Van der Vyver Transport (Pty) Ltd v The Minister of Labour and Others

The appellant, Van der Vyver Transport (Pty) Ltd, is a transport company registered as an employer under the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA). In 2000, the Director-General imposed a 20% loading on the appellant’s assessment tariff due to its poor accident record; this was increased to 40% in 2003. Although the appellant’s accident record improved significantly from 2006 onwards and its contributions to the Compensation Fund consistently exceeded claims paid between 2009 and 2019, the 40% loading remained unchanged for over a decade. From 2014, the appellant and its agent made repeated attempts to have the loading reduced or removed, but the Department of Labour either ignored these requests or responded that section 85 processes were suspended, claim data were unavailable, and no timelines could be provided due to audits and systemic failures. In 2015, a complaint was lodged with the Public Protector. On 25 May 2020, the appellant launched a PAJA review application in the High Court seeking a declaratory order that the Director-General’s failure to reassess the loading was unlawful, an order reassessing the tariff to 0% for 2015–2019, reimbursement of overpayments (later adjusted to approximately R5.5 million), and condonation for any delay. The department opposed the application, raising delay and failure to exhaust internal remedies as preliminary points. The High Court dismissed the review on the basis that it was lodged outside the 180-day period in section 7(1) of PAJA without an application for extension under section 9. The appellant appealed to the full court, where the majority dismissed the appeal on delay and non-exhaustion of remedies, while the minority would have upheld the appeal on condonation and found section 91 of COIDA inapplicable. Special leave to appeal to the Supreme Court of Appeal was granted.

• Whether the review application was instituted outside the 180-day period prescribed by section 7(1) of PAJA and whether the court should have extended the period under section 9 of PAJA.
• Whether the appellant provided a reasonable explanation for the delay in bringing the review application.
• Whether the appellant was required to exhaust internal remedies under section 91 of COIDA before instituting the review proceedings.
• Whether the full court was correct to dismiss the appeal and uphold the high court’s refusal of condonation.

The appeal is dismissed with costs, including costs of two counsel where so employed. The Chief Registrar is directed to bring the judgment to the attention of (a) the Auditor-General and (b) the Public Protector.

An applicant seeking an extension of the 180-day period for judicial review under section 9 of PAJA must provide a full and reasonable explanation for the entire period of delay; where there is a complete absence of explanation for an inordinate delay, prospects of success cannot save the application and condonation must be refused. A lower court’s refusal to grant condonation is exercised as a narrow discretion, and an appellate court will interfere only if that discretion was not judicially exercised. Where the administrative action complained of is a failure to act, the 180-day period begins to run when the applicant knows or ought to know that further engagement with the administrator has become futile.

The court expressed grave concern about the disarray and lack of responsiveness in the administration of the Compensation Fund and the conduct of the Director-General, noting that these failures undermine the Fund’s social-security mandate and contravene the basic values and principles of public administration under section 195 of the Constitution. The court directed that its judgment be brought to the attention of the Auditor-General and the Public Protector so that they may consider investigating the Fund’s affairs. The court also observed that the appellant’s claim was purely financial and did not implicate any constitutional rights or the rule of law, and noted that even the minority judgment in the full court would have dismissed that part of the relief relating to a rebate.

The judgment reinforces that applications for extension of the 180-day review period under section 9 of PAJA are treated strictly as condonation applications, requiring a full and reasonable explanation for the entire period of delay; in the absence of any explanation, even apparently strong prospects of success cannot compensate for inordinate delay. It also affirms that a high court’s refusal to grant condonation is a narrow discretion that appellate courts will not readily disturb. Beyond the procedural holding, the case is significant for highlighting and censuring systemic administrative dysfunction within the Compensation Fund, prompting judicial referral to the Auditor-General and Public Protector.