Antony Louis Mostert NO v The Registrar of Pension Funds

The appellant was a joint liquidator of the Picbel Groepvoorsorgfonds (the Fund), a pension fund governed by the Pension Funds Act 24 of 1956 (PFA). The Fund was established in 1971 as a defined benefit fund, had closed to new members by December 2001, and was placed under curatorship on 17 October 2005. The appellant was appointed as curator and later as joint liquidator on 18 April 2008. The Fund had incomplete records, making it difficult to trace former members. A surplus apportionment scheme was approved by the Registrar on 11 May 2012. Regulation 35(4), promulgated on 22 April 2003 by the Minister of Finance under section 36 of the PFA, required that enhancements due to former members who could not be traced be placed in a contingency reserve account and ultimately deposited into the Guardians Fund or other fund established by law. Approximately R41.8 million would be affected by this regulation. The appellant launched a review application on 26 February 2015 (nearly 12 years after the regulation was promulgated) seeking to declare regulation 35(4) ultra vires, irrational, and unenforceable under the Promotion of Administrative Justice Act 3 of 2000 (PAJA). No application was made for an extension of the 180-day period prescribed in section 7(1) of PAJA.

• Whether the court a quo could raise the issue of delay in compliance with section 7(1) of PAJA mero motu (of its own accord)
• Whether the Minister could raise the delay issue in argument when it had not been raised in the answering affidavit
• Whether the 180-day period in section 7(1) of PAJA applies to review of regulations made under delegated legislative powers
• When the 180-day period commenced to run in circumstances where regulations affect the public at large rather than a specific individual
• Whether the review proceedings were instituted within the 180-day period prescribed in section 7(1) of PAJA
• Whether the court had power to entertain the review in the absence of compliance with section 7(1) and without an application for extension under section 9 of PAJA

The appeal was dismissed with costs, including those occasioned by the employment of two counsel. The order of the court a quo dismissing the review application was upheld.

The binding legal principles established are: (1) Under section 7(1) of PAJA, a delay exceeding 180 days is per se unreasonable, and the court has no authority to entertain a review application absent an extension granted under section 9 of PAJA. (2) The 180-day time limit in section 7(1) applies to "any proceedings for judicial review" under PAJA, including reviews of regulation-making where PAJA is applicable. (3) Where administrative action affects the public at large rather than a specific individual, the court must take a broad view of when the public at large might reasonably be expected to have become aware of the action, not dictated by the peculiar knowledge of the particular member or members of the public who have chosen to challenge the act. (4) In such cases, "the public at large" should be understood contextually to refer to those members of the public involved in or affected by the relevant sector or industry. (5) The time-bar issue in section 7(1) of PAJA is not analogous to the special defense of prescription; it goes to the court's jurisdiction to entertain the review, and a respondent may raise it in argument even if not specifically pleaded in the answering affidavit. (6) Courts have inherent jurisdiction to raise the issue of compliance with section 7(1) mero motu where there has been a manifest delay, though the applicant should be given an opportunity to explain the delay or apply for an extension.

The court made important obiter observations cautioning against an overly broad interpretation of the New Clicks decision. Ploos van Amstel AJA emphasized that New Clicks is not authority for the proposition that the making of regulations by a minister, in general, is administrative action for purposes of PAJA. The learned judge noted that Chaskalson CJ in New Clicks confined himself to the specific regulations before the court and applied the definition in section 1 of PAJA to those particular regulations. The judgment noted that Chaskalson CJ was not speaking for the majority on the applicability of PAJA to regulation-making, and that the judges in New Clicks had varying views on this issue. The court stated: "The final word on regulation-making and the applicability of PAJA to it may therefore not have been spoken." The court also observed that the statement in City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd that PAJA applies to regulation-making was, with respect, stated too widely. The court further noted that "not all the provisions of PAJA, and particularly s 7, are tailored for the review of a regulation," highlighting practical difficulties in applying PAJA's procedural requirements to challenges to regulations. These observations suggest caution in assuming PAJA automatically applies to all ministerial regulation-making and indicate this may be an area requiring further judicial clarification.

This case is significant for establishing important principles regarding the application of the 180-day time limit in section 7(1) of PAJA, particularly in cases involving regulations affecting the public at large. The judgment clarifies that: (1) the 180-day time limit in section 7(1) of PAJA applies to reviews of regulation-making where PAJA is applicable; (2) a delay exceeding 180 days is per se unreasonable under PAJA, and courts have no authority to entertain reviews absent compliance or an extension under section 9; (3) where administrative action affects the public at large rather than specific individuals, courts must take a broad view of when the public at large might reasonably have been expected to become aware of the action; (4) "the public at large" should be understood contextually to refer to those affected by or involved in the relevant sector; (5) courts have inherent jurisdiction to refuse review applications for inordinate delay and may raise the issue mero motu; and (6) respondents may raise the time-bar issue in argument even if not raised in papers, as it goes to the court's jurisdiction rather than being a mere defense. The case also contains important obiter dicta cautioning that New Clicks is not authority for the blanket proposition that all ministerial regulation-making constitutes administrative action for PAJA purposes, and that the final word on this issue may not have been spoken.