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RUST, AJ
1. Before me is an opposed application in terms of Rule 53 of the Uniform Rules of
Court, wherein the applicants seek an order in the following terms:
1.1 Declaring the administrative action/judgment and paragraphs 1 and 2 of the
order of the Water Tribunal under case number WT 03/204/MP, delivered on
1 June 2023, upholding the appeal by the fourth respondent, and setting aside
the Directive issued by the second a pplicant on 9 April 2019, irrational,
unlawful, invalid, and unconstitutional in terms of section 172(1) of the
Constitution of the Republic of South Africa.
1.2 Reviewing and setting aside the administrative action of the Tribunal.
1.3 Remitting the matter for reconsideration by the Tribunal constituted by different
members.
1.4 An order which this Honourable Court deems just and equitable in the
circumstances in terms of:
1.4.1 section 1(c) of the Constitution;
1.4.2 section 172(1)(b) of the Constitution;
1.4.3 the common law;
1.4.4 the principle of legality;
1.4.5 the inherent discretion of this Honourable Court; and/or
1.4.6 section 8(l)(c)(ii) of PAJA.
1.5 Ordering the second and third respondents to pay the costs of this application
in their personal capacity.
1.6 Ordering that any of the respondents opposing this matter must pay costs.
Background
2. Having received a complaint in respect of a concrete boundary wall built by Leadal
on the banks of the Rimmer’s Creek , and after conducting a site inspection, the
second applicant (herein referred to as “ lnkomati -Usuthu ”) on 9 April 2019 issued a
directive to the fourth respondent (herein referred to as “ Leadal ”) in terms of section
53(1) of the National Water Act 36 of 1998 (“NWA ”) - “for engaging in water use
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activities without authorisation at Portion 14 of the Farm Barberton Townlands 639
by Leadal Investments (Pty) Ltd ” (“the Directive ”).
3. Section 53(1) of the NWA empowers a responsible authority, by notice in writing to
a person who contravenes (a) any provision of Chapter 4 of the NWA, (b) a
requirement set or directive given by the responsible authority under this Chapter ,
or (c) a condition which applies to any authority to use water, to direct that person,
or the owner of the property in relation to which the contravention occurs, to take
any action specified in the notice to rectify the contravention, within the time
specified in the n otice or any other longer time allowed by the responsible authority.
4. Before the Directive was issued, Leadal repeated ly state d that the flow of the
Rimmer’s Creek was diverted by the City of Mbombela Local Municipality when it
erected a dam upstream in the river, and that lnkomati -Usuthu had, at a meeting
held at the offices of lnkomati -Usuthu on 30 November 2018, conveyed to Leadal
that the expert for lnkomati -Usuthu had arrived at a similar conclusion as that of
Leadal’s engineer, namely that the Rimmer’s Creek h ad been diverted by the City
of Mbombela Local Municipality. Leadal therefore consistently denied any
contravention of the provisions of the NWA.
5. The Directive nevertheless states the reason for its issuance as follows:
“[1] the directive relates to contravention of the following sections of the NWA.
Section 22(1) of the NWA states that a person may only use water without a
licence if that water use is permissible as a continuation of an existing lawful
use, or if that wa ter use is permissible in terms of a general authorisation
issued under section 39, or if the water use is authorised by a licence under
this Act, or if the responsible authority has dispensed with a licence
requirement under subsection 3.”
6. In paragraph 2 of the Directive, it is stated that a wall has been constructed within
the floodline of the Rimmer’s Creek without authorisation, and that the following
water uses were identified based upon observations made during the investigation,
namely section 21(c) of the NWA: impeding or di verting the flow of water in a water
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course, and section 21(i) of the NWA: altering the bed, banks, course or
characteristics of a watercourse.
