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[2020] ZAGPJHC 421
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Special Investigating Unit and Another v Vision View Productions CC (2019/20801) [2020] ZAGPJHC 421 (19 June 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2019/20801
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
NO
In
the matter between:
SPECIAL
INVESTIGATING
UNIT
First Appellant
south
african broadcasting corporation
soc
limited
Second Appellant
and
vision
view productions
cc
Respondent
JUDGMENT
THE
COURT
Introduction
[1]
This appeal concerns
the remedy available in judicial review proceedings once a Court, in
terms of s 172(1)(
a
)
of the Constitution, declares a contract invalid due to procurement
irregularities in its award and conclusion. 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 an equitable, including –
(i)
an order
limiting the retrospective effect if the declaration of invalidity;
and
(ii)
an order
suspending the declaration of invalidity for any period or on any
conditions, to allow the competent authority to correct
the defect.’
[2]
In this matter the
respondent was appointed to render services for the second appellant
(the SABC) regarding the construction of
a multipurpose set and
studio (the project) at an initial cost of R39 380 000.00
(excluding VAT). A written agreement
(the contract) was concluded
between the SABC and the respondent on 18 September 2015.
However, it is common cause that the
respondent was appointed to
commence work under the contract prior to this date. The parties also
signed an addendum to the contract
in August 2016 the effect of which
was to reschedule the payments due to the respondent, to extend the
services to be provided.
The contract price was also increased by
some R14.5 million.
[3]
The project was carried out over a period
of time. According to the respondent, by 28 July 2017, it had
delivered 80% of its performance.
However, it is common cause that
the SABC did not stick to the payment schedule agreed under the
addendum. The respondent continued
to perform under the contract. By
the time the matter was heard by the Court a quo, it had performed
between 90% and 98% of the
services due by it under the contract.
[4]
As
we discuss in more detail below, on 1 September 2017, the President
of the Republic of South Africa published a Proclamation
(the 2017
Proclamation) under the Special Investigating Units and Special
Tribunals Act,
[1]
referring
various matters involving the affairs of the SABC for investigation
and action by the Special Investigation Unit, the
first appellant
(the SIU). The contract with the respondent was one of the matters
expressly referred to in the 2017 Proclamation.
[5]
Following
the SIU’s investigations under the 2017 Proclamation it,
together with the SABC, launched a review application in
the Court a
quo. They sought an order, inter alia, reviewing and setting aside
the contract (including the addendum) on the basis
that it was
invalid by reason of the SABC’s failure to comply with inter
alia, s 217 of the Constitution,
[2]
and the statutory provisions and empowering prescripts regulating the
procurement of goods and services by the SABC.
[3]
Following
the Constitutional Court’s decision in
Gijima
,
[4]
the review was based on the principle of legality. The review
application was instituted on 23 April 2018.
[6]
Although the
respondent initially opposed the application before the Court a quo
on the basis that the appellants had not provided
evidence of the
SABC’s flouting of procurement procedures in awarding the
contract, by the time the matter was heard by the
Court a quo the
respondent accepted that the contract was awarded irregularly and was
invalid. In line with this, the Court a quo
found that the conclusion
of the impugned contract ‘
breached
SABC’s procurement policies, and the delegated authority
framework, and was a deviation from the group executive
committee's
terms of reference, as well as other preferential procurement
policies and relevant legislation.
’
[7]
The court a
quo granted the application, and made the following order:
‘
1.
The delay in launching the application, as well as the late filing of
the applicant’s affidavits
(and) heads of argument is condoned.
2.
The decision of 31 July 2015 to appoint the respondent is invalid and
is accordingly set
aside.
3.
The contract entered on 18 September 2015, as well as the addendum
thereof is invalid and
is accordingly reviewed and set aside.
4.
The order in
paragraph 3 (reviewing and setting aside the contract) shall not
divest the Respondent of its rights flowing from the
due performance
of the contract.
5.
The order in
paragraph 3 shall not apply to Clause 17 (the dispute resolution
clause) of the contract and/or addendum.
6.
The Applicants
and the Respondent are to embark on or continue with the dispute
resolution process to determine:
6.1.
the disputed
performance;
6.2.
the payment
due to the Respondent.’
[8]
In declaring the
contract invalid the Court a quo acted under s 172(1)(
a
)
of the Constitution. The orders under paragraphs 4-6 (the remedial
orders) were made by the Court a quo in terms of its discretion
under
s 172(1)(
b
)
of the Constitution to make any order that is just and equitable.
There is no quarrel in this appeal with the Court a quo’s
declaration of invalidity of the respondent’s appointment and
the contract. The bone of contention between the parties lies
in the
Court a quo’s exercise of its equitable discretion and thus
with the remedial orders in paragraphs 4-6. The appellants
invite
this Court to set aside this relief, with the effect that the
contract would be void
ab
initio
,
and the respondent would not be entitled to pursue any rights under
it. They accept that the respondent performed under the impugned
contract without being fully recompensed by the SABC. However, they
submitted that the proper way to deal with this is via the
respondent
pursuing its common law remedies under unjustified enrichment, and
not through what the appellants submit was the unlawful
‘resurrection’ of the contract by the Court a quo in the
exercise of its discretion under s 172(1)(
b
).
[9]
This,
then, is the issue at the heart of this appeal. Before considering
the issue, it is necessary first to deal with two preliminary
matters. First, although the respondent did not cross-appeal the
Court a quo’s condonation of the delay in the appellants’
institution of the review proceedings, it continued to make something
of the fact that the contract had been entered into in 2015,
and the
review instituted only in April 2018. This matter need not detain us
for long. Over and above the absence of a cross-appeal
on this
matter, the majority of the Constitutional Court in
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
[5]
laid down how cases of this nature should be dealt with. Even
in circumstances where a public entity unreasonably delays
in
applying to review and set aside its own contract, and even in the
absence of cogent reasons to overlook the delay, a Court
is
nonetheless obliged to declare invalid and to set aside a clearly and
indisputably unlawful contract.
[6]
In the present case, it is undisputed that the contract was
unlawfully concluded. Thus, even assuming that there was a delay of
this nature, it would not provide grounds for interfering in the
Court a quo’s declaration of invalidity and setting aside
of
the contract. The delay was, in any event, not protracted. The 2017
proclamation was issued in September 2017; a myriad of interviews
were undertaken by the SIU very soon thereafter, and the review was
launched in April 2018. In the circumstances of this case,
such delay
is not unreasonable.
