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[2012] ZASCA 45
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Beweging vir Christelik-Volkseie Onderwys and Others v Minister of Education and Others (308/2011) [2012] ZASCA 45; [2012] 2 All SA 462 (SCA) (29 March 2012)
Links to summary
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case no. 308/2011
Reportable
In the matter between
BEWEGING VIR
CHRISTELIK-VOLKSEIE ONDERWYS
…...................
First
Appellant
CVO
SKOOL PRETORIA
…................................................................
Second
Appellant
GYSBERT
JOHANNES JANSEN VAN RENSBURG
….........................
Third
Appellant
TINA VAN DEVENTER
….....................................................................
Fourth
Appellant
and
THE MINISTER OF
EDUCATION
….........................................................
First
Respondent
THE
SOUTH AFRCAN QUALIFICATIONS AUTHORITY
…............
Second
Respondent
UMALUSI
…........................................................................................
Third
Respondent
THE
COMMITTEE OF UNIVERSITY PRINCIPALS
….......................
Fourth
Respondent
THE
COMMITTEE OF TECHNICON PRINCIPALS
….........................
Fifth Respondent
HIGHER
EDUCATION SOUTH AFRICA
…........................................
Sixth
Respondent
Neutral citation:
Beweging vir Christelik-Volkseie Onderwys v Minister of
Education
(308/2011)
[2012] ZASCA 45
(29 March 2012)
Coram: MPATI P,
FARLAM, SNYDERS, MAJIEDT JJA and PLASKET AJA
Heard: 5 March 2012
Delivered: 29 March
2012
Summary: Practice and
procedure – application for condonation for late filing of
replying affidavit refused – Sections
7(1) and 9 of
Promotion
of Administrative Justice Act 3 of 2000
– application for
extension of 180-day period for launching review proceedings refused
– undue delay in launching application
for declaratory orders –
condonation refused.
____________________________________________________________________
ORDER
____________________________________________________________________
On appeal from:
North
Gauteng High Court, Pretoria (Pretorius J sitting as court of first
instance):
The appeal is dismissed
and the appellants are directed, jointly and severally, to pay the
costs of the first respondent, including
the costs of two counsel.
JUDGMENT
____________________________________________________________________
PLASKET AJA (MPATI P,
FARLAM, SNYDERS and MAJIEDT JJA concurring)
[1] The appellants
applied, in the North Gauteng High Court, Pretoria, for three
declaratory orders concerning the binding effect
on them of certain
government notices promulgated by the first respondent, the Minister
of Education, setting out curriculum policy
and religious education
policy for schools, as well as three orders in which they sought the
setting aside of certain aspects of
these policies. I shall refer,
for convenience, to the content of these government notices as the
new curriculum. In the court
below, Pretorius J dismissed the
application with costs, together with an application for an extension
of time for the filing of
the main application (the extension
application) and one for condonation for the late filing of the
replying affidavit in the extension
application. The appellants
appeal to this court with the leave of Pretorius J.
[2] The first appellant
(Beweging vir Christelik-Volkseie Onderwys – BCVO) is a
section
21
company that has as its main objects the development,
implementation and promotion of a pure Christian Afrikaans ethnic
education
system based on the Christian reformed faith and Afrikaner
culture and to promote the establishment and operation of Christian
Afrikaans ethnic educational institutions on all levels of the
education system. The second appellant (CVO Skool Pretoria) is an
independent school affiliated to BCVO. The third appellant is the
father of three children who attend the CVO Skool Pretoria. The
fourth appellant is the mother of two children of school-going age
whom she educates at home.
[3] In addition to the
Minister, a further five respondents – all statutory bodies
involved in education – were cited
as the second to sixth
respondents. They are: the South African Qualifications Authority;
Umalusi (the Council for General and
Further Education and Training
Quality Assurance); the Committee of University Principals; the
Committee of Technicon Principals;
and Higher Education South Africa.
No relief was sought against the second to sixth respondents in the
court below, none of them
opposed the application and none took part
in these proceedings.
[4] The appellants object
to the contents of three government notices. They are Government
Notice 710 of 31 May 2002 entitled ‘National
Policy Regarding
General Education and Training Programmes: Approval of the Revised
National Curriculum Statement Grades R-9 (Schools)’;
Government
Notice 1407 of 6 October 2003 entitled ‘National Policy
Regarding Further Education and Training Programmes: Approval
of the
National Curriculum Statement Grades 10-12 (General) as National
Policy’; and Government Notice 1307 of 12 September
2003
entitled ‘National Policy on Religion and Education’.
[5] In the three notices,
the Minister stated that he had determined the national policy in
terms of
s 3(4)(
l
) of the
National Education Policy Act 27 of
1996
. The notice concerning the new curriculum for grades R to 9
stated that it would be phased in from 2004 to 2008 and that it
replaced
the previous curriculum. The notice concerning the new
curriculum for grades 10 to 12 stated that it was to be implemented
incrementally
from 2006 to 2008. The third notice contains a
statement of policy on religion and education.
[6]
Section 3(4)(
l
)
of the
National Education Policy Act provides
:
‘
Subject to
the provisions of subsections (1) to (3), the Minister shall
determine national policy for the planning, provision, financing,
co-ordination, management, governance, programmes, monitoring,
evaluation and well-being of the education system and, without
derogating from the generality of this section, may determine
national policy for-
. . .
(
l
) curriculum frameworks, core
syllabuses and education programmes, learning standards, examinations
and the certification of qualifications,
subject to the provisions of
any law establishing a national qualifications framework or a
certifying or accrediting body.’
[7] The appellants
contend that these government notices are not binding on independent
schools because no regulations have been
promulgated by the Minister
to give effect to the policy statements that they contain. They also
allege that certain provisions
of the notices – such as
approval for the phasing in of the curriculum – are invalid
insofar as they purport to impose
legally binding obligations on the
appellants.
[8] The court below did
not determine the merits of the application. When Pretorius J
dismissed the extension application (brought
under a different case
number from that of the main application) she dismissed the main
application as well.
[9] The issues that arise
in this appeal will be dealt with as follows: first, the question
whether the late filing of the reply
in the extension application
should have been condoned will be determined; then the question
whether the court below was correct
in dismissing the extension
application will be decided; then, if the appeal on the second issue
succeeds, it will be necessary
to consider the merits of the main
application; and finally, it will be necessary to decide the question
of costs.
The extension
application: condonation for the late filing of the reply
[10] The main application
was served on 10 September 2007. In the answering affidavit filed on
behalf of the Minister (deposed to
on 31 October 2007), the point was
taken that the appellants sought, in effect, to review administrative
action and that the application
had been brought outside of the
180-day time limit provided for by s 7(1) of the Promotion of
Administrative Justice Act 3 of 2000
(the PAJA) with the result that
the main application fell to be dismissed on this basis alone.