7. On 22 September 2020, Leadal launched an administrative appeal in terms of
section 148(1)(j) of the NWA to the Water Tribunal under case number
WT03/20/MP , relying on the following grounds of appeal:
7.1 the Rimmer’s Creek is not a watercourse as it is not a natural channel;
7.2 Leadal does not require a water use license for the construction of a concrete
wall on its premises;
7.3 in constructing the concrete wall, all the regulatory requirements were
complied with;
7.4 the concrete wall was constructed before a licence was a requirement; and
7.5 Leadal is entitled to use water without a water use license in terms of section
22(1)(a)(ii) of the NWA , as its water use constitutes an existing lawful water
use which does not require a licence.
8. In an amended notice of appeal, Leadal relied upon the following additional grounds
of appeal:
8.1 The State Attorney lacked the authority to represent lnkomati -Usuthu;
8.2 lnkomati -Usuthu was not authorised by an enabling statute to issue the
Directive;
8.3 The construction of the concrete wall did not constitute water use for the
purposes of sections 21(c) or 21(i) of the NWA;
8.4 The decision to issue a directive by lnkomati -Usuthu was not rationally
connected with the purpose of the empowering provision and the information
that was before lnkomati -Usuthu;
8.5 The issuing of the Directive constituted an error of law;
8.6 lnkomati -Usuthu failed to apply the principles of interpretation of statutes as
set out in Endumeni ;
8.7 lnkomati -Usuthu took into account irrelevant considerations and failed to take
into account relevant consideration s in the issuance of the Directive, amongst
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others the provisions of General Authorisation 1199 and General
Authorisation 11982;
8.8 lnkomati -Usuthu failed to take into account the matter of Great Fish River
Irrigation Board v Southey (Rooispruit) regarding the meaning of a channel;
8.9 lnkomati -Usuthu failed to take into account the ratio decidendi in the matter
of Casserley v Stubbs 1916 TPD 312 regarding the meaning of a channel;
8.10 lnkomati -Usuthu failed to take into account that the definition of a watercourse
does not refer to floodline in general , or to 1:100 floodline in particular;
8.11 lnkomati -Usuthu failed to take into account the ratio decidendi in the matter
of Glaffer Investments v Minister of Water Affairs 2000 (4) SA 822 (TPD) to
high floodline;
8.12 lnkomati -Usuthu failed to take into account that it only has powers and
functions in terms of section 80 of the NWA and that it did not have the
necessary assignment or delegation of powers, as a result of which the
issuance of a directive was ultra vires its powers and functions;
8.13 lnkomati -Usuthu failed to take into account the fact that the Rimmer’s Creek
was no longer a natural channel as a result of previous changes that were
made to the channel at the place where the Leadal wall was built; and
8.14 lnkomati -Usuthu erred in finding that water regularly or intermittently flowed
in the Rimmer’s Creek and that water no longer flows regularly or
intermittently in the Rimmer’s Creek.
9. lnkomati -Usuthu opposed the administrative appeal on the following grounds:
9.1 The Rimmer’s Creek is a watercourse as defined in section 1(1) of the NWA;
9.2 The construction of a concrete wall within a 1:100 -year floodline of the
Rimmer’s Creek constitutes water use as contemplated in sections 21(c) or
21(i) of the NWA;
9.3 Leadal ought to have applied for a water use license in terms of section 40 of
the NWA;
9.4 The noted use which was the subject of the appeal took place after the NWA
came into effect;
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9.5 The water use activities engaged in by Leadal was in terms of sections 21(c)
or 21(i) of the NWA;
9.6 Leadal did not have water use authorisation or a licence; and
9.7 The construction of a concrete wall within the floodline of the Rimmer’s Creek
does not constitute an existing lawful water use.
10. Following the submission of the appellants supplementary grounds of appeal,
lnkomati -Usuthu filed the following supplementary grounds of opposition:
10.1 General Authorisations 1198 and 1199 were not applicable;
10.2 A floodline is an indicator of the extent of the watercourse, and no person is
allowed to build with in a floo dline;
10.3 The reliance on the authorities cited have been taken out of context and that
such authorities do not support Leadal’s case; and
10.4 lnkomati -Usuthu acted in terms of the powers delegated to it in terms of section
75 of the NWA read together with the definition of a Water Management
Institution. Thus, lnkomati -Usuthu did not act ultra vires nor did it act without
the necessary authority.
