Beweging vir Christelik-Volkseie Onderwys v Minister of Education

The first appellant (Beweging vir Christelik-Volkseie Onderwys – BCVO) is a section 21 company promoting Christian Afrikaans ethnic education. The second appellant (CVO Skool Pretoria) is an independent school affiliated to BCVO. The third appellant is a father of three children attending the CVO Skool Pretoria. The fourth appellant is a mother educating two children at home. The appellants challenged three government notices promulgated by the Minister of Education (first respondent) in 2002 and 2003 setting out new curriculum policy and religious education policy for schools. The notices were: Government Notice 710 of 31 May 2002 (curriculum for Grades R-9, to be phased in 2004-2008); Government Notice 1407 of 6 October 2003 (curriculum for Grades 10-12, to be implemented 2006-2008); and Government Notice 1307 of 12 September 2003 (policy on religion and education). The appellants contended these notices were not binding on independent schools because no regulations had been promulgated to give effect to them. The appellants became aware of the curriculum through a Department of Education letter dated 11 April 2005 (received 26 April 2005) inviting schools to a workshop on the new curriculum for Grade 10 in 2006. At its mid-2005 annual general meeting, BCVO decided to implement some aspects of the new curriculum but not others. Legal advice was obtained in the first half of 2006 that the curriculum was not binding. A letter of demand was sent to the Minister on 6 December 2006, with an ultimatum expiring on 22 January 2007. The main application was only launched on 10 September 2007. The Minister's answering affidavit raised the point that the proceedings were brought outside the 180-day time limit in section 7(1) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The appellants then brought an extension application on 12 December 2007 seeking an extension of the 180-day period. The Minister filed answering papers on 27 February 2008. The appellants only filed replying papers on 8 October 2009 (18 months later) and applied for condonation for this delay.

• Whether condonation should be granted for the late filing (18 months) of the replying affidavit in the extension application
• Whether the application for an extension of the 180-day period in section 7(1) of PAJA should be granted
• Whether the relief sought constituted a review of administrative action for purposes of PAJA
• Whether the appellants had delayed unreasonably in launching the main application
• Whether the Biowatch Trust principle regarding costs applies where an application fails due to unreasonable delay

The appeal was dismissed. The appellants were ordered, jointly and severally, to pay the costs of the first respondent (Minister of Education), including the costs of two counsel. This upheld the decision of Pretorius J in the North Gauteng High Court dismissing: (1) the application for condonation for late filing of the replying affidavit in the extension application; (2) the extension application; and (3) the main application.

1. An 18-month delay in filing a replying affidavit that should have taken at most a few weeks to prepare, without adequate explanation, constitutes flagrant and gross non-compliance with the Rules of Court warranting refusal of condonation without consideration of prospects of success. 2. For purposes of section 7(1)(b) of PAJA, the clock starts ticking when a person becomes aware of the administrative action (the decision being challenged), not when they become aware of its reviewability. Litigants have a duty to take reasonable steps to investigate the reviewability of decisions adversely affecting them as soon as they become aware of those decisions. 3. Applications seeking declarators that government policy is not binding do not constitute review proceedings under PAJA (as no administrative action is being set aside), and are subject to the common law delay rule. Applications seeking to set aside the implementation or imposition of policy do constitute review proceedings under PAJA where the implementation amounts to administrative action as defined in the Act. 4. Condonation for delay (or extension of time under PAJA section 9) requires: (a) a full and reasonable explanation covering the entire period of delay; (b) consideration of factors including the nature of relief sought, extent and cause of delay, effect on administration of justice, importance of the issues, and prospects of success. Where delay is lengthy and the explanation inadequate, condonation/extension may be refused even without detailed consideration of prospects of success, particularly where the dispute has been overtaken by events. 5. The Biowatch Trust costs principle (that government pays costs when it loses but each party bears own costs when government wins in constitutional litigation) does not apply where proceedings are "manifestly inappropriate" due to unreasonable delay with poor prospects of condonation. In such circumstances, the usual rule that costs follow the result applies.

1. The court expressed doubt that the appellants (particularly BCVO and CVO Skool Pretoria, being involved in education) only became aware of the government notices in 2005 and 2007, given that the new curriculum had been developed over time with much consultation and publicity, and was being implemented from 2004. The court suggested they had only themselves to blame if they remained unaware. 2. The court noted that it would have been advisable for the retired judge (De Villiers) who undertook to draft the replying papers to have declined the work if his capacity was diminished due to age, rather than accept the responsibility and fail to discharge it timeously. 3. The court observed that where non-compliance with rules was due entirely to neglect of an attorney, it should not be assumed that condonation will be granted. 4. Plasket AJA noted that in practice, section 9 of PAJA is treated as a condonation provision, with applicants usually applying for condonation in their founding papers rather than bringing a separate application for extension of time (though the appellants could not be faulted for the procedure they followed). 5. The court commented that had it been necessary to consider the merits, the prospects of success had diminished significantly because the dispute had been overtaken by events: another curriculum had replaced the challenged one and the appellants accepted that procedural steps to make the new policy binding had been complied with. This rendered the issue of little practical import despite lingering for some six years. 6. The court suggested that even if delay is less than 180 days, an applicant may still be non-suited under PAJA section 7(1) which requires proceedings to be instituted "without unreasonable delay and not later than 180 days" - though this issue did not arise in the present case. 7. The court observed that the firms of attorneys representing the appellants abdicated their professional responsibility by leaving matters entirely in the hands of De Villiers and failing to monitor progress or ensure timely compliance with procedural requirements.

This case is significant for several reasons: 1. Interpretation and application of PAJA delay provisions: It provides guidance on the application of sections 7(1) and 9 of PAJA concerning the 180-day time limit for review proceedings and the test for extending that period ("interests of justice"). It clarifies that the same factors applicable to common law delay apply to PAJA condonation. 2. Duty to investigate reviewability: The judgment reinforces that litigants have a duty to take reasonable steps to investigate the reviewability of administrative decisions adversely affecting them as soon as they become aware of such decisions. Delay prior to becoming aware of reviewability cannot necessarily be disregarded. 3. Distinction between policy and implementation: The case distinguishes between challenging policy statements (which may not be administrative action under PAJA) and challenging the implementation or imposition of policy (which likely constitutes administrative action). This is important for determining which procedural requirements apply. 4. Standard for condonation: The judgment reinforces the strict approach to condonation applications, particularly where delay is flagrant and gross. It emphasizes that a full and reasonable explanation must cover the entire period of delay, and vague or incomplete explanations will not suffice. 5. Professional responsibility: The case highlights the professional duties of attorneys to monitor progress of litigation and not abdicate responsibility to other advisors, even senior counsel or retired judges. 6. Limitations of Biowatch costs principle: The case clarifies that the Biowatch Trust principle protecting constitutional litigants from adverse costs orders does not apply where proceedings are "manifestly inappropriate" due to unreasonable delay and poor prospects of success. This prevents abuse of the principle by dilatory litigants. 7. Practical importance of timeous litigation: The case demonstrates how delay can render litigation moot when circumstances change (here, a new curriculum replaced the challenged one), wasting judicial resources and prejudicing the administration of justice.