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[2017] ZASCA 108
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Mostert NO v Registrar of Pension Funds and Others (986/2016) [2017] ZASCA 108; 2018 (2) SA 53 (SCA) (15 September 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 986/2016
In
the matter between:
ANTONY
LOUIS MOSTERT
NO
APPELLANT
and
THE
REGISTRAR OF PENSION FUNDS
FIRST RESPONDENT
THE
CHIEF MASTER OF THE HIGH COURT
SECOND RESPONDENT
THE
MINISTER OF
FINANCE
THIRD RESPONDENT
RAYMOND
S
HISLOP
FOURTH RESPONDENT
Neutral
citation:
Mostert
NO v The Registrar of Pension Funds
(986/2016)
ZASCA 108 (15 September 2017)
Coram:
Lewis and Saldulker JJA and Tsoka,
Gorven and Ploos van Amstel AJJA
Heard:
24 August 2017
Delivered:
15 September 2017
Summary
:
Promotion of Administrative Justice Act 3 of 2000
: 180 day period in
s 7(1):
whether court a quo could have raised the delay
mero
motu:
when the period commenced to run:
whether there was compliance with
s 7(1).
ORDER
On
appeal from:
Gauteng Local Division,
Johannesburg (Van der Linde J sitting as court of first instance).
The
appeal is dismissed with costs, including those occasioned by the
employment of two counsel.
JUDGMENT
Ploos
van Amstel AJA (Lewis and Saldulker JJA and Tsoka and Gorven AJJA
concurring):
[1] The
issue in this appeal is whether the court a quo erred in dismissing
an application for a review in terms of the Promotion
of
Administrative Justice Act 3 of 2000 (PAJA) on the basis that the
proceedings were not instituted within the period of 180 days
prescribed in s 7(1) of PAJA. Allied to this is the question whether
the court a quo could have raised the delay
mero motu
, or
whether the third respondent should have been allowed to contend in
argument that the court had no power to hear the review
for want of
compliance with s 7(1), when it had not done so in the papers.
[2] The
appellant is one of the joint liquidators of the Picbel
Groepvoorsorgfonds (the Fund), a pension fund under the provisions
of
the Pension Funds Act 24 of 1956 (the PFA). He sought an order in the
Gauteng Local Division, Johannesburg, declaring regulation
35(4) of
the regulations promulgated in terms of s 36 of the PFA to be ultra
vires and unenforceable. In the founding affidavit
the scope of the
attack on the regulation was broader than this. It was contended
there that the making of the regulation constituted
an administrative
action for the purposes of PAJA and that it was in breach of s 6(2)
thereof in that it was not authorised by
the empowering provision,
and was not rationally connected to the purpose of the empowering
provision. It was further contended
that it was otherwise
unconstitutional and in breach of s 1(
c
) of the Constitution.
[3] The
application was dismissed by Van der Linde J, who held that he had no
power to entertain the review as the application was
not instituted
within the period of 180 days specified in s 7(1)(
b
) of PAJA.
There was no application before him to extend the period in terms of
s 9. The appeal before us is with his leave.
[4] It
was contended before us, on a number of grounds, that the learned
judge erred, that his decision should be set aside and
that the
application should be referred back to the local division for a
decision on the merits.
[5] The
appellant launched the application in the court a quo and prosecuted
the appeal before us with the written authority of
his co-liquidator.
The Registrar of Pension Funds, who is the first respondent,
delivered a notice to the effect that his only
interest in the matter
relates to the merits and that he abides the decision of this court.
The second respondent is the Chief
Master of the High Court and the
fourth respondent a former representative of the members of the Fund.
Neither of them participated
in the proceedings in the court a quo,
nor in the appeal. The Minister of Finance, who is the third
respondent, opposed the appeal
and supported the order made by the
court a quo. For the sake of brevity I shall refer to him as ‘the
Minister’.
