IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Of interest
CASE NO. 3959/2024
In the matter between:
THEMBELA MATA Applicant
and
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT First respondent
MAGISTRATES’ COMMISSION Second respondent
CHAIRPERSON OF
THE MAGISTRATES’ COMMISSION,
DEPUTY JUDGE PRESIDENT AUBREY LEDWABA Third respondent
REGIONAL COURT PRESDIDENT,
MR SAMSON DUNYWA Fourth respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
LAING J
[1] This is an application for the review and setting aside of the first respondent’s
decision to appoint the applicant as a permanent regional magistrate in Makhanda .1
The applicant also seeks a declarator that his prior appointment as a regional
magistrate in Gqeberha was lawful and enforceable, and that the first respondent be
ordered to give effect thereto.
Background
[2] Most of the facts are common cause. The applicant was previously a
magistrate at the district court in Middleburg. When the second respon dent
advertised vacant posts at various regional courts in the Eastern Cape, the applicant
applied, resulting in his appointment on 1 March 2015 as an a cting regional
magistrate in Makhanda. The appointment was for 12 months. It was extended from
time to time until 29 October 2019, when the first respondent appointed the applicant
as a regional magistrate in Gqeberha.
[3] The applicant remained in Makhanda, pending , as he alleged, the fourth
respondent’s facilitation of his move to Gqeberha. Nothing happened for three years.
A change in the applicant’s financial circumstances prompted him to request the
fourth respondent, in November 2022, to give effect to his Gqeberha appointment.
This resulted in a meeting at which the fourth respondent reminded the applicant that
the intention had always been to appoint him as a regional magistrate in Makhanda,
nowhere else; he could, however, apply for a transfer to Gqeberha . When the
applicant repeated his request, in January 2023, the fourth respondent refused,
saying that the appointment in Gqeberha had been a mistake. The applicant made a
further request in February 2023 and subsequently approached the first and second
respondents. A meeting was held in September 2023 but yielded no outcome. The
1 The applicant referred to several ‘decisions’ in his notice of motion. This appeared to conf use the
distinction between the decision itself, on the one hand, and how this was purportedly implemented, on
the other. Only one decision forms the subject of the application. The first respondent’s amendment of
the applicant ‘s certificate of appointment, on 2 February 2024, and his issuing of a fresh letter of
appointment, on 20 February 2024, were merely intended to give effect to the decision to appoint the
applicant as a permanent regional magistrate in Makhanda.
fourth respondent merely reiterated that it remained open to the applicant to apply for
a transfer. The applicant never did so.
[4] On 20 February 2024, the first respondent sent a letter to the applicant,
stating as follows:
‘Dear Mr Mata
CORRECTION OF YOUR APPOINTMENT AS REGIONAL MAGISTRATE: MAKHANDA
I advise that I have received a request from the Chairperson of the Magistrates Commission
regarding your incorrect certificate of appointment; your request to take up a post in
Gqeberha; and proposals to resolve the matter.
The Commission proposed that the matter be resolved either by my correction of the
certificate of appointment or the simultaneous advertisement of the posts at Gqeberha and
Makhanda. I have given due consideration to the matter. I have accordingly approved th at
the posts of Gqeberha and Makhanda be advertised simultaneously and the amendment of
your certificate of appointment to reflect that you are appointed at Makhanda since October
2019.
I have informed the Chairperson of the Magistrates Commission and the Regional Court
President of my decisions. Kindly find attached your amended certificate of appointment.’
[5] The first respondent enclosed an amended certificate, indicating that the
applicant had been appointed as a regional magistrate in Makhanda with effect from
29 October 2019. The applicant rejected this and instituted review proceedings on 13
September 2024.
Issues to be decided
[6] At the outset, the court must determine whether the decision that inform s the
application is capable of review or whether this is a matter that falls more
appropriately within the jurisdiction of the Labour Court. If the court has indeed
jurisdiction to deal with the matter, then it must decide whether the decision in
question violated the applicant’s right to just administrative action , alternatively
infringed the principle of legality. A further aspect to be considered is the relevance or
otherwise of any time bar. A brief overview of the relevant principles follows.
