On 8 April 2024, the Supreme Court of Appeal ("SCA") handed down judgment in the matter of Centre for Child Law and Other v South African Council for Educators and Others, which concerned a challenge against an administrative decision. The SCA considered specifically when the clock begins to run under section 7(1)(b) of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA").
The Centre for Child Law ("CCL") sought to review and set aside the decision of the South African Council for Educators ("SACE") in disciplinary proceedings against two educators who separately assaulted Grade 2 children in school. The children each required hospitalisation for brain injuries following the assault, which was disputed by SACE, who questioned whether the assaults had caused the children's injuries as well as the severity and consequences of the assaults. Whilst the children and their parents were invited to attend the disciplinary proceedings against the educators, they were not invited to participate. They were made to wait in a separate room, thereby preventing them from being present, providing evidence, making representations, and being consulted on sanctions. They were simply notified afterwards that the educators had each entered into a plea and sentence agreement.
The nub of the complaint was that the SACE applied so-called Mandatory Sanctions, which did not provide for discretion when imposing sanctions, nor did they provide for rehabilitative or corrective sanctions. Furthermore, the disciplinary proceedings were conducted and concluded without allowing for meaningful engagement with the victim-learners and their parents.
In the Pretoria High Court, CCL sought, among other things, to set aside the findings and remit the matters back to SACE with appropriate directions. This relief was sought both in terms of PAJA and the constitutional principle of legality. That was the subject of this appeal, as the Pretoria High Court dismissed the review under PAJA due to the undue delay in launching the application. However, the Pretoria High Court granted systemic relief, namely a generic order that SACE should revisit the manner in which it dealt with complaints and the appropriate sanctions for misconduct by educators.
The SCA's Findings
Section 7(1) of PAJA requires that proceedings for judicial review be instituted without unreasonable delay and in any event no later than 180 days from the day (i) on which any internal challenge to the decision was concluded or (ii) on which the person concerned was informed or could reasonably be expected to have been aware of the administrative action, and the reasons for it. It is on the wording "and the reasons for it" that CCL relied upon. There was no internal challenge, and it was a common cause that no reasons had been provided. In those circumstances, the question is when, in the absence of reasons, the 180-day period started.
The SCA highlighted that the court a quo did not follow previous decisions in point of both the SCA and the Constitutional Court. The SCA case of Commissioner, South African Revenue Service v Sasol Chevron Holdings Limited and the Constitutional Court case of City of Cape Town v Aurecon South Africa (Pty) Ltd explain that the clock begins to run from the date on which the reasons for the administrative action became known, or ought reasonably to become known to the applicant.
Given that no reasons had been provided, the 180-day period never started. The SCA held that the Pretoria High Court had misdirected itself when it decided there was an unreasonable delay by the appellants in launching the review application.
The SCA went further to state that the decisions taken by SACE failed to comply with numerous provisions of PAJA. "The decisions taken in accordance with these sanctions were procedurally unfair as envisaged in section 6(2)(c) of PAJA, as the children and their parents were not given an opportunity to be meaningfully heard or participate in the proceedings. In terms of section 6(2)(d) of PAJA, the decisions were materially influenced by an error of law in that it did not take into consideration any of the provisions in the Constitution and Children's Act relating to the best interests and protection of the rights of children. The decisions were also taken capriciously and arbitrarily, as envisaged in section 6(2)(e)(vi), as no discretion was allowed when the sanctions were imposed. It is undoubtedly so that the 2016 Mandatory Sanctions unlawfully fettered the discretionary powers of the disciplinary committee." The SCA held that the High Court should not have dismissed the review application.
Conclusion
Tolmay AJA, penning the decision of the SCA, highlights that the proverbial clock in section 7(1)(b) of PAJA begins to tick only once the reasons for the impugned decision are provided (or ought reasonably to become known), to an applicant who intends to review the decision. Therefore, in the absence of reasons for administrative action, a Court cannot dismiss an application for judicial review on the basis of an undue delay or the lapse of 180 days.
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