[6]
Regulation 35(4) was made by the Minister pursuant to his powers in
terms of section 36 of the PFA and published in the Government
Gazette on 22 April 2003. The parties approached the matter in the
court a quo on the basis that the making of the regulations
by the
Minister constituted administrative action as defined in PAJA, and
the court a quo adopted the same approach. Van der Linde
J referred
to the decision in
Minister of Health & another NO v New
Clicks South Africa (Pty) Ltd & others (Treatment Action Campaign
& another as
amici curiae)
2006 (2) SA 311
(CC) and said that
in view of the approach by the parties before him it would be
inappropriate to investigate whether in this case
also the making of
the subsidiary legislation constituted ‘administrative action’.
[7] The
appeal before us was argued on the same basis as the appellant was
constrained to accept that the making of reg 35(4) constituted
administrative action and was subject to PAJA. This was the case that
he sought to make in the court a quo and this was the basis
on which
the case was decided there.
[8] A
word of caution may not be out of place.
New
Clicks
is no authority for
the proposition that the making of regulations by a minister, in
general, is administrative action for purposes
of PAJA. It seems,
with respect, that the statements in some of the other judgments in
that case, to the effect that this is what
Chaskalson CJ held, were
based on a misinterpretation of what he said. The learned Chief
Justice said what is or is not administrative
action for the purposes
of PAJA is determined by the definition in section 1.
[1]
He analysed the regulations in question
[2]
in the light of the definition, concluded that legislative
administrative action has not been excluded from the definition of
administrative action, and said:
‘
It
follows that the making of the regulations
in
the present
case
by the Minister
on the recommendation of the Pricing Committee was “a decision
of an administrative nature”. The regulations
were made “under
an empowering provision”. They had a “direct, external
legal effect“ and they “adversely”
affected the
rights of pharmacists and persons in the pharmaceutical industry.
They accordingly constitute administrative action
within the meaning
of PAJA’
. (My emphasis).
[9] In a
separate judgment Ngcobo J expressed the view that PAJA applied to
the specific power to make regulations conferred by
s 22G (2)(a)-(c)
of the Medicines and Related Substances Act 101 of 1965 (Medicines
Act). He emphasised that he refrained from
deciding whether PAJA is
applicable to regulation-making in general. Two of the judges in that
matter expressed their agreement
with this approach while Sachs J
held that PAJA was not applicable, save in the specific respect of
fixing the precise amount chargeable
as a dispensing fee. Moseneke J
held that it was unnecessary to decide whether PAJA applied to
ministerial regulation-making, and
four judges concurred in his
judgment.
[10] In
dealing with the applicability of PAJA to regulation-making
Chaskalson CJ was therefore not speaking for the majority of
the
court, and, as I have tried to show, in any event confined himself in
this regard to the specific regulations that the court
was dealing
with. It seems, with respect, that in
City of Tshwane Metropolitan
Municipality v Cable City (Pty) Ltd
2010 (3) SA 589
(SCA) the
position was also stated too widely (para 10). The final word on
regulation-making and the applicability of PAJA to it
may therefore
not have been spoken. And as this matter shows, not all the
provisions of PAJA, and particularly s 7, are tailored
for the review
of a regulation.
[11] The
appellant’s main approach before us was that the court a quo
erred in allowing the s 7 point to be argued. It was
also submitted
that the time-bar in s 7(1) does not apply in the present matter and
that the court a quo in any event erred in
finding that the
proceedings had not been instituted within the 180 day period
mentioned in the section.
[12]
Section 7(1) provides that any proceedings for judicial review in
terms of s 6(1) must be instituted without unreasonable delay
and not
later than 180 days after the date 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.
[3]
[13] In
terms of s 9 of PAJA the period of 180 days may be extended for a
fixed period by agreement between the parties or, failing
such
agreement, by a court on application by the person or administrator
concerned. Such an application may be granted where the
interests of
justice so require.
[14] I
think it will be useful to have regard to the papers that were before
the judge in the court a quo as their content would
have been
relevant to the approach that he took. The following facts were set
out in the appellant’s founding affidavit.
[15] The
Fund was established on 21 October 1971 as a defined benefit fund, to
incorporate the various pension fund organisations
operated by its
then principal employer, Picardi Beleggings Beperk (Picardi). By 1
July 1994 the Fund had no active members and
only 62 pensioners.