[11] This induced the
appellants to launch an application in which they sought an extension
of the 180-day period to the date of
the launching of the main
application. This extension application was served on the State
Attorney on 12 December 2007. The answering
papers were filed on 27
February 2008. The replying papers were only filed some 18 months
later, on 8 October 2009.
1
The appellants applied
for condonation for this delay. The affidavit in which the delay is
explained was deposed to by a retired
judge, Mr Justice I W B de
Villiers, who had played the role of BCVO’s legal advisor. (I
shall refer to him in what follows
as De Villiers.)
[12] In a nutshell, his
excuse for the delay is that his capacity for work had diminished
with age and he was busy with another
case until October 2008. He
accepts responsibility for the delay. It is not necessary to deal
with the first excuse,
save
to say that if De Villiers was not able to do the work promptly
because of his age he should have declined to accept the
responsibility
of doing the work. It is, however, necessary to
outline the detail, such as it is, in relation to the second aspect.
[13] De Villiers stated
that he received the Minister’s answering papers to the
extension application towards the end of February
2008, shortly after
they were served. He sent copies to three people, Mr R E Pohl, Mr T J
de Wet and Mr Leendert van Oostrum, with
a request that they revert
to him with their comments. Pohl and De Wet reverted to him within a
week or two but Van Oostrum took
longer to respond. All that was said
in the affidavit attached to the founding affidavit in the
condonation application was that
Van Oostrum reverted to him in 2008.
In the replying affidavit, all he could say was that this was
‘heelwat later’
than the one or two weeks taken by De Wet
and Pohl.
[14] The problem that
confronted De Villiers was that he had taken on legal work for one of
the CVO schools towards the end of 2007
and this had kept him busy
until October 2008. Although he received some help from the
appellants’ attorney, he had to draft
the replying papers on
his own, and had to do so while he was working on the other matter.
To compound his problems, he underwent
an operation in July 2008 and
was out of action for two months. In addition, his personal affairs
were in disarray because he had
been working so hard on that other
matter. He was consequently not in a position to give his full
attention to the drafting of
the replying papers. Despite all of
this, he continued to work on the replying papers from time to time,
but due to the problems
that he had mentioned, he was not able to
finish drafting them any sooner than he did.
[15] The reply took more
time than expected to draft because the answering papers covered a
great deal of ground. He also devoted
a lot of time to the
information he had requested from Van Oostrum about the new
curriculum and about education policy prior to
2002, although he
later discarded all of this because it was not relevant to the
extension application. The process of preparing
the reply was a slow
one because a number of people had to depose to affidavits, some did
not live in Pretoria and some were not
readily available. In
addition, throughout 2008 and 2009 he was approached for advice by a
number of CVO schools. In October 2008
two office bearers of BCVO
changed, resulting in a break in continuity.
[16] Throughout the
period during which he was working on the reply, De Villiers received
queries about his progress. He reported
on progress from time to
time, either orally or in writing. In May 2009, after the appellants
changed their attorneys, one Van
Jaarsveld of the new firm of
attorneys requested De Villiers to write a report on his progress for
BCVO’s annual general
meeting which was to be held the
following month. He did so.
[17] De Villiers
eventually produced a draft of the replying papers in July 2009. He
e-mailed the papers to the people who were
to depose to affidavits.
After he received comments,
he e-mailed what I
presume would have been revised papers to the deponents in September
2009.
The affidavits were signed in that month
and served in early October 2009.
[18] Apart from the
occasional request for a progress report from office-bearers of BCVO
and CVO Skool Pretoria, it is evident that
both they and the
attorneys who represented the appellants did precious little to
ensure that the reply was filed without undue
delay. Indeed, they
appear to have left matters in the hands of De Villiers. The first
contact he had with the third appellant
was in July 2009 and he
states in this regard:
‘
Die Derde
Applikant het ek baie selde gesien. Hy het my nie gevra oor die
vordering van die saak nie. Ek neem aan dat hy gewag het
dat ek hom
oor verwikkelinge sou inlig. Ongelukkig het ek dit eers gedurende
Julie 2009 gedoen.’
2
[19] It was only in
September 2009 that De Villiers met the fourth appellant. He said the
following in relation to her:
‘
Die Vierde
Applikant het ek eers op 21 September 2009 ontmoet. Die tussenganger
tussen ons was gemelde Van Oostrum. Nadat hy gedurende
2008 sekere
inligting oor die gebeure in die onderwys vòòr 2002 aan
my verskaf het, het ons nie meer met mekaar kommunikeer
nie totdat ek
gedurende Julie 2009 per e-pos konsep repliserende verklarings aan
hom laat stuur het.’
3
Van Oostrum, on the other
hand, stated that, having provided De Villiers with the information
he requested, he heard nothing more
from him. He assumed that the
matter was, for one or other reason, no longer proceeding.
[20] The picture that
emerges from these facts is one of a failure on the part of everyone
involved to ensure that the replying
papers were filed without delay,
or to ensure that De Villiers did what was required of him; of
neglect on the part of both the
appellants and their attorneys to
take any interest in the conduct of the litigation; and an
abdication, on the part of the firms
of attorneys that represented
the appellants, of their professional responsibility.
[21] What of the
explanation for the delay given by De Villiers? In my view, his
explanation is far from convincing. As a retired
judge he ought to
understand the importance of complying with the rules of court and,
as a former practitioner, he ought to have
known that it is no excuse
to rely on a reduced capacity for work, on the one hand, and having
another case to work on to the detriment
of the present matter, on
the other. In these circumstances he should have told the appellants
that he was unable to do the work
timeously and that other
arrangements would have to be made.
[22]
The
delay of 18 months must be placed in context. The answering papers in
the extension application were 42 pages long, the main
answering
affidavit that had to be replied to being 35 pages long. The replying
papers were 56 pages long. The main replying affidavit
was 24 pages
long and the supporting affidavit of De Villiers himself was eight
pages long. For the rest, the eight remaining affidavits
vary between
two and four pages in length and are standard confirmatory affidavits
that should literally have taken a few minutes
to draft. The issues
that were raised in the answering affidavits were not complex and I
do not understand what research was required
on the part of De
Villiers that could have slowed the preparation of the replying
papers to any marked extent. Of the ten deponents
to the affidavits
that form part of the reply, eight (including De Villiers) lived in
Pretoria while one lived in Potgietersrus
and another lived in
Orania. Even if some were not always available, it is hard to imagine
that appointments could not have been
made to consult with them
within a month of the answering affidavits having been filed.
[23] When the evidence of
De Villiers is analysed, it appears to me that the difficulty in
meeting with witnesses is a smoke screen:
he had all he needed to
draft the replying papers sometime during 2008 but he only had a
draft on which to consult with the potential
deponents in July 2009.
And then it took him a further three months to finalise the papers
after he had sent them to the deponents.
