IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 79041/2018
In the matter between:
Solidarity Applicant
And
National Commissioner of the First Respondent
South African Police Service, N.O.
Minister of Police N.O. Second Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHERS JUDGES: NO
(3) REVISED: NO
(4) DATE: 10 February 2026
(5) SIGNATURE: __ ____
4
South African Police Service Third Respondent
Phetso Anna Sebilwane and Others Fourth to Seventy
Sixth Respondents
This judgment is issued by the Judge whose name is reflected herein
and is submitted electronically to the parties/their legal representatives
by email. The judgment is further uploaded to the electronic file of this
matter on CaseLines by the Judge or her Secretary. The date of this
judgment is deemed to be 10 February 2026.
JUDGMENT
COLLIS J
1] This is an application for leave to appeal against the judgment and
order of this Court delivered on 26 March 2024.
2] The court a quo dismissed Solidarity’s application to review and set
aside the implementation of the South African Police Service’s “Non -
Statutory Forces” project (“NSF project”) and ordered Solidarity to pay
the costs.
5
3] Leave to appeal is sought in terms of section 17(1) of the Superior
Courts Act 10 of 2013 (“the Superior Courts Act”) to the Supreme Court
of Appeal, alternatively to the Full Court of the Gauteng Division, on the
grounds listed in the application for leave to appeal namely:
3.1 Delay and Condonation: The court a quo’s refusal to condone the
late institution of the review.
3.2 Locus Standi: The court a quo’s finding that Solidarity lacked
standing.
3.3 Justiciability (Administrative Action vs Labour Matter): The court a
quo characterising the dispute as a “labour issue”, not cognisable in a
PAJA or legality review.
3.4 Errors in Merits and Lawfulness of the NSF Project: The court a quo
failed to properly assess the legality and rationality of the NSF project
on its merits.
3.5 Costs Order: The punitive costs order against the applicant.
4] The respondents oppose the relief sought and submit ted that
Solidarity has no reasonable prospects of success on appeal.
5] As per this Court’s judgment it was found that:
6
5.1 There was no basis for granting condonation for Solidarity’s delay
in bringing its review application.
5.2 Solidarity lacked locus standi to bring the application; and
5.3 Review proceedings under PAJA were not competent, as the
implementation of the NSF Project by SAPS did not constitute
administrative action.
TEST FOR LEAVE TO APPEAL
6] Section 17(1) of the Superior Courts Act provides that leave to appeal
may be granted “only” if the court is of the opinion that (a)(i) the appeal
would have a reasonable prospect of success, or (a)(ii) there is some
other compelling reason why the appeal should be heard (for example,
conflicting judgments on the matter).
7] This dual requirement has been construed as raising the bar for the
granting of leave: an applicant must now convince the court on proper
grounds that there is a reasonable chance of success on appeal, as
opposed to merely a prima facie case or arguable issue. In other words,
“more is required… than that the case is arguable on appeal or that it
is not hopeless” – there must be a sound, rational basis to conclude
7
that the appeal could succeed (see S v Smith 2012 (1) SACR 567 (SCA)
at paras [7] & [8]).
8] At the same time, section 17(1)(a)(ii) recognises that leave may be
granted for compelling reasons, even where prospects of success are
not strong. Our courts have emphasised that if important issues of law,
constitutional matters, or questions of public i mportance would be
raised by the appeal, these factors can constitute “compelling reasons”
justifying that the appeal be heard. The SCA in Ramakatsa and Others
v ANC [2021] ZASCA at para [31] confirmed that even if the applicant
fails to demonstrate clear prospects of success, the court “must still
enquire into whether there is a compelling reason to entertain the
appeal”, such as an “important question of law or a discreet issue of
public importance that will have an effect on future disputes”. However,
even in such cases, the merits of the appeal remain relevant and often
decisive in the overall interests of justice.
9] In summary, leave to appeal is not a mere formality. The threshold
is deliberately high: the applicant must show that there is a realistic
chance of reversal on appeal (not just a remote possibility), or that the
matter warrants the attention of an appella te court due to wider
importance or conflicting jurisprudence. The Supreme Court of Appeal
has cautioned that judges hearing leave applications must engage in a
8
careful, impartial analysis of the facts and law to assess whether
another court could come to a different conclusion. The test is applied
with due regard to the principle of judicial humility; the court a quo
should not over-zealously defend its own judgment, nor should it refer
matters to appeal that are “indubitably correct” (per Shinga v S 2007
(2) SACR 28 (CC) at para 53).
