National Council of and for Persons with Disabilities v Independent Communications Authority of South Africa

The Independent Communications Authority of South Africa (the Authority) published a Draft Code for Persons with Disabilities Regulations on 12 June 2020, inviting submissions within 30 days. The National Council of and for Persons with Disabilities (NCPD), a voluntary association advocating for persons with disabilities, submitted comprehensive written submissions on 10 July 2020. The NCPD's main concern was that the Draft Code only provided for closed captioning (not open captioning), which inadequately protected the rights of deaf and hearing-impaired persons to access essential news broadcasts. On 9 April 2021, the Authority published the final 2021 Code for Persons with Disabilities Regulations together with a Reasons Document. The NCPD contended that the reasons did not adequately explain why its submissions were substantially ignored. On 16 June 2021, the NCPD requested all written submissions made by interested parties, which the Authority provided on 21 June 2021 (15 submissions in total). On 11 August 2021, the NCPD requested further reasons under section 5(1) of PAJA as to why its proposals were not adopted. The Authority did not respond. On 5 October 2021 (the 180th day after becoming aware of the 2021 Code), the NCPD launched a review application seeking to set aside the Authority's decision and to remit the matter back to the Authority to reconsider its submissions. By the time the matter was heard, the 2021 Code had come into operation and licensees had made arrangements to comply with it.

• Whether the NCPD unreasonably delayed in instituting review proceedings under section 7(1) of PAJA
• Whether the high court erred in refusing condonation for the delay in instituting the review
• Whether section 5(1) of PAJA could be invoked to request reasons for why submissions were not adopted in regulations
• Whether the NCPD could raise a new case on appeal seeking a declaration that the 2021 Code is unconstitutional for failing to mandate open captioning/subtitling
• Whether television broadcasting service licensees should have been joined as parties
• Whether interested parties should have been notified under rule 16A of a constitutional challenge to regulations

The appeal was dismissed with no order as to costs. The Court made no costs order against the NCPD given that it sought to vindicate constitutional rights of persons who are deaf and hearing-impaired.

The binding legal principles established are: (1) Review proceedings under PAJA must be instituted without unreasonable delay even when challenging regulations (subordinate legislation), and the making of regulations by a statutory authority constitutes administrative action subject to PAJA; (2) The 180-day period in section 7(1) of PAJA begins to run from the date a person becomes aware of the administrative action and reasons for it, and does not restart or pause when a party requests additional or further reasons after having already received reasons; (3) Section 5(1) of PAJA only applies where a person has not been given reasons for administrative action, and cannot be used to request reasons for why particular submissions were not adopted in regulations; (4) A regulator has no duty to accept or adopt all submissions made during a public consultation process when making regulations, provided it genuinely considers all submissions received; (5) Factors relevant to exercising discretion to refuse condonation for unreasonable delay include: length of delay, reasonableness of explanation, prejudice to parties who arranged affairs in reliance on the decision, public interest in finality of administrative decisions, and prospects of success; (6) Proof of actual prejudice is not a precondition for refusing review proceedings by reason of undue delay, though extent of prejudice shown is a relevant consideration; (7) A new constitutional challenge to legislation or subordinate legislation cannot be raised for the first time on appeal where: (a) it deprives the respondent of the opportunity to justify limitation of fundamental rights under section 36 of the Constitution; (b) interested parties have not been given rule 16A notification; (c) necessary parties have not been joined; and (d) it would be unfair and prejudicial to the respondent; (8) In matters concerning constitutional validity of subordinate legislation, a pragmatic approach should be adopted in identifying necessary parties to be joined - at minimum, those with an immediate legal interest who are easily identifiable (such as licensees bound by regulations) should be joined.

The Court made several non-binding observations: (1) The purpose of section 5 of PAJA is to obtain reasons for administrative action where none have been provided, not to clarify why particular submissions were not included in regulations; (2) While not all provisions of PAJA may be perfectly tailored for review of regulations, this does not exempt challenges to regulations from PAJA's requirements; (3) The date of promulgation of regulations is irrelevant to any future challenge to their constitutionality - it is only relevant for determining when the delay period begins to run for a PAJA review; (4) It is neither possible nor practical to join all parties who have a potential interest in the constitutional validity of regulations, as this would make constitutional challenges logistically impossible; (5) The constitutional validity of legislation must be determined objectively, not with reference to subjective effects on particular individuals; however, this does not excuse failure to join parties with direct legal interests who have the right to make submissions on justification for limitation of rights; (6) The Court noted sympathetically that the NCPD seeks to vindicate constitutional rights of persons who are deaf and hearing-impaired (reflected in the costs order); (7) The founding affidavit's acknowledgment that open live captioning in news broadcasts 'may not currently be achievable in South Africa' and 'will have to be a long-term goal' was noted as being at odds with the new relief sought on appeal; (8) The Court emphasized the importance of investigatory steps before launching review applications to avoid unnecessary litigation, but distinguished this from the facts where reasons had already been provided.

This case is significant for establishing important principles in South African administrative law regarding: (1) the application of section 7(1) of PAJA's delay provisions to challenges against subordinate legislation/regulations; (2) the proper interpretation and application of section 5(1) of PAJA regarding requests for reasons; (3) the principle that requesting additional reasons does not stop the 180-day clock from running once a party has been given reasons for administrative action; (4) the requirement for affected parties to act diligently in challenging administrative action, even when challenging regulations with ongoing effect; (5) the principle that regulators are not obliged to adopt all submissions when making regulations, provided they genuinely consider them; (6) procedural requirements for raising constitutional challenges to regulations, including the need to comply with rule 16A and join necessary parties; and (7) the limitations on raising new constitutional challenges for the first time on appeal, particularly where this would deny respondents the opportunity to justify limitations of fundamental rights under section 36 of the Constitution. The judgment reinforces that even challenges to regulations (as opposed to individual administrative decisions) must comply with PAJA's procedural requirements and that fairness considerations require constitutional challenges to be properly pleaded to allow affected parties to respond.