[24] Finally, the
affidavit of De Villiers in which he seeks to offer an explanation
for the delay is vague and it fails to account
for the whole period
of 18 months. It is vague, for instance, in respect of precisely what
progress he had made in drafting the
papers by October 2008 and even
shorter on detail for the following year when this matter was, it
would appear, his primary concern
and duty. Not one of the progress
reports that he claims to have written, including the report of May
2009, is attached to the
papers and it is difficult to imagine what
he would have reported if he only had completed a draft of the papers
by July 2009.
[25] Rule 27(3) of the
Uniform rules provides that a ‘court may, on good cause shown,
condone any non-compliance with these
rules’. In
United
Plant Hire (Pty) Ltd v Hills & others
Holmes
JA stated:
4
‘
It is well
settled that, in considering applications for condonation, the Court
has a discretion, to be exercised judicially upon
a consideration of
all of the facts; and that in essence it is a question of fairness to
both sides.
’
The various factors that
are to be considered ‘are not individually decisive but are
interrelated and must be weighed one
against the other’ with
the effect, for instance, that ‘a slight delay and a good
explanation may help to compensate
for prospects of success which are
not strong’.
5
[26] In
Darries
v Sheriff, Magistrate’s Court, Wynberg & another
6
Plewman JA distilled from
the case law the guiding principles in the exercise of this
discretion. He stated:
‘
I will
content myself with referring, for present purposes, only to factors
which the circumstances of this case suggest should
be repeated.
Condonation of the non-observance of the Rules of this Court is not a
mere formality. In all cases some acceptable
explanation, not only
of, for example, the delay in noting an appeal, but also, where this
is the case, any delay in seeking condonation,
must be given. An
appellant should whenever he realises that he has not complied with a
Rule of Court apply for condonation as
soon as possible. Nor should
it simply be assumed that, where non-compliance was due entirely to
the neglect of the appellant's
attorney, condonation will be granted.
In applications of this sort the appellant's prospects of success are
in general an important
though not decisive consideration. When
application is made for condonation it is advisable that the petition
should set forth
briefly and succinctly such essential information as
may enable the Court to assess the appellant's prospects of success.
But appellant's
prospect of success is but one of the factors
relevant to the exercise of the Court's discretion, unless the
cumulative effect
of the other relevant factors in the case is such
as to render the application for condonation obviously unworthy of
consideration.
Where non-observance of the Rules has been flagrant
and gross an application for condonation should not be granted,
whatever the
prospects of success might be.’
[27] The delay in this
case – 18 months for the filing of a replying affidavit –
is excessively long. No effort was
made to apply for the condonation
of the delay as soon as possible, and no explanation is given for
this failure. Condonation was
only applied for when the reply was
eventually filed, and De Villiers, making a virtue out of necessity,
stated that the filing
of the reply was slowed down by the fact that
a condonation application had to be drafted as well. The explanation
for the delay
of 18 months is unacceptable. Indeed, it is no
explanation at all because of its vagueness and the long periods that
remain unexplained.
I consider the non-observance of the rules to be
so flagrant and gross that there is no need to consider the prospects
of success
in the extension application. There are simply no factors
that I can find that favour the grant of condonation.
In the result, however
strong those prospects of success could be, condonation for the late
filing of the reply must be refused.
[28] It follows that
Pretorius J was correct in dismissing the application for condonation
for the late filing of the reply in the
extension application.
Consequently, the appeal against the dismissal of that application
must fail.
The extension
application
[29] The extension
application was brought on the basis that, if the relief that was
claimed amounted to a review of administrative
action in terms of the
PAJA, an extension of the period within which the application should
have been launched would be sought.
Counsel for the Minister argued
that even if the PAJA did not apply, the common law delay rule did
and the applicants had delayed
unreasonably in bringing their
application.
[30] Section 7(1) of the
PAJA provides:
‘
(1) Any
proceedings for judicial review in terms of section 6(1) must be
instituted without unreasonable delay and not later than
180 days
after the date-
(
a
) subject to subsection
(2)(
c
), on which any proceedings instituted in terms of
internal remedies as contemplated in subsection (2)(
a
) have
been concluded; or
(
b
) where no such remedies
exist, on which the person concerned was informed of the
administrative action, became aware of the action
and the reasons for
it or might reasonably have been expected to have become aware of the
action and the reasons.’
[31] Section 9(1)
provides, however, that the 180-day period ‘may be extended for
a fixed period, by agreement between the
parties or, failing such
agreement, by a court or tribunal on application by the person or
administrator concerned’.
Section
9(2) provides that such an application may be granted ‘where
the interests of justice so require’.
7
As s 7(1) and s 9 apply
only in respect of proceedings in which administrative action is
reviewed in terms of s 6(1) of the PAJA,
the operation of these
sections is limited to administrative action as that term is defined
in s 1 of the PAJA.
[32] Prayers 1, 4 and 5
of the notice of motion in the main application seek declarators to
the effect that the policies set out
in government notices 710 of 31
May 2002, 1407 of 6 October 2003 and 1307 of 12 September 2003 are
not binding on the appellants
because they are not legislation,
regulations or rules.
[33] The argument
advanced by the appellants was that the Constitutional Court, in
Minister of Education
v Harris
,
8
had made it clear that
policy determinations made by the Minister in terms of the
National
Education Policy Act were
not binding on independent schools. In that
matter Sachs J had held:
9
‘
Policy made
by the Minister in terms of the National Policy Act does not create
obligations of law that bind provinces, or for that
matter parents or
independent schools. The effect of such policy on schools and
teachers within the public sector is a different
matter. For the
purposes of this case, it is necessary only to determine the extent
to which policy formulated by the Minister
may be binding upon
independent schools. There is nothing in the Act which suggests that
the power to determine policy in this
regard confers a power to
impose binding obligations. In the light of the division of powers
contemplated by the Constitution and
the relationship between the
Schools Act and the National Policy Act, the Minister’s powers
under s 3(4) are limited to making
a policy determination and he has
no power to issue an edict enforceable against schools and learners.’
[34] In respect of the
prayers for declarators, no decision is taken on review, whether
directly or indirectly,
no
exercise of public power is sought to be set aside and the PAJA has
no bearing on the relief claimed because no administrative
action is
implicated. That being so, s 7(1) and s 9 of the PAJA have no
application. The relief claimed being discretionary, however,
the
appellants were obliged to have launched their application within a
reasonable time.
10
In other words, the
common law delay rule, as articulated in cases such as
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
,
11
applies to determine
whether the application in respect of this relief was brought
timeously and,
if
not, whether any unreasonable delay should be condoned.
[35] Prayers 2, 3 and 6
seek the setting aside of aspects of the policy contained in the
three government notices insofar as they
purport to impose legally
binding obligations on the appellants. The thrust of these prayers,
read with the relevant allegations
in the founding papers,
is that effect is being
given to the policy and it is being imposed on the appellants. The
policy is, in other words, being implemented.
On the assumption that
the appellants’ allegations are true (and so determining this
issue as if on exception), I am of the
view that the relief sought
amounts to a review of the implementation of the policy in terms of
the PAJA.