Picardi’s business activities had by then been reduced to that
of an investment holding company under
the control of the Pickard
family. The Fund was closed to new members with effect from 31
December 2001 and all active members
were transferred out of the
Fund.
[16] The
business of the Fund was provisionally placed under curatorship on 17
October 2005 in terms of the
Financial Institutions (Protection of
Funds) Act 28 of 2001
. The appellant was one of the two curators
appointed by the court. The order was made final on 13 December 2005.
[17] On
18 April 2008 the Fund was dissolved voluntarily in terms of
s 28(1)
of the PFA and the appellant was appointed as one of the joint
liquidators.
[18] The
appellant said it became clear soon after his appointment as curator
that the records of the Fund were incomplete, inaccurate
and
inconsistent. This made it difficult to determine the Fund’s
historic membership and to trace its former members. Attempts
to do
so met with little success. The relevance of this lies in
s 15B
of
the PFA.
[19]
Section 15B(1)(
a
) requires the board of every fund that
commenced prior to 7 March 2002 to submit to the registrar a scheme
for the proposed apportionment
of any actuarial surplus in the fund.
Subsection (4) provides that the board shall determine who may
participate in the apportionment
of actuarial surplus and shall
include in such apportionment existing members and any former members
who left the fund in the period
from 1 January 1980 to the surplus
apportionment date. The proviso to subsection (4) provides that the
board may exclude from participation
former members, in respect of
whom the board satisfies the registrar that insufficient records are
available, to enable the additional
benefits that may be due to such
former members to be calculated, after the board has taken reasonable
steps to obtain or construct
such records in the manner set out in
subsection 4(
a
). Subsection (4)(
b
), which is also part
of the proviso, states that, rather than excluding former members
whose individual benefits cannot be determined,
the board may set
aside a portion of the actuarial surplus in a contingency reserve
account explicitly established to satisfy claims
of former members in
terms of subsection (5)(
e
).
[20]
Subsection 5(
e
) provides that the board shall determine how,
in the case of existing members and former members, the allocated
portion of actuarial
surplus shall be applied for their benefit,
provided that the board may allocate a portion of the actuarial
surplus to be used
for former members to a contingency reserve
account, which will be used to satisfy the claims of former members
who have been identified
in subsection (4)(
a
) but who cannot
be traced, or who substantiated their claim only after the end of the
period referred to in subsection (5)(
e
)(ii).
[21] The
surplus apportionment scheme submitted by the Fund, which was
approved by the registrar on 11 May 2012, reflected that
at the
surplus apportionment date the Fund’s membership, for purposes
of its surplus apportionment, consisted of 55 pensioners
and 12082
former members who exited from the Fund between 1 January 1980 and 30
June 2004. The appellant said the latter group
may, in terms of
s
15B(4)
, be eligible to receive a share in the surplus if their
minimum benefits can be calculated. The majority of them have,
however,
not been traced and it is highly unlikely that they will be
traced.
[22]
Regulation 35(4)
reads as follows: ‘Where a board is able to
determine the enhancements due in respect of a particular former
member in terms
of
s 15B(5)(
b
) or (
c
) of the Act, but
is unable to trace that former member in order to make payment, the
board shall put the corresponding enhancement
into a contingency
reserve account specific for the purpose. Notwithstanding anything in
the rules of the fund, moneys may not
be released from such
contingency reserve accounts except as a result of payment to such
former members or as a result of crediting
the Guardians Fund or some
other fund established by law to include such amounts.’
[23] The
appellant said a sum of approximately R41,8 million will have to be
dealt with in terms of reg 35(4) as unclaimed benefits
and will
ultimately have to be deposited into the Guardians Fund or some other
fund established by law, as there is little or no
prospect of these
benefits being paid to the former members contemplated in the
regulation. He contended that once the money has
been deposited into
the Guardians Fund it will effectively be lost to members of the
Fund. He says if the review application succeeds
and reg 35(4) is set
aside, the money will be used, in terms of a revised surplus
apportionment scheme, for top-ups to former members
who had received
less than the minimum benefits they were entitled to.
