Brief Summary

Administrative Law — Review of administrative action — Application for review of Ports Regulator's decision — Applicant sought to review the dismissal of its proposal for a container terminal at Richards Bay — Application served 11 months after the decision, exceeding the 180-day limit set by the Promotion of Administrative Justice Act 3 of 2000 — Court held that the delay was unreasonable per se and did not warrant an extension of time — Application dismissed with costs.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an application for judicial review in the KwaZulu-Natal High Court, Local Division, Durban. The applicant, Siyakhuphuka Investment Holdings (Pty) Ltd (“Siyakhuphuka”), sought to review and set aside decisions connected to its proposal to establish a container terminal at the Port of Richards Bay, together with further remedial relief. The respondents were the Ports Regulator of South Africa (first respondent), Transnet SOC Ltd (second respondent), the Minister of Public Enterprises (third respondent), and the Minister of Transport (fourth respondent).

The procedural history was central to the outcome. Siyakhuphuka submitted a proposal to Transnet in 2008 and later pursued a complaint to the Ports Regulator under the National Ports Act 12 of 2005. After hearings, the Ports Regulator issued a Record of Decision on 15 July 2015 dismissing the complaint. Siyakhuphuka then launched this review application on 9 June 2016 (served on 14 June 2016), and later filed an amended notice of motion in January 2019. The respondents raised, as a threshold issue, that the PAJA review was brought outside the 180-day period and that condonation should not be granted.

The general subject-matter of the dispute was whether Siyakhuphuka could, through review proceedings, compel reconsideration of the Ports Regulator’s dismissal of its complaint and challenge an alleged Transnet decision relating to container-terminal operations at Richards Bay, within the statutory framework governing port regulation and procurement.

2. Material Facts

Siyakhuphuka was a Ballito-based company that asserted experience in cargo terminal operations and logistics. It developed a proposal for a container handling facility at the Port of Richards Bay, which at the time primarily handled break-bulk, dry bulk, and liquid bulk cargo, and did not have a dedicated container terminal. Large-scale container volumes were handled at Durban.

On 25 January 2008, Siyakhuphuka submitted its proposal to the then CEO of Transnet, Maria Ramos, on behalf of a consortium to be formed. Transnet responded on 24 November 2008, explaining that it had conducted feasibility studies and was developing a national container strategy, and indicating that the choice of location for additional container capacity involved complex considerations. On 13 March 2009, Transnet indicated it would potentially meet with Siyakhuphuka once it finalised its plans, but no such discussion occurred. On 30 April 2009, Transnet communicated that independent research led it to conclude Richards Bay was geared as a bulk port and did not meet requirements for a container port, providing reasons for that conclusion.

Siyakhuphuka did not seek to review Transnet’s 2009 stance directly. Instead, it lodged a complaint with the Ports Regulator in terms of section 47 of the National Ports Act. Following hearings, on 15 July 2015 the Ports Regulator issued a Record of Decision dismissing the complaint. Siyakhuphuka then sought review of that decision under the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”).

It was undisputed, and expressly relied on by the court, that the PAJA review proceedings were instituted approximately 11 months after the Ports Regulator’s Record of Decision. That meant the application fell outside PAJA’s 180-day time limit.

In addition to the Ports Regulator review, Siyakhuphuka sought to review an alleged decision by Transnet to approve a container terminal or container handling facility at Richards Bay to be operated by Transnet Port Terminals (TPT). On the papers before the court, the relevant official (Mr Balfour, employed by the Ports Authority) denied that such approval had been granted, and stated that two applications by TPT to the Ports Authority in April 2016 were refused. The court treated the existence of the alleged approval decision as unproven on the evidence presented.

3. Legal Issues

The central legal questions were whether the court was empowered to entertain the PAJA review of the Ports Regulator’s Record of Decision despite the application being brought after the statutory 180-day period, and whether condonation/extension under section 9 of PAJA should be granted in the interests of justice.

These questions primarily concerned the application of law to largely common-cause chronology (the timing of the review and the statutory consequence of delay), together with a discretionary/value judgment as to whether the interests of justice justified extending the statutory time bar.

A further issue arose in relation to the second leg of the case: whether there was evidence of an identifiable administrative decision by Transnet approving a container terminal/handling facility at Richards Bay that was capable of being reviewed. This turned on the existence of a reviewable decision on the record, rather than the merits of container-terminal policy.

4. Court’s Reasoning

The court approached the matter by first setting out the statutory context. It described the role of the Ports Regulator (established under section 29 of the National Ports Act) and the functions of the Ports Authority within Transnet, including the statutory framework governing agreements authorising third parties to design, construct, finance, maintain, or operate port terminals or facilities. The judgment emphasised section 56 of the National Ports Act, including that agreements of the relevant kind may be concluded only through a process that is fair, equitable, transparent, competitive, and cost-effective as contemplated by section 56(5).

The decisive reasoning concerned PAJA time limits. The court applied section 7(1) of PAJA, which requires review proceedings to be instituted without unreasonable delay and not later than 180 days after the person was informed of the administrative action. Because the review was instituted about 11 months after the Record of Decision, the court treated the delay as falling beyond the legislated period.