12
That appears to be the
appellants’ understanding too. In paragraph 15 of BCVO’s
founding affidavit the following is
stated:
‘
Vir sover
bedes 2, 3 en 6 van die kennisgewing van mosie op hersiening neerkom,
is die aansoek gebaseer op die bepalings van Artikel
6(2)(a)(i) en
(f)(i) van Wet 3 van 2000 en is dit nie nodig om die prosedure
neergelê in Reël 53 van die Hooggeregshofreëls
te
volg nie aangesien daar nie ‘n oorkonde bestaan wat ingevolge
die bepalings van gemelde reël voor die Agbare Hof
geplaas moet
word nie.’
13
[36] From the appellants’
own categorisation of prayers 2, 3 and 6, the conclusion is
inescapable that they intended to review
aspects of the policy
insofar as it was being applied to them. In
Harnaker
v Minister of the Interior
14
Corbett J said the
following of the argument that a challenge to the validity of a
proclamation under the Group Areas Act 41 of
1950 was not a review:
‘
Mr
Molteno’s
argument
that the present action is not a review because it does not seek to
impugn the proceedings of any body but attacks the
result of a
certain act is, in my view, not a sound one. As I have already
indicated, the proceeding known as “review at
common law”
is generally regarded as applying in the case where an individual has
exceeded the statutory powers conferred
upon him or has done some act
or taken some decision which is assailable upon what are often
referred to as “review grounds”.’
[37] Even though, now,
the review jurisdiction of the courts is no longer a common law
jurisdiction,
15
the above statement,
which I consider to be correct, applies with equal force to the facts
of this case. The appellants seek to
have certain provisions set
aside on the basis of two grounds of review which they identify:
according to paragraph 15 of BCVO’s
founding affidavit, the
grounds upon which their challenge is mounted is that the
administrator who took the action concerned was
not authorised to do
so
16
and the action complained
of ‘contravenes a law or is not authorised by the empowering
provision’.
17
In the result, the
application in respect of prayers 2, 3 and 6 is, no matter what its
form, an application for review in substance.
[38]
The
imposition of the policy created through the ‘empowering’
mechanism of
s 3(4)
of the
National Education Policy Act amounts
to
the implementation of that legislation. (In effect, it is the
appellants’ contention that the policy is being imposed
as if
it was legislation.) In
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
18
the Constitutional Court
made it clear that when deciding on whether an exercise of public
power constitutes administrative action
the primary focus is on the
function rather than the functionary exercising that power, and that
the function of implementing legislation
constitutes administrative
action for purposes of s 33 of the Constitution.
[39] The next issue is
whether the imposition of the policy constitutes administrative
action for purposes of the PAJA. The term
is defined in s 1. Leaving
aside those aspects of the definition not relevant to this case,
administrative action is any decision
taken by an organ of state when
exercising a public power or performing a public function in terms of
legislation which adversely
affects rights and has a direct, external
legal effect.
[40] I am of the opinion
that the conduct on which prayers 2, 3 and 6 is premised falls within
the definition of administrative
action in the PAJA. The imposition
of the policy on the appellants involved a decision – the
imposition of a condition or
the making of a demand or requirement
19
--
as
envisaged by the PAJA. This would constitute the performance of a
public function by an organ of state. The appellants allege
that this
would have the effect of adversely affecting their rights in terms of
s 29(3) of the Constitution and the right of scholars
at CVO schools
to culture, religion and language in terms of s 31 of the
Constitution. The decision would have a direct, external
legal
effect.
20
[41] My conclusion then
is that because the application in respect of prayers 1, 4 and 5 of
the notice of motion is not a review,
and consequently could not have
been brought in terms of the PAJA, the common law delay rule applies
to them, while the application
for prayers 2, 3 and 6 is a review in
terms of the PAJA and the time limit set out in s 7(1), read with the
condonation provision
in s 9, applies to them. This is a consequence
of the legislature’s decision, when enacting the PAJA, to
depart from the
flexibility of the common law delay rule in respect
of challenges to one species of public power – the narrowly
defined administrative
action for purposes of the PAJA. Despite the
differences between the formulation of the delay rule and the time
limit and condonation
provisions of the PAJA, however, the approach
to the application of both is similar and the approach to the latter
is, in truth,
inspired by the delay rule.
[42] It was argued by
counsel for the appellants that we were required to decide the merits
before considering whether the application
was brought out of time or
after undue delay and, if so, whether or not to condone the defect.
Reliance was placed on a statement
made by Froneman J in
Bengwenyama
Minerals (Pty) Ltd & others v Genorah Resources (Pty) Ltd &
others
21
to the effect (as it was
framed in supplementary heads of argument) that ‘the court
should first determine the merits in order
to give full effect to a
finding of invalidity before considering whether circumstances would
justify the exercise of a discretion
against the granting of
relief’.
22
[43] When the passages in
Froneman J’s judgment are read in context, however, it is clear
that they refer not to the discretion
to withhold a remedy because of
undue delay or because an application is brought out of time but to
the amelioration of the logical
result of a finding of invalidity –
the setting aside of the unlawful action or conduct – in order
to achieve justice
and equity. This refers in the first instance to s
172 of the Constitution which reads:
‘
(1) When
deciding a constitutional matter within its power, a court –
(
a
) must declare that any law
or conduct that is inconsistent with the Constitution is invalid to
the extent of its inconsistency;
and
(
b
) may make any order that is
just and equitable, including –
(i) an order limiting the
retrospective effect of the declaration of invalidity; and
(ii) an order suspending the
declaration of invalidity for any period and on any conditions, to
allow the competent authority to
correct the defect.’
[44] It was to these
discretionary remedies and their equivalent in s 8 of the PAJA that
Froneman J was referring, and not to the
delay rule or s 7(1) of the
PAJA. Even though a court exercises a discretion when deciding to
condone an undue delay or extend
a time period, when it refuses to do
so it does not award a remedy. The effect is the opposite – the
withholding of a remedy.
It dismisses the application because of the
delay or lateness. This is borne out by
Bengwenyama
Minerals
itself.
Froneman J dealt with the question of delay, finding that the
application had not been brought out of time, before dealing
with the
merits.
23
As there is no need to
deal with the merits first, I proceed to consider the question of
delay.
[45] In general terms,
the purpose of the delay rule was, in
Louw
v The Mining Commissioner, Johannesburg
,
24
rather quaintly intimated
to be to non-suit a litigant who ‘wishes to drag a cow which
has been long dead out of the ditch’.
More recently, this
court, in
Gqwetha
v Transkei Development Corporation Ltd & others
,
25
gave a fuller explanation
of its purpose and function. Nugent JA (for the majority) said the
following of the rule:
‘
[22] It is
important for the efficient functioning of public bodies (I include
the first respondent) that a challenge to the validity
of their
decisions by proceedings for judicial review should be initiated
without undue delay. The rationale for that longstanding
rule -
reiterated most recently by Brand JA in
Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005
(2) SA 302
(SCA) at 321 - is twofold: First, the failure to bring a
review within a reasonable time may cause prejudice to the
respondent.
