(1) REPORTABLE: NO
(2)
(3) REVISED: NO
.. ~l,.,.l~---
DATE
In the matter between:
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
THE SOUTH AFRICAN RESERVE BANK
and
JAG IMPOR T EXPORT (PTY) LIMITED
In re:
JAG IMPORT EXPORT (PTY) LIMITED
and
THE RESERVE BANK OF SOUTH A FRICA
THE MINISTER OF FINANCE
NEDBANK LIMITED
HBZ LIMITED
Ca se Numb er: 2022-007728
Excipient
Re spondent
Plaintiff
1st Defendant
2nd Defendant
3rd Defendant
4th Defendant
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JUDGMENT
MOKOSE J
Introduction
[1] Before this court is an application wherein the South African Reserve Bank, the excipient, has
raised an exception to the cause of action of the plaintiff in the main application on the grounds that
the plaintiff's particulars of claim disclose no cause of action in that the plaintiff failed to bring its
review within the mandatory 90-day period as required by the Exchange Control regulations which, it
alleges, do not grant a court the power to condone the plaintiff's delay in so doing. Furthermore, the
excipient contends that this court has considered and determined the issue whether to grant the
condonation and had concluded in the negative. In the alternative, the excipient contends that the
plaintiff's particulars of claim are vague and embarrassing and disclose no factual grounds of review
which enable the excipient to meaningfully respond thereto and would accordingly be prejudiced if it
were required to plead to the particulars of claim as they stand.
[2] The plaintiff contends that the exceptions raised by the first defendant are devoid of merit as
it is not competent for the first defendant to contend in the context of exception proceedings, that the
plaintiff's claim in challenging the decision of forfeiture is time barred in terms of Regulation 22D(b) of
the Exchange Control Regu lations. The plaintiff contends that such contention should be raised in
terms of a special plea for purposes of adjudication in initio at the trial. A time bar defence is akin to
a defence of prescription.
Brief facts
[3] On 3 February 2022 the excipient published its decision made pursuant to its powers in terms
of the Exchange Control Regulations of 1961 where it declared the sum of R997 802,12 to be forfeited
to the State. Such publication appeared in the Government Gazette of the same date, and it was
communicated to the plaintiff accordingly. The 90-day period permitted for the challenge of such
decision expired on 4 May 2022.
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[4] The plaintiff served and filed its summons and particulars of claim on the plaintiff on 25 July
2022 in which it sought to challenge the decision of the excipient.
[SJ On 17 October 2022 the excipient delivered an exception to the plaintiff's particulars of claim
as contemplated in Rule 23 of the Uniform Rules of Court. I will refer to this exception as 'the First
Exception'. In particular, the excipient relied on Regulation 22(D)(b) which provides as follows:
''Any person who feels himself aggrieved by the attachment of any money or goods ....... in the case of o
decision under regulation 22(8)(1) .... .read with 22(C)(3}, to forfeit such money or goods, at any time
but not later than 90 days after the date of publication of the said notice institute an action in a
competent court for the setting aside of any such decision."
[6] Therefore, the excipient contended, that the plaintiff's action served on 25 July 2022 was
instituted after the 90 days as provided in Regulation 22(D)(b).
[7] The plaintiff was then afforded 15 days w 'thin which to remove the cause of complaint by the
excipient. However, on 14 November 2022 the plaintiff delivered what it called ''Amended Particulars
of Claim" which purported to amend the particulars of claim. It is noted that the "Amended Particulars
of Claim" was not preceded by a notice of intention to amend nor had a court order been obtained
permitting the said amendment. On 1 June 2023 the excipient filed a notice in terms of Rule 30A
calling upon the plaintiff to comply with the rules by rectifying the step taken of filing and serving the
''Amended Particulars of Claim". Furthermore, the excipient served and filed a conditional exception
to the ''Amended Particulars of Claim" (the second exception). However, the plaintiff elected not to
remove the cause of complaint raised in the ''Amended Particulars of Claim'~
(8] The plaintiff adm its that the decision of the excipient was transmitted by way of email on 3
February 2022 which invited it to institute acti_on in a competent court of law to set aside such decision
should it feel aggrieved. It contends that the invitation was clear and unequivocal in that it stated the
following:
"Kindly note that in terms of the Exchange Control Regulation 220, read with the relevant provisions
of the Promotion of Administrative Justice Act 2000 (Act 3 of 2000) any person who feels aggrieved by
a decision under Exchange Control Regulation 228 to forfeit monies to the State, may at any time, but
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no later than 180 days from the date of the publication of the Notice and Order of Forfeiture in
question, institute an action in a competent court for the setting aside of such decision."