Relying on the authority of Opposition to Urban Tolling Alliance v Sanral (as approved in Buffalo City Metropolitan Municipality v Asia Construction (Pty) Ltd), the court held that once the 180-day period has elapsed, the delay is unreasonable per se, and the court may only entertain the review if an extension is granted under section 9 of PAJA on the basis that the interests of justice require it. Absent such an extension, the court considered itself to have no authority to entertain the review, irrespective of the alleged unlawfulness of the underlying decision.

The court examined the applicant’s case for condonation and found it materially deficient on the key statutory standard. The applicant primarily explained the reasons for the delay, but the court held that this was insufficient because, after 180 days, the inquiry is not merely whether the delay is reasonable but whether the interests of justice require an extension. The court noted that there was nothing in the founding affidavit that even suggested, on proper grounds, that the interests of justice required an extension. Submissions from the bar that it would not be in the interests of justice to allow an irregular decision to stand were treated as inadequate in light of the statutory scheme and the cited case law indicating that delay “validates” the decision unless extended.

The court also considered the practical consequences and prospects of success. It noted that Siyakhuphuka’s proposal dated back to 2008 and that Transnet did not want a container terminal at Richards Bay. When asked what relief would be sought if the matter were remitted, counsel indicated that the Ports Regulator would effectively be asked to require Transnet to approve the proposal. The court regarded that prospect as remote, especially given the Ports Regulator’s position that Siyakhuphuka was not entitled to proceed by unsolicited bid, and that any such arrangement would have to comply with the competitive process required by section 56(5).

As to the further submission that the matter should proceed so that the court could direct the Minister to ensure incorporation of the National Ports Authority as contemplated by section 3 of the National Ports Act, the court was not persuaded. It recorded that the incorporation process was under way (albeit delayed) and reasoned that, in any event, Siyakhuphuka could not avoid the competitive procurement requirement by presenting an unsolicited proposal; it would have to participate in a compliant procurement process. On that basis, the court did not consider the incorporation issue sufficiently material to justify extending PAJA’s time bar in this case.

In relation to the second review (the alleged Transnet decision approving a terminal or facility operated by TPT), the court held that there was no evidence of such a decision beyond a newspaper article and emails, which did not establish an actual reviewable decision. On the evidence before it, the Ports Authority had refused TPT’s applications. The court therefore concluded that there was nothing to review on this leg of the case.

Given these conclusions, the court held it was unnecessary to address the remedial measures proposed by the applicant.

5. Outcome and Relief

The court dismissed the application. It refused to extend the 180-day period under section 9 of PAJA, with the consequence that it considered itself to have no authority to entertain the review of the Ports Regulator’s decision.

The court further held that the alleged Transnet approval decision was not established on the evidence and therefore there was no reviewable decision on that ground.

Costs were awarded against the applicant, including reserved costs and costs consequent upon the employment of two counsel.

Cases Cited

Opposition to Urban Tolling Alliance v Sanral (2013) 4 All SA 639 (SCA).

Buffalo City Metropolitan Municipality v Asia Construction (Pty) Ltd 2019 (4) SA 331 (CC).

Legislation Cited

National Ports Act 12 of 2005.

Promotion of Administrative Justice Act 3 of 2000.

Legal Succession to the South African Transport Services Act 9 of 1989.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the PAJA review of the Ports Regulator’s Record of Decision was instituted outside the 180-day limit in section 7(1) of PAJA, rendering the delay unreasonable per se, and that an extension under section 9 of PAJA could be granted only if the interests of justice required it. The court held that the applicant did not establish that the interests of justice warranted an extension, and therefore the court lacked authority to consider the merits of the review.

The court further held that the alleged Transnet decision approving a container terminal or container handling facility at Richards Bay to be operated by TPT was not supported by evidence establishing the existence of a reviewable decision, with the result that there was nothing to review on that ground.

The application was dismissed with costs, including reserved costs and the costs of two counsel.

LEGAL PRINCIPLES

The judgment applied the principle that, under section 7(1) of PAJA, review proceedings must be instituted without unreasonable delay and in any event within 180 days of the applicant being informed of the administrative action. Once that period has elapsed, the delay is treated as unreasonable as a matter of law, and the court may not entertain the review unless the period is extended under section 9 of PAJA.

The judgment applied the principle (drawn from the cited authorities) that a court’s power to hear a PAJA review after 180 days depends on an interests of justice extension; without such extension the court has no authority to determine the review, regardless of the alleged unlawfulness of the decision.

The judgment also reflected the principle that a review requires the existence of an identifiable decision capable of review on the evidence. Where the existence of the impugned decision is not established (and the evidence relied upon does not prove it), the court cannot grant review relief because there is nothing to review.

Within the statutory port framework, the judgment further proceeded on the basis that agreements authorising the development or operation of port terminals or facilities must comply with section 56(5) of the National Ports Act, requiring a process that is fair, equitable, transparent, competitive, and cost-effective, and that this statutory requirement undermined the applicant’s attempt to obtain relief premised on an unsolicited proposal.

Siyakhuphuka Investments Holdings (Pty) Ltd v Ports Regulator of South Africa and Others (5520/2016) [2022] ZAKZDHC 41 (16 September 2022)