State Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd (641/2015) [2016] ZASCA 143; [2016] 4 All SA 842 (SCA); 2017 (2) SA 63 (SCA) (30 September 2016)

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State Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd (641/2015) [2016] ZASCA 143; [2016] 4 All SA 842 (SCA); 2017 (2) SA 63 (SCA) (30 September 2016)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 641/2015
In
the matter between:
STATE
INFORMATION TECHNOLOGY AGENCY SOC LTD
APPELLANT
and
GIJIMA
HOLDINGS (PTY) LTD
RESPONDENT
Neutral
citation:
State
Information Technology Agency Soc v Gijima Holdings
(641/2015)
[2016] ZASCA
143
(30 September 2016)
Coram:
Cachalia,
Bosielo, Tshiqi and Van der Merwe JJA and Dlodlo AJA
Heard:
30
August 2016
Delivered:
30
September 2016
Summary:
Promotion of
Administrative Justice Act 3 of 2000 (PAJA) : applicability to organ
of state seeking to set aside its own decision
: legality review not
available when PAJA applies.
ORDER
On
appeal from:
Gauteng
Division, Pretoria (Matojane J sitting as court of first instance):
The
appeal is dismissed with costs, including the costs of two
counsel.
JUDGMENT
Cachalia
JA (
Tshiqi
and Van der Merwe JJA
concurring)
[1]
This is an appeal from the Gauteng High Court (Matojane J) dismissing
an application by a state entity to declare its contract
with a
listed company unenforceable for want of compliance with the public
procurement requirements of s 217 of the Constitution.
There is
no dispute that these requirements were not followed in awarding the
contract. The court a quo dismissed the application
because the
entity had relied directly on the constitutional principle of
legality, instead of instituting review proceedings under
s 6 of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA). It had also
not applied under s 9(1)
(b)
to condone its failure to institute such proceedings within 180 days
of the contract having been concluded, as s 7(1)
(b)
requires.
[2]
The state entity – the appellant in these proceedings –
is the State Information Technology Agency (SITA). The respondent
–
Gijima – is a listed company operating in the area of
information and communication technology. SITA advances the
following
submissions in this appeal: First, it contends that PAJA does not
apply when an organ of state seeks to undo its own
decisions;
secondly, it says that even if PAJA does apply, the entity may elect
to proceed either by way of review under PAJA or
rely directly on the
principle of legality; and finally, it maintains that if it is
entitled to make this election and proceed
by way of a legality
challenge, the delay in bringing these proceedings was not
unreasonable.
[3]
It is of some interest to set out the facts that gave rise to the
present dispute. The parties have concluded contracts and
conducted
business together on several projects for more than ten years. SITA
provides information technology, information systems,
and related
services (IT services) to government departments. It performs this
function by entering into agreements with private
service providers,
such as Gijima, which in turn provides IT services to the government
department. The way it works is that government
departments needing
IT services submit a business case and user requirements to SITA,
which then prepares a procurement schedule
for the execution of the
request bid, and a detailed costing for the subsequent contract
management.
[4]
SITA thereafter concludes a business agreement with the relevant
government department for IT services to be provided to it
by private
service providers. Armed with this agreement and following a
procurement process, SITA enters into a further agreement
for the
provision of IT services with a private service provider on the basis
of what the government department is willing to pay
for those
services.
[5]
The relationship between the parties has, since 2006, been regulated
by a contract that became known as ‘the 433 contract’,

which set forth the general terms and conditions applicable to all
service level agreements between them. The 433 contract placed
Gijima
on SITA’s ‘preferred supplier’ list. It stipulated
that the services were to be implemented in accordance
with separate
service level agreements that would be concluded from time to time.
The parties have since entered into a number
of agreements for the
provision of IT services to different government departments.
[6]
On 27 September 2006, the parties entered into one such agreement in
terms of which Gijima was to provide IT services to the
South African
Police Service (the ‘SAPS agreement’). The agreement was
extended several times.
[7]
On 25 January 2012 SITA unlawfully terminated the SAPS agreement as a
result of which Gijima stood to suffer R20 million in
lost revenue.
This prompted Gijima to institute urgent proceedings to protect its
rights under the SAPS agreement. Following negotiations
between the
parties, SITA recommended a commercial solution to resolve the
dispute. It proposed that Gijima abandon its claim arising
from the
termination of the SAPS agreement in return for which it would
receive a new service contract to offset its potential
losses.
[8]
Gijima was concerned about SITA’s competence to conclude this
contract without having gone through a competitive bidding
process
and raised these reservations with SITA. SITA assured Gijima that it
had the authority to conclude the contract. Relying
on this
assurance, Gijima agreed to settle the dispute on the basis proposed
by SITA.
[9]
Thus, on 6 February 2012, the parties entered into a settlement
agreement in terms of which they agreed that Gijima would render
IT
services to the Department of Defence from 1 April 2012 to 31 July
2012. The agreement contemplated that SITA would compensate
Gijima
for losses arising from the termination of the SAPS agreement. Mr
Blake Mosley-Lefatola, the erstwhile chief executive officer,
signed
the agreement on behalf of SITA.
[10]
After the settlement agreement was concluded a further meeting was
held between the parties where Gijima again recorded its
concerns
that any subsequent agreement appointing it as the Defence
Department’s service provider may be contrary to the

requirement that public procurements are subject to a system of
competitive bidding. At this meeting SITA was represented by, amongst

others, Ms Thenji Mjoli, its former executive of ‘Supply
Chain Management’. She allayed Gijima’s misgivings
by
giving her word that the appellant’s ‘rec’
committee had the power to authorise the agreement up to an amount
of
R50 million. Gijima thus agreed to negotiate the terms of the
agreement to render services to the Defence Department.
[11]
Protracted negotiations over five months followed. SITA was
represented by Ms Mjoli, Mr Carl Masekoameng, its senior
procurement contracts manager; Mr Denis Carstens, a senior
manager in its Business Division and Mr Toto Matshediso, the lead

consultant of ‘Budget, Internal Reporting and Projects’.
Other senior staff, including Mr Mosley-Lefatola, also participated

in the process. Throughout the process, Gijima queried whether SITA
was complying with its tender requirements. SITA repeatedly
assured
Gijima that it was. However, to safeguard its position, Gijima
insisted on inserting a term in the contract according to
which SITA
warranted that all procurement processes had been complied with. SITA
willingly agreed to this term. The value of the
contract concluded on
17 July 2012 was R11 329 130 and was intended to endure for
five months.
[12]
Pursuant to the agreement, Gijima rendered IT services to the Defence
Department and submitted invoices to SITA for payment.
The agreement
was thereafter extended on 20 September 2012, 21 December 2012 and 8
April 2013 respectively through the addition
of further addenda. I
shall hereafter refer to the agreement and its addenda simply as ‘the
agreement’ or ‘the
contract’.
[13]
A payment dispute developed between the parties during the third
extension period and was referred to arbitration for resolution.
On
30 May 2013, SITA informed Gijima of its intention not to extend the
agreement any further.
[14]
On 7 July 2013 Gijima submitted its statement of claim to the
arbitrator in the payment dispute in which it claimed R9,5 million

