REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
1) REPORTABLE: NO
2) OF INTEREST TO OTHER JUDGES: NO
3) REVISED: YES
-
2 March 2026
DATE
I
SIGNATURE
CASE NO: 2024-122723
In the matter between :
NEILOPAHR CASSIM
and
SOUTH AFRICAN LEGAL PRACTICE COUNCIL
(NATIONAL LPC)
GAUTENG PROVINCIAL LEGAL PRACTICE
COUNCIL (GAUTENG LPC)
CHAIRPERSON OF THE PROVINCIAL LPC
INVESTIGATING COMMITTEE, DR B BEKINK
ADVOCATED M PHUGUBJE (MEMBER OF
PROVINCIAL INVESTIGATIVE COMMITTEE)
ABRAHAM J HENN
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
This Judgment was handed down electronically by circulation to the parties and or parties'
representatives by email and by being uploaded to Caselines . The date and time for the hand down
is deemed to be 2 March 2026.
2
JUDGMENT
M SNYMAN, AJ
Introduction
[1] Before me is an application for review of a decision by the Legal Practice
Council (“LPC”) not to charge the fifth respondent after complaints by the
applicant, inter alia, of professional misconduct.
[2] From the outset, it should be noted that the applicant is a senior counsel,
having practised since 1983. The applicant argued the matter in person
despite being represented by attorneys. The 2
nd, 3rd and 4th respondents were
represented by Mr NC Maritz.
[3] The notice of motion sought the following relief:
“1. Declaring that the failure of the second respondent and / or third and
fourth respondents to investigate the applicant’s complaint under
reference number: 9560/2023 is unlawful and invalid.
2. Declaring that the findings and decision of the second respondent and
/ or third and fourth respondents to dismiss the applicant's complaint
under reference number 9560/2023 on the 30 November 2023 as
embodied in annexure “X1” is unlawful and invalid, and of no force
and effect.
3. Declaring that the findings and decision of the second respondent and
/ or third and fourth respondents to dismiss the applicant's complaint
under reference number 9560/2023 on the 30 November 2023 as
embodied in annexure “X1” is reviewed and set aside.
4. Declaring that prima facie evidence furnished by the applicant in her
complaint under reference number 9560/2023 constitutes prima facie
3
evidence which may lead to a finding of professional misconduct on
the part of the fifth respondent and consequently this matter is
referred to the disciplinary committee of the second respondent for
determination.
5. Directing the second respondent alternatively all such respondents
who oppose the application to pay the costs of this application on an
attorney and earned client scale and such costs to include the costs of
senior council jointly and severally, the one paying the other to be
absolved.
6. Further and/or alternative relief as the Honourable Court deems fit.”
[4] In the heads of argument filed by the applicant, further relief is set out, in the
alternative to those listed in the notice of motion, which reads as follows:
“1.6. ALTERNATIVELY, and under the further or alternative relief,
applicant seeks that:
1.6.1. In consequence of inter alia the unconscionable and perjured
affidavit of the director of the second respondent, and the
uncontested evidence by the fifth respondent.
1.6.2. This Honourable Court exercise its powers in terms of Section
8 of the Promotion of Administrative Justice Act (PAJA) and:
1.6.2.1. Finds that the fifth respondent is guilty of
professional misconduct and it will serve no
purpose to refer the matter to a disciplinary
committee of the second respondent.
1.6.3. Imposes the appropriate sanction in the circumstances of the
matter.”
[5] No formal amendment was sought with regard to these alternatives, however
it is to be noted that the provisions of section 8 of the Promotion of
Administrative Justice Act 3 of 2000 ( “PAJA”), can only be considered and
relied upon if PAJA is applicable and then only once the court concludes that
the administrative conduct complained of is invalid or such administrative
4
decision is set aside on the grounds as set out in section 6 of PAJA.1 It should
be noted that it is not hereby proposed that the courts may not grant similar
orders when setting aside any relief sought based on the common law and/or
a legality review.
Brief background and chronology
[6] The applicant lodged a complaint with the second respondent against the fifth
respondent’s conduct on 26 July 2023.
[7] The fifth respondent duly responded to the allegations, whereafter the second
respondent appointed investigation committee, consisting of the third and
fourth respondents to investigate and consider the complaint.
