Mohapi and Others v Registrar Free State Transport and Others (2283/2022) [2022] ZAFSHC 341 (2 December 2022)

80 Reportability

Administrative Law

Brief Summary

Administrative Law — Review — Delay in instituting review proceedings — Applicants, prospective scholar patrol transport operators, sought to review the First Respondent's failure to register them on the provincial transport register — Applicants became aware of the administrative action as early as April 2019 but only instituted the review application in May 2022, exceeding the 180-day limit set by section 7 of the Promotion of Administrative Justice Act — Court held that the delay was unreasonable and fatal to the application, resulting in dismissal of the application and an order for costs against the Applicants.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an application in the High Court of South Africa, Free State Division, Bloemfontein, in which the applicants sought judicial review relief directed at the failure of the Provincial Transport Registrar to consider and decide their applications to be registered on the provincial transport register. In addition to review and setting aside relief, the applicants sought a mandatory order compelling the Registrar to register them on that register.

The applicants were 28 individuals (including Tsheliso Mohapi and others) who described themselves as prospective scholar patrol transport operators based in Botshabelo. The first respondent was the Registrar Free State Transport (the Provincial Transport Registrar in the Free State Department responsible for roads and transport). The second respondent was the Botshabelo Scholar Patrol Transport Association, and the third respondent was the MEC for Public Safety and Security / Free State Department Roads and Transport (as cited in the heading of the judgment). The first and third respondents opposed the application, while the second respondent did not appear.

The matter was heard on 7 November 2022 and judgment was delivered electronically on 2 December 2022. The court disposed of the case on a threshold procedural basis concerning delay under the statutory regime for judicial review, without reaching the merits of the other defences raised.

The general subject-matter concerned access to the provincial transport register as a step towards participation in the scholar transport sector, and whether the Registrar’s conduct (characterised by the applicants as a failure to consider and decide their applications) could be reviewed and set aside, and whether registration could be compelled.

2. Material Facts

The applicants were prospective scholar patrol transport operators in Botshabelo. On the evidence accepted as material for purposes of the dispositive issue, it appeared that they did not possess operating licences, and that their objective in securing registration on the provincial transport register was to enable them later to apply for operating licences.

The applicants’ founding version was that they had applied to be members of the second respondent (the Botshabelo Scholar Patrol Transport Association) since 2016. They alleged that the second respondent exhibited a “gatekeeping” attitude that impeded their progress.

A key set of dates emerged from the applicants’ own papers. They alleged that the first formal communication from the first respondent was on 31 July 2019, when they were informed that they had been placed on a waiting list. They also relied on a general notice dated 30 August 2019 in which the first respondent informed all applicants that they had been put on a waiting list.

In addition, the applicants attached correspondence from their former attorneys, ZB Moletsane Attorneys, addressed to the first respondent and dated 22 April 2019. In that letter, it was recorded (as the applicants’ instruction to their attorneys) that for three years they had been trying to obtain permits to operate, but that the Registrar had informed them that they could not be issued with permits because they had to start at their local organisation, namely the Botshabelo Scholar Transport body.

It was undisputed that the review application was only instituted on 18 May 2022, and that this was well beyond 180 days calculated from either April 2019 or July 2019. It was also not in dispute that the applicants did not bring an application for extension or condonation in terms of the statutory mechanism permitting an extension of the 180-day period.

These facts, taken from the applicants’ own version and common cause chronology, were decisive to the outcome.

3. Legal Issues

The central legal question was whether the review could competently be entertained given the statutory time-bar in section 7(1) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), which requires review proceedings to be instituted without unreasonable delay and in any event not later than 180 days after the applicant became aware (or reasonably ought to have become aware) of the administrative action and the reasons for it.

A closely related issue was whether, once the 180-day period had elapsed, the court had authority to entertain the review in the absence of an extension under section 9(1) of PAJA. This required the court to determine, on the facts presented, when the applicants became aware of the relevant “administrative action” for purposes of triggering the running of the period.

The dispute, as decided, concerned the application of law to fact and a procedural value judgment only in a limited sense. The court’s determination was primarily a legal evaluation of compliance with statutory timing requirements, applied to largely common-cause dates and admissions contained in the founding papers. The merits of the underlying complaint about “gatekeeping” and non-registration were not reached because the timing point was dispositive.

4. Court’s Reasoning

The court approached the matter through the framework of PAJA’s review timing provisions. It noted that the applicants expressly premised the application on section 6(2)(g) of PAJA, and then set out section 7(1) of PAJA, emphasising two linked requirements: proceedings must be instituted without unreasonable delay, and they must be instituted not later than 180 days after the relevant triggering date.

