THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 297/2024
In the matter between:
CASPER DANIEL KASSELMAN N O FIRST APPELLANT
GERTRUIDA SUSANNA KASSELMAN N O SECOND APPELLANT
BDV ADMINISTRATION OF STATES (PTY) LTD THIRD APPELLANT
LOXODONTA (PTY) LTD FOURTH APPELLANT
and
THE SOUTH AFRICAN NATIONAL ROAD
AGENCY SOC LTD FIRST RESPONDENT
THE MINISTER, DEPARTMENT OF
TRANSPORT SECOND RESPONDENT
THE MINISTER, DEPARTMENT OF
MINERAL RESOURCES AND ENERGY THIRD RESPONDENT
2
Neutral citation: Kasselman and Others v The South African National Road
Agency SOC Ltd (SANRAL) and Others (297/2024) [2026]
ZASCA 02 (12 January 2026)
Coram: ZONDI DP, NICHOLLS and COPPIN JJA , STEYN and TOLMAY
AJJA
Heard: 7 May 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for the handing down of the
judgment are deemed to be 11:00 on 12 January 2026.
Summary: Administrative Law – The South African National Road s Agency
Limited and National Roads Act 7 of 1998 (SANRAL Act) – ss 7(1) and 7(2) of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA) – whether the impugned
decision to adopt a new roads policy for increased levy percentages and its
retrospective application is an administrative action as defined in terms of s 1 of
PAJA and is therefore susceptible to judicial review in terms of s 6 of PAJA,
alternatively the principal of legality – whether there was a n undue delay in
instituting review proceedings – whether the fact that the decision was not published
in the Gazette and that public participation was not sought in accordance with the
provisions of the SANRAL Act constitute grounds for review under s 6 of PAJA –
whether the appellant was obliged to exhaust internal remedies as contained in s 57
of the SANRAL Act before approaching the court for relief.
3
ORDER
On appeal from: Gauteng Division of the High Court, Pretoria (Francis-Subbiah J
sitting as court of first instance):
1 The appeal is upheld and the first respondent is ordered to pay the costs of the
appellant, which costs will include the costs of two counsel , where so
employed.
2 The order of the high court is set aside and substituted with the following:
‘(a) The first respondent’s decision to increase the financial compensation
payable to it by developers of service and rest areas alongside national roads
(class 3 facilities), from 0.5% of the gross turnover value (excluding VAT) of
the petroleum products sold on the property and 1% of the gross turnover
value (excluding VAT) of all other sales on the property to 2,5% and 6%
respectively, is reviewed and set aside;
(b) The policy titled ‘Policy for Rest and Service Facilities on National Roads’
that the first respondent adopted on an unknown date is declared unlawful and
of no force and effect;
(c) The matter is remitted to the first respondent for reconsideration and
compliance with the SANRAL Act;
(d) The first respondent is ordered to pay the costs of the appellants, including
the costs of two counsel.’
4
JUDGMENT
Tolmay AJA (Zondi DP, Nicholls and Coppin JJA, Steyn AJA concurring)
Introduction
[1] This is an appeal from the Gauteng Division of the High Court, Pretoria (the
high court) with leave to appeal granted by this Court. The high court dismissed the
application of the appellants (collectively referred to as the Trust) to review and set
aside a decision of the first respondent, the South African National Road Agency
SOC Ltd (SANRAL), to adopt and retrospectively apply a new roads policy with
increased levy percentages for permission to obtain access to and egress from
national roads.
[2] The high court concluded that although SANRAL performs a public function,
the terms of the contract, particularly the levy percentages, were negotiated in a
manner comparable to a commercial contract. These negotiations, the high court
said, have no direct, external effect on the public, and it could therefore not find that
SANRAL acted irrationally when it adjusted the levy percentages or adopted the
new policy in terms of which it made such adjustment.
[3] The main question before this Court is whether the decisionsby SANRAL to
adopt the new policy and retrospectively apply the increased levy percentages in a
proposed agreement is reviewable under the Promotion of Administrative Justice
Act 3 of 2000 (PAJA) or the principle of legality. The issues flowing from this main
question are: (a) whether there was an undue delay in instituting the review
5
proceedings and if so, whether the delay should be condoned; (b) whether SANRAL
exercised a public power , and in particular, whether the impugned decision s
constituted administrative action as defined in PAJA; (c) if it is found that SANRAL
exercised a public power and the decisions were indeed administrative action ,
whether the Trust was obliged to first exhaust the internal remedies provided for in
s 57 of the South African National Road Agency Limited and National Roads Act
7 of 1998 (the SANRAL Act) before bringing a review in terms of PAJA; and (d) if
the first three issues are determined in favour of the Trust, whether the impugned
decisions ought to be reviewed in terms of PAJA, alternatively the principle of
legality.
[4] The Trust argues that the decision to increase the levy percentages constitutes
administrative action which is reviewable under PAJA or the principle of legality ,
and that it should be reviewed and set aside due to non -compliance with the
SANRAL Act and PAJA. SANRAL, on the other hand, argues that in adjusting the
levy percentages it was acting as a contracting party and that its position is no
different from that of a private individual or institution. This would imply that the
negotiation of the contractual terms did not constitute the exercise of public power
or the performance of public functions. As a result, neither PAJA nor the principles
of legality would apply. If, however, the deci sion is found to be an administrative
action, then SANRAL argues that the Trust failed to first exhaust internal remedies,
and that there was an undue delay in launching the review proceedings.