[8] On 23 November 2023 and after the 3 rd and 4th respondents found that no
charges should be brought against the 5th respondent , the second
respondent communicated the decision and reasons therefore to applicant
in a letter on 12 December 2023, which reads as follows:
“We confirm that your complaint was considered by an investigation
committee on 23 November 2023, who recommended that it be dismissed, as
per the reasons attached.
You are however entitled to lodge an appeal against this recommendation in
terms of the provisions of section 41 of the Legal Practice Act.
We attached for this purpose an appeal form.”
[9] The applicant does not deny having received the decision contained in the
email on 12 December 2023. As such, the time period within which to lodge
1 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd 2014 (3) SA
481 (CC) at [52]
5
any internal appeal as referred to in section 41 started on that day. Section
41 provides for a 30-day period within which to submit an internal appeal to
an Appeal Committee. The time period would therefore have elapsed on 11
January 2024.
[10] The applicant however failed to submit an appeal before such date and only
submitted an appeal against the aforementioned finding on 14 March 2024.
Having considered the appeal, the applicant was informed by the 2 nd
respondent by email on 22 April 2024 that the appeal was not submitted
within the allowed time and that the Appeal Committee does not have the
power to condone any late submission. The appeal could therefore not be
considered. Receipt of the mail on 22 April 2024 is also not disputed by the
applicant.
[11] The application for review was thereafter issued by court on 25 October 2024.
[12] The application was thereafter served on 2nd, 3rd, and 5th respondents on 29
October 2024 and on 1st and 4th respondents on 22 November 2024. This is
clear from the returns of service filed.
[13] The notice of motion further calls upon the second, alternatively third,
respondents to, within 15 days from receipt of the application, lodge the
record in terms of rule 53(1)(b).
[14] The 5 th respondent thereafter served a notice of intention to oppose the
application on 11 November 2024. A notice of intention to oppose was served
on behalf of the 2nd, 3rd and 4th on 18 November 2024.
6
[15] The fifth respondent did not serve any affidavits in opposing the application
and did not partake in the matter further despite the fact that the notice of set
down was properly served on all the legal representatives of the 2nd, 3rd, 4th,
and 5 th respondents. Any reference in this judgment to “respondents” is a
reference to the 2nd, 3rd, and 4th respondents only.
[16] Respondents claim that the record of the proceedings was provided by email
to the applicant’s attorneys on 17 December 2024. The applicant denies
having received the record and does not state when it was received, if at all.
Applicant did not deliver any supplementary affidavit to amend or supplement
the notice of motion and founding affidavit as she was entitled to in terms of
rule 53(4).
[17] On 10 February 2025 the respondents’ attorneys enquired by email from the
applicant’s attorneys whether the applicant wishes to supplement her
application as provided for in rule 53. This clearly having been done as a
result of the provisions contained in rule 53.
[18] In response hereto, the applicant’s attorney, in an email dated 11 February
2025, did not complain that the record was not received. Instead, the
applicants’ attorney informs the respondents’ attorneys that an answering
affidavit must be delivered by 12 February 2025.
[19] The respondents thereafter served an answering affidavit during March 2025,
whereafter the applicant’s reply was served on 19 May 2025.
7
Applicant’s points in limine
[20] The applicant denies the locus standi or authority of the 2nd respondent and
its director. What the grounds are, is not clear, however no notice in terms of
rule 7(1) to challenge the authority of the director or that of the attorney acting
on behalf of the respondents was delivered by the applicant. That is the end
of this issue.
2 This was further, correctly in my view, not persisted with at the
hearing.
[21] Applicant, in the heads of argument, further complained that the answering
affidavit was filed late and is not to be relied upon as the respondents do not
seek condonation for having filed the answering affidavit outside of the
prescribed times. It is not clear how it could have been expected of the
respondents to serve answering affidavits, when on the version of the
applicant no record had been lodged as required in terms of rule 53.
[22] The applicant, however, also served her replying affidavit late. The
aforegoing was clearly caused by the fact that the applicant did not or
supplement her application after the record was sent to her attorneys by email
on 17 December 2024. Applicant, despite claiming not having received the
record, never approached the court or demanded that the respondents
provide the record. As such, but for the letter from her attorneys, there was
no obligation to serve an answering affidavit at least until the letter of 11
February 2025 referred to above.