[10]
The second preliminary matter requires a
little more discussion. It involves the nature of a Court’s
discretion under s 172(1)(
b
),
and the powers of a court on appeal in this regard.
The
nature of the Court a quo’s discretion and the power of this
Court on appeal
[11]
The respondent
submitted that s 172(1)(
b
)
of the Constitution vested in the Court a quo a discretion, in the
strict sense, to determine a just and equitable remedy. As
such, the
respondent says that as a Court of appeal, we are limited in the
extent to which we may interfere with the Court a quo’s
findings as regards a just and equitable remedy. It is only if we are
satisfied that the Court a quo did not exercise its discretion
judicially that we may interfere with the remedial measures imposed.
The respondent contended that in the absence of such a finding,
we
are not permitted to substitute alternative remedial measures that we
might consider to be to be just and equitable. It argued
further that
the appellant’s grounds of appeal were not directed at whether
the Court a quo exercised its discretion judicially,
but rather at
the incorrectness of the Court a quo’s remedial measures. On
this basis, the respondent invited us to dismiss
the appeal at the
outset.
[12]
The
word ‘discretion’ is capable of different meanings when
applied to the powers of a Court.
[7]
In the wide sense, it may mean no more than “
the
action or discerning or judging; judgment; discrimination
”.
[8]
This type of discretion is sometimes also referred to as a
“
discretion
loosely so called
”.
[9]
It means no more than a mandate to have regard to a number of
disparate and incommensurable features in arriving at a conclusion.
On the other hand, a discretion in the strict sense,
[10]
is one that involves a choice between different but equally
admissible alternatives.
[11]
In other words, it gives the Court freedom to choose between a range
of legal alternatives.
[12]
A
discretion in the strict sense gives a Court an election of which
option it will apply and any option can never be said to be
wrong as
each is entirely permissible.
[13]
This explains why the normal power of Courts on appeal does not apply
to such a discretion.
[13]
The
Constitutional Court summarised the legal position as follows in
Giddy
:
[14]
‘
The
ordinary approach on appeal to the exercise of a discretion in the
strict sense is that the appellate court will not consider
whether
the decision reached by the court at first instance was correct, but
will only interfere in limited circumstances; for
example, if it is
shown that the discretion has not been exercised judicially or has
been exercised based on a wrong appreciation
of the facts or wrong
principles of law….’
[14]
The Constitutional Court added, in
Notyawa
v
Makana
Municipality
, that:
‘
If
none of these two grounds is established, it cannot be said that the
exercise of the discretion was not judicial. In those
circumstances, the claim for interference on appeal must fail.’
[15]
[15]
However,
where the discretion is one in the broad or loose sense, the appeal
Court’s powers are not so circumscribed. In that
case, there is
no reason why the appellate Court should not exercise its own
discretion by deciding the matter on its own view
of the merits.
[16]
[16]
The
Constitutional Court has recognised that there will be occasions
where a decision made by another Court, which does not involve
the
exercise of a discretion in the strict sense, will also only be
interfered with in narrow circumstances on appeal. Thus, even
if a
court’s discretionary power is not capable of a single
characterisation for purposes of determining the correct approach
on
appeal, the appeal Court may, for other reasons, have cause to
interfere in narrow circumstances with the Court a quo’s
decision.
[17]
An example is
the inherent power of the Superior Courts under s 173 of the
Constitution to protect and regulate their own
process.
[18]
[17]
The
Constitutional Court has recognised that a Court considering a
constitutional matter has a wide remedial power under s 172(1)(
b
).
The power is so wide that it is bounded only by considerations of
justice and equity.
[19]
In
relation to this statement of the legal position by the apex Court,
Counsel for the respondent submitted that this was an indication
that
the discretion bestowed on a Court by the section is one in the
strict sense, in that it permits a Court of first instance
to
consider a range of equally permissible legal alternatives as to what
may be just and equitable in the case before it. This
shows,
submitted Counsel, that an appellate Court may only interfere in the
exercise of the remedial power in narrow circumstances.
[18]
There
are indications in the jurisprudence of the Constitutional Court
which lend support to the respondent’s submission.
The recent
decision of
Notyawa
[20]
involved a decision by a High Court to refuse to exercise its
discretion in favour of condoning the applicant’s delay
in
instituting review proceedings. In its judgment on an application for
leave to appeal against this decision, the Constitutional
Court
stated that:
‘…
the
scope of the present inquiry depends on the nature of the decision
taken by the High Court. It will be recalled that the
High
Court has declined to condone Mr Notyawa’s delay in instituting
the review application and effectively refused to adjudicate
the
merits of his application.
In
doing so the High Court was unquestionably exercising a narrow or
strict discretion which may be interfered with on appeal only
if
specific grounds have been established….
’
(emphasis added).
[21]
[19]
It
is significant that a Court’s power to condone or overlook
delays in the institution of review proceedings, and its remedial
powers under s 172(1)(
b
)
share a common denominator, viz. the interests of justice. Under
s 9(2) of the Promotion of Administrative Justice Act
(PAJA),
[22]
a Court may grant
an application condoning a delay exceeding 180 days where ‘
the
interests
of justice
so require
’
(emphasis added). In the context of legality reviews, the
Constitutional Court in
Buffalo
City
Metropolitan
Municipality v Asla Construction
confirmed that a similar consideration applies to the Court’s
power to overlook an unreasonable delay.
[23]
It held in this regard that: ‘…
the
question is first one of reasonableness, and then (if the delay is
found to be unreasonable)
whether
the interests of justice require an overlooking of that unreasonable
delay
.
’
[24]
(Emphasis added).
[20]
The
judgment of the Constitutional Court in
Notyawa
does not go into the question of the nature of the discretion in any
detail. The Court seems to have accepted as self-evident that
a power
to make an order in the interests of justice confers a discretion in
the strict sense. A similar conclusion was reached
by the
Constitutional Court in its judgment in
Mwelase
v Director-General for the Department of Rural Development and Land
Reform
.
[25]
In that matter the Court was concerned with the powers of the Land
Claims Court (LCC) under the Land Reform (Labour Tenants) Act.
[26]
The LCC had ordered the appointment of a special master. The Supreme
Court of Appeal had set aside this part of its order on appeal.
The
LCC did not have express power to appoint a special master, but the
Constitutional Court noted that the LCC enjoyed wide remedial
powers
under s 172(1)(
b
),
as well as power to regulate its own process under s 173 of the
Constitution. The Court found that:
‘
In
voiding the appointment of the special master, the majority of the
Supreme Court of Appeal gave no express consideration to the
fact
that the Land Claims Court was exercising not a weak power, but a
powerful discretion. This is what this Court has recognised
as “
a
discretion in the true sense”
.