Facts
[5] The Trust wants to construct and operate a filling station and rest facilities on
the road between Klerksdorp and Wolmaransstad. For this purpose, it started
negotiations with SANRAL during 2016. SANRAL is the registered servitude
6
holder of the road reserve next to national roads, including the N12, where the Trust
wants to erect its filling station and rest facility . At the time and in terms of a
SANRAL policy that applied in 2016 (the 2016 policy), a fee structure was in place,
according to which SANRAL could levy 0.5% on the gross sale of petroleum
products and 1% on the gross sale of all other products on the property.
[6] The process to obtain permission to construct the filling station went through
three stages. All the requirements were met and the parties were at the point of
finalising the agreement at the end of 2020. During January 2021 SANRAL sent a
draft agreement to the Trust for purposes of signature. This agreement however
included increased levy percentages of 2.5% on petroleum products and 6% on all
other products. These levy percentages, SANRAL said, were in accordance with a
new fee structure adopted by its Board and set out in the new policy guidelines (the
2021 policy). The 2021 policy was the result of the so-called Horizon 2030 strategy,
which was adopted and published during May 2017. One of the strategy’s objectives
was to ‘[maximise] the return of SANRAL’s assets to generate alternative funding
sources and explore opportunities to commercialise its services. . .’.
[7] SANRAL explained, during a meeting held with the Trust on 13 April 2021,
that the reasons for the increase of the levies were that the previous percentages were
determined in 1998, and were outdated, and that the Board had already decided in
2013 to revi ew the percentages. It further explained that the Board appointed
consultants to conduct a study and propose an increase. The increase of the levies as
set out in the agreement emanated from th at study. During the meeting the Trust
undertook to obtain a feasibility study to determine the effect the increase would
have and to make representations to SANRAL based on the feasibility study.
7
[8] The feasibility study was obtained by the Trust and it revealed that, if the
revised levy percentages were implemented, the filling station would not be
commercially viable. Such an increase would also have a far-reaching effect on the
fuel retailing sector. It also pointed out that the increase did not consider the
Regulatory Accounting System (RAS) distribution matrix.1
[9] In a letter dated 25 May 2021 SANRAL explained that its Board reviewed the
levies and circulated it within SANRAL on 26 February 2021. It also expressed a
willingness to further negotiate with the Trust.
[10] On 7 July 2021 the attorneys for the Trust in correspondence indicated that
the Trust disagreed that SANRAL was entitled to review and implement the levy
percentages in its sole discretion. The letter further pointed out that: (a) any revision
of policy must be done in line with fair administrative proce ss based on rational
considerations with the input of stakeholders; (b) no publication of the revised policy
or an invitation to stakeholders and affected parties to provide input could be found;
(c) the revised decision was only circulated within SANRAL after the Trust was
notified of the revision; and (d) the grounds upon whichh and considerations in terms
of which the Board decided to implement the increase were unknown. It was also
pointed out that SANRAL is governed by the SANRAL Act and is obliged to follow
a fair administrative process. It concluded by pointing out that the feasibility study
conducted on behalf of the Trust indicated that the increase of the levy percentages
was irrational.
1 The petroleum sector uses the RAS to determine appropriate margins for petroleum at wholesale, retail, secondary
storage and distribution level. It seeks to introduce transparency in the market, root out inefficiencies, cross-
subsidisation and uncontrolled costs.
8
[11] In a letter dated 22 July 2021 SANRAL stated that it was still considering the
matter and the concerns raised by the Trust. The Trust was later advised in an email
that SANRAL was struggling to appoint attorneys and it was recommended that the
matter be escalated to the CEO of SANRAL. On 20 September 2021 the availability
of the CEO was confirmed for a meeting on 5 October 2021, but the meeting
however only took place on 18 October 202 1. During this meeting SANRAL
expressed the opinion that it must ‘sweat its assets ’ and that the increase in levy
percentages was justifiable. It was concluded that the Trust must propose a solution
that would make business sense to all the parties.
[12] On 10 November 2021 GMI Attorneys confirmed that they were appointed to
represent SANRAL but would not be able to attend a meeting scheduled for 12
November 2021. A meeting was however held and an updated feasibility study was
proposed to consider a possible counter proposal. The report, which was furnished
to SANRAL on 19 January 2022, confirmed that the project would not be viable if
the increased levies are applied.
[13] Settlement discussions proceeded until 28 February 2022 when the attorneys
on behalf of SANRAL indicated that the settlement proposal was not acceptable. It
was recorded by SANRAL’s attorneys that: (a) migrating to the RAS would not be
feasible or practical for SANRAL ; (b) SANRAL would need an opportunity to
evaluate the Department of Mineral Resources and Energy (DMRE) model ; (c)
regulations around fuel prices and engagement with the DMRE is not within
SANRAL’s parameters; (d) the collection of levies was in line with the strategic
initiative behind the Horizon 2030 long term strategy; and (e) SANRAL still wanted
to find an amicable solution.
9
[14] The Trust , which was at this stage unaware whether the 2021 policy and
revised levies had been published, did not request such documents. Nor were those
documents furnished by SANRAL. The Trust then engaged with Mr L oubser, a
representative from Engen, who was reportedly knowledgeable in the field. Mr
Loubser opined that the levies were ultra vires and agreed to consult with the legal
representatives of the Trust.