for services rendered under the agreement. In response, SITA pleaded
that the agreement was concluded in contravention of the procurement

system contemplated in s 217 of the Constitution and was therefore
invalid and unenforceable against it. This was the first time
that
SITA had adopted this stance after assuring Gijima – repeatedly
– that there were no procurement problems with
the conclusion
of this agreement. Faced with a constitutional challenge to the main
agreement, the arbitrator, on 20 March 2014,
ruled that he had no
jurisdiction to determine this issue. And on 6 May 2014, SITA
launched the present proceedings in the court
a quo.
[15]
I now turn to consider SITA’s first contention, which is that
PAJA does not apply at all when an organ of state seeks
to set aside
its own decisions. For this novel proposition it unsurprisingly cites
no authority, and I am aware of none.
[16]
It is well established that a decision
[1]
by a state entity to award a contract for services constitutes
administrative action in terms of s 1 of PAJA.
[2]
Once this is accepted, there is no good reason for immunising
administrative decisions taken by the state from review under PAJA.

PAJA does not expressly exclude the state and its language
carries no such implication. In fact, s 6(1) specifically empowers

‘[a]ny person’ to institute proceedings for the judicial
review of administrative action, which suggests that administrative

actions taken by the state are included. Furthermore, there does not
appear to be any justification for permitting the state, with
all the
resources at its disposal, not to be subjected to the exacting
requirements of PAJA in the way that all other litigants
are. As
Cameron J explained in
MEC
for Health, Eastern Cape & another v Kirland Investments (Pty)
Ltd t/a Eye & Lazar Institute
:
‘
Government
is not an indigent or bewildered litigant, adrift on a sea of
litigious uncertainty, to whom the courts must extend a

procedure-circumventing lifeline. It is the Constitution’s
primary agent. It must do right, and it must do it properly.’
[3]
[17]
SITA contends that, even if PAJA applies in principle, the conclusion
of the agreement did not fall within the definition of
administrative
action because it did not adversely affect the rights of any person
and did not have a direct, external legal effect.
This argument is
advanced on the ground that, in fact, the agreement conferred
benefits on Gijima and did not deprive it of any
rights.
[18]
A literal reading of these requirements does not accord with this
court’s approach in
Grey’s
Marine Hout Bay (Pty) Ltd v. Minister of Public Works
,
[4]
where it said that such a construction is ‘. . . inconsonant
with s 3(1), which envisages that administrative action might
or
might not affect rights adversely’.
[5]
The court went on to explain that, when read in conjunction with the
requirement that the decision must have an external legal
effect, the
intention was to convey that administrative action must have ‘the
capacity to affect legal rights’, with
the two qualifications
in tandem serving to emphasise that it impacts directly and
immediately on persons.
[6]
[19]
In my view, the conclusion of the agreement, whether or not
beneficial to Gijima, certainly had the capacity to adversely affect

its rights, because it contemplated Gijima’s foregoing its
damages claim under the SAPS agreement in return for rendering
IT
services to the Defence Department. And, following upon SITA’s
express warranty in the agreement that it had complied
with all
procurement requirements, the agreement arguably also affected
Gijima’s legitimate expectation that SITA would honour
its
terms. But I need not arrive at any specific conclusion in this
latter regard.
[20]
The phrase ‘direct, external legal effect’ was borrowed
from German federal law. The allusion to the word ‘direct’

refers to decisions that are final; the word ‘external’
to those that affect not only the decision-maker but also other

parties, and the word ‘legal’ overlaps with the
requirements that rights must be affected.
[7]
There can be no doubt that the decision to conclude the agreement met
all these requirements. The decision was final; it had the
capacity
to adversely affect Gijima’s rights and those of the Defence
Department, which counsel for SITA conceded during
his argument.
[21]
The upshot is that SITA cannot avoid the provisions of PAJA. Its
failure to follow a prescribed competitive process therefore
brings
its administrative decision, in awarding the contract to Gijima,
within the scope of s 6(2)
(a)
(i),
s 6(2)
(b)
and s 6(2)
(f)
(i)
of PAJA. This is because: it did not have the authority to contract
outside of a competitive bidding process to do so; it contravened
s
217 of the Constitution and had also failed to comply with a
mandatory and material procedure prescribed by law.
[22]
Once it is accepted that PAJA applies when state entities challenge
their own administrative decisions, the next question,
whether the
180-day delay rule in s 7 nevertheless does not apply to them, must
be considered. SITA contends that the provision
does not apply; this
contention is supported by a provincial decision in
Telkom
SA Limited v Merid Trading (Pty) Ltd & others
(
Telkom
SA
).
[8]
There, as in this case, it was contended that s 7(1) did not apply
when a decision-maker seeks to sets aside its own decision.
[9]
This is because, the argument went, paragraphs s 7(1)
(a)
and
(b)
,
which provide for the date from which the 180-day period begins to
run against the decision-maker, do not cover that situation.
Instead
the common law unreasonable delay rule enunciated in
Wolgroeiers
Afslaers (Edms) (Bpk) v Munisipaliteit van Kaapstad
[10]
applies. This involves a two stage inquiry: first, whether the
proceedings were instituted after a reasonable time has passed,
and
if so, whether the court should exercise its judicial discretion to
overlook the unreasonable delay taking the relevant circumstances

into consideration.
[23]
The court in
Telkom
SA
upheld the contention. In so doing it held that the lawmaker seems to
have deliberately omitted applying s7 of PAJA to the situation
where
a decision-maker seeks to review its own decision.
[11]
It therefore proceeded to decide the case on the common law rule.
[24]
It appears, however, that in interpreting s 7 of PAJA in this manner
the court overlooked s 9(1)
(b)
,
which empowers a court ‘on application by the person or
administrator concerned’ to extend the 180 days referred to
in
s 7(1). An ‘administrator’ is defined in s 1 of PAJA to
include an ‘organ of state’. So, read together,
as ss 7
and 9 must be, the 180-day rule indeed applies to organs of state,
and does to the SITA decision at issue in this case.
On this point,
therefore,
Telkom
was
incorrectly decided.
[25]
Once the 180-day rule applies, s 9(1)
(b)
allows
this period to be extended only by agreement of the parties or if the
person or administrator applies for an extension. A
court may grant
an extension where the interests of justice so require, as s 9(2)
states. It follows that where an applicant needs
an extension it must
apply for one and give a full and a reasonable explanation for the
delay.
[26]
In the instant matter, as I have mentioned, SITA avoided PAJA by
seeking declaratory relief directly under the constitutional

principle of legality. It thus could not, and did not, invoke s 9(2)
by applying for an extension of the 180-day period. In fact,
in its
founding affidavit, it did not refer to the delay or offer an
explanation for it at all. This is unacceptable.
[12]
In these circumstances, the court a quo found that it was not in the
interests of justice to grant an extension in terms of s 9.
However,
without an application from SITA, supported by facts justifying an
extension of the 180-day period, the court did not
have the power to
even consider whether it was in the interests of justice to extend
the period or to entertain the application.
[13]
That should have been the end of the matter.
[27]
But the matter does not end here. SITA maintains that it is
nevertheless entitled to avoid instituting review proceedings under