What is more, the discretion here was being exercised by a specialist
court in relation to its assessment of its own capacity
and expertise
to ensure an effective remedy within a field the statute specially
entrusts to it.’
[27]
(Emphasis added).
[21]
In
Trencon
,
[28]
the Constitutional Court found that the power of a Court under s 8(1)
of PAJA to award any order that is just and equitable,
including, but
not limited to the listed remedies, conferred a discretion in the
strict or true sense, limiting the scope of an
appellate Court’s
powers.
[29]
[22]
In
Gijima
,
the Constitutional Court did not expressly consider the issue. It
applied its own discretion in determining what would be a just
and
equitable remedy, and to the question of delay. In the circumstances
of that case this approach was justified. The Courts below
had
applied PAJA to the review, and had non-suited the applicant by
refusing to condone the delay in instituting review proceedings.
The
Court held that PAJA did not apply, and that the proper legal basis
for the review was legality under the Constitution. It
follows from
the lower courts’ incorrect application of a legal principle
that the Constitutional Court on appeal was permitted
to exercise its
own discretion under s 172(1)(
b
).
Neither the High Court nor the Supreme Court of Appeal considered the
question of remedy under that section.
[23]
In
Buffalo
City
, the Constitutional Court adopted
a similar approach on appeal. In this case, the High Court had upheld
the review, and
set
aside the contract. The Constitutional Court departed from this by
preserving the contract insofar as the respondent’s
accrued
rights were concerned. However, in doing so, the Constitutional Court
did not find that the High Court had failed to exercise
its
discretion judicially, as would have been required of it had the
discretion been one in the strict sense.
The
Court did not give consideration to the nature of the High Court’s
discretionary power, or expand on the reasons for its
interference on
appeal.
[24]
Nonetheless,
the weight of the authorities discussed above support the
respondent’s submission that in granting the remedial
relief in
its order, the High Court was exercising a discretion in the strict
or true sense. Section 172(1)(
b
)
is a wide power and clearly envisages that, in its exercise, courts
will exercise a value judgment based on the facts before them.
The
question, then, is not whether we, as an appeal Court, would have
exercised that discretion differently. We cannot simply impose
on the
parties remedies that we regard to be more appropriate. We may only
grant alternative remedial remedies if we are satisfied
that those
ordered by the Court a quo are at odds with the law,
[30]
or were based on a wrong appreciation of the facts.
[25]
The respondent took this issue further by
submitting that as the appellant had based all of its grounds of
review on the Court a
quo having ‘erred’, the appellant
had not laid a proper basis an appeal against the discretionary
remedial orders granted.
This further submission has no merit. We
ought to be concerned with the substance of the appellants’
complaints in the appeal,
and not the language used.
[26]
The
appellants place the exercise of the discretion under s 172(1)(
b
)
centre-stage in its appeal. Among other things, the appellant
contends in its grounds of appeal that the Court a quo did not apply
the default rule when it set aside the contract, but preserved the
respondent’s rights under it. It points out the
conflict
between the Court a quo’s judgment and order and the
Constitutional Court’s orders in
Gigima
[31]
and
Buffalo
City
[32]
and the judgment and order of Sutherland J in this Division in
Mining
Qualifications Authority v IFU Training Institute (Pty) Lt
d,
[33]
where Sutherland J declared the contract invalid, but referred the
issue of the reasonable costs incurred in the project to arbitration,
thus excluding any claim for profit, in accordance with the finding
in
Gijima
.
These are all complaints that inherently involve the question of
whether the Court a quo applied wrong principles of law, or acted
on
a wrong appreciation of the facts. It follows that we must proceed to
consider the substance of the appeal, bearing in mind
the limited
bases upon which we may interfere with the Court a quo’s
orders.
The
SABC and the 2017 Proclamation
[27]
The SABC is a state-owned company and the
national broadcaster. It is a public entity in terms of s 1 read
with Schedule 2
of the
Public
Finance Management Act 1 of 1999 (the PFMA),
and
is enjoined to discharge its duties in terms of the applicable laws
relating to the procurement of goods and services. The PFMA
was
promulgated to give effect to the provisions of s 217 of the
Constitution, which requires public entities, when contracting
for
goods or services, to do so in a manner that is fair, equitable,
transparent, competitive and cost-effective. An open competitive
bidding process is crucial to giving effect to the constitutional
mandate set out in s 217 for the procurement of goods and services
by
public entities like the SABC. It is reliant on the ‘public
purse’ for the procurement of goods and services and
thus is
bound to comply with all necessary processes when procuring same.
[28]
As indicated earlier,
the review application was brought not only by the SABC, but also by
the first appellant, the SIU, which was
established by the President
of the Republic of South Africa in terms of Proclamation No. R118 of
31 July 2001.
[29]
The SIU was
mandated, in terms of the 2017 Proclamation to investigate certain
allegations relating to the affairs of the SABC and
to institute
civil proceedings emanating from that investigation. The 2017
Proclamation empowered the SIU to investigate allegations
regarding
the financial losses that the SABC had suffered and which may be
recovered. The SIU was mandated to recover ‘
any
losses suffered by the SABC or the State, in relation to the …
matters in the Schedules
’.
[30]
The
Schedules provided for investigations into maladministration in the
affairs of the SABC.
[34]
The
SIU was empowered to investigate, inter alia:
a.
serious
maladministration in connection with the affairs of SABC;
b.
improper or
unlawful conduct by board members, officials or employees of the
SABC;
c.
unlawful
appropriation of expenditure or expenditure of public money or
property;
d.
unlawful
irregular or unapproved acquisitive transactions, measures or
practices having a bearing on state property;
e.
intentional
or negligent loss of public money or damage to public property;
f.
other offences
referred to in the
Prevention and Combating of Corrupt Activities Act
12 of 2004
.
g.
unlawful or
improper conduct by any person which may have caused serious harm to
the interests of the public or any category thereof.
[31]
Significantly
for the present matter, the 2017 Proclamation provided for
investigations relating to the procurement or contracting
for goods
or services on behalf of the SABC from a number of entities
including, specifically, the respondent, and payments made
in respect
thereof, in a manner that was—
(a)
not fair,
competitive, transparent, equitable, cost-effective;
(b)
contrary to
applicable—
(i)
legislation;
(ii)
manuals,
guidelines, practice notes, circulars or instructions issued by the
National Treasury; or
(iii)
manuals,
policies, procedures, prescripts, instructions or practices of, or
applicable to the SABC,
and
any related unauthorised or irregular or fruitless and wasteful
expenditure incurred by the SABC or the State.