Legal framework
[7] As a starting point, section 174 (7) of the Constitution provides for the
appointment of magistrates in terms of an Act of Parliament. The most recent
legislation to that effect is the Magistrates Act 90 of 1993, where section 10 provides
that the first respondent shall, after consultation with the second respondent, appoint
magistrates under and subject to the Magistrates’ Courts Act 32 of 1944. The older
legislation contains similar provisions under section 9 (1) . No mention is made of
what steps are to be taken in circumstances where an appointment is because of an
‘administrative error’, as the respondents contended.
[8] The issue of jurisdiction is a n important consideration. It was addressed
extensively in Gcaba v Minister for Safety and Security and others ,2 within the
context of a public sector employment dispute . In that regard, the Constitutional
Court held, per Van der Westhuizen J, that:
‘Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa,3 and
not the substantive merits of the case… In the event of the court’s jurisdiction being
challenged at the outset ( in limine ), the applicant’s pleadings are the determining factor.
They contain the legal basis of the claim under which the applicant has chosen to invoke the
court’s competence. While the pleadings — including, in motion proceedings, not only the
formal terminology of the notice of motion, but also the contents of the supporting affidavits
— must be interpreted to establish what the legal basis of the applicant’s claim is, it is not for
the court to say that the facts asserted by the applicant would also sustain another claim,
cognisable only in another court. If, however, the pleadings, properly interpreted, establish
cognisable only in another court. If, however, the pleadings, properly interpreted, establish
that the applicant is asserting a claim under the LRA, 4 one that is to be determined
exclusively by the Labour Court, the High Court would lack jurisdiction.’5
2 2010 (1) SA 238 (CC).
3 Chirwa v Transnet Ltd and others 2008 (4) SA 367 (CC).
4 Labour Relations Act 66 of 1995.
5 Gcaba, para 75.
[9] Uncertainty about the extent to which the Labour Court enjoys exclusive
jurisdiction has, nevertheless, persisted. More recently, the Constitutional Court held,
in Baloyi v Public Protector and others,6 that:
‘…it is important not to conflate the question of whether a court has jurisdiction to hear a
pleaded cause of action, with the prospects of success of that ca use of action. When
assessing whether its jurisdiction is engaged, a court might be of the view that a litigant
should have pursued a different cause of action, or that she would have had a better chance
of success had she done so. However, these views are irrelevant to the court’s competence
to hear the matter.’7
[10] The pleadings must ultimately decide the issue of jurisdiction. If confirmed,
then the question of reviewability arises. T he extent to which the first respondent’s
decision is reviewable under the Promotion of Administrative Justice Act 3 of 2000
(PAJA) depends, however, on whether it falls within the definition of administrative
action. In that regard, section 1 indicates that administrative action means, inter alia,
any decision taken by a n organ of state , when exercising a public power or
performing a public function in terms of any legislation, which adversely affects the
rights of any person, and which has a direct, external legal effect. 8 In the event that
the decision did not meet the definition, the principle of legality may be invoked as a
further pathway to review.9
[11] Regarding the possible influence of a time bar on the applicant’s case, section
7 (1) of PAJA stipulates that review proceed ings must be instituted without
unreasonable delay and not later than 180 days after the date upon which, inter alia,
the applicant was informed of the administrative action. In a legality review, however,
the standard approach to delay i nvolves the applic ation of the test employed in
6 2022 (3) SA 321 (CC).
7 Para 42.
6 2022 (3) SA 321 (CC).
7 Para 42.
8 The definition excludes, inter alia, a decision relating to any aspect regarding the nomination, selection,
or appointment o f a judicial officer or any other person by the Judicial Service Commission in terms of
any law. That is not the situation here.
9 See, in this regard, the discussion in C Hoexter and G Penfold Administrative Law in South Africa 3 ed
(2021), at 148–161. See, too, Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (C C),
paras 95 and 96.
Khumalo v MEC for Education, Kwazulu-Natal.10 To that effect, the court must decide
whether the delay was unreasonable or undue; if so, then the court must decide
whether to overlook it.11
Jurisdiction
[12] The applicant framed his cause of action as a breach of his contract of
employment. In the alternative, he contended that the first respondent violat ed his
constitutional right to just administrative action or infringed the principle of legality .
The distinctions made by the applicant in argument were, admittedly, not always
easy to discern.