10] In the present application the applicant submitted that this case
implicates constitutional rights and principles: including the right to just
administrative action (PAJA and legality, under sections 33 and 1(c) of
the Constitution), the right to equality (section 9, particularly the limits
of fair discrim ination under section 9(2)), and broader rule -of-law
values of transparency, accountability and lawful governance (sections
1(c) and 195 of the Constitution).
11] Th e applicant further submitted that the present case raises
constitutional issues, the threshold for leave must be applied mindful of
the interests of justice, to ensure that arguable constitutional
grievances are not shut out without consideration by a higher court
(Ramakatsa SCA at paras [11] & [12]; see a lso Phillips v NDPP 2003
(6) SA 447 (SCA) at para 20).
9
12] This counsel for the applicant argued within this context, the
constitutional dimension of the issues is an important backdrop both to
the prospects of success and to the compelling reasons for appeal.
REFUSAL OF CONDONATION
13] In respect of condonation the court a quo had found that:
13.1 Solidarity failed to adequately explain the delay in bringing the
review application, which was filed outside of the prescribed 180 -day
period under the Promotion of Administrative Justice Act1(“PAJA”).2 The
court a quo accepted that Solidarity had been aware of the NSF project
since at least 2016, 3 yet failed to bring the review proceedings within
180 days hereof and had not explained the whole period of the delay;4
13.2 furthermore that the applicant’s delay beyond the prescribed 180-
day period was ipso facto unreasonable under PAJA and that Solidarity
had not shown that the interest of justice required that condonation be
granted as required in terms of section 9 thereof;5
1 Act 3 of 2000.
2 Judgment, p 000-13, para 29 – p 000-18, para 41.
3 Judgment, p 0025, para 63-64.
4 Judgment, p 000-25, paras 63 – 64, para 66.
5 Judgment, p 000-18, para 42 – p 000-26, para 67, especially p 000-22-000
23, para 55-59.
10
13.3 In addition that Solidarity had not placed any evidence before the
court to gainsay the prima facie inference that the delay was
unreasonable;6
13.4 the court a quo also found that as a matter of fact, the delay was
unreasonable7 as nothing precluded Solidarity from launching its review
and seeking leave to amend its papers when the record became
available under Rule 53; the fact that SAPS failed to provide it with
documentation to support its review was thus not a factor contributing
to the delay or rendering it reasonable as required as a first step in
bringing a legality review.8
13.5 For the above reasons the court a quo concluded that Solidarity
had not established any basis for the court exercising its discretion to
nevertheless overlook the delay in the interests of justice or in the
public interest.9
14] On point the argument advanced by Solidarity is that the court a
quo having refused condonation under PAJA, then inconsistently noted
6 Judgment, p 000-24 para 62.
7 Judgment, p 000-26, para 67
8 Judgment, p 000-25, para 65 read with Buffalo City quoted at p 000-24 para
60.
9 Judgment, p 000-26, para 68.
11
(at paragraph 104) that PAJA might not even apply, since the impugned
conduct might not even be “administrative action.”
15] Notwithstanding that, the applicant argued that the court a quo did
not consider applying the more flexible legality standard for delay and
simply proceeded to dismiss the application outright on the basis of
lateness.
16] On th is ground the applicant submitted that the re exists a
reasonable prospect that another court would find that the delay should
have been condoned or that the legality review should have been
entertained despite the delay.
17] Solidarity sought condonation in terms of section 9 of PAJA,
alternatively, for the review to be considered “on the ground of legality
in the event of no condonation being granted”10.
18] In assessing the merits of Solidarity’s review application, the court
dealt with and rejected each of the grounds upon which the review was
10 FA, 02-47, para 110.
12
based and refused condonation under PAJA and in terms of the
principles governing legality reviews.
