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[2021] ZAGPJHC 547
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Trudon (Pty) Ltd v Joburg Water SOC Limited (24440/2019) [2021] ZAGPJHC 547 (1 February 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 24440/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
In
the matter between:
TRUDON
(PTY) LTD
PLAINTIFF/ EXCIPIENT
and
JOBURG
WATER SOC LIMITED
DEFENDANT/RESPONDENT
JUDGMENT
MOOSA
AJ
INTRODUCTION
:
[1]
This is an exception by the plaintiff/excipient against the
defendant’s defence
and counterclaim, on the basis that they
lack averments necessary to sustain a defence and action
respectively.
[2]
In this action, the plaintiff is suing the defendant for allegedly
breaching a written
agreement entered into between the parties on 08
February 2017, for placement of advertising services (“agreement”).
[3]
On or about 03 September 2019, the defendant denied liability and
filed a plea and
counterclaim to the plaintiff’s particulars of
claim wherein it,
inter alia
, alleged in its plea that the
contract sued upon dated 08 February 2017 is unlawful and
unenforceable, alternatively was null,
void and unenforceable for the
reasons stated therein and sought a declarator to this effect in its
counterclaim.
[4]
The excipient filed an exception to the plea and contended that the
aforesaid plea
lacked averments necessary to sustain a defence and
excepted to the counterclaim wherein the defendant asked the Court to
declare
the agreement unlawful and unenforceable, alternatively null
and void and unenforceable, and the excipient furthermore asked that
certain averments in the plea and counterclaim be struck out.
Put
differently, the plaintiff’s exception is that it is not
legally permissible for the defendant to raise the
unconstitutionality
and/or validity of the agreement in the manner
the defendant does, by way of a collateral challenge in a plea, in
the absence of
an application to review and set aside the agreement.
[5]
The plaintiff has excepted to the defendant’s defence and
counterclaim on the
basis that they lack averments necessary to
sustain a defence and action respectively. This is because:
a).
Absent the institution of a formal, direct review application, the
agreement stands unless or until
it is reviewed and set aside by a
Court in accordance with the well-established Oudekraal principle.
[1]
b).
The defendant cannot avail itself of a collateral challenge in the
circumstances of this case. The application
of this principle is
confined to instances in which a subject is sought to be coerced by a
public authority into compliance with
an unlawful administrative
act.
[2]
APPLICABLE
LAW
[6]
An exception is a legal objection to the opponent’s pleading.
It complains of
a defect inherent in the pleading: admitting for the
moment that all allegations in a summons or plea are true, it asserts
that
even with such admission the pleading does not disclose either a
cause of action or a defence, as the case may be.
[3]
[7]
In deciding an exception a court must accept all the allegations of
fact made in the
particulars of claim as true, may not have regard to
any other extraneous facts or documents; and may uphold the exception
to the
pleading only when the excipient has satisfied the court that
the cause of action or conclusion of law in the pleading cannot be
supported on every interpretation that can be put on the facts.
[8]
The purpose of an exception is to protect litigants against claims
that are bad in
law or against an embarrassment, which is so serious
as to merit, the costs of an exception. It is a useful procedural
tool to
weed out bad claims at an early stage, but an overly
technical approach must be avoided.
[4]
[9]
The Constitutional Court has affirmed that: “exceptions provide
a useful mechanism
“
to
weed out cases without legal merit”
.
[5]
[10]
It is settled law that:
“
The
test on exception is whether on all possible readings of the facts no
cause of action may be made out. It is for the excipient
to satisfy
the court that the conclusion of law for which the plaintiff contends
cannot be supported on every interpretation that
can be put upon the
facts”
.
[6]
[11]
The excipient has argued that as a matter of approach to exceptions:
a).
First, the allegations of fact in the defendant’s plea and
counterclaim must be accepted as true
and correct.
[7]
It must be accepted true and correct that “the accounting
officer and/or the adjudication committee of the defendant did
not
act [as required by the defendant’s SXM policy and the relevant
procurement prescripts]” when the decision to enter
into the
agreement was taken.
