subscribers (i.e. all tyre producers and
importers), in the form of a levy which was to be imposed on all tyres produced in
or imported to SA , on a Rand- per-kilogram weight cost basis. 8 As tyre sizes
varied from type to type and brand to brand, weights were to be standardised, by
size and type of tyre. Included in the f actors which would determine the Rand-
per-kilogram cost were 1) collection and transportation costs 2) storage, handling
and processing costs and 3) administration, management , advertising, and
marketing costs. The bulk of these costs, some 38%, would be for transportation,
with administration and depot/storage costs anticipated to each come in at half of
that i.e. 20%.9
10. The waste tyre management fee was ‘estimated’ on the basis of a ‘steady state
amount’ (sic) needed to operate the plan , once the necessary systems and
infrastructure was in place.10 It was expected that i n the initial years there would
be an over-recovery as the number of depots, transporters and processors would
be less tha n the projected final numbers. This ‘over -recovery’ would be
accumulated as a reserve which would be used to fund the initial establishment
and set-up costs. O perational costs for the 1st year were estimated to be in the
region of approximately R 62 4 million. Costs for succeeding years w ere to be
based on the actual costs incurred in the 1 st year and projected fluctuating
variable costs, including inflation.11
11. The plan provided that the waste tyre management fee would be ‘ reviewed’
annually, in consultation with relevant consumer bodies, based on ‘operational
7 Annexure D.
8 Clause 17.1.
9 Vide the schematic above clause 25.1.
10 Clause 16.
11 Id.
5
experience’ and the number of tyres manufactured and imported. 12 Redisa’s
objective w as to strive ‘ at all times ’ to minimise and contain the fee, ‘in real
terms’, to an amount equal to or less than the initial levy charged. Annual reports
would be published which would detail progress made in implementing the plan
and would provide cost ‘breakdowns’ on a per kilogram basis.
12. As for the initial Rand-per kilogram levy which was to be imposed, it was
explained13 that this had been arrived at on the basis of an average cost per ton
of transporting waste tyres to kilns, at a rate of R 8 /per (passenger) tyre, which
equated to a cost of approximately R 800/per ton of rubber; plus a handling fee of
R 200/per ton i.e. R 2 per tyre for services at depots and disposal facilities, and a
disposal cost of R 900 per ton/R 9 per tyre, plus 20% for administration and other
costs. In total this averaged out to a cost of approximately R 2280 per ton, which
reduced to a Rand- per-kilogram figure came to R 2.30 per kilogram , excluding
VAT. This was accordingly the initial levy which was imposed. Subsequent to its
promulgation it was never increased or decreased and remained the same for
the 4½ years relevant to this matter , from the gazetting of the plan at the end of
November 2012 until May 2017.
13. It is common cause that the appellant subscribed to the plan. Although it only
signed a deed of adherence in respect of the 2011 first draft thereof and did not
sign another deed in respect of the final draft that was approved a year later , it
was listed as a confirmed subscriber in the gazetted plan.
14. The appellant rendered returns and paid its levies for 4 years, from the time
when the plan was promulgated in November 2012 until October 2016. Between
October 2016 and January 2017 i t continued to render returns but failed to make
payment of any of the amounts due in respect of the invoices which were raised
by Redisa, for th ose 4 months . The invoices reflected that, cumulatively, the
appellant owed the amount which was claimed in the application.
15. At no time during the period November 2012 to M ay 2017 did the appellant ever
contend that the plan, or any provision thereof, was invalid, unlawful, or
12 Clauses 17.1 and 25.1.
13 In annexure D.
6
unenforceable, for any reason. In fact, the appellant did not contest the plan until
it was called upon to respond to the application which Redisa launched in
September 2019, in which it sought to extract payment from the appellant.
16. The appellant’s failure to make any payments that were due after October 2016
occurred against the following background. 14 Towards the end of 2013 the
government indicated that it intended changing the funding model for waste
management plans adopted in terms of the Waste Act . For this purpose in June
2014 an amendment 15 to the Waste Act was passed, which provided that the
Minister of E nvironmental Affairs, in concurrence with the Minister of Finance,
was to publish a ‘ National Pricing Strategy’ which would deal with the funding of
the management and disposal of waste. The Strategy was published on 11
August 2016. It proposed that waste plan fees/levies were to be collected directly
by the State, rather than by the entities established to administer waste plans,
who would be funded by grants from the State.
17. On 1 November 2016, following an audit which was carried out on Redisa the
Minister called upon it to provide written reasons, within 15 days, why its plan
should not be withdrawn. A lthough it was given until 30 November 2016 to
respond, on which date it duly filed a comprehensive response, the Minister
issued a directive the preceding day, 29 November 2016, in which she gave
notice that she had assumed control over Redisa and its operations.
18. Redisa then launched an urgent application in this Court for an order interdicting
the Minister from implementing her directive, pending a review of it . An interim
interdict was duly granted on 28 December 2016. This caused the Minister to
withdraw her directive.
19. On 2 December 2016 amendments to the Waste Tyre Regulations were
promulgated which sought to give effect to the Strategy , and on 1 February 2017
an amendment to the Customs and Excise Act.
16 was passed. The cumulative
effect of the legislative changes which were made was that as from 1 February
14 As set out in Recycling & Development Initiative of SA v Minister of Environmental Affairs (Pty) Ltd 2019 (3) SA
251 (SCA) paras 16-44.
15 The National Environmental Management: Waste Amendment Act 26 of 2014.
16 Act 91 of 1964.
7
2017 Redisa was no longer to be funded directly by the waste tyre levies which
were due from producers and importers and was to be funded by way of grant
allocations from National Treasury, and the function of collecting waste tyre
levies was transferred to the SA Revenue Service. As the Redisa plan provided
that levy payments were due within 90 days from date of invoice,
17 the last levies
that Redisa was therefore entitled to claim and receive payment for, after
February 2017, were those which were due for payment by no later than May
2017.
20. Although Redisa was supposed to be allocated R 210 million in funding, pursuant
to the publication of an appropriation bill in February 2017, no funds were
forthcoming. In May 2017 it indicated that unless its funding was resolved it
would have to scale back its operations. T he Minister then launched an ex parte
application for its winding- up, as well as for its management company , and
provisional orders were granted against both entities on 1 and 8 June 2017,
which were made final on 15 September 2017. However in a subsequent appeal
the SCA set aside both windings-up, on 24 January 2019.
