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[2016] ZASCA 61
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Umso Construction (Pty) Ltd v Member of the Executive Council for Roads and Public Works Eastern Cape Province and Others (20800/2014) [2016] ZASCA 61 (14 April 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 20800/2014
In
the matter between:
UMSO
CONSTRUCTION (PTY)
LTD
APPELLANT
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
OF
THE GOVERNMENT OF
THE
PROVINCE OF THE EASTERN CAPE
RESPONSIBLE
FOR ROADS AND TRANSPORT
FIRST RESPONDENT
THE
HEAD OF THE DEPARTMENT ROADS AND
PUBLIC
WORKS, THE GOVERNMENT OF
THE
PROVINCE OF THE EASTERN CAPE
SECOND RESPONDENT
TAU
PELE CONSTRUCTION (PTY)
LTD
THIRD RESPONDENT
RUMDEL
CONSTRUCTION (CAPE) (PTY) LTD
FOURTH RESPONDENT
AMANDLA
CTC (PTY)
LTD
FIFTH RESPONDENT
SIYA
HLOBISA (PTY)
LTD
SIXTH RESPONDENT
Neutral
citation:
Umso
Construction (Pty) Ltd v MEC for Roads and Public Works Eastern Cape
Province
(20800/2014) ZASCA 61 (14
April 2016)
Coram:
Maya AP, Cachalia, Pillay and Mbha JJA
and Victor AJA
Heard:
10 March 2016
Delivered:
14 April 2016
Summary
:
Administrative law – validity
of decision to award tender –
whether successful tenderer had duty to disclose business rescue
application – whether
tender requirements were met –
appropriate remedy in the circumstances – whether exceptional
circumstances exist to
justify the grant of a substitution order –
on the facts, exceptional circumstances established.
ORDER
On
appeal from:
Eastern Cape Local
Division of the High Court, Bhisho (Stretch J sitting as court of
first instance):
1.
The appeal is upheld with costs, such costs to include the costs of
two counsel.
2.
The cross-appeals of the first and third respondents are dismissed
with costs such costs to include the costs of two counsel.
The
respondents are to pay the costs of the appeal jointly and severally,
the one paying the other to be absolved.
3.
The order of the court a quo dated 7 October 2014 is amended by
adding the following to paragraph 2:
‘
The
tender/bid SC MU5-12/13-0035 is hereby awarded to the applicant’.
JUDGMENT
Mbha
JA (Maya AP, Cachalia and Pillay JJA and Victor AJA concurring):
[1]
This appeal concerns the award of a tender (No. SCMU5-12/13-0035) by
the Eastern Cape Provincial Department of Roads and Public
Works (the
department) to the third respondent, Tau Pele Construction (Pty Ltd)
(Tau Pele). The tender was for the upgrading into
bituminous surface,
of a 13.4 kilometres stretch of gravel road between the Elitheni Coal
Mine and the R56 road in the Chris Hani
district of the Eastern Cape.
The Appellant (Umso Construction (Pty) Ltd) (Umso), was one of four
unsuccessful tenderers. Aggrieved
by the decision, it
instituted review proceedings in the Eastern Cape Local Division,
Bhisho (Stretch J) to set aside the award
of the tender to Tau Pele,
and for an order substituting it in place of Tau Pele, as the
successful tenderer. The court a quo set
aside the decision to award
the tender to Tau Pele, but refused to substitute Umso in its place.
It is against that decision that
Umso appeals to this court with the
leave of the court a quo, and in relation to which the department and
Tau Pele cross-appeal
likewise with the leave of that court.
[2]
Umso thus appeals the non-substitution order on the one hand. On the
other hand the department cross-appeals the order setting
aside its
decision to reject Umso’s bid as ‘non-responsive’
to the tender conditions, and Tau Pele cross-appeals
the order
setting aside the award of the tender to it. The three main issues in
this appeal are: first, whether Tau Pele’s
failure to disclose
that it was under business rescue during the adjudication of the
tender vitiated the award of the tender to
it; secondly, whether the
department correctly rejected Umso’s bid; and finally, whether
Umso is entitled to an order substituting
it in place of Tau Pele in
the event of this court finding that Umso’s bid was incorrectly
rejected.