Issues
[9] The main issue in this matter is whether the regulations, properly interpreted, permit the
condonation by this court to be granted after the expiry of the 90-day period in circumstances where
it clearly advised the plaintiff of its right to institute proceedings challenging its decision within 180
days of such decision. If the court finds in the negative, it is also entrusted to determine whether the
plaintiff's first particulars of claim are vague and embarrassing.
(11] Secondly, the court needs to consider and determine the issues raised in the second particulars
of claim and the second exception. Should these issues be determined in the affirmative, the court
needs to determine whether the second exception should be upheld on similar grounds to those as
traversed in the first exception.
(12) Counsel for the excipient indicated to the court that he does not persist with the Rule 30A
application.
Condonation
(13) The first issue to be determined by this court is whether the condonation of an out-of-time
review is appropriate prior to the determination of the merits of the review. The rule against
unreasonable delay in the ordinary judicial review proceedings has a long history in our law.1 The
rationale is an acknowledgement of the prejudice to interested parties that may flow from an
unreasonable delay as well as the public interest in the finality of administrative decisions and acts.2
(14] Regulation 22B (3) provides that the Reserve Bank may not dispose of forfeited assets until
final judgment has been granted in an application. The regulations require the Reserve Bank to refrain
1 Gqw etha v Transkei Development Corporation Ltd and Others 2006 (2) SA 603 (SCA) at para 24
2 Associated Institutions Pension Fund and others v Van Zyl and Others 2005 (2) SA 302 (SCA) at para 46
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from disposing of the assets for a 90-day period after the notice of forfeiture is published and if a
review application is instituted within that period.
[15] Forfeiture decisions, by their nature, require a degree of promptness in finalisation. Once the
90-day period expires, the granting of the condonation for a litigant's delay is no longer possible and a
court has no discretion to hold otherwise. The court, in the matter of M v MEC for Health:
Mpumalanga3 held the following:
"The broad discretion enjoyed by a court when considering whether or not a litigant has shown good
cause does not extend to incorporate ignorance of an Act of Parliament nor is it a free-floating power
to condone non-compliance with statutory time periods."
This principle as enunciated in the case above, has been confirmed by both the Supreme Court of
Appeal and the Constitutional Court.4
(16] In its defence, the plaintiff contends that it had reacted to the letter transmitted of its decision
under cover of a notice, by way of email dated 3 February 2022 which invited it to institute an action
in a competent court for setting aside such decision. The plaintiff contends that the invitation was
clear and unequivocal and stated that it may at any time, but no later than 180 days from the date of
the publication of the notice of forfeiture, institute an action in a competent court for the setting aside
of the decision. It did as directed and within 180 days from the date of publication.
[17] The plaintiff contends further that it was primarily the responsibility of the excipient for
causing the delay in the institution of the action in that it informed that the action must be instituted
within 180 days, thus waiving the prescriptive requirement as set out in Regulation 228. As such, the
delay was not deliberate.
3 [2021] ZAMPMBHC 21 at para 20
• Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) at paras 11 and 17; Minister of Agriculture and Land
Affairs v CJ Rance (Pty) Ltd 2010 (4) SA 109 (SCA) at para 14
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[18] Counsel for the excipient admitted that there had been an error in the letter as the challenge
to the forfeiture was to be done within a 90-day period but further contended that ignorance of the
law is not an excuse.
[19] It is common cause that the review of the plaintiff was launched on 25 July 2022, more than
60 days beyond the 90-day period within which it was obliged to bring the challenge. There is nothing
contained in the regulations that can be interpreted as conferring powers of condonation on the
courts. I agree that ignorance of the law is not an excuse. The letter was quite clear that the decision
had been made in terms of Regulation 22 which the plaintiff should have considered in making the
said challenge. It follows that the application for condonation on the part of the plaintiff may not be
granted. As such, the particulars of claim do not disclose a cause of action, and the defendant wou ld
be prejudiced if he were to plead to the particulars of claim as they stand.
(20] Accordingly, the following order is granted:
1. The first exception is upheld.
2. The plaintiff's claim is struck out.
3. The plaintiff is ordered to pay costs on Scale "B".
Judge of the High Court of South Africa
Gauteng Division, Pretoria
For the Excipient:
On instructions of:
For the Plaintiff:
On instructions of:
Date of Judgement:
Adv M Stubbs
Gildenhuys Malatji Inc
Adv NG Wi nfred
Sha beer Joosab Attorneys
24 November 2025
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