21. As a result, seemingly, of the events which took place between August 2016 and
January 2019 a formal demand for payment of the arrear levies which fell due in
the period October 2016- May 2017 was only sent to the appellant in August
2019. During the time that Redisa was under liquidation the liquidators did not
seek to recover the arrears from the appellant.
The application a quo
22. In response to the application which was brought for an order directing it to make
payment of the waste tyre management fees for the period October 2016-
January 2017 the appellant raised several so- called ‘collateral’ or ‘reactive ’
challenges. A collateral or reactive challenge is commonly understood as a
challenge to the validity and enforcement of an administrative act or decision,
which is raised in proceedings that are not designed or aimed at impeaching,
17 Clause 17.1 of the plan.
8
directly, the validity of such act or decision. 18 The challenge is one raised
incidentally, in response to an attempt to enforce the act or decision.
23. The appellant raised, i n the first place, several alleged irregularities which had
occurred during the time that Redisa had been in control of the WTM plan, which
it claimed vitiated it. These included 1) the alleged payment of a management fee
to the company which managed the plan, in excess of what was provided for in
the management contract , from which proceeds the management company in
turn paid large dividends to its shareholders and 2) alleged irregular payments by
Redisa for the benefit of its directors ( for lease rentals and security upgrades at
their residences in Cape Town and the costs of private security) , and for a
residential property for staff members in Bryanston. As Redisa pointed out in its
answering affidavit these allegations were sourced from the contents of the
affidavits which were filed by the Minister in the winding-up applications and were
rejected by the SCA, which held that they were materially devoid of any factual
foundation and were unsustainable, as they had been comprehensively refuted
by Redisa in its answering papers. As these allegations were not pressed in
argument before the Court a quo and have not been resurrected as part of the
grounds of appeal before us, there is no need to canvass them any further.
24. In the second place, the appellant contended that it was only liable to pay waste
tyre management fees that were lawfully due , and those that were claimed were
not. It pointed out that the plan provided that the initial R2.30 per kilogram levy
which was imposed in 2012 was only an ‘estimated’ fee which was to be
reviewed and amended annually, after consultation with stakeholders, having
due regard for the actual costs which had been incurred in previous years.
Contrary to this Redisa had sought payment of waste tyre management fees for
the period between October 2016 and January/February 2017, which were levied
on the basis of the original, unamended 2012 tariff. It had therefore either failed
to review the plan annually, or if it had done so, had improperly resolved to
maintain the waste tyre management fee at its original level, thereby failing to
take into account the considerations it was supposed to. If Redisa had reviewed
18 Oudekraal Estates (Pty) Ltd v City of Cape Town & Ors 2004 (6) SA 222 (SCA) para 32, footnote 22.
9
the plan annually without input from stakeholders, it had also acted in a manner
that was procedurally unfair, contrary to the provisions of the Promotion of
Administrative Justice Act (‘PAJA’),
19 which, according to the appellant, required
it to have held a public enquiry and to have obtained public comment before
doing so. As Redisa had apparently managed to build up a ‘remediation reserve’
of approximately R 665 million the levy was clearly excessive and Redisa
was over -charging its subscribers. In the circumstances it had also failed to
comply with its obligation, in terms of the plan, to ensure that the waste tyre
management fee was minimized, and the levy contained in ‘real terms’. Thus, the
appellant contended, Redisa had breached the plan in several ways, and in
doing so had violat ed the legislation and made itself guilty of a criminal offence,
and the fees claimed were unlawful.
25. The Court a quo considered that the collateral challenges should not be
entertained, on the grounds of the lengthy delay concerned.
An assessment
(i) The law
26. The parties ’ cases rest on opposing interpretations of the judgment of the
Constitutional Court, per Cameron J, in Merafong..20 The appellant contends that
the judgment held that delay plays no role in a ‘classical’ collateral challenge
which is raised by a ‘ non-state’ actor, and it therefore cannot be taken into
account. Thus, i n its reading of the judgment , when the validity of an
administrative act or decision is challenged collaterally the Court cannot refuse to
entertain it and has no discretion to disallow it. It is only in the case of the
‘extended’ form of such a challenge i.e one involving an organ of state, that delay
may be relevant.
27. On the other hand, R edisa contends that the appellant’s interpretation is based
on a selective misreading of the judgment , and the remarks which were made by
Cameron J therein a re limited to instances where the subject or entity which
seeks to raise a collateral challenge was unaware of the existence of the
19 Act 3 of 2000.
20 Merafong City Local Municipality v AngloGold Ashanti Ltd 2017 (2) SA 211 (CC).
10
administrative decision or ruling it later seeks to resist, because it was one that
was of general application and not specific to, or directed at, it. In its reading of
the judgment, in instances where a decision or ruling is specific to, or directed at
an applicant, or to a class or group to wh ich it belongs, delay may well be a
consideration which can result in a court refusing to entertain a collateral
challenge. This is no more than the necessary result and corollary of the well-
established principle that, in the interests of finality and certainty, and as an
incident of the rule of law, administrative decisions are considered to be binding
and to have consequences and effect, unless and until they are set aside, and
collateral challenges are an exception to this principle. Thus, where citizens or
entities affected by an administrative decision or ruling seek to avoid it, they are
required to bring review proceedings timeously to set it aside and cannot sit back
and wait to resist the enforcement of such decision or ruling.
28. In Merafong the issue for determination by the CC was whether the SCA had
been correct in holding that, for so long as an administrative decision or ruling
had not been set aside an organ of state could not raise its alleged invalidity as a
defence to proceedings in which that decision or ruling wa s sought to be
enforced against it . Consequently, the SCA had held that the M erafong
municipality could not raise a collateral challenge to the validity of a decision by
the Minister of W ater Affairs and F orestry which ‘overruled’ a surcharge the
municipality sought to impose on water which it supplied to AngloGold Ashanti,
for use in its mining operations. The municipality had contended that the
Minister’s decision was ultra vires and invalid as it intruded on the exclusive
constitutional competence which had been conferred on the municipality to
provide the supply of water , and the attempt to enforce the ruling could
consequently be resisted.