[35]
[32]
Following its
investigation under the 2017 Proclamation, the SIU, together with the
SABC, instituted the review proceedings. They
brought the application
in their own interests, as well as in the public interest in terms of
s 38 of the Constitution. In
the founding affidavit the
appellants submitted that the conclusion of the contract and the
appointment of the respondent was irregular
and unlawful in that it
was effected in contravention of s 217 of the Constitution, read
with the PFMA, Treasury Regulations,
as well as several empowering
prescripts regulating the governance of the SABC. The appellants
sought an order reviewing and setting
aside the appointment of the
respondent and the contract.
[33]
The SIU
investigation established that the contract had been awarded in the
circumstances set out below.
The
award of the contract
[34]
Prior to the
involvement of the respondent in the project, on 13 June 2013, the
Henley TV facilities, a business unit of the technology
division of
the SABC, submitted a business case requesting budget approval for
the upgrade of the studio equipment in the Henley
studios 1 and 2. As
this was a capital expenditure (CapEx) project, approval was required
from the Finance Investment Procurement
and Technology Committee
(FIPT), a subcommittee of the SABC Board. The Board resolved, on 26
July 2013, to approve the CapEx of
R98 743 673.00 to
migrate and upgrade Henley studios 1 and 2 from an analogue facility
to a digital facility.
[35]
The SABC then
embarked upon a competitive bidding process for tenders to be
submitted for the upgrades. Eleven preferred bidders
were
recommended. Despite this, in December 2014, Mr Mfadi Mpuru (Mpuru),
the founder and member of the respondent (who was not
one of the
bidders) was invited by Mr Hlaudi Motsoeneng (Motsoeneng), the Group
Chief Executive Officer of the SABC at the time,
via a telephone call
from his professional assistant, to visit the SABC studios to assess
the project. The purpose of the invitation
was that Motsoeneng wanted
a new studio set for the broadcast of the 2015 Rugby World Cup. On
4 February 2015, Mpuru attended
at the SABC studios to take
measurements and assess the studios for upgrades. The project manager
for the upgrade project (who
had dealt with the tender process) was
informed that the upgrade project had been put on hold at the request
of Motsoeneng and
that the previous tender process was not approved
by the Group Executive Committee (Exco).
[36]
On 17 February
2015, the respondent submitted a quotation for the upgrade of all 11
studios of the SABC. On 4 March 2015, at a meeting
of the Operations
Committee (the OC), the respondent presented a business plan for the
project. It was resolved that approval be
granted for the SABC
platforms to engage with the respondent to present the specific
requirements for each platform of the project.
The OC requested the
respondent to provide a revised business plan and a breakdown of
technical equipment that would be supplied.
[37]
At a meeting
of the OC on 5 May 2015, resolutions were taken that the Head of
Sport was to coordinate the finalisation of the respondent’s
quotation for the project and table a business case which included
the respondent’s finalised quotation. The Committee was
informed that the tender process was to be cancelled and the
procurement division of the SABC was to effect the cancellation.
[38]
On 20 July
2015, having presented the business case dated 13 July 2015, the Head
Group Executive Sport, Ms Tawana, requested that
the OC approve the
deviation from the normal procurement process and contract with the
respondent. It was resolved that it be recommended
that the Exco
approve the deviation. The Exco mandated Tawana to sign the contract
on behalf of SABC with the respondent.
[39]
A submission
was compiled by Tawana for the Exco meeting scheduled for 29 July
2015, in terms of which Exco would be requested to
grant approval for
the finalisation of the procurement process, and to contract with the
respondent by deviation from the normal
procurement processes. On 31
July 2015, Exco purportedly approved the request for deviation and
approved the contract with the
respondent. The approval was obtained
by a round-robin resolution dated 31 July 2015. On 1 August 2015, the
group secretary sent
an email to the Exco members informing them that
the round-robin approval was successful. The contract was signed on
25 September
2015.
The
nature of the irregularities
[40]
It is not
disputed by the respondent that the OC made the recommendation to
Exco for the conclusion of the contract, in circumstances
where it
failed to inform Exco that it had, without the necessary delegation
of authority, performed procurement functions of the
SABC. What
occurred was more than a direct negotiation, according to the
appellants. This conduct is a transgression prohibited
by clause
13.10 of the Supply Chain Management policy (SCM) of the SABC, which
prohibits direct negotiations, without a bidding
process and
approval. In this case, the members of the OC facilitated, assisted,
and supported the respondent with finalising its
quotations in that
it directly invited, negotiated with and accepted a quotation from
the respondent without consideration of other
competitive vendors. In
addition, the OC:
40.1.
did so without
consideration of the fact that the respondent was not registered on
the SABC vendor database;
40.2.
engaged the
services of the respondent before concluding a written contract
setting out the terms of engagement with the respondent;
40.3.
engaged the
services of the respondent without a Tax Clearance Certificate.
[41]
On the
strength of the OC’s recommendation, the SABC Board was induced
by this misrepresentation to believe that on 31 July
2015 Exco had
resolved that:
41.1.
approval be
given for the sports news divisions to deviate from the normal
procurement processes to appoint the respondent for construction
of
the project at the amount of R39 380 000.00 (excluding
VAT);
41.2.
that the Head
of Sport and GE for Technology were mandated to conclude and sign the
contract documentation to give effect to the
above on behalf of the
SABC.
[42]
As a result of
this misrepresentation, the SABC:
42.1.
appointed the
respondent as the service provider for the project on 31 July 2015;
42.2.
concluded the
contract with the respondent on 18 September 2015, with a
commencement date of 18 August 2015.
[43]
During its
investigations, the SIU found that only 6 of the 14 Exco members
signed the round-robin resolution. This did not satisfy
the threshold
of a majority that is required to approve such a resolution. Thus, no
valid resolution was obtained from Exco to
obtain a deviation from
the normal procurement processes. The approval of the deviation was
thus irregular and unlawful. In addition,
the reasons why a deviation
was requested do not meet with the procurement policies and the SCM
policies of the SABC; thus, the
deviation was, in any event,
irregular and could not have been approved.
