REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number: 242/04
In the matter between:
NTOMBOMZI GQWETHA
Appellant
and
TRANSKEI DEVELOPMENT CORPORATIONS LTD               1st
Respondent
J L V KWADJO NO
2nd Respondent
P R VICE NO
3rd Respondent
CORAM:
MPATI DP, FARLAM, NAVSA, NUGENT and VAN
HEERDEN JJA
HEARD:
6 MAY 2005
DELIVERED:
30 MAY 2005
Summary:
Application for review – failure properly to exercise a judicial discretion in
condoning unreasonable delay in instituting review proceedings – appeal
court at large to exercise discretion afresh.  (Two judgments were given in
this matter.  The order of the court appears from paragraph 36.)

_____________________________________________________________
JUDGMENT
_____________________________________________________________
MPATI DP:
[1] On 28 June 1995 the appellant, who held the position of accounts
supervisor with the first respondent, was dismissed from her employment
following a disciplinary hearing which was chaired by the second
respondent.  She had been found guilty on a number of charges relating to
the performance of her duties.  Her appeal against the termination of her
services failed and her dismissal was confirmed by the third respondent on
26 July 1995.  On 30 September 1996 the appellant instituted review
proceedings in which she sought an order reviewing and setting aside the
decisions of the second and third respondents and directing the first
respondent to reinstate her forthwith with all attendant benefits.
[2] Only the first and second respondents opposed the application.  I shall
refer to them collectively as the respondents.  The answering affidavits were
filed on 6 December 1996 and the replying affidavit on 10 December 1996.
The matter was set down for hearing and argued on 23 October 1997.  In
their answering papers the respondents raised two points in limine, one
being that the appellant had taken ‘an inordinately and unreasonably lengthy
period’ before instituting review proceedings and submitted that the

application ought to be dismissed on this ground alone.  (The second point
in limine is not relevant for present purposes.)
[3] The Transkei High Court (Madlanga J) found that the delay was
unreasonable but nevertheless condoned it and granted the relief sought.  He
granted the respondents leave to appeal to the Full Court, but limited such
leave to the aspect of condonation of the delay only.  The Full Court, by a
majority (Pakade J and Tokota AJ), upheld the appeal.  It found that
Madlanga J  had failed to consider certain relevant facts and circumstances
in the exercise of his discretion on whether or not the delay, though
unreasonable, should be condoned.  This appeal is with the special leave of
this court.
[4] The issue for consideration is whether Madlanga J, in condoning what
he found to be an unreasonable delay on the part of the appellant in
instituting the review proceedings, failed properly to exercise his discretion.
[5] The attitude of our courts when faced with the issue of delay in
matters of this nature is neatly captured by Brand JA in Associated
Institutions Pension Fund v Van Zyl 2005 (2) SA 302 SCA at 321 as
follows:
‘[46]
. . .  It is a longstanding rule that courts have the power, as part of their inherent
jurisdiction to regulate their own proceedings, to refuse a review application if the

aggrieved party had been guilty of unreasonable delay in initiating the proceedings.  The
effect is that, in a sense, delay would “validate” the invalid administrative action (see eg
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA)
([2004] 3 All SA 1 at para [27]).  The raison d’être of the rule is said to be twofold.  First,
the failure to bring a review within a reasonable time may cause prejudice to the respondent.
Secondly, there is a public interest element in the finality of administrative decisions and the
exercise of administrative functions (see eg Wolgroeiers Afslaers (Edms) Bpk v
Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 41).
[47] The scope and content of the rule has been the subject of investigation in two
decisions of this Court.  They are the Wolgroeiers case and Setsokosane Busdiens (Edms)
Bpk v Voorsitter, Nasionale Vervoerkommissie, en ‘n Ander 1986 (2) SA 57 (A).  As
appears from these two cases and the numerous decisions in which they have been
followed, application of the rule requires consideration of two questions:
(a) Was there an unreasonable delay?
(b) If so, should the delay in all the circumstances be condoned?
(See Wolgroeiers at 39C-D.)
[48] The reasonableness or unreasonableness of a delay is entirely dependent on the
facts and circumstances of any particular case (see eg Setsokosane at 86G).  The
investigation into the reasonableness of the delay has nothing to do with the Court’s
discretion.  It is an investigation into the facts of the matter in order to determine whether, in

