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D A LINDEQUE
B J VAN DERSCHYFF
RIAN BEUKES
Sixth Respondent
Seventh Respondent
Eighth Respondent
JUDGMENT
ILES AJ:
INTRODUCTION
1. The applicant seeks leave to appeal to a full bench of this court against
the whole of my judgment and order of 22 August 2025 in terms of
which I dismissed the applicant’s review against a decision of an
appeal board constituted in terms of section 27 of the Planning
Profession Act 36 of 2002. I do not repeat the facts, the disputes
between the parties or my reasoning, as these appear from my
judgment.
2. This application is opposed by the first to fourth respondents.
3. Leave to appeal was sought on four grounds:
3.1. First, it was contended that I erred in concluding that the
review was required to have been brought in terms of the
Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’),
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rather than in terms of the common law, as it was.
3.2. Second, it was contended that I erred by accepting that the
appeal board’s failure to indicate a costs scale was a
deliberate omission by the appeal board.
3.3. Third, I am said to have erred in finding that the applicant
was found guilty of five separate contraventions of section
18(3) of the Planning Profession Act.
3.4. Fourth, it was submitted that I erred in my interpretation and
understanding of the appeal board’s order.
4. On the basis of these four grounds, it was submitted on behalf of the
applicant that she bore reasonable prospects of success on appeal.
THE AMBIT OF THE LEAVE TO APPEAL APPLICATION
5. The oral and written argument advanced on behalf of the applicant in
certain respects strayed wide of the application for leave to appeal.
For example, in written heads of argument served in the late afternoon
the day before the application was to be heard, reliance was placed
on section 17(1)(a)(ii) of the Superior Courts Act, notwithstanding that
this basis for seeking leave to appeal was not disclosed in the
application. It was also contended that I erred in so far as my costs
order was concerned. In oral argument it was submitted that I had
erred in finding that cert ain contentions advanced on behalf of the
applicant constituted grounds of appeal, as opposed to grounds of
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review.
6. Ms Nel, for the first to fourth respondents, objected to the reliance by
the applicant on any ground of appeal not contained within the
application for leave to appeal. It was argued, with reference to M.S.H.
v J.S.H (8470/2021) [2023] ZAWCHC 345 (14 September 2023), that
this was impermissible and that the applicant was limited to those
grounds articulated by her in the application for leave to appeal.
7. M.S.H v J.S.H, apart from being only persuasive authority in this
division, does not state in unequivocal terms that a party is bound to
the grounds set out in the application for leave to appeal. M.S.H v
J.S.H makes reference to Phiri v Phiri and Others [2016] ZAGPPHC
341, a decision of this division. In that decision Mavundla J held in
paragraph 9 that Rule 49(1)(b) is peremptory and the applicant must
set out the grounds upon which he or she seeks leave to appeal. He
reached that conclusion on the basis of the language of the rule itself,
and the earlier decision of Songono v Minister of Law and Order 1996
(4) SA 384 (ECD) at 385I – 386A. Songono is a decision which has
been applied in numerous decisions in this division.
Mavundla J went
on to hold , in paragraph 10 of his judgment, that it was thus
impermissible to advance grounds of appeal not set out in the notice
of application for leave to appeal.
8. I consider myself bound by Phiri and thus decide this application on
the ba sis of the four grounds set out above. In doing so, I must
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consider whether the appeal grounds advanced hold a reasonable
prospect of success, by which is meant I must make a dispassionate
decision, based on the law and the facts, as to whether a court of
appeal could reasonably arrive at a conclusion which is different to the
conclusion I reached.
1 Other decisions relied on by the applicant,
being National Education, Health and Allied Workers Union v
University of Cape Town and Others 2003 (3) SA 1 (CC), Toyota SA
Motors (Pty) Ltd v CCMA and Others 2016 (3) BCLR 374 (CC),
National Union of Metal Workers of South Africa v Lufil Packaging
(Isithebe) and Others 2020 (6) BCLR 725 (CC) and Afriforum &
Another v University of the Free State 2018 (2) SA 185 (CC) are less
helpful concerning, as they do, the test for leave to appeal in the
Constitutional Court, not this court.
9. As appears from the grounds on which leave to appeal is sought, I
dismissed the applicant’s application on two broad grounds: First, I
took the view that the application ought to have been brought in terms
of PAJA, rather than the common law. Second, I was not persuaded
that the review grounds were meritorious. The applicant thus needs to
persuade me of a reasonable prospect of success on both of these
aspects, as a failure on appeal on either one would be fatal to the
success of the appeal.
THE FINDING THAT A COMMON LAW REVIEW WAS IMPERMISSIBLE
1 Ramakatsa and Others v African National Congress and Another [2021] JOL 49993 (SCA) at
para 10
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10. The first ground was, broadly stated, that I erred in holding that the
review ought to have been brought in terms of PAJA. The application
for leave to appeal amplified this error in three respects. First, it was
contended that it was erroneous to find that the appeal board fell within
the ambit of PAJA given that it was exercising quasi-judicial functions.