[24] In
those circumstances the appellant applied for an order declaring reg
35(4) irrational, ultra vires and unenforceable.
[25]
Against this background the question arose whether the review
proceedings were instituted within the 180 day period mentioned
in s
7(1). The point was first raised in the appellant’s heads of
argument in the court a quo. He said nothing about it in
his papers
nor did he apply for an extension of the period in terms of s 9. None
of the respondents took the point in the answering
affidavits either.
Counsel for the Minister informed us from the bar that this was an
oversight.
[26] The
submission was made in the appellant’s heads of argument that
the Minister had not raised the question of undue delay
in the
answering affidavit and that as such, to the extent necessary, he had
tacitly consented to the extension of the period of
180 days. It was
also submitted, with reference to
Camps Bay Ratepayers’ and
Residents’ Association & another v Harrison & another
2011 (4) SA 42
(CC) para 53, that the court was not precluded
from raising the issue of undue delay
mero motu
if it was
satisfied that the delay was inordinate and that the applicant had
been given an opportunity to explain the delay. The
submission was
made that there had been no delay and that, in any event, the
applicant had not been called upon or given an opportunity
to explain
any delay. It was also submitted that the 180 day period could only
commence when the enforcement of the regulation
affected the Fund
directly, and not on the date that it was published in the Government
Gazette.
[27] The
Minister contended in his heads of argument that the review
application was not properly before the court in the absence
of a
condonation application for the late institution of the review
proceedings. It was submitted, with reference to
Opposition to
Urban Tolling Alliance & others v The South African
National Roads Agency Ltd & others
[2013] 4 All SA 639
(SCA),
that if the application was out of time, and in the absence of
condonation, the court had no authority to deal with the
application. The court was therefore obliged to determine whether the
application was out of time. It was disputed that the Minister
had
agreed to an extension of the 180 day period, and pointed out that
there was no evidence to this effect. It was submitted that
the
period commenced to run when the regulation was promulgated,
alternatively at the very least on 1 July 2004, which was the
surplus
apportionment date of the Fund. It was further pointed out that the
appellant was appointed as a curator of the Fund on
17 October 2005
and as a liquidator on 18 April 2008, and that the Fund’s
surplus apportionment scheme was approved by the
registrar on 11 May
2012. It was submitted that the regulation at the latest affected the
Fund at that time. The application for
the review was launched on 26
February 2015.
[28] The
appellant’s heads of argument in the court a quo were dated
August 2015, the Minister’s heads of argument were
dated 4
February 2016 and the matter was argued on 14 June 2016.
[29] When
the matter came before the court a quo the appellant did not apply
for leave to deliver a further affidavit in order to
deal with the
alleged delay, or with the question when the 180 day period started
to run. Nor was there an application for an extension
of the period
in terms of s 9, or a request for an opportunity to make one. There
is no indication in the judgment that the appellant
objected to the
point being argued. The application was then fully argued, including
the issue whether the application had been
instituted within the
period of 180 days, with two counsel on each side.
[30] Van
der Linde J held that he had no power to entertain the review as the
application had not been instituted within the period
of 180 days. He
dismissed the application and, as had been agreed between the
parties, made no order as to costs.
[31] The
first issue raised by the appellant in this court is whether the
court a quo could
mero motu
have raised the question of
non-compliance with s 7(1), and whether it should have allowed the
Minister to argue the point, in
circumstances where he had not raised
it in his answering affidavit.
[32] As I
have mentioned, the point was first raised in the appellant’s
own heads of argument, dealt with in the Minister’s
heads of
argument and raised by counsel in argument. In those circumstances it
cannot be said that the learned judge raised the
point
mero motu
.
[33] In
any event, in
Camps Bay Ratepayers
Brand AJ said (para 53)
that there is authority for the proposition that at common law it is
open to a court to raise the issue
of inordinate delay in bringing a
review application
mero motu
. He said this is in accordance
with the established principle that courts have the power, as part of
their inherent jurisdiction
to regulate their own proceedings, to
refuse a review application if the aggrieved party was guilty of
unreasonable delay in initiating
the proceedings. He said he could
think of no reason in principle why this should not be the position
under the Constitution and
PAJA as well. He then added the following:
‘
Of
course, similarly to what was held in
Mamabolo
,
a court will only raise section 7(1) of PAJA of its own accord where
the delay is manifestly inordinate and even then, only when
the
applicant had been given an opportunity to explain the delay’.
