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[2020] ZASCA 91
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Compcare Wellness Medical Scheme v Registrar of Medical Schemes and Others (267/2020) [2020] ZASCA 91; 2021 (1) SA 15 (SCA); [2020] HIPR 169 (SCA) (17 August 2020)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 267/2020
In
the matter between:
COMPCARE
WELLNESS MEDICAL
SCHEME                                                    Appellant
and
REGISTRAR
OF MEDICAL
SCHEMES                                                   First

Respondent
COUNCIL
FOR MEDICAL
SCHEMES                                                Second

Respondent
CHAIRPERSON
OF THE APPEAL BOARD OF
THE
COUNCIL FOR MEDICAL
SCHEMES                                            Third

Respondent
UNIVERSAL
HEALTHCARE ADMINISTRATORS
(PTY)
LTD                                                                                             Fourth

Respondent
Neutral
citation:
Compcare Wellness Medical Scheme v Registrar of
Medical Schemes and Others
(267/2020)
[2020] ZASCA 91
(17 August
2020)
Coram:
Cachalia, Schippers and Plasket JJA and Ledwaba and Matojane AJJA
Heard:
No hearing. Decided without a hearing in terms of
s 19
(a)
of
the
Superior Courts Act 10 of 2013
.
Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on
the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 09h45 on 17 August 2020.
Summary:
Section 38
(d)
of
the Constitution – organ of state acting in the public interest
– reviewing its own decision –
Promotion of
Administrative Justice Act 3 of 2000
applies –
Medical Schemes
Act 131 of 1998
– Registrar of Council of Medical Schemes has
no discretion to allow a medical scheme to change its name to a name
that is
likely to mislead the public – the Registrar has no
power to impose allow a name-change subject to conditions.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Fabricius J as court of first instance):
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Plasket
JA (Cachalia and Schippers JJA, Ledwaba and Matojane AJJA concurring)
[1]
The Medical Schemes Act 131 of 1998 (the Act) was enacted, inter
alia, ‘to make provision for the registration and control
of
certain activities of medical schemes’.
[1]
Section 3 of the Act created the Council for Medical Schemes (the
Council). Its functions include protecting the interests of
beneficiaries of medical schemes.
[2]
In terms of s 18(1), the Minister is required to appoint a Registrar
of Medical Schemes (the Registrar). This officer is the Council’s

executive officer and has the function of managing the Council’s
affairs.
[3]
To this end, the Act
vests in the Registrar a wide range of powers, one of which is
relevant to this appeal. It is the power, in
terms of s 23, to
register or refuse to register a medical scheme’s name or a
change to a medical scheme’s name. This
section provides:
‘
(1)
The Registrar shall not register a medical scheme under a name, nor
change the name of a medical scheme to a name-
(a)
which has already been registered;
(b) which so closely
resembles the name of a medical scheme already registered that the
one is likely to be mistaken for the other;
or
(c)
which is likely to mislead the public.
(2) A medical scheme
shall not use or refer to itself by a name other than the name under
which it is registered or a literal translation
or an abbreviation
thereof which has been approved by the Registrar.
(3) A medical scheme may,
with the consent of the Registrar, in conjunction with its registered
name, use, or refer to itself by,
the name of a medical scheme with
which it has amalgamated or which it has absorbed or, in the case of
a change of name, the name
by which it was previously known.
(4) A
medical scheme shall not change its name without the prior written
consent of the Registrar.’
[2]
The appellant, Compcare Wellness Medical Scheme (Compcare), applied
to the Registrar, the first respondent, for approval of
a change of
name. The Registrar refused approval because he was of the view that
the new name was likely to mislead the public.
His decision was
upheld on appeal by an appeal committee of the Council.
[4]
Compcare then appealed to the Appeal Board established by s 50 of the
Act.
[5]
The Appeal Board upheld
Compcare’s appeal and ordered the Registrar to give effect to
the name-change but attached conditions
that Compcare was required to
comply with.
[3]
The Registrar and the Council brought an application in the Gauteng
Division of the High Court, Pretoria for the review and
setting aside
of the Appeal Board’s decision. Fabricius J granted that
relief. He then granted Compcare leave to appeal to
this court.
Background
[4]
Compcare is a medical scheme that is registered in terms of the Act.
When it submitted a number of rule changes and a name-change

