THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: J1527/17
In the matter between:
PUBLIC SERVANTS ASSOCIATION First Applicant
DEPUTY DIRECTORS OF PUBLIC
PROSECUTION EMPLOYED AS SUCH BY THE NPA
AND LISTED IN ANNEXURE “A”
TO THE NOTICE OF MOTION Second to Further Applicants
and
THE NATIONAL PROSECUTING AUTHORITY (NPA) First Respondent
THE MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES Second Respondent
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS Third Respondent
THE MINISTER OF PUBLIC SERVICES AND
ADMINISTRATION Fourth Respondent
THE MINISTER OF FINANCE Fifth Respondent
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DIRECTOR GENERAL: DEPARTMENT
OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Sixth Respondent
Heard: 26 February 2021 – virtually.
Delivered: 05 March 2021 – electronically transmitted to the parties.
Edited: 20 November 2025.
Summary: An application to review and set aside a decision not to
implement the costs of living adjustments in respect of the Deputy Directors of
Public Prosecutions ( DDPPs) and Chief Public Prosecutors ( CPCs). Section
18(1)(b) of the National Prosecuting Authority (NPA) Act , 32 of 1998 as
amended by section 9 of the Judicial Matters Amendment (JMA) Act , No 11 of
2012 interpreted and considered. Jurisdiction of the Labour Court – Court has
jurisdictional powers under section 158(1)(h) and section 158(1)(a)(iii) of the
Labour Relations Act , No. 66 of 1995 as amended . The common law rule of
delay applies and no need to apply for condonation. Held: (1) The application
is dismissed. Held: (2) There is no order as to costs.
JUDGMENT
MOSHOANA, J
Introduction
[1] Before Court is an application to review and set aside a decision of the State
in its capacity as an employer and to seek a declaratory relief. The application
is launched by the Public Services Association (PSA) on behalf of the Deputy
Directors of Public Prosecutions (D DPPs) and Chief Public Prosecutors
(CPCs). In terms of annexure A to the notice of motion there are about 112
prosecutors involved in this matter. Prior to the hearing of this matter few
interlocutory applications were launched. In one of them my brother
Tlhotlhalemaje J granted the Director-General: Department of Justice and
Constitutional Development leave to be a party to the present application . It
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was also ordered that an ans wering affidavit be filed by no later than 24
January 2020. Instead the answering affidavit was filed almost a year later.
Withal, the present application is duly opposed.
Background Facts
[2] This being a legality review I deem it prudent to state upfront that in terms of
section 179 (1) of the Constitution of the Republic of South Africa , 1996 (the
Constitution), in South Africa there is a single national prosecuting authority
which is structured in terms of an Act of Parliament . The National Prosecuting
Authority (NPA) consists of (a) National Director of Public Prosecutions
(NDPP); (b) Directors of Public Prosecutions (DPPs) and (c) Prosecutors as
determined by an Act of Parliament. On 16 October 1998, an Act of
Parliament known as the National Prosecuting Authority Act 1 (NPAA)
commenced application in South Africa. The NPAA was subjected to various
amendments over the years. The latest of which is one of 22 October 2020.
For the purposes of this judgment, the Act as it stood on 2 2 October 2020
shall be considered.
[3] In terms of section 15 (1) (b) and (c) of the NPAA, the Minister responsible for
the administration of justice is empowered to appoint Deputy Directors of
Public Prosecutions (DDPPs) after consultation with the NDPP. Section 16
deals with the appointment of Prosecutors. This matter involves the DPPs and
CPCs appointed in terms of the above legislative set up. The present dispute
centres around the proper interpretation of section 18 of the NPAA after
having been amended by section 9 of the Judicial Matters Act2 (JMA).