This does
not literally mean that the court will not raise the point
mero
motu
unless the applicant had been given an opportunity to
explain the delay. In
Mamabolo
v Rustenburg Regional Local
Council
[2000] ZASCA 133
;
2001 (1) SA 135
(SCA) Mthiyane JA said (para 10) that
where a court wishes to raise the point, the least it should do is
give an applicant an opportunity
to supplement the affidavits in
order to deal specifically with the apparent delay.
[34] The
approach under PAJA to a delay is not the same as under the common
law. Under the common law a court may refuse to hear
a review if
there has been an unreasonable delay in instituting the proceedings.
What would constitute an unreasonable delay would
depend on the
circumstances. See in this regard
South African National Roads
Agency Ltd v Cape Town City
2017 (1) SA 468
(SCA) para 79.
Section 7(1) of PAJA provides that proceedings for judicial review
must be instituted without unreasonable delay
and not later than 180
days after the dates specified in subsections (a) and (b). In
Opposition to Urban Tolling Alliance
Brand JA said (para 26):
‘
At
common law application of the undue delay rule required a two stage
enquiry. First, whether there was an unreasonable delay and,
second,
if so, whether the delay should in all the circumstances be condoned…
Up to a point, I think, s 7(1) of PAJA requires
the same two stage
approach. The difference lies, as I see it, in the legislature’s
determination of a delay exceeding 180
days as
per
se
unreasonable.
Before the effluxion of 180 days, the first enquiry in applying s
7(1) is still whether the delay (if any) was unreasonable.
But after
the 180 day period the issue of unreasonableness is pre-determined by
the legislature; it is unreasonable
per
se
. It follows that
the court is only empowered to entertain the review application if
the interest of justice dictates an extension
in terms of s 9. Absent
such extension the court has no authority to entertain the review
application at all.’
[35] It
follows in my view that where it appears to the court on the papers
that there has been a manifest delay and that the proceedings
may not
have been instituted within the period of 180 days, it will be
entitled to raise the point itself as such a delay will
be
unreasonable per se and the court will not have the power to
entertain the review. As was said in
Camps Bay Ratepayers and
Residents’ Association
the applicant should then be given
an opportunity to deliver a further affidavit to explain the apparent
delay, or apply for an
extension in terms of s 9. It will, of course,
be entitled not to do so and to argue the matter on the papers as
they stand.
[36] This
brings me to the question whether the court a quo erred in allowing
the Minister to raise the point when he had not done
so in his
papers. Where it appears from the applicant’s papers that there
had been a delay of more than 180 days, and there
is no application
for an extension of the period, a respondent is in my view entitled
to raise the point in argument that the court
has no power to hear
the review. This is not raising a defence – it is a submission
that, on the applicant’s own papers,
the court has no power to
entertain the review. If the court is entitled to raise the point
mero motu
then there can be no reason why the respondent
should not be allowed to raise it. It was in any event dealt with by
both parties
in their heads of argument, and the appellant elected
not to seek leave to file a further affidavit.
[37] I do
not agree with the submission that the time bar in s 7(1) is the same
as a special defence of prescription.
Section 17(1)
of the
Prescription Act 68 of 1969
provides that a court shall not of its
own motion take notice of prescription. Sub-section (2) provides that
a party to litigation
who invokes prescription shall do so in the
relevant document filed of record. There is no similar provision in
PAJA. Where the
proceedings were not instituted within the periods
specified in
s 7(1)
a court has no power to hear the review.
[38] I do
not consider that in those circumstances the learned judge erred in
allowing argument on the
s 7
point. It does not follow that every
applicant for judicial review in terms of PAJA has to demonstrate in
the founding papers that
there has been no unreasonable delay. If
there is no indication in the papers that there may have been such a
delay the position
may well be that it is then up to the respondent
to raise the point in its answering affidavit. This does not arise in
this case
and we need not decide that point.