[15] On 10 March 2022 junior counsel was instructed. The founding affidavit set
out in detail the interaction between the Trust and counsel. On 12 April 2022, after
instructions were obtained from the trustees, senior counsel was appointed due to
the complexity of the matter . There were delays because of the long history of the
matter, which started in 2016. The application to the Petroleum Controller for a site
licence could not be submitted without SANRAL’s permission. The Trust set out in
detail the steps that were taken to finalise the site licence application until it was
finally submitted on 2 June 2022.
[16] Some difficulty was experienced in obtaining all the information necessary to
prepare and finalise the site licence application. It was eventually established that an
advertisement of the increased levy percentages was published in the Rapport
newspaper of 18 July 2021 and the 2021 policy document was uploaded on
SANRAL’s website after this date . On 21 April, after having received documents
from Mr Loubser and a search of SANRAL’s website, it was established that: (a) a
rate card with the new levies was uploaded on 8 June 2021, (b) a media release was
uploaded on 23 June 2021 , and (c) the 2021 policy document was uploaded on 4
August 2021. Against this complex factual background, I turn to consider the issues
flowing from the main question in this case.
10
Was the increase to the levy percentages and its application on the Trust
‘administrative action’ as defined in PAJA?
[17] The main question in this matter is whether the decisions by SANRAL to
adopt the 2021 policy and apply the increased levy percentages in its proposed
agreement with the Trust are reviewable under PAJA, alternatively under the
principle of legality. This depends on whether the impugned decisions of SANRAL
constitute administrative action as defined in PAJA. Section 1 of PAJA defines an
administrative action in relevant part as follows:
‘administrative action' means any decision taken, or any failure to take a decision, by-
(a) an organ of state, when-
(i) exercising a power in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation;’ or
(b) a natural or juristic person, other than an organ of state, when exercising a public power or
performing a public function in terms of an empowering provision, which adversely affects the
rights of any person and which has a direct, external legal effect, but does not include . . .’
[18] The question of whether the impugned decisions are administrative action
should be answered by looking at the function and nature of the power exercised by
the Board of SANRAL when it took the impugned decisions. In President of the
Republic of South Africa and Others v South African Rugby Football Union and
Others2 the Constitutional Court explained that ‘[w]hat matters is not so much the
functionary as the function. The question is whether the task itself is administrative
or not.’ 3 It continued by explaining that ‘[t]he focus of the enquiry as to whether
conduct is “administrative action” is not on the arm of government to which the
relevant actor belongs, but on the nature of the power he or she is exercising. . . ’4.
2 President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1)
SA 1 (CC).
3 Ibid para 141.
4 Ibid.
11
[19] In adopting the 2021 policy SANRAL was clearly purporting to exercise a
public power or public function in terms of s s 34 and 35 of the SANRAL Act
empowering it to adopt a policy concerning, inter alia, the levies or fees that are
chargeable and payable in terms of the SANRAL Act. That the exercise of such
power may have an adverse effect on the rights of persons and have a direct, external
legal effect is also without question. In terms of the SANRAL Act, notice of the
proposed policy must be given to the public and they have the right to comment
thereon and make proposals in that regard. It should follow as a matter of course that
the application of the policy, including a fee or levy, to any person would also be
administrative action, unless it otherwise falls within one of the exclusions listed in
the definition. The fees and levies are part of the financial plan of SANRAL. The
mere fact that it is contained in a policy, does not exclude it from the range of actions
or decisions that are reviewable in terms of PAJA.
[20] For its conclusion that in this instance the decision to require from the Trust
the increased levy in terms of the 2021 policy, is not an administrative action and
therefore not subject to review, the high court relied inter alia on Cape Metropolitan
Council v Metro Inspection Services (Western Cape) CC and Others (Cape Metro).5
In that matter this Court held that the cancellation of a contract between a
municipality and a private firm was not an administrative action. The reasoning was
that the cancellation involved common -law contractual powers rather than public
power, as the ground for cancellation was fraud and not legislation.6
5 Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC and Others 2001 (3) SA 1013 (SCA) ;
2001 (10) BCLR 1026 (A) (Cape Metro).
6 Ibid para 20.
12
[21] In Logbro Properties CC v Bedderson NO and Others, 7 where a provincial
tender board’s decision not to award a tender, but to call for a new tender was in
issue, this Court explained that the court in Cape Metro did not ‘purport to provide
a general answer to the question whether a public authority in exercising powers
derived from a contract is in all circumstances subject to a public duty to act fairly.
That question was left open.’8 It is incontrovertible that whether an action constitutes
administrative action can only be determined within the factual matrix of each case.
[22] There are important distinctions between the facts in Cape Metro and this
matter. First, the decision to increase the levy percentages is based on legislation.
The levies and therefore the impugned decision, apply not only to the specific
contract negotiated between SANRAL and the Trust, but also to other entities in the
industry that meet with certain requirements. Second, the SANRAL Act requires the
publication in the Gazette of, and public participation in , policy decisions. The
decision is, on SANRAL’s own version, a policy decision.
[23] SANRAL is a State-Owned Entity (SOE) and as such has a unique character.
Hoexter9 defines a state -owned entity as state -owned companies or other
state-owned enterprises established by, or in terms of legislation. The State is the
sole shareholder of SOEs, in this instance represented by the Minister of Transport.