[4] At the pivot of the present dispute lies the provisions of section 18 (1) (a) and
(b) of the NPAA. In due course the text of the im plicated section will be
flashed out . The Minister responsible for justice is empowered by these
provisions to determine the salary scales for the DDPPs and CPCs. However,
1 Act 32 of 1998, as amended.
2 No. 11 of 2012.
4
the costs -of-living adjustments so determined are to be effected in
accordance with the cost-of-living adjustments determined for legally qualified
personnel in the Public Service. The applicants are of the view that the
powers to determine the cost-of-living adjustments by the Minister responsible
for Justice ended on 12 October 20 12 as a results of the introduction of the
amendments. The last determination was made on 17 October 2012.
[5] On 28 February 2013, the Department of Public Service Administration
(DPSA) issued Circular 2 of 2013. This circular provided for a cost -of-living
adjustment of 6.6% with effect from 1 April 2013. Further circulars were
issued adjusting the cost -of-living. The last of which was issued on 31 March
2016 providing for a 7.6% adjustment effective 1 April 2016. The applicant
takes a view that all of the abovementioned adjustments were effected within
the authority of section 18 as amended. As such they ought to be
implemented to the salaries of the DDPPs and the CPCs. The view being that
they are also legally qualified personnel in the Public Service.
[6] On 6 March 2017, Honourable Minister Ngoako Ramatlhodi in his capacity as
the then Minister of Public Services and Administration penned a missive to
Honourable Minister Masutha in his capacity as the then Minister of Justice
and Correctional Services. In the missive, Minister Ramatlhodi expressed a
view to the effect that owing to the amendment of section 18 of the NPAA, the
determination he made for employees on salary levels 1 to 12 is also
applicable to non-Senior Management Services (SMS) DDPPs and
prosecutors with effect from 1 April 2017. The applicants take a view that
barring to the exclusion of the SMS, the Honourable Minister’s interpretation
of section 18 as amended is correct.
[7] The above adjustment was effected in respect of prosecutors and not DDPPs.
The cost -of-living adjustment in respect of the DDPPs was implemented in
The cost -of-living adjustment in respect of the DDPPs was implemented in
accordance with the cost-of-living adjustment of Senior Management Services
5
(SMS) employed in terms of the Public Services Act 3 (PSA) and Correctional
Services Act4 (CSA).
[8] Since September 2016, members of the PSA have been lodging grievances
regarding the cost -of-living adjustments. On 12 December 2016, the NPA
referred the grievance to the Public Service Commission (PSC) for
consideration as required by rule 6(h) of the Rules for Dealing with
Grievances of the Senior Management Services , including Heads of
Department, of 2010. The PSC upheld the view of the NPA and rejected the
grievances. It is apparent that opinions of senior counsel were sought with
regard to the interpretation of section 18. That notwithstanding, the NPA
disagreed with the argument and interpretations by the applicants. On 31
March 2017, an internal memoranda was addressed to the office of the
Deputy National Director of Public Prosecutions (DNDPP) perpetuating the
argument. Similarly, the argument was rejected. On 25 April 2017, the
argument was escalated to the office of the NDPP, Mr Abrahams. On or about
31 July 2017, the present application was launched. As at that time the views
of Mr Abrahams were not expressed.
The late delivery of the sixth respondent’s answering affidavit.
[9] On 26 November 2019, my colleague Tlhotlhalemaje J made an order in the
following terms:
IT IS ORDERED THAT:
1. The applicant [Director General] is granted leave to
intervene as the sixth respondent to the application
instituted under case number J1527/17.
2. The applicant must file his answering affidavit to the
application instituted under case number J 1527/17 by no
later than 24 January 2020.
3 No. 103 of 1994.
4 No. 111 of 2008.
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3. There is no order as to costs.