application, to the Registrar for his approval, the name-change
application was somehow overlooked. It was dealt with later on
its
own. The proposed change of name was motivated in detailed written
submissions addressed to the Registrar.
[5]
Compcare wished to change its name to Universal Medical Scheme. As
its administrator was Universal Healthcare Administrators
(Pty) Ltd,
a part of the Universal group of companies, Compcare appeared to be
alive to the fact that the proposed name had the
potential, at the
very least, to mislead the public. Indeed, its motivation for the
change was to take advantage of the Universal
brand, which it
considered to be much stronger and attractive than its own Compcare
brand. Because it foresaw that the public may
be misled by the new
name, it undertook in its submissions to take a number of steps to
attempt to mitigate that possibility.
[6]
It informed the Registrar that if approval was granted, ‘the
Universal group of companies . . . will grant a royalty free
license
to the Scheme to use the “Universal” name and brand,
whereafter the Scheme will operate under the name “Universal

Medical Scheme” and will use the Universal logo’. It then
gave the first of its undertakings, namely that ‘all
Scheme
communication channels, platforms and materials will be branded as
Universal Medical Scheme – clearly indicating that
it is the
Scheme as an entity that is being dealt with’ and that the
‘Scheme’s administrators will always be
identified as
“Universal Administrators” or “Universal Healthcare
Administrators”’.
[7]
Later in the submissions, Compcare gave the following undertakings:
‘
6.12
The independence and autonomy of the Scheme and its Board are of
paramount importance. Thus under the shared “Universal”

brand attributes, the Scheme and its administrator will have separate
and distinct governance structures, which will include separate
legal
advisors, separate auditors and a clear communications policy to
ensure that the respective roles and responsibilities of
the Scheme
and its administrator (and its managed health care organization) are
clearly delineated and that there is no  confusion
created in
the minds of members or the general public that Universal
Administrators carries on the business of a medical scheme,
and that
members and the general public are not otherwise misled in any
manner.
6.13 Independence will be
ensured through the brand architecture and the Scheme will be branded
as an independent entity. A brand
is a name, symbol, design or mark
that enhances the value of a product beyond its functional purposes.
It is a complex entity as
consumers do not just buy a product, but
also the image and experience associated with a product. Brand
architecture is the way
in which a set of brands are managed,
differentiated and applied in the market. . .
6.14 All Scheme
communication channels, platforms and materials will be branded with
the Universal Medical Scheme logo – clearly
indicating that it
is the Scheme as an entity that is being dealt with. “Universal
Medical Scheme” will always be used
when referring to the
Scheme. The Scheme will also retain its own communications channels,
including but not limited to brochures,
a website, client service
line and letterhead. The same principles will apply in respect of
communications of Universal Administrators.
6.15
The Board will continue to use every reasonable step available to
educate its members and to reinforce previous training in
respect of
the demarcation between the Scheme and its administrators.
’
[8]
It then said that, in its view, ‘there is no ascertainable harm
or prejudice to members or to the general public if a
medical scheme
and its administrators share a common brand’. It thought that
the contrary was true – that ‘to
the extent that a
shared, trusted brand helps to increase the growth and sustainability
of small and medium open medical schemes,
this promotes price and
quality competition to the benefit of members and the general
public’.
[9]
It is apparent from the Appeal Board’s reasons that it was of
the view that the name that Compcare wanted to take was
likely to
mislead the public. With reference to the submissions, the Appeal
Board said that Compcare had ‘tendered certain
measures it
would implement upon the application being granted to ensure that the
public would not be misled by the proposed name’.
Then, again
in relation to the undertakings, the Appeal Board, in explaining why
it intended to uphold the appeal, said:
‘
The
measures proposed by the appellant to ensure that the public is not
likely to be misled are reasonable, and if diligently implemented
as
undertaken, are likely to go a long way towards averting the harm
sought to be prevented by section 23(1)(c). The proposed measures

weighed heavily with us in favour of the appellant. It would
therefore be appropriate, in the Order we make, to ensure that the