[44]
It was
conceded by the respondent that the contract was vitiated by the
numerous irregularities referred to. All procurement policies
were
flouted, and the contract was accordingly invalid.
The
Court a quo
[45]
The Court a
quo concluded, on the basis of these irregularities, that the
contract was not validly awarded to the respondent. It
found that it
fell to be set aside. The Court then turned its attention to its
discretion under s 172(1)(
b
),
and the submissions made by the respondent in this regard. The
respondent submitted that, notwithstanding the declaration of
invalidity, it would not be just and equitable to divest it of its
rights flowing from its performance under the contract. It therefore
urged the Court a quo to exercise its discretion under s 172(1)(
b
)
and to preserve its rights to secure payment from the SABC under the
contract.
[46]
The
respondent’s contention was that it was an innocent party in
the awarding of the contract. It is not disputed that the
respondent
was approached by the SABC and requested to render the services –
and that it did not solicit such approach. It
therefore contended
that it was an innocent tenderer and was entitled to full relief in
respect of its claim. According to the
respondent, it had no
knowledge of the internal procurement requirements and policies of
the SABC. The scope of its business was
in the private sector. It had
only tendered once for a public contract. It had previously done work
for the SABC as a sub-contractor.
[47]
The respondent
pointed out further that the contract contained a warranty clause in
terms of which the parties warranted, among
other things, that they
were duly authorised to enter into the contract, to represent the
parties and to bind them to it. In addition,
the respondent had
performed substantially under the contract. The SABC was already
enjoying use of the services rendered and goods
received.
[48]
The respondent
also argued that as it was a 100% black owned entity, employing
approximately 80 employees, it stood to be ruined
if it did not
recover its claim, in full, from the SABC. Thus, it was not in the
interests of justice to have a viable empowered
business,
contributing to employment, economic development, transformation and
the fiscus, destroyed due to no fault of its own.
It stated that it
had completed 98% of the services and that the SABC was using such
equipment. This became an issue in an application
for the
introduction of new evidence on appeal. The new evidence that the
respondent wished to introduce was that although the
SABC had denied
that it was using the equipment, it subsequently conceded that it was
in fact doing so. The respondent contended
that this is another issue
which goes towards the just and equitable relief that it sought.
[49]
The respondent
prayed for either the dismissal of the application, alternatively
that any declaration of invalidity be subject to
the rider that it
would not have the effect of divesting the respondent of rights
which, but for the declaration of invalidity,
it might have been
entitled to under the contract.
[50]
In determining
a just and equitable remedy, the Court a quo took into account the
nature of the irregularity, the role of the respective
parties, and
their conduct before and after the irregularity was uncovered. The
Court a quo found that the respondents could not
plead ignorance as
an excuse or a valid defence. It criticised the respondent for not
appraising itself with tender regulations
associated with procurement
from an organ of state. However, although the Court a quo found that
the irregularities were brazen,
it found that the breach lay
primarily at the door of the SABC, its management executive, and
oversight structures. It found that
there was no evidence that the
respondent was corrupt or opportunistic and was, in effect, an
innocent party.
[51]
The Court a
quo found further that the invalidity of the contract only arose
after the respondent instituted arbitration proceedings
in January
2018. In this regard, the Court a quo noted that in
Gijima
,
the Constitutional Court found that the applicant in that matter
ought not to benefit from its own undue delay. It found that
the
respondent had performed substantially under the contract.
[52]
The
court a quo referred to
Millennium
Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo
Province
,
[36]
where the court stated:
‘
To
set aside the decision to accept the tender, with the effect that the
contract is rendered void from the outset, can have catastrophic
consequences for an innocent tenderer, and adverse consequences for
the public at large in whose interests the administrative body
or
official purported to act. Those interests must be carefully weighed
against those of the disappointed tenderer if an order
is to be made
that is just and equitable.’
It
took into account that the respondent was a 100 percent black owned
company that employs 80 people.
[53]
On these
bases, the Court a quo was persuaded to grant the alternative relief
sought by the respondent. Although it declared invalid
and set aside
the contract and the respondent’s appointment, it granted a
remedial order along the lines of the Constitutional
Court’s
order in
Gijima
.
In addition, the Court a quo directed the parties to continue with
the arbitration process instituted by the respondent.
[54]
In
granting the remedial orders, the Court a quo dismissed the
appellants’ contention that even if the contract was set aside
ab
initio
,
the respondent retained remedies under the common law of unjustified
enrichment to ensure that it would not be out of pocket.
The Court
found that the appellant’s submission would lead to a
multiplicity of actions. The Court a quo found support in
the
Constitutional Court’s judgment in
Steenkamp
NO v Provincial Tender Board, Eastern Cape
,
in which the Court found that: ‘
It
is nonetheless appropriate to note that ordinarily a breach of
administrative justice attracts public-law remedies and not
private-law
remedies
.’
[37]
[55]
The Court a
quo was similarly unpersuaded by the appellants’ submission
that the SABC was not in a financial position to pay
the respondent
in terms of the contract, in that one third of its available cash
flow would have to be utilised to do so. It should
be noted in this
regard that it was common cause that the contract had not been
required, planned for and that no budget had been
allocated for it.
The
applicable legal principles
[56]
The
principles applicable to s 172(1) of the Constitution have been
discussed in many judgments. It is trite that in terms
of s 172(1)(
a
)
of the Constitution, a declaration of invalidity is mandatory and
accords with the doctrine of objective constitutional invalidity.
A
declaration that conduct is invalid pursuant to s 172(1)(
a
)
of the Constitution confirms the invalidity from inception; that is
the contract is void
ab
initio
.
[38]
[57]
When it comes
to a Court’s remedial powers under s 172(1)(
b
),
the Court has a wide discretion. Where it is just and equitable, it
may limit the retrospectivity of its order or suspend it.
The
Constitutional Court in
Steenkamp
held that:
‘
In
each case the remedy must fit the injury. The remedy must be fair to
those affected by it and yet vindicate effectively the right
violated. It must be just and equitable in the light of the facts,
the implicated constitutional principles, if any, and the controlling
law. The court is bound only by considerations of justice and
equity. It is nonetheless appropriate to note that ordinarily
a
breach of administrative justice attracts public-law remedies and not
private-law remedies. The purpose of a public-law remedy
is to
pre-empt or correct or reverse an improper administrative
function.”
[39]
[58]
In
Allpay
(2)
,
[40]
the Constitutional Court noted that the emphasis on correction and
reversal was based on s 172(1)(
b
).