[8]
b).
Second, the Court may not at this stage consider anything outside the
pleaded facts. Rather the Court
must accept that the defendant has no
at any stage applied to court for the judicial review and setting
aside of it decision to
enter into the agreement.
[9]
THE
RELEVANT PLEADED ISSUES
[12]
In its particulars of claim the plaintiff alleges conclusion of the
agreement, its terms and
that, despite the plaintiff complying with
its obligations in terms of the agreement, the defendant has breached
same and has failed
to remedy the breach.
[13]
The defendant in response has,
inter alia
, pleaded as set out
hereunder. I pause to mention that I do not deem it necessary to
regurgitate the entire plea which deals mainly
with the defendant’s
legal status and the public procurement laws, rooted in section 217
of the Constitution of the Republic
of South Africa, to which it is
subject. I have accordingly distilled the plea for the purposes of
capturing the salient aspects
hereunder:
a).
Section 217 of the Constitution states: “(1) when an organ of
state in the national, provincial
or local sphere of government, or
any 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.
b).
The Municipal Finance Management Act, 56 of 2003 (“MFMA”)
requires each municipal entity,
such as the defendant to have and to
implement a supply chain management policy which gives effect to
inter alia the provisions
of section 217 of the Constitution and to
Chapter 11 of the MFMA.
c).
The defendant, a municipal entity, adopted the Supply Chain
Management Policy (“SCMP”)
which in terms of clause 2(1)
thereof applies to
inter alia
eligible procurement undertaken
by the defendant including the disposal of immovable and movable
assets.
d).
In terms of clause 11.1 of the SCMP, the board of directors of the
defendant must delegate additional
powers and duties to the
accounting officer as are necessary to enable the accounting officer
to discharge the supply chain management
responsibilities conferred
on accounting officers of the MFMA.
e).
In terms of clause 37.1(a) of the SCMP, the defendant’s
accounting officer may dispense with the
official procurement
processes established by the SCMP and procure any required goods or
services through any convenient process
in circumstances laid down in
clause 37.1.1 thereof.
f).
Section 106 of the MFMA states:
“
(1)
The accounting officer of a municipal entity-
(a)
may delegate to an official of that entity-
(i)
any of the powers or duties assigned to or delegated to the
accounting officer in terms
of this Act; or
(ii)
any powers or duties reasonably necessary to assist the accounting
officer in complying with
a duty which requires the accounting
officer to take reasonable and appropriate steps to ensure the
achievement of the aims of
a specific provision of the Act; and
(b)
must regularly review delegations issued in terms of paragraph (a)
and if necessary, amend or
withdraw any of these delegations.
(2)
A delegation in terms of subsection (1) –
(a)
must be in writing;
(b)
is subject to any limitation and condition the accounting officer may
impose;
(c)
may be either to a specific individual or to a holder of a specific
post in the municipal entity;
and
(d)
does not divest the accounting officer of the responsibilities
concerning the exercise of the
delegated power or the performance of
the delegated duty.
(3)
An accounting officer may confirm, vary or revoke any decision taken
by an official in consequence
of delegation in terms of subsection
(1) but no such variation or revocation of a decision may detract
from any rights that may
have accrued as a result of the decision”.
(g)
When concluding the purported agreement
in casu
with the
plaintiff on 08 February 2017, the defendant was represented by Ms T
Choane, in her capacity as Manager: Marketing and
Communications of
the defendant.
(h). Ms
Choane did not possess and have the authority to conclude the
aforesaid purported contract and such contract
could only be
performed by the accounting officer and/or adjudication bid committee
and/or the evaluation committee of the defendant,
and, such
accounting officer must, in terms of clause 37.3 record the reasons
for any deviation in terms of clause 37(2)(a) and
report them at the
next meeting of the board of directors.
(i)
The accounting officer and/or the adjudication committee and/or
evaluation committee of the defendant
did not act as aforesaid and
accordingly the contract sued upon is unlawful and unenforceable,
alternatively null and void and
unenforceable.