PAJA – and the procedural requirement under s7 to institute its
proceedings within 180 days – by relying directly on
the
constitutional principle of legality to obtain declaratory relief
against Gijima. Put differently, it contends that if PAJA
applies it
had a choice to initiate a review under its provisions or bypass it,
and formulate its cause of action as a legality
challenge. It relies
heavily for this submission on the judgment of this court in
Municipal
Manager: Qaukeni Local Municipality & another v FV General
Trading CC
.
[14]
[28]
These were the facts: The municipality concluded an agreement with a
service provider in contravention of prescribed statutory

requirements and s 217 of the Constitution. It then sought to
terminate the contract. The service provider instituted proceedings

to declare the purported termination unlawful together with an order
enforcing the contract. In a counter-application, the municipality

sought a declaratory order that the contract was unlawful and
unenforceable against it.
[29]
In this court the service provider contended that because the
municipality had not instituted review proceedings to set aside
the
invalid contract under PAJA, and the counter-application was not a
review, the municipality had no defence to its action. The
court
dismissed the argument and said the following:
‘
While
I accept that the award of a municipal service amounts to
administrative action that may be reviewed by an interested third

party under PAJA, it may not be necessary to proceed by review when a
municipality seeks to avoid a contract it has concluded in
respect of
which no other party has an interest. But it is unnecessary to reach
any final conclusion in that regard. If the second
appellant's
procurement of municipal services through its contract with the
respondent was unlawful, it is invalid, and this is
a case in which
the appellants were duty- bound not to submit to an unlawful
contract, but to oppose the respondent's attempt to
enforce it. This
it did by way of its opposition to the main application and by
seeking a declaration of unlawfulness in the counter-application.
In
doing so it raised the question of the legality of the contract
fairly and squarely, just as it would have done in a formal
review.
In these circumstances, substance must triumph over form. And while
my observations should not be construed as a finding
that a review of
the award of the contract to the respondent could not have been
brought by an interested party, the appellants'
failure to bring
formal review proceedings under PAJA is no reason to deny them
relief.’
[15]
[30]
Although it is perhaps implicit in this passage that a litigant may
raise a legality challenge instead of proceeding by way
of a formal
review under PAJA, the court explicitly left open the question
whether it was necessary for a municipality to do so
when it seeks to
avoid a contract in respect of which no third party has an interest.
It is therefore not binding authority for
the issue in this case.
Furthermore, and importantly, the delay rule was not in issue there.
However, in
MEC
for Health, Eastern Cape & another v Kirland Investments (Pty)
Ltd t/a Eye & Lazer Institute
[16]
Cameron
J, writing for the majority in the Constitutional Court, intimated
that an organ of state could not avoid the consequences
of the delay
rule by resorting to ‘procedural tricks’.
[17]
This is because, he said, when the government has delayed bringing
proceedings to set aside its decision ‘the court and Kirland

are entitled to know what happened in that time’.
[18]
In other words, it could not simply ignore the rule by not bringing a
counter-application.
[31]
As with
Qaukeni,
in
Kirland
the court did not decide the extent to which organs of state can or
must use the provisions of PAJA in proceedings where they seek
to
review their own decisions.
[19]
Kwa
Sani Municipality v Underberg/Himeville Community Watch Association &
another
[20]
also concerned a municipality seeking to set aside its own decision.
This court said that the facts made it unnecessary to determine

whether it was necessary for the review to be brought under the
common law or under the provisions of PAJA since the delay rule
–
whether under PAJA or at  common law – would apply, thus
insulating the unlawful act from being set aside.
[32]
However, the issue has now been raised squarely in this case, and can
no longer be elided. It is important to bear in mind
that SITA did
not institute review proceedings by using uniform rule 53 either
under PAJA or directly under the Constitution on
the ground of
legality. If it had, it would have had to have made the complete
record available to Gijima and the court; and justify
the delay.
Instead it applied for declaratory relief, which in substance is a
legality review, but without explaining the delay.
Under s 7 of PAJA,
as we have mentioned, the delay rule is 180 days. When the
application is styled as a legality challenge, but
in substance is a
legailty review, the two-stage enquiry enunciated in
Wolgroeiers
[21]
applies. This means that the fact of an undue delay will play a role
in the court’s exercise of its discretion whether or
not to
entertain the review.
[22]
As I
have said, SITA’s contention is that it had a choice to proceed
by way of PAJA or rely directly on the constitutional
principle of
legality.
[33]
It is necessary to distinguish between a PAJA review, on the one hand
and a legality review, on the other. PAJA was enacted
to give effect
to the right to lawful administrative action in s 33 of the
Constitution.
[23]
And, as it
was intended to be, and in substance is, a codification of the rights
in s 33, so the Constitutional Court said in
New
Clicks
,
[24]
it was not possible for litigants to go behind it, by relying either
directly on s 33(1) or on the common law, when reviewing unlawful

administrative actions as this would undermine the very purpose for
which it was enacted.
[25]
So,
PAJA covers administrative action while private (contractual) power
remains reviewable at common law.
[26]
In short, if the unlawful administrative action falls within PAJA’s
remit there is no alternative pathway to review through
the common
law.
[34]
But the ‘burgeoning principle of legality’
[27]
is arguably a greater threat to PAJA than recourse to the common law
because it regulates the exercise of all public power. This
includes,
in addition to administrative decisions covered by s 33 and PAJA,
power exercised by the legislature and the executive.
[28]
Lord Bingham, one of Britain’s most eminent jurists, pithily
captured the principle thus:
‘
Ministers
and public officials at all levels must exercise the powers conferred
on them in good faith, fairly, for the purpose for
which the powers
were conferred, without exceeding the limits of such powers and not
unreasonably.’
[29]
[35]
Because of the ubiquitous reach of the principle of legality, and the
fact that administrative actions also fall within its
remit, it is
unsurprising that litigants and the courts have sometimes
deliberately sidestepped PAJA. The reason is obvious; it
is at times
difficult to work out whether the unlawful action complained of
qualifies as administrative action. Many of the elements
of the
definition remain unsettled. One only has to look to the difficulty
courts have had in establishing whether the action in
question has
satisfied the element of having ‘a direct, external legal
effect’ to demonstrate the nature of the problem.
[30]
[36]
But it is not a problem that can legitimately be avoided. For if a
litigant or a court could simply avoid having to conduct
the
sometimes testing analytical enquiry into whether the action
complained of amounts to administrative action, PAJA, in Professor