19] In Brightwater11 the court noted that the discretion exercised under
s. 172(1)(b) of the Constitution is ‘ a discretion in the true sense ’ and
that it can only be interfered with on appeal if it is satisfied that the
discretion was not exercised judicially, or that it had been influenced by
wrong principle or a misdirection on the facts or that it had reached a
decision which in the result could not reasonably have been made by a
court properly directing itself to all the relevant facts and principles.
20] In its judgment this court had found that in the case of a legality
review, condonation need not be explicitly sought.12
21] In Buffalo City,13 the court there held that the approach to undue
delay in the context of a legality challenge necessarily involves the
exercise of a broader discretion than that traditionally applied to a
condonation application brought in terms of section 9(1) of the PAJA.
22] In assessing whether there was a delay the first enquiry is whether
the organ of state delayed in bringing the review application. This is a
factual inquiry on which a value judgment is made. Delay means a
11 Brightwater, supra, at par. 21.
12 Judgment p 000-23, para 60.
13 Buffalo City (supra), at par. 42.
13
period longer than that required by a litigant acting promptly and facing
no obstacles.14
23] Once it is determined that there has been a delay, the court must
consider whether it is reasonable or not. In deciding whether the delay
was unreasonable, the court must look at the explanation for the delay,
which must cover the whole period. Without an explanation the delay is
unreasonable. If the delay is unreasonable and there is an
unsatisfactory explanation for the delay, the next question is whether
the court should overlook the unreasonable delay.15
24] The approach to whether to overlook an unreasonable delay is a
flexible one, grounded on proven facts and objectively available
considerations.16 This requires a ‘ factual, multi -factor and context
sensitive’ enquiry in which a range of factors are considered and
weighed.17
25] The first is potential prejudice to affected parties, the possible
consequences of setting aside the impugned decision, and the possible
amelioration of prejudicial consequences by the granting of a just and
equitable remedy.
14 Central Energy Fund SOC Ltd and Another v. Venus Rays Trade (Pty) Ltd
and Others (4305/18) [2020] ZAWCHC 164 (20 November 2020), at par. 289.
15 Central Energy Fund, supra, at par. 289.
16 Central Energy Fund, supra, at par. 290.
17 Valor IT v Premier, North-West Province & others [2020] 3 All SA 397 (SCA)
at par. 30.
14
26] None of these factors were addressed by Solidarity in their founding
affidavit.
27] The second is the nature of the impugned decision, which requires
a consideration of the merits of the legality challenge and the extent
and nature of the illegality. Strong prospects of success may thus
excuse an inadequate explanation. 18
28] In Minister of International Relations and Co-operation and Others
v Simeka Group (Pty) Ltd and Others, 19 the Supreme Court of Appeal
provided a useful exposition of the principles applicable to delays in
launching legality reviews with reference to the relevant authorities. In
dealing with the court a quo’s refusal to overlook what had been found
to be an unreasonable and unexplained delay, the Supreme Court of
Appeal stated:
“[63] …Therefore, it is now timely to determine whether the
admitted delay was, as the high court found, both unreasonable
and unexplained. In the event that the delay is found to be
18 Valor, supra, at par’s 38 – 39. In this matter there was a very substantial
delay and the explanation for it was wanting. However, because there were
strong prospects of success, the Court was prepared to overlook the delay.
See also Aurecon South Africa (Pty) Ltd v City of Cape Town [2015] ZASCA
209; 2016 (2) SA 199 (SCA) at par. 17.
19 (610/2021) [2023] ZASCA 98; [2023] 3 All SA 323 (SCA) (14 June 2023).
15
unreasonable, it will be necessary to determine whether it should
nevertheless be overlooked.
[64] It is as well to remember that here, we are dealing with a
legality review which is not subject to the time constraints
prescribed by s 7(1) of PAJA.
