On 30 July 2024 the Johannesburg High Court delivered a judgment confirming that a debt due because of an unlawful administrative act falls due only when the act is set aside in review proceedings. Accordingly, the three-year prescription period only starts to run from the date that the unlawful administrative act is set aside.

In self-review proceedings that had been brought by the SABC in January 2021, the Special Tribunal set aside a scheme implemented by the SABC to pay gratuities to music legends who were historically denied financial reward because of racially discriminatory practices. The Special Tribunal declared the scheme unlawful for want of compliance with the SABC’s internal governance process.

In those self-review proceedings, the SABC had also sought to recover from certain former SABC officials the R2.425 million that had been paid out under the unlawful scheme. The Special Tribunal refused to grant that relief, on the basis that any repayment claim had prescribed because the debt fell due in August 2017 when the SABC received a forensic report identifying irregularities in the adoption of the scheme.

The SABC appealed to the High Court, persisting with its repayment claim. The court was therefore required to decide whether the debt fell due in August 2017, when the SABC formed the subjective view that the scheme was unlawful, or in October 2022, when the Special Tribunal set aside the scheme as unlawful.

The court stated an unlawful administrative act stands as a fact and has valid legal consequences until it is set aside. A debt arising from such an act can only fall due when the act ceases to exist as a fact. Accordingly, the debt in this matter fell due only when the scheme was set aside by the Special Tribunal, and therefore the SABC’s repayment claim did not prescribe.

Despite this, the court did not order the former SABC officials to repay the money. It found that such an order would not be just and equitable in the circumstances, given that:

• the former SABC officials did not personally benefit from the scheme;
• the scheme had laudable objectives; and
• state officials are generally immune from damages claims arising from negligent acts performed in their official capacities in good faith.

The court declined to remit the question of repayment to the Special Tribunal, because the facts before the court were sufficient to make a cogent ruling. In any event, the SABC still has sufficient opportunity to explore any alternative legal action, given that its repayment claim has not yet prescribed.

The court accordingly upheld the SABC’s appeal in part and ordered each party to bear its own costs.

The case is SA Broadcasting Corporation (SOC) Ltd and Another v Motsoeneng and Others (A2022/046784) [2024] ZAGPJHC 688 (30 July 2024).