Hoexter’s words:
‘
.
. . would soon become redundant, for no sane applicant would submit
to its definition of administrative action (or to the strict

procedural requirements of section 7) if he or she actually had a
choice.’
[31]
[37]
Put differently, the consequence of this would be that the principle
of legality, unencumbered by PAJA’s definitional
and procedural
complexities, would become the preferred choice of litigants and the
courts – which is happening increasingly
– and PAJA would
fall into desuetude. This would be a perverse development of the law,
one that the framers of the Constitution
would not have contemplated
when they drafted s 33(3) of the Constitution.
[32]
Neither would the lawmaker have imagined this when enacting PAJA.
[38]
In my view, the proper place for the principle of legality in our law
is to act as a safety-net or a measure of last resort
when the law
allows no other avenues to challenge the unlawful exercise of public
power. It cannot be the first port of call or
an alternative path to
review, when PAJA applies. As this court said in
National
Director of Public Prosecutions & others v Freedom Under Law
:
[33]
‘
The
legality principle has now become well established in our law as an
alternative pathway to judicial review
where
PAJA finds no application
.’
(emphasis added)
[39]
The facts of this case demonstrate precisely why SITA should not be
allowed to bypass PAJA and rely directly on the principle
of
legality. Under s 7 of PAJA, SITA was well outside the 180-day rule
when it commenced proceedings to nullify its contract with
Gijima. By
framing its application as a legality review it sought to circumvent
PAJA and its 180-day rule. What is more, SITA’s
true objective
in seeking to nullify its contract with Gijima was not to vindicate
the principle of legality, but one of self-interest:
to avoid having
to deal with its payment dispute arising from its breach of contract
through arbitration. The courts cannot countenance
such dishonourable
conduct, particularly from an organ of state.
[34]
I should emphasise that the delay rule, which is aimed at bringing
finality to administrative decisions is itself an incident of
the
rule of law. As Boonzaier observes in his thoughtful treatment of the
topic: ‘government can act antithetically to the
rule of law
even as it purports to assert legality.’
[35]
SITA’s legality challenge was therefore not competent, and its
application was correctly dismissed.
[40]
But, even if SITA was entitled to rely directly on the principle of
legality it would still have had to overcome the insurmountable

hurdle of justifying its delay. This is because, having instituted
legality review proceedings it would need to show that proceedings

were instituted within a reasonable time, failing which, that there
were, nevertheless, good reasons for the court to entertain
the
application and overlook the fact of the unreasonable delay in the
circumstances of the case. In this latter regard, SITA would
have to
persuade the court that any potential prejudice or adverse
consequences caused to Gijima by the delay could be overcome.
[36]
It has not done so.
[41]
It is beyond dispute that the delay of some 22 months in launching
its legality challenge is unreasonable. SITA contends that
the delay
should be overlooked because it became aware that the contract was
invalid only when it was required to deliver its plea
in the
arbitration proceedings. But this explanation was not proffered in
its founding papers; in fact there was simply no proper
explanation
of the process or the delay. Instead, it used affidavits from a
deponent who was not involved in the process and who
had no direct
knowledge of the relevant facts. The first time this account was
given was in a laconic, single sentence in the replying
affidavit.
This alone justifies its rejection.
[42]
Furthermore, the explanation appears to be contrived and far-fetched.
SITA was aware of Gijima’s concerns with the validity
of the
agreement, which the head of procurement and other senior officials
consistently dismissed. In fact, SITA went so far as
to give an
express warranty to the effect that all procurement requirements had
been met in circumstances where its senior management
must have been
aware that this was not the case. During the lengthy negotiations
over the payment dispute between the parties,
no issue concerning the
validity of the contract was raised. In the circumstances, the
perfunctory and cavalier explanation for
the delay is unreasonable
and must fail. The prejudice to Gijima is evident.
[43]
SITA attempts to explain away the prejudice to Gijima by contending
that it has already benefitted from the agreement to the
tune of R26
million. That is not the point. Gijima has had to forego a R20
million damages claim in respect of the unlawful termination
of its
SAPS contract, which is probably no longer enforceable because of
prescription. What is more, Gijima had pertinently raised
its
concerns regarding the efficacy of the procurement process and was
entitled to rely on SITA’s express warranty regarding
the
validity of the procurement process. It did so to its prejudice
immediately when the contract was concluded. It has since then

performed fully under the terms of the agreement, only to be met with
a challenge to the lawfulness of the contract 22 months after
its
conclusion. In the circumstances it would be unfairly prejudicial to
Gijima for this court to consider the merits of the dispute,
and we
decline to do so.
[44]
In summary, we hold that PAJA applies when an organ of state seeks to
set aside its own administrative decisions. And when
PAJA does apply,
litigants and the courts are not entitled to bypass its provisions
and rely directly on the constitutional principle
of legality. But
even if this case is approached as a legality review, SITA failed to
place facts before the court to overcome
the hurdle of the
unreasonable delay in commencing proceedings against Gijima.
[45]
In the result the following order is made:
‘
The
appeal is dismissed with costs, including the costs of two
counsel.’
_______________
A
Cachalia
Judge
of Appeal
Bosielo
JA (Dlodlo AJA concurring)
[46]
I have had the benefit of reading the judgment by my brother Cachalia
JA. I regret that I do not agree with his reasoning and
conclusion. I
hereunder set out my fundamental grounds for differing with him. As
my colleague has set out the salient facts out
as fully as possible,
I will not repeat them save where it is necessary to give context to
my dissenting judgment. More so that
to a large extent, the facts are
common cause or not seriously disputed.
[47]
Essentially, our fundamental point of difference is, whether the
parties being in agreement that the impugned contract is invalid
for
its failure to comply with the peremptory statutory requirements of s
217
[37]
of the Constitution, SITA should be denied the opportunity to have
this illegal contract declared invalid simply because it adopted
the
route of a review based on legality and not through the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). Therefore
the crisp
legal question to be answered is whether it is legally permissible
for SITA to launch a legality attack when PAJA is
available.
[48]
These background facts are necessary to explain my judgment. SITA is
an organ of state; it has for almost 10 years been involved
with
GIJIMA in various business transactions for various government
departments. The relationship between SITA and GIJIMA was regulated