appellant lives up to its undertaking to implement them. This is
because we believe that, absent these measures, it is, as the
Act
says, “
likely
”
that the public will be misled; that much is recognized by the
appellant itself. Surely, it must have been exactly as a
result of
that recognition that the appellant tendered the above measures in
support of its application. Once the name change is
approved, as we
believe it should be, on the strength of those measures, the
appellant cannot thereafter abandon them or fail to
implement them as
diligently as it has undertaken to.’
[10]
The Appeal Board concluded its reasons as follows:
‘
We
are satisfied that the measures tendered by the appellant to ensure
that the public would not be misled, are reasonable. We are
therefore
of the view that the decisions of the Registrar and the Appeal
Committee should be set aside. The following Order is
therefore made:
11.1 The appeal is
upheld.
11.2 The decisions of the
respondent and the Appeal Committee of the Council for Medical
Schemes are set aside.
11.3 The Registrar of the
Council for Medical Schemes is hereby directed to approve the
applicant’s change of name from “
CompCare Wellness
Medical Scheme
” to “
Universal Medical Scheme
”
in terms of
section 23
of the
Medical Schemes Act, 131 of 1998
.
11.4 The approval for the
change of the name is subject to the following conditions:
11.4.1
The appellant shall fully and diligently at all times implement the
measures set out in paragraphs 7.1, 7.2, 7.3 and 7.4
above.
11.4.2
The Registrar’s instrument of approval shall state that the
approval is subject to the appellant fully and diligently
at all
times implementing the measures set out in paragraphs 7.1, 7.2, 7.3
and 7.4 above, which measures shall also be stipulated
in the
instrument of approval.’
[11]
In the court below, Fabricius J held that the Appeal Board had
misdirected itself by upholding the appeal and ordering the
Registrar
to approve the name-change subject to conditions. He thus granted the
application brought by the Registrar and the Council
to review and
set aside the Appeal Board’s decision. He also dismissed a
counter-application for the dismissal of the review
application that
Compcare brought.
The
issues
[12]
Two issues arise for decision. The first is jurisdictional. It is
whether the Appeal Board’s decision is reviewable at
the
instance of the Registrar and the Council in terms of the Promotion
of Administrative Justice Act 3 of 2000 (the PAJA), or
in terms of
the principle of legality that is part of the founding Constitutional
value of the rule of law. The second issue is
substantive. It is
whether the ground of review relied upon by the Registrar and the
Council has been established, as the court
below found.
Source
of jurisdiction: the PAJA or the principle of legality
[13]
The two major ‘pathways’ to the review of
administrative-type actions are s 6 of the PAJA and the principle of

legality. The PAJA applies generally to the review of administrative
action as that term is defined in it. The principle of legality

applies when an exercise of public power does not fall within the
PAJA’s definition of administrative action.
[6]
It is necessary to determine which of these pathways to review
applies because that decision determines the basis for the court’s

review jurisdiction. That decision should not, generally speaking, be
avoided.
[7]
[14]
In
State
Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
[8]
the Constitutional Court held that when an organ of state, acting in
its own interest, applies to set aside its own administrative
action,
the PAJA does not apply. The court’s reasoning, which has not
been without trenchant criticism,
[9]
was that s 33 of the Constitution – the fundamental right to
just administrative action – that is given effect to by
the
PAJA, is for the exclusive benefit of private persons. Organs of
state are not bearers of the fundamental right to just administrative

action. When they wish to review their own decisions, they
consequently must do so in terms of the principle of legality.
[15]
In this case, the Registrar and the Council claimed standing to
review the Appeal Board’s decision on the basis of the
public
interest. Section 38 of the Constitution, which concerns who has
standing to enforce fundamental rights, provides:
‘
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are-
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another person who cannot act in their own
name;
(c)
anyone acting as a member of, or in the interest of, a group or class
of persons;
(d)
anyone acting in the public interest; and
(e) an
association acting in the interest of its members.’
[16]
In the founding affidavit, the Registrar stated that he and the
Council ‘regulate medical schemes in the public interest’

and that they had brought the application ‘in the public
interest, as envisaged by section 38(d) of the Constitution’.