29. In his judgment for the majority Cameron J set out the state of the law in relation
to so- called ‘reactive’ or ‘ collateral’ challenges, with reference to the most
important pre- and post-constitutional decisions. In doing so he contrast ed the
approach which has been followed by courts which have dealt with reviews (both
at common law pre- the Constitution and in terms of PAJA thereafter), with that
11
adopted in cases involving collateral challenges, which differ distinctively in their
object, application, and scope from review matters. 21 He pointed out that since
the grant of a review is a discretionary remedy, courts have regularly refused to
entertain reviews on the basis that the applicant s had delayed unreasonably
before launching them. This was however not the case in collateral challenge
matters, where the state sought to coerce citizens ‘into payment or prison’. In
such matters the courts were frequently prepared to uphold a so- called
‘collateral’ or ‘reactive’ challenge to an administrative decision or ruling no matter
how ‘ancient’ it was,22 on the grounds that it would offend the rule of law for a
citizen to be subjected to punitive measures or sanctions based on administrative
acts or decisions which were unlawful. Thus, it was said that courts in collateral
challenge matters did not have a ‘ discretion’ to allow or disallow the raising of
such a challenge, as a litigant’s right to do so arose from the fact that the validity
of the administrative act or decision in question constituted the basis and legal
prerequisite for the validity and legal force of the enforcement action that
followed,23 and even if the original decision may have been unlawful or formally
invalid it could still produce, or result in, ‘legally effective’ consequences.
30. Much has been said and written, in academic works 24 and subsequent cases
about the meaning and scope of the aforegoing dicta pertaining to the
consequences of legally invalid administrative decisions. For the purposes of this
judgment it is not necessary or relevant to traverse the debate that has ensued in
this regard. This is because it was accepted by the parties that unless and until a
Court declared that the Redisa plan, or the relevant components thereof which
were in issue ( i.e. th ose which dealt with the levying of the waste tyre
management fee), were unlawful, the promulgation of the plan had certain
21 Para 32.
22 Para 31.
23 Para 36.
24 Vide DM Pretorius ‘Oudekraal After Fifteen Years; The Second Act (Or, a Reassessment of the Status and Force of
Defective Administrative Decisions Pending Judicial Review’ 2020 Stell LR 3; Angus McKenzie The development of
collateral review and the status of unlawful acts in South African law (2017) unpublished LLM dissertation,
University of the Witwatersrand; OT Van Dyk ‘The Influence of the Oudekraal and Kirland Decisions on the Legal
Status of an Invalid Administrative Act’ doctoral dissertation University of Pretoria 2021.
12
consequences in fact, if not in law, one of which being that it gave rise to a right
on the part of Redisa to claim payment of the amounts levied on the appellant.
31. The issue that requires determination in this matter is whether the appellant’s
delay (in challenging the lev ies that were imposed and R edisa’s right to claim
payment thereof), should have non-suited it, as the Court a quo held. This is an
important distinction to remember when considering what was said in Merafong,
because that matter was not decided on the basis of the delay which had
occurred between the time when the municipality had been overruled by the
Minister in July 2015 and when the collateral challenge by it was raised, in
proceedings in the High Court , some 6 years later, when AngloGold sought an
order compelling the municipality to comply with the Minister’s ruling. ( In this
regard it should be noted that until the application was brought by AngloGold it
had continued to pay the surcharges imposed on it as the municipality had
indicated that if it failed to do so it would discontinue the supply of water to it).
32. In his discussion of the legal position Cameron J referred to the decisions in
Panasonic,
25 Photocircuit 26 and Oudekraal 27 all of which originated from, or
were decided by, this Court. To properly understand and contextualize the
remarks he made, on which the parties both rely for their competing contentions,
it is necessary to briefly detail what occurred in these matters.
33. In Panasonic, which was decided in 1991, a trade union sought a declarator that
the continued lock -out of its workers by the respondent company was unlawful,
on the grounds that the preceding notification which it had given of a deadlock in
negotiations and its referral of a dispute to conciliation by the then I ndustrial
Council for the sector , was invalid. Conradie J considered the challenge to be a
25 Metal & Electrical Workers Union of South Africa v National Panasonic Co (Parow Factory) 1991 (2) SA 527 (C).
26 National Industrial Council for the Iron, Steel, Engineering & Metallurgical Industry v Photocircuit SA (Pty) Ltd
1993 (2) SA 245 (C).
27 There are three reported ‘Oudekraal’ matters relevant to this matter: the decision of Davis J (Veldhuizen J
concurring) in Oudekraal Estates (Pty) Ltd v City of Cape Town & Ors 2002 (6) SA 573 (C) which was upheld on
appeal to the SCA (albeit for different reasons) in Oudekraal Estates (Pty) Ltd v City of Cape Town & Ors 2004 (6) SA
222 (SCA), commonly referred to as ‘Oudekraal 1’, which dealt with delay in the context of the collateral challenges
raised by the City of Cape Town and Oudekraal Estates (Pty) Ltd v City of Cape Town & Ors 2010 (1) SA 333 (SCA) ,
or ‘Oudekraal 2’, which dealt with delay in the context of the review which was subsequently brought.
13
collateral one which ( in the words of the English author Wade 28) had not been
brought by the ‘right person at the right time ’. In his view the challenge had been
brought too late29 as the lock-out had been underway for several weeks and the
applicant was getting ready to go on strike, on the understanding that the actions
which had been taken by the respondent had been validly carried out . In the
circumstances and having regard for the undesirability of interfering in labour
relations and the collective bargaining process , he held that the collateral
challenge should not be entertained. Thus, it is evident that the delay which
attended on the matter in Panasonic was an important factor which featured in
non-suiting the applicant.
34. Some two years later this Court had occasion, in Photocircuit, to pronounce on a
collateral challenge which was contested on the grounds of undue delay. The
applicant had sought an order compelling the respondent to render returns so
that it could compute the respondent’s levy contributions in terms of industrial
agreements which appl ied to employers in the industry concerned. The
application was resisted on the grounds that the Minister’s approval of the
registration of the applicant as an industrial council was ultra vires and the
applicant accordingly lacked the necessary jurisdiction to require the respondent
to submit returns. One of the aspects which the C ourt was required to determine
in limine was whether, by reason of the lapse of time, the applicant should be
precluded from doing so, as had previously occurred in Panasonic.