[3]
The background facts in this matter are not in dispute. On 27 July
2012 the department advertised the tender in the Eastern
Cape
Province Tender Bulletin. The tender notice was advertised in the
Daily
Dispatch
and the Eastern Province
Herald
on 7 July 2012. The closing date for the submission of tender
documents was initially 18 July 2012 but was later extended to 8
August 2012. The tender notice provided, inter alia, that only
tenderers complying with the requirements specified in the conditions
of tender would be considered and that tenders would be evaluated
according to the preferred procurement model in the Preferential
Procurement Policy Framework Act 5 of 2000 (PPPFA Act) and its
regulations,
[1]
as
well as the Supply Chain Management Policy of the Department of Roads
and Public Works. It also stated that tenderers had to
prove that
they had completed a similar project in the seven years prior to the
invitation to tender.
[4]
All the bidders, including Umso and Tau Pele, attended a compulsory
site inspection and briefing by the department on 24 July
2012, and
thereafter completed and submitted bid documents to it. Umso
submitted a bid in the sum of R200 567 052.33 on 8
August 2012
whereas Tau Pele’s bidding price was R220 350 000.
[5]
Once the bids were received, the department commenced its evaluation.
The first phase of this process involved a pre-check evaluation
analysis of all bids received and it was conducted by Mr P Swartz
(Swartz), an official within the department. He thereafter compiled
a
pre-qualification report in which he recorded that:
(a)
Only Tau Pele and the fourth respondent, Rumdel Construction (Cape)
(Pty) Ltd (Rumdel Construction), were found to be responsive.
(b)
Umso, the fifth and sixth respondents’ (ie Amandla CTC (Pty)
Ltd and Siya Hlobisa (Pty) Ltd respectively) bids were found
to be
non-responsive.
In
relation to Umso, its grading of 8CE in terms of the Construction
Industry Development Board Act 38 of 2000 (CIDB) and the
regulations,
[2]
was
found to be inadequate and did not conform to the stipulated tender
requirements. Swartz also concluded that Umso had not performed
a
similar project in compliance with the tender conditions.
[6]
Swartz’s conclusions
vis-à-vis
Umso were endorsed by the department’s Bid Evaluation Committee
(BEC) at its meeting on 16 August 2012. In the minutes of
that
meeting, it was recorded: ‘Umso Construction (Pty) Ltd JV:
non-responsive, lower CIDB grade’. This conclusion
was however
incorrect as Umso had provided clear proof of its CIDB grade as being
8CE. As a result, this was corrected at a subsequent
meeting of the
BEC on 6 December 2012, and the BEC elevated Umso’s bid to
‘responsive’ based on a correct assessment
of its CIDB
rating. At the same time however, the BEC determined and declared
Umso’s bid to be unresponsive for lack of compliance
with the
experience criteria set out in the conditions of tender, in that it
had not performed a similar project in the preceding
seven years.
This confirmed the department’s earlier finding on 16 August
2012. The correctness of this finding has now become
one of the main
issues in this appeal.
[7]
Umso was accordingly non-suited and the tender evaluation process
continued through its normal stages with the department’s
Bid
Adjudication Committee (BAC) meeting on 27 February 2013 in respect
of the bids of Tau Pele and Rumdel Construction only. Following
this
meeting, the BAC made a recommendation to the department to approve
Tau Pele’s bid as supplier of the services and goods
contemplated in the tender for the sum of R220 350 000.
[8]
On 21 May 2013 the department approved the award of the tender to Tau
Pele. Its approval was conveyed to the department’s
supply
chain contract manager on 27 May 2013, and on the same date an
appointment letter in Tau Pele’s favour was issued.
The letter
stipulated that a service level agreement had to be concluded by not
later than 25 June 2013 and that the validity of
the bid would expire
on 6 December 2013.
[9]
Upon learning that the tender had been awarded to Tau Pele, Umso
launched review proceedings in August 2013 seeking an order
setting
aside the decisions that Umso’s bid was not responsive to the
tender criteria and to award the tender to Tau Pele.
It sought a
declaration of invalidity in respect of the rules and tender
conditions in the tender notice relating to experience
criteria
expected of tenderers on the basis that these were unlawful,
arbitrary, irrational and capable of manipulation. It also
sought an
order that the tender be awarded to it, alternatively, that the
department be directed to re-consider, re-evaluate and
re-adjudicate
upon all bids submitted in response to the bid invitation relating to
the tender. The application was in terms of
s 6 of the Promotion of
Administrative Justice Act (PAJA),
[3]
read
with s 217 of the Constitution, the Preferential Procurement Policy
Framework Act 5 of 2000 (PPPFA), the Public Finance Management
Act 1
of 1999 (PFMA) and the supply chain management policies of the
department.