He then stated:
’
16.1
As I indicate below, the decision of the Appeal Board directs the
Registrar to perform conduct that is
ultra
vires
. I respectfully submit that it is
in the public interest that a decision requiring the Registrar to act
unlawfully should be set
aside on review.
16.2
Furthermore, the Registrar is acting in the interests of the public
in light of the provisions of section 23(1)(c) of the Act
which
contemplates the possibility of a proposed name change causing harm
to the public.’
[17]
Compcare contented itself with a bare denial that the Registrar and
the Council acted in the public interest or that the name-change

would cause prejudice to the public. Fabricius J appears to have
accepted that the Registrar and the Council had standing in terms
of
s 38
(d)
of the Constitution. In keeping with the generous approach to
representative standing that the Constitutional Court in particular

has mandated,
[10]
and on the
basis of the Registrar’s averments that I have quoted, I find
that they indeed have standing to act in the public
interest.
[18]
In the
State
Information Technology Agency
case,
the Constitutional Court was only concerned with an organ of state
acting in its own interest and reviewing its own decision.
It was not
concerned with ‘a scenario where an organ of state that is in a
position akin to that of a private person (natural
or juristic) may
be seeking to review the decision of another organ of state’ or
with ‘a situation where — in
seeking a review of its own
decision — an organ of state is purporting to act in the public
interest in terms of s 38 of
the Constitution’.
[11]
[19]
The second of these issues was dealt with in
Hunter
v Financial Sector Conduct Authority and Others
.
[12]
A natural person had claimed standing in terms of s 38
(d)
of the Constitution to challenge an exercise of power that the court
found was administrative action. Khampepe J held, as to the

consequence of acting in the public interest:
[13]
‘
As
a general rule, PAJA must therefore apply unless the review is
brought by a public functionary in respect of its own unlawful

decision. In this case, it is Ms Hunter (and not the FSCA itself) who
seeks relief against the registrar's alleged unlawful decisions.
Ms
Hunter is not acting on behalf of the FSCA. She is acting in the
public interest. Anybody who constitutes “the public”
on
whose behalf she has assumed the responsibility to act is entitled to
challenge the fairness of the administrative action that
has
aggrieved her in terms of PAJA. She, having stepped straight into
their shoes, enjoys all the rights and obligations they each
would
ordinarily have shouldered had they chosen to be litigants. PAJA must
therefore apply to Ms Hunter's claim.’
[20]
In this case, the decision of the Appeal Board is an administrative
action as defined in the PAJA: it is a decision of an administrative

nature, taken in the exercise of a public power by an organ of state
in terms of empowering legislation that has the potential
to
adversely affects rights, has a direct, external legal effect and is
not excluded by any of sub-sections
(aa)
to
(ii)
of s 1 of the PAJA.
[14]
When
the Registrar and the Council brought their application in the public
interest, they did so in order to safeguard the fundamental
right of
each member of the public to just administrative action. That being
so, they stepped into the shoes of the members of
the public on whose
behalf they litigated and, in this sense were, despite being organs
of state, bearers of fundamental rights
to just administrative
action. The PAJA consequently applies to the review of the Appeal
Board’s decision. It ought to have
been applied by the court
below in relation to the argument that the Registrar and the Council
had delayed unduly in launching
their review – an issue that is
not persisted with by Compcare – and in relation to the
substance of the review. While
a review in terms of the principle of
legality produced the same result in this case, that may not always
be so. For instance,
the common law that applies to legality reviews
differs from the PAJA in respect of the exhaustion of internal
remedies and there
are some differences between the common law delay
rule and the PAJA’s delay rule.
The
substantive issue: the review of the Appeal Board’s decision
[21]
Baxter made the point that administrative law ‘rests upon the
principle of legality’ with the consequence that
where a
person’s interests have been prejudiced by ‘administrative
action or inaction not authorized by law’
he or she may be
awarded a ‘suitable remedy’.
[15]
He went on to explain the workings of this first principle:
[16]
‘
Public
authorities possess only so much power as is lawfully authorized, and
every administrative act must be justified by reference
to some
lawful authority for that act. Moreover, on account of the
institutional nature of law the public authority
itself
exists as an office or body created by law. A valid exercise of
administrative power requires both a
lawful
authorization
for the act concerned and
the exercise of that power by the proper or
lawful
authority
.’
[22]
Woolf, Jowell, Donnelly and Hare
[17]
say of the first of a list of legal standards that public bodies are
required to meet in order for their acts to be valid:
‘
Public bodies must
have legal authority for their actions. This may be derived from
statute, the common law or (in the case of some
central government
functions) a prerogative power. Public bodies must act within the
scope of that legal authority.’
[23]
As the source of the principle of legality is the rule of law, which
is a principle of the common law, was an implicit value
of the
interim Constitution and is an express value of the final
Constitution, the same position that Baxter and Woolf, Jowell,

