Out of time: do the paja time periods apply to organs of state?

2 Dec 2015 3 min read Dispute Resolution Matters Article

Section 7(1) of the Promotion of Administrative Justice Act, No 3 of 2000 (PAJA) provides that:

Any proceedings for judicial review in terms of s6(1) must be instituted without unreasonable delay and not later than 180 days after the date:

(a)subject to ss2(c), on which any proceedings in terms of internal remedies as contemplated in ss2(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.

The use of the words ‘person concerned’ creates some confusion in determining who this provision applies to. The pertinent question is whether this provision applies to an organ of state who elects to review or set aside its own decision?

The word ‘any’ in s7(1) of PAJA suggests that the section is intended to apply to all proceedings for judicial review including those involving organs of state. This interpretation was, however, dismissed in Telkom SA Limited v Merid Training (Pty) Ltd and Other [2011] JOL 26617 (GNP) where the first and fifth respondents contended that the applicant, Telkom SA Ltd, did not bring its application within the 180 day period specified in s7(1) of PAJA. Telkom maintained its view that s7(1) of PAJA does not apply when the decision-maker applied to set aside its own decision. According to Telkom, the review of a decision-maker’s own decision is not covered by paragraphs (a) and (b) of s7(1) which dictates the date from which the 180 days must run. 

The court held that while PAJA appears to govern all proceedings for judicial review, the failure of the legislature to provide for a date where the decision-maker elects to review its own decision, indicates that the legislature did not intend s7(1) to apply to such proceedings. It was further stated that a court cannot read something into an Act which was overlooked by the legislature.

The court further held that where the decision-maker seeks to review its own decision, the common law must be applied which requires all relevant circumstances to be taken into account, particularly the merits of the case. The court must decide whether the proceedings were instituted after the passing of a reasonable time and if so whether the unreasonable delay ought to be overlooked.

In contrast, the Constitutional Court in Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal 2014 (5) SA 579 (CC) held that litigants including public functionaries are bound by statutory and common law time limits and may not circumvent them by using procedural tricks or tactics. Although s7(1) stipulates a 180 day time limit, s9(1) of PAJA allows for the granting of condonation in appropriate circumstances where the proceedings were instituted outside the 180 day period. 

Thus s7(1) does apply to organs of state and the answer lies in bringing an application for condonation under s9(1) of PAJA, if a justified explanation for the delay is put forward, the delay will be condoned. 

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