11. The hearing of evidence in the appeal before the Water Tribunal commenced on 18
August 2022 and concluded on 30 November 2022. Judgment of the Water Tribunal
was handed down on 1 June 2023 , in terms of which Leadal’s appeal was upheld
and the Directive of 9 April 2019 issued by lnkomati -Usuthu , was set aside with no
order as to costs.
12. Notably, the first applicant, the Minister of Water and Sanitation (herein referred to
as “the Minister ”), was not a party to the administrative appeal before the Water
Tribunal and never participated therein .
13. On 21 June 2023, lnkomati -Usuthu issued a notice of judicial appeal in terms of
section 149(1)(a) of the NWA out of this Court under case number A187/23 . Section
149(1)(a) of the NWA provides that a party to a matter in which the Water Tribunal
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has given a decision on appeal under section 148, may, on a question of law, appeal
to a High Court against that decision. Although that judicial appeal did not serve
before me, counsel for Leadal pointed out that lnkomati -Usuthu did not prosecute
this ju dicial appeal to finality.
14. On 24 October 2023, the Minister and lnkomati -Usuthu issued this review
application against the decision of the Water Tribunal , and on 1 November 2023
served th e application on the offices of Leadal's attorney of record .
15. The applicants rely on the following grounds for review:
15.1 The administrative action by the Water Tribunal was materially influenced by
an error of law , referring to the finding by the Water Tribunal that lnkomati -
Usuthu bore the burden of proof.
15.2 The administrative action by the Water Tribunal was materially influenced by
an error of law, referring to the finding by the Water Tribunal that General
Authorisation 1199 and General Authorisation 509 permitted Leadal to use
water without applying for a water use license under the NWA.
15.3 The administrative action by the Water Tribunal was materially influenced by
an error of law, referring to the finding by the Water Tribunal that the Rimmer’s
Creek is more often than not without any running water and that the definition
of a watercourse d oes not include the floo dline or floodplain.
15.4 The action of the Water Tribunal is not rationally connected to the information
before the Water Tribunal , referring to the finding by the Water Tribunal that
lnkomati -Usuthu conceded that the construction of the concrete wall by Leadal
did not divert, alter or impede the Rimmer’s Creek.
15.5 The Water Tribunal took into account irrelevant considerations and ignored
relevant considerations, relying heavily on an internal minute drafted by
Shabangu which was not a report on the basis of which lnkomati -Usuthu relied
to issue the Directive , while it failed to consider the investigation report
conducted by the experts for lnkomati -Usuthu, which was the basis upon which
the Directive was issued.
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15.6 The administrative action of the Water Tribunal was biased or reasonably
suspected of bias, referring to the decision of the Water Tribunal not to
examine the evidence of Leadal, thereby not dealing with Leadal’s main
defence , while only assessing the evidence presented by lnkomati -Usuthu.
15.7 The decision of the Water Tribunal was so unreasonable that no reasonable
person would have taken that decision , referring to the conclusion by the Water
Tribunal that the Rimmer’s Creek is not a watercourse and at the same time
finding that Leadal was entitled to rely on General Authorisation 509 or General
Authorisation 1199 , and the finding that the definition of a watercourse does
not include the floodline in light of the provisions of General Authorisations 509
and 1199, as flooding is one such charact eristic feature of a watercourse.
15.8 The decision of the Water Tribunal was procedurally unfair, again referring to
the finding of the Water Tribunal that lnkomati -Usuthu bore the burden of proof,
while lnkomati -Usuthu was not afforded the opportunity at the hearing before
the Water Tribunal to make oral submissions regarding who bore the burden
of proof.
16. On 21 November 2023 , Leadal's notice of intention to oppose was served on the
Office of the State Attorney.