Secondly, and in my view more importantly, there is a
public interest element in the finality of administrative decisions
and the
exercise of administrative functions. As pointed out by
Miller JA in
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA
13
(A) at 41E - F (my translation):
“
It is
desirable and important that finality should be arrived at within a
reasonable time in relation to judicial and administrative
decisions
or acts. It can be contrary to the administration of justice and the
public interest to allow such decisions or acts
to be set aside after
an unreasonably long period of time has elapsed -
interest
reipublicae ut sit finis litium
.
. . . Considerations of this kind undoubtedly constitute part of the
underlying reasons for the existence of this rule.”
[23] Underlying that latter aspect of
the rationale is the inherent potential for prejudice, both to the
efficient functioning of
the public body and to those who rely upon
its decisions, if the validity of its decisions remains uncertain. It
is for that reason
in particular that proof of actual prejudice to
the respondent is not a precondition for refusing to entertain review
proceedings
by reason of undue delay, although the extent to which
prejudice has been shown is a relevant consideration that might even
be
decisive where the delay has been relatively slight (
Wolgroeiers
Afslaers
, above, at 42C).’
[46] In the application
of both the delay rule and ss 7 and 9 of the PAJA, a two stage
approach is required. That is the way the
courts have always applied
the delay rule and the structure of the PAJA requires two distinct
enquiries. The first question that
arises is whether the delay in
launching an application was unreasonable, or whether it was launched
more than 180 days after internal
remedies had been exhausted or the
applicant had been informed of, had knowledge of or ought to have had
knowledge of the administrative
action under challenge.
26
The second question is
whether, if the first question is answered in the affirmative, the
delay ought to be condoned or whether
it is in the interests of
justice that the 180-day period be extended (or the failure to bring
the application timeously should
be condoned).
27
[47] In both instances,
once the first stage has been determined against an applicant, the
delay will only be condoned if the explanation
for it is acceptable.
That, by its nature, involves the exercise of a discretion.
28
The approach to the
condonation of delay in terms of the PAJA was dealt with by this
court in
Camps
Bay Ratepayers’ and Residents’ Association v Harrison
29
as follows:
‘
The
appellants “might reasonably have been expected to have become
aware” of the infringement when they first inspected
the
original plan and proceedings for review on that ground ought
ordinarily have been commenced within 180 days of that date.
Section
9(2) however allows the extension of these time frames where “the
interests of justice so require”. And the
question whether the
interests of justice require the grant of such extension depends on
the facts and circumstances of each case:
the party seeking it must
furnish a full and reasonable explanation for the delay which covers
the entire duration thereof and
relevant factors include the nature
of the relief sought, the extent and cause of the delay, its effect
on the administration of
justice and other litigants, the importance
of the issue to be raised in the intended proceedings and the
prospects of success.’
[48] I turn now to the
facts concerning the time taken to launch the application. Thereafter
I shall determine whether that time
exceeds 180 days for the purposes
of the PAJA and if it constituted an unreasonable delay for purposes
of the common law. If so
in both instances, I shall decide,
finally, whether the
interests of justice require an extension of time in respect of the
application for prayers 2, 3 and 6, in
terms of the PAJA,
and whether condonation
should be granted in respect of the application for prayers 1, 2 and
6, for purposes of the delay rule.
[49] The first relevant
government notice was published on 31 May 2002, with the policy
articulated in it being implemented from
2004 to 2008. The following
two government notices were published on 12 September 2003 and 6
October 2003. Although the appellants
claim that they only became
aware of the first government notice in 2005 and the other two in
2007,
I
have my doubts that this could be so. Both BCVO and its affiliate,
CVO Skool Pretoria,
are
involved in education and ought to take an active interest in
government policy and action in relation to education. If they
did
not know of the existence of these instruments until 2005 and 2007
they have only themselves to blame, particularly as the
new
curriculum for grades R to 9 was implemented from 2004 and that for
grades 10 to 12 was implemented from 2006. Ms Penelope
Vinjevold, the
deponent to the answering affidavit on behalf of the Minister,
made the point that the
development of the new curriculum did not occur overnight, required a
great deal of work prior to implementation
and involved much
consultation and publicity aimed at those involved in education.
[50] Even if the
appellants had managed to remain unaware of these developments from
2002 until 2004, it is clear that they became
aware of the second
government notice by April 2005. Mr Jacobus Fourie, an attorney who
is also a director of CVO Skool Pretoria
and a parent of children who
attend that school, deposed to an affidavit on its behalf. He stated
that, on 26 April 2005, the school
received a letter, dated 11 April
2005, from the acting senior manager of the district of North Gauteng
of the Department of Education
addressed to ‘The Principal, SMT
and SGB of all Schools’.
30
It extends an invitation
to the principal, the members of the SMT and one parent member of the
SGB to attend a workshop on ‘the
subject offerings for grade 10
learners in 2006’. The opening sentence of the letter states
that, as everyone is aware, ‘the
implementation of the National
Curriculum Statement (Grades 10 to 12) will be happening in 2006’.
[51] If Fourie did not
bring this development to the attention of BCVO as the body to whom
the school he represented was affiliated,
someone else must have
because in mid-2005, the annual general meeting of BCVO discussed the
new curriculum and took certain decisions.
BCVO decided that its
affiliated schools would implement some aspects of the new curriculum
but that other parts of it would not
be implemented. It did nothing
to challenge the new curriculum, even though it accepted that it
applied to its affiliated schools,
and it must have been in no doubt
that the Department considered CVO schools to be bound to implement
the new curriculum. Indeed,
attached to the affidavit of Fourie are
seven media statements released by the Department of Education, dated
30 September 2004,
27 May 2005, 18 July 2005, 20 July 2005, 30 May
2006, 31 August 2006 and 6 June 2007 that make it clear that the new
curriculum
was going to be implemented throughout the country and
that, as far as the Department was concerned, it was to be
implemented by
all schools. The appellants took no steps to
investigate the lawfulness of the imposition on them of the new
curriculum until much
later.
[52] Fourie complained
that Umalusi, the Council for General and Further Education and
Training Quality Assurance, demanded of the
school that it implement
the new curriculum, both in respect of grades R to 9 and grades 10 to
12. He referred to a document that
emanated from Umalusi entitled
‘Draft criteria for the accreditation & monitoring of
independent schools’ which
is dated September 2005. Although
Fourie did not state when it came to the attention of CVO Skool
Pretoria, it must have done so
in 2005. According to the document,
one of the areas that would be considered for the accreditation of
independent schools was
teaching and learning. The document stated in
this regard:
‘
This focus
area includes criteria around the core business of an independent
school. It includes national curriculum, learning programmes
and
certification, delivery, teaching, assessment of learning, staff
expertise and development, and learner support.’