[13] The respondents contended, in contrast, that the first respondent had merely
amended the applicant’s certificate of appointment and issued a fresh letter of
appointment to give effect to the original intention i.e. to appoint the applicant to
Makhanda, not Gqeberha. This was not a case about administrative action; it was an
employment-related issue that affected only the applicant and had no direct, external
legal effect. The respondents placed extensive reliance on Gcaba to assert that the
court lacks jurisdiction. The case involved the appointment of a member of the South
African Police Services (SAPS) , in September 2003, as station commissioner at its
branch in Grahamstown (as it was then) . The position was upgraded in February
2006. The member applied for the position, appeared on the short-list, underwent an
interview process, but was ultimately unsuccessful. After the relevant bargaining
council failed to provide suitable recourse, the member brought an application in the
High Court to review the national and provincial commissioners’ decision not to
appoint him. The High Court dismissed the application, finding that it lacked
jurisdiction because it pertained to an employment dispute. When the matter
eventually came before the Constitutional Court, it was acknowledged that the earlier
10 2014 (5) SA 579 (CC).
11 The approach has undergone further refinement but the principles remain the same. See Merafong City
v Anglogold Ashanti Ltd 2017 (2) SA 211 (CC); Department of Transport and Others v Tasima (Pty) Ltd 2017
(2) SA 622 (CC); and Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd 2019 (4) SA 331
(CC).
decisions in Fredericks and Others v MEC for Education and Training, Eastern Cape,
and Others12 and Chirwa v Transnet Ltd and Others 13 had resulted in differences of
opinion. There was uncertainty in subsequent jurisprudence on the proper
interpretation and application of overlapping administrative law and labour law
principles, especially within the context of public sector employment. 14 Van der
Westhuizen J observed as follows:
‘Generally, employment and labour relationship issues do not amount to administrative
action within the meaning of PAJA . This is recognised by the Constitution. Section 23
regulates the employment relationship between employer and employee and guarantees the
right to fair labour practices. The ordinary thrust of section 33 is to deal with the relationship
between the State as bureaucracy and citizens and guarantees the right to lawful,
reasonable, and procedurally fair administrative action. Section 33 does not regulate the
relationship between the State as employer and its workers. When a grievance is raised by
an employee relating to the conduct of the State as employer and it has few or no direct
implications or consequences for other citizens, it does not constitute administrative
action.’15
[14] The court held that the failure to promote and appoint the member was,
essentially, a labour-related issue. As apparent from the above extract, it found that
the impact of the decision was felt mainly by the member himself, with little or no
direct consequence for any other citizens.16 This, said the court, was consistent with
the decision in Chirwa, without contradicting Fredericks.17 The failure to promote and
appoint the member was not administrative action.18
[15] The findings in Gcaba have not escaped academic criticism. 19 Hoexter and
Penfold observe that:
‘In the end, the court’s reasoning in Gcaba raises more questions about administrative action
than it answers, arguably causi ng just the sort of “complexity and confusion” that the court
12 2002 (2) SA 693 (CC).
13 2008 (4) SA 367 (CC).
14 Gcaba, para 3.
15 Para 64.
16 Para 66.
17 Para 67.
18 Para 68.
19 For example, see Hoexter and Penfold, n 9 above, at 265–70.
accuses others of having created after Chirwa. The role played by the “quintessential labour-
related” nature of the conduct is one of those questions, for this description suggests that at
some level, and in spite of its statements to the contrary, the court persisted in its
compartmentalised view of ss 23 and 33 of the Constitution. The categorical or essentialist
idea fostered by such an approach is that something is either a labour matter or an
administrative-law matter, but not both; or, in Bill of Rights terms , that if a primary or more
specific right is applicable, it somehow ousts or excludes the app lication of other, more
general rights.’20
[16] More recently, the Supreme Court of Appeal sought to distinguish Gcaba from
other public sector employment disputes. In Minister of Defence v Xulu, 21 the
respondent had been a soldier under a two -year contract with the South African
National Defence Force (SANDF). The SANDF extended the contract on three
occasions before notifying the respondent that it would not renew it any further .