17. The 180 -day period within which the judicial review had to be instituted in terms of
section 7(1) of the PAJA, expired o n 28 November 2023. The applicants never
applied in terms of section 9 of the PAJA for the extension of the 180 -day period
contemplated in section 7 thereof.
18. On 16 April 2024, Leadal's attorney addressed a letter to the State Attorney, the
Department of Water and Sanitation, lnkomati -Usuthu and to the Tribunal,
requesting proof that the review application was served on the first, second and third
respondents, and requesting that the record be dispatched. Subsequent to this
letter, the application was served on the first, second and third respondents only on
27 May 2024.
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19. On 14 June 2024 , the 10 days within which the applicants had to deliver
their supplementary notice and supplementary affidavit in terms of Rule 53(4) of the
Uniform Rules of Court , expired. The applicants never supplemented their founding
papers.
20. On 8 July 2024 , Leadal served its opposing affidavit on the office of the State
Attorney and on the Water Tribunal.
21. The time period for the delivery of the applicants’ replying affidavit expired on 23
July 2024 , and on 30 June 2024, the period for filing of the applicants' heads of
argument expired , as the applicants failed to file any replying affidavit.
22. Heads of argument for the applicants were filed only on 24 May 2025, without any
application to condone the late filing thereof. The applicants have therefore not
complied with paragraph 25.1.1 of the Revised Consolidated Practice Directive 1 of
2024: Court Operations in Gauteng Division with effect from 26 February 2024 (as
amended on 12 June 2024).
23. As a point of departure , I find it prudent to correct some misconceptions that
emanated from this application.
The nature of an administrative appeal
24. An administrative appeal before the Water Tribunal is in the nature of a fresh
hearing , or a hearing de novo , of the administrative decision that is the subject
matter of the appeal .1 It is therefore an appeal in the wide sense, that is, a complete
reconsideration of, and fresh determination on the merits of the decision that is the
subject matter of the appeal, with or without additional evidence or information , as if
that decision is now for the first time considered to be made.
1 See in this regard South African Broadcasting Corporation v Transvaal Townships Board 1953 4 SA
169 (T) 176F -H, where the Board had to deal with an appeal against the refusal of a so -called consent
use by the local authority .
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25. In the context of the application at hand, the subject matter of the appeal before the
Water Tribunal wa s the decision by lnkomati -Usuthu made on 9 April 2019 to issue
the Directive to Leadal in terms of section 53(1) of the NWA. The administrative
appeal before the Water Tribunal therefore had to be the complete re consideration
of, and fresh determination on the merits of the decision to issue the Directive to
Leadal, with or without additional evidence or information , as if lnkomati -Usuthu now
for the fi rst time considered whether or not to issue the Directive.
26. An application for judicial review on the other hand, is a limited re -hearing of the
administrative decision that is the subject matter of the review, with or without
additional evidence or information to determine, not whether the decision under
appeal was correct or not, but whether the power or discretion was exercised in a
procedurally correct manner . This review application before me is therefore a limited
re-hearing of the judgment of the Water Tribunal to determine, not whether the
judgment of the W ater Tribunal was correct or not, but whether the Water Tribunal’s
power or discretion was exercised in a procedurally correct manner .
27. The applicants’ ground s of review are concerned with the finding by the Water
Tribunal that lnkomati -Usuthu bore the ‘burden of proof’ , or the ‘onus of proof’ before
the Water Tribunal to provide the basis for issuing the Directive , and to prove that
the wall built by Leadal contravene s the provisions of section s 21(c) and 21 (i) of the
NWA. However, so the argument goes , had the Water Tribunal correctly applied
the law, it ought to have found that Leadal firstly bore the onus of proof of
authorisation for the identified water use, or to show cause why a directive should
not b e issued . Counsel for t he applicants further submitted that a party who alleges
that an administrative action constitutes an illegality , bears the burden of proof , or
put differently, the onus or burden of proving facts that constitute an illegality ,
ordinarily rests on the applicant, the person who alleges the existence of the
illegality . The Water Tribunal allegedly impermissibly shifted the burden of proof to
lnkomati -Usuthu while it should have found that Leadal failed to discharge its ‘onus
of proof’ .