[10] Despite the above order the Director General only delivered an answering
affidavit on 28 January 2021. In her wisdom, the Director General sought
condonation for the late filing of the answering affidavit and the applicants are
in opp osition thereof . However, in my view, seeking condonation is an
incorrect procedure. Rule 12 of the Labour Court Rules empowers this Court
to extent and abridge any period prescribed by the rules on application, and
on good cause shown. Section 158(1)(f) of the LRA empowers this Court
subject to the provisions of the LRA to condone the late filing of any document
with the Court. In this respect rule 12 and or section 158(1)(f) does not find
application. What is involved herein is a Court order. In terms of section 163
of the LRA any order of the Labour Court may be executed as if it were an
order of the High Court. Delivery of an answering affidavit by a specific date is
not mandated by the r ules of th is Court or th e LRA but by a Court. A Court
order requiring a party to do something – ad factum praestandum - is
enforced through contempt proceedings. In other words the Director General
is in contempt of a Court order of 26 November 2019 . The Director General
was ordered by this Court to deliver an answering affidavit by a specified date.
In order to address the contempt, the applicants may institute contempt
proceedings if so advised.
[11] This Court is not empowered to condone a non -compliance with a Court
order. Where a party ignores the terms of a C ourt order, such a party is said
to be guilty of contempt. The requisites of a contempt order are (a) the
existence of the order; (b) the order must be duly served on, or brought to the
notice of the contemnor; (c) there must be non-compliance with the order; and
(d) the non-compliance must be willful and mala fide. It was held in Pheko and
Others v Ekurhuleni Metropolitan Municipality (No 2) 5 that while the courts do
Others v Ekurhuleni Metropolitan Municipality (No 2) 5 that while the courts do
not countenance disobedience of judicial authority, it needs t o be stressed
that contempt of Court does not consist of mere disobedience of a court order,
but of the contumacious disrespect of judicial authority. All that is required is
5 2015 (5) SA 600 (CC).
7
evidence that the contemnor is obstinately disobedient or rebellious. It ought
to be shown on the balance of probabilities that the non -compliance was born
out of willfulness and mala fide. No contempt proceedings serve before me.
Clause 13 of the Practice Manual of this Court prescribes a procedure for
contempt proceedings. Such a prescribed procedure has not been invoked by
the applicants.
[12] Assuming that this Court has powers to condone the late delivery of the
answering affidavit, I should take into account the provisions of clause 11.4.2
of the Practice Manual, which provides that there is no need to apply for
condonation for the late filing of an affidavit unless the party upon whom the
affidavit is served also serve a notice of objection within ten days of receipt
failing which the right to object shall lapse. The answering affidavit in casu
was served on 28 January 2021. The applicants had a right to object by the
latest 11 February 2021. The applicants did not file a notice of objection.
However on 15 Feb ruary 2021, the applicants delivered a replying affidavit.
The contents of the replying affidavit suggests an objection to the answering
affidavit. It was held that a party may object in a replying affidavit 6. However
by 15 February 2021, the right to object had lapsed. The right having lapsed,
the Director General was not obligated to seek condonation.
[13] For all the above reasons seeking condonation is a step not required and was
perhaps taken ex abudandi cautela.
Preliminary points
[14] Before I deal with the merits of the present appli cation it is apposite to first
deal with the preliminary points raised by the respondents. The first point
deals with the nature of the present dispute. The respondents take a view that
6 See Temba Big Save CC v Mlamli Kunyuza and others case JA40/2015 dated 28 June 2016 (LAC)
see also Bon Accord Environmental Forum v The Department of Mineral Resources: Chief Inspector
see also Bon Accord Environmental Forum v The Department of Mineral Resources: Chief Inspector
of Mines and others case J2688/18 & JR1948/18 dated 13 January 2021.
8
the true nature of the present dispute is about a matter of mutual interest
alternatively a benefits dispute. I disagree with this view. The founding
affidavit is clear that the present application is one seeking a review and a
declarator. Accordingly, this first point is not upheld.