all the circumstances of that case, the delay was reasonable.  Though this question does
imply a value judgment it is not to be equated with the judicial discretion involved in the
next question, if it arises, namely, whether a delay which has been found to be
unreasonable, should be condoned (see Setsokosane at 86E-F).’
[6] As has been mentioned above, the finding of the court of first
instance, as well as that of the Full Court, was that the delay was indeed
unreasonable.  Although counsel for the appellant argued, quite tentatively,
that this finding was wrong and that the delay was not unreasonable, I can
find no reason to interfere with it.  The appellant alleges that she
‘approached the office of the Respondent and requested a copy of the record
of the proceedings with a view of bringing the matter before court’ after she
had been advised of the dismissal of her appeal.  She does not say when she
was advised of the dismissal of her appeal and it must thus be accepted that
she was so informed on 26 July 1995, the date on which her appeal was
dismissed.  She then alleges that she approached the office of the first
respondent during the period July 1995 to 14 November 1995, ‘demanding
the record but could not get any co-operation’.  It was only at the end of
November 1995 that she was furnished with a copy of the record, which,
upon perusal, was found to be incomplete in that the evidence was
disjointed and incoherent ‘to an extent that it was difficult for any lawyer to

get proper instructions’.  She brought this to the attention of the
respondents and kept calling on the office of the first respondent from
January 1996 to the end of March 1996 demanding ‘the missing portions of
the record’, but she was referred ‘from one official to another’ and was
given several undertakings that ‘the other portions of the evidence led at the
enquiry’ would be furnished to her ‘in due course’.  She was also told to go
back home and to ‘wait for mail from the office of the first respondent’.
On 22 July 1996 her attorneys of record wrote to the first respondent
‘requesting the missing pages of the record’ to which a response was
received advising that the appellant had been furnished with a full record.
The appellant’s attorneys then sent another letter dated 23 July 1996 to the
first respondent explaining that the record was incomplete, but no further
response was forthcoming.  ‘It is on this basis’, the appellant alleges, ‘that I
ultimately put pressure on my legal representatives to place the matter
before court despite the fact that the record is not complete’.
[7] Counsel for the respondent submitted that there is a dispute of fact on
the papers relating to the date upon which the appellant, for the first time,
approached the first respondent for a copy of the record of the proceedings
in the disciplinary hearing.  The deponent to the answering affidavit is the
second respondent, who describes himself as the ‘Manager for Investments

in the employ of the first respondent’.  He states that a Mr Ndungane, the
Human Resources Senior Manager, informed him that ‘it was only on 31
May 1996 that he was, for the first time, approached by the applicant who
requested to be furnished with a transcript of the proceedings of her
hearing’.  The applicant did so, so it is alleged, by way of a letter addressed
to Mr Ndungane.  Counsel contended that the matter should therefore be
decided on the respondent’s version, regard being had to the decision in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623
(A).  In her replying affidavit the appellant repeats her allegations in the
founding papers that she called at the office of the first respondent from
July 1995, but says that it was for the first time on 31 May 1996 that she
‘reduced her request to writing’.  She also states that on the previous
occasions she spoke to either a Miss Sinxoto or to Mr Ndungane.  Neither
of these two persons deposed to an affidavit, nor was leave sought by the
respondents to file a further set of affidavits to controvert her assertions.
There is thus no merit in counsel’s submission.
[8] It is plain, as counsel for the respondent argued, that review
proceedings could and should have been instituted within a reasonable time
after the appellant had become aware of the outcome of her appeal.  The
record of her disciplinary hearing was not an absolute necessity for