(j)
The defendant further filed a counterclaim for an order declaring the
agreement unlawful
and unenforceable, alternatively null and void and
unenforceable for the reasons set out in its plea.
THE
BASIS OF THE DEFENDANT’S DEFENCE AND COUNTERCLAIM
[14]
The defendant alleges that in terms of its procurement policy, only
the accounting officer and/or
the adjudication bid committee and/or
the evaluation committee of the defendant could conclude the
agreement, and “…such
accounting officer must, in terms
of clause 37.3 of the SCMP record any reasons for any deviation…and
report them at the
next meeting of the board of directors”.
[15]
The defendant further alleges that: “the accounting officer
and/or the adjudication committee
and/or evaluation committee of the
defendant did not act as aforesaid”. Accordingly, it is
submitted that such failure to
act in terms of the applicable public
procurement prescripts when the defendant entered into the agreement,
that “
the contract sued upon is unlawful and unenforceable,
alternatively null and void and unenforceable”
.
[16]
The conclusion to be reached in the aforementioned circumstances is
that the defendant’s
defence and counterclaim alleges that the
agreement was entered into in contravention of the public procurement
prescripts to which
the defendant is subject, including its own SCMP.
Put differently, the defendant alleges that its administrative act;
in deciding
to enter into the agreement, was unconstitutional and
unlawful as it flouted public procurement laws.
THE
PLAINTIFF’S EXCEPTION
[17]
The plaintiff has excepted to the defendant’s allegation in
support of its defence and
counterclaim on the basis that they lack
averments necessary to sustain a defence and action respectively. The
plaintiff’s
exception specifically records that this is
because: “
It
is not legally permissible for the defendant to raise the
unconstitutionality and/or invalidity of the agreement in the manner
in which the defendant does, by way of a collateral challenge in a
plea, in the absence of an application to review and set aside
the
agreement”
.
[10]
[18]
The plaintiff further argues that it has successfully raised this
point in a separate matter
in
Trudon v The National Director of
Public Prosecutions and Another (43247/2014) [2018] ZAGPPHC 872
(“Trudon 1”)
. In
Trudon 1
, which involved
substantively analogous factual claims, the parties agreed to a
separation of issues in terms of Rule 33 (4) of
the Uniform Rules of
Court. The Court was then asked to determine whether the defendants
are entitled to –
(a).
“ignore their own decision to conclude the agreements on the
basis that, in their view, the agreements
are unlawful, in
circumstances in which they failed to take proper steps to have a
court confirm their view through a ‘direct
review’,
[11]
and
(b).
“in the absence of a direct review, wait until the plaintiff
sought to enforce its rights under the
agreement before raising their
constitutional argument as a defence to the plaintiff’s claims
through a “collateral
challenge”.
[12]
The
plaintiff points out that the Gauteng Division, per Bhoola AJ
answered both questions with a resounding no
[13]
.
[19]
The plaintiff accordingly submits that
Trudon
1
is binding on this court, relying on the provisions of the
Constitution Seventeenth Amendment Act of 2012 and the
Superior
Courts Act 10 of 2013
, as canvassed in the article written by Wallis
J of the Supreme Court of Appeal, writing in an extra curial
capacity.
[14]
Wallis J points
out that before coming into force the
Superior Courts Act in
2013
“
one
could with relative certainty state the rules governing courts below
the two apex courts… a single judge was bound by
the decision
of another single judge in the same division, unless he or thought it
clearly wrong.”
[20]
Notwithstanding the aforementioned submission by the plaintiff
regarding the binding decision
of
Trudon 1
, I deem it
appropriate to deal with certain aspects of the administrative law
that are relevant to this application, as I do hereunder;
and on the
basis that each matter must be dealt with on its merits and facts.
THE
GENERAL PRINCIPLES OF ADMINISTRATIVE LAW
[21]
Generally, unlawful administrative acts are void, but our law
requires that a court consider
and declare and unlawful
administrative act to be invalid and, thereafter, the court has a
discretion as to whether or not to set
it aside.