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28. The formal or traditional sense of the concept of ‘onus of proof ’ was explained in
South Cape Corporation2 as consisting of two distinct concepts, namely either (i) the
duty which is cast on the particular litigant, in order to be successful, of finally
satisfying a court of law that he is entitled to succeed on his claim or defence, as the
case may be; or (ii ) the duty cast upon a litigant to adduce evidence in order to
combat a prima facie case made by his opponent. Traditionally these concepts are
part of the law of evidence and procedure, operating within the context of an
adversarial procedure in a court of law.
29. There is a fundamental difference between the adversarial nature of judicial
proceedings and the inquisitorial nature of administrative appeal proceedings before
the Water Tribunal , which is a specialist tribunal and not an ordinary court of law nor
can the Water Tribunal be compared to an ordinary court of law in this regard .
30. In respect of administrative proceedings, the Supreme Court of Appeal in
Johannesburg Local Road Transportation Board v David Morton Transport (Pty) Ltd3
stated in this regard as follows:
“ The so -called onus of proof.
In my view the expression 'onus of proof' is apt to be misleading in regard to
proceedings before a local board and the Commission. In civil proceedings
that expression has a recognised connotation, and the onus is fixed by the
pleadings, and the latter govern the evidence which is led. These
considerations do not apply in proceedings before a local board and the
Commission, which are not bound by rules of judicial procedures; see, with
special reference to the Commission, the concluding paragraph under t he
heading: 'The constitution and function of local boards and the Commission',
supra.
In proceedings before those bodies sec. 13( 1) of Act 39 of 1930 requires
publication of an application, so that interested parties may object. Regs. 4
and 5 provide how the application is to be made and published. Sec. 13(3) of
the Act prohibits the issue of a certificate if, in the opinion of the board, existing
facilities are satisfactory and sufficient. If tha t prohibition is surmounted, there
2 South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 3 SA 534 (A) at
548A.
3 1976 1 SA 887 (A) 903H -904C (per Holmes JA).
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is a list of factors which the board 'shall take into consideration'; see sec. 13
(2).
The most that can be said is that an applicant should place before the board
relevant facts in favour of his application; and an objector (e.g., an existing
operator who invokes sec. 13 (3)) should place before the board relevant facts
in support of his ob jection. After due hearing, the local board comes to its
opinion. ”
31. Although this case dealt with specific statutory tribunals, namely the National
Transport Commission and a Local Road Transportation Board, established in terms
of the Motor Carrier Transportation Act 39 of 1930, the dictum therein is of general
application4 and equally applicable to administrative appeal proceedings . The Water
Tribunal is also not bound by rules of judicial procedure but is free to make its own
rules regulating its procedures and proceedings , and there is also no set of
pleadings in terms of which an onus is fixed, which in turn governs the evidence
which is led.
32. The description by Holmes JA in the aforesaid David Morton Transport -case of the
duties or responsibilities of an app ellant or a respondent in this kind of administrative
proceedings, is also applicable to an administrative appeal before the Water
Tribunal: the decision -maker of the impugned decision should place before the
Water Tribunal relevant facts in favour of its decision, and th e objector to that
decision should place before the Water Tribunal relevant facts in support of its
objection .
