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1 The question at the heart of this appeal is when a debt arising from an unlawful administrative act falls due. Is it when an organ of state forms the subjective opinion that the act was unlawful? Or is it when a court sets aside the act, having been persuaded of its unlawfulness? In this judgment, I conclude, consistently with longstanding authority, that, if “an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside” (Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) (“Oudekraal”), paragraph 26), then the unlawful act stands as a fact for that period. It follows from this that a debt arising from the unlawful act can fall due only when a court sets the act aside – in other words, only when the act ceases to stand as a fact.
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