[65] Nevertheless, even before the advent of our constitutional
order and the enactment of PAJA, our courts had long held that
reviews must, as a general rule, be instituted without undue
delay. The rationale for this time -honoured requirement was
explained by Brand JA in Associated Institutions Pension Fund and
Others v Van Zyl and Others as follows:
'It is a longstanding rule that courts have the power, as part of
their inherent jurisdiction to regulate their own proceedings, to
refuse a review application if the aggrieved party had been guilty
of unreasonable delay in initiating the proceedings. The effect is
that, in a sense, delay would 'validate' the invalid administrative
action (see eg Oudekraal Estates (Pty) Ltd v City of Cape Town
and others [2004] 3 All SA 1 (SCA) 10b-d, para 27). The raison
16
d'etre of the rule is said to be twofold. First, the failure to bring a
review within a reasonable time may cause prejudice to the
respondent. Second, there is a public interest element in the
finality of administrative decisions and the exercise of
administrative functions (see eg Wolgroeiers Afslaers (Edms) Bpk
v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) 41).
The scope and content of the rule has been the subject of
investigation in two decisions of this court. They are the
Wolgroeiers case and Setsokosane Busdiens (Edms) Bpk v
Voorsitter, Nasionale Vervoerkommissie en 'n Ander 1986 (2) SA
57 (A). As appears from these two cases and the numerous
decisions in which they have been followed, application of the rule
requires consideration of two questions:
(a) Was there an unreasonable delay?
(b) If so, should the delay in all the circumstances be condoned?
(See Wolgroeiers 39 C-D.)
The reasonableness or unreasonableness of a delay is entirely
dependent on the facts and circumstances of any particular case
(see eg Setsokosana 86G). The investigation into the
17
reasonableness of the delay has nothing to do with the court's
discretion. It is an investigation into the facts of the matter in
order to determine whether, in all the circumstances of that case,
the delay was reasonable. Though this question does imply a
value judgment it is not to be equated with the judicial discretion
involved in the next question, if it arises, namely, whether a delay
which has been found to be unreasonable, should be condoned
(See Setsokosane 86E-F).'
[66] Cameron J endorsed this abiding principle in Merafong City
Local Municipality v AngloGold Ashanti Limited and reiterated
that:
'... The rule against delay in instituting review exists for good
reason: to curb the potential prejudice that would ensue if the
lawfulness of the decision remains uncertain. Protracted delays
could give rise to calamitous effects. Not just for those who rely
upon the decision but also for the efficient functioning of the
decision-making body itself.'
18
[67] In Khumalo and Another v Member of the Executive Council
for Education: KwaZulu Natal (Khumalo) Skweyiya J, whilst
acknowledging the indisputable existence of the delay rule,
observed that courts nevertheless have a discretion to overlook a
delay where appropriate. He said:
'[A] court should be slow to allow procedural obstacles to prevent
it from looking into a challenge to the lawfulness of an exercise of
public power. But that does not mean that the Constitution has
dispensed with the basic procedural requirement that revi ew
proceedings are to be brought without undue delay or with a
court's discretion to overlook a delay.'
[68] In support of this statement Skweyiya J relied on s 237 of
the Constitution and held:
'... Section 237 acknowledges the significance of timeous
compliance with constitutional prescripts. It elevates expeditious
and diligent compliance with constitutional duties to an obligation
in itself. The principle is thus a requirement of legality.
19
This requirement is based on sound judicial policy that includes
an understanding of the strong public interest in both certainty
and finality. People may base their actions on the assumption of
the lawfulness of a particular decision and the undoing of th e
decision threatens a myriad of consequent actions.
In addition, it is important to understand that the passage of a
considerable length of time may weaken the ability of a court to
assess an instance of unlawfulness on the facts. The clarity and
accuracy of decision-makers' memories are bound to decline with
time. Documents and evidence may be lost, or destroyed when
no longer required to be kept in archives. Thus the very purpose
of a court undertaking the review is potentially undermined
where, at the cause of a lengthy delay, its ability to evaluate fully
an allegation of illegality is impaired.' (Footnotes omitted.)
[69] However, it is as well to remember, as the Constitutional
Court in Sita emphasised, that '[n]o discretion can be exercised
in the air' and that '[t]here must be a basis ... to do so'. The
Constitutional Court there concluded that '[t]hat basis may b e
gleaned from facts placed [before the court] by the parties or
objectively available factors'.