Further, that remedial correction is also a logical consequence
flowing from invalid and rescinded contracts and enrichment law
generally. It went on to hold:
‘
Logic,
general principle, the Constitution and the binding authority of this
court all point
to
a default position that requires the consequences of invalidity to be
corrected or reversed
where they can no longer be prevented. It is an approach that
accords with the rule of law and principle of legality.’
[41]
(Emphasis added)
[59]
Similarly,
in
Bengwenyama
,
[42]
the Court emphasised the importance of the principle of legality in
determining a just and equitable remedy, and the need for Courts
to
justify a remedial order that does not give full effect to a
declaration of invalidity:
‘
It
would be conducive to clarity, when making the choice of a just and
equitable remedy in terms of PAJA, to emphasis the fundamental
constitutional importance of the principle of legality, which
requires invalid administrative action to be declared unlawful. This
would make it clear that the discretionary choice of a further just
and equitable remedy follow upon that fundamental finding.
The
discretionary choice may not precede the finding of invalidity.
The discipline of this approach will
enable courts to consider whether relief which does not give full
effect to the finding of
invalidity, is justified in the particular
circumstances of the case before it
.
Normally this would arise in the context of third parties having
altered their position on the basis that the administrative action
was valid and would suffer prejudice if the administrative action is
set aside,
but even then the
“desirability of certainty” needs to be justified against
the fundamental importance of the principle
of legality
.’
(Emphasis added)
[60]
In
order to assess what is just and equitable, a Court should have
regard to various factors involved in the award of the contract,
the
nature of the irregularity and the role of the respective parties.
The just and equitable inquiry is multi-dimensional. A just
and
equitable remedy will not always lie in a simple choice between
ordering correction and maintaining the existing position.
It
may lie somewhere in between.
[43]
[61]
In
the context of public-procurement matters, priority should be given
to the public good. The primacy of the public interest must
be taken
into account when the rights, responsibilities and obligations of all
affected persons are assessed. Consequently, the
inquiry is not
one-dimensional, but has a broader range.
[44]
[62]
Significantly,
in
Allpay
(2)
, the
Constitutional Court held that:
‘
It
is true that any invalidation of the existing contract as a result of
the invalid tender
should
not result in any loss
to Cash Paymaster. The converse, however, is also true.
It
has no right to benefit from an unlawful contract
.
And any benefit it may derive should not be beyond public
scrutiny.’
[45]
(Emphasis
added)
[63]
The
principle laid down in
Allpay
(2)
,
that
even
an innocent tenderer should not benefit from the proceeds of an
invalid contract, was applied by Sutherland J in this Division
in
Mining
Qualifications Authority
:
[46]
‘…
taking
the circumstances under which the respondent came to be awarded the
tender, no factor is apparent why it should retain any
profit made by
its efforts. In my view it (is) unnecessary that a clear case of
complicity is proven; it is enough that the award
was tainted by
irregularity. Were it otherwise, the plea of an innocent
tenderer would as a matter of course outweigh the
public interest.
The pendulum should usually swing the other way. What one has not
obtained through a fair and transparent process
ought not to vest any
moral claim to retain the spoils.’
On
appeal
[64]
Having
regard to these principles, the appellants submit that this Court
would be justified in interfering with the remedial measures
ordered
by the Court a quo. They contend that the Court a quo’s
discretion under s 172(1)(
b
),
although extremely wide, must always be aligned to the purpose sought
to be achieved. They submitted that the principal purpose
of
constitutional remedies is, inter alia, to vindicate the Constitution
and to serve as a deterrent.
[47]
In particular, they say that the remedial orders granted by the Court
a quo did not accord with what the Constitutional Court has
found to
be the default position in matters of this nature, viz. that the
unlawful conduct must be corrected by setting it aside.
[65]
The Court a
quo did not limit or suspend its order; it set aside the impugned
contract. The appellants contend that the Court then
‘
attempted
to claw back (breathe life back into the impugned contract) from its
section 172(1)(a) declaration.
’
They submit that this was an impermissible exercise of the Court’s
remedial discretion. The appellants contended further
that there were
no compelling public interest considerations justifying the remedial
orders made by the Court a quo. They thus
argue that, unless there
are exceptional and compelling public interest considerations at
play, the Court cannot ameliorate the
harshness of an order of a
declaration of invalidity.
[66]
The appellants
argue that the Court a quo’s remedial orders were not
predicated on the applicable legal principles discussed
above, but on
the respondent’s BEE status, its apparent innocence,
substantial compliance, and the need to prevent a multiplicity
of
actions.
[67]
Further, the
appellants submit that the Court a quo did not limit what the
respondents could claim; the claim would of course include
a claim
for profit which they contended is at odds with the Constitutional
Court judgment in
Allpay
(2)
, as
well as being at odds with this Court’s decision in
Mining
Qualifications Authority
.
[68]
The
respondent, on the other hand, submitted that given the wide nature
of the Court a quo’s discretion, there is no justification
for
this Court on appeal to interfere with the remedial orders granted.
It says that the Court a quo took into account all relevant
factors
in preserving the respondent’s rights to claim all amounts due
to it for its performance under the contract. Even
if this Court was
to take a different view to that of the Court a quo in this regard,
that is insufficient to warrant an interference
with the orders on
appeal. The respondent submitted that its innocence in the
irregularities that had transpired presents a compelling
circumstance, warranting a deviation from the default position
described in
Allpay
(2)
.
[69]
We indicated earlier,
that on appeal we may interfere with the Court a quo’s remedial
orders if we find that they were based
on a wrong appreciation of
facts or a wrong principle of law.
[70]
Having
regard to the facts in this case and the law in relation to the
remedy applicable, we are of the view that the Court a quo
applied
the wrong principle in law, by preserving all of the respondent’s
rights under the contract. This would entitle the
respondent to claim
the full contract price (including its profit). In making an order of
this nature, the Court a quo did not
have regard to the legal
position set out by the Constitutional Court in
Allpay
(2).
[48]
[71]
The Court a quo approached the matter as if
it had to carry out an all-or-nothing balancing exercise by either
setting aside the
contract in full, or preserving the respondent’s
rights under it in full. But this is not what is required of a Court
in
public-procurement matters of this nature. As the Constitutional
Court has said, it may well be that something less than a complete
setting aside or a complete preservation is required. In
determining an appropriate order, the public interest must be
paramount.
