Litigants must generally challenge administrative action in court within 180 days after exhausting internal remedies. If no internal remedies exist, a litigant must file its papers in court within 180 days of becoming aware of the action and its reasons, as required by section 7 of the Promotion of Administrative Justice Act, 2000 ("PAJA").
Where a litigant fails to institute proceedings within 180 days, section 9 of PAJA states that the 180-day period may be extended on application by a litigant to the court. The court may grant the application where the interests of justice so require.
The question
Does a formal condonation application have to be made to extend the 180-day period? The simple answer is yes. In two cases, the Gauteng Division of the High Court, Pretoria, relying on previous decisions from the Constitutional Court and the Supreme Court of Appeal, dealt with this question.
The two cases
First, in African Exploration and Mining and Finance Corporation (Pty) Ltd v Minister of Mineral Resources, African Exploration sought to review the Minister's decision in respect of the conversion of the mining rights of Tavistock. However, the application was brought after 180 days following the exhaustion of internal remedies. No formal condonation application was instituted.
The court in African Exploration held that it may extend the 180-day period but that it could only do so when a formal condonation application has been launched. The failure to launch a formal condonation application resulted in the entire application failing.
In Datacentrix (Pty) Ltd v SANParks and Others, Datacentrix sought to review SANParks's decision to award a tender to Gijima for the provision of information and communication services. The application was instituted after 180 days following Datacentrix becoming aware of the administrative action. Condonation was only mentioned in Datacentrix's replying papers and not in its founding papers.
The court in Datacentrix held that formal condonation is a statutory requirement and reiterated that condonation issues need to be decided before the merits of a case can be dealt with. Datacentrix raising the issue of condonation in its replying papers did not assist. This caused prejudice to the respondents as the respondents had no opportunity to respond to the Datacentrix's contentions regarding condonation.
Condonation must be raised in the founding papers. It is the litigant who institutes proceedings that must satisfy the statutory requirement of PAJA that a case for condonation has been made, where the application is instituted outside the 180 day period. In exceptional circumstances, the court may on its own accord afford a litigant an opportunity to file a condonation application. However, no such circumstances existed on the facts in the Datacentrix case. The failure to launch a formal condonation application in the founding papers resulted in the entire application failing.
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