[53] Under a heading
entitled ‘Criterion 4: Curricula, learning programmes and
certification’, the document states that
the quality of the
‘subject mix, learning programmes and certification’
would be measured by taking into account, inter
alia, the extent to
which ‘the school complies with national policies in respect of
the curriculum’. Umalusi would
expect schools, in order to meet
the criteria concerning teaching and learning, to have learning
programmes based ‘on the
national curriculum as reflected in
the national curriculum statements of the department of education’
and to ‘meet
all the policy requirements’. In an appendix
headed ‘Summary of Accreditation Criteria for Independent
Schools’,
‘[c]ompliance with legislation and policies’
is listed as a sub-criterion for teaching and learning. There was no
doubt
in Fourie’s mind as to the import of the Department’s
letter of 11 April 2005 and Umalusi’s criteria for
accreditation.
He concluded his affidavit by complaining that Umalusi
considered the new curriculum to be binding on independent schools,
just
as the Department did.
[54] BCVO was also
concerned that Umalusi was trying to force CVO schools to implement
the new curriculum. Its concerns arose when
it received a letter
dated 19 September 2005 from Umalusi, dealing with the evaluation of
BCVO’s application for accreditation
as a private assessment
body, and which required it to submit ‘a sample of curricula
and learning programmes for scrutiny
by Umalusi to evaluate the
degree of compliance with the requirements of the senior certificate
core curriculum’. BCVO’s
founding affifavit concludes as
follows in respect of Umalusi:
‘
Aangesien
Umalusi by CVO-Skole en by die Eerste Applikant aandring dat die
Hersiene Nasionale Kurrikulumstelling deur hulle toegepas
moet word
ten einde voorlopige akkreditasie as verskaffers te verkry, is dit
ook om hierdie rede vir die Applikante van wesenlike
belang dat die
Agbare Hof die aangevraagde regshulp verleen sodat daar duidelikheid
sal bestaan of sodanige Kurrikulum bindend
is al dan nie.’
31
[55] During the first
half of 2006, BCVO was advised by De Villiers that it was not bound
to implement the new curriculum. In mid-2006,
this advice was shared
with Van Oostrum, the executive officer of a body called the
Pestalozzi Trust, which describes itself on
its letterhead as ‘the
legal defence fund for home education’. According to Van
Oostrum’s affidavit, the basis
for the conclusion that the new
curriculum was not binding was that it had not been determined in
terms of s 6A of the
South African Schools Act 84 of 1996
and no
regulations in terms of
s 61(
c
)
and (
d
)
of that Act had been promulgated. Van Oostrum wrote a letter to the
Minister, dated 26 June 2006, in which he asked to be informed
of the
references of the government notices in which the new curriculum had
been determined and regulations had been promulgated.
No reply was
received.
[56] Further undisclosed
discussions occurred at BCVO’s annual general meeting in
mid-2006, after the letter had been sent.
Nothing more appears to
have happened until 6 December 2006 when BCVO’s chairperson at
the time wrote to the Minister. He
stated that the new curriculum had
not been determined and the necessary regulations had not been
promulgated, that the government
notices in issue in this case had
only stated policy and that in terms of the
Harris
case, that was not
binding.
Paragraphs
11 and 12 of the letter stated:
‘
11. Indien u
sou
toegee
dat die
Hersiene Nasionale Kurrikulum nie ingevolge art.
6A bepaal is
nie, dat geen regulasies daaromtrent ingevolge art.
61(c) en (d)
in die Staatskoerant afgekondig is nie, en dat gemelde Kurrikulum dus
slegs beleid en nie bindend is nie, sal ons dit
waardeer indien u dit
so spoedig moontlik skriftelik aan ons sal bevestig en dit natuurlik
ook,
vanweë
die groot nasionale belang daarvan, aan alle skole en die publiek
bekend sal maak.
12. Indien ons teen 22 Januarie 2007
nog nie ‘n antwoord op hierdie brief van u ontvang het nie, sal
ons aanvaar dat ons siening
korrek is en dat u stilswyend toegee dat
die Hersiene Nasionale Kurrikulum inderdaad nie ingevolge art.
6A bepaal is nie, dat regulasies
ingevolge art. 61(c) en (d) nie afgekondig is nie, en sal ons verplig
wees, om duidelikheid te
verkry oor ‘n aangeleentheid van groot
nasionale belang, die Transvaalse Provinsiale Afdeling van die
Hooggeregshof by wyse
van aansoek vra om ‘n verklarende bevel
te verleen dat die Hersiene Nasionale Kurrikulum slegs beleid is en
nie bindend is
nie. In so ‘n geval sal ons waarskynlik ‘n
kostebevel teen u in u hoedanigheid as Minister van Onderwys aanvra
omdat
u versuim het om te reageer op hierdie brief en ons verplig het
om ‘n aansoek daaromtrent na die hof te loods.’
32
[57] The date for the
expiry of the ultimatum came and went. As it happened, the Minister
replied to the letter but it went astray
and was never received by
BCVO. The application was only launched on 10 September 2007 (when it
was served), the notice of motion
being dated 20 August 2007. That
means that the application was launched more than nine months after
the letter of demand was sent,
and more than seven and a half months
after the ultimatum had expired.
[58] In order to
determine whether the appellants delayed unduly the first question
that requires an answer is precisely when the
clock started ticking.
In
Camps
Bay Ratepayers’ and Residents’ Association & another
v Harrison & another
33
the Constitutional Court
dealt with this issue. Brand AJ held:
‘
Whether or
not the Supreme Court of Appeal was correct in its approach, first
raises the issue regarding the interpretation of s
7(1)(
b
)
of PAJA. In terms of the section, the 180-day period starts to run
when the “person concerned . . . became aware of the
action and
the reasons for it”. Before “the action” nothing
happens. In the final analysis it is awareness of
“the action”
that sets the clock ticking. That raises the question: what “action”
did the legislature have
in mind? The answer, I think, is the
“administrative action”, and, according to the definition
of that term in PAJA,
“the decision” that is challenged
in the review proceedings. What that decision entails is a question
that cannot be
answered in the abstract. It must depend on an
evaluation of the facts.’
[59] In my view the clock
started ticking, at the latest, on 26 April 2005 when CVO Skool
Pretoria received a letter, sent to all
schools, from the Department
of Education to inform it of a workshop on the new curriculum and
that it was going to be implemented.
That was followed by the media
statements that I have referred to above that also made it clear that
the Department took the view
that all schools had to implement the
new curriculum in accordance with the time frames set out in the
government notices of 31
May 2002 and 6 October 2003. In the light of
this, the decision was taken at the BCVO annual general meeting in
mid-2005 to implement
those aspects of the new curriculum that it
found unobjectionable and not to implement the rest.