Further, while a party in the position of the respondent
should not suffer a loss, it should also not profit at the expense of
the public purse. This is a fundamental aspect of the principle of
legality, and of the need to correct plainly unconstitutional
conduct. By preserving the respondent’s full rights under the
contract, the Court a quo diverged from the established legal
principles as laid down in the Constitutional Court and as applied in
this Division.
[72]
Bengwenyama
[49]
explains
that although the discretion under s 172(1)(
b
)
is wide, there must nonetheless be reasons to justify a departure
from the default position by giving legal effect to an invalid
act.
There were no exceptional circumstances to warrant giving full effect
to the contract in this case. On the contrary, the public
interest
clearly required that the respondent ought not to be permitted to
recoup its profits from the SABC under the contract.
The Court a quo
failed to appreciate the fact that the review application flowed
directly from the 2017 Proclamation in terms of
which the SIU was
mandated to recover any losses suffered by the SABC from the unlawful
contract. Its remedial order, in permitting
the respondent to recover
its profits (and not only its costs) under the contract, undermined
the purpose of the 2017 Proclamation,
and thus the public interest it
served. In our view, the public interest demands that the public
purse should not be depleted.
This is particularly so in
circumstances where, as in this case, it was common cause that the
project had not been planned or budgeted
for, and that it would
require a third of the SABC’s available resources to pay the
full contract price.
[73]
The Court a quo did not deal with
this issue in fashioning a remedy that allowed for the respondent to
recover the full contract
price. It did not appreciate that there is
an important deterrent purpose in limiting what a party in the
respondent’s position
may recover under an invalid procurement
contract. The principle of legality would be completely undermined
if, in the absence
of evidence of collusion on its part, a
contracting party could as a matter of course retain its profit.
In our view, a remedial
order that permits a full retention of profit
should be the exception rather than the rule, and must be justifiable
on the facts.
[74]
In regard to
the factual scenario, the Court a quo, in exercising its discretion,
assigned negligible fault to the respondent, treating
it, in effect,
as a perhaps careless, but innocent contractor. While the Court a quo
found that the respondent’s ignorance
of the law was not a
defence, it nonetheless accorded the weight of blame to the SABC, and
exercised its discretion accordingly.
The Court a quo failed to take
into consideration that the respondent did not give any explanation
for its apparent ignorance of
the SABC’s procurement
requirements, save to say that it usually worked in the private
sphere. The answering affidavit was
devoid of any helpful details as
to how it was justified in taking the SABC at face value when the
respondent was approached out
of the blue and invited to submit a
quotation for a substantial project.
[75]
In stating
that it was an innocent tenderer, the respondent went no further than
simply stating that proposition. At no point did
the deponent for the
respondent, who is a well-seasoned businessman, enquire from the SABC
whether the relevant procurement policies
applicable to all
state-owned entities had been complied with. The respondent contended
that it had only once previously dealt
with a state entity, and that
it was unaware of the procurement policies required for contracting
with the state. The respondent
relies solely on the fact that the
SABC warranted to it, in the contract, that it had been authorised to
conclude the contract
and that it was binding on it. This appears to
be a standard clause which would appear in most contracts of this
nature, and did
not exempt the respondent from making further
enquiries in this regard. What the respondent does not deal with is
the basis upon
which it believed that it could commence on a project
valued at nearly R40 million, despite there being no contract in
place until
September 2015, without it being registered on the SABC’s
vendor list, and without submitting a Tax Clearance Certificate.
[76]
The
respondent relied on
Gijima
[50]
to justify the remedial orders made by the Court a quo. Indeed,
paragraph 4 of the order mimics the order made by the Constitutional
Court in
Gijima
.
However, the Court a quo failed to appreciate that there is a patent
distinction between the two cases. The Constitutional Court
dealt
with
Gijima’s
conduct in the conclusion of the contract as follows:
‘
It
was agreed that SITA would comply with all its internal procurement
procedures in respect of these two agreements. Throughout,
Gijima was
concerned whether SITA had complied properly with its procurement
processes. SITA assured Gijima that it had the authority
to enter
into the settlement agreement. It inserted the following term into
the DoD services agreement (DoD agreement) at the insistence
of
Gijima:
“
Sita
unconditionally warrants, undertakes and guarantees that it has taken
all steps necessary to ensure compliance to any relevant
legislation
governing the award of the Services to the Service Provider and
specifically towards ensuring that this Agreement is
entirely valid
and enforceable, including but not limited to the
Public Finance
Management Act 1 of 1999
. Indemnifies the Service Provider against
any loss it may suffer should this warranty be infringed.”’
[51]
[77]
It is clear
that the same situation does not pertain to the respondent in this
case. On the contrary, the respondent adopted
a supine approach
to the procurement processes. It is inconceivable that any business
person operating on the scale that the respondent
operates would be
ignorant of the basic tenets of public procurement process, viz. the
need for a competitive, fair and transparent
tender process. In our
view, the Court a quo failed to appreciate these facts in being
persuaded that the respondent was an innocent
party whose interests
under the contract outweighed the public interests involved.
[78]
We are therefore satisfied that, both on
the facts and the law, the appellant has laid a proper basis for this
Court to interfere
with the discretion exercised by the Court a quo.
[79]
Having made such finding, we are of the
view that the just and equitable remedy will be for the respondent to
have a claim against
the SABC, but only insofar as it is to be
awarded its reasonable costs of the project. It cannot however
benefit from the impugned
contract by making a profit therefrom.
Costs
[80]
The Court a quo correctly ordered each a
party to pay its own costs. In our view, although the appellants have
been partially successful
in the appeal, this Court considers the
SABC’s conduct to have been blatantly irregular. The respondent
had performed substantially,
and the irregularity was only sought to
be corrected after a substantial period of time had lapsed. As was
observed in
Allpay (2)
:
‘
There
are no real winners or losers in the ordinary litigation sense. If
there is to be any winner, one hopes it will be the general
public
who will gain from adherence to the rule of law and greater
transparency and accountability in relation to the payment of
social
grants. It is just to make no order as to costs. Each party will bear
its own costs.’
[52]
ORDER:
1.
The appeal succeeds, in part.
2.
Paragraphs 4, 5 and 6 of the Court a quo’s
order are set aside and replaced with the following:
a.
The respondent is to file with this court,
within 30 days hereof, an audited statement of the expenses incurred,
the income received
and the net profit it would have earned under the
completed contract;
b.
The SABC must within 60 days thereafter
obtain an independent audited verification of the details provided by
the respondent under
paragraph (a) above and file the audited
verification with this Court;
c.