initiating review proceedings.  Moreover, her case is one where she seeks to
be reinstated in her employ with the first respondent, a business entity.  The
very nature of the order she seeks has the potential to disrupt the smooth
running of the affairs of the first respondent.  The delay of over 14 months
(14 months and 4 days) from the date of dismissal of her appeal to the date
of launching the review application is indeed unreasonable.  Should it be
condoned?
[9] The sum total of Madlanga J’s reasoning on this issue is the
following:
‘[5]
On the issue of delay, the application was brought just over a year from the date of
the applicant’s dismissal.  Though the applicant could, and perhaps ought to, have brought
the application much earlier, the delay, though unreasonable, is not of such a nature as not
to be condoned.  It is not very long.  Also, as will appear more fully later, the applicant is
quite strong on the merits of the application.’
The learned judge then proceeded to consider the merits of the application.
[10] The Full Court reasoned, firstly, that the appellant ‘failed to advance
any satisfactory explanation for the delay’ and that her only explanation ‘as
we understand her case’ is that she was not furnished with the record
timeously so as to enable her to institute the review application.  The court
held that ‘it is sufficient if the applicant merely sets the matter in motion by

filing papers . . . capable of disclosing a cause of action’.  That is indeed
the ideal, but the mere existence of the delay rule (Harnaker v Minister of
Interior 1965 (1) SA 372 (C) at 380B-C) points to the fact that not all
litigants are as diligent, some because of ignorance.  Counsel for the
respondent also contended that the appellant’s explanation for the delay is
unsatisfactory.  In my view, a closer reading of the founding affidavit
reveals that the appellant did not sit idle.  One can also deduce from it that
her attorneys were not entirely blameless in the delay.  The appellant states
in the founding affidavit that ‘as early as August 1995 I approached my
attorneys of record with a view to taking the matter to court in order to
review the decisions of the Respondents, but my attorneys could not brief
Counsel because the record was incomplete’.  We know that the appellant
only received an incomplete copy of the record at the end of November
1995.  If it is indeed so that she approached her attorneys in August 1995
(and there is nothing to gainsay this) the inference to be drawn from this is
that her attorneys must have told her to first obtain the record.  This
becomes clearer when, later in the founding affidavit, she states that when
there was no response from the first respondent to her attorneys’ second
letter following the one of 22 July 1996 ‘requesting the missing pages of
the record’ she ultimately put pressure on her legal representatives to place

the mater before court despite the fact that the record was incomplete.  It
follows that I do not share the view of the court a quo that the appellant
failed to advance any satisfactory explanation for the delay.
[11] The court a quo also held that Madlanga J, having correctly found
that the delay was unreasonable, failed to exercise his discretion judicially
‘by indicating in the judgment that he took into account the fact that other
parties have been prejudiced or no party suffered prejudice’.  The
appellant’s post, it said, could have been filled and someone ‘would thus
have already acquired vested interests by the time of launching the review
proceedings’.
[12] It is indeed so that, although Madlanga J clearly applied his mind to
the question of the unreasonable delay – he said that the delay, though
unreasonable, is not of such a nature as not to be condoned – he did not
consider, so it appears from his judgment, the likelihood of prejudice on the
part of the respondents should the delay be condoned.  As has been
mentioned above (in the reference to Associated Institutions Pension Fund v
Van Zyl) the courts have recognised that an aggrieved party’s undue and
unreasonable delay in initiating review proceedings may cause prejudice to
other parties to the proceedings and that in such cases, therefore, a court
should have the power to refuse to entertain the review (Harnaker, supra,