[39] It
was submitted on behalf of the appellant that, although it was
accepted that the making of the regulation constituted administrative
action, and that the provisions of PAJA apply to it, the time - bar
in
s 7(1)
does not apply to it. Counsel pointed out that reasons are
not normally available for the promulgation of regulations and
submitted
that the wording of
s 7(1)
is not appropriate to a review
of the making of a regulation under PAJA.
[40] I do
not consider that such an interpretation of
s 7
can be justified. On
the plain wording of
s 7(1)
the time-bar applies to ‘any
proceedings for judicial review’. It must be read with
s 5
,
which deals with reasons for administrative action.
Section 5(1)
provides that an affected person who has not been given reasons for
the administrative action may, within 90 days after the date
on which
that person became aware of the action, or might reasonably have been
expected to have become aware of the action, request
that the
administrator concerned furnish written reasons for the action.
Subsection (2) provides that the administrator concerned
must furnish
adequate reasons within 90 days after receiving the request.
Subsection (3) provides that if the administrator fails
to furnish
such reasons it must, subject to subsection (4) and in the absence of
proof to the contrary, be presumed in any proceedings
for judicial
review that the administrative action was taken without good reason.
Subsection (4) provides that the administrator
may depart from the
requirement to furnish adequate reasons if it is reasonable and
justifiable in the circumstances, and must
forthwith inform the
person making the request of such departure.
[41] It
follows that reasons for an administrative action will not always be
furnished. There is no obligation to furnish reasons
where they have
not been requested, save in those cases specified in a list published
by the Minister in terms of
s 5(6)(
a
), in respect of which the
administrator concerned must automatically furnish reasons without a
request therefor. And, as I have
pointed out, an administrator may
decline to furnish reasons if it is reasonable and justifiable to do
so. Moreover, the request
for and the furnishing of reasons are
appropriate when a decision is made that affects a particular person.
It is not as a rule
appropriate to ask for reasons for the
promulgation of regulations.
[42] If
it is accepted that PAJA applies to a review of the making of a
particular regulation, which is the position in the case
before us,
then I see no reason why the provisions of
s 7(1)
do not apply to
such a review.
[43] I
turn to consider when the period of 180 days commenced to run. In
Opposition to Urban Tolling Alliance
Brand JA said the
following (para 27):
‘
In
its terms
s 7(1)
envisages asking when “the person concerned”
was informed, or became aware, or might reasonably be expected to
have
become aware, of the administrative action. This admits of an
answer where the act affects and is challenged by an individual, but
does not readily admit of an answer where it affects the public at
large. In that situation it would be anomalous – if not
absurd
– if an administrative act were to be reviewable at the
instance of one member of the public, and not at the instance
of
another, depending upon the peculiar knowledge of each. It seems to
me that in those circumstances a court must take a broad
view of when
the public at large might reasonably be expected to have had
knowledge of the action, not dictated by the knowledge,
or lack of
it, of the particular member or members of the public who have chosen
to challenge the act.’
[44] I do
not think that the public at large, as referred to by Brand JA, was
necessarily intended to be a reference to the general
public. In this
case it seems to me to refer to those members of the public who are
involved with the pension fund industry, such
as administrators,
board members, principal officers, some employers, curators and
liquidators. Evidence of actual knowledge is
not required. What is
required is a broad view of when the public at large might reasonably
have been expected to have become aware
of the action. In
New
Clicks
Chaskalson CJ referred, in a slightly different context,
to the fact that the impugned regulations adversely affected the
rights
of pharmacists and persons in the pharmaceutical industry.
[45] Van
der Linde J approached the matter on the basis that an applicant for
review should place evidence before the court of the
date on which he
acquired actual knowledge of the administrative action and the
reasons for it. He also held that if the administrator
wants to rely
on an earlier date, namely one by which the applicant might
reasonably have been expected to have become aware of
the action and
the reasons, then the administrator should place the relevant
evidence before the court. He pointed out that the
application for
review was brought on 27 March 2015, well outside the 180 day period
after the date of the administrative action,
which was 22 April 2003.