20
[70] Reverting to the aspect of the discretion vesting in a court
to condone a delay in instituting review proceedings, it bears
emphasising that the Constitutional Court cautioned that:
'While a court "should be slow to allow procedural obstacles to
prevent it from looking into a challenge to the lawfulness of an
exercise of public power", it is equally a feature of the rule of law
that undue delay should not be tolerated. Delay can prejudice the
respondent, weaken the ability of a court to consider the merits
of a review, and undermine the public interest in bringing
certainty and finality to administrative action. A court should
therefore exhibit vigilance, consideration and propriety be fore
overlooking a late review’ ...”
29] In dealing with the so-called Biowatch principle and the ability of an
appeals court to interfere with the exercise by the lower court of a
discretion, the Supreme Court of Appeal stressed:
“[89] Accordingly, the power of an appellate court to interfere
with the exercise of such a discretion is circumscribed. The ambit
of this power was described by the Constitutional Court in
Biowatch Trust v Registrar Genetic Resources and Others thus:
21
‘the ordinary rule is that the approach of an appellate court to an
appeal against the exercise of a discretion by another court will
depend upon the nature of the discretion concerned. Thus where
the discretion contemplates that the Court may choose from a
range of options, the discretion would be a discretion in the strict
sense ...
“[T]he ordinary approach on appeal to the exercise of a discretion
in the strict sense is that the appellate court will not consider
whether the decision reached by the court at first instance was
correct, but will only interfere in limited circumstances; for
example, if it is shown that the discretion has not been exercised
judicially or has been exercised based on a wrong appreciation of
the facts or wrong principles of law. Even where the discretion is
not a discretion in the strict sense, there may stil l be
considerations which would result in an appellate court only
interfering in the exercise of such a discretion in the limited
circumstances mentioned above.'
The rationale for this principle is, as Cloete J aptly observed, that
a narrow discretion 'requires in essence the exercise of a value
judgment and there may well be a legitimate difference of opinion
as to the appropriate conclusion".'
22
[90] In Florence v Government of the Republic of South Africa
the Constitutional Court elaborated on this theme and said:
'Where a court is granted wide decision -making powers with a
number of options or variables, an appellate court may not
interfere unless it is clear that the choice the court has preferred
is at odds with the law. If the impugned decision lies within a
range of permissible decisions, an appeal court may not interfere
only because it favours a different option within the range. This
principle of appellate restraint preserves judicial comity. It fosters
certainty in the application of the law and favours fina lity in
judicial decision-making.'
[91] Therefore, for interference by this Court with the exercise
by the high court of its discretion not to overlook the delay in this
case to be warranted, it must be satisfied, for example, that the
high court's discretion has not been exercised judicia lly or has
been exercised based on a wrong appreciation of the facts or
wrong principles of law. Moreover, as the Constitutional Court
emphasised in Giddey NO v JC Barnard and Partners, that '[I]f
the court [of first instance] takes into account irrelevant
considerations, or bases the exercise of its discretion on wrong
principles, its judgment may be overturned on appeal'…”
23
30] In the present matter, the court evaluated the delay on the basis
propounded by the Constitutional Court in Buffalo City, 20 which the
court held is equally applicable to both PAJA and legality reviews .21
Applying these principles, this Court exercised its discretion and found
that the delay in the bringing the review proceedings could not be
condoned and should not be overlooked and the reasons for not
granting condonation was expressly dealt with in its judgment.
APPLICANTS LOCUS STANDI
31] In its judgment the court a quo upheld a preliminary point that
Solidarity lacked locus standi to bring the application.
32] At paragraph 91 of the judgment, the court a quo concluded that
Solidarity does not have the necessary standing either on behalf of its
members or in the public interest. The court a quo concluded that the
relief sought (to protect the rights of Solidarity’s members to apply for
promotion) involved “personal rights” of individual members which
Solidarity could not enforce on their behalf. In its judgment the court a
20 Buffalo City Metropolitan Municipality v Asia Construction (Pty) Ltd 2019
(4) SA 331 (CC).
21 Judgement, p 000-23, para 57.
24
quo, required Solidarity to identify each specific member and their
individual right to be “promoted”.
33] The court a quo further held that Solidarity’s reliance on section
195 of the Constitution (which enshrines values of public
administration) was “misplaced” because section 195 does not itself
confer enforceable rights. In support of this view, the court a quo cited
the Constitutional Court’s decision in Chirwa v Transnet Ltd 2008 (4)
SA 367 (CC) for the proposition that section 195 cannot found a cause
of action by itself. Ultimately, the court a quo held that Solidarity “lacks
the necessary locus standi to bring this application,” and considered this
preliminary point dispositive.