The core functions of SOEs are embodied in the fact that they are established, owned
and controlled by the State. They perform public functions that are in the public
interest and are therefore organs of state as defined in the Constitution. 10 SANRAL
7 Logbro Properties CC v Bedderson NO and Others 2003 (2) SA 460 (SCA); [2003] 1 All SA 424 (SCA).
8 Ibid para 9.
9 C Hoexter and G Pennfold Administrative Law in South Africa Third Edition, at 276 footnote 439.
10 Section 239 of the Constitution in relevant part reads as follows: 'organ of state' means-
(a) any department of state or administration in the national, provincial or local sphere of government; or
(b) any other functionary or institution-
(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or
13
is both a regulatory and service -delivery agency and as such engages in public
functions.11
[24] The fact that SANRAL is an SOE is significant. SOEs occupy a hybrid
position in South African law. Although often incorporated as companies (SOC Ltd)
under the Companies Act 71 of 2008, they are creatures of statute and perform public
functions. The boards of SOEs must be held accountable to the public due to the
performance of these public functions. In Transnet Ltd v Goodman Brothers (Pty)
Ltd,12 this Court explained that Transnet (which is also an SOE) is a company
incorporated in terms of s 2 of the Legal Succession to the South African Transport
Services Act 9 of 1989. It is wholly owned by the State and is controlled by the
Minister of Public Enterprises. In terms of its articles of association its main object
is to conduct and manage any business formerly carried on by the South African
Transport Services, and to do so in terms of sound business principles. It was
recognised that SOEs, like Tr ansnet, may be companies in form , but are subject to
public law when exercising public powers.
[25] The Constitutional Court reaffirmed that all exercises of public power,
irrespective of the identity of the actor, are governed by the Constitution and must
conform to its normative standards. 13 A failure to recognise the public power and
constitutional obligations of boards of SOEs open the door to abuse and
mismanagement, which in turn impacts on the obligations of the state and its
(ii) exercising a public power or performing a public function in terms of any legislation but does not include a court
or a judicial officer. See Hoffmann v South African Airways 2001 (1) SA 1 (CC); 2000 (11) BCLR 1235 (CC) para 23.
11 See AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social
Security Agency and Others 2014 (4) SA 179 (CC) para 52; National Gambling Board v Premier, KwaZulu -Natal,
and Others 2002 (2) SA 715 (CC) para 19.
and Others 2002 (2) SA 715 (CC) para 19.
12 Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA); 2001 (2) BCLR 176 (SCA) para 37.
13 Affordable Medicines Trust an Others v Minister of Health and Others 2006 (3) SA 247 (CC); 2005 (6) BCLR 529
(CC) paras 49 and 73.
14
obligations towards citizens. Some of these SOEs’ failure to deliver on their
constitutional duty and the impact thereof on our society have been amply illustrated
in our recent history.
[26] In Pharmaceutical Manufacturers Association of SA: In re Ex Parte President
of the RSA ,14 the Constitutional Court held that the exercise of all public power is
subject to the principle of legality, which requires that power be exercised rationally
and lawfully. This principle was reinforced in AllPay Consolidated Investment
Holdings (Pty) Ltd v CEO of SASSA,15 where the Constitutional Court held that even
entities engaging in commercial activities under a public mandate are required to act
fairly and transparently. There can thus be no doubt that, despite counsel for
SANRAL’s insistence to the contrary, that SANRAL is an organ of state and
performs public functions, and its decisions will generally be subject to review under
PAJA or the principle of legality.
[27] Boards of SOEs must act fairly, transparently and in accordance with the
principles of public law. The obligations of the boards of SOEs have been considered
by academics. De Visser and Waterhouse,16 relying on the work of Steytler17 and in
particular the notion of South Africa’s ‘Financial Constitution’, 18 point out that for
14 Pharmaceutical Manufacturers Association of SA and Another: In re Ex Parte President of the Republic of South
Africa and Others 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) paras 83 – 85.
15 All Pay Consolidated Investment Holdings (Pty) Ltd v C hief Executive Officer, South African Social Security
Agency; and Others [2013] ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1 (CC).
16 J De Visser and S Waterhouse SOE Boards and Democracy 2020. This is a document compiled by the Dullah Omar
Institute at the University of the Western Cape, available at https://dullahomarinstitute.org.za/women-and-
democracy/board-members-of-state-owned-enterprises-towards-transparent-appointments/reports/soe-boards-and-
democracy-final-pdf-version-12-feb-2020.pdf.
17 N Steytler ‘The “financial constitution” and the prevention and combatting of corruption: a comparative study of
Nigeria, South Africa and Kenya’ paper delivered at the 5th SASCA Conference Corruption and constitutionalism in
Africa: Revisiting control measures and strategies STIAS, September 2017.
18 De Visser and Waterhouse explain, at 7, the notion of South Africa’s ‘Financial Constitution’ as follows: ‘It is a
concept that sets out how the Constitution and statutes regulate public money, i.e. money that belongs to and must
serve the citizens of that country. It involves the constitutional architecture for the state’s raising and spending of
public money. Much of its origins can be traced back to British constitutionalism as set out by one of the earliest and
15
SOEs the rules are different as their corporatisation creates critical exceptions to the
constitutional architecture. These exceptions are inter alia, that many raise revenue
from citizens without using the tax collection interface, the revenue collected is not
deposited into the National Revenue Fund, many of them may borrow without the
direct involvement of Parliament, an SOE’s expenditure plan is not approved by
Parliament. Parliament does not directly oversee the legality and appropriateness of
spending, and this is done by the Board and the Minister.
