The newly reported judgement in Tasima (Pty) Ltd v Department of Transport (792/2015)  ZASCA 200 (2 December 2015) highlights some interesting aspects regarding the review of administrative actions.
In summary, the case dealt with an extension of a contract between appellant and first respondent relating to the eNatis systems – some of the respondents were in contempt of several court orders compelling respondents to comply with the contract during the period of extension – the appellant applied for committal of contempt of those orders and related relief .
It is however the counter-application by the First Respondent to review and set aside the extension of the contract that is of interest for the purposes of this note, because the Court held the First respondent to be bound by the time limit imposed by section 7 of the Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”). The Court considered the time limits for a review and the effect thereof on a direct challenge and a collateral challenge.
The Court held that:
- Since the review application had been brought under section 6 of PAJA it is, at least on the face of it, subject to the time-bar in section 7. In terms of this section proceedings for judicial review in terms of s 6 must be instituted without unreasonable delay and not later than 180 days, unless the court in terms of section 9 allows an extension ‘where the interests of justice so requires’.
- The Department’s first bid to circumvent the obstacle created by the section 7 time-bar was that its counter-application amounted to what has become known in administrative law parlance as a collateral or defensive challenge. Underlying this argument is the principle that a collateral challenge enjoys a somewhat distinct status in our administrative law that renders it immune to limitations of time(see eg Kouga Municipality v Bellingan & others 2012 (2) SA 95 (SCA) para 18; MEC for Health, Eastern Cape & another v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC) para 83). The concept of a collateral challenge has its origin in Oudekraal Estates (Pty) Ltd v City of Cape Town & others 2004 (6) SA 222 (SCA). According to the general principle laid down by this court in Oudekraal (para 26) administrative actions must be treated as valid until set aside, even if actually invalid. But at the same time it recognises the following exception to this general rule (para 32):
‘It is in those cases – where the subject is sought to be coerced by a public authority into compliance with an unlawful administrative act – that the subject may be entitled to ignore the unlawful act with impunity and justify his conduct by raising what has come to be known as a “defensive” or a “collateral” challenge to the validity of the administrative act.’
- The Court upheld the principle that a collateral challenge was that there are two recent decisions of this court which held that this defence is not available to organs of State (see Kwa Sani Municipality v Underberg/Himeville Community Watch Association & another  2 All SA 657 (SCA); Merafong City Local Municipality v AngloGold Ashanti Ltd  ZASCA 85 (SCA).
- The sole reason why the DoT relied on a collateral challenge in this case is because it wants to avoid the consequences of the 180-day time-bar in s 7 of PAJA. But the time-bar in s 7 itself is not absolute. It can be extended or condoned by the court in terms of s 9 of PAJA if the interests of justice so dictate.
The principles bear mention because of the frequency of which administrative action is challenged. “Administrative action” is defined in PAJA and encompasses any decision or failure to make decision by an organ of state, as well as those of natural or juristic person performing a public function.