Previous offences played a role in the decision. The court, per Wallis JA, held that
Chirwa and Gcaba were distinguishable , with the former entailing the exercise of
public power in terms of a contractual right .22 The SANDF’s decision had not been
taken under the respondent’s contract but in terms of legislation; it was not a
dismissal dispute.23 Wallis JA went on to say that the Constitutional Court’s finding in
Gcaba had been that the failure to have appointed the applicant was ‘a
quintessential labour issue with little or no consequence for any other citizens.’
Accordingly, the failure to have appointed him was not administrative action. 24 The
learned judge continued:
‘By contrast the issue in the present case is of importance to t he citizenry at large, namely
the manner in which people are selected for enrolment in our armed forces and the
circumstances in which their contracts may be terminated. It cannot be categorised as the
circumstances in which their contracts may be terminated. It cannot be categorised as the
exercise of a contractual power under a contract of em ployment, because that is not the
nature of the contract between a soldier and the SANDF. Irrespective of the precise nature of
the contract, the decision not to renew it did not involve an exercise of contractual power ,
because no such exercise was required in the situation. . . . Unlike Gcaba, which was a
20 At 267.
21 2018 (6) SA 460 (SCA).
22 Para 38.
23 Para 39.
24 Para 40.
dispute over promotion in the context of a contract of employment , falling within the dispute-
resolution mechanisms of the LRA, this is a non -contractual dispute over the exercise of a
statutory power to extend Mr Xulu’s period of enrolment in the SANDF falling outside the
LRA.’25
[17] The SANDF’s exclusion from the operation of the Labour Relations Act 66 of
1995 (LRA) clearly formed part of the ratio. The judicial duty to extend protection to
public sector employees who did not fall under the umbrella of the same legislative
protection as private sector employees , as recognized in Chirwa, remained
‘clamant.’26 Nevertheless, what seems to have been the primary consideration in
Xulu was the relevance of the matter to the public at large. The case concerned how
military personnel were enlisted and how the ir services were terminated . The court
emphasised that the SANDF’s actions did not amount to the exercise of contractual
power. They were rooted in the exercise of a public power, based on underlying
legislation. Despite the employment context that informed the case, the public nature
of the issues that arose therefrom placed it within the reach of the operation of
administrative law principles.
[18] Returning to the present matter, the respondents argued that it is chiefly an
employment-related issue, placing it outside the court’s jurisdiction . They have,
nevertheless, failed to plead the terms of any underlying contract or the provisions of
the applicant’s conditions of service.27 There is nothing in their papers to suggest that
the first respondent’s decision amounted to the exercise of a contractual right.
[19] More importantly, however, attention must be focused on the nature of the
appointment of a magistrate. This occurs within a clearly defined statutory
framework. The Constitution provides that judicial authority is vested in the courts ,28
with organs of state being required to assist and protect the courts to ensure their
with organs of state being required to assist and protect the courts to ensure their
independence, impartiality, dignity, accessibility, and effectiveness .29 The first
25 Para 41.
26 Para 42.
27 The conditions of service are stipulated in the Regulations for Judicial Officers in Lower Courts, 1994
(made in terms of GN R361 of 1994, published under GG 15524 on 11 March 1994).
28 Section 165 (1).
29 Section 165 (4).
respondent’s appointment of a magistrate can only be done under the authority
granted by section 10 of the Magistrates Act 90 of 1993 and subject to the conditions
of service referred to in section 11 and set out in the applicable regulations.30 Judicial
officers in the lower courts (all courts, for that matter) are required to uphold and
protect the Constitution and the human rights entrenched in it ; they are, moreover,
required to administer justice to all persons alike .31 The first respondent’s
appointment of a magistrate is undoubtedly the exercise of a public power.
[20] Mention must be made of t he contention that the amendment of the
applicant’s appointment was merely a rectification of official records to reflect the
respondents’ original intention. They pointed out that the applicant had, in any event,
served as an acting regional magistrate in Makhanda since 1 Marc h 2015 . T he
reference to Gqeberha in the subsequent letter and certificate of appointment was
merely an ‘administrative oversight.’ The argument is, however, plainly wrong, and
the reference cannot be described as a small, technical error. The appointment of
the applicant to Gqeberha was clear and unambiguous . H e was entitled to have
planned his life accordingly and to have continued to rely thereon, despite the
intervening hiatus. The subsequent amendment was nothing less than the exercise
of a public power . T he first respondent purported to appoint the applicant as a
regional magistrate in Makhanda, rather than Gqeberha.
