Pricewaterhouse Coopers Inc and Others v Van Vollenhoven NO and Another (261/09) [2009] ZASCA 166; [2010] 2 All SA 256 (SCA) (1 December 2009)

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[2009] ZASCA 166
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Pricewaterhouse Coopers Inc and Others v Van Vollenhoven NO and Another (261/09) [2009] ZASCA 166; [2010] 2 All SA 256 (SCA) (1 December 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case number: 261/09
In the
matter between:
PRICEWATERHOUSE COOPERS INC First Appellant
HOEK & WIEHAHN
Second Appellant
WIEHAHN MEYERNEL Third Appellant
PRICEWATERHOUSE MEYERNEL Fourth Appellant
PRICE WATERHOUSE Fifth Appellant
and
G M VAN VOLLENHOVEN N.O. First Respondent
NATIONAL POTATO CO-OPERATIVE LTD
Second Respondent
Neutral citation:
Pricewaterhouse v Van Vollenhoven NO
(261/2009)
[2009] ZASCA 166
(1 December 2009)
Coram:
Streicher, Brand, Bosielo JJA and Leach and Griesel
AJJA
Heard:
24 November 2009
Delivered:
1 December 2009
Summary:
Administrative law –
Promotion of Administrative
Justice Act 3 of 2000
,
s 9(2)
– whether high court correctly
concluded that not in interests of justice that time within which
review application to have been
brought be extended.
ORDER
On appeal from:
North Gauteng High Court, Pretoria (Botha J).
Order
:
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Griesel AJA (Streicher, brand, bosielo jja
and lEACH AJA concurring):
[1] This is not the first time that these parties have come to this
court in the course of the present litigation.
1
As observed by Hurt AJA in the opening sentence of one of the
previous judgments,
2
‘(t)he parties are locked in litigation of marathon pro­portions’.
The present appeal arises from an unsuccessful application
for review
of the taxing master’s decision in respect of security for costs.
The taxing master was cited as the first respondent
herein, but
played no role in the proceedings. For the sake of convenience, I
refer to the parties by their description in the
main action, namely
as plaintiff (for the second respondent) and defendants (for the
appellants) respectively.
[2] The factual background appears fully from the two previous
judgments of this court. It is accordingly not necessary for me
to
repeat it for present purposes save to set out the following brief
chronology:
O
n 5 December 2006 the trial judge (Botha J in
the North Gauteng High Court in Pretoria) granted an order directing
the plaintiff
to provide security in an amount to be determined by
the taxing master. The appeal against that order was subsequently
dismissed
by this court on
29 November 2007. This formed the
subject matter of the 2007 judgment.
Meanwhile, the defendants had presented a pro forma bill of costs to
the
taxing master
to deter­mine the
amount of security to be furnished by the plaintiff. After argument,
on 15 December 2006, the
taxing master
determined security in an amount of R7,56 million. In so doing,
he dis­allowed an item in respect of forensic auditors’
fees
amounting to some R5,46 million. It is this latter decision
that forms the subject matter of the instant appeal.
On 3 June 2008 the trial court ruled that the trial was to
recommence on 2 February 2009.
On 6 June 2008 – ie almost 18 months after the decision of the
taxing master not to provide for forensic auditors’ fees as
part
of the security to be furnished by the plaintiff – the defendants
launched an application to review and set aside that
decision
.
On 1 December 2008 the court below dismissed the defendants’
appli­cation with costs. Hence this appeal, which comes before