[46] The
learned judge then referred to the respondent’s argument, with
reference to facts that were common cause on the papers,
that at best
for the appellant the latest date by which he might reasonably have
been expected to have become aware of the action
and the reasons for
it, was 11 May 2012. That was the date on which the Registrar
approved the Fund’s surplus apportionment
scheme. The learned
judge said that had it been necessary to determine what he referred
to as the ‘deemed knowledge date’,
he would have held
that 11 May 2012 was the date by which the appellant might reasonably
have been expected to have become aware
of the action and the reasons
for it.
[47] The
learned judge then concluded, as I understand the judgment, that in
those circumstances the appellant had not shown that
the proceedings
were instituted in compliance with
s 7(1)
and that the court a quo
had no power to entertain the review application.
[48] The
approach adopted by the learned judge was not in accordance with the
statement in
Opposition to Urban Tolling Alliance
to which I
have referred. The making of the regulation did not affect the
appellant as an individual. It affected the public at
large, in the
context to which I have referred. It was therefore not appropriate to
consider when the appellant personally became
aware of the
administrative action or when he might reasonably have been expected
to have become aware of it. As Brand JA pointed
out, it would be
anomalous if an administrative act were to be reviewable at the
instance of one member of the public, and not
at the instance of
another, depending upon the peculiar knowledge of each. The court a
quo should therefore have taken a broad
view of when the public at
large might reasonably have been expected to have become aware of the
action.
[49]
Counsel for the appellant pointed out that when Brand JA referred in
Opposition to Urban Tolling Alliance
to ‘a broad view of
when the public at large might reasonably be expected to have had
knowledge of the action’, he
omitted the words ‘and the
reasons’, which appear in
s 7(1)(
b
). He submitted that
this was an oversight and that the 180 day period could not start to
run until a date by which the public at
large might reasonably be
expected to have had knowledge of the action and the reasons for it.
[50] As I
pointed out earlier, however, reasons for administrative action are
not always furnished. In the present case reasons
were not requested
and none were furnished. The 180 day period therefore commenced to
run, when, taking a broad view, the public
at large might reasonably
have been expected to have become aware of the action.
[51]
Counsel for the appellant submitted that such date could not be
determined on the papers as none of the parties had dealt with
it. In
those circumstances, he submitted, it was not appropriate for the
court a quo to deal with the
s 7
point.
[52] It
seems to me that, in the circumstances of the case, the manifest
delay between the promulgation of the regulation and the
institution
of the review proceedings, which was some 12 years, and the challenge
in the respondent’s heads of argument to
the court’s
power to entertain the matter, required of the appellant to satisfy
the court that the proceedings were instituted
within the period of
180 days referred to in
s 7.
It made no attempt to do so, nor did it
apply for an extension of the period in terms of
s 9.
[53] The
regulation in question was promulgated on 22 April 2003. The
application for it to be reviewed was brought nearly 12 years
later.
In the absence of any evidence to the contrary I think it can safely
be accepted that this was well outside a period of
180 days after the
date on which the public at large (as described in para 44 above)
might reasonably have been expected to have
become aware of the
regulation. I come to this conclusion on the facts set out in the
founding papers in the court a quo, and not
on the basis of a failure
to discharge an onus.
[54] The
appeal is dismissed with costs, including those occasioned by the
employment of two counsel.
________________
JA
Ploos van Amstel
Acting
Judge of Appeal
APPEARANCES:
For
Appellants:
C D A Loxton SC (with him A Milovanovic)
Instructed
by:
Mostert Attorneys, Woodmead
Matsepes
Inc, Bloemfontein
For
Respondents:
N H Maenetje SC (with him S Khumalo)
Instructed
by:
Rooth & Wessels Inc, Pretoria
Phatshoane
Henney Attorneys, Bloemfontein
[1]
Para 132.
[2]
The
regulations were those promulgated on 30 April 2004 by the Minister
of Health, purportedly in terms of s 22G of the Medicines
and
Related Substances Act 101 of 1965 (the Medicines Act).
[3]
The
provisions of s 7(1) regarding internal remedies are not relevant
for current purposes.