[21] It also cannot be argued with reference to Gcaba that the amendment of the
applicant’s appointment had no direct, external legal effect. This is because it would
have had an impact on the respective capacities of the lower courts in question. The
removal of a magistrate from the staff complement in Gqeberha and the conversion
of an appointment from acting to permanent status in Makhanda would have had a
of an appointment from acting to permanent status in Makhanda would have had a
bearing, however slight, on the potential ability of the courts to have managed their
different caseloads. It would, moreover, have created implications for the remaining
respondents’ evaluation of the courts’ effectiveness regarding the administration of
justice and the possible need to address shortcomings by making further
appointments. Ultimately, however, it would not be too far -fetched to say that the
decision ha d a direct, external legal effect on the communities falling under the
30 See n 27 above.
31 Preamble to Code of Judicial Conduct for Magistrates, Schedule E of the Regulations (n 27 above).
judicial authority of the courts in Gqeberha and Makhanda, respectively, subject as
they are to the decisions emanating (or not) therefrom.
[22] The applicant challenged the decision on the basis that it w as a breach of his
contract of employment. On its own, this would have been sufficient to have
persuaded the court to consider whether the Labour Court was not a more
appropriate forum. It is, nevertheless, the applicant’s alternative course of action , in
the form of review proceedings, that create s the necessary platform upon which to
establish jurisdiction. The first respondent exercised a public power but not in terms
of any contractual right; the decision was not without consequences for the public at
large. The court is satisfied that Gcaba is distinguishable and that the more inclusive
approach adopted in Xulu is to be preferred . Considering the circumstances of th e
matter, the court is persuaded that t he Labour Court does not enjoy exclusive
jurisdiction and the applicant must be afforded the protection of the relevant
administrative law principles.
Just administrative action, legality, and the time bar
[23] For the reasons already discussed, the first respondent’s decision amounted
to the exercise of a public power that had a direct, external legal effect. Whether this
amounted to administrative action in terms of the somewhat convoluted definition
provided under section 1 of PAJA must still be determined.
[24] In this regard, t he respondents argued that the decision created no prejudice
for the applicant . His inaction over a period of three years after having been
appointed to Gqeberha demonstrated the acceptance of his original appointment to
Makhanda, albeit in an acting capacity . Any prejudice was self-created and purely
the result of a change in the applicant’s financial circumstances . Th e argument ,
however, misses the point. The applicant has a right to procedural fairness , which
however, misses the point. The applicant has a right to procedural fairness , which
was adversely affected. This was because of the first respondent’s failure to have
given, in terms of section 3 (2) ( b) of PAJA, adequate notice of the decision and its
purpose, a reasonable opportunity for the applicant to have made representations,
and adequate notice of any right of review or internal appeal. By the time that the
applicant received the first respondent’s letter of 20 February 2024, the correction to
his certificate of appointment was a fait accompli ; the amendment had been made
almost three weeks earlier .32 It is not good enoug h to contend that the applicant’s
meetings with the remaining respondents , as well as the fourth respondent’s
repeated suggestions that he apply for a transfer , met the requirements for
procedural fairness. The amendment was made without warning. There is, moreover,
no indication on the papers that it was reasonable and justifiable in the
circumstances to have departed from the section 3 (2) (b) requirements.33
[25] The court is satisfied that the first respondent’s decision qualifie s as
administrative action that falls to be reviewed on one or more of the grounds listed
under section 6 (2) of PAJA . Whereas there is no evidence on the papers that the
decision was taken for an ulterior purpose or motive , in bad faith , arbitrarily or
capriciously, or that it was totally unreasonable , as the applicant assert ed, it can
nevertheless be said that the following grounds are relevant: the first respondent was
not authorised in terms of section 10 of the Magistrates Act 90 of 1993 to amend the
appointment of the applicant as a regional magistrate in Gqeberha for purposes of
correcting an ‘administrative oversight’;34 the action was procedurally unfair for want
of compliance with section 3 (2) ( b);35 the applicant’s change in financial
circumstances were not considered , alternatively the decision was not rationally
connected to the information before the first respondent.36
[26] Even if, however, the decision fell outside the ambit of PAJA, then the
principle of legality offers a further review pathway to the applicant. In Khumalo, the
Constitutional Court held, per Skweyiya J, that the principle wa s applicable to all
Constitutional Court held, per Skweyiya J, that the principle wa s applicable to all
exercises of public power and not only to administrative action as defined in terms of
PAJA. It required such exercises to be, at a minimum, lawful and rational. 37 The
learned judge observed further that, as bearers of the duty to respect, protect,
promote, and fulfil the rights contained in the Bill of Rights, public functionaries must