[23] Applicant alleges that the record was only filed on 29 May 2025 when it was
2 Eskom v Soweto City Council 1992 (2) SA 703 (W) as confirmed in Unlawful Occupiers
School site v City of Johannesburg 2005 (4) SA 199 (SCA) at [14]
8
uploaded to caselines. This view is based thereon that the rule provides that
the record is to be lodged to the Registrar and the parties be so informed
after it has been done.
[24] The practice in this division, for at least the past 30 years, has been that a
copy of the record is served on the attorneys for the applicant and any other
party opposing the application. It is simply not lodged with the registrar. This
procedure as still prescribed in rule 53 and having regard to the electronic
systems, seems to be outdated a s the very purpose of these systems is to
provide for electronic filing, files and management thereof. That aside, the
applicant did not object in terms of either rule 30 or 30A to the irregularity or
non-compliance with the rule. If a party received the record, it is difficult to
see how prejudice may result or why non-compliance with rule 53(1)(b) would
be fatal.
[25] In any event, it is difficult to understand how the applicant, if it was so
important to receive the record then did not complain about not receiving the
record on 17 December 2024 when receiving the letter of 10 February 2025
for respondents’ attorneys.
[26] The applicant never made any request for the record to be delivered, despite
the answering affidavit and reply being filed before the record was uploaded
to caselines. Applicant also do not seek an opportunity to supplement or
amend her application after the record was uploaded.
[27] The applicant further claims that there is no date stamp from the Registrar
indicating that the Record of Proceedings was not lodged with the Registrar
on 17 December 2024 or any other date. That, in my view and as a result of
9
what is stated above, is of no moment.
[28] No party hereto sought condonation in respect of the late filing of any
affidavits. This issue was further not seriously persisted with at the hearing.
There is clearly no prejudice, and none is claimed by any of the parties.
[29] Applicant is further of the view that the complaint and the response by 5 th
respondent as attached to the application together with the rulings and
correspondence from the Committee, would be adequate to rule on the
matter.
[30] The applicant, after serving her reply enrolled and set the matter down for
hearing.
Respondents’ points in limine
[31] The respondents, however, raised two important issues, which may, if
granted, be decisive of the matter.
[32] Firstly, it is claimed that the applicant failed to exhaust the internal remedies
available to her, as she is obliged to do, or to seek to be excused from doing
so.
[33] Secondly, the respondent states that the decision sought to be reviewed and
set aside, being administrative action and subject to the provisions of the
Promotion of Administrative Justice Act, 3 of 2000, had to be brought within
a period of 180 days after being informed of the decision and the reasons
therefore. Due to the applicant not seeking an order to extend the time period
of 180 days, so it was submitted, that should be the end of the matter.
10
[34] When the applicant was asked whether the application was subject to PAJA,
the common law or is founded on the principles of legality , the applicant
insisted that the application was founded in Rule 53.
[35] It must therefore firstly be determined if the actions and/or decisions of the
respondents and the Committees constitute administrative action as defined
in PAJA.
[36] The applicant, after having debated the issues with court and having
considered the provisions of PAJA, conceded, correctly in my view, that the
application is one that falls within the ambit of PAJA. The decision clearly
constitute administrative action as defined in section 1 of PAJA as was found
in the matter of Williams-Pretorius v Legal Practice Council, Western Cape and
Another. 3
The legislative scheme applicable to the Legal Practice Council and
complaints
[37] The Legal Practice Council “(LPC”) is a statutory body, established in terms
of section 4 of the Legal Practice Act, 28 of 2014 (“LPA”), inter alia, to regulate
the affairs of and exercise jurisdiction over all legal and candidate legal
practitioners.
[38] Section 37 of the LPA provides for the establishment of a disciplinary
procedure and bodies to investigate, consider and rule upon complaints. The
3 Williams-Pretorius v Legal Practice Council, Western Cape and Another (21929/2023)
[2025] ZAWCHC 256 (20 June 2025) at [3]
11
general sections applicable provide as follows:
“37 Establishment of disciplinary bodies
(1) The Council must, when necessary, establish investigating
committees, consisting of a person or persons appointed by the
Council to conduct investigations of all complaints of misconduct
against legal practitioners, candidate legal practitioners or
juristic entities.