35. Scott J (as he then was) contrasted review matters which sought to set aside an
administrative action or decision, in which it was accepted that a court had a
discretion to decline to assist , as a result of undue delay , even though a
substantive case for relief may have been made out ; with collateral challenge
matters, which were not in themselves aimed at impeaching the validity of the
decision or action but to resist its enforcement. He held that i n such matters a
party could not be precluded from raising the invalidity of an underlying
administrative action or decision ‘ merely’ on the grounds of delay , for this might
28 Administrative Law 6th ed, 331.
29 Id, 530F-H.
14
be ‘akin’ to holding that a defence to a claim had become prescribed before the
claim itself. 30 Consequently, in some cases administrative acts and subordinate
legislation had been indirectly challenged in criminal and enforcement
proceedings many years after they were per formed or promulgated. In this
regard he referred to the decision in the UK in 1961 in Cure31 where a purchase
tax regulation which had been passed in 1945 was held to be ultra vires in a
collateral challenge, when it was sought to be enforced some 16 years after its
passing. In t he circumstances, he concluded that the delay rule which was
applicable in review matters 32 where the alleged invalidity of an administrative
act or decision, or of subordinate legislation, was challenged, could not serve as
a defence to an action or application in which it was challenged collaterally.
36. Properly read in the context of the relevant facts which were before the C ourt at
the time and the earlier remarks which were made by it, this decision also goes
no further than to state that a defendant/respondent cannot be precluded per se
from raising a collateral challenge, on the grounds of delay. On my reading of it
the decision did not purport to lay down a general rule that in collateral challenge
matters delay will never play a role and if it did purport to do so, this is contrary to
the position which has subsequently been adopted by our highest Courts.
37. That brings us to the decision in Oudekraal, which also originated in this Court,
33
and then made its way to the SCA, on two occasions. The relevant facts were
briefly as follows. In 1957 the then Administrator of the Cape P rovince granted
approval for the laying out of a township on the site of the Oudekraal farm, in an
area along the so -called ‘Twelve Apostle’ mountain range on the Atlantic coast,
between Bakoven and Llandudno. The legislation required that a general plan for
the township was to be submitted to the Surveyor-General within 12 months from
the date of the A dministrator’s approval, and once it was approved it was in turn
to be lodged with the Registrar of D eeds within 3 months thereof , for his
approval. This did not happen, even though t he Administrator had granted
30 Photocircuit n 26, 253C-D.
31 Cure v Deeley Ltd [1961] 3 All ER 641 (QB).
32 As set out in Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A), 39C-D.
33 Oudekraal Estates (Pty) Ltd v City of Cape Town & Ors 2002 (6) SA 573 (C).
15
extensions for the lodging of the documents referred to, in June 1960 and
October 1961. Despite these extensions the submissions and approvals occurred
out of time, in or about 1961- 1962. In 1 965 the land was acquired from the
original owner ’s deceased estate, but no attempt was made to develop it until
1996 i.e. some 30 years later , when the succeeding owner submitted an
engineering services plan for the proposed township to the then Cape
Metropolitan Council (‘the City’) for approval. The application was rejected on the
grounds that the approval for the township had lapsed in 1961, as the general
plan for the development had not been submitted and approved within the
requisite time periods. In response, the owner made application for an order
declaring that the township and development rights had not lapsed and were of
full force and effect. The City (together with a range of other parties) resisted the
application by way of a collateral challenge, on the basis that the authorisation on
which the applicant relied had lapsed in 1961. In response, the applicant in turn
countered that the City could not rely on such a defence as it had delayed
excessively before challenging the authorisation.
38. Davis J noted that from the documents which had been submitted for approval of
the general plan in 1961 it was apparent that the existence of several graves of
Muslim slaves and kramats (burial shrines) which were of great religious, cultural
and historical significance to the Muslim community , had not been depicted and
had accordingly not been considered and taken into account when approval for
the township was granted. In addition, the area had in the intervening years been
incorporated into a national park and was of great environmental importance.
This aspect too had also clearly not been considered at the time when the
approval had been granted in 1961. Consequently, given the potential for a
serious breach of now constitutionally enshrined religious , cultural and
environmental rights, were the property to be developed, he was of the view that
it would be an improper exercise of the C ourt’s ‘discretion’ to refuse to allow the
City’s collateral challenge ‘solely’ on the grounds of delay. In this regard he
pointed out that not only had the City not sought to challenge the authorisations
and approvals which had been granted in the 60’ s but the applicant himself had
16
not done so for some 30 years after acquiring the property. Consequently, he
held that as the approval for the township had lapsed before the general plan
could be submitted and approved, it was a nullity , and the City was entitled to
raise this as a defence.
39. From the aforegoing i t is evident that the issue of delay was considered, a la
Photocircuit, to be a factor that should be taken into account in determining
whether the collateral challenge should be sustained.
40. On appeal, the SCA confirmed and restated 34 with reference to the decision of
the House of Lords in Boddington, 35 that collateral challenges were commonly
raised in proceedings that were not designed directly to impeach the validity of
an administrative act or decision, but to resist its enforcement. They occurred in
instances where an administrative act or decision was sought to be applied
coercively by the state or a public authority against a person or entity. As the
coercive action derived its force from the prior administrative action or decision,
the right to challenge the validity thereof indirectly or ‘collaterally’ arose because
the validity of the action or decision was an essential prerequisite for the validity
of the coercive action.
36
41. In the circumstances, a person or entity which was subject to the coercive action
could not be precluded from challenging the validity of the administrative action
or decision from which it derived its force. Thus, in those cases in which the
validity of an administrative act or decision could be challenged collaterally a
court had no ‘discretion’ to allow or disallow the raising of such a defence,
37
unlike in review matters , where the court had such a discretion, which served as
a ‘moderating tool’ for avoiding or minimising injustice in instances where ‘legality
and certainty collide’.38 But the SCA warned that the two remedies were not to be
conflated: each one had its own, separate application to its appropriate
circumstances, and they ought not to be seen as ‘ interchangeable
34 Oudekraal Estates (Pty) Ltd v City of Cape Town & Ors 2004 (6) SA 222 (SCA) para 36.
35 Boddington v British Transport Police [1998] 2 All ER 203.
36 Id, para 36.
37 Id.
38 Id.
17
manifestations’ of a single remedy that arose whenever an administrative act was
challenged on the grounds of invalidity.39
42. Thus, contrary to the Court a quo the SCA held that in matters involving collateral
challenges, which are properly raised, the court concerned does not have a
‘discretion’ to refuse to entertain the challenge, unlike in reviews. But the SCA did
not hold that in appropriate circumstances a delay in raising a collateral
challenge may not count as one of the factors which must be taken into account,
in order to determine whether the challenge should be permitted.