[15] The second point relates to lack of condonation and or prescription. A review
in this matter is brought in terms of section 158(1)(h) of the Labour Relations
Act7 (LRA). The section does not prescribe a time period within which to
launch the application . That being the case, a condonation application is not
required. In this matter there is no debt involved and as such the Prescription
Act8 does not find application. The applicants are questioning the leg ality of
the decision not to implement cost-of-living adjustments determined in terms
of section 18. The thrust of the applicants’ case is not that NPA owes the
DPPs and CCPs an amount of money, but that its decision not to pay is
unlawful and offends the principle of legality. If the applicants are right, the
relief to be afforded to them is to set aside the decision and declare the
correct legal position. Therefore no obligation to pay any money or owing of
money is involved in this application. However Mr Boda SC appearing for the
respondents submitted that prayer 3 of the notice of motion is a monetary
claim susceptible to being extinguished by prescription. I do not agree. The
applicants are simply asking the Court to direct the respondents to effect
something and not to pay something. Mr Ramogale appearing for the
applicants, in retort placed reliance on the decision of the Supreme Court of
Appeal (SCA) in Barnett and others v Minister of Land Affairs and others 9. In
that judgment the SCA applied the concept of continuous wrong. As pointed
out by the SCA that principle only found application against a case of alleged
contravention of the decree and the common law. This after the SCA gave the
contravention of the decree and the common law. This after the SCA gave the
term ‘debt’ a wider meaning to include a claim for enforcement of an owner of
rights to property.
7 No. 66 of 1995, as amended.
8 No. 68 of 1969.
99 2007 (6) SA 313 (SCA)
9
[16] A continuous wrong is one that is still in the course of being committed and is
not wholly past10. A claim of being owed money is not one that is in the course
of being committed. Therefore, reliance on Barnett was wholly misplaced.
However as pointed out above, I do not see a claim for money in this
instance. Mr Boda SC made reference to paragraphs 50 and 51 of the
founding affidavit to buttress the point of prescription. That in my view does
not help the respondents. The decision sought to be reviewed is the one of
not implementing as opposed to one of implementing. Paragraphs 50 -51 refer
to the implemented cost -of-living, which the applicants contend that if the
decision not to implement is unlawfully taken, as a consequence thereof, this
Court must direct the respondents to effect payment t o them. In a review
where no time period is prescribed, what finds application is the common law
principle of delay. In due course, this Court shall consider whether the delay
ought to be ignored or not. Accordingly, the second point is equally not
upheld. Assuming that directing the respondents to give effect is a distinct
debt – obligation to do something or refrain from doing something 11 - the
conclusion I reach at the end renders the determination of the issue moot.
[17] The third point relates to lis pendes and forum shopping. The respondents
equate this dispute with another dispute pending in the bargaining council
regarding an alleged unfair labour practice. An unfair labour practice dispute
is completely different from a review and a declarator. Mr Boda SC wisely
abandoned this point during argument.
[18] The fourth and last point relates to the factual existence of the PSC outcome.
The suggestion is that on application of the principle set out in Oudekraal
Estates (Pty) Ltd v City of Cape Town and others 12, until the outcome of the
PSC is reviewed and set aside, such remains and bears legal consequences.
PSC is reviewed and set aside, such remains and bears legal consequences.
Equally, Mr Boda SC wisely jettisoned this point during argument.
10 Slomowitz v Vereeniging Town Council 1966 (3) SA 317 (A)
11 See Desai NO v Desai 1966 (1) SA 141 (A).
12 2004 (6) SA 222 (SCA).
10
[19] The applicants contend that the decision to refuse the implementation of the
cost-of-living adjustment is at odds with the provisions of section 18 of the
NPAA. Section 1(c) of the Constitution propagates a rule of law. Any decision
contrary to the law offends the foundational principle of legality.
Evaluation
[20] The fulcrum of this application is the proper interpretation of section 18 of the
NPAA. The relevant parts of the section reads as follows:
‘Remuneration of Deputy Directors and prosecutors
(1)(a) Subject to the provisions of this section, any deputy director or
prosecutor shall be paid in accordance with the scale determined from
time to time for his or her rank and grade by the Minister after
consultation with the National Director and the Minister for the Public
Services and Administration, and with the concurrence of the Minister
of Finance… Provided that such determination is not required in
respect of any cost-of-living adjustment of such scale.
