SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 2155/2022
In the matter between:
NOBEXOLISI CHRISTINAH MALGAS APPLICANT
and
THE MEC: FREE STATE DEPARTMENT OF POLICE,
ROADS AND TRANSPORT FIRST RESPONDENT
THE REGISTRAR: FREE STATE OPERATING,
LICENCING AND PERMIT BOARD SECOND RESPONDENT
THE CHAIRPERSON: GREATER BLOEMFONTEIN
TAXI ASSOCIATION THIRD RESPONDENT
OC MAROGOA FOURTH RESPONDENT
Neutral citation: Malgas v MEC: Free State Department of Police, Roads and
Transport and Others (2155/2022) [2025] ZAFSHC 358 (17 October 2025)
Coram: Van Zyl, J
Heard: 6 November 2025
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives by email and released to SAFLII. The date and time for
hand-down is deemed to be on 17 November 2025 at 9h30.
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Summary: Application for review in terms of the Promotion of
Administrative Justice Act, 3 of 2000 – application instituted beyond 180 days after
the date on which the applicant was informed /became aware of the decision as
determined by s 7 – no allegations in support of condonation – unreasonable delay –
in the a bsence of an extension of time in terms of s 9, the court has no authority to
entertain the review application – application dismissed.
_________________________________________________________________________
ORDER
1. The application is dismissed.
2. The Estate Late of Mr Ngomeni Jimmy Malgas (no: 16625/2008) is ordered to
pay the costs of the fourth respondent, counsel’s fees to be taxed on scale A.
JUDGMENT
Van Zyl, J
[1] This is a review application in terms of the Promotion of Administrative Justice
Act, 3 of 2000 (‘PAJA’), in terms whereof the applicant is seeking the following relief:
‘1. Reviewing and setting aside the decision by the 1 st Respondent, the 2nd Respondent
and the 3rd Respondent on or about the 25 th of February 2009, to transfer to the 4 th
Respondent the Mini Bus Permit No: L[...].
2. Declaring the impugned decision to be unlawful, inconsistent with the Free State
Public Transport Act, 4 of 2005, and invalid.
3. Directing that the Mini Bus Permit No: L[...], be returned to, and re-registered by the 1st
Respondent, the 2 nd Respondent and the 3 rd Respondent under the late Estate of Ngomeni
Jimmy Malgas.
4. Directing the 4th Respondent to take such steps as necessary to co-operate with the 1st
Respondent, the 2 nd Respondent and the 3 rd Respondent in releasing and/or signing any
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document that will facilitate the re -registration of the Mini Bus Permit No: L[...] to the late
Estate of Ngomeni Jimmy Malgas.
5. Condoning the late filing of this application in terms of section 9(2) of the Promotion of
Administrative Justice Act, 3 of 2000.
6. Ordering those respondents that oppose the relief sought by the Applicant, to pay the
costs of this application jointly and severally, the one paying the other to be absolved.
7. Granting the Applicant further and/or alternative relief as the Honourble Court may
deem fit.’
[2] Only the fourth respondent is opposing the application. The first to third
respondents indicated that they would abide by the decision of the court.
[3] The late Ngomeni Jimmy Malgas (‘the deceased’) were married in community
of property on 16 September 1993. The deceased passed away on 13 December
2008. The applicant is therefore the widow of the deceased. It is not specifically
indicated in the application papers that the applicant b rought the application in her
nomino officio capacity as the executrix of the estate of the deceased. She does
however aver at paragraph 8 of the founding affidavit as follows:
‘I was later during 2009 authorized by the Master of the High Court Bloemfontein, to take
control of the assets of the late Estate No 16625/2008.’
[4] The letters of authority issued by the Master appointing the applicant as such is
attached to the founding affidavit as annexure ‘D’. I am further mindful of the fact that
the relief sought at paragraph 4 of the notice of motion is that the relevant Mini Bus
Permit be re-registered in the name of the estate of the deceased. I consequently
accept, for purposes of this judgment, that the applicant brought the application in
her representative capacity as executrix of the estate of the deceased.
[5] Paragraph 9 of the founding affidavit contains the following averments:
‘After realizing that the abovementioned permit was transferred to the 4 th Respondent, I
‘After realizing that the abovementioned permit was transferred to the 4 th Respondent, I
approached the 1st Respondent, the 2nd Respondent and the 3rd Respondent, as early as the
year 2010, to review their decision. In one of our meetings, the senior official of the Free
State Department of Police, Roads and Transport, Mr T.J. Phahlo, instructed the members
of the board to review the transfer and register it under the late Estate of my late husband.’
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[6] The application was subsequently issued on 11 May 2022.