[10]
After Umso had instituted review proceedings, it discovered that Tau
Pele had applied to be placed under business rescue on
17 September
2012, and had been so placed from 21 September 2012 until 21 May
2013, when the process was terminated, a fact that
was not disclosed
to the department, and of which the department was not aware. So it
filed a supplementary affidavit in which
it set out this issue as a
further ground for impugning the award of the tender to Tau Pele. The
department adopted the stance
that the tender must be set aside
because of Tau Pele’s failure to disclose that it had applied
for, and been placed under,
business rescue after it had submitted
its bid. Tau Pele maintains that it had no legal duty to disclose
this fact to the department.
The remaining respondents –
the other unsuccessful bidders – do no oppose any of the relief
claimed and have
no interest in these proceedings.
[11]
These then were the issues that came before the high court. In her
judgment, Stretch J found that when Tau Pele tendered
for the
job it knew that it was already financially distressed, that it had a
duty to disclose this to the department, and that
this non-disclosure
was material. She referred to the department’s tender data
which provides that the department will only
consider tenders from
tenderers who can satisfactorily prove that they have the necessary
financial resources to undertake and
complete the works. On that
basis she said it was incumbent on Tau Pele to have disclosed this
either at the time of its commencement
in participating in the
bidding process, or at the very latest when it entered into business
rescue.
[12]
Stretch J accepted that the department only became aware about Tau
Pele’s material non-disclosure of business rescue
after Umso
had launched the application, specifically when Umso filed its
supplementary affidavit. In her view the department’s
approach
in supporting Umso’s application to set aside the tender to Tau
Pele on the basis of the irregularity of non-disclosure
of a material
fact, was logical and acceptable, other than launching a counter
application on the basis of the principles enumerated
in
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
.
[4]
[13]
The learned judge rejected Umso’s contention that the
pre-qualification criteria that was imposed by the department,
namely
that tenderers must prove previous experience in the construction of
a road of at least 10 kilometres length with a minimum
construction
value of R 100 million in the previous seven years was unlawful,
arbitrary and irrational. During argument before
us Umso abandoned
this contention. It also abandoned any reliance on the high court’s
finding that the adjudication process
was confusing and
contradictory, had prejudiced it, and was therefore unlawful.
Nothing further need be said about these
matters.
[14]
With regard to the department’s decision that Umso’s
tender was unresponsive because it had not completed a similar
project within the previous seven years, the learned judge accepted
the department’s submission that even though Umso had
participated in two projects, namely the Gauteng Freeway Improvement
Package (Stages A-R and E) (the Gauteng Freeway Improvement
Project)
totalling R109 600 000 and which involved the construction
of a 36.8 kilometres stretch of road, and that
its financial
portions in both projects were R60 million and R49.6 million
respectively, it had in fact been the minority partner
in the joint
venture project which therefore did not qualify as a single similar
project, exceeding R100 million in value
as the tender
conditions stipulated. Umso contends that the learned judge erred in
upholding the department’s contention
in this regard.
[15]
I now turn to consider the question whether the court a quo was
correct in its finding that Umso’s bid was non-responsive
for
non-compliance with the department’s criteria of previous
experience and performance. Under the provisions dealing
with the
test for responsiveness of bidders, the department’s tender
notice states that:
‘
[t]he
tenderers will be required to prove that they have undertaken at
least one similar project in the seven years, failing which,
the
tenderer will be rejected. A similar project is the upgrading of a
gravel road to surfaced standards with least 10 kilometres
length and
a minimum construction value of R100 million.’
And
the tender data provides that:
‘
In
order for a tenderer to be considered, the tenderer must be able to
demonstrate the completion of at least one similar project
in the
past seven years. A similar project shall be defined as the
construction of a minimum of 10 kilometres of a similar type
of
gravel to surfaced road upgrade that includes mass earthworks. . .
and all the ancillary works normally included in a project
of this
nature. . . . [f]ailure to submit proof of having completed at least
one similar project will render the tender non-responsive
(pre-evaluation).’