…
(3) An investigating committee must, after investigating a complaint,
if it is satisfied that-
(a) the legal practitioner, or the candidate legal practitioner
concerned may, on the basis of available prima
facie evidence, be guilty of misconduct that, in terms of the
code of conduct, warrants misconduct proceedings, refer
the matter to the Council for adjudication by a disciplinary
committee; or
(b) the complaint should be dismissed on the grounds that the
conduct in question does not necessarily warrant
misconduct proceedings, as set out in the code of conduct,
it must dismiss the complaint, inform the Council, the
complainant and the legal practitioner, candidate legal
practitioner or juristic entity of its finding and the reasons
for it, whereafter the complainant may appeal in terms of
section 41, if the complainant is aggrieved by-
(i) the manner in which the investigating committee
conducted its investigation; or
(ii) the outcome of the investigating committee. …”
[emphasis added]
[39] Section 37 must be read with Rule 40 of the Rules issued in terms of the
LPA. Rule 40 sets out the procedure to be followed when the LPC’s relevant
Provincial Board and Committees established in ter ms of the LPA and the
12
Rules, investigate complaints lodged with it against legal practitioners. It
provides, inter alia, as follows:
“40 Investigation of alleged misconduct
40.1 When a complaint or allegation of misconduct against the
respondent is referred to the investigating committee, that
committee must investigate the complaint or allegation or
cause the complaint or allegation to be investigated by the
legal officer or by a legal practitioner appointed by the
Council for that purpose.
…
40.5 If after investigating allegations of misconduct against the
respondent the investigating committee is satisfied-
…
40.5.2 that the complaint should be dismissed on the grounds
that the conduct in question does not necessarily
warrant misconduct proceedings, it must dismiss the
complaint and inform the Council, the complainant
and the respondent of its decision and the reasons for
it. Without limiting the discretion of the investigating
committee, the following may be grounds for
determining that the conduct in question does not
warrant misconduct proceedings-
…
40.5.2.2 that the respondent has given a reasonable
explanation for his or her conduct;…
…
40.6 If a complainant is aggrieved by-
40.6.1 the manner in which the investigating committee
conducted its investigation; or
13
40.6.2 the outcome of the investigation, he or she may appeal
to the appeal tribunal in terms of section 41 of the
Act.”
[emphasis added and only relevant parts quoted]
[40] It is clear from section 37, read with Rule 40.6, that the LPA provides
dissatisfied complainants with an internal appeal to reconsider the
investigating committee’s findings. This is important for present purposes as
the applicant seeks judicial review and the respondents’ first issue is that the
applicant failed to exhaust the internal appeal procedure . It is as a result
argued that due to the fact that the applicant is not relying on exceptional
circumstances to be excused from first exhausting such remedy, the
applicant is barred from pursuing a review.
[41] In terms of section 38 of the LPA, the LPC may make rules regulating the
procedure for the investigation of complaints and the conduct of disciplinary
hearings.
4
[42] Section 41 of the LPA regulates appeals, inter alia, against decisions of the
LPC's Investigating Committee which is the very subject of the decision
applicant seeks to review. It reads as follows:
“(1)(b) A complainant who is aggrieved by-
(i) the manner in which an investigating committee conducted its
investigation or the outcome of the investigating committee as
referred to in section 37 (3) (b); or
4 The rules, titled “The South African Legal Practice Council Rules made under the authority
of sections 95(1), 95(3) and 109(2) of the Legal Practice Act 28 of 2014”, were published
under GenN 401 in Government Gazette 41781 of 20 July 2018
14
(ii) the outcome of a disciplinary hearing referred to in section
40, may, as determined in the rules and within 30 days of
being informed of the decision by the investigating committee
or the disciplinary committee, as the case may be, lodge an
appeal with an appeal tribunal established in terms of
subsection (2) against any conduct or finding of the
investigating committee or disciplinary committee, as the case
may be.”
[emphasis added]
[43] It is clear from the record as well as the annexures attached to the founding
affidavit that the LPC followed the prescribed process when investigating,
considering and adjudicating upon the applicant’s complaint.
[44] The LPC’s Investigating Committee’s decision, as is clear from the scheme
set out above, gave rise to the availability of an internal appeal.
[45] It is also clear that the applicant does not seek to review such decision on
any procedural grounds or on the basis that the decision did not comply with
the prescribed procedure set out above. It is also to be noted that the
applicant also does not seek to review the decision that the appeal could not
be ruled upon due to it being submitted out of time. Applicant only to raise
grounds such as bias, reasonableness and rationality.