[7] In his answering affidavit the fourth respondent averred that the relevant permit
had been lawfully and validly transferred and registered in his name. In addition to
his defence on the merits, the fourth respondent further raised several points in
limine in his answering affidavit, read with the heads of argument filed on his behalf.
[8] One of the aforesaid points in limine raised on behalf of the fourth respondent is
the issue of condonation. In this regard Mr Mohono, who appeared on behalf of the
fourth respondent, stated as follows in his heads of argument:
’32. Prayer 5 of the notice of motion seeks condonation for the late filing of the PAJA
application.
33. Despite seeking condonation no case is made out at all for condonation.
34. It is common cause that the application was brought after twelve years. Despite this
extreme inordinate delay, no explanation for the delay has been provided by the applicant
neither did she even pay lip service to the condonation in the founding affidavit.
35. It is thus submitted that the application should be dismissed on this alone.’
Applicable legal principles:
[9] Section 7 of PAJA determines that review proceedings in terms of the Act must
be instituted without unreasonable delay and not later than 180 days after the date
on which the person concerned was informed of the administrative action, became
aware of the action and the reasons for it or might reasonably have been expected to
have become aware of the action and the reasons. According to a judgment of the
Constitutional Court the ‘administrative action’ refers to the ‘decision’ that is
challenged in the review proceedings. See Camps Bay Rate Payers’ and Residents’
Association and Another v Harrison and Another 2011 (4) SA 42 (CC) at para 57.
[10] In terms of s 9 of Paja the period of 180 days referred to in s 7 may be
extended for a fixed period by agreement between the parties or, failing such
extended for a fixed period by agreement between the parties or, failing such
agreement, by a court on application by the person concerned. The court may grant
such an application where the interest of justice so require.
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[11] When the abovementioned matter of Camps Bay Ratepayers’ and Residents’
Association and Another v Harrison and Another served before the Supreme Court
of Appeal ([2010] ZASCA 3; [2010] 2 All SA 519 (SCA) (17 February 2010) ) the
Supreme Court of Appeal at para 54 stated as follows in respect of s 9(2) of PAJA:
‘And 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. . .’
[12] In Opposition to Urban Tolling Alliance and Others v The South African National
Roads Agency Ltd and Others (90/2013) [2013 ] ZASCA 148; [2013 ] 4 All SA 639
(SCA) (9 October 2013)] the court determined at para 26 as follows:
‘[26] . . . 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 s 7(1) is still whether 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 interest of justice dictates an extension in terms of s 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 delay .
. .’
[13] In the judgment of this division in Mohapi and Others v Registrar Free State
Transport and Others (2283/2022) [2022] ZAFSHC 341 (2 December 2022) the court
dealt with an application in terms of PAJA similar to the present matter. In that matter
the court found as follows at para 15:
‘[15] This application was only instituted on 18 May 2022. It is undisputed that this period is
beyond the permissible 180 days within which the review application must be brought. There
is no condonation application requesting the variation regarding the time within which to
institute this application. The applicants are enjoined by section 7 of PAJA to institute these
proceedings within 180 days or within such period agreed between the parties or as
sanctioned by the court. The Applicants have failed to institute the application within 180
days as required by the law. This constitutes an unreasonable delay and is fatal to the
Applicant’s case . . .’
Application of the legal principles to the facts:
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[14] On the applicant’s own version she became aware of the transferral of the
permit to the fourth respondent and approached the first to third respondents in this
regard in 2010 already. However, the applicant failed to present any explanation for
the delay from 2010 until 2022 when the application was instituted.
[15] Although the applicant is seeking condonation in the notice of motion, no
averments in support thereof was made in the founding affidavit. There is
consequently no basis upon which condonation can be granted. In the absence of
condonation, where the applicant failed to institute these proceedings within 180
days as required by the Act, this delay is inordinate and unreasonable and is fatal to
the applicant’s case.
[16] In view of my aforesaid finding, I deem it unnecessary to deal with the further
defences raised by the fourth respondent.
Costs:
[17] There is no reason why costs should not follow the outcome of the application.
However, in the circumstances of this matter I deem it fair and reasonable that the
costs are to be paid by the Estate Late of Ngomeni Jimmy Malgas.
Order:
[18] The following order is made:
1. The application is dismissed.
2. The Estate Late of Mr Ngomeni Jimmy Malgas (no: 16625/2008) is ordered to
pay the costs of the fourth respondent, counsel’s fees to be taxed on scale A.
______________________
C. VAN ZYL
JUDGE OF THE HIGH COURT
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Appearances:
For the Applicant: H Rapapali
Instructed by: Holomo Rapapali, Bloemfontein.
Email: holomorapapali@yahoo.com
For the Fourth Respondent: KP Mohono
Instructed by: OMM Attorneys Inc., Bloemfontein
Email: admin@omminc.co.za