[16]
In support of its contention that it satisfied the department’s
test for responsiveness in relation to the specific criteria
of
involvement in a project of no less than R100 million, Umso has
provided proof of its involvement, albeit as a joint venture
partner,
in the Gauteng Freeway Project valued at R1.5 billion in total, which
involved the construction of a road 36.8 kilometres
in length, and
included two stages. Its contribution, in value terms came to R60
million and R49.6 million respectively and in
total to R109.6
million, excluding value added tax. It submits this was a single
project, which commenced in November 2010 and
endured for 18 months.
And the fact that it included two stages does not detract from the
fact that this was a single project.
Moreover, the tender conditions
did not require the tenderer to show that it was the sole contractor.
So the department’s
contention that Umso’s failure to
provide proof that it was the sole contractor does not pass muster
either. Significantly,
in the department’s answering affidavit
it is not disputed that Umso was involved in a single project the
value of which
exceeded R100 million. Instead the department merely
stated that: ‘The mere fact that a project (in respect of which
they
were a minority joint venture partner) exceeds R100 million does
not justify the conclusion that the applicant’s involvement
in
such project met the minimum standards for prior experience.’
The evidence establishes that the value of Umso’s
involvement
of R109.6 million also complies with the department’s
specification of the average cost of construction of between
R10
million and R15 million per kilometre.
[17]
In my view, Umso’s disqualification on the ground that it had
not been involved in a single project with a construction
value
exceeding R100 million, as a test for responsiveness, was incorrect.
And the order setting aside the department’s decision
is
therefore correct. But I differ in the reasons for coming to this
conclusion.
[18]
I now turn to deal with Tau Pele’s cross-appeal. As mentioned
earlier, after the closure of the bids on 8 August 2012,
Tau Pele was
placed under business rescue on 21 September 2012 and the business
rescue was successfully implemented and completed
on 21 May 2013. As
the business rescue plan was implemented after the tender process had
closed and before the contract was awarded
to Tau Pele, its
cross-appeal raises the important discrete question whether the
failure to disclose the business rescue process
vitiates the award.
[19]
Although Tau Pele did not press the issue before us, it contended in
the court a quo that it was not competent for the department
to
support Umso in seeking to have the award of the tender set aside in
the absence of a substantive application by the department
seeking
this relief. It will be recalled that the department elected to
support Umso’s part of the application to set aside
the award
to Tau Pele but did not seek direct relief by way of application
against Tau Pele, opting instead to piggy-back on Umso’s
application to achieve this result.
[20]
The learned judge found that it was not necessary for the department
to have instituted its own proceedings against Tau Pele,
and in my
view she was correct.
[5]
It
must be remembered that the department only became aware of Tau
Pele’s business rescue status after Umso had filed its
supplementary affidavit. So, as the court quo explained, whilst
ordinarily the department would have to apply to court to
have its
own unlawful decision set aside, it would be impractical and unduly
formalistic to have required it to do so in the circumstances
of this
case. This is not a case where the department was attempting to
circumvent the provisions of PAJA.
[21]
Tau Pele’s contention that there was no duty to disclose its
business rescue status on the grounds, inter alia, that
it had no
legal relationship with the department at the time it went into
business rescue and that such duty, if it exists, could
undermine the
purpose of business rescue, must also fail.
[22]
The duty to disclose the financial status of a
tenderer is found in paragraph F.2.2 of the department’s tender
data which
expressly provides that the employer will only consider
tenders from tenderers who can prove to its satisfaction that they
have
the necessary financial resources to undertake and complete the
work. It can hardly be disputed that an entity that applies to be
placed under business rescue because it is financially distressed
would fall outside of this tender condition.
[23]
It is also trite that silence and failure to disclose a material fact
may in certain circumstances amount to a misrepresentation.
There is
no general rule in our law of contract that all material facts must
be disclosed and that non-disclosure therefore amounts
to
misrepresentation by silence. But in certain circumstances this is
undoubtedly the rule.