43. Contrary to the Court a quo the SCA also held that the C ity’s purported reliance
on a collateral challenge was ‘misplaced’ , for two reasons . In the first place, it
was of the view that the approval of the Oudekraal township by the Administrator,
constituted no more than permission to develop land in a particular way, which
took effect once various steps that were prescribed had been complied with, and
on a proper construction of the relevant legislation the validity of the subsequent
steps i.e. those taken afterwards was not dependent on the legal validity of the
Administrator’s approval, but merely on the fact that it was given.
40 There was no
obligation on the Surveyor-General and Registrar of Deeds to satisfy themselves
that the A dministrator’s approval was valid in order for them to carry out their
functions, and the validity and legal force and effect of their actions did not
depend upon the validity of the Administrator’s actions or decisions.
44. In the second place, in the form in which the matter had come before the C ourt a
quo the invalid administrative act of the A dministrator had not been sought to be
applied coercively against the City by a public authority or the state, nor did it
serve to provide a foundation for any coercive action against the City . Thus, the
requirements for a collateral challenge had not been present.
45. However, despite these findings the SCA nonetheless concluded that the relief
which had been sought had been correctly refused and, in its view, the applicant
had not been entitled to obtain a declaratory order to the effect that the steps
39 Id.
40 Para 39.
18
which had been taken by the various officials involved were regular or lawful, as
this would pre-empt the review which had been launched.
46. In this regard, it noted, as per the findings of the Court a quo, that the graves and
kramats had not been referred to or shown on the application for approval of the
township, and it agreed that their presence was a significant factor that should
have been taken into account when the decision of whether to permit the
establishment of a township on the land, had been taken. The failure to consider
this potentially rendered the approval which was granted by the A dministrator
invalid and ultra vires and liable to be set aside on review. However, for so long
as the Administrator’s approval was in place the owners of the land were allowed
to develop a township on it, as the approval was an act which had
consequences, and the City was not entitled to ignore it.
41
47. Subsequent to the decision by the SCA the review application which was
launched by the City succeeded in this Court, notwithstanding the delay involved,
which was condoned on the grounds of the unique circumstances which were
present. The decision was upheld on appeal to the SCA in Oudekraal 2
42 which
emphasised the constitutional changes which had been brought about by the
recognition of religious and cultural rights and the right to have the environment
protected. The SCA held that the principle of legality and the interests of justice
would be advanced by ensuring that the invalid decision of the A dministrator did
not stand.
48. From the aforegoing discussion of the Oudekraal decisions it will be apparent
that the issue of delay in relation to collateral challenges, which was touched
upon in the first decision of Davis J , was not revisited and did not feature in the
ratio of the subsequent decisions on appeal.
49. The next time the issue of delay arose in a collateral challenge matter which went
all the way to the SCA, was in 2010, in 3M SA43 where in response to an attempt
by the Commissioner of the SA R evenue Service to extract payment of arrear
import duties , the defendant sought to assail the validity of the underlying
41 Para 40.
42 Oudekraal Estates (Pty) Ltd v City of Cape Town 2010 (1) SA 333 (SCA).
43 3M SA (Pty) Ltd v Commissioner, South African Revenue Service [2010] 3 All SA 361 (SCA).
19
administrative decision on which it was based, in an application for a declarator.
In response, the Commissioner objected on the basis that the applicant should
have instituted a review within 180 days in terms of PAJA but had failed to do so.
After citing the extract in P hotocircuit previously referred to, about a defendant in
proceedings involving a collateral challenge not being precluded from raising the
defence ‘merely’ on the grounds of delay ( for to do so would otherwise be akin to
holding that the defence had become prescribed befor e the claim itself), the SCA
held that C ommissioner’s attempt to raise the delay as a defence, in the
circumstances before it, was ‘simply not available’.
44
50. That brings us back to the decision of the CC in Mera fong, in 2017. As was
previously pointed out at the commencement of this discussion, the issue the CC
was required to determine was whether a collateral challenge could be raised by
an organ of state, and not whether the delay which was attendant thereon,
should non-suit it.
51. On this aspect the Court held that even though collateral challenges were aimed,
in the first instance, at protecting citizens from the undue exercise of state
power
45 there was no practical or conceptual reason to restrict their use only to
such circumstances and Merafong’s status as an organ of state did not
categorically exclude it from raising a collateral challenge.46
52. But Cameron J was of the view that Merafong’s challenge had distinctive
attributes which rendered it different from the so- called ‘classical’ collateral
challenge, where delay ‘played no role’ and the subject of coercive action was
entitled to have the lawfulness thereof scrutinised because the rule of law
required that official power should not be exercised against someone unless it
was lawfully sourced.
47 In this regard the ‘virtue’ of ‘classical’ reactive challenges
lay in the fact that they provided a defence to parties who faced the enforcement
of the law but never ‘ previously confronted it’.
48 For this reason, such challenges
were sometimes disallowed, in instances where the challenging party had an
44 Id para 33.
45 Para 55.
46 Para 68.
47 Para 69.
48 Para 70.
20
appeal or other remedy available and the administrative action or decision which
was in dispute was ‘specifically directed’ at and known to it , in contrast with
instances where the administrative action or decision was directed at the ‘world
at large’ i.e. was of general application and as such was possibly unknown to it,
in which case delay could not be a disqualifying factor.49
53. By way of examples of matters where collateral challenges had been refused h e
referred, in passing, 50 to the decisions of the English Courts in Quietlynn 51
(which concerned an injunction for failure to operate a ‘sex shop’ in accordance
with a licence) and Wicks 52 (which concerned a prosecution for failure to comply
with a stop building enforcement notice) , and the decision of our Courts in
Khabisi 53 (which concerned an interdict for failure to comply with compliance
notices issued in terms of environmental legislation).
54. In each of these matters the administrative decisions were specifically directed at
the applicants and thus known to them and, as was said in Quietlynn 54 they had
‘clear and ample opportunity’ 55 to challenge their legality directly ,56 prior to
attempting to resist their enforcement collaterally. In Tasima 57 the Constitutional
Court spoke of a ‘sufficient’ opportunity.