[46] As indicated above, the applicant did not submit an appeal to the LPC's
Appeal Committee within the 3 0-day period allowed therefore in section 41
of the LPA despite applicant pertinently being advised in the letter form the
2
nd respondent dated 12 December 2023 that applicant has the right to
appeal the finding.
[47] After the appeal was submitted out of time, the 2 nd respondent informed the
15
applicant that the appeal could not be entertained as it was submitted late.
applicant was also informed that the Appeal Committee do not have the
power to condone the late submission thereof.
[48] It needs be noted, that even if the LPC’s Appeal Committee had the authority
to condone the late submission of the appeal, no condonation was sought in
the documents submitted and no explanation was given why it was late.
[49] Having an internal remedy available as well as the fact that the decisions of
the LPC’s committees indeed constitute administrative action as
contemplated in PAJA, the two points in limine raised by respondents must
first be ruled upon, so it was argued by Mr Maritz, because if either should be
upheld, it would be dispositive of the application.
PAJA
[50] The applicable parts of PAJA is section 7(1) and (2) of PAJA, which provides
as follows:
“7 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-
(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.
16
(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.
(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.”
[emphasis added]
[51] The two issues identified above must inter alia be adjudicated in the light of
these provisions.
The failure to exhaust internal remedies
[52] The first issue is the claim that the applicant failed to exhaust the internal
remedy available as provided for in section 41(1)(b)(ii) of the LPA . This, so
the argument goes, is a threshold requirement for the court before it can
adjudicate on a review application subject to the provisions of PAJA.
[53] As pointed out above, it is common cause that the applicant did not submit
the internal appeal within the prescribed time despite her attention being
expressly drawn thereto.
[54] Generally, any internal appeal procedure is created to resolve or address an
applicant’s difficulties with the decision without having to incur the time,
17
expense and delay of resorting to litigation:5
“[35] Internal remedies are designed to provide immediate and cost-
effective relief, giving the executive the opportunity to utilise its own
mechanisms, rectifying irregularities first, before aggrieved parties resort to
litigation. Although courts play a vital role in providing litigants
with access to justice, the importance of more readily available and cost-
effective internal remedies cannot be gainsaid.”
[55] As already pointed out, it is clear from the procedure described above that
the Appeal Committee has not been granted any power to condone the late
submission of an internal appeal.
[56] Neither counsel relied on any caselaw to the effect that the Appeal Committee
had any inherent or implied power to condone the late filing of the internal
appeal, even if it was sought.
[57] It needs also be pointed out that the applicant provided no real explanation
for the passing of the time periods in any of the affidavits or annexures thereto
as pointed out above.
[58] In Koyobe v Minister of Home Affairs,
6 the Constitutional Court held that:
[47] Although the duty to exhaust defers access to courts, it must be
emphasised that the mere lapsing of the time period for exercising an
internal remedy on its own would not satisfy the duty to exhaust, nor
would it constitute exceptional circumstances. Someone seeking to
avoid administrative redress would, if it were otherwise, simply wait
out the specified time – period and proceed to initiate judicial review.
That interpretation would undermine the rationale and purpose of the
duty. Thus, an aggrieved party must take reasonable steps to exhaust
available internal remedies with a view to obtaining administrative
5 Koyabe and others v Minister for Home Affairs and others (Lawyers for Human Rights as
Amicus Curiae) 2010 (4) SA 327 (CC) paras 34-39
6 Koyabe and others v Minister for Home Affairs and others (Lawyers for Human Rights as
Amicus Curiae) 2010 (4) SA 327 (CC) at [47]
18
redress.’
[emphasis added]
[59] The result is that bar any condonation that may be granted, the right to submit
an internal appeal lapsed and i t is to be regarded as if no appeal had been
lodged or at least that the appeal was refused. No decision needs be made
in this regard.
[60] Where an applicant have not exhausted the internal remedy, the court can
only proceed to hear the review application once it finds on application, that
exceptional circumstances exist and that the applicant is excused from
exhausting the internal remedy.
[61] That is however in my view not the issue in this matter even if it is required
that the court can only grant such relief if sought in a formal application. The
point is that applicant could not point to any exceptional circumstances
whether relied upon in the affidavits or annexures filed, or not.