[28] Because of these exceptions, the authors, in my view correctly, argue that the
accountability deficit created should be filled to safeguard the public interest, by
placing emphasis on the boards of these SOEs and good corporate governance. 19
This is directly relevant to how the boards of SOEs should exercise their discretion.
That discretion should be exercised with due regard to the place of SOEs within the
constitutional framework and applicable legislation and can neither be unfettered or
unlimited. It should always be exercised in the public interest.
[29] An interpretive exercise is required to establish the powers accorded to
SANRAL’s Board, as well as the procedural requirements that should be followed.
The established principles set out in Natal Joint Municipal Pension Fund v
Endumeni Municipality (Endumeni)20 and followed in a line of subsequent cases
should be applied in this exercise. 21 In Endumeni this Court explained that the
most influential British scholars of constitutionalism, Dicey. Even though it has undergone significant changes, British
constitutionalism undeniably influences many constitutions in Anglophone Africa.’
19 De Visser and Waterhouse at 13.
20 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA); [2012]
2 All SA 262 (SCA).
21 Minister of Police v Miya [2024] ZASCA 71; 2025 (3) SA 130 (SCA); Christoffel Hendrik Wiese and Others v
CSARS [2024] ZASCA 111; 2025 (1) SA 127 (SCA); 87 SATC 14; [2024] 4 All SA 108 (SCA); Minmetals Logistics
Zhejiang Co Ltd v The Owners and Underwriters of the MV Smart and Another [2024] ZASCA 129; 2025 (1) SA 392
(SCA); [2025] 1 All SA 60 (SCA) ; Prudential Authority v Dlamini and Another [2024] ZASCA 133; 2025 (1) SA
365 (SCA); [2025] 1 All SA 76 (SCA) ; Thistle Trust v Commissioner for the South Africa Revenue Service [2024]
ZACC 19; 2025 (1) SA 70 (CC); 2024 (12) BCLR 1563 (CC).
16
process of interpretation is a unitary and objective exercise that regards the text,
context and purpose of the document or instruments being interpreted. 22 In Cool
Ideas 1186 CC v Hubbard and Another (Cool ideas)23 the Constitutional Court held
that the purposive approach involves the interpretation of legal texts, such as statutes
or contracts, in a manner that gives effect to the underlying purpose or intention
behind the text.
[30] The interpretive process requires a holistic approach. The starting point in this
case is the preamble of the SANRAL Act that sets out the purpose, duties and role
of SANRAL. It in essence entails to take charge of national roads and related aspects
to it. 24 In terms of s 12(1) SANRAL is governed and controlled by a Board of
directors in accordance with the SANRAL Act which is appointed by the Minister.25
Chapter 3 of the SANRAL Act is headed ‘Functions, Powers and Responsibilities of
Agency’. Section 25(1) 26 sets out the powers of SANRAL and grants SANRAL
control over the national road system within the framework of government policy.
22 Endumeni paras 18 and 19.
23 Cool Ideas 1186 CC v Hubbard and Another [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC)
para 28.
24 The preamble to the Act reads as follows: To make provision for a national roads agency for the Republic to manage
and control the Republic's national roads system and take charge, amongst others, of the development, maintenance
and rehabilitation of national roads within the framework of governme nt policy; for that purpose to provide for the
establishment of The South African National Roads Agency Limited, a public company wholly owned by the State;
to provide for the governance and management of that company ('the Agency') by a board of directors and a chief
executive officer, respectively, and to define the Agency's powers and functions and financial and operational
accountability, and regulate its functioning; to prescribe measures and requirements with regard to the Government's
policy concerni ng national roads, the declaration of national roads by the Minister of Transport and the use and
protection of national roads; to repeal or amend the provisions of certain laws relating to or relevant to national roads;
and to provide for incidental matters.
25 Section12(3)(a).
26 Section 25(1) reads as follows:
‘25 Main functions of Agency
(1) The Agency, within the framework of government policy, is responsible for, and is hereby given power to perform,
all strategic planning with regard to the South African national roads system, as well as the planning, design,
construction, operation, management, control, maintenance and rehabilitation of national roads for the Republic, and
is responsible for the financing of all those functions in accordance with its business and financial plan, so as to ensure
that government's goals and policy objectives concerning national roads are achieved, subject to section 32 (3)’.
17
SANRAL in taking charge of national roads is endowed with a public duty and
should exercise it in accordance with government policy.
[31] In terms of s 26 (g) of the SANRAL Act, SANRAL has the right to charge a
levy, fee, or rent for any authority or permission that may be granted.27 It was argued
on behalf of SANRAL that the Board is legislatively accorded a discretion which is
exercised in terms of its 2021 policy document and the levy rate is determined at the
sole discretion of the Board. The high court agreed with this argument and held that
the aim of the 2021 policy is to generate revenue for SANRAL and the rate of the
levy is determined at the sole discretion of the Board. 28 That the Board has a
discretion is undoubtedly so, but as explained above, that discretion cannot be
unfettered as the Board is duty bound to exercise its discretion within the
frameworks of the Constitution, PAJA and the SANRAL Act.
