PricewaterhouseCoopers Inc and Others v Van Vollenhoven NO and Another

The parties were engaged in protracted litigation. On 5 December 2006, the trial court ordered the plaintiff (second respondent) to provide security for costs in an amount to be determined by the taxing master. On 15 December 2006, the taxing master determined security at R7.56 million, disallowing an item of approximately R5.46 million for forensic auditors' fees. The defendants (appellants) waited almost 18 months before launching a review application on 6 June 2008 to set aside the taxing master's decision regarding the disallowed fees. The defendants had believed the plaintiff would be unable to furnish security and therefore did not initially pursue the review. The plaintiff's appeal against the security order was dismissed by the Supreme Court of Appeal on 29 November 2007. By the time of the review application, the plaintiff had obtained outside financing from an Australian company to furnish the security. On 1 December 2008, the North Gauteng High Court dismissed the review application with costs.

• Whether the decision of the taxing master (registrar) constitutes administrative action susceptible to judicial review despite Uniform Rule 47(2) providing that the registrar's decision is final
• Whether the review application was instituted within the 180-day period prescribed by section 7(1) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
• Whether the court should extend the 180-day period in terms of section 9(2) of PAJA where the interests of justice so require
• Whether the defendants provided a reasonable explanation for the delay of approximately 18 months in bringing the review application
• Whether the plaintiff would be prejudiced by an increase in security after obtaining financing based on the original determination

The appeal was dismissed with costs, including the costs of two counsel. The court upheld the North Gauteng High Court's refusal to extend the 180-day period under section 9(2) of PAJA.

The binding principle established is that an application for extension of the 180-day period prescribed by section 7(1) of PAJA under section 9(2) requires a demonstration that the interests of justice require such extension. The interests of justice test requires consideration of multiple factors including the extent and cause of delay, effect on administration of justice and other litigants, reasonableness of the explanation for delay, and prospects of success. An applicant for extension must provide a full explanation for the delay that covers the entire period of delay and is reasonable. Strategic or commercial considerations (such as delaying to avoid costs on the basis that the matter might become moot) do not constitute reasonable explanations for delay in bringing review applications under PAJA. A taxing master's decision on security for costs, despite being declared 'final' under Uniform Rule 47(2), constitutes administrative action susceptible to judicial review under PAJA and common law principles.

The court noted that this was not the first time the parties had come before the Supreme Court of Appeal, describing them as 'locked in litigation of marathon proportions'. The court also made observations about the ambiguous nature of a letter dated 7 January 2008 which the defendants claimed informed the plaintiff of their intention to review, finding it did not pertinently alert the plaintiff to the possibility of review and in any event was written long after the 180-day period had elapsed. The court observed that the plaintiff would be prejudiced if security were increased after having obtained external financing based on the original determination, though this was not essential to its decision given the failure to provide adequate explanation for delay.

This case provides important guidance on the application of PAJA's time limits for review of administrative action and the interpretation of the 'interests of justice' test under section 9(2) for extending those time limits. It confirms that taxing masters' decisions on security for costs constitute administrative action reviewable under PAJA, notwithstanding provisions in the Uniform Rules declaring such decisions to be final. The judgment reinforces the strict approach courts take to applications for extension of statutory time limits, particularly emphasizing that explanations for delay must be full (covering the entire period), comprehensive, and reasonable. The case demonstrates that strategic or tactical reasons for delay (such as waiting to see if an opponent can meet financial obligations) will not constitute reasonable explanations justifying extension of time. It also illustrates that applicants cannot simply ignore statutory time limits and then seek indulgence from the court without proper justification, even in complex commercial litigation involving substantial amounts.