The Court will thereafter determine the
amount to be paid to the respondent.
d.
There will be no order as to costs.
e.
All documents are to be filed with the
secretary of Judge President Mlambo and uploaded on CaseLines.
D
MLAMBO
JUDGE
PRESIDENT OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree
S
E WEINER
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I agree
R
KEIGHTLEY
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of hearing:
20 May 2020
Date
of judgment:
19 June 2020
Appearances:
Counsel
for the Appellants:
Adv. JA Motepe SC;
Adv. T Motau SC; Adv. R
Tshetlo
Instructing
Attorneys:
Werksmans Attorneys
Counsel
for the Respondents:
Adv. HP van Nieuwenhuizen;
Adv. NS Nxumalo
Instructing
Attorneys:
Tshabalala Attorneys
[1]
Special
Investigating Units and Special Tribunals
Act
74 of 1996
.
[2]
Section
217 of the Constitution, titled ‘Procurement’ provides
as follows:
(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.
[3]
The
SABC Memorandum of Incorporation; the Delegation of Authority
Framework; the Group Supply Chain Management Policy and Preferential
Procurement Policy; the Group Supply Chain Management Policy; the
Group Executive Committee terms of reference.
[4]
State
Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
2018
(2) SA 23
(CC); (CCT254/16)
[2017] ZACC 40
(14 November 2017).
[5]
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
2019 (4) SA 331
(CC);(CCT91/17)
[2019] ZACC 15
(16 April 2019).
[6]
Ibid
para
101.
[7]
Knox
D’Arcy & Others v Jamieson & Others
[1996] ZASCA 58
;
1996
(4) SA 348
(A) at 361H.
[8]
Media
Workers Association of South Africa and Others v Press Corporation
of South Africa Limited (‘Perskor’)
[1992] ZASCA 149
;
1992
(4) SA 791
(A) at 796H, citing
The
Shorter Oxford Dictionary
‘discretion’
.
[9]
MTN
Service Provider (Pty) Ltd v Afro Call
2007
(6) SA 620
(SCA) at para 10, citing
Media
Workers Association
(note
8 above); see also
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of
South Africa Ltd & Another
2015 (5) SA 245
(CC); (CCT198/14)
[2015] ZACC 22
;
2015 (5) SA 245
(CC) (26 June 2015).
[10]
This
type of discretion is sometimes also referred to as a strong
discretion, a discretion in the narrow sense, or a true discretion.
See
Giddy
NO v J C Barnard & Partners
[2006] ZACC 13
;
2007
(5) SA 525
(CC) at footnote 17; and
Trencon
(note
9 above).
[11]
MTN
(note
9 above).
[12]
Giddy
(note 10 above)
para
19;
South
African Broadcasting Corp Ltd v National Director of Public
Prosecutions & Others
[2006] ZACC 15
;
2007 (1) SA 523
(CC) para 41.
[13]
Trencon
(note
9 above) para 85.
[14]
Giddy
(note 10 above) para 19.
[15]
Notyawa
v Makana Municipality and Others
(CCT115/18)
[2019] ZACC 43
(21 November 2019); (2020) 41 ILJ 1069
(CC) (21 November 2019)
para
41.
[16]
MTN
(note
9 above) para 10, citing
Media
Workers Association of South Africa
(note
8 above).
[17]
SABC
(note
12 above)
paras
40-41.
[18]
See
SABC
(note 12 above) para 40. The case involved an appeal to the
Constitutional Court against the decision by the SCA to disallow
an
application for television and radio broadcasts of proceedings
before it in a criminal appeal. The Constitutional Court gave
a
range of reasons for finding that it should only interfere in the
SCA’s decision on narrow grounds.
[19]
Gijima
Holdings
(note
4 above) para 53.
[20]
Notyawa
(note
15 above).
[21]
Ibid
para 33.
[22]
Promotion
of Administrative Justice
Act
3 of 2000
.
[23]
Buffalo
City
(note
5 above).
[24]
Ibid
para 50.
[25]
Mwelase
and Others v Director-General for the Department of Rural
Development and Land Reform and Another
2019 (6) SA 597
(CC); (CCT 232/18)
[2019] ZACC 30
(20 August 2019).
[26]
Land
Reform (Labour Tenants)
Act
3 of 1996.
[27]
Mwelase
(note 25 above) para 67.
[28]
Trencon
(note
9 above).
[29]
Ibid
para 90.
[30]
This
terminology was used in
Florence
v Government of the Republic of South Africa
2014 (6) SA 456
(CC); (CCT 127/13)
[2014] ZACC 22
(26 August 2014)
para 113.
[31]
Gijima
(note
4 above).
[32]
Where
the contract was declared invalid, but not set aside.
[33]
Mining
Qualifications Authority v IFU Training Institute (Pty) Ltd
(2016/44912) [2018] ZAGPJHC 455 (26 June 2018)
[34]
No.
2 of the Schedule to the 2017 Proclamation.
[35]
No.
1 of the Schedule to the 2017 Proclamation.
[36]
Millennium
Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo
Province and Others
2008
(2) SA 481
(SCA) para 23.
[37]
Steenkamp
NO v Provincial Tender Board, Eastern Cape
2007
(3) SA 121
(CC); (CCT71/05)
[2006] ZACC 16
(28 September 2006) para
29.
[38]
See
Ferreira
v Levin NO & Others
1996 (1) SA 984
(CC) paras 27-28;
Premier,
Limpopo Province v Speaker of the Limpopo Provincial Legislature and
Others
2012 (4) SA 58
(CC) para 29.
[39]
Steenkamp
(note
38 above) para 29.
[40]
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security Agency
and
Others (No 2)
[2014]
ZACC 12
(17 April
2014); 2014 (4) SA 179
(CC) para 29.
[41]
Ibid
para 30
[42]
Bengwenyama
Minerals (Pty) Ltd & Others v Genorah Resources (Pty) Ltd &
Others
2011
(4) SA 113
(CC); (CCT 39/10)
[2010] ZACC 26
(20 November 2010) para
84.
[43]
Allpay
(2)
(note
41 above) para 38.
[44]
Ibid
paras
32-33.
[45]
Ibid
para
67.
[46]
Mining
Qualifications Authority
(note 33 above) para 41.
[47]
See
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC) para 96.
[48]
Allpay
(2)
(note
41 above).
[49]
Bengwenyama
(note
43 above).
[50]
Gijima
(note
4 above).
[51]
Ibid
para 6.
[52]
Ibid
para 77.