380C-E, quoted with approval in the Wolgroeiers case, supra).  The
incidence of prejudice to the respondent and the extent thereof are thus
relevant factors in considering whether or not unreasonable delay should be
condoned; in certain instances prejudice may well be a decisive factor,
particularly in cases of less unduly long periods of delay (Wolgroeiers,
supra, at 42C).  The court a quo was thus correct in holding that Madlanga
J failed properly to exercise a judicial discretion.  That leaves this court at
large to itself exercise the discretion.  Wolgroeiers, supra, at 44H-45D.
[13] The Full Court further held that the appellant failed to place evidence
before the court of first instance ‘that no one has been prejudiced’ by the
unreasonable delay, the onus of showing absence of such prejudice being on
her.  This finding was linked to the Full Court’s observation that the
appellant’s post could have been filled and someone ‘would thus have
already acquired vested interests by the time of launching the review
proceedings’.  In this regard it referred to Mkhwanazi v Minister of
Agriculture & Forestry, KwaZulu 1990 (4) SA 763 (D) at 767H.
[14] It may well be so that a party seeking condonation of his or her
delaying unreasonably to institute review proceedings bears the overall onus
of persuading a court to so condone such delay, but I do not think that a
decision as to whether or not the other party in the proceedings would

suffer prejudice can be made only when evidence has been placed before it.
Cf Silbert v City of Cape Town 1952 (2) SA 113  (C) especially at 119B-E.
There may very well be cases where an applicant for review is unable, due
to circumstance, to say under oath that the other party will not suffer
prejudice as a result of what might be found to be an unreasonable delay.
In the present matter the respondents raised the issue of unreasonable delay,
but no mention whatsoever was made by them that because of such delay
the first respondent would be prejudiced in any way were the delay to be
condoned.  Not surprisingly the appellant, in reply, merely states that ‘I
reiterate paragraphs 19 to 20 of my Founding Affidavit’ in which she
explains the reasons for the delay.  What has just been said is not to be
understood as meaning that the respondent bears the onus of proving
absence of prejudice.  I merely indicate that in certain circumstances and
where the party whose decision is sought to be reviewed raises an
unreasonable delay on the part of the applicant it may well have an
evidentiary burden, at least, on whether it would be prejudiced were the
delay to be condoned.
[15] The first respondent is a company and a business entity which does
not appear to have only a handful of employees.  It is not in dispute that
during 1983 the appellant was employed by the first respondent as a clerk

and that in 1992 she became an accounts supervisor in charge of junior
clerks.  There is no suggestion that the first respondent would be unable to
reinstate the appellant as an employee, as ordered by Madlanga J, even in a
position other than the one she had held at the time of her dismissal.
Counsel for the respondents merely contented himself with the submission
that it was not for the respondent to raise prejudice, but for the appellant to
demonstrate absence thereof and to do so in her founding papers.  In my
view, and in light of what I have just said, the likelihood of prejudice for
the respondent appears to be remote.
[16] As has been mentioned above, prejudice is a relevant factor, but not
the only one, to be considered in the exercise of a discretion to condone or
refuse to condone unreasonable delay.  In Wolgroeiers, supra, Miller JA said
the following (at 43G-H):
‘Benewens die tydsduur van die versuim is daar in die onderhawige saak ander oorwegings
wat noemenswaardig is en in aanmerking geneem behoort te word by die uitoefening van
die Hof se diskresie.  Die appellant se doel met die aansoek om tersydestelling is eenvoudig
om terugbetaling van die begiftigingsgelde te verkry.  Dit is derhalwe ter sake om
oorweging te skenk aan die vooruitsigte indien die appellant se aansoek toegestaan sou
word.   (Sien Saloojee and Another, N.N.O. v Minister of Community Development, 1965
(2) SA 135 (A.A.) op bl. 142-3;  . . . .’