[60] The appellants were
not entitled to adopt a supine attitude. Once they were adversely
affected by the Department’s action
of imposing the new
curriculum on them they were obliged to take steps to investigate the
lawfulness of that action. They did not
do so,
they
should have,
and
there is no acceptable explanation why they did not. This court has
held that delay prior to a litigant becoming aware of the
reviewability of administrative action cannot necessarily be
disregarded. In
Associated
Institutions Pension Fund & others v Van Zyl & others
34
Brand JA held:
‘
In my view
there is indeed a duty on applicants not to take an indifferent
attitude but rather to take all reasonable steps available
to them to
investigate the reviewability of administrative decisions adversely
affecting them as soon as they are aware of the
decision. These
considerations are, in my view, also reflected in both s 7(1) of PAJA
and in the provisions of
s 12(3)
of the
Prescription Act 68 of 1969
.
Whether the applicants in a particular case have taken all reasonable
steps available to them in compliance with this duty, will
depend on
the facts and circumstances of each case.’
[61] Even after legal
advice had been given to BCVO in the first half of 2006, that the
Minister could not lawfully require independent
schools to implement
the new curriculum, no steps were taken to challenge the decision
that the new curriculum had to be implemented
by all schools.
Instead, the advice was conveyed to Van Oostrum who wrote an
inconsequential letter to the Minister requesting
information. BCVO
did nothing further for the rest of the year until it wrote its
letter of 6 December 2006 putting the Minister
to terms and telling
her, rather strangely, that if she agreed with BCVO that the policy
was not binding, it would launch proceedings
for a declaratory order.
There is, in truth, no explanation for this delay. Still nothing
happened from the expiry of the ultimatum
until 10 September 2007
when the application was launched.
[62] The explanation for
this delay is that further research was necessary and that BCVO had
to find further applicants, apparently
to bolster its case. Both
explanations are unacceptable. BCVO knew about the
Harris
case. This was the centrepiece of its challenge. To the extent that
research had to be undertaken into BCVO’s standing, that
could
and should have been done in two days at the most. The search for any
determinations in terms of
s 6A
and regulations in terms of
s 61(c)
and (d) of the
South African Schools Act appears
to have taken
months. This research could have been concluded in minutes with the
aid of the internet, or perhaps a bit longer
by perusing the
Department’s website. A telephone call to the Department may
also have wielded a speedy answer. The search
for applicants also
took months. If it was necessary at all, it should have been done
much earlier and when it was done, it was
done at a leisurely pace.
The explanation for the long delay from mid-2006 until the launching
of the application – a delay
of at least a year and three
months – is unacceptable.
[63] The delay from 26
April 2005 until 10 September 2007 is about two years and four and a
half months. All things considered,
that is an unreasonably long
delay from when the clock began to tick, and obviously the
proceedings were instituted outside of
the 180-day limit provided for
in
s 7(1)
of the PAJA.
[64]
The
explanation for the delay, as I have said, is unacceptable. In some
instances, no explanation at all is tendered,
while
in others it is so threadbare as to amount to no explanation.
Throughout, there is a dearth of detail and where explanations
were
offered, they tend to indicate that the appellants dragged their
heels throughout and did not take steps to safeguard their
interests
with reasonable expedition. The delay was lengthy and its cause was
the laxity and indifference of the appellants. In
summary, no full
and reasonable explanation has been given for the entire period of
the delay.
[65]
It
is not necessary to consider the appellants’ prospects of
success as the dispute has largely been overtaken by events:
another
curriculum has replaced the one that the appellants object to and the
appellants accept that the procedural steps necessary
to make the
policy binding on independent schools have been complied with.
35
That curriculum is being
implemented. In the result, an issue that is now of little practical
import has been lingering, unfinished,
for some six years at least.
The interests of justice militate against condonation for the
unreasonable delay in applying for the
declarators and for the
lateness of the application for the review and setting aside of
aspects of the government notices.
[66] In the result, the
application for an extension of time in respect of prayers 2, 3 and 6
could not succeed and the condonation
for the delay in bringing the
application in respect of prayers 1, 4 and 5 could not be granted.
That means that the main application
had to be dismissed without the
merits even being considered. Pretorius J’s outcome was thus
correct.
The
appeal against the dismissal of the extension application and the
main application must fail.
Costs
[67]
It
was argued on behalf of the appellants that if the appeal was to be
dismissed, they should not be required to pay the costs of
the
Minister, either in the court below or in this court. Reliance was
placed on the principle enunciated by the Constitutional
Court in
Biowatch
Trust v Registrar, Genetic Resources & others
36
to the effect that in
litigation between ‘the government and a private entity seeking
to assert a constitutional right . .
. ordinarily, if the government
loses, it should pay the costs of the other side, and if the
government wins, each party should
bear its own costs’.
[68]
That
principle is subject to exceptions. So, the Constitutional Court
held, if ‘an application is frivolous or vexatious,
or in any
other way manifestly inappropriate, the applicant should not expect
that the worthiness of its cause will immunise it
against an adverse
costs award’.
37
Furthermore, the issues
‘must be genuine and substantive, and truly raise
constitutional considerations relevant to the adjudication’.
38
Whether proceedings are
manifestly inappropriate is a question of fact to be determined in
the light of all of the evidence. In
my view, an application would be
manifestly inappropriate if an applicant had delayed unreasonably
before launching it and ought
to have known that its prospects of
having the delay condoned were slight.
39
[69] While I do not
consider the bringing of the application in this matter to have been
frivolous or vexatious, it was, in view
of the inordinately long
delay, manifestly inappropriate for the appellants to have proceeded
with it in the circumstances. They
must have known that, given the
long delay and the paucity of the explanation for it, the chances of
the application being dismissed
on account of that delay were strong
and the chances of the matter being decided on the merits were
slight. To the extent that
they held a contrary view, that view was
unreasonably held.
[70] I can appreciate the
basis and rationale of the
Biowatch
principle when a genuine
case concerning constitutional rights is decided against an applicant
and in favour of a government respondent
on the merits
40
and even in preliminary
proceedings in the ordinary course. The purposes it seeks to achieve
are not undermined, however, by the
application of the usual rule
that costs follow the result when an application fails before the
substantive issues are reached
because of an applicant’s own
laxity in circumstances where it is manifestly inappropriate. In
circumstances such as those
it would be unfair to expect the
successful government respondent to bear its own costs.
[71] For the above
reasons, all of which apply to the appellants in this case, I am of
the view that they should be ordered, jointly
and severally, to pay
the costs of the Minister in this court and that there is no
justification for an interference with the costs
order made by the
court below. The costs of two counsel are warranted.
The order
[72] The appeal is
dismissed and the appellants are directed, jointly and severally, to
pay the costs of the first respondent, including
the costs of two
counsel.
________________________
C PLASKET
ACTING JUDGE OF APPEAL
APPEARANCES
Appellants: R J Raath SC
and R J Groenewald
(Heads of argument by S J
Du Plessis SC and R J Groenewald)
Instructed by:
Gouws Attorneys, Pretoria
Naudes Incorporated,
Bloemfontein
First Respondent: J H
Dreyer SC and N Janse van Nieuwenhuizen
Instructed by:
The State Attorney,
Pretoria
The State Attorney,
Bloemfontein
1
There
is no indication in the appeal record when the replying papers were
served and filed so I have relied on the date indicated
in the
judgment of the court below. There is no dispute in this regard. The
various affidavits that constitute the reply were
signed between 17
and 28 September 2009.