[62] It is by now trite that when an applicant for review failed to exhaust an internal
remedy and then do not make out a case that the applicant be excused from
exhausting such remedy before seeking a review, the court does not have
the authority to review the decision complained of. That much is quite clear
from the wording of section 7(2)(c) of PAJA. It needs also be noted that there
may be instances where no effective internal remedy is available, but the
general statement above do not intend to deal with such cases.
[63] Even if I am wrong in the conclusion that the application cannot succeed as
the internal remedy was not exhausted before embarking on the review
19
application no application was made to be excused from doing so, there is a
second threshold to cross before the court may entertain the merits of the
review itself.
180-day time limit
[64] It is clear from the quoted wording of section 7 of PAJA above, that the court
also has no authority to consider a review application if the application was
not instituted without any unreasonable delay, but in any event no longer that
180-days after the decision and reasons therefore was provided to the
applicant, or from when an applicant would reasonably have become aware
thereof or when the internal remedy is concluded, except if the interest of
justice so require.
[65] In the matter of City of Cape Town v Aurecon South Africa (Pty) Ltd
7 the
Constitutional Court confirmed the position set out above.
[66] Section 9 of PAJA provides to for the power to extend the time periods
prescribed inter alia in section 7, if the interests of justice so require.
[67] The dates when the decisions were made and the reasons communicated to
applicant are not in dispute. It is also not disputed when the internal appeal
was lodged and the date when applicant was informed that no appeal lies as
a result of the appeal being submitted out of time.
[68] At this stage it needs be pointed out that applicant, when conceding that the
7 City of Cape Town v Aurecon South Africa (Pty) Ltd 2017 (4) SA 223 (CC) at [41]
20
application falls to be adjudicated in terms of the provisions of PAJA and upon
being invited by court to do so, sought and was granted an amendment to
insert in the notice of motion a prayer providing for the extension of the time
period of 180-days.
[69] Mr Maritz did not object to such amendment to provide for an extension of
the 180-day limit to condone the late institution of the review application, by
he did not concede that a proper case is made out to grant such extension of
time.
[70] In order to adjudicate whether the time periods needs be extended, two
questions arise. Firstly, when does the 180- day period begin to run?
Secondly, is it required to formally seek condonation if such application was
instituted late? In the light of the amendment that was sought and granted,
the second question is no longer relevant, but replaced with the question
whether a case has been made out for the extension of the time period.
[71] Having regard to the relevant provisions of section 7(1) of PAJA quoted
above, the answer seems simple. The section however does not provide an
answer to the question what the position would be if the applicant did not
exhaust any available internal remedy at all or where there is such a remedy
available, but no condonation for the lateness was sought or the appeal
authority is not granted the power to grant condonation.
[72] On a purposeful interpretation, it seems as if the time period would start to
run when the applicant is informed that there is no internal remedy available,
or that the committee has no power to condone the late submission,
alternatively when the time for lodging an appeal lapsed without having filed
21
an appeal. However no decision in this regard needs be made as it will be
accepted in favour of the applicant that the 180-day time period started when
the 2nd Respondent informed the applicant on 22 April 2024 that no appeal
lies due to it being submitted late and the Appeal Committee lacks the
authority to grant condonation.
[73] It needs be determined how the days are to be calculated as it is not defined
PAJA. If any enactment does not provide it own definitions certain words are
to be interpreted in terms of the Interpretation Act 33 of 1957, which inter alia
define the word “Day” in section 4. It reads as follows:
“4. Reckoning of number of days
When any particular number of days is prescribed for the doing of
any act, or for any other purpose, the same shall be reckoned
exclusively of the first and inclusively of the last day, unless the last
day happens to fall on a Sunday or on any public holiday, in which
case the time shall be reckoned exclusively of the first day and
exclusively also of every such Sunday or public holiday.”
[74] The 180-day period if calculated from 22 April 2024, would then run out on
19 October 2024. That was a Saturday. Due to the wording of the latter part
of the section, the application had to be “instituted” by 18 October 2024.
[75] The word “instituted” is similarly not defined in PAJA and may logically mean
the date when it is submitted or presented to court, or the date that it was
served upon the respondents.
