THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
JUDGMENT

Case number: 261/09
In the matter between:
PRICEWATERHOUSE COOPERS INC
First Appellant
HOEK & WIEHAHN
Second Appellant
WIEHAHN MEYERNEL
Third Appellant
PRICEWATERHOUSE MEYERNEL
Fourth Appellant
PRICE WATERHOUSE
Fifth Appellant

and
G M VAN VOLLENHOVEN N.O.
First Respondent
NATIONAL POTATO CO-OPERATIVE LTD
Second Respondent

Neutral citation:
Pricewaterhouse v Van Vollenhoven NO (261/2009)
[2009] ZASCA 166 (1 December 2009)
Coram:
Streicher, Brand, Bosielo JJA and Leach and Griesel AJJA
Heard:
24 November 2009
Delivered:
1 December 2009
Summary:
Administrative law – Promotion of Administrative Justice
Act 3 of 2000, s 9(2) – whether high court correctly
concluded that not in interests of justice that time within
which review application to have been brought be
extended.

ORDER

On appeal from: North Gauteng High Court, Pretoria (Botha J).
Order:
The appeal is dismissed with costs, including the costs of two counsel.

JUDGMENT

GRIESEL AJA (STREICHER, BRAND, BOSIELO JJA
AND LEACH AJA concurring):
[1] This is not the first time that these parties have come to this court in the
course of the present litigation.1 As observed by Hurt AJA in the opening
sentence of one of the previous judgments,2 ‘(t)he parties are locked in litigation
of marathon proportions’. The present appeal arises from an unsuccessful
application for review of the taxing master’s decision in respect of security for
costs. The taxing master was cited as the first respondent herein, but played no
role in the proceedings. For the sake of convenience, I refer to the parties by
their description in the main action, namely as plaintiff (for the second
respondent) and defendants (for the appellants) respectively.
[2] The factual background appears fully from the two previous judgments
of this court. It is accordingly not necessary for me to repeat it for present
purposes save to set out the following brief chronology:

1 See Price Waterhouse Coopers Inc v National Potato Co-operative Ltd 2004 (6) SA 66 (SCA);
Aartappel Koöperasie Bpk v Pricewaterhousecoopers [2007] SCA 166 (‘the 2007 judgment’).
2 The 2007 judgment, para 1.


On 5 December 2006 the trial judge (Botha J in the North Gauteng
High Court in Pretoria) granted an order directing the plaintiff to provide security
in an amount to be determined by the taxing master. The appeal against that
order was subsequently dismissed by this court on 29 November 2007. This
formed the subject matter of the 2007 judgment.

Meanwhile, the defendants had presented a pro forma bill of costs to
the taxing master to determine the amount of security to be furnished by the
plaintiff. After argument, on 15 December 2006, the taxing master determined
security in an amount of R7,56 million. In so doing, he disallowed an item in
respect of forensic auditors’ fees amounting to some R5,46 million. It is this
latter decision that forms the subject matter of the instant appeal.

On 3 June 2008 the trial court ruled that the trial was to recommence on
2 February 2009.

On 6 June 2008 – ie almost 18 months after the decision of the taxing
master not to provide for forensic auditors’ fees as part of the security to be
furnished by the plaintiff – the defendants launched an application to review and
set aside that decision.

On 1 December 2008 the court below dismissed the defendants’ appli-
cation with costs. Hence this appeal, which comes before us with leave of this
court.
[3] Uniform rule 47(2) provides that ‘(i)f the amount of security only is
contested the registrar shall determine the amount to be given and his decision
shall be final’. Notwithstanding this provision, however, it is settled law that the

registrar’s decision, ‘being in the nature of an administrative act, was always
susceptible of review provided the necessary grounds for review existed’.3
[4] In the court below it was common cause that the decision of the
registrar constituted ‘administrative action’ for purposes of the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’). The principal issue between the
parties was whether the court should entertain the application at all in view of
the lapse of time. The court declined to do so and dismissed the application on
the basis that it had been brought outside the period of 180 days prescribed by
s 7(1) of PAJA.4 In coming to its conclusion, the court also refused the
defendants’ application to extend the 180-day-period in terms of s 9(2) of
PAJA.5
[5] On appeal, it was argued on behalf of the defendants that the court
below had erred, inter alia, in that it had not properly considered the require-
ment of the ‘interests of justice’ referred to in s 9(2) of PAJA.
[6] The concept ‘interests of justice’ has been considered by the
Constitutional Court on a number of occasions in the context of applications for
condonation. Most recently, in Van Wyk v Unitas Hospital & another,6 the court
expressed itself as follows:
‘This court has held that the standard for considering an application for condonation is
the interests of justice. Whether it is in the interests of justice to grant condonation
depends on the facts and circumstances of each case. Factors that are relevant to this
enquiry include but are not limited to the nature of the relief sought, the extent and

3 Trakman NO v Livshitz & others 1995 (1) SA 282 (A) at 289G and the cases referred to
therein.
4 The relevant part of s 7(1) provides:
‘(1) Any proceedings for judicial review in terms of section 6 (1) must be instituted without
unreasonable delay and not later than 180 days after the date – . . . (b) . . . on which the person
concerned was informed of the administrative action, became aware of the action and the
reasons for it or might reasonably have been expected to have become aware of the action and
the reasons.’
5 Section 9(2) provides that the court may extend the period of 180 days ‘where the interests of
justice so require’.
6 2008 (2) SA 472 (CC).