55. In contrast to these matters, the ‘classical’ collateral challenge, where it wa s
sought to resist an administrative act of general application, is the decision in
Boddington,58 which was referred to by the SCA in Oudekraal 1. It concerned a
bylaw which allowed for the regulation of the conduct of persons on trains by the
British railway authorities. The bylaw became operative sometime after it was
49 Paras 70-71.
50 In footnote 86.
51 Plymouth City Council v Quietlynn [1987] 2 All ER 1040.
52 R v Wicks {1997} 2 All ER 801.
53 Khabisi v Aquarella Investments 83 (Pty) Ltd & Ors 2008 (4) SA 195 (T).
54 Note 51.
55 Id, per Lord Irving in Quietlynn n 51, as endorsed in the recent decision of R v Cooper [2022] EWCA Crim 922,
which concerned a failure to comply with a stop works notice in terms of environmental regulations, and the court
refused to entertain a collateral challenge as the defendant could have availed himself of an internal appeal to an
administrative body but failed to do so.
56 In both Quietlynn and Wicks the relevant statutory schemes provided for internal, administrative remedies of
appeal.
57 Department of Transport v Tasima (Pty) Ltd 2017 (2) SA 622 (CC), footnote 63.
58 Note 35.
21
brought into law , as subordinate legislation, when notices were posted in trains,
prohibiting smoking in all carriages. When he was charged with contravening the
bylaw the accused sought to raise a collateral challenge that the decision to post
the notices was ultra vires the authorities’ powers, but he was convicted by the
district court on the basis of existing precedent, which held that unless a bylaw
was substantively, as opposed to procedurally , invalid it could not be called into
question in criminal proceedings. The House of Lords was of the view that
collateral challenges could be raised in criminal proceedings on the grounds of
both procedural and substantive invalidity and accordingly held that the existing
precedent should be overruled. It was further of the view that the collateral
challenges in Quietlynn and Wicks were distinguishable as they were concerned
with administrative acts which were specifically directed at defendants who had
clear and ample opportunity to challenge the legality thereof, before being
charged. In contrast with those matters the bylaw was of a ‘general’ character in
the sense that it was directed at the ‘world at large’ , and the first time when the
accused was affected by it, was when he was charged with smoking in breach of
it. Before then, the accused had no ‘sensible opportunity’ to challenge the validity
of the posting of the notices.
56. Cameron J was of the view that as the Merafong municipality was well aware of
the Minister’s decision against it, which was specifically addressed to it, and
knew that it could be contested, its reactive challenge was of the category that
necessitated scrutiny in regard to the delay.
59
57. As an organ of state it had a constitutional obligation to uphold and support the
rule of law int er alia by seeking redress for the unlawful actions of the state, 60
and was accordingly obliged to institute proceedings to review the Minister’s
decision without unreasonable delay. By remitting the matter to the High Court
for consideration afresh M erafong would have the opportunity to provide an
explanation for why it had not challenged the Minister’s decision directly and the
‘hurdles’ of lateness and potential prejudice could be considered.
59 Para 72.
60 Para 61.
22
58. From the exposition of the decision in M erafong it should be clear that the issue
of delay is not i rrelevant to proceedings in which collateral challenges are raised
by so-called non-state actors and it is a factor which must be considered when
determining whether a collateral challenge should be entertained , in all matters
involving such challenges . Aside from the passages of the judgment that have
already been referred to this is made clear in other paragraphs in Cameron J’s
judgment where he commented that delay, though ‘relevant’ , may not be
‘conclusive’ in a collateral challenge matter 61 and there is a range in such
matters: in some of them delay will be ‘axiomatically irrelevant’ whilst in others it
‘counts.62
59. Following on its decision in Merafong in 2017 the Constitutional Court again had
occasion, in several matters which it heard between 2018 and 2019, to consider
the issue and effect of delay in the bringing of collateral challenges, and
extended the range and ambit thereof by holding that not all such challenges
need to be made or employed defensively but may be done so offensively.
60. Thus, i n Tasima 63 the Department of Transport was permitted to raise a
collateral challenge in the form of a counter -application for review, as a defence
to contempt proceedings which were brought, when it sought to resist
compliance with an order which had been granted against it , improperly
extending a service contract after it had already expired. There had been a 6 -
year delay between the time when the contract was improperly extended and
when the challenge was lodged. The CC confirmed that reactive challenges may
be brought by organs of state, provided that the delay in doing so was not
‘unwarrantably undue’. 64 It held that, w hilst a court should be slow to allow
procedural hurdles to prevent it from looking into a challenge to the lawfulness of
the exercise of public power it was equally a feature of the rule of law that ‘undue’
delay should not be tolerated, as it could prejudice the respondent and
undermine the public interest in bringing certainty and finality to administrative
61 Para 77.
62 Para 81.
63 Note 57.
64 Id, para 143.
23
action. Consequently, a court should exhibit ‘vigilance, consideration and
propriety’ before overlooking a late review, ‘reactive or otherwise’.65
61. In considering whether to condone the delay in Tasima, the CC adopted the
’factual, multifactorial and context -sensitive’66 test which was formulated in
Khumalo67 (which concerned a review) in which it was held that regard must be
had to all the relevant circumstances including the nature of the disputed
decision and the merits of the challenge to it ,68 and the explanation which has
been tendered for the delay and why it should be overlooked, with reference to
the consequences which may ensue if the impugned decision is set aside or not
enforced, including any potential prejudice that may be occasioned to affected
parties. It also reiterated that, as far as the explanation for the delay is concerned
it must be a full and comprehensive one, which covers the entire period.69
62. In similar vein, in Gijima 70 where the CC held that organs of state who seek to
review their own decisions must do so in terms of the principle of legality, and not
by way of a review of administrative action in terms of PAJA (as it only applies to
private persons and not to the state), it confirmed en passant that when doing so
by way of a reactive challenge the question of ‘unwarranted delay’ may feature
and may have to be accounted for. Finally, in Buffalo City ,
71 where the
municipality raised a collateral challenge in the form of the review of a tender (in
defence to an application for provisional sentence claiming payment in terms of a
contract which was concluded pursuant to the award thereof) the Court
emphasised (per Cameron J) that if collateral review challenges were allowed in
the face of utterly unreasonable delays, without even minimal explanations, the
protections which had been afforded by various judgments would provide ‘leaky
cover’.