33. Section 148(4) of the NWA, read with Schedule 6 Part 2 item 6 thereof, confirms
this procedure for the hearing of appeals by the Water Tribunal. Item 6(3)
specifically provides as follows:
4 See also Baxter Administrative Law (1984) 249 -250; Connan v Sekretaris van Binnelandse Inkomste
1973 4 SA 197 (NC) 202D:
“Mnr. Steenkamp moet dan na my mening gelyk gegee word dat in 'n appèl soos die
onderhawige daar nie juis sprake van 'n bewyslas is nie. Vgl. Tikly se saak, supra; Gani
Mohamed (Pty.) Ltd. v Johanhannes, N.O. and Others, 1964 (1) SA 584 (T) te bl. 589A -C.;
Sekretaris van Binnelandse Inkomste v Florisfontein Boerdery (Edms.) Bpk. en 'n Ander,
1969 (1) SA 260 (AA) te bl. 264 .”
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“Appeals and applications to the Tribunal take the form of a rehearing. The
Tribunal may receive evidence, and must give the appellant or applicant and
every party opposing the appeal or application an opportunity to present their
case.”
34. If the legislature wanted to introduce an onus of proof, in the traditional sense, it
could easily have done so but instead it elected to introduce only the duty or
responsibility to state a case and adduce evidence in support thereof. There is
therefore no legal basis for the recognition of the concept of ‘onus of proof ’ in the
formal sense as far as an administrative appeal before the Water Tribunal is
concerned .
35. Evidence, if accepted and believed, may result in proof, but is not necessarily proof
in itself.5 Evidence is the matter or material which may be lawfully placed before the
Water T ribunal in order to prove the facts in issue. It may include various matters
or different materials, including documents in writing as well as legitimate inferences
from facts and circumstances and also presumptions of law. In short , any matter
legitimately usable, which tends to establish the truth or falsity of a fact in issue.
36. Wigmore6 defines evidence as follows:
“It is of little practical consequence to construct a formula defining what is to
be understood as Evidence. Nevertheless, its content is capable of being
stated. What we are concerned with is the process of presenting evidence for
the purpose of demonstrating an asserted fact. In this process, then, the term
evidence represents:
Any knowable fact or group of facts, not a legal or a logical principle,
considered with a view to its being offered to a legal tribunal for the purpose of
producing a persuasion, positive or negative, on the part of the tribunal, as to
the truth of a prop osition, not of law or of logic, on which the determination of
the tribunal is to be asked.”
5 See Claassen Dictionary of Legal Words and Phrases : Volume 2 (D-I) (1997) E -41 in respect of
evidence.
6 Wigmore A Treatise on the Anglo -American System of Evidence in Trials at Common Law: Volume 1
(1940) 3.
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37. Section 148(4) of the NWA, read with Schedule 6 Part 2 item 6 thereof, requires no
special formality for any relevant matter or material to be regarded as evidence
before the Water Tribunal . It is also not a requirement that any matter, information
or material only becomes evidence before the Water Tribunal if it is confirmed under
oath.7
38. The Water Tribunal therefore correctly found that lnkomati -Usuthu had to place
evidence before the Tribunal to support its decision to issue the Directive, therefore
to prove that the wall built by Leadal contravenes the provisions of sections 21(c)
and (i ) of the NWA.
39. Only the fourth respondent (“ Leadal ”) opposed th is review application , and the
following points in limine were raised in its opposition:
39.1 The review was not brought without unreasonable delay within the 180 -days
provided for in section 7(1) of the Promotion of Administrative Justice Act 3 of
2000 (“ PAJA ”).
39.2 The first applicant has no locus standi as the Minister did not issue the Directive,
the Minister was not a party to the administrative appeal before the Water
Tribunal and never participated therein , and the Minister did not seek leave of
the Court to intervene by means of an application for joinder, intervention or
appointment as amicus curiae .
39.3 The issue of lis alibi pendens , as the second applicant’s judicial appeal in terms
of section 149(1)(a) of the NWA in this Court under case number A187/23
remains pending.
7 In S v Mia 1962 2 SA 720 (N) it was held that the word ‘evidence’ does not necessarily suggest oral
testimony given under oath; the word may be, and is, often used to connote other means by which a
court is informed of facts which are relevant to the issue before it .
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Was the review brought without unreasonable delay?