us with leave of this court.
[3] Uniform
rule 47(2)
provides that ‘(i)f the amount of security
only is contested the registrar shall determine the amount to be
given and his decision
shall be final’. Notwithstanding this
provision, however, it is settled law that the registrar’s
decision, ‘being in the
nature of an adminis­trative act, was
always susceptible of review provided the necessary grounds for
review existed’.
3
[4] In the court below it was common cause that the decision of the
registrar constituted ‘administrative action’ for purposes
of the
Pro­motion of Adminis­trative Justice Act 3 of 2000 (‘PAJA’).
The principal issue between the parties was whether
the court should
entertain the application at all in view of the lapse of time. The
court declined to do so and dismissed the application
on the basis
that it had been brought outside the period of 180 days prescribed by
s 7(1) of PAJA.
4
In coming to its conclusion, the court also refused the defendants’
application to extend the 180-day-period in terms of s 9(2)
of
PAJA.
5
[5] On appeal, it was argued on behalf of the defendants that the
court below had erred,
inter alia
, in that it had not properly
considered the require­ment of the ‘interests of justice’
referred to in s 9(2) of PAJA.
[6] The concept ‘interests of justice’ has been considered by the
Constitutional Court on a number of occasions in the context
of
applications for condonation. Most recently, in
Van Wyk v Unitas
Hospital & another
,
6
the court expressed itself as follows:
‘
This
court has held that the standard for considering an application for
condonation is the interests of justice. Whether it is
in the
interests of justice to grant condonation depends on the facts and
circumstances of each case. Factors that are relevant
to this enquiry
include but are not limited to the nature of the relief sought, the
extent and cause of the delay, the effect of
the delay on the
administration of justice and other litigants, the reasonableness of
the explanation for the delay, the importance
of the issue to be
raised in the intended appeal and the prospects of success.’
7
[7] With regard to the explanation for the delay, the court further
held:
8
‘
An
applicant for condonation must give a full explanation for the delay.
In addition, the explanation must cover the entire period
of delay.
And, what is more, the explanation given must be reasonable.’
[8] The explanation proffered on behalf of the defendants in this
case, as contained in an affidavit by its attorney, was that
the
decision not to launch review proceedings at an earlier stage was a
deliberate one. The attorney explained that until December
2007 he
and his clients had believed that, in the event that the appeal to
this court should fail, the plaintiff would not be able
to furnish
security and that would be the end of the case. In these
circum­stances, so he claimed, ‘there was little point
in my
client incurring the cost of launching the present application to
require additional security’. He stated further:
‘
A
substantive application, such as the present, is a time consuming and
expensive process. I considered it reasonable and appropriate
not to
mulct the applicants in such costs unless and until security was
furnished.’
[9] This explanation clearly does not hold water. First, preparing
the founding affidavit, the body of which comprises a mere 15
pages
of the record, was the work of not more than a few hours at the most.
Second, the cost involved in preparing an application
for review
would have been trivial in the context of the present litigation and
the scale of costs involved. Third, the defendants
obviously deemed
it useful and expedient to obtain the taxing master’s determination
while the appeal was pending. I fail to
see why it would not have
been equally useful and expedient to have the determination reviewed
pending the appeal. Fourth, even
if the defendants did not want to
launch a substantive application for review while the appeal was
pending, a simple letter or
telephone call asking for an extension of
the 180-day-period or at least informing the plaintiff of the
defendants’ intention
to launch an application for review could
have been directed to the plaintiff. Instead, nothing at all was done
to take the registrar’s
decision on review while the appeal was
pending. Finally, even after the plaintiff’s appeal was dis­missed
by this court,
a further
180 days elapsed before the review
application was eventually launched. There is simply no explanation
for this further inexplicable
delay.
[10] Counsel for the defendants referred to a letter written on
behalf of the defendants to the plaintiff on 7 January 2008 in
which,
so it was claimed, the plaintiff was informed of the intention on the
part of the defendants to bring an application for
review of the
taxing master’s earlier decision. There are two answers to this
sub­mission: the first is that the letter is,
at best for the
defendants, ambiguous and does not pertinently alert the plaintiff to
the possibility of a review. Secondly, and
in any event, the letter
was written more than a year after the taxing master’s decision
which it is sought to review and long
after the 180-day-period
contemplated by s 7 of PAJA had elapsed.
[11] The court below also made reference to the fact that, while the
appeal was pending, the plaintiff – after much effort –
had
finally managed to obtain outside finance and that it had concluded
an agree­ment with an Australian company to put up
the security
originally ordered by the court. In the circumstances, so the court
held, the plaintiff would be prejudiced if the
original security were
now to be substantially increased. Much was made by counsel for the
defendants of this finding in an attempt
to persuade us that the
court below had misinterpreted the terms of the funding agreement.
Suffice it to say that, in my view,
there is no merit in the point,
nor can it be found that the court below erred in finding that the
respondent would be prejudiced
if the registrar’s decision were now
to be overturned.
[12] In my view, the explanation furnished by the defendants for its
delay does not comply with any of the three requirements laid
down in
Van Wyk v Unitas Hospital
.
9
In the result, the defendants have failed to prove that it would be
in the interests of justice to extend the period of 180 days

contem­plated by s 7 of PAJA. It follows that there are no
grounds for interfering with the order of the court below.
[13] In the circumstances, the appeal is dismissed with costs,
including the costs of two counsel.
b m griesel
Acting Judge of Appeal
APPEARANCES:
FOR APPELLANT: W H G van der Linde SC
H C Bothma
Instructed by:
Deneys Reitz
Sandton
Matsepes Inc
Bloemfontein
FOR RESPONDENTS: M C Maritz SC
N C Maritz
Instructed by:
G M Van Vollenhoven, Palace of Justice
Pretoria
Messrs Kirkcaldy Pereira
Pretoria
Lovius Block
Bloemfontein
1
See
Price Waterhouse Coopers Inc v National Potato Co-operative
Ltd
2004 (6) SA 66
(SCA);
Aartappel
Koöperasie Bpk v
Price­waterhousecoopers
[2007] SCA 166 (‘the 2007 judgment’).
2
The 2007 judgment, para 1.
3
Trakman NO v Livshitz & others
1995 (1) SA 282
(A) at
289G and the cases referred to therein.
4
The relevant part of s 7(1) 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 – . . . (b) . . . 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.’
5
Section 9(2) provides that the court may extend the period of 180
days ‘where the interests of justice so require’.
6
[2007] ZACC 24
;
2008 (2) SA 472
(CC).
7
Para 20 (footnotes omitted).
8
Para 22.
9
Para 7 above.