In Saloojee this court dealt with an application for condonation of the late
noting of an appeal and the late filing of the record and, in considering
whether or not to condone the non-compliance with its Rules, also
considered the prospects of success of the appeal on the merits.  In that case
the court was unable to hold that the applicants (for condonation) had no
prospects of success in the appeal.  It then considered what the consequences
would be were the appeal to succeed.  One of the considerations was the
possibility of the matter being referred back to the court below to deal with
a issue (which was incidentally the likelihood of prejudice allegedly caused
to the respondent by a lengthy delay in the conduct of the litigation and in
which the court below had to exercise a discretion).  This court then
considered, as it was entitled to do, whether there were any prospects of the
appellants succeeding on that particular issue in the court below.  That it
was clearly entitled to do, for if there were no such prospects the granting
of condonation and possible success of the appeal would have served no
purpose.  The court held that such prospects were doubtful and uncertain
and because of that, taken together with the ‘wholly unsatisfactory features
of the delay in preparing the record’ and bringing the application for
condonation and of the explanation thereof, it refused the application with
costs.  Following this approach Miller JA, in Wolgroeiers, although it

appears that he did not find it necessary to consider the existence or
otherwise of any prospects of success, considered the possible consequences
of the appellant’s success in the court below and concluded that it (the
appellant) would not suffer any substantial damage if, by reason of a 3 ½
years delay, it were to be denied the order it had sought in the court below.
[17] In the present matter, however, whilst it is so, were the appeal to
succeed, that the respondent would be entitled, as Nugent JA correctly
points out, to pursue its enquiry de novo, to suggest that there is ‘no reason
for confidence that the setting aside of the decision to dismiss the appellant
on the grounds that there were procedural irregularities will necessarily
have a meaningful result’ is, if not to pre-empt the outcome of that enquiry,
to enter into the realms of speculation.  Anything possible may happen, eg
the parties may reach some sort of agreement acceptable to both without
getting into another enquiry.
[18] And, as to prospects of success, I should mention that if there are no
prospects of the administrative decision being set aside, I can see no reason
why a court would still have to embark on an enquiry as to what
meaningful consequences there would be were the administrative decision to
be set aside.  A court might, of course, find it convenient, if it would easily
dispose of the matter, to decide it on the basis that there is no prospect of a

meaningful consequence and without having to decide whether or not there
is a prospect of the administrative decision being set aside, as appears to
have been the approach in Wolgroeiers.
[19] Clearly then, Madlanga J was perfectly entitled to consider the
prospects of the appellant’s success on the merits of the application.  In my
view the delay was not so great as to lead the court to ignore the merits.
Counsel for the respondents’ argument that Madlanga J should not have
done so is without substance.
[20] As Madlanga J held the appellant was ‘quite strong on the merits of
the application’.  Serious irregularities occurred in the disciplinary
processes that led to the appellant’s dismissal and it was on the basis of such
irregularities that he ordered her reinstatement.  His conclusions on this
aspect of the case are not under attack.  In my view the appeal should
succeed.
__________________
L MPATI DP
FARLAM JA)
CONCUR

NUGENT JA:
[21] I have read in draft form the judgment of Mpati DP but regretfully
cannot agree with the order that he proposes.
[22] It is important for the efficient functioning of public bodies (I
include the first respondent) that a challenge to the validity of their
decisions by proceedings for judicial review should be initiated without
undue delay.  The rationale for that longstanding rule – reiterated most
recently by Brand JA in Associated Institutions Pension Fund v Van Zyl
2005 (2) SA 302 (SCA) at 321 – is twofold:  First, the failure to bring a
review within a reasonable time may cause prejudice to the respondent.
Secondly, and in my view more important, there is a public interest element
in the finality of administrative decisions and the exercise of administrative
functions.  As pointed out by Miller JA in Wolgroeiers Afslaers (Edms) Bpk
v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 41 E-F (my
translation):
‘It is desirable and important that finality should be arrived at within a reasonable
time in relation to judicial and administrative decisions or acts. It can be contrary to the
administration of justice and the public interest to allow such decisions or acts to be set
aside after an unreasonably long period of time has elapsed - interest reipublicae ut sit finis
litium … Considerations of this kind undoubtedly constitute part of the underlying reasons