[32] Section 34(2) of the SANRAL Act is a constraining provision that determines
that SANRAL’s funds will be used in accordance with SANRAL’s business and
financial plan as approved by the Minister. Section 35(5) provides that SANRAL
must make known any business, financial and strategic plan by having it published
in the Gazette. The Minister may order any further publication of the plan in one or
more national newspapers. Section 39(1) requires that the Government’s policy with
regard to national roads must be made known by the Minister by notice in the
Gazette. Section 39(2) requires public participation and stipulates that the proposals
27 Section 26(g) reads as follows:
‘26 Additional powers of Agency
In addition to the Agency's main powers and functions under section 25, the Agency is competent -
(g) to charge a levy, fee or rent for any authorisation, approval or permission that may be granted or given by the
Agency to any person from time to time in terms of section 44, 48, 50 or 52 for the provision, construction, erection,
establishment, carrying o n or operation on, over or underneath any national road, of anything provided for in the
section concerned. . .’
28 High Court judgment Kasselman N.O. and Others v South African National Road Agency SOC Limited ("SANRAL")
and Others [2023] ZAGPPHC 1786 para 11.
18
relevant to determining or amending the national roads policy must be made known
by notice published in the Gazette and interested persons and the public must be
invited to comment on the proposals and make recommendations.
[33] It is evident that the Board is constrained to act within the framework of the
provisions of the SANRAL Act. Considering that the impugned decision s are
administrative action, there should have been compliance with PAJA. SANRAL was
obliged to have followed mandatory procedural requirements and public
participation processes before the impugned decisions could have been taken. There
is no indication that the Minister was consulted or informed of the impugned
decisions. There is no proof that there was compliance with the notice and comment
provisions in the SANRAL Act before SANRAL adopted and purported to apply the
increased fees as per the 2021 policy on the Trust. Further, the impugned decision is
out of the realm of private parties negotiating a contract and within the framework
of public power being exercised by a state organ with all the obligations that go with
it. The conclusion is therefore ineluctable that the decision to adopt the new policy
and increase the levies is an administrative action. Therefore, the impugned
decisions may be reviewed in terms of PAJA.
Was there an undue delay in instituting the review proceedings?
[34] The next issue to be determined , is whether there was an undue delay in
launching the review proceedings. The Trust contends that the review proceedings,
brought on 2 June 2022 , w ere instituted within the 180 days and without
unreasonable delay as envisaged by s 7(1) of PAJA.29 If this Court however finds
29 Section 7 of PAJA determines as follows:
Procedure for judicial review
(1) Any proceedings for judicial review in terms of section 6 (1) must be instituted without unreasonable delay and
not later than 180 days after the date-
19
that the period was exceeded , the Trust seeks condonation. The date that the Trust
relies on as the date that the 180-day period started running is 28 February 2022,
when it received the letter, which rejected their proposed settlement, from SANRAL.
SANRAL on the other hand, contends that the calculation of the period should start
on 12 January 2021, the date that the Trust received the draft agreement containing
the increased levies , or at the latest on 25 May 2021 , when the Trust was advised
that the applicable levies were revised in accordance with SANRAL’s discretionary
powers in terms of ss 44 and 48 of the SANRAL Act.
[35] The 180-day period referred to in s 7(1) of PAJA is calculated from the date
on which any internal remedy provided for in any other law has been exhausted. If
no such internal remedy exists, the calculation begins on the date on which the
affected party became or ought to have become aware of the a dministrative action
and the reasons for it. SANRAL relied on Opposition to Urban Tolling
Alliance v South African National Roads Agency Limited.30 This case addresses the
issue of delay in review proceedings under PAJA. This Court held that a delay
exceeding 180 days is deemed 'unreasonable per se ' by the legislature. 31
Consequently, after the 180-day period, the court is only empowered to entertain the
review application if the interests of justice dictate an extension under s 9 of PAJA.
[36] However, even if the delay is deemed unreasonable, the court may on
application in the exercise of its discretion, condone it, if the interests of justice so
(a) subject to subsection (2) (c), on which any proceedings instituted in terms of internal remedies as contemplated in
subsection (2) (a) have been concluded; or
(b) where no such remedies exist, 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.
30 Opposition to Urban Tolling Alliance v South African National Roads Agency Limited [2013] ZASCA 148; 2013
JDR 2297 (SCA); [2013] 4 All SA 639 (SCA).
31 Ibid para 26.
20
require, considering factors such as the explanation for the delay, the extent of the
delay, and the merits of the review application.32
[37] The facts illustrate that it was only on 28 February 2022 that the Trust became
aware of the reasons for the decision. The period should therefore be calculated
from that date.
[38] The draft agreement sent on 21 January 2021 containing the altered levies did
not give any reasons for the decision. An analysis of the events before that date
indicate overwhelmingly that the parties were interacting to find a mutually
acceptable solution to the impasse between them. The review was instituted within
the 180 days, on 2 June 2022. It can also not be said that there was an unreasonable
delay in the launching of the review given the factual matrix of this matter. There
were continuous negotiations between the parties to come to an amicable solution.
The matter was complex and had a long history.
Was the Trust obliged to first exhaust an internal remedy?
[39] Section 7(2)33 of PAJA requires that all internal remedies be exhausted unless
exceptional circumstances exist and the person concerned brings an application to
be exempted from the requirement . T he courts have consistently confirmed the
32 Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd [2019] ZACC 15; 2019 (4) SA 331 (CC) 2019
(6) BCLR 661 (CC) paras 52 – 55.
33 It reads as follows:
7 Procedure for judicial review
(2)(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act unless
any internal remedy provided for in any other law has first been exhausted.