Donnelly and Hare outlined continues to apply now. In
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[18]
Chaskalson P, Goldstone and O’Regan JJ held that it was
‘central to the conception of our constitutional order that
the
legislature and executive in every sphere are constrained by the
principle that they may exercise no power and perform no function

beyond that conferred upon them by law’.
[19]
[24]
Section 33(1) of the Constitution, a provision which gives effect to
the founding value of the rule of law, guarantees for
everyone the
rights to lawful, reasonable and procedurally fair administrative
action. Section 6(2)
(a)
(i)
of the PAJA is one of a number of provisions that give effect to the
right to lawful administrative action. It provides that
a court may
review and set aside an administrative action if it was taken by an
administrator who ‘was not authorized to
do so by the
empowering provision’. This is the principal ground of review
that is implicated in this case.
[25]
Before turning to whether the Appeal Board exceeded its lawful
authority, it is necessary to deal briefly with one factual
issue:
whether the proposed new name for Compcare was likely to mislead the
public. In my view, the answer is in the affirmative.
Compcare itself
appeared to accept that this was so by giving mitigatory
undertakings, and the Appeal Board accepted that too:
its order is
based on the premise that the new name was likely to mislead the
public, and so required conditions to be added to
minimize that
consequence.
[26]
Both Compcare and the Appeal Board were correct. The very basis for
the name-change, which was explicitly stated in Compcare’s

submissions, was to enable Compcare to ride on the coat tails of the
Universal group of companies and derive benefit from the Universal

brand. Compcare, in other words, wanted to create in the minds of the
public the impression that it was part of the Universal Group.
All
that a string of disclaimers was likely to achieve was greater
confusion. In the result, the Registrar’s finding that
the
proposed new name was likely to mislead the public was rational and
cannot be faulted. The same may be said of the Appeal Board’s

finding to the same effect.
[27]
Two issues arise in relation to the empowerment of the Registrar to
accept or reject a change of name in terms of s 23(1)
(c)
of the Act, and by extension, of the Appeal Board to order him to do
so. They are whether the Registrar has a discretion to allow
a
name-change even though it is likely to mislead the public and,
related to this, whether he has the power to approve a name-change

subject to conditions. If the Act does not authorize one or both, the
Appeal Board, in making its order, exceeded its powers –
it
would have taken administrative action that it was not authorized to
take.
[28]
Section 23(4) provides that a medical scheme may not change its name
without the consent of the Registrar. Section 23(1) then
limits the
power of the Registrar by stipulating what types of names he may not
approve – those that have already been taken,
those that
resemble so closely names that have already been registered that
confusion between them is likely and those that are
likely to mislead
the public. While in respect of the first category, the Registrar’s
decision will no doubt be determined
with reference to his records,
decisions in respect of the second and third categories inevitably
require a measure of judgment
on his part. Once he has made a
decision that a name proposed by a medical scheme is one contemplated
by either a 23(1)
(a)
,
(b)
or
(c)
,
however, the Act is clear: he may not register that name or allow a
change to that name.
[29]
There is no room within the structure of s 23(1) for a discretion.
There is no indication in the section that could lead one
to conclude
that a discretionary power to deviate from its express terms could
have been intended, or that it is necessary to attain
its purposes,
or is incidental to the express provisions. To the contrary, the
recognition of an implied discretion would create
a conflict within
the section: the Registrar would be expressly prohibited from
registering names that he decided were prohibited
by s 23(1), but
then at the same time allowed to exercise a discretion to do so
nonetheless. One only has to consider the case
of an application to
register a name that is already registered to highlight the absurd
results that such an interpretation of
the section could spawn.
[30]
The second issue that arises for decision is whether, despite a name
being one, for instance, that is likely to mislead the
public,
conditions may be imposed to reduce the risk of that eventuating.
Compcare’s argument is that the Registrar may impose
conditions
in these circumstances because the imposition of conditions is not
precluded by s 23(1). This is not the correct approach.
In
Burghersdorp
Municipality v Coney
[20]
it was argued that a municipality had power to do anything it was not
prohibited from doing. Davis J was of the view that this
submission
was ‘startling’, holding that it was in conflict with the
‘current of authority’.
[21]
[31]
In that conclusion, Davis J was undoubtedly correct. In
Principal
Immigration Officer v Medh
,
[22]
this court was required to decide on the validity of a decision of a
minister to exempt the respondent from the status of a prohibited