(ii) An application and a summary
65 Para 160.
66 Per Khampepe J para 144.
67 Khumalo & Ano v MEC for Education, KwaZulu Natal & Ors 2013 (4) SA 262 (CC).
68 Khumalo para 57.
69 Tasima, paras 152-170.
70 State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC).
71 Buffalo City Metropolitan University v Asla Construction (Pty) Ltd 2019 (4) SA 331 (CC) para 137.
24
63. It is time to apply the principles which have been elucidated, to the facts of the
case which is before us. In doing so, and by way of a preliminary remark, it is in
my view wholly unhelpful to make use of the formalistic distinction between a so-
called ‘classical’ collateral challenge by a private person as it is commonly
understood (as typified by and identified in Boddington) , and a so-called
‘extended’ one by an organ of state or corporate entity (of the kind which features
in Oudekraal, Merafong, Tasima and Buffalo City ), and to attempt to f orce the
facts of this matter into one or other of these categorizations. Whereas they may
be useful when one is engaged in attempting to understand the historical origins
and the evolution and development of the use of such challenges, in English law
and our law, they should not be seen and understood as two different legal
animals, which are subject to two wholly different legal regimes and treatments.
Given the developments which have occurred in this area of the law and the
extension of the availability of such challenges, from private persons to corporate
entities and organs of state, and from purely reactive i.e. defensive applications
to offensive ones it is, in my view , time to jettison the artificiality of these
distinctions and to simply refer to collateral challenges as a genus, rather than in
terms of separate species.
64. It is precisely because of the appellant’s attempt to straitjacket the facts of the
matter into one or other of these categorizations, based on the remarks which
were made in Merafong, that the parties arrive at diametrically opposite
interpretations of the judgment, and the appellant has misread the judgment.
65. The appellant contends that in saying that in a ‘classical’ collateral challenge
‘delay plays no role’
72 Cameron J was laying down a rule or principle. And
because of this, as the appellant’s challenge, according to it , is a ‘classical’ one,
its delay in raising it is consequently irrelevant and cannot be held against it.
66. I do not understand Cameron J’s comment that way. As is by now trite and well -
established, when interpreting any document, including a judgment, one must
consider the text i.e. the language used, in the context of the document as a
whole, with due regard for the purpose intended by the author. The comment
72 Id, para 69.
25
must accordingly be read and interpreted in the context of the fact that it was
made as part of an exposition of the origins and development of the use of
collateral challenges in our law, and the further comment, a paragraph later, that
a ‘classical’ collateral challenge provides a defence to a person who faces the
enforcement of the law, but ‘who never previously confronted it’. 73 (Perhaps, with
respect, a better formulation would have been to say ‘who never previously was
confronted by it’?).
67. In my view, properly considered in this context, what Cameron J was saying was
that in the ‘classical’ collateral challenge delay commonly cannot or does not play
a role, because it is concerned with cases where a person (or as it has
subsequently been extended, a corporate entity or organ of state) has not
previously been confronted with the coercive action concerned i.e. with the
enforcement of an administrative action or decision which he now seeks to
resist, when confronted by it. Obviously, in such circumstances there can be no
issue or question about any delay on his part because he was not confronted
with the action before. Delay does not feature because it is considered that, until
the confrontation occurred, there was no legal obligation on the subject of the
coercive action to challenge it, or in the words of the case law, because in the
particular circumstances of the case it is considered that the subject did not have
a ‘sensible’(as per Boddington) or ‘sufficient’ (as per Tasima) opportunity to do
so, until a later date or occasion, in response to which the collateral challenge
was raised. Thus, i n my view, when commenting that in the ‘classical’ collateral
challenge ‘delay plays no role’ Cameron J was not seeking to lay down a rule or
principle pertaining to a so- called ‘classical’ collateral challenge but was simply
describing a primary feature of it.
68. In the circumstances, as I understand it a collateral challenge will not necessarily
succeed, simply because it is described as a so-called ‘classical’ one i.e. one
brought by a citizen in response to coercive action by the state, based on an
administrative action or decision which was general in nature. There may well be
instances where, notwithstanding the generality of the action or decision
73 Id, para 70.
26
concerned, the citizen may not be able to resist its enforcement, for instance
where the citizen was aware of the action or decision and that it may apply to
him, but deliberately chose not to challenge it and to see if he could avoid it ,
because it applied to the population at large, and as a result, flouted the law or
acted in deliberate and knowing contravention of it , and only chose to confront it
later, in response to coercive action. A court in such circumstances might well
decline to uphold a late collateral challenge.
69. Ultimately, the question which requires an answer is not whether the collateral
challenge which is raised, be it by a private person or by an organ of state or
corporate entity, is a ‘classical’ one or not, but whether , on the facts which are
before the Court at the time, it is one which can and should be entertained. In
answering this question the determining factors are 1) whether the object of the
challenge i.e. the administrative act or decision, or the legislation on which it is
based and from which it derives legal force and effect, is one that was specific to
the challenger (in that it was directed at him/her, or it, in particular , or to a class
or group to which he/she/they belongs), or is one that was general and unspecific
or indeterminate (in that it was of application to the world at large) and 2) whether
it was known to the challenger (or should have been known by him/her/it, with the
exercise of reasonable care).
70. In the case of the former and a challenger who had actual knowledge (such as in
this matter), the further factor that must be considered is whether the challenger
had sufficient (or ‘ample’) opportunity to contest the administrative act or decision
directly (by way of review or other legal remedy
74), but failed , or deliberately
chose not, to do so. In such a case, delay will obviously be an aspect which the
court must consider, in determining whether to entertain the challenge or to
dismiss it. Unlike in review matters, t he court will not have a ‘discretion’ to refuse
to entertain the challenge without evaluating it, simply or only because it was
brought late. It must have regard for all the circumstances, which will include the
74 In the English cases of Quietlynn and Wicks (notes 51 and 52) collateral challenges were held to be impermissible
where the challenger had recourse to an internal appeal but chose not to make use of it, and in Canada courts have
declined to entertain collateral challenges for the same reason vide R v Consolidated Maybrun Mines Ltd [1998] 1
S.C.R 706; 1998 CanLii 820 (SCC); as endorsed in R v Al Klippert Ltd [1998] 1 S.C.R 737; 1998 CanLii 821 (SCC).
27
delay which was attendant on the bringing of the challenge and the explanation
which was given in this regard, and the effect that upholding the challenge may
have on vested rights , as well as the requirements of certainty and finality of
administrative acts and decisions. Thus, in short, in our law delay is and has
always been a factor in collateral challenge matters, which may have to be taken
into account.