[6]
There
has, however, been a steady progression in our law towards developing
a general test applicable to cases outside of special
cases as in
insurance and agency for deciding whether in a particular case
silence amounts to a misrepresentation. Thus in
Pretorius
& another v Natal South Sea Investment Trust Ltd (under Judicial
Management)
,
[7]
Vieyra
J, held on the particular facts of that case which concerned a
contract that:
‘
an
involuntary reliance of the one party on the frank disclosure of
certain facts necessarily lying within the exclusive knowledge
of the
other such that, in fair dealing, the former’s right to have
such information communicated to him would be mutually
recognised by
honest men in the circumstances’.
[8]
The
test of involuntary reliance that was expounded by Vieyra J
underlying the requirement of disclosure of material facts in
contracts
of insurance where the insured must disclose all material
facts because the insurer involuntarily relies on him for information
is, in my view, comparable to the tenderer’s duty to disclose
information of its financial resources to the department.
[24]
Disclosure of material facts in contracts other than in insurance is
required not because they are contracts
uberrimae
fidei
but because they are contracts in which a situation of involuntary
reliance has necessarily arisen from the particular circumstances
of
a case. If, in the circumstances, it would be wrong to keep silent,
then silence amounts to a misrepresentation. The position
was aptly
summed up by Conradie JA in
Absa
Bank Ltd v Fouche
,
[9]
in
which this court considered whether the appellant had been guilty of
fraudulent or negligent non-disclosure that induced the
respondent to
enter into a contract for the hire of a safe-deposit box when, he
said the following in para 5:
‘
The
policy considerations appertaining to the unlawfulness of a failure
to speak in a contractual context – a non-disclosure
–
have been synthesised into general test for liability. The test takes
account of the fact that it is not the norm that
one contracting
party need tell the other all he knows about anything that may be
material (
Speight v Glass & another
1961 (1) SA 778
(D) at 781H-783B). That accords with the general rule
that where conduct takes the form of an omission, such conduct is
prima facie
unlawful (
BOE Bank Ltd v
Ries
2002 (2) SA 39
(SCA) at 46G-H). A
party is expected to speak when the information he has to impart
falls within his exclusive knowledge (so that
in a practical business
sense the other party has him as his only source) and the
information, moreover, is such that the right
to have it communicated
to him “would be mutually recognised by honest men in the
circumstances” (
Pretorius &
another v Natal South Sea Investment Trust Ltd
(under Judicial Management)
1965 (3) SA 410
(W) at 418E-F).’
[25]
Once one accepts, as we must, that where the
tender document explicitly imposed a duty on a tenderer to disclose
that it had the
necessary financial resources to execute a project of
this magnitude when it submitted its bid, it can hardly be contended
that
this duty did not endure thereafter, during the adjudication
process. In my view it did. Once Tau Pele’s financial
position had changed materially after it had submitted its bid it
bore the duty to disclose that material fact.
[26]
The adjudication process would be seriously undermined and the
department prejudiced if the public procurement process did
not
recognise such a duty. This is underpinned by the fact that a
tendering process, involving huge amounts of public money, is
clearly
a matter in which the public has an interest. For these reasons, the
learned judge in the court a quo was correct to set
aside the
contract awarding the tender to Tau Pele. Tau Pele’s
cross-appeal must accordingly fail.
[27]
What now remains to be decided is whether there are exceptional
circumstances in this case that justify a substitution order
to award
the tender to Umso in the place of Tau Pele, in terms of s
8(1)
(c)
(ii)
(aa)
of PAJA.
[10]
I
need to point out at the onset that this court was advised by both
counsel that it was common cause that had Umso’s bid
not been
ruled non-responsive it would have scored the highest points and
would have been the successful tenderer.
[28]
The relevant factors that a court must consider when deciding whether
to make an order of substitution have been highlighted
by the
Constitutional Court in
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd & another
.
[11]
There
are two primary questions that must be answered namely: first,
whether a court is in as good a position as the department
to enable
it to make the order; and secondly, whether or not the decision of an
administrator can be said to be a foregone conclusion,
for example,
that a party, in this case, Umso, would have been the successful
tenderer.
[12]
These
factors must be considered cumulatively with other relevant factors
such as bias or the incompetence of the administrator.
Ultimately, it
is a question of fairness and equitability. This court must
therefore determine those two questions.
[29]
There is no issue with the latter requirement as parties are agreed
that Umso would have been the successful party. With regards
to the
first requirement, the court has at its disposal all the material
facts and documentation pertaining to the tender. Tau
Pele having
been found to have been wrongly awarded the tender, it is only Umso
that has been shown to be capable of executing
the project.
