Automated Summary
Key Facts
The case concerns the dismissal of a judicial review application under the Promotion of Administrative Justice Act (PAJA) challenging regulation 35(4) of the Pension Funds Act. The Supreme Court of Appeal upheld the lower court's decision that the application was not filed within the 180-day period prescribed by s 7(1) of PAJA. The regulation, promulgated in 2003, affects the distribution of unclaimed actuarial surplus in pension funds. The appellant, a joint liquidator of the Picbel Groepvoorsorgfonds, argued the regulation was irrational and ultra vires but failed to demonstrate compliance with the 180-day time limit. The court emphasized that the period began when the public at large could reasonably have been expected to be aware of the regulation, not when it was published or when the appellant personally became aware. The appeal was dismissed with costs.
Issues
- The second issue concerned the court's authority to raise the 180-day delay mero motu, even though the Minister did not address it in his answering affidavit. The court held that respondents are entitled to raise the point in argument when the delay appears manifestly unreasonable, and that the court a quo did not err in allowing this submission.
- The court considered when the 180-day period began to run for the public at large affected by the regulation. It concluded the period started on the regulation's promulgation date (22 April 2003), not the later surplus apportionment approval date (11 May 2012), deeming the 12-year delay unreasonable per se under PAJA's strict timeline.
- A key question was whether the 180-day time limit in PAJA applies to challenges against ministerial regulations. The court rejected the argument that s 7(1) is inapplicable to regulations, emphasizing that PAJA governs judicial reviews of administrative actions, including regulations, and that the lack of requested or provided reasons does not negate the time bar.
- The primary issue was whether the court a quo correctly applied the 180-day time limit for judicial review under s 7(1) of the Promotion of Administrative Justice Act (PAJA). This included determining if the court could have raised the delay mero motu and whether the period commenced on the regulation's promulgation date (22 April 2003) or a later date (11 May 2012). The court concluded the 12-year delay was unreasonable per se under PAJA's strict timeline.
Holdings
- The court clarified that the 180-day period in s 7(1) of PAJA applies to the making of regulations where the administrative action affects the public at large. The period commenced when the public at large might reasonably have been expected to have become aware of the regulation, not when an individual became aware. This was deemed to be the regulation's promulgation date (22 April 2003), and no condonation was sought.
- The appeal is dismissed with costs, including those occasioned by the employment of two counsel. The court held that the court a quo correctly dismissed the application for judicial review under PAJA as it was not instituted within the 180-day period prescribed in s 7(1). The court determined that the 180-day period commenced on 22 April 2003 (the regulation's promulgation date) and the application was filed nearly 12 years later, which is manifestly unreasonable delay.
Remedies
The appeal was dismissed with costs, including those occasioned by the employment of two counsel. The court held that the review application was not instituted within the 180-day period prescribed under s 7(1) of PAJA and had no power to entertain the review.
Legal Principles
The court applied the 180-day time limit for judicial review under the Promotion of Administrative Justice Act (PAJA), emphasizing that failure to comply with this period results in the court having no power to entertain the review. The judgment clarified that while courts may raise inordinate delay mero motu at common law, PAJA's time bar is a jurisdictional requirement that must be strictly adhered to unless extended under s 9 for the interests of justice.
Precedent Name
- Minister of Health & another NO v New Clicks South Africa (Pty) Ltd & others
- City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd
- Opposition to Urban Tolling Alliance & others v The South African National Roads Agency Ltd & others
- Camps Bay Ratepayers' and Residents' Association & another v Harrison & another
- Mamabolo v Rustenburg Regional Local Council
Cited Statute
- Financial Institutions (Protection of Funds) Act 28 of 2001
- Medicines and Related Substances Act 101 of 1965
- Pension Funds Act 24 of 1956
- Prescription Act 68 of 1969
- Promotion of Administrative Justice Act 3 of 2000
Judge Name
- Tsoka
- Gorven
- Saldulker
- Lewis
- Ploos van Amstel
Passage Text
- I do not consider that such an interpretation of s 7 can be justified. On the plain wording of s 7(1) the time-bar applies to 'any proceedings for judicial review'. It must be read with s 5, which deals with reasons for administrative action.
- The court a quo should therefore have taken a broad view of when the public at large might reasonably have been expected to have become aware of the action.
- The regulation in question was promulgated on 22 April 2003. The application for it to be reviewed was brought nearly 12 years later. In the absence of any evidence to the contrary I think it can safely be accepted that this was well outside a period of 180 days...