[76] In the matter of Commissioner, South African Revenue Service v Sasol Chevron
22
Holdings Limited 8 the Supreme Court of Appeal concluded thus:
“…… Taking as one's logical point of departure, the requirement in s 7(1)
that 'any proceedings for judicial review . . . must be instituted without
unreasonable delay and not later than 180 days' after either of the dates
referred to in paragraphs (a) and (b) of s 7(1), it must ineluctably follow
that the word 'institute' when considered contextually and purposively,
[*] as it must be, means to commence the review proceedings by issuing the
process and effecting service thereof on the decision-maker whose
administrative action is impugned.
[emphasis added - * footnote not included]
[77] I accept by using the word “issue” the Supreme Court of Appeal did not find
that applications, unlike summonses are to be signed by the Registrar of court
for it to be valid. The statement can only be interpreted as to mean that the
application which is to be “addressed to the registrar” needs be filed at court
and provided a case number. That is however not necessary before it is
served on the respondents. Simply put, applications are only filed at court
and provided with a case number.
[78] The review can therefore only be regarded as properly instituted , no matter
whether application or action procedure is utilised, when the process is
served on the respondents.
[79] The full court in
Absa Bank Ltd v Maré and Others 9 stated that:
“[22] The purpose of a summons or notice of motion, so Rumpf JA held
in Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies
(Edms) Bpk 1972 (1) SA 773 (A) at 780D, is to implicate or involve a
defendant or respondent into a lawsuit, and that such a party is only
8 (1044/2020) [2022] ZASCA 56; 85 SATC 216 (22 April 2022).
9 2021 (2) SA 151 (GP) at para [22] – [24]
23
implicated or involved in the lawsuit once service of the summons or
notice of motion had been effected. Rumpf JA also referred to Marine
and Trade Insurance Co Ltd v Reddinger 1966 (2) SA 407 (A) at 413D,
where it was held that ‘[a]lthough an action is commenced when the
summons is issued the defendant is not involved in litigation until
service has been effected, because it is only at that stage that a formal
claim is made upon him’.
[Emphasis added]
[80] Despite service of the application on 1
st and 4th respondents only taking place
on 22 November 2024 the remainder of respondents were served with a copy
of the application on 29 October 2024. The application, addressed to the
Registrar, was provided with a case number on 25 October 2025.
[81] The result is that the application for review which had to be served by the
latest on 18 October 2024, was instituted after the 180-day period prescribed
in section 7(1) had expired. No explanation is given why the application was
only served after the period expired.
[82] The court cannot, without any factual basis set out in the affidavits before it,
exercise its discretion whether the interest of justice would require an
extension of the time period or not.10
[83] This means that the application was never properly instituted and the court is
barred form reviewing the administrative decision as it has no authority to
determine the merits of the application.11
10 Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd 2019 (4) SA 331 (CC)
at [48] and [53]
11 Opposition to Urban Tolling Alliance v South African National Roads Agency Ltd [2013] 4
All SA 639 (SCA) at [26]; Mostert NO v Registrar of Pension Funds and Others 2018 (2)
SA 53 (SCA) at [34]
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[84] As a result, the application must also be dismissed on this ground raised.
Costs
[85] Mr Maritz for the respondents argued that an award for costs should include
the costs incurred upon the employment of counsel on a scale C.
[86] In seeking such a determination Mr Maritz indicated that it is an important
matter, not only for the applicant, but also for his client. That is however not
the only criteria to be weighed up. The court must also consider the level of
difficulty of the matter and the seniority of both counsel, to name but only two
more factors.
[87] The issues involved are clearly not of a simple nature. In my view, had the
respondents opposing the matter appointed senior counsel, that would not
have been misplaced.
[88] As a result, the submission that a costs order should include a determination
that the costs of counsel be awarded on scale C, is not misplaced.
Order
[89] The following order is therefore granted:
1. The application is dismissed with costs on a scale as between party and
party;
2. The costs order granted shall include the costs of counsel on scale C as
provided for in rule 67A of the uniform rules of court.
BY ORDER
f
M SNYMAN , AJ
DATE HEARD:
DATE OF JUDGMENT :
Counse l for Applicant:
Appl icants' Attorneys :
Counsel for 2nd to 4th Respondents :
Appl icants' 2nd to 4th Respondents:
Counse l for 5th Respondent:
Appl icants' 5th Respondent:
11 September 2025
2 March 2026
In Person/Adv N Cassim SC
Mbazima Dickson Inc Attorneys
Adv NC Maritz
Fourie Fismer Inc Attorneys
No appearance
Lacante Henn Inc
25