2
‘
I
saw the Third Applicant very seldom. He never asked me about the
case’s progress. I presume that he was waiting for me
to
inform him of developments. Unfortunately, I only did this during
July 2009.’ (My translation.)
3
I
met the Fourth Applicant for the first time on 21 September 2009.
Our go-between was the said Van Oostrum. After he provided
me with
certain information, during 2008, about events in education
before
2002, we no longer communicated with
each other until, during July 2009, I had draft replying affidavits
e-mailed to him.’
(My translation.)
4
United
Plant Hire (Pty) Ltd v Hills & others
1976
(1) SA 717
(A) at 720E-F.
5
At
720G.
6
Darries
v Sheriff, Magistrate’s Court, Wynberg & another
1998 (3) SA 34
(SCA) at 40H-41E.
(References omitted.)
7
In
practice,
s 9
is treated as a condonation provision. Usually, an
applicant who is out of time applies in the founding papers for
condonation
for launching the application outside of the 180-day
limit, rather than bringing a separate application, prior to the
hearing
of the application, for an extension of the period. That is
not to say that the appellants can be faulted for the procedure that
they followed.
8
Minister
of Education v Harris
2001
(4) SA 1297
(CC).
9
Para
11.
10
Lawrence
Baxter
Administrative Law
(1984) at 715.
11
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A).
12
I
have approached this question in the same way as Bozalek J did in
Sebenza Forwarding &
Shipping Consultancy (Pty) Ltd v Petroleum Oil and Gas Corporation
of SA (Pty) Ltd t/a Petro SA &
another
2006
(2) SA 52
(C).
13
‘
Insofar
as prayers 2, 3 and 6 of the notice of motion amount to a review,
the application is based on the provisions of
Section 6(2)(a)(i)
and
(f)(i) of Act 3 of 2000 and it is not necessary to follow the
procedure provided for in Rule 53 of the Supreme Court Rules
because
a record does not exist that, in terms of the provisions of the said
rule, has to be placed before the Honourable Court.’
(My
translation.)
14
Harnaker
v Minister of the Interior
1965
(1) SA 372
(C) at 377H-378A.
15
Pharmaceutical
Manufacturers Association of SA & another: In re ex parte
President of the Republic of South Africa & others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) paras 45 and 51.
16
Section
6(2)(
a
)(i)
of the PAJA.
17
Section
6(2)(
f
)(i)
of the PAJA.
18
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
2000
(1) SA 1
(CC) paras 141-142.
19
See
subsections (d) and (e) of the definition of ‘decision’
in s 1 of the PAJA.
20
As
to the meaning of these last two aspects of the definition of
administrative action for purposes of the PAJA, see
Grey’s
Marine Hout Bay (Pty) Ltd & others v Minister of Public Works &
others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) para 23.
21
Bengwenyama
Minerals (Pty) Ltd & others v Genorah Resources (Pty) Ltd &
others
2011 (4) SA 113
(CC).
22
Reference
was made in the supplementary heads to paras 84-87 of the judgment.
23
Paras
56-60 deal with delay while paras 61-80 deal with the merits.
24
Louw
v The Mining Commissioner, Johannesburg
(1896)
3 OR 190
at 200.
25
Gqwetha
v Transkei Development Corporation Ltd & others
2006
(2) SA 603
(SCA) paras 22-23.See too
Associated
Institutions Pension Fund & others v Van Zyl & others
2005 (2) SA 302
(SCA) para 46.
26
I
leave aside the possibility that an applicant may be non-suited even
if the delay in launching the application is less than
180 days: s
7(1) requires proceedings to be instituted ‘without
unreasonable delay and not later than 180 days after .
. .’.
This issue does not arise in this case because a delay of 180 days
would not have been unreasonable. See
Thabo
Mogudi Security Services CC v Randfontein Local Municipality &
others
[2010] 4 All SA 314
(GSJ) para 59.
27
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
(note
11) at 39C-D;
Associated
Institutions Pension Fund v Van Zyl
(note
25) para 47.
28
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
(note
11) at 39C-D;
Associated
Institutions Pension Fund v Van Zyl
(note
25) para 48.
29
Camps
Bay Ratepayers’ and Residents’ Association v Harrison
[2010] 2 All SA 519
(SCA) para 54
(confirmed on appeal in
Camps
Bay Ratepayers’ and Residents’ Association & another
v Harrison & another
2011
(4) SA 42
(CC)). See too
Price
Waterhouse Coopers Inc & others v Van Vollenhoven NO &
another
[2010] 2 All SA
256 (SCA).
30
From
the body of the letter, it is apparent that the acronym SMT stands
for School Management Team and SGB stands for School Governing
Body.
31
‘
In
view of the fact that Umalusi insists that the Revised National
Curriculum Statement must be applied by CVO-Schools and the
First
Applicant in order to obtain provisional accreditation as providers,
it is for this reason too that it is of importance
for the
Applicants that the Honourable Court grants the relief applied for
so that clarity can be obtained as to whether the
said Curriculum is
binding or not.’ (My translation.)
32
’
11.
If you concede that the Revised National Curriculum Statement has
not been determined in terms of s 6A, that no regulations
concerning
it have been promulgated in the Government Gazette in terms of s
61(c) and (d), and that the said Curriculum is thus
only policy and
is not binding, we would appreciate it if you would confirm this in
writing as soon as possible and, of course,
because of the great
national importance thereof, also inform all schools and the public.
12. If we have not
received an answer to this letter from you by 22 January 2007, we
shall assume that our view is correct and
that you have tacitly
conceded that the Revised National Curriculum Statement has indeed
not been determined in terms of s 6A,
that regulations have not been
promulgated in terms of s 61(c) and (d), and we will be obliged, in
order to obtain clarity concerning
a matter of great national
importance, to approach the Transvaal Provincial Division of the
High Court by way of an application
to ask that a declaratory order
be granted that the Revised National Curriculum Statement is only
policy and is not binding.
In that event we shall probably ask for a
costs order against you in your capacity as Minister of Education
because your failure
to respond to this letter will have obliged us
to launch an application in court.’ (My translation.)
33
Camps
Bay Ratepayers’ and Residents’ Association & another
v Harrison & another
2011
(4) SA 42
(CC) para 57.
34
Note
25 para 51.
35
See
Government Notices 722 and 723 of 12 September 2011.
36
Biowatch
Trust v Registrar, Genetic Resources & others
2009
(6) SA 232
(CC) para 22.
37
Para
24.
38
Para
25.
39
See
by way of analogy,
Wildlife
and Environmental Society of South Africa v MEC for Economic
Affairs, Environment and Tourism, Eastern Cape & others
2005 (6) SA 123
(E).
40
See
Biowatch Trust v Registrar,
Genetic Resources & others
(note
36) para 23.