(b) Cost-of-living adjustments of the scale determined by the Minister in
terms of paragraph (a) shall be effected in accordance with the cost -
of-living adjustments determined for legally qualified personnel in the
Public Service.’
[21] The Constitutional Court in Kubyana v Standard Bank of South Africa 13, laid
down the following principle with regard to statutory interpretation:
“It is well established that statutes must be interpreted with due
regard to their purpose and within their context. Furthermore,
legislation must be understood holistically and, it goes without
saying, interpreted within the relevant framework of
constitutional rights and norms. However, that does not mean
that ordinary meaning and clear language may be discarded
13 2014 (3) SA 56 (CC)
11
for interpretation is not divination and courts must respect the
separation of powers when construing Acts of Parliament.
[22] When it comes to interpretation in general, this Court takes cue from Natal
Joint Municipal Pension Fund v Endumeni Municipality 14, where the Supreme
Court of Appeal had aptly stated the following:
‘Interpretation is the process of attributing meaning to words used in a
document, be it legislation, some other statutory instrument, or contract,
having regard to the context provided by reading the particular provision in
the light of the document as a whole and the circumstances attendant upon
its coming into existence. Whatever the nature of the document consideration
must be given to the language used in the light of the ordinary rules of
grammar and syntax; the context in which the provisions appear; the apparent
purpose to which it is directed and the material known to those responsible for
its production’.
[My underlining and emphasis].
[23] I disagree with a submission that the Minister responsible for Justice has been
stripped of the power to determine the cost -of-living adjustments since the
amendments introduced by section 9 of JMA. In order to interpret section 18
regard must also be had to the provisions of section 15 read with section 16 of
the NPAA.
[24] In terms thereof, the power to appoint lies wit h the Minister responsible for
justice. However, section 17 provides that the remuneration, allowances and
other terms and conditions of service and service benefits of the National
Director; a Deputy National Director and a Director shall be determined by the
President of South Africa. The simple reason for this power is that in terms of
section 10 the President is empowered to appoint the National Director and
may in terms of section 11 appoint the Deputy National Directors and in terms
of section 13 appoint Directors.
14 2012 (4) SA 593 (SCA).
12
[25] Owing to the fact that the Minister responsible for Justice is empowered to
appoint the DDPPs and CPCs , it follows axiomatically that he must be
empowered to determine some terms and conditions of service. Expressly
section 18(1)(b) suggests plainly so that the cost -of-living adjustments of the
scale are to be determined by the Minister. Once so determined, they shall be
carried into effect in accordance with the cost -of-living adjustments
determined for legally qualified personnel in the Public Service.
[26] The proviso in subsection 18(1)(a) simply means that in de termining the
salary scale, the conditions may be such that the Minister may not be required
to determine the cost -of-living together with the salary scale and may do so
separately. The word “ provided” bears as a dictionary meaning on the
condition or if. Such does not suggest a prohibition. In my view it means that
the Minister has an option to determine the salary scale only without the cost -
of-living adjustments. The legislature employed the phrase ‘not required’ as
opposed to prohibited. The dictionary meaning of the word ‘require’ is to have
as a requisite or necessity; need or depend on, also to stipu late as obligatory
by authority. Therefore in my interpretation of the phrase ‘provided that such
determination is not required in respect of any cost of living adjustment of
such scale’ simply means that if determination of cost of living adjustment is
not needed or obligatory the Minister may leave it out of account. Any other
interpretation will clash with the express and clear provisions of 18(1)(b) and
shall lead to absurdity.
[27] However, if the Minister does determine, as he or she is empowered to do, by
section 18 (1) (b), the adjustments, such adjustments would be carried out in
accordance with the cost -of-living adjustments determined by the Public
Service for legally qualified persons. The cost-of-living for the Public Service
Service for legally qualified persons. The cost-of-living for the Public Service
employees are to be determined by the Minister of Public Service and
Administration. The one determined b y the Minister of Public Services and
Administration for employees who are legally qualified in the Public Service
may be effected in tandem with the ones determined by the Minister
responsible for justice in respect of the DDPPs and CPCs. The literal meaning
13
of the word “effected” is the power to produce an outcome or achieve a result.