32 The date stipulated on the amended certificate of appointment is 2 February 2024.
33 Section 3 (4).
34 Sections 6 (2) (a) (i), 6 (2) (e) (i), and 6 (2) (f) (i).
35 Section 6 (2) (c).
36 Sections 6 (2) (e) (iii) and 6 (2) (f) (ii) (cc) .
37 Khumalo, para 28.
seek to redress irregularities in the public administration, be they in the context of
employment or otherwise. 38 In MEC for Health, Eastern Cape and Another v Kirland
Investments (Pty) Ltd t/a Eye and Lazer Institute ,39 however, the Constitutional
Court, per Cameron J, cautioned that public functionaries may not take the law into
their own hands when seeking to override conduct with which they disagreed. 40
Subsequently, in Economic Freedom Fighters v Speaker, National Assembly and
Others,41 Mogoeng CJ stated as follows:
‘ . . . our constitutional order . . . hinges on the rule of law. No decision grounded in the
Constitution or law may be disregarded without recourse to a court of law. To do otherwise
would “amount to a licence to self-help.” Whether the Public Protector’s decisions amount to
administrative action or not, the disregard for remedial action by those adversely affected by
it amounts to taking the law into their own hands and is illegal. No binding and
constitutionally or statutorily sourced decision may be dis regarded willy -nilly. It has legal
consequences and must be complied with or acted upon. To achieve the opposite outcome
lawfully, an order of court would have to be obtained.’42
[27] The learned judge went on to refer with approval to Cameron J’s warning in
Kirland that self-help invited ‘a vortex of uncertainty, unpredictability and
irrationality.’43 At the heart of the matter is the principle expressed by the Supreme
Court of Appeal in Oudekraal Estates (Pty) Ltd v City of Cape Town and Others44 that
until a public functionary’s decision is set aside by a court, in proceedings for judicial
review, it exists in fact and has legal consequences that cannot simply be
overlooked.45
[28] In the present matter, the first respondent’s decision on 29 October 2019 to
appoint the applicant as regional magistrate in Gqeberha cannot be overlooked,
disregarded, or overridden. The amendment thereof, by way of a correction to the
38 Para 36.
38 Para 36.
39 2014 (3) SA 481 (CC).
40 Para 102.
41 2016 (3) SA 580 (CC).
42 Para 74.
43 Kirland, para 103.
44 2004 (6) SA 222 (SCA).
45 Para 26.
applicant’s certificate of appointment , is a classic example of the self -help against
which our courts have guarded. It is surprising, considering the circumstances, that
the respondents never instituted self-review proceedings during the almost five years
that lapsed after the decision was made. Alternatively, they could simply have filed a
counterapplication in the immediate proceedings. Overall, the court is satisfied that
the first respondent’s conduct infringed the principle of legality, opening a route for
the review sought by the applicant.
[29] The applicant brought his application on 13 September 2024, some 198 days
after he received notification of t he first respondent’s decision. The respondents
contended that the 180-day period prescribed under section 7 (1) of PAJ A began far
sooner, in November 2022, when the fourth respondent explained to the applicant
that his appointment to Gqeberha had been an error. Relying on Cape Town City v
Aurecon SA (Pty) Ltd ,46 the respondents argued that the reasons for the
administrative action had become known to the applicant by the earlier date; the
clock had started to run at that point, not any later.47 This confuses, however, the
decision that forms the subject of these proceedings. It is not the appointment of the
applicant to Gqeberha, on 29 October 2019, that the applicant seeks the court to
review and set aside . It is the decision to appoin t the applicant to Makhanda ,
purportedly given effect by way of a correction to the corresponding certificate on 2
February 2024 and the notification of the applicant thereof by letter on 28 February
2024. If anything, then the question must be asked why the res pondents did not
institute self-review proceedings to undo the error — without unreasonable or undue
delay.