40. It is not in dispute that the judgment of the Water Tribunal was handed down on 1
June 2023, that this review application was served on the fourth respondent on 1
November 2023, that the application was served on the first, second and third
respondents only on 27 May 2024 – some 361 days after the judgment of the Water
Tribunal was handed down , and that the applicants have not applied for extension
of the 180 -day period contemplated in section 7 of the PAJA.
41. Section 7(1) of the PAJA provides that any proceedings for judicial review must be
instituted without unreasonable delay , but in any event not later than 180 days after
an internal remedy ha s been exhausted . This however does not mean that a litigant
has the leisure of 180 days within which to institute proceedings.
42. In a unanimous decision of the Supreme Court of Appeal8, the word 'institute' in
section 7(1) of the PAJA is clarified as follows:
" … Taking as one's logical point of departure, the requirement in s 7(1) that
'any proceedings for judicial review . . . must be instituted without unreasonable
delay and not later than 180 days' after either of the dates referred to in
paragraphs (a) and (b) of s 7(1), it must ineluctably follow that the word
'institute' when considered contextually and purposively, as it must be, means
to commence the review proceedings by issuing the process and effecting
service thereof on the decision -maker whose admi nistrative action is
impugned ."
43. In Finishing Touch9 the Supreme Court of Appeal interpreted the word 'initiate' (as
used in a court order granting an interim interdict pending certain review
proceedings to be initiated by no later than a certain date ), to mean not only the
filing of the review application papers with the registrar and the issue thereof, but
crucially also service thereof on all of the respondents cited.
8 Commissioner, South African Revenue Service v Sasol Chevron Holdings Limited [2022] ZASCA 56 at
par [33].
9 Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd 2013 (2) SA 204 (SCA) par
[14] - [20].
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44. Rule 53(1) of the Uniform Rules of Court furthermore provides that proceedings for
the review of a decision of any tribunal (amongst decision -makers) , shall be “ by way
of notice of motion directed and delivered by the party seeking to review such
decision ”, calling on all affected persons to show cause why such decision or
proceedings should not be reviewed and corrected or set aside.
45. Rule 1 defines “ deliver ” to mean “ serve copies on all parties and file the original with
the registrar ”. The review application may therefore only be regarded to be
‘instituted’ once service thereof was effect ed on all parties, and in particular on the
decision -maker whose administrative action is impugned .
46. The Supreme Court of Appeal in OUTA10 held that section 7 of the PAJA creates a
presumption that a delay of longer than 180 days is “ per se unreasonable ”:
“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, section 7(1) of P AJA 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 section 7(1) is still wheth er 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 inter est of
justice dictates an extension in terms of section 9. Absent such extension the
court has no authority to entertain the review application at all. Whether or not
the decision was unlawful no longer matters. The decision has been ‘validated’
by the de lay…..”
47. Therefore, before the effluxion of 180 days, the applicants had to comply with
section 9(1)(b) of the PAJA, either by reaching an agreement with the respondents
for an extension of the 180 day period, or failing such an agreement, by applying to
the Court for such extension. However, during the 180 -day period, the applicants
10 Opposition to Urban Tolling Alliance v The South African National Roads Agency Ltd 2013 (4) All SA
639 (SCA) (OUTA) par 26, which w as endorsed by th e Constitutional Court in Buffalo City Metropolitan
Municipality v Asla Construction (Pty) Ltd (Asla Construction) 2019 (6) BCLR 661 (CC ) at par [49].
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did not approach the respondents for an agreement to extent the 180 -day period,
and they did not apply to this C ourt under s ection 9(1)(b) of the PAJA for the
extension of the prescribed 180 -day period within which they had to institute this
application. In the result, the applicants already failed at the first enquiry
contemplated by the Supreme Court of Appeal, as it is not in dispute that this
application was initiated after the effluxion of 180 days.