The words “in accordance with” literally means in agreement with, consistent
with, in harmony with, in concert with or in conformity with. Regard being had
to the meaning of the phrase it is so that two determinations are anticipated
which would be in harmony with each other. It cannot be ignored that the
legislature requires consultation between the two M inisters when determining
salary scales, rank and grade of the DDPPS and CPCs . Thus comparing
notes, as in using the same determination for senior managers is anticipated
and is not inimical to any of the statutory powers.
[28] The word ‘determined’ literally means decided upon as by an authority.
Therefore, the authority to decide upon the cost -of living adjustments for
people who are legally qualified are to be determined in conformity with each
other by the Minister responsible for Justice and the Minister of Public Service
and Administration. Both a legal advisor of a department and a public
prosecutor are legally qualified persons. Thus it makes logical sense for their
cost-of-living adjustments to be in conformity with each other albeit
determined by different Ministers . This view finds fortification from section 19
of the NPAA. The section provides that the other conditions of service shall be
determined in terms of the provisions of the PSA. Other means additional or
extra. In terms of section 2A(b)(i) of the PSA , conditions of service means
annual salary adjustments, salary scales or levels , performance bonuses, pay
incentives or pension benefits. In my view a cost-of-living adjustment must be
a pay incentive.
[29] In summary, I disagree with a submission that cost -of-living adjustments
cannot be determined by the Minister responsible for Justice. I also disagree
with a view that the NPA in its capacity as an employer is acting unlawfully by
deciding not to implement the cost -of-living adjustments punted for by the
deciding not to implement the cost -of-living adjustments punted for by the
applicants. In my view, the decision of the NPA conforms to the provisions of
section 18 of the NPAA. In a legality review, which section 158(1)(h) is one, of
importance is whether the decision impugned complies with the prescripts of
14
the law and if it does cadit quaesto . In my view, it is cadit quaesto for the
applicants with regard to the section 158(1)(h) application.
Is the applicant entitled to a declaratory relief?
[30] The decla ration sought by the applicant is that of declaration of rights as
opposed to declaration of unlawfulness per se. They require the Court to first
review and set aside the decision not to implement, whereafter, the Court to
declare their rights within the law – section 18 of the NPAA, since the decision
would have been found to be unlawful and set aside. Corbett CJ in Shoba v
OC Temporary Police Camp, Wagendrift Dam 15, laid the following principle
with regard to declaratory reliefs:
“An existing or concrete dispute between persons is not a prerequisite for the
exercise by the Court of its jurisdiction under this subsection, though the
absence of such may, depending on the circumstances cause the Court to
refuse to exercise its jurisdiction in a particular case … But because it is not
the function of the Court to act as an advisor, it is a requirement of the
exercise of jurisdiction under this subsection that there should be interested
parties upon whom the declaratory order would be binding …”
[31] As it shall be demonstrated later in this judgment, the declaratory order, if
made would have no binding effect on any of the respondents. In Proxi Smart
Services (Pty) Ltd v The Law Society of SA and others 16, the High Court,
correctly, in my view, held that the Court will not grant a declaratory order
where the issue raised before it is hypothetical, abstract and academic, or
where the legal position is clearly defined by statute. In this regard, the
provisions of section 18 as discussed above are perspicuous . The applicants
are not entitled to a cost-of-living adjustment as punted for by them as
allegedly stipulated in section 18 of the NPAA. In short the decision not to
implement is one that is lawful and unassailable.
15 1995 (4) SA 1 (A) at 14F-I
implement is one that is lawful and unassailable.
15 1995 (4) SA 1 (A) at 14F-I
16 2018 (5) SA 644 (GP)
15
Was there an unreasonable delay.