[30] Regarding the statutory 180-day period,48 the decision of the Supreme Court
of Appeal in Opposition to Urban Tolling Alliance v South African National Roads
of Appeal in Opposition to Urban Tolling Alliance v South African National Roads
Agency Limited 49 indicates that a delay that exceeds the above period is per se
unreasonable.50 The provisions of section 9 (1) of PAJA allow the period to be
extended on application, provided that it is in the interests of justice , as required
46 2017 (4) SA 223 (CC).
47 Para 41.
48 Section 7 (1) of PAJA.
49 [2013] 4 All SA 639 (SCA), also referred to as the OUTA case.
50 Para 26.
under section 9 (2). The Constitutional Court confirmed th e position in Buffalo City
Metropolitan Municipality v Asla Construction (Pty) Ltd ,51 where Theron J recognized
the differences in assessing delay under PAJA, on the one hand, and the principle of
legality, on the other. 52 The Khumalo test informs the latter , based as it is on well-
established principles developed under the common law. 53 In Asla, Theron J held
that, within the context of a legality review, the unreasonableness of a delay cannot
be examined in a vacuum. For a court to decide whether a delay can be overlooked,
it must consider several factors: (a) the potential prejudice to the affected parties as
well as the possible consequences of setting aside the impugned decision; (b) the
nature of the impugned decision; and (c) the conduct of the applicant. Even if there is
no basis upon which to overlook an unreasonable delay, the court may, nevertheless,
be constitutionally compelled to declare state conduct unlawful.54
[31] The applicant in the present matter was indisputably out of time. The delay
was per se unreasonable . In his notice of motion, the applicant s ought condonation
instead of the extension contemplated in terms of section 9 (2) of PAJA. Nothing
turns on th e distinction .55 The relief sought can be granted if it would be in the
interests of justice . T he meaning thereof was addressed in Aurecon, where the
Constitutional Court held, per Mbha AJ, that these included the nature of the relief
sought; the extent and cause of the delay; its effect on the administration of justice
and other litigants; the reasonableness of the explanation for the delay, which must
cover the whole period of delay ; the importance of the issue to be raised; and the
prospects of success.56
[32] Admittedly, the applicant has failed to provide a detailed chronology of the
steps taken after 28 February 2024. It is evident that he merely sent a letter to the
steps taken after 28 February 2024. It is evident that he merely sent a letter to the
first respondent on 27 March 2024, 57 rejecting the decision taken , no more. Th e
51 2019 (4) SA 331 (CC).
52 Paras 46 – 48.
53 See Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) ; Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie en ‘n ander 1986 (2) SA 57 (A); and
Associated Institutions Pension Fund and Others v Van Zyl and Others 2005 (2) SA 302 (SCA).
54 Asla, paras 44 to 72.
55 See the discussion in Hoexter and Penfold, n 9 above, at 727.
56 Aurecon, p ara 46. The court , in this regard, endorsed the approach taken by the Supreme Court of
Appeal in that case.
57 The letter is dated 27 March 2023, which is clearly incorrect.
almost complete absence of a reasonable explanation for his delay would usually
have proved fatal , notwithstanding the fact that it exceeded the statutory period by
only 18 days. Nevertheless, the court is disinclined to non -suit the applicant in the
face of what was a most regrettable attempt at self -help on the part of the first
respondent, unequivocally violating the applicant’s constitutional right to just
administrative action . To put it another way, the correction of the applicant’s
certificate of appointment was, respectfully, a particularly careless infringement of the
principle of legality. On that basis alone, it would be in the interests of justice to grant
condonation. Similarly, i f th is were an assessment of the applicant’s delay not in
terms of PAJA but under the principle of legality, then the court would be of the view
that it was constitutionally compelled to dec lare the first respondent’s decision
unlawful. No real prejudice can be caused to the remaining respondents if
condonation is granted . Such inconvenience as may result can be ameliorated by
the nature of the relief eventually to be granted.
Relief and order
[33] The court is satisfied that the decision that inform s the application is capable
of review. This is not a matter that falls within the exclusive jurisdiction of the Labour
Court. The first respondent’s decision to amend the applicant’s appointment violated
his right to just administrative action, alternatively infringed the principle of legalit y.
The applicant’s delay in the institution of proceedings is , moreover, capable of
condonation for the reasons already provided.