by a contract called ‘the 433 contract’. Based on this
‘433 contract’ GIJIMA was placed on ‘a preferred

list’ of suppliers. My colleague describes the relationship as
follows in paras 3 and 4 of his judgment.
Para
[3] ‘It is of some interest to set out the facts that gave rise
to the present dispute. The parties have concluded contracts
and
conducted business together on several projects for more than ten
years. SITA provides information technology, information
systems, and
related services (IT services) to government departments. It performs
this function by entering into agreements with
private service
providers, such as Gijima, which in turn provides IT services to the
government department. The way it works is
that government
departments needing IT services submit a business case and user
requirements to SITA, which then prepares a procurement
schedule for
the execution of the request bid, and a detailed costing for the
subsequent contract management.
Para
[4] SITA thereafter concludes a business agreement with the relevant
government department for IT services to be provided to
it by private
service providers. Armed with this agreement and following a
procurement process, SITA enters into a further agreement
for the
provision of IT services with a private service provider on the basis
of what the government department is willing to pay
for those
services.’
[49]
Since 2006, the parties have concluded numerous procurement
agreements based on the so-called ‘433 contracts’.

Pursuant to this, GIJIMA did business with various government
departments at both provincial or national levels. These included

Public Works; Agriculture; Economic Affairs; Safety and Liason;
Sport, Recreation, Arts and Culture; Welfare; Kwazulu-Natal Health

and the Office of the Premier, Limpopo. It appears that GIJIMA
enjoyed some monopoly of government work.
[50]
It is not disputed that the impugned contract was not the result of a
normal tender process. It was more of a convenient compromise
by SITA
to appease the disgruntled GIJIMA for the South African Police
Service (SAPS) contract which SITA terminated. This is how
this
occurred. SITA had concluded an agreement on 26 September 2006 with
GIJIMA in terms whereof GIJIMA would render certain services
to SAPS.
When SITA sought to have this contract terminated, GIJIMA launched
proceedings in the high court to stop SITA from terminating
the
contract. On 6 February 2016, SITA and GIJIMA settled the matter out
of court when essentially SITA offered GIJIMA another
contract as a
substitute for the SAPS contract. In terms of the settlement the
parties agreed ‘that Gijima shall be appointed
as DSS Service
provider to the department of Defence from 1 April 2012 to 31 July
2012 on SITA’s standard terms and conclusion.’
Based on
this settlement agreement, GIJIMA was appointed for the ‘provisioning
of hardware, maintenance and support for the
Department of Defence
without any tender. The rand value of this agreement is R11 329 130.
[51]
Self-evidently, this contract does not comply with the clear precepts
of s 217 nor the
Preferential Procurement Policy Framework Act 2000
nor SITA’s own supply chain management policy. In simple terms
there was no open tender. In the circumstances, the process
can
hardly be said to be transparent, equitable, fair, competitive or
cost effective.
Section 172(1)(
a
)
[38]
of the Constitution commands that such a contract be declared invalid
as being inconsistent with the Constitution.
[52]
As fate would have it, a dispute arose between the parties regarding
payment. As a result, on 30 May 2013, SITA gave notice
to GIJIMA of
its intention to terminate the contract. On 17 July 2013, GIJIMA
instituted arbitration proceedings against SITA.
SITA opposed the
claim on the basis that the contract was unconstitutional as it did
not comply with s 217 of the Constitution.
In other words, it
impugned the legality of the contract. On 20 March 2014, the
arbitrator ruled that based on the constitutional
attack, he had no
jurisdiction over the matter.
[53]
Hardly three months thereafter, on 6 May 2014, SITA issued the
present proceedings in the high court in terms whereof it sought
to
review and had this contract set aside as being invalid as it was not
compliant with s 217 of the Constitution. GIJIMA opposed
the
application. GIJIMA contended in the main that the application should
be dismissed as it should have been brought under PAJA
and not the
principle of legality. Paradoxically, this is notwithstanding the
fact that it conceded that the impugned contract
was not awarded in
terms of s 217 of the Constitution.
[54]
My colleague accepts GIJIMA’s submissions that SITA should have
proceeded by way of PAJA and not an attack based on legality.
He
holds the view that the appeal ought to be dismissed. In dismissing
the appeal, my colleague stated the following:
Para
44 ‘In summary, I hold that PAJA applies when an organ of state
seeks to set aside its own administrative decisions.
And when PAJA
does apply, litigants and the courts are not entitled to bypass its
provisions and rely directly on the constitutional
principle of
legality. But even if this was approached as a legality review, SITA
failed to place the facts before the court to
overcome the hurdle of
unreasonable delay in commencing proceedings against Gijima.’
He
then concludes as follows at para 38:
‘
In
my view, the proper place for the principle of legality in our law is
to act as a safety-net or a measure of last resort when
the law
allows no other avenues to challenge the unlawful exercise of public
power. It cannot be the first port of call or an alternative
path to
review, when PAJA applies.’
[55]
I do not agree with my colleague in his findings and conclusion.
Section 7(2) of the Constitution
[39]
states in peremptory terms that organs of state have a constitutional
obligation to respect, protect and fulfil our constitutional

obligations. Courts are a constituent part of the state. Like all
organs of state, they also have a constitutional obligation to
ensure
that constitutional obligations are respected and fulfilled. It would
be subversive of this constitutional obligation to
use the courts to
thwart a party or deny it the opportunity to assert, protect and
promote the principle of legality. I can think
of no reason in law,
logic or principle that can justify a court to deny SITA its right to
attack the constitutionality of a contract
which is admitted to be
unconstitutional simply because it opted for an attack based on the
principle of legality and not through
PAJA. For me that amounts to a
slavish adherence to formalism and compromising substance. Generally
the law is about justice. And
justice should not be deflected or
sacrificed on the alter of formalism. In the language of s 172 of the
Constitution such acts
are invalid as they are inconsistent with the
Constitution. Section 1(
c
)
[40]
of the Constitution asserts in unambiguous language the supremacy of
the Constitution and the rule of law as one of its foundational

values. Self-evidently, this is a constitutional imperative.
[56]
In turn, s 2
[41]
of the Constitution declares the Constitution to be the Supreme Law
of the Republic. It states in peremptory terms that any law
or
conduct inconsistent with it is invalid and, importantly, that the
obligations imposed on it must be fulfilled.
[57]
Our courts are the foremost and vigilant guardians of our
Constitution, its values and
mores
. Like all other organs of
state, they have an obligation to respect, protect, promote and
fulfil its obligations. As a result,
no court may countenance or
enforce conduct that is incongruent with the Constitution as it will
be acting in violation of the
Constitution – the supreme law.
This principle was enunciated in Kirkland as follows:
‘
Section
172(1)(
a
)
obliges every court when deciding a constitutional matter within its
powers to declare invalid any conduct that is inconsistent
with the
Constitution. The court has no choice’.
[58]
A question that needs to be answered in this appeal is whether it is
permissible, in the context of the court’s constitutional