person subject to conditions. De Villiers JA approached the issue
thus:
[23]
‘
In
dealing with the power of exemption the section is silent as to
conditions to be imposed. But an exemption conditional upon
maintaining his domicile can hardly be called an exemption. A person
is either exempted from the class of prohibited immigrants
or he is
not. There is no intermediate position. The Minister is given the
power to take a prohibited immigrant out of the class
of prohibited
immigrant or not, as he pleases. But if he decides in favour of the
former course, he must take that person out of
the class entirely and
once and for all. It might be, however, said that power to grant
exemption includes a power to attach whatever
conditions the Minister
might consider reasonable. But the argument begs the question. The
powers of the Minister must be found
within the section creating
them, and according to that section the Minister only has power
either to exempt or not: there is no
third course. In the absence of
specific provisions to that effect, such power cannot be construed as
embracing the wider power
of attaching conditions. If it had been the
intention of the Legislature to confer upon the Minister the
additional power of attaching
conditions to the exemption, it should
have said so, as it has done in the case of temporary permits as well
as in sec. 31(2),
Act 38 of 1927.’
[32]
The starting point of the enquiry in this case is s 23(1). For a
power to impose conditions to exist, it must be created by
the Act.
Section 23(1) does not expressly empower the Registrar to impose
conditions, assuming for purposes of the argument that
he has a
discretion to register a name that offends s 23(1). I can see no
possible basis for somehow implying it in the section.
In much the
same way as there was no ‘third course’ in
Principal
Immigration Officer v Medh
, so too in
this case: the Registrar’s choices are either to approve a name
or to refuse to approve it. There is much to be
said too for the
argument that if the legislature had intended the Registrar to have
the power to impose conditions, it would have
said so, as it did in s
24(1) which deals with the registration of medical schemes. This
section provides that the Registrar ‘shall,
if he or she is
satisfied that a person who carries on the business of a medical
scheme which has lodged an application in terms
of section 22,
complies or will be able to comply with the provisions of this Act,
register the medical scheme, with the concurrence
of the Council, and
impose such terms and conditions as he or she deems necessary’.
[33]
I conclude therefore that the Appeal Board’s decision cannot
stand and that the court below was correct to set it aside
because:
(a) the Registrar had no lawful power to approve Compcare’s
proposed change of name once he had concluded that it
was a name that
was likely to mislead the public; (b) he also had no lawful power to
approve such a change of name subject to conditions;
and (c), as a
result, the Appeal Board exceeded its powers by purporting to order
the Registrar to approve a name that was likely
to mislead the
public, subject to conditions.
The
order
[34]
I make the following order:
The
appeal is dismissed with costs, including the costs of two counsel.
________________________
C Plasket
Judge of Appeal
APPEARANCES
For
the appellant: M Du Plessis SC and S Pudifin-Jones
Instructed
by:
ENSafrica,
Johannesburg
Webbers,
Bloemfontein
For
the first and second respondents: A Cockrell SC and A J Lapan
Instructed
by:
Lawtons
Inc, Johannesburg
Symington
& De Kok, Bloemfontein
[1]
Long
title.
[2]
Section
7
(a)
.
[3]
Section
18(2).
[4]
Section
49 of the Act provides:
‘
(1)
Any person who is aggrieved by any decision of the Registrar under a
power conferred or a duty imposed upon him or her by
or under this
Act, excluding a decision that has been made with the concurrence of
the Council, may within 30 days after the
date on which such
decision was given, appeal against such decision to the Council and
the Council may make such order on the
appeal as it may deem just.
(2) The operation of any
decision which is the subject of an appeal under subsection (1)
shall be suspended pending the decision
of the Council on such
appeal.
(3) The Registrar or any
other person who lodges an appeal in terms of subsection (1) may in
person or through a representative
appear before the Council and
tender evidence or submit any argument or explanation to the Council
in support of the decision
which is the subject of the appeal.’
[5]
In
terms of s 50(1), the Appeal Board is made up of three persons
appointed by the Minister. Section 50(3) provides that ‘[a]ny