for the existence of this rule.’
[23] Underlying that latter aspect of the rationale is the inherent potential
for prejudice, both to the efficient functioning of the public body, and to
those who rely upon its decisions, if the validity of its decisions remains
uncertain.  It is for that reason in particular that proof of actual prejudice to
the respondent is not a precondition for refusing to entertain review
proceedings by reason of undue delay, although the extent to which
prejudice has been shown is a relevant consideration that might even be
decisive where the delay has been relatively slight (Wolgroeiers Afslaers,
above, at 42C).
[24] Whether there has been undue delay entails a factual enquiry upon
which a value judgment is called for in the light of all the relevant
circumstances including any explanation that is offered for the delay
(Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie
1986 (2) SA 57 (A) at 86D-F and 86I-87A). A material fact to be taken into
account in making that value judgment – bearing in mind the rationale for
the rule – is the nature of the challenged decision.  Not all decisions have
the same potential for prejudice to result from their being set aside.
[25] The challenged decision in the present case was a decision to dismiss
the appellant for complicity in financial irregularities. A decision of that

kind will necessarily have immediate consequences for the ordinary
administration of the organization, and for other employees who will be
called upon to perform the functions of the dismissed employee or even to
replace her.  Moreover, personnel decisions that are susceptible to review
are no doubt made by any large organization on a regular and ongoing
basis, and some measure of prompt certainty as to their validity is required.
The very nature of such decisions speaks of the potential for prejudice if
they were all to be capable of being set aside on review after the lapse of
any considerable time.
[26] Review proceedings were commenced in the present case some
fourteen months after the final decision to dismiss the appellant was made.
The appellant’s sole explanation for the delay in commencing proceedings
was that she was awaiting a transcript of the disciplinary proceedings that
resulted in her dismissal.
[27] The appellant alleges (and I accept her allegations for present
purposes) that she approached the respondent to secure the transcript on
various occasions between July and November 1995, and that at the end of
November 1995 she was given an incomplete transcript. From January to
March 1996 she again approached the respondent on various occasions to
obtain the missing parts of the transcript.  On 23 July 1996 her attorneys

wrote to the respondent requesting the missing pages but they were never
received and the proceedings were commenced nonetheless.
[28] What is not explained at all, either by the appellant or her attorney, is
what relevance the transcript had to her ability to commence review
proceedings.  All but one of the grounds upon which she sought to review
the decision were quite unrelated to the content of the transcript.  She
alleged that the disciplinary hearing was irregular because she asked for but
was not granted a postponement at the outset of the enquiry, because the
third respondent ought not to have been the person to conduct the enquiry,
because she was not furnished at the outset of the enquiry with a transcript
of earlier disciplinary proceedings, and because she was lured to give
evidence in those earlier proceedings without having been told that she was
to be charged with the same offences. The transcript of the disciplinary
hearing had no bearing on any of those grounds.  Finally, she averred that
‘there was no evidence to prove that I was guilty of contravening the
financial regulations of the first respondent’.  The transcript was not
required for that bald assertion to be made.
[29] It is difficult to avoid the conclusion, in those circumstances, that the
appellant’s reliance upon the absence of the transcript to explain the delay is
spurious. The fact that the proceedings were indeed commenced when,

according to the appellant, she was in possession of no more than a third of
the transcript, and that when the full record of the disciplinary hearing was
filed by the respondents as required by Rule 53 the appellant did not find it
necessary to supplement her founding affidavit, adds weight to that
conclusion.
[30] Bearing in mind the nature of the decision in my view the lapse of a
period of some fourteen months, for which there is no adequate
explanation, was unreasonable, and the decision of Madlanga J was in that
respect unexceptional.
[31] The only remaining question is whether the learned judge properly
exercised his discretion to overlook the unreasonable delay and to entertain
the application for review, which, as pointed out in Setsokosane Busdiens,
cited above, is a separate enquiry.
[32] As pointed out by Mpati DP the learned judge exercised his discretion
in that regard solely on the grounds that the period of the delay was ‘not
very long’ and that the appellant was ‘quite strong on the merits of the
application.’  I agree with the court a quo that the approach of the learned
judge was unduly narrow.
[33] As to the first ground upon which the learned judge exercised his
discretion, I have already suggested that delay cannot be evaluated in a