[32] The respondents take a view that the applicant’s actionable cause arose in
2012, thus having delayed in approaching the Court this application must be
refused on application of the common law rule of delay. In 2012, what
happened is the amendment of section 18 and not the birth of the applicants’
action. Put differently, it is when, on their contention the legislature changed
the law to suit their cause. It is incorrect to allege that when the law changes
to suit a particular situation the causes of action begin to run. It is common
cause that before appro aching this Court, the parties approached the PSC in
order to exhaust the available internal remedies. The outcome of the internal
remedies so invoked was made known to the applicants on 19 April 2017. It
does appear that the decision not to implement was taken and communicated
to the applicants on 18 April 2017 when Mr. Silas Ramaile SC representing
the NPA refused to implement the cost -of-living adjustment punted for.
Advocate Abrahams did not entertain the attempt to overrule Ramaile SC
after the matter was escalated to his office on 25 April 2017. Thereafter, it
took the applicant s three months after the decision by Ramaile SC to
approach this Court. It bears mentioning that as held in Williams v Benoni
Town Council17, a dispute exists when one party maintains one point of view
and the other a contrary view or a different one. When that position has
arisen, then there is a dispute. In my view the decision under attack
materialized on 18 April 2017.
[33] This delay is relatively not excessive. In MEC for Economic Development,
Environment & Tourism v Mogahlane 18, the Labour Appeal Court found that
the delay of six months was unreasonable . It may be so that the six week s
period determined for other reviews in this Court may serve as a guideline for
a reasonable period. However , in this matter shortly after the offending
a reasonable period. However , in this matter shortly after the offending
decision, the applicants escalated the matter to the accounting officer of the
employer who on the evidence presented failed to respond. Although the
17 1949 (1) SA 501 (W).
18 [2019] 4 BLLR 347 (LAC)
16
applicants took another eight weeks or so after the decision by Ramaile SC
that delay is excusable in the circumstance of this matter. Recently, the
Constitutional Court in Notyawa v Makana Municipality and others 19 had the
following to say:
‘[50] As was noted in Khumalo, prejudice that may flow from the
nullification of an administrative decision long after it was taken may
be ameliorated by the exercise of the wide remedial powers to grant a
just and equitable remedy in terms of section 172(1)(b) of the
Constitution. At common law, our courts avoided prejudice to
respondents by declining to entertain a review application. Our law
has since moved on and PAJA affords courts the wide remedial power
which may be exercised to protect the rights of innocent parties. That
power mirrors in exact terms the power contained in section 172(1)(b).
[51] It must be emphasised that when a court exercises the discretion , it
must always keep in mind the development brought about by the
Constitution and PAJA … What is important is to note that the
exercise of discretion is no longer regulated exclusively by the
common law principles which did not permit the flexibility of reversing
unlawful decisions while avoiding prejudice to those who had arranged
their affairs in terms of the unlawful decision.
[34] The message above seems loud, lucid and clear. It is no longer permissible
for a Court of law to avoid its constitutional obligation simply because of the
passage of time. In line with the constitutional imperatives of the rule of law, it
does seem that a Court of law is more compelled to ascend to the altar, where
an allegation is raised – not proven – that a particular decision is threatening
the rule of law. Jafta J added that where the unlawfulness of the impugned
decision is clearly established, the risk of reviewing that decision on the basis
of unreliable facts does not arise.
19 (2020) 41 ILJ 1069 (CC).
17
[35] In my mind a party seeking a review of a decision on the basis of illegality,
bears the onus to show the alleged illegality. The other party, the respondents
in this case, bears very little risk, which may translate to a mere
inconvenience, which may be remedied with an appropriate order of costs, if
the party heard, after a passage of time, fails to show the alleged
unlawfulness. On the other hand, where a Court of law refuses to hear a
matter in the face of apparent unlawfulness, in my mind, that Court would be
failing the foundational principle of the rule of law.