48. After the 180 -day period , the issue of unreasonableness is pre -determined by the
legislature : it is unreasonable per se . The applicants are thus faced with a
presumption that the ir delay in bringing the review application, which exceeded the
180-day limit, is unreasonable . In such circumstances, when faced with an
application for extension of the 180 -day period, a c ourt is only empowered to
entertain the review application if the interest of justice dictates an extension in terms
of section 9 of the PAJA. Absent such application for extension, this Court has no
authority to entertain the review application at all.11
49. Had the applicants applied for such extension as contemplated in section 9(1)(b) of
the PAJA, the question whether a court in the interests of justice should condone an
applicant's delay, was answered by the Supreme Court of Appeal in Camps Bay
Ratepayers12 as follows:
"[A]nd the question whether the interests of justice require the grant of such
extension depends on the facts and circumstances of each case: the party
seeking it must furnish a full and reasonable explanation for the delay which
covers the entire duration thereof and relevant factors include the nature of the
relief sought, the extent and cause of the delay, its effect on the administration
of justice and other litigants, the importance of the issue to be raised in the
intended proceedings and the prospect s of success."
11 Commissioner, South African Revenue Service v Sasol Chevron Holdings Limited supra at par [42].
12 Camps Bay Ratepayers and Residents Association v Harrison [2010] 2 All SA 519 (SCA) par 54
(Footnotes omitted ).
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50. Having failed to apply for an extension as contemplated in section 9(1)(b) of the
PAJA, the applicants in any event failed to satisfy both the first and second legs of
the enquiry contemplated by the Supreme Court of Appeal, in that they failed to
furnish " a full and reasonable explanation for the delay which covers the entire
duration " of the period of 180 days within which it had to institute its review
application, and the period from 28 November 2023 - when the 180 days expired, to
27 May 2024 - when th e review application was served on the first, second and third
respondents
51. The applicants’ reliance on the Constitution , the common law , the principle of
legality , or the inherent discretion of this Court to make an order that is just and
equitable does not provide any assistance in respect of its undue delay in instituting
this review application. State respondents, just like any other litigant, are bound by
the statutory prescribed time frames in the PAJA, and there is no reason to exempt
government therefrom.13 There is rather a higher duty on the State to respect the
law, to fulfil procedural requirements and to tread respectfully when dealing with
rights.
52. In the result, I find that the applicants ’ delay in instituting this review application,
which by far exceeded the 180 -day limit, was unreasonable per se , the impugned
decision of the Water Tribunal is ‘validated’ by the applicants ’ delay , and this Court
has no authority to enter into the substantive merits of the review , or to entertain the
review application at all.
53. The first point in limine is therefore uphe ld.
54. Since the first point in limine is uphe ld, it serves no purpose to belabour the
remaining points in limine , or the merits of the review application any further.
13 MEC for Health, EC v Kirkland Investments 2014 (3) SA 481 (CC ) par [82] .
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Costs
55. There is no merit whatsoever in the applicants’ contention that the second and third
respondents should pay the costs of this application in their personal capacity.
56. The conduct of the applicants are evidence there of that the applicants do not regard
the Uniform Rules of Court or the Practice Directives of this Court as binding on
them . This Court must show its displeasure with such conduct in the hope that the
applicants will be prevented from persisting with its dismissive and lackadaisical
approach to litigation in this Court. Such conduct warrants a punitive cost order
against the applicants .
Order
57. I make the following order:
1. The first point in limine is upheld.
2. The application to review and set aside the judgment and order of the Water
Tribunal under case number WT 03/204/MP, delivered on 1 June 2023, is
dismissed .
3. The first and second applicants are ordered to pay, jointly and severally, the
one to pay the other to be absolved, the costs of the application on the scale
as between attorney and client.
Appearances:
For the Applicant s: Mr Malatji
Applicants ’ Counsel
Instructed by:
MW M otsepe
State Attorney, Pretoria
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For the Fourth Respondent: Mr JHA Saunders
Respondent’s Counsel
Instructed by:
W Hertz
WDT Attorneys
Pretoria