vacuum but only relative to the challenged decision, and particularly with
the potential for prejudice in mind.  In abstract terms the period of delay
might be described as being ‘not very long’ but it was correctly found to
have been unreasonable.  I do not think that a delay that is unreasonable in
its extent can simultaneously, and without more, serve as the basis for
overlooking it. What the learned judge overlooked, as correctly pointed out
by the court a quo, was the inherent potential for resultant prejudice if the
decision was set aside.  It needs also to be borne in mind, when evaluating
the potential for prejudice, that the consequential relief that the appellant
sought was an order reinstating her in her employment, which, if granted,
would require the first respondent to return her to her former position, and
not merely to appoint her to some other unidentified position.
[34] As to the second ground upon which the learned judge relied in
exercising his discretion, I do not think that the prospect of the challenged
decision being set aside (referred to by Madlanga J and Mpati DP as the
merits of her case) is a material consideration in the absence of an
evaluation of what the consequences of setting the decision aside are likely
to be, and I do not think that Wolgroeiers suggests otherwise.  The remarks
of Miller JA at 43G-H (which are quoted by Mpati DP and need not be
repeated) were not directed merely to the prospects of the challenged

decision being set aside, but were directed rather to the prospect of anything
meaningful being achieved if such an order were to be granted, as appears
more fully from the remarks that followed at 43H-44E. (Different
considerations arise in relation to applications to condone delay in the
conduct of litigation – for example to condone the late filing of pleadings
or to condone a late appeal – and the test that is applied in those cases is not
necessarily transposable to unduly delayed proceedings for review.)
[35] In the present case it cannot be assumed that if the challenged
decision were to be set aside the appellant’s further employment is assured.
The first respondent would not be obliged to sweep under the carpet the
serious allegations that led to the appellant’s dismissal and to permit her
employment to continue as before. It would be entitled to pursue its enquiry
de novo (indeed, it might be duty-bound to do so before once again
permitting the appellant to assume her position of trust) provided that the
enquiry is not conducted irregularly. I see no reason for confidence that the
setting aside of the decision to dismiss the appellant on the grounds that
there were procedural irregularities will necessarily have a meaningful
result.  As appears from the passages from Wolgroeiers to which I have
referred, it is the prospect (or lack of it) of a meaningful consequence to the
setting aside of an administrative decision, rather than merely the prospect

of the administrative decision being set aside, that might be a relevant
consideration to take into account, and in my view Madlanga J approached
that issue too narrowly.
[36] Thus I agree with the court a quo that Madlanga J failed properly to
exercise his discretion – both for the reasons given by that court and for the
broader reasons I have outlined – and the court a quo was free to substitute
a decision reached in the exercise of its own discretion.  It is not necessary
to consider the manner in which the court a quo exercised its discretion
because I agree in any event with its conclusion.  In my view it was in the
nature of the decision to dismiss the appellant that any challenge to it ought
to have been brought promptly, before its consequences were entrenched.
No adequate grounds have been advanced by the appellant for overlooking
her default and I am able to discern none.  The following order is made:
The appeal is dismissed with costs.
___________________
R W NUGENT
JUDGE OF APPEAL
NAVSA JA)
VAN HEERDEN JA)
CONCUR

‘Dit is wenslik en van belang dat finaliteit in verband met geregtelike en administratiewe
beslissings of handelinge binne redelike tyd bereik word.  Dit kan teen die regspleging en
die openbare belang strek om toe te laat dat sodanige beslissings of handelinge na
tydsverloop van onredelike lang duur tersyde gestel word – interest reipublicae ut sit finis
litium. … Oorwegings van hierdie aard vorm ongetwyfeld ŉ deel van die onderliggende
redes vir die bestaan van die reël.’