[36] A rule of law is achievable through a functional judiciary. Section 165 (1) of
the Constitution vests judicial authority in the courts. Although the common
law rule of undue delay still serves a n important purpose, in my view when
regard is had to section 1(c) read with sections 165(1), 34, 39(2) and 173 of
the Constitution, unless a hopeless case is so presented, courts must rise to
the occasion and defend, where necessary, the rule of law, to ensure a
functional State. Our constitutional democracy is young and fragile and it
deserves judicial activism. The basis of the common law rule of delay is in the
main prejudice. If indeed, the law properly interpreted ushered the rights
punted for by the applicants, it is difficult to appreciate any demonstrable
prejudice on the part of the respondents. They cannot claim that they had
arranged their lives on the strength of an illegality.
[37] The applicants have provided reasons why they approached this Court late. In
SITA SOC Ltd v Gijima Holdings (Pty) Ltd20, the Court asked the question: did
the award (impugned decision) conform to the legal prescripts? If it did, that is
the end of the matter. If it did not, it may be reviewed and possibly set aside
under a legality review. The Constitutional Court went on to reconfirm this in
DoT v Tasima (Pty) Ltd 21 with regard to the issue of delay. In Gijima, before
DoT v Tasima (Pty) Ltd 21 with regard to the issue of delay. In Gijima, before
dealing with the delay issue the question was posed: What impact, if any,
should this delay have? After Gijima, the Constitutional Court again in Buffalo
20 2018 (2) BCLR 240 (CC).
21 2017 (2) SA 622 (CC).
18
City Metropolitan Municipality v Asla Construction (Pty) Ltd 22 laid the basis for
the delay rule in legality reviews. The majority stated that the approach to
overlooking a delay in a legality review is flexible. It set out that it involves
taking into account a number of factors. The first of which is (a) potential
prejudice to affected parties – this is ameliorable, (b) the nature of the
impugned decision –this may drive the C ourt to the merits of the review, (c)
the conduct of the applicant – state litigants are compelled to act with haste
given the available resources, (d) C ourt compelled to declare the conduct
unlawful – as duty bound by section 172 (1) (a) of the Constitution.
[38] The two step approach remains. The first is, is the delay unreasonable? In my
view, the delay in this matter is not unreasonable. The second is, should this
delay be overlooked? Even if the delay is unreasonable, h aving considered
the evidence of the applicant s and having weighed the factors mentioned
above, with flexibility of course, I choose to overlook the delay and entertain
the matter. I regard the matter to be important to all the parties concerned, an
additional factor to be weighed, in my view, when considering whether to
overlook the delay or not.
[39] It ought to be emphasised, the delay rule only prevents a court of review to
entertain the application and does not prevent the court once the delay is
overlooked to still dismiss the review on its merits. In Merafong City Local
Municipality v Anglogold Ashanti Ltd 23, the majority judgment made an order
remitting the matter back to the High Court to consider the lawfulness of the
Minister’s decision. In Heath v President of the Republic of South Africa 24, it
was stated that the Court is obliged to adopt a two stage approach, if it finds
that the delay is reasonable that is the end of this enquiry and the review
proceeds.25 The delay rule is nothing but a procedural obstacle, which a
proceeds.25 The delay rule is nothing but a procedural obstacle, which a
Court of law must be slow to allow the delay to prevent the Court from looking
into a challenge to the lawfulness of the exercise of public power.
22 [2019] ZACC 15.
23 [2016] ZACC 35.
24 [2018] 1 All SA 740 (WCC).
25 Ibid at para 22.
19
[40] Accordingly, in my view the delay is reasonable. If I am wrong in my
assessment, in my discretion, I choose to ignore the delay and entertain the
review and the declarator as I did above.
[41] In the results, the following order is made:
Order
1. The application for review and a declarator are dismissed.
2. There is no order as to costs.
_______________________
GN Moshoana
Judge of the Labour Court of South Africa
Appearances:
For the Applicants: Mr T Ramogale
Instructed by: Ntshebe Inc Attorneys, Johannesburg.
For the Respondents: Mr F Boda SC and Ms S Tilly
Instructed by: State Attorney Pretoria.