cause of the delay, the effect of the delay on the administration of justice and other
litigants, the reasonableness of the explanation for the delay, the importance of the
issue to be raised in the intended appeal and the prospects of success.’7
[7] With regard to the explanation for the delay, the court further held:8
‘An applicant for condonation must give a full explanation for the delay. In addition, the
explanation must cover the entire period of delay. And, what is more, the explanation
given must be reasonable.’
[8] The explanation proffered on behalf of the defendants in this case, as
contained in an affidavit by its attorney, was that the decision not to launch
review proceedings at an earlier stage was a deliberate one. The attorney
explained that until December 2007 he and his clients had believed that, in the
event that the appeal to this court should fail, the plaintiff would not be able to
furnish security and that would be the end of the case. In these circumstances,
so he claimed, ‘there was little point in my client incurring the cost of launching
the present application to require additional security’. He stated further:
‘A substantive application, such as the present, is a time consuming and expensive
process. I considered it reasonable and appropriate not to mulct the applicants in such
costs unless and until security was furnished.’
[9] This explanation clearly does not hold water. First, preparing the
founding affidavit, the body of which comprises a mere 15 pages of the record,
was the work of not more than a few hours at the most. Second, the cost
involved in preparing an application for review would have been trivial in the
context of the present litigation and the scale of costs involved. Third, the
defendants obviously deemed it useful and expedient to obtain the taxing
master’s determination while the appeal was pending. I fail to see why it would
not have been equally useful and expedient to have the determination reviewed
pending the appeal. Fourth, even if the defendants did not want to launch a

7 Para 20 (footnotes omitted).
8 Para 22.

substantive application for review while the appeal was pending, a simple
letter or telephone call asking for an extension of the 180-day-period or at least
informing the plaintiff of the defendants’ intention to launch an application for
review could have been directed to the plaintiff. Instead, nothing at all was done
to take the registrar’s decision on review while the appeal was pending. Finally,
even after the plaintiff’s appeal was dismissed by this court, a further 180 days
elapsed before the review application was eventually launched. There is simply
no explanation for this further inexplicable delay.
[10] Counsel for the defendants referred to a letter written on behalf of the
defendants to the plaintiff on 7 January 2008 in which, so it was claimed, the
plaintiff was informed of the intention on the part of the defendants to bring an
application for review of the taxing master’s earlier decision. There are two
answers to this submission: the first is that the letter is, at best for the
defendants, ambiguous and does not pertinently alert the plaintiff to the
possibility of a review. Secondly, and in any event, the letter was written more
than a year after the taxing master’s decision which it is sought to review and
long after the 180-day-period contemplated by s 7 of PAJA had elapsed.
[11] The court below also made reference to the fact that, while the appeal
was pending, the plaintiff – after much effort – had finally managed to obtain
outside finance and that it had concluded an agreement with an Australian
company to put up the security originally ordered by the court. In the
circumstances, so the court held, the plaintiff would be prejudiced if the original
security were now to be substantially increased. Much was made by counsel for
the defendants of this finding in an attempt to persuade us that the court below
had misinterpreted the terms of the funding agreement. Suffice it to say that, in
my view, there is no merit in the point, nor can it be found that the court below
erred in finding that the respondent would be prejudiced if the registrar’s
decision were now to be overturned.
[12] In my view, the explanation furnished by the defendants for its delay
does not comply with any of the three requirements laid down in Van Wyk v

Unitas Hospital.9 In the result, the defendants have failed to prove that it would
be in the interests of justice to extend the period of 180 days contemplated by
s 7 of PAJA. It follows that there are no grounds for interfering with the order of
the court below.
[13] In the circumstances, the appeal is dismissed with costs, including the
costs of two counsel.

B M GRIESEL
Acting Judge of Appeal

9 Para 7 above.

APPEARANCES:
FOR APPELLANT:
W H G van der Linde SC

H C Bothma

Instructed by:

Deneys Reitz

Sandton

Matsepes Inc

Bloemfontein

FOR RESPONDENTS:
M C Maritz SC

N C Maritz

Instructed by:

G M Van Vollenhoven, Palace of Justice

Pretoria

Messrs Kirkcaldy Pereira

Pretoria

Lovius Block

Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
1 December 2009
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.
* * *
PRICEWATERHOUSE COOPERS v VAN VOLLENHOVEN NO and ANOTHER

The Supreme Court of Appeal today dismissed an appeal against a judgment in the North
Gauteng High Court, Pretoria. The appellant, Pricewaterhousecoopers (PWC), is engaged in
litigation against the second respondent, the National Potato Cooperative. In the course of the
litigation, the first respondent, the taxing master of the Pretoria High Court, fixed security to be
furnished by the National Potato Cooperative in an amount of some R7,5 million. In the
process, the taxing master failed to allow a further amount of R5,5 million in respect of forensic
auditors’ fees.

PWC took the taxing master’s decision on review to the high court, but the application was
dismissed on the grounds that PWC had failed to bring the application within a period of 180
days, as required in terms of the Promotion of Administrative Justice Act (PAJA) of 2000.

On appeal, the SCA confirmed the decision of the high court, finding that PWC had failed to
prove that the interests of justice required the court to extend the period of 180 days.