34] In this regard counsel for the applicant had argued that there is a
compelling prospect that an appellate court would overturn the finding
of no standing. In this regard, counsel relied on the provisions of Section
38 of the Constitution which explicitly provides that “anyone” listed in
that section has the right to approach a competent court alleging that
a right in the Bill of Rights is infringed or threatened.
25
35] The list of persons in section 38 includes: “anyone acting in their
own interest”; “anyone acting on behalf of another person who cannot
act in their own name”; “anyone acting as a member of, or in the
interest of, a group or class of persons”; “anyone acting in the public
interest”; and “an association acting in the interest of its members.”
36] In addition, the applicant had argued that the respondents on point
did not dispute that Solidarity br ought the application both in its own
interest and in the interests of its members. In stead, the respondents
in its papers con ceded that Solidarity’s members include SAPS
employees who would be affected by the NSF project.
37] As mentioned, the court a quo had found that Solidarity lacked the
necessary locus standi to bring the application, either on its own behalf
and on behalf of its members.
38] On behalf of the applicant it was submitted that Solidarity’s case
for standing comfortably fits at least two of these categories: viz. (a)
Solidarity is an association acting in the interest of its members
(thousands of SAPS employees who are not beneficiaries of the NSF
project and stand to be prejudic ed by its implementation), and (b)
Solidarity is acting in the public interest to uphold the rule of law and
constitutional principles in the governance of the SAPS.
26
39] Furthermore, that this Co urt ignored a plethora of precedents
upholding Solidarity’s locus standi in analogous cases. Notably, in the
two urgent applications brought under this same case number in 2017,
where the High Court accepted Solidarity’s standing to seek interdictory
relief regarding the NSF project preventing implementation pending a
review.
40] The prior judgments (which form part of the record) it was
submitted definitively dealt with Solidarity’s standing, yet the court a
quo afforded them no consideration.
41] Since delivery of th e court a quo ’s judgment, another High Court
judgment has been delivered which directly contradicts this Courts’
finding on Solidarity’s standing. In Solidarity v Minister of Health and
Others (GP case no. 33367/2022, 4 October 2023, per Unterhalter J)
where the court considered a similar objection to Solidarity’s standing
in a legality review and where the court concluded that trade unions are
“an important constituency in our national life” and that they (like all
South Africans) have a legitimate interest in ensuring the executive
obeys the law. He concluded: “Solidarity thus has standing to bring this
case. The objection to its standing must fail.”
27
42] It is well established that courts should adopt a generous approach
to standing in constitutional matters, so as not to shut the doors of
justice to genuine litigants raising issues of public concern (see Ferreira
v Levin NO 1996 (1) SA 984 (CC) at para165; Kruger v President of
RSA 2009 (1) SA 417 (CC) at para 23).
43] The above authority emanating from the same Division now creates
a conflict in jurisprudence on standing of the applicant that should be
resolved on appeal . T his, this Court finds , constitutes a compelling
reason why the appeal should be heard in terms of section 17(1)(a)(ii)
of the Superior Courts Act.
44] Having concluded that leave to appeal should be granted this Court
expresses no further view on the merits of the remaining grounds of
appeal.
45] Consequently, leave to appeal is granted to the Full Court of the
Gauteng Division with costs of the application for leave to appeal to be
costs in the appeal.
28
_______ ____
C. COLLIS
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
APPEARANCES
Counsel on behalf of the Applicant: Adv. W P Bekker SC
Adv. C J Jooste
Instructed by: Serfontein, Viljoen and Swart Attorneys
Counsel on behalf of the 1st to 3rd Respondents: Adv. S M Wentzel
Adv. C A A Lewaak
Instructed by: Office of the State Attorney, Pretoria
Counsel on behalf of the 4th to 56th Respondents: Adv. Maunatlala
: Adv. P Dhlamini
Instructed by: Sekati Monyane Attorneys Inc.
Date of hearing: 22 August 2025
Date of judgment: 10 February 2026