In my judgment I cited Mapholisa NO v Phetoe NO and Others 2023
(3) SA 149 (SCA) at paragraph 14, where the Supreme Court of
Appeal held, in the context of a professional conduct committee of the
Health Professions Council of South Africa established in terms of the
Health Professions Act 56 of 1974, that ‘ generally speaking, the
decision-making of a statutory disciplinary body … would constitute
administrative action as defined in s 1 of the PAJA ’. Reference was
also made in my judgment to South African Veterinary Council and
Another v Veterinary Defence Association 2003 (4) SA 546 (SCA)
where the Supreme Court of Appeal held, at paragraph 34, that a
disciplinary decision taken by a statutory council regarding the conduct
of a vet, constituted administrative action.
11. No arguments were advanced as to why these two decisions were
distinguishable from the present matter, and I was not referred to any
contrary or differing authority.
12. The second amplification was to the effect that I disregarded the
discretionary powers exercised by the third respondent, being
indicative of exceptional circumstances which precludes it from a
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review in terms of PAJA. This contention seems to me to be erroneous
in several respects. First, that an administrative body has or exercises
discretionary powers does not mean that the decision being impugned
is not administrative action. Second, I am not aware of any authority,
either in PAJA itself or elsewhere that provides that a decision is not
administrative action where exceptional circumstances are present.
Nor am I aware of any authority that says that something which falls
within the definition of administrative action may be reviewed under
the common law, rather than PAJA, in exceptional circumstances (if
that is what was meant). I was not referred to any such authority nor
was this contention advanced in oral argument. Third, no exceptional
circumstances were identified.
13. The third amplification was that my understanding of Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC), on
which I relied in reaching my decision, was incorrect in that Bato Star
did not preclude reliance on the common law, as opposed to PAJA,
when bringing a review application. I am not persuaded that my
reading of Bato Star as set out in my judgment was incorrect. But even
if it was, I am not persuaded that there is a reasonable prospect of an
appeal court finding either that the third respondent’s decision was not
administrative action within the meaning of PAJA or that the applicant
was entitled to bypass PAJA in bringing her review.
14. I am fortified in this conclusion by the recent decision of Kwinana v
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Chairperson of Disciplinary Inquiry Instituted by the South African
Institute of Chartered Accountants and Another [2025] ZAGPJHC 735
in which Du Plessis J, in a thoroughly reasoned judgment, concluded
that a disciplinary decision taken by the South African Institute of
Chartered Accountants constituted administrative action and that once
a decision meets the definition of administrative action, an applicant
must rely on PAJA and there is no residual right to rely on the common
law. With respect, I agree with that decision and it is and was binding
on me when I decided this matter.
15. That leaves the applicant’s contention that I was not permitted to
dismiss the application on this ground given that the respondents had
not taken any objection to the review having been brought under the
common law.
16. I was referred by the applicant to Fisher and Another v Ramahele and
Others 2014 (4) SA 614 (SCA) and National Director of Public
Prosecutions v Zuma 2009 (2) SA 277 (SCA) as authorities for the
proposition that the PAJA point was not one which I was e ntitled to
have raised mero motu and that I was constrained to decide the matter
as a common law review as the respondents had not objected to this.
17. Fisher held, in relevant part (in paragraphs 13 – 15) as follows:
‘[13] Turning then to the nature of civil litigation in our adversarial system
it is for the parties, either in the pleadings or affidavits, which serve the
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function of both pleadings and evidence, to set out and define the nature of
their dispute and it is for the court to adjudicate upon those issues. … There
are cases where the parties may expand those issues by the way in which they
conduct the proceedings. There may also be instances where the court
may mero motu raise a question of law that emerges fully from the evidence
and is necessary for the decision of the case. That is subject to the proviso
that no prejudice will be caused to any party by its being decided. Beyond
that it is for the parties to identify the dispute and for the court to determine
that dispute and that dispute alone.
[14] It is not for the court to raise new issues not traversed in the pleadings
or affidavits, however interesting or important they may seem to it, and to
insist that the parties deal with them. The parties may have their own reasons
for not raising those issues. A court may sometimes suggest a line of argument
or an approach to a case that has not previously occurred to the parties.
However, it is then for the parties to determine whether they wish to adopt
the new point. They may choose not to do so because of its implications for
the further conduct of the proceedings, such as an adjournment or the need
to amend pleadings or call additional evidence. They may feel that their case
is sufficiently strong as it stands to require no supplementation. They may
simply wish the issues already identified to be determined because they are
relevant to future matters and the relationship between the parties. That is for
them to decide and not the court. If they wish to stand by the issues they have
formulated, the court may not raise new ones or compel them to deal with
matters other than those they have formulated in the pleadings or affidavits.’
18. I do not interpret Fisher as meaning that I should have ignored the
basis on which the review was brought and have decided the matter
basis on which the review was brought and have decided the matter
on an incorrect legal basis, simply because the respondents did not
raise the point. Fisher is concerned with the introduction by the court
of new disputes not advanced by the parties, as opposed to the raising
of questions of law, something which it recognises may be done mero
motu. The applicant did not, either when I raised the matter at the
hearing of the application or in the leave to appeal, suggest that she
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had suffered any prejudice by virtue of my having raised this question.