In interpreting when the 180-day period begins, the court relied on authority explaining that the clock starts when the person concerned became aware of the relevant “action”, understood as the administrative action (and, in terms of PAJA’s definition, the decision) that is challenged on review. The court referred to the Constitutional Court’s articulation that before an “action” (in the sense of the decision challenged) nothing happens for timing purposes, and that it is awareness of that administrative action that sets the statutory clock running.

The court further relied on authority clarifying that it is not correct to treat PAJA as automatically granting an aggrieved party 180 days; rather, section 7(1) requires institution of proceedings without unreasonable delay, and the “reasonable period” may be less than 180 days. The court treated this as reinforcing the strictness of the statutory scheme, rather than relaxing it.

The court also referred to Supreme Court of Appeal authority (quoted in the judgment) to the effect that after the 180-day period has elapsed, the delay is unreasonable per se and a court may only entertain the review if an extension is granted in terms of section 9 and the interests of justice dictate such extension. Absent such an extension, the court has no authority to entertain the review. The judgment further emphasised, consistent with that authority, that even within 180 days the question of reasonableness can still arise, and that launching within 180 days is not necessarily reasonable per se. However, the case before the court involved a delay far exceeding 180 days, making the section 9 mechanism central.

Applying these principles to the applicants’ own chronology, the court reasoned that the applicants had, at the latest, been informed of the impugned administrative position by 31 July 2019 when they were told they had been placed on a waiting list. The court went further and held that, on the applicants’ own evidence, they may have become aware even earlier, because the April 2019 attorney letter recorded that the Registrar had already informed them they could not be issued with permits (subject to the asserted requirement of starting at the local organisation). The court treated these admissions as establishing awareness of the administrative action sought to be reviewed at least by April 2019, alternatively by July 2019.

On that basis, the court found that the proceedings instituted on 18 May 2022 were clearly brought outside the 180-day period. The court recorded that this was undisputed, and it attached decisive significance to the absence of any condonation or extension application seeking a variation of the statutory time period. It held that section 7 required institution within 180 days unless the parties agreed to an extension or a court granted one under section 9, and that the applicants had not complied with those requirements.

The court concluded that the delay constituted an unreasonable delay and was fatal to the applicants’ case. Given that this point disposed of the matter, the court considered it unnecessary to address the other defences raised by the respondents.

5. Outcome and Relief

The application was dismissed.

The applicants were ordered to pay the costs of the first and third respondents, on the basis of joint and several liability, with the one paying and the others to be absolved.

Cases Cited

Camps Bay Ratepayers’ and Residents Association and Another v Harrison and Another 2011 (4) SA 42 (CC).

Optis Telecommunications (Pty) Ltd v Minister of Communications and Others (A571/2006) [2007] ZAGPHC 44 (30 May 2007).

Matoto v Free State Gambling and Liquor Authority and Others (987/2017) [2018] ZASCA 110 (12 September 2018).

Opposition to Urban Tolling Alliance and Others v The South African National Roads Agency Limited and Others [2013] ZASCA 148; 2013 (4) All SA 639 (SCA).

Legislation Cited

Promotion of Administrative Justice Act 3 of 2000 (PAJA), particularly sections 6(2)(g), 7(1), and 9(1).

Free State Transport Act 4 of 2005, particularly section 68.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, on the applicants’ own version, they became aware of the relevant administrative action sought to be reviewed by no later than 31 July 2019 (and possibly earlier, by 22 April 2019). Because the review application was only instituted on 18 May 2022, it was brought outside the 180-day period prescribed by section 7(1) of PAJA. In the absence of any application for an extension under section 9 of PAJA, the delay was unreasonable and dispositive, and the court dismissed the application with costs in favour of the first and third respondents.

LEGAL PRINCIPLES

PAJA requires that judicial review proceedings be instituted without unreasonable delay, and in any event not later than 180 days after the person concerned became aware (or reasonably ought to have become aware) of the administrative action and the reasons for it. The statutory scheme does not confer an automatic entitlement to delay up to 180 days; a shorter period may still be unreasonable depending on context, although this case turned on delay beyond 180 days.

For purposes of section 7(1) of PAJA, the 180-day period starts when the affected party becomes aware of the relevant “action”, understood as the administrative action/decision challenged in the review.

Once the 180-day period has expired, the delay is unreasonable per se, and a court may only entertain the review if an extension is granted under section 9 (whether by agreement or by court order on application). In the absence of such an extension, the court lacks authority to entertain the review, irrespective of the merits of the alleged unlawfulness.