[34] Mention must be made, briefly, of the point taken by the respondents in their
answering papers that the applicant had not exhausted the internal remedy available
under regulations 31 to 33.58 The provisions in question stipulate that if a magistrate
is dissatisfied with an official act then he or she may report the complaint or
is dissatisfied with an official act then he or she may report the complaint or
grievance in writing to the head of office or the second respondent, as the case may
be. This will trigger an investigation , the outcome of which t o be communicated to
the magistrate, who may in turn escalate the complaint or grievance to higher levels
58 See n 27 above.
of authority if he or she remains dissatisfied. The first respondent has the final say .
Considering the history and circumstances of the present matter, it would make no
sense to insist that the applicant follows, to the tee, the procedure contained in the
relevant regulations. It is abundantly clear that the first respondent’s decision to
amend the applicant’s appointment was informed by the views of the remaining
respondents. To all intent and purposes, there was no longer any internal remedy
available by the time of the correction of the certificate of appointment.
[35] The applicant’s appointment as a regional magistrate in Gqeberha continues
to exist in fact and has legal consequences. It cannot be wished away. The correct
approach of the first respondent woul d have been to have sought recourse from the
court. Whereas there was no evidence on the papers that the implementation of the
original appointment to Gqeberha would give rise to substantial administrative
difficulties, it would be just and equitable to allow the respondents an opportunity to
make the necessary arrangements at the lower courts in question. The broad nature
of the re lief envisaged in terms of section 8 (1) of PAJA would seem to permit such
an option.
[36] In relation to the orders sought by the applicant, the decision that forms the
subject of these proceedings is the first respondent’s appointment of the applicant as
a permanent regional magistrate in Makhanda. The original appointment of the
applicant to Gqeberha must be gi ven effect in accordance with the Oudekraal
principle,59 but without making any finding on the legality thereof. The applicant has,
however, not set out a proper basis, either in fact or law, why the court should also
review and set aside the advertisement of the post. This may have already been
filled, in which event the incumbent is not before court . Regarding the order for the
placement of the applicant in Gqeberha , this would amount to a mandamus, in
placement of the applicant in Gqeberha , this would amount to a mandamus, in
relation to which the applicant has not dealt with the requirements in his papers .60
Finally, there is no reason why the general rule should not be applied in relation to
costs. The applicant is entitled to the recovery thereof. There is, nevertheless, no
indication that the third respondent opposed the application or aligned himself with
59 See n 44 and 45 above.
60 D E van Loggerenberg Erasmus: Superior Court Practice RS 25 (2024), at D6–3.
the arguments made by the remaining respondents; the relief must be tailored
accordingly.
[37] Consequently, the following order is made:
(a) The applicant’s failure to institute proceedings without unreasonable
delay is condoned;
(b) The first respondent’s decision to appoint the applicant as a permanent
regional magistrate in Makhanda, by amending the applicant’s original
certificate of appointment on 2 February 2024, and issuing a fresh letter
of appointment on 20 February 2024, is reviewed and set aside;
(c) The respondents are ordered to give effect to the first respondent’s
appointment of the applicant, on 29 October 2019 , as a regional
magistrate in Gqeberha;
(d) The orders in paragraphs (b) and (c) above are suspended for a period
of 30 calendar days to allow the respondents to make the necessary
arrangements; and
(e) The first, second, and fourth respondents are liable, jointly and severally ,
for the costs of the application, on a party-and-party basis, at scale B.
_________________________
JGA LAING
JUDGE OF THE HIGH COURT
APPEARANCES
For the applicant: Adv Somandi
Instructed by: NN Ntshwaxa Attorneys Inc.
118A High Street
Block B, Millbarn Centre
MAKHANDA
Tel: 046 622 2044
Cell: 081 271 7367
Email: mfundo@nattorneys.co.za
(Ref: NTSHWAXA/mat001/449bm)
For the respondents: Adv Karsan
Instructed by: State Attorney
29 Western Road
Central
GQEBERHA
Email: PNotley@justice.gov.za
Ref: 06/1587/2024
c/o Shenxane Attorneys
87 High Street
MAKHANDA
Email: admin@shenxaneinc.co.za
Date heard: 23 October 2025.
Date delivered: 24 March 2026.