19. I can do no better than to quote the words of Justice Ngcobo, as he
then was, in CUSA v Tao Ying Metal Industries and Others 2009 (2)
SA 204 (CC) at paragraph 67:
‘67. These principles [pertaining to a review court being bound by the
pleadings] are, however, subject to one qualification. Where a point of
law is apparent on the papers, but the common approach of the parties
proceeds on a wrong perception of what the law is, a court is not only
entitled, but is in fact also obliged, mero motu, to raise the point of law
and require the parties to deal therewith. Otherwise, the result would
be a decision premised on an incorrect application of the law. That
would infringe the principle of legality. …’
20. I am thus not persuaded that I erred in finding that the review ought
to have been brought as a PAJA review, and am of the view that the
applicant does not hold reasonable prospects of success on appeal of
overturning this finding.
21. Given what I have stated in paragraph 9 above, this conclusion ought
to be dispositive of this application. I nevertheless proceed to consider
the remaining grounds on which leave to appeal is sought.
THE MERITS OF THE REVIEW
22. Grounds 2, 3 and 4 can conveniently be dealt with together. Ground 2
argues that I was mistaken in finding that the failure by the appeal
board to indicate a costs scale was deliberate. Ground 3 contended
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that I erred in finding that the applicant was guilty of five contraventions
of section 18(3)(b) of the Act as the facts indicated that she was only
found guilty of one contravention. The fourth ground on which leave is
sought is that I misinterpreted the appeal board’s order: I did not pay
sufficient regard to the use of the words ‘in toto’. The context was that
there had been an appeal against both the costs order and the merits.
As the general rule is that costs follow the result, and as the applicant
succeeded on appeal, she ought to have been awarded the costs and
the fact that she was not, and that nothing was said in the award in
this regard, is indicative of irrational decision making.
23. I was alive to the context, namely that the applicant had noted an
appeal against both merits and costs. This appears from paragraph
25 of the judgment. It is rather that, against that context, my
interpretation of what the appeal board did differs from the construction
which the applicant contended for.
24. I placed importance on the fact that, had the appeal board intended to
uphold the appeal on costs, it would have expressly stated that the
costs decision of 5 June 2019 was set aside. It did not. It only made
reference to the merits decision of 28 July 2018.
25. In so far as the ‘in toto ’ phrase was concerned, it received specific
attention as appears from paragraph 26. I did, erroneously, hold that
the tribunal had found the applicant guilty of five separate
contraventions of section 18(3) of the Act but, that I was wrong in this
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regard, does not alter my interpretation. I found in paragraph 26 of the
judgment that the use of the phrase ‘in tot o’ was a reference to all of
the guilty findings being reversed or all of the grounds of appeal (and
there were numerous independent grounds) being upheld, or both of
those things. Thus even though I was wrong to find that there was
more than one guilty finding, the use of the ‘in toto’ phrase remains
explained by the fact that the appeal board intended to indicate that all
of the grounds of appeal against the one guilty finding were being
upheld.
26. I also found in paragraph 27 that my interpretation was consistent with
the manner in which the appeal board dealt with costs. It appreciated
that the general rule was that costs should follow the result, and
proceeded to explain why it was depar ting from this rule. It is not
correct to say that the appeal board said nothing about costs. As
explained in paragraph 28 of my judgment it held th at taking into
account the nature of the proceedings and that the appeal did not
make a finding on the facts of the complaint and that the irregularities
were committed by the tribunal and not the third respondent (whom
the appeal board considered to be separate entities), no costs were
awarded in favour of the applicant. For those reasons I found that the
failure to award costs was deliberate, and I am not persuaded that
another court will reach a different conclusion.
27. The applicant contended that by holding in paragraph 45 of my
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judgment that the applicant’s interpretation of the order was not an
unreasonable one, I recognised that another court might find
differently to me in so far as the interpretation is concerned. This
argument makes too much of paragraph 45 of my judgment. By saying
that the applicant’s interpretation was not unreasonable, I meant no
more than that I could see how she had arrived at the interpretation of
the order she contended for and, for this (and the other reasons
mentioned in my judgment) chose not to order her to pay costs. That
is not the same thing as saying that there is a reasonable prospect that
another court would find for her interpretation.
CONCLUSION
28. For the aforesaid reasons, I grant the following order:
28.1. The application for leave to appeal is dismissed.
28.2. The applicant is to pay the costs of this application, with
costs to be on scale B.
___ _____________
K D ILES
Acting Judge of the High Court, Johannesburg
Appearances:
On behalf of the applicant: G Shakoane SC
Instructed by: Phaleng Podile Attorneys
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On behalf of the 1st – 4th respondents: A Nell
Instructed by: Raymond Francois Hauptfleisch
Attorneys Inc
Date of hearing: 14 October 2025
Date of judgment: 15 October 2025