71. In this matter delay is , in my view, a material and important feature which must
be considered. The appellant knew about the R edisa plan well before it was
promulgated in 2012 and subscribed to it. As an importer it was part of a group of
persons to whom the provisions of the plan specifically applied. It knew that the
plan made provision for the levying of a waste t yre management fee which was
to be reviewed and adjusted annually i.e. increased or decreased, depending on
the prior year’s running and operational costs. It knew , already in the first year
after its promulgation, that the fee was not reviewed and adjusted, and that it was
not reviewed and adjusted in the years that followed . Despite this it continued
voluntarily and without demur to make payment of the fee, as it was levied, for a
period of 4 years between the promulgation of the plan on 30 November 2012
and October 2016, when it stopped doing so, without offering any explanation.
During the 4 years that it paid the fee it did not seek to raise any illegality or
invalidity in relation to it and only sought to do so when the application was
launched by R edisa in September 2019, just short of 3 years after it stopped
paying.
72. In seeking to challenge the enforcement of the plan collaterally the applicant
made no attempt to provide any explanation for why it made payment of a fee it
considered to be unlawful, at least from November 2013 until October 2016, and
why it never sought to challenge the levying of the fee by way of a review, or
otherwise. It failed to provide any explanation for its delay in doing anything until
it raised its collateral challenge late in 2019. It was, by law, required to provide a
full and cogent explanation which covered the entire period of delay, but it did not
even provide a cursory one. In the absence of any of these explanations it is
difficult not to conclude that its belated raising of a collateral challenge was
28
nothing more than an opportunistic attempt to avoid making payment, and that it
stopped making payment of the levies in October 2016 because it took
advantage of the fact that 1) the state had indicated in or about August 2016 that
it was going to change the funding model for waste plans and by doing so Redisa
would no longer be entitled to recover the levies from subscribers, and 2) in or
about October-November 2016 the Minister sought to take control of Redisa.
73. Given the circumstances, can it be said that the delay should nonetheless have
been overlooked by the C ourt a quo? I think not. In my view t he interests of the
finality and certainty of administrative decisions, a re strongly against allowing
this. Millions of rands were paid over in lieu of levies by tyre producers and
importers from November 2012 to May 2017.
74. It should also be pointed out that the prospects of the appellant succeeding on
the merits of its challenge were extremely tenuous, for two principal reasons, and
this was a further factor which militated against allowing the challenge to be
entertained.
75. In the first place the contention that Redisa’s failure to review the plan and to
amend the fee constituted a criminal offence and therefore the fees claimed by it
were unlawful, c ould not succeed. In advancing its challenge on this basis the
appellant pointed out that in terms of the Waste Act a person or entity which i s
party to a waste plan commits an offence if they contravene or fail to comply with
the plan.
75 When considering the provision concerned, one must not stare blindly
at the language and apply a literal interpretation only, and one must seek to
provide a sensible and purposive interpretation, in the context of the Act, read as
a whole. In this regard, aside from provisions which set out the extent of any
financial contribution that may be required to support consumer -based waste
reduction programs, the contents of a waste plan can, in terms of the Act, 76 be
far-ranging and can include aspirational aspects such as ‘targets’ for waste
minimisation, ‘programs’ and ‘opportunities’ to minimise and reduce the
generation of waste, and mechanisms for informing the public of the impact of
75 Section 67(1)(d).
76 Sections 30(1)-(2).
29
waste-generating products on the environment. T he waste plan provided by
Redisa is extensive and detailed and contains a number of these aspirational
‘targets’, aims and objectives. Given what may be contained in a waste plan It
could, in my view, therefore never have been intended or envisaged that a simple
failure to comply with any single provision in a waste plan, would result in a
punishable offence.
76. In the second place, those provisions of the plan which deal t with the waste tyre
management fee, clearly stated that the initial levy which was proposed was
simply an ‘estimate’ , which was subject to change, and would be reviewed
annually, after consultation with all stakeholders and consideration of the
previous year’s operational costs. As I read it, the plan did not compel Redisa to
amend the fee annually, only to review it, and if justified pursuant thereto, to then
amend it, after due consultation with all stakeholders, which would include
government.
77. Redisa says that it duly commenced a process of review in September 2013,
within a year after the plan was promulgated. On 16 September 2013 it held a
meeting with the Department at which a proposed fee increase was discussed.
The Department undertook to revert in this regard. At a further meeting which
was held on 5 November 2013 R edisa was asked to submit its proposed
amendments to the plan, which it did on 25 November 2013, when it submitted a
proposal that there should be an annual adjustment to the fee, based on changes
to the consumer price index. On 29 January 2014 the D epartment informed
Redisa that in in its view the plan did not need to be amended at that stage by
being taken through a fee review process. By doing so the Department effectively
communicated that the fee should be maintained as it was. Redisa says that, had
the Department supported an increase it would then have commenced the
necessary consultation and public participation process with interested parties.
78. Then, as previously pointed out, at the end of 2013 the Department proposed
amendments to the funding model for waste management plans which were
promulgated in June 2014, and pursuant to legislative amendments which were
passed between December 2016 and February 2017 to give effect to this change
30
Redisa was no longer empowered to collect the waste t yre management fee
directly from subscribers, a nd this function was subsequently transferred to the
SA Revenue Service. In such circumstances it is ludicrous to suggest that Redisa
committed an offence by not reviewing and amending the waste t yre
management fees after September 2013, because, as a result of the legislat ive
changes that were made it was, in my view, no longer empowered to do so.
79. In the circumstances, t he fact that the waste t yre management fee was not
adjusted after its initial promulgation, because it was not reviewed and amended,
does not mean that it became unlawful. It was lawfully set and imposed as a levy
when the plan was gazetted, and until it was reviewed and amended it surely
remained a lawful fee that could be levied, as would any subsequent adjusted
fee, until it was reviewed and amended.
80. For the aforegoing reasons the decision of the C ourt a quo must be upheld. In
the result, I would make the following order:
The appeal is dismissed with costs, including the costs of two counsel where so
employed.
M SHER
Judge of the High Court
I agree, and it is so ordered.
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C FORTUIN
Judge of the High Court
I agree.
B MANTAME
Judge of the High Court
Appearances:
Appellant’s counsel: B Stoop SC
Appellant’s attorneys: Barnard Inc (Tshwane) c/o Kemp & Nabal (Tygervalley)
Respondent’s counsel: L Kelly and R Graham
Respondent’s attorneys: Cliffe Dekker Hofmeyr Inc (Cape Town)
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