(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal remedy referred to in
paragraph (a) has been exhausted, direct that the person concerned must first exhaust such remedy before instituting
proceedings in a court or tribunal for judicial review in terms of this Act.
proceedings in a court or tribunal for judicial review in terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such
person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the interest of justice.
21
importance of complying with this requirement.34 Under PAJA, an internal remedy
refers to a mechanism provided by law that allows an aggrieved party to seek redress
or review of an administrative decision within the administrative hierarchy before
approaching a court for judicial review.
[40] The internal remedy relied on by SANRAL is contained in s 57 of the
SANRAL Act. It reads as follows:
‘(1) Where the Agency has refused a person's application for an approval or permission
contemplated in section 48 or 49 or has granted a limited or conditional approval or permission,
the person may appeal to the Minister against the refusal, limitation or condition in question, and
the Minister may dismiss the appeal or allow it in whole or in part, or take any other decision that
the Agency could have taken with regard to the application.
(2) Any approval, permission, limitation or condition which on appeal has been granted or imposed
by the Minister, will be regarded and treated for the purposes of this Act as if it were granted or
imposed by the Agency.
(3) An appeal in terms of subsection (1) must be lodged with the Minister in the manner and form
and within the period as prescribed.’(Emphasis added)
[41] The Trust argued that s 57 did not apply, because the permission was not
conditional. This argument has no merit . SANRAL’s permission to the Trust was
not an outright permission. It was conditional, because it was subject to the Trust
agreeing to pay the amounts levied by SANRAL.
34 Koyabe & others v Minister for Home Affairs & others (Lawyers for Human Rights as amicus curiae [2009] ZACC
23; 2010 (4) SA 327 ; 2009 (12) BCLR 1192 (CC ), (Koyabe) Basson v Hugo and others [2018] ZASCA 1; 2018 (3)
SA 46 (SCA) ; [2018] 1 All SA 621 (SCA) ; (Basson) Member of the Executive Council for Local Government,
Environmental Affairs and Development Planning, Western Cape and another v Plotz NO and another [2017] ZASCA
175; 2017 JDR 1964 (SCA); 2017 [2018] JOL 39535 (SCA); Pine Glow Investments (Pty) Ltd v Minister of Energy
and Others [2025] ZASCA 75; 2025 (6) SA 474 (SCA); [2025] 3 All SA 314 (SCA).
22
[43] Neither of the parties referred to s 57(3) that states that the appeal must be
lodged in the manner, form and time limit determined by the Minister. The
respondents in their heads of argument do not propose the form of a s 57 appeal, nor
do they refer to anything apart from the section itself to argue that this is an internal
remedy. They cite the case of Basson v Hugo and Others (Basson)35 as authority
that the Minister has wide powers and may take any other decision that SANRAL
could have taken. However, it is not the extent of the Minister’s powers that is in
contention here. There exists a more substantial problem with effectively pursuing
the appeal contemplated in s 57. A perusal of the principal and subordinate
legislation reveals that the Minister has not prescribed the manner, nor the form, nor
the time period in which such an appeal should have been lodged.
[43] In Koyabe & others v Minister for Home Affairs (Koyabe)36 it was explained
that the remedy available must be effective. It was held that:
‘In a constitutional democracy like ours, where the substantive enjoyment of rights has a high
premium, it is important that any existing administrative remedy be an effective one. A remedy
will be effective if it is objectively implemented, taking into account the relevant principles and
values of administrative justice present in the Constitution and our law. An internal remedy must
also b e readily available and it must be possible to pursue without any obstruction, whether
systemic or arising from unwarranted administrative conduct. Factors such as these will be taken
into account when a court determines whether exceptional circumstances exist, making it in the
interests of justice to intervene.’37
[44] Although this was said in the context of determination of exceptional
circumstances, the same approach should apply when there is a failure by the
Legislature to put in place the forms and procedures to enable an aggrieved party to
Legislature to put in place the forms and procedures to enable an aggrieved party to
35 Basson v Hugo and Others [2018] ZASCA 1; 2018 (3) SA 46 (SCA); [2018] 1 All SA 621 (SCA).
36 Koyabe & others v Minister for Home Affairs & others (Lawyers for Human Rights as amicus curiae [2009]
ZACC 23; 2010 (4) SA 327; 2009 (12) BCLR 1192 (CC).
37 Koyabe para 44.
23
effectively avail itself of an internal remedy. In a separate concurring judgment in
Basson Swain JA explained:
‘In Koyabe the Constitutional Court at fn 41 in dealing with possible exceptions to the duty to
exhaust an internal remedy, referred to the decision of Justice Blackmun in McCarthy v
Madigan 503 US 140 (1992) at 144 – 148, in the following terms:
“Justice Blackmun further recognised exceptions to the exhaustion requirement, where the
interests of the individual in obtaining judicial intervention outweigh the institutional interest in
exhaustion: (a) where it may prejudice subsequent court action (for example, an unreasonable or
indefinite time frame for administrative action); (b) where there is doubt whether the agency can
grant effective relief; and (c) where the administrative body is biased or has predetermined the
issue.” These exceptions may also be regarded as examples of the absence of an effective and
adequate internal remedy for the particular complaint.’38
[45] The remedy, in the absence of compliance by the Minister with s 57(3), is not
readily available, nor can it be pursued without obstruction. There was simply no
effective internal remedy available for the Trust to pursue. It cannot be in our
constitutional dispensation that it could be required of a party to show on application
that exceptional circumstances exist, where the failure of the legislature to comply
with its duties, renders it impossible to exhaust the internal remedies. Therefore, it
may be concluded that no effective internal remedy existed that could have been
exhausted.