[30]
The tender was for a six month period and there has been a
considerable delay in commencing with the project. No purpose will
be
served by delaying it any further and re-running the entire bid
process. It bears mentioning that the prime reason for the upgrading
of the road is to facilitate coal mining in the relevant area and
invariably to keep the mine operating and to save many jobs.
There is
also no evidence to suggest that a service level agreement had been
signed between the government and Tau Pele, nor is
there evidence
showing that execution of the project has commenced nor that the
government is indebted to Tau Pele.
[31]
I accordingly make an order as follows:
1.
The appeal is upheld with costs, such costs to include the costs of
two counsel.
2.
The cross-appeals of the first and third respondents are dismissed
with costs such costs to include the costs of two counsel.
The
respondents are to pay the costs of the appeal jointly and severally,
the one paying the other to be absolved.
3.
The order of the court a quo dated 7 October 2014 is amended by
adding the following to paragraph 2:
‘
The
tender/bid SC MU5-12/13-0035 is hereby awarded to the applicant’.
________________
B
H Mbha
Judge
of Appeal
APPEARANCES:
For
Appellant:
R P Quinn SC (with him N C F Schultz)
Instructed
by:
Smith Tabata, East London
Webbers
Attorneys, Bloemfontein
For
First Respondent:
R G Buchanan SC
Instructed
by:
The State Attorney, King William’s Town.
The
State Attorney, Bloemfontein
For
Third Respondent:
S J Reinders
Instructed
by:
Honey Attorneys, Bloemfontein
[1]
Preferential
Procurement Policy Regulations, GN R501,
GG
34350, 8 June 2011; and the Exemption from the application of the
Preferential Procurement Regulations, GN R1027,
GG
34832,
7 December 2011.
[2]
Regulation
17 of the Construction Industry Development Regulations, GN 629,
GG
26427, 9 June 2004 (as amended) promulgated in terms of
s 33
of the
Construction Industry Development Board Act 38 of 2000
, tabulates
the different categories from 1 to 9 in relation to the respective
tender value. Category 8 is for tender value for
construction works
worth up to R130 million, while ‘CE’ is the designation
for Civil Engineering works in terms of
Schedule 3 of the
regulations on the classes of construction works. The department’s
tender data which contains
Standard
Conditions of Tender
provides
that only those tenderers who are registered with the CIBD, or are
capable of being so registered prior to the evaluation
of
submissions, in a contractor grading designation equal to or higher
than a contractor grading designation determined in accordance
with
the sum tendered for a 9CE, 8CE class of construction work, are
eligible to submit tenders.
[3]
Promotion of Administrative Justice
Act
3 of 2000
.
[4]
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
[2004]
ZASCA 48
;
2004 (6) SA 222
SCA.
[5]
See in this regards
MEC
for Health, Eastern Cape & another v Kirland Investments (Pty)
Ltd t/a Eye & Lazer Institute
[2014] ZACC 6
;
2014 (3) SA 481
(CC) para 64 of the majority
judgment; compare with para 39 of the minority judgment.
[6]
R
H Christie & G B Bradfield
Christie’s
the Law of Contract in South Africa
6 ed at 287.
[7]
Pretorius
& another v Natal South Sea Investment Trust Ltd (under Judicial
Management)
1965
(3) SA 410
(W) at 418E-F.
[8]
Quoting
M A Millner ‘Fraudulent Non-disclosure’
(1957) 74
SALJ
177
at 189.
[9]
Absa
Bank Ltd v Fouche
[2002]
ZASCA 111; 2003 (1) SA 176 (SCA).
[10]
Section
8(1)
(c)
(ii)
(aa)
of PAJA provides, amongst the number of remedies in proceedings for
judicial review, that: ‘The court or tribunal, in proceedings
for judicial review in terms of
s 6(1)
, may grant any order that is
just and equitable, including orders – setting aside the
administrative action and –
in exceptional cases –
substituting or varying the administrative action or correcting a
defect resulting from the administrative
action.’
[11]
Trencon
Construction (Pty) Ltd
v
Industrial Development Corporation of South Africa Ltd & another
[2015] ZACC 22
;
2015 (5) SA 245
(CC) para 47.
[12]
Ibid
para 49, where ‘a foregone conclusion’ is explained.