On 14 October 2024, the Durban High Court dismissed a review application brought by a trading entity against a ruling by the Ports Regulator that it had jurisdiction to determine the validity of administrative action exercised by Transnet.   

The matter arose from a lease agreement between the applicant lessee and Transnet in respect of a property at the Port of Durban.  After the initial term of the lease agreement expired, the agreement remained in place on a month-to-month basis.  Unresolved negotiations took place between the parties for a long-term lease agreement, but Transnet subsequently decided to conduct a competitive bidding process for the leased property in question, which prompted an appeal by the applicant to the Ports Regulator.  A settlement was reached between the parties in respect of that appeal, but Transnet later terminated the month-to-month lease, which prompted a second appeal by the applicant.  

In the second appeal before the Ports Regulator, and in response to Transnet’s contention that it would be acting unlawfully by implementing the lease agreement, the applicant raised a preliminary point that the Ports Regulator lacked jurisdiction to review the lawfulness of Transnet’s conduct.  The Ports Regulator dismissed this preliminary point, ruling that its jurisdiction to do so was based on sections 30(1)(c) and 46(2) of the National Ports Act.      

The applicant took the Ports Regulator’s ruling on review to the High Court.  The court agreed with the Ports Regulator’s ruling for the following reasons:  

  • Section 30(1)(c) of the Ports Act empowers the Ports Regulator to monitor Transnet’s activities, which necessarily entails the power to determine whether Transnet has acted lawfully.
  • If the Ports Regulator determines that Transnet acted unlawfully, it is empowered by section 46(2) of the Ports Act to take remedial action by varying, setting aside, or substituting Transnet’s decision.
  • Accordingly, these remedial powers include the power to conduct legality reviews which fall within the statutory ambit of monitoring Transnet’s activities.   
  • Any different interpretation would undermine the Ports Regulator’s statutory oversight function in ensuring Transnet’s compliance with the Ports Act.

The court dismissed the review application with costs.        

The judgment has the curious effect that the same administrative act could be subject to a legality review before the Ports Regulator and a PAJA review in the High Court, leading to a further bifurcation of our administrative law.  In a previous blog, we highlighted that the Constitutional Court’s judgment in Ledla Structural Development (Pty) Ltd and Others v Special Investigating Unit in respect of another statutory body, the Special Tribunal, had a similar effect.  Nevertheless, it is encouraging that our courts seem willing to recognise the powers of statutory bodies to intervene when faced with unlawful conduct by organs of state.         

The case is Great Afro Trading CC t/a Somerset Cold Storage v Ports Regulator of South Africa and Another (D11098/2021) [2024] ZAKZDHC 71 (14 October 2024).