Are the impugned decision s reviewable in terms of any of the grounds in
PAJA?
[46] In South African National Roads Agency Limited v Cape Town City39 which
primarily dealt with the legality of the City of Cape Town's opposition to the
SANRAL tolling project, this Court examined whether SANRAL had complied with
38 Basson para 47.
38 Basson para 47.
39 South African National Roads Agency Limited v Cape Town City [2016] ZASCA 122; 2017 (1) SA 468 (SCA);
[2016] 4 All SA 332 (SCA).
24
the procedural and substantive requirements under the relevant legislation, including
PAJA, when declaring certain roads as toll roads. This Court found that SANRAL
had failed to adhere to the procedural requirements mandated by PAJA, particularly
in relat ion to public participation and consultation. The City of Cape Town
successfully argued that SANRAL's decision to declare the roads as toll roads was
procedurally unfair and lacked transparency. This Court upheld the high court's
decision to set aside SANR AL's declaration of the toll roads, emphasising the
importance of administrative bodies adhering to statutory requirements to ensure
fairness and accountability in decision-making processes. The Court emphasised the
importance of acting within the confines of the SANRAL Act, it explained that
‘neither the Board nor the Transport Minister can act outside the confines of the
Act.’40 The same principle applies in this case.
[47] It is common cause that the public participation process, as required by
ss 34(2), 35(5) and 39 was not followed. SANRAL also did not comply with
s 3(2)(b)(i) to (v) of PAJA, which require the administrative action which adversely
affects the rights of others to be procedurally fair.41 Its action or conduct falls to be
reviewed under ss 6(2)(a)(i) and (ii), 6(2)(b), 6(2)(e)(ii) and (iii), and 6(2)(f)(ii)(cc)
of PAJA.42 The decision to adopt the new policy and to increase the levy percentages
should therefore be reviewed and set aside.
40 Ibid para 102.
41 Section 3 of PAJA reads as follows:
3 Procedurally fair administrative action affecting any person
(1) Administrative action which materially and adversely affects the rights or legitimate expectations of any person
must be procedurally fair.
(2)(a) A fair administrative procedure depends on the circumstances of each case.
(b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection
(4), must give a person referred to in subsection (1)-
(4), must give a person referred to in subsection (1)-
(i) adequate notice of the nature and purpose of the proposed administrative action ;
(ii) a reasonable opportunity to make representations;
(iii) a clear statement of the administrative action;
(iv) adequate notice of any right of review or internal appeal, where applicable; and
(v) adequate notice of the right to request reasons in terms of section 5.
42 Section 6 of PAJA reads in relevant part as follows: . . .
25
Conclusion
[48] The Trust implored us to direct that the levy percentages set out in the 2016
policy should app ly. The appropriate remedy is to remit the matter to the original
decision-maker for reconsideration. This approach respects the principle of
separation of powers, as it allows the administrative body to exercise its expertise
and discretion. There are no exceptional circumstances in this case that would allow
this Court to determine the appropriate levies to be charged. Therefore, the matter
should be remitted to SANRAL to comply with the provisions of the SANRAL Act.
[49 The following order is made:
1 The appeal is upheld and the first respondent is ordered to pay the costs of the
appellant, which costs will include the costs of two counsel , where so
employed.
2 The order of the high court is set aside and substituted with the following:
‘(a) The first respondent ’s decision to increase the financial compensation
payable to it by developers of service and rest areas alongside national roads
(class3 facilities), from 0,5% of the gross turnover value (excluding VAT) of
the petroleum products sold on the property and 1% of the gross turnover
value (excluding VAT) of all other sales on the property to 2,5% and 6%
respectively, is reviewed and set aside;
6 Judicial review of administrative action . . .
(2) A court or tribunal has the power to judicially review an administrative action if -
(a) the administrator who took it-
(i) was not authorised to do so by the empowering provision;
(ii) acted under a delegation of power which was not authorised by the empowering provision; or . . .
(b) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;
. . .
(e) the action was taken- . . .
(ii) for an ulterior purpose or motive;
(iii) because irrelevant considerations were taken into account or relevant considerations were not considered; . . .
(f) the action itself- . . .
(ii) is not rationally connected to- . . .
(f) the action itself- . . .
(ii) is not rationally connected to- . . .
(cc) the information before the administrator; or . . .
26
(b) The policy titled ‘Policy for Rest and Service Facilities on National Roads’
that the first respondent adopted on an unknown date is declared unlawful and
of no force and effect;
(c) The matter is remitted to the first respondent for reconsideration and
compliance with the SANRAL Act;
(d) The first respondent is ordered to pay the costs of the appellants, including
the costs of two counsel.’
_______________________
R TOLMAY
ACTING JUDGE OF APPEAL
27
Appearances
For appellant(s): H G A Snyman SC (with J D Matthee)
Instructed by: Laufs Attorneys, Potchefstroom
Honey & Partners Inc, Bloemfontein
For respondent(s): L Kutumela (with J Mabuza)
Instructed by: Gildenhuys Malatji Inc, Pretoria
Webbers Attorneys, Bloemfontein.