[15]
The Constitutional Court has reiterated that: “
Logic,
general legal 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”
.
[22]
The Supreme Court of Appeal has also recognised that organs of state
in fact generally have a
duty to apply to a court to have their
unlawful decisions set aside,
[16]
a duty which has subsequently been endorsed and confirmed by the
Constitutional Court in
Khumalo
and Another v MEC for Education, KwaZulu-Natal
2014 (5) SA 579
(CC)
at paragraphs 35-36.
[23]
The corollary of this, however, which is an equally fundamental part
of the rule of law and a
necessity of the principle of legality, is
the fact that there are also instances in which the rule of law may
require an otherwise
unlawful decision to remain in principle, which
is the origin of the
Oudekraal
principle.
The
Oudekraal
principle can be summarised as follows: “the State cannot
simply ignore its own decisions.” Thus, even unlawful
administrative
acts continue to have consequences both in law and in
fact, unless or until they are set aside by a Court on review.
[17]
[24]
In
Merafong City v Anglogold Ashanti Ltd
2017 (2) SA 211
(CC)
(“Merafong”) at para 41, Cameron J stated
categorically once again that: “
government cannot simply
ignore an apparently binding ruling or decision on the basis that it
is invalid. The validity of the decision
has to be tested in
appropriate proceedings. And the sole power to pronounce that the
decision is defective, and therefore invalid,
lies with the courts…It
remains legally effective until properly set aside.”
[25]
In
Oudekraal
at para 1, the Supreme Court of Appeal framed the
question starkly: “
This appeal raises important questions
for the rule of law. It raises the question whether, or in what
circumstances, an unlawful
administrative act might simply be
ignored, and on what basis the law might give recognition to such
acts.”
It
emphasised that “
The proper functioning of the modern state
would be considerably compromised if all administrative acts could be
given effect to
or ignored depending upon the view the subject takes
the validity of the act in question. No doubt it is for this reason
that our
law has always recognised that even an unlawful
administrative act is capable of producing legally valid consequences
for so long
as the unlawful act is not set aside”
.
Further
emphasising: “
And this case illustrates a further aspect of
the rule of law, which is that a public authority cannot justify a
refusal on its
part to perform a public duty by relying, without
more, on the invalidity of the originating act: it is required to
take action
to have it set aside and not simply to ignore it.”
[26]
This principle was endorsed by the Constitutional Court in
MEC for
Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a
Eye and Lazer Institute
2014 (3) SA 481
(CC)
(“Kirland”)
wherein the Court asked the following at paragraph 64: “
Can
a decision by a state official, communicated to the subject, and in
reliance on which it acts, be set aside by a court even
when
government has not applied (or counter applied) for the court to do
so? Differently put, can a court exempt government from
the burdens
and duties of a proper review application, and deprive the subject of
the protections these provide, when it seeks
to disregard one of its
own officials’ decisions?”
[27]
It then immediately answers this question in the negative: “
Even
where the decision is defective… government should generally
not be exempt from the forms and processes of review. It
should be
held to the pain and duty of proper process. It must apply formally
to a court to set aside the defective decision, so
that the court can
properly consider its effects on those subject to it”.
[28]
In rejecting the government’s argument in
Kirland
that
Oudekraal
ought to be reconsidered, the Court at paragraph 89
reaffirmed the principle and pointed out that anything to the
contrary would
amount to – “
a licence to self-help. It
invites officials to take the law into their own hands by ignoring
administrative conduct that they consider
incorrect. That would spawn
confusion and conflict, to the detriment of the administration and
the public. And it would undermine
the court’s supervision of
the administration.”
ANALYSIS
[29]
The defendant argues that the conclusion of the agreement was in
breach of the legislative regime
in place to give effect to section
217 of the Constitution, and was thus unconstitutional and invalid.
It seeks a declaratory to
this effect. However it is cast, the fact
that the defendant’s challenge is an administrative law
challenge to the validity
of a particular decision, which must
therefore be brought before this