person aggrieved by a decision of the Registrar acting with the
concurrence of the Council or by a decision of the Council under
a
power conferred or a duty imposed upon it by or under this Act, may
within a period of 60 days after the date on which such
decision was
given and upon payment to the Registrar of the prescribed fee,
appeal against such decision to the Appeal Board’.
In terms of
s 50(16), the Appeal Board has the power to ‘confirm, set
aside or vary’ the decision appealed against
or to ‘order
that the decision be given effect to’.
[6]
Hoexter
Administrative
Law in South Africa
(2 ed) (2012) at 118 describes the PAJA as the ‘primary or
default pathway to review’. At 121, she says of the principle

of legality that it ‘provides a general justification for the
review of exercises of public power and operates as a residual

source of review jurisdiction’. See too
National
Director of Public Prosecutions and Others v Freedom Under Law
[2014] ZASCA 58
;
2014 (4) SA 298
(SCA) paras 28-29.
[7]
State
Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
[2016]
ZASCA 143
;
2017 (2) SA 63
(SCA) paras 35-36.
[8]
State
Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
[2017]
ZACC 40; 2018 (2) SA 23 (CC); 2018 (2) BCLR 240 (CC).
[9]
See
Boonzaier ‘A Decision to Undo’
(2018) 135
SALJ
642
; De Beer ‘A New Role for the Principle of Legality in
Administrative Law:
State
Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
’
(2018) 135
SALJ
613.
In
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
[2019] ZACC 15
;
2019 (4) SA 331
(CC);
2019 (6) BCLR 661
(CC) para
112, Cameron and Froneman JJ acknowledged the criticism and conceded
that the decision may have to be revisited in
due course.
[10]
See for example,
Albutt
v Centre for the Study of Violence and Reconciliation and Others
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC) paras
32-35.
[11]
Note
8 para 2.
[12]
Hunter
v Financial Sector Conduct Authority and Others
[2018]
ZACC 31
;
2018 (6) SA 348
(CC);
2018 (12) BCLR 1481
(CC).
[13]
Para
49.
[14]
For the definition of administrative action, see t
he
PAJA, s 1. See too
Grey’s
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) paras 21-25.
[15]
Lawrence
Baxter
Administrative
Law
(1984) at 299.
[16]
At
384. See too
De
Villiers v Pretoria Municipality
1912 TPD 626
, 645-646 in which Bristowe J set out the principle
thus:’
This conclusion seems indeed to be a necessary corollary from the
principle that a statutory corporation established for a particular

purpose has no power
qua
corporation outside the sphere of activity especially or impliedly
prescribed for it by the Legislature. Its acts outside those
limits
are therefore void, not so much because the Legislature has
prohibited them, as because the powers which it has conferred
upon
the being which it has created, do not extend to them. For the
purpose of such acts the corporate
persona
is in fact non-existent'.
On
the principle of legality being the first principle of both
administrative law and the rule of law, see Hoexter (note 6) at

255-256.
[17]
Woolf,
Jowell, Donnelly and Hare
De
Smith’s Judicial Review
(8 ed) (2018) para 1-001.
[18]
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998]
ZACC 17: 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC).
[19]
Para
58. This dictum has since been approved by the Constitutional Court
in numerous judgments. See for example
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC 11:
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) para
148.
[20]
Burghersdorp
Municipality v Coney
1936
CPD 305.
[21]
At
308. See too
Malherbe
v South African Medical and Dental Council
1962 (1) SA 825
(N) at 829G-830A.
[22]
Principal
Immigration Officer v Medh
1928
AD 451.
[23]
At
457-458.