Gqwetha v Transkei Development Corporation Ltd and Others

The appellant was employed by the first respondent as an accounts supervisor and was dismissed following a disciplinary hearing chaired by the second respondent. Her internal appeal against dismissal failed and the dismissal was confirmed by the third respondent on 26 July 1995. Approximately fourteen months later, on 30 September 1996, she instituted review proceedings in the Transkei High Court seeking to have the disciplinary decisions reviewed and set aside and to be reinstated. The delay was explained mainly by difficulties in obtaining a complete record of the disciplinary proceedings. The High Court (Madlanga J) found the delay unreasonable but condoned it and granted the relief sought. The Full Court overturned that decision on the limited issue of condonation, holding that the discretion had not been properly exercised. The matter came before the Supreme Court of Appeal with special leave.

The appeal succeeded. The Supreme Court of Appeal condoned the unreasonable delay, set aside the decision of the Full Court, and restored the order of the court of first instance granting review and reinstatement of the appellant.

This case is a leading authority on the law of unreasonable delay in judicial review in South African administrative law. It clarifies the two-stage enquiry into delay (unreasonableness and condonation), the relevance of prejudice and prospects of success, and affirms that appellate courts may exercise the discretion afresh where a lower court failed to do so properly. It also highlights the tension between individual fairness and the public interest in finality of administrative decisions.