obligations as set out in s 172(1) of the Constitution for a court to
countenance or legitimize a flagrant unconstitutional procurement

like the one in this case under the guise that SITA should have
proceeded by way of PAJA and not legality. Put simply, can SITA
be
denied the opportunity to vindicate s 217 and the principle of
legality by such procedural technicalities. Certainly not. PAJA
owes
its existence to the Constitution.
[59]
Faced with such an intractable problem, the Constitutional Court held
as follows in
Khumalo
:
[42]
‘
In
the previous section it was explained that the rule of law is a
founding value of the Constitution and that the state functionaries

are enjoined to uphold and protect it, inter alia, by seeking the
redress of their departments’ unlawful actions.
Because
of these fundamental commitments, a court should be slow to allow
procedural obstacles to prevent it from looking into a
challenge to
lawfulness of an exercise of public power.
’
(Own
emphasis).
[60]
SITA, as a public institution or organ of state has a constitutional
obligation, when confronted with such a flagrant violation
of s 217,
to take appropriate action. This obligation assumes greater
importance in the sphere of public procurement as public
resources
are implicated. This puts enormous responsibility on it to ensure
that public resources are used properly and prudently.
This Court
puts it more pointedly as follows in
Premier, Free State Province
& others
where it stated:
‘
the
province [SITA] was under a duty not to submit itself to an unlawful
contract and [was] entitled indeed obliged, to ignore the
delivery
contract and to resist’.
[43]
[61]
By parity of reasoning, it is antithetical to the supremacy of the
Constitution and the rule of law to compel SITA to comply
with an
invalid contract, solely because of a procedural technicality. Such
an approach would result in contracts that are patently
illegal or
inconsistent with the Constitution being allowed to stand. Needless
to say, this will undermine the constitutional principle
of legality.
And in the field of public procurement, it will create an opportunity
for unscrupulous tenderers and some corrupt
government officials to
bypass s 217 and embark on corrupt activities. Such conduct will
inevitably lead to a wastage of scarce
public resources. This
legitimate concern is articulated as follows in
Trencon
Construction v Industrial Development Corporation
2015 (5) SA 245
(CC) at para 1:
‘
In
our society, tendering plays a vital role in the delivery of goods
and services. Large sums of public money are poured into the
process
and government wields massive public power when choosing to award a
tender. It is for this reason that the Constitution
obliges organs of
state to ensure a procurement process is fair, equitable,
transparent, competitive and cost-effective. Where
a procurement
process is shown not to be so, courts have the power to intervene.’
[62]
The evidence here is that GIJIMA stood to benefit some R11 329 130
from this contract, where there was no open and competitive
process.
There is no evidence that it was fair, equitable or cost effective.
Section 217 aspires to ensure that whenever public
funds are
disbursed to procure services, there must be some proof that the
process is transparent, competitive and cost effective.
In other
words, the state must get value for money. Furthermore, by being open
and transparent, there is some assurance that the
process will be
fair and equitable as other competent bidders will have a fair
opportunity to put in competing bids. Needless to
say that such a
process is aimed at dealing a deadly blow to the scourge of fraud,
corruption and bribery that are so ubiquitous
in the field of public
procurement. Sadly, over the years corruption has become synonymous
with public procurement in this country.
With the passage of time, it
has become a malignant cancer which is fast eroding our social and
moral fabric. The deleterious effect
of a failure to abide by s 217
are admirably set out in
AllPay
Consolidated
[44]
as follows:
‘
As
Corruption Watch explained, with reference to international authority
and experience, deviation from fair process may themselves
all too
often be symptoms of corruption or malfeasance in the process. In
other words, an unfair process may betoken a deliberately
skewed
process. Hence insistence on compliance with formalities has a
threefold purpose: (a) it ensures fairness to participants
in the bid
process; (b) it enhances the likelihood of efficiency and optimality
in the outcome; and (c) it serves as a guardian
against a process
skewed by corrupt influences.’
Furthermore,
the Constitutional Court stated the following to about insidious
effect of corruption in
Glenister
.
[45]
‘
There
can be no gainsaying that corruption threatens to fell at the knees
virtually everything we hold dear and precious in our
hard-won
constitutional order. It blatently undermines the democratic ethos,
the institutions democracy, the rule of law and the
fundamental
values of our nascent constitutional project. It fuels
maladministration and public fraudulence and imperils the capacity
of
the state to fulfil its obligations to respect, protect, promote and
fulfil all the rights enshrined in the Bill of Rights.
When
corruption and organized crime flourish, sustainable development and
economic growth are stunted. And in turn, the stability
and security
of society is put at risk.’
[63]
It is correct as my colleague states in his judgment that there is no
clarity or unanimity on whether organs of state are obliged
to use
PAJA and not invoke the principle of legality when they seek to
review their own decisions. This question was left open
in
Kwa
Sani Municipality v Underberg/Himeville Community Watch Association
,
MEC
for Health, Eastern Cape & another v Kirkland Investments (Pty)
Ltd
and
Municipal
Manager:
Qaukeni
Local Municipality & another v FV General Trading CC.
As my colleague remarked aptly, this is the time for this question to
be answered clearly.
[64]
In this case it is common cause that there was no open tender when
this contract was awarded to GIJIMA. This is a clear violation
of s
217. Section 217 (1)(
a
)
declares such a contract unconstitutional and invalid to the extent
of its inconsistency with Constitution. SITA had instituted

proceedings to have its decision reviewed and set aside as being
unconstitutional. All the necessary averments were traversed in
the
affidavits by the respective parties. The question of the legality of
this contract was raised clearly and unequivocally. However,
instead
of PAJA it opted to proceed by way of an attack based on the
principle of legality.
[65]
To my mind, this step does not violate the principle of subsidiarity
as there is no frontal attack against the legality of
a procurement
process. In any event the principle of subsidiarity is not
inflexible. There will be cases like this one where it
is not
applicable as set out in
My
Vote Counts v Speaker
2016 (1) SA 132
(CC) at para 182. My colleague would dismiss SITA’s
appeal based on its failure to use PAJA. I think he is wrong. A
failure
to bring the application under PAJA can never be a good
reason to deny SITA the relief it seeks. I am fortified in my view by
what
this court stated
in
Municipal Manager v FV General Trading
[46]
where it held:
‘
While
I accept that the award of a municipal service amounts to
administrative action that may be reviewed by an interested third

party under PAJA, it may not be necessary to proceed by review when a
municipality seeks to avoid a contract it has concluded in
respect of
which no other party has an interest. But it is unnecessary to reach
any final conclusion in that regard. If the second
respondent’s
procurement of municipal services through its contract with the
respondent was unlawful, it is invalid and this
is a case in which
the appellants were duty bound not to submit to an unlawful contract
but to oppose the respondent’s attempt
to enforce it. This it
did by way of its opposition to the main application and by seeking a
declaration of unlawfulness in the
counter-application. In doing so
it raised the question of the legality of the contract fairly and
squarely, just as it would have
done in a formal review. In these
circumstances, substance must triumph over form. And while my
observations should not be construed
as a finding that a review of
the award of the contract to the respondent could not have been
brought by an interested party, the
appellants’ failure to
bring formal review proceedings under PAJA is no reason to deny them
relief.’
[66]
It is common cause that SITA is an organ of state which performs
public functions in terms of national legislation. As its
functions
have a public character, it is subject to the principle of legality,
which requires it to perform its functions within
the strict
parameters of the law. The parties are agreed that the impugned
contract was not done in accordance with the prescripts
of s 217 of
the Constitution. As an organ of state, SITA has a constitutional
obligation to have this illegal contract reviewed
and set aside. SITA
being an organ of state has no choice. It is not only entitled but
obliged by the Constitution to approach
a court to have its own
unconstitutional act or decision declared invalid and set aside. See
Pepcor
Retirement Fund & another v Financial Services Board &another
2003 (6) SA 38
(SCA).
[67]
There is some support for the view that PAJA does not purport to
exhaust the possibility of reviews based on the exercise of
public
power. In other words it is not the be all and end all. As a result
direct constitutional review of the exercise of public
power by an
organ of state remains open on the basis of amongst others, the
principle of legality in matters that do not strictly
qualify as
administrative action under Constitution or PAJA itself.
[47]
The Constitutional Court gave a clear indication in
Bato
Star Fishing
[48]
that there are administrative actions that do not fall under PAJA. It
said at para 25:
‘
The
provisions of s 6 divulge a clear intention to codify grounds of
review of administrative action as defined in PAJA. The cause
of
action for the judicial of review of administrative action now
ordinarily arises from PAJA, not from the common law as in the
past.
And the authority of PAJA to ground such causes of action rests
squarely on the Constitution.
It
is not necessary to consider here causes of action for judicial
review of administrative action that do not fall within the scope
of
PAJA
.
’
(My
own emphasis).
[68]
Essentially, judicial review under PAJA is an important remedy for
individuals aggrieved by bad decisions made by public administrators.

The clear language of s 6(1) of PAJA seems to suggest that only
persons who are aggrieved by a decision by an administrator
may
institute review proceedings against such an administrator. Section
6(2) gives a court or tribunal the power to judicially
review an
impugned administrative action taken by an administrator. To my mind,
the distinction which s 6 draws between who may
take a matter on
review under PAJA and against whom, is very crucial. It is not
fortuitous that s 6 does not refer to an instance
where an organ of
state initiates review proceedings, particularly where legality is
involved. To my mind, a direct attack by SITA
based on the principle
of legality was the proper route to take in this case. I do not
understand the passage in Minister of Health
[49]
to the effect that a litigant cannot avoid the provisions of PAJA by
going behind it, and seeking to rely on s 33(1) of the Constitution

or the common law to mean that a state organ which wishes to bring a
constitutional challenge against its own decision can only
go by way
of PAJA and never through the principle of legality. It is true that
PAJA is the national legislation that was passed
to give effect to
the rights in s 33,
[50]
which clearly contemplates private citizens (persons). This must be
so as s 33(2) refers expressly to everyone whose rights have
been
adversely affected by an administrative action. We know that only an
organ of state can take an administrative action.
[69]
My colleague expressed some disquiet about what he described as
unreasonable delay before SITA instituted these review proceedings.

This he does by counting from the day the agreement was concluded.
His calculations add to 22 months. In contrast SITA stated that
it
became aware of the unconstitutionality of the agreement during its
preparations for the arbitration hearing. It raised
unconstitutionality
as a defence at the arbitration hearings. It
instituted the review proceedings within three months after the
arbitrator declined
to hear the matter. This cannot be described as
unreasonable delay. As a result, there was no need for an
explanation. In any event,
unlike PAJA, an attack based on the
principle of legality is not subject to time limits except that it
must be done within a reasonable
time. What a reasonable time is can
only be decided on the facts of each case. This requires the
presiding judge to exercise a
value judgment. On SITA’S
submissions, there was no delay. In any event, I think that it would
be unfair to put up such procedural
technicalities as hurdles to deny
SITA the right to vindicate legality.
[70]
On the facts of this case, I have no doubt that it is in the public
interest to allow SITA to vindicate s 217 and the principle
of
legality and not to thwart it by procedural technicalities. This will
conduce to proper and accountable use of state resources
for the
benefit of the public as it offers the organs of state which find
themselves in similar circumstances like SITA, an effective
mechanism
to deal with corruption, inefficiency and wasteful expenditure.
[71]
In the result, I would uphold the appeal with costs including the
costs of two counsel.
______________
L
O Bosielo
Judge
of Appeal
APPEARANCES
For
Appellants:
K Tsatsawane (and C Marule)
Instructed
by:
Gildenhuys Malatji Inc,
Pretoria
Honey
Attorneys, Bloemfontein
For
Respondent:      A Subel SC (and S Bunn)
Instructed by:
Baker & McKenzie,
Johannesburg
Symington
& De Kok, Bloemfontein
[1]
Section 1 of PAJA
defines a ‘decision’ as –
‘
any
decision of an administrative nature made . . . under an empowering
provision . . . .’
[2]
Steenkamp NO v
Provincial Tender Board, Eastern Cape
[2006]
ZACC 16
;
2007 (3) SA 121
(CC) para 90.
[3]
MEC
for Health, Eastern Cape & another v Kirland Investments (Pty)
Ltd t/a Eye & Lazar Institute
[2014]
ZACC 6
;
2014 (3) SA 481
(CC)
para
82.
[4]
Grey’s
Marine Hout Bay (Pty) Ltd & others v Minister of Public Works &
others
[2005]
ZASCA 43
;
2005 (6) SA 313
(SCA).
[5]
Ibid para 23.
[6]
Ibid para 23.
[7]
See Generally: C
Hoexter
Administrative
Law in South Africa
2 ed (2012) at 227-234.
[8]
Telkom
SA Limited v Merid Trading (Pty) Ltd & others
;
Bihati
Solutions
(
Pty
)
Ltd
v Telkom SA Limited
&
o
thers
(27974/2010,
25945/2010) [2011] ZAGPPHC 1 (7 January 2011).
[9]
‘
Procedure
for judicial review
(1) Any proceedings for
judicial review in terms of section 6(1) must be instituted without
unreasonable delay and not later than
180 days after the date-
(a)
subject
to subsection (2)
(c)
,
on which any proceedings instituted in terms of internal remedies as
contemplated in subsection (2)
(a)
have been concluded; or
(b)
where
no such remedies exist, on which the person concerned was informed
of the administrative action, became aware of the action
and the
reasons for it or might reasonably have been expected to have become
aware of the action and the reasons.’
[10]
Wolgroeiers
Afslaers (Edms) (Bpk) v Munisipaliteit van Kaapstad
1978
(1) SA 13 (A).
[11]
Telkom
(fn
8 above) para 10.
[12]
Khumalo &
another v Member of the Executive Council for Education:
KwaZulu-Natal
[2013]
ZACC 49
;
2014 (5) SA 579
(CC) para 51.
[13]
Tasima (Pty)
Ltd v Department of Transport & others
[2013] ZAGPPHC 69;
2013
(4) SA 134 (GNP)
para
30.
[14]
Municipal
Manager: Qaukeni Local Municipality & another v FV General
Trading CC
[2009] ZASCA 66; 2010 (1) SA 356 (SCA).
[15]
Ibid para 26.
[16]
MEC For Health,
Eastern Cape & another v Kirland Investments (Pty) Ltd t/a Eye &
Lazer Institute
2014
(3) SA 481
(CC) para 83.
[17]
Ibid
para
83.
[18]
Ibid para 70.
[19]
Ibid para 82 at fn
43.
[20]
Kwa Sani
Municipality v Underberg/Himeville Community Watch Association &
another
[2015] ZASCA 24
;
[2015] 2 All SA 657
(SCA) para 32-34.
[21]
Fn
10 above. See also
Khumalo
& another v Member of the Executive Council for Education:
KwaZulu-Natal
[2013]
ZACC 49; 2014 (5) SA 579 (CC) para 49.
[22]
Lawrence Baxter
Administrative
Law
(1989)
Juta p 715.
[23]
‘
Just
administrative action
(1)
Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2)
Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons.
(3)
National legislation must be enacted to give effect to these rights,
. . . .’
[24]
Minister of
Health & another NO v New Clicks South Africa (Pty) Ltd &
others (Treatment Action Campaign & another
as Amici Curiae)
[2005]
ZACC 14
;
2006 (2) SA 311
CC.
[25]
Ibid paras 95 and
143.
[26]
C Hoexter ‘The
Constitutionalization and Codification of Judicial Review in South
Africa’ in C Forsyth et al
Effective
Judicial Review
(2010) at 56.
[27]
See C Hoexter
(above fn 7) generally at 133-137.
[28]
Fedsure Life
Assurance Ltd & others v Greater Johannesburg Transitional
Metropolitan Council & others
[1998] ZACC 17
;
1999
(1) SA 374
(CC) paras 58 and 59.
[29]
T Bingham
The
Rule of Law
(2010)
at 60.
[30]
See Hoexter (above
fn 7).
[31]
See Hoexter (above
fn 27) at p 59.
[32]
See fn 23 above.
[33]
National
Director of Public Prosecutions & others v Freedom Under Law
2014
(4) SA 298
(SCA) para 28.
[34]
Cf Khumalo &
another v Member of the Executive Council for Education:
KwaZulu-Natal
2014
(3) SA BCLR 333 (CC) paras 71-73. See also L Boonzaier ‘Good
Reviews, Bad Actors’ (2017) 7
CCR
(forthcoming) at 10-11.
[35]
Ibid.
[36]
Ibid para 52.
[37]
Section 217 of the
Constitution provides:
Procurement
– (1) When an organ of state in the national, provincial or
local sphere of government, or any other institution
identified in
national legislation, contracts for goods or services, it must do so
in accordance with a system which is fair,
equitable, transparent,
competitive and cost-effective.
(2)
Subsection (1) does not prevent the organs of state or institutions
referred to in that subsection from implementing a procurement

policy providing for –
(
a
)
categories of preference in the allocation of contracts; and
(
b
)
the protection or advancement of persons, or categories of persons,
disadvantaged by unfair discrimination
(3)
National legislation must prescribe a framework within which the
policy referred to in subsection (2) must be implemented.
[38]
Section 172(1) of
the Constitution provides:
‘
Powers
of courts in constitutional matters –
(1)
When deciding a constitutional matter within its power, a court -
(
a
)
must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency;
and
(
b
)
may make any order that is just and equitable, including –
(i)
an order limiting the retrospective effect of the declaration of
invalidity; and
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority
to correct the
defect.’
[39]
Section 7(2) of
the Constitution provides:
‘
The
state must respect, protect, promote and fulfil the rights in the
Bill of rights.’
[40]
Section 1 of the
Constitution provides:
‘
1.
The Republic of South Africa is one, sovereign, democratic state
founded on the following values:
(a)
Human dignity, the
achievement of equality and the advancement of human rights and
freedoms.
(b)
Non-racialism and
non-sexism.
(c)
Supremacy of the
constitution and the rule of law.
(d)
Universal adult
suffrage, a national common voters roll, regular elections and a
multi-party system of democratic government,
to ensure
accountability, responsiveness and openness.’
[41]
Section 2 of the
Constitution provides:
[42]
Khumalo &
another v MEC, Education: KwaZulu-Natal
2014 (3) BCLR (CC).
[43]
Premier, Free
State & others v Firechem Free State (Pty) Ltd
2000 (4) SA 413
(SCA);
[2000] 3 All SA 247
para 36.
[44]
AllPay
Consolidated v Chief Executive Officer, SASSA
2014
(1) SA 604
(CC) para 27.
[45]
Glenister v
President of the Republic of South Africa & others
2011
(3) SA 347
(CC); 2 All 16;
2007 (3) BCLR 300
at para 33-35.
[46]
2010 (1) SA 356
(SCA) para 26.
[47]
The
Promotion of
Administrative Justice Act Bench
book – the bench book –
Ian
Currie and Jonathan Klaasen.
[48]
Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
para 25.
[49]
Minister of
Health v New Clicks SA (Pty) Ltd & others
2006 (2) SA 311
(CC) paras 95-96.
[50]
Just
administrative action – (1) Everyone has the right to
administrative action that is lawful, reasonable and procedurally

fair.
(2)
Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons.
(3)
National legislation must be enacted to give effect to these rights,
and must –
(a)
provide for the
review of administrative action by a court or, where appropriate, an
independent and impartial tribunal;
(b)
impose a duty on
the state to give effect to the rights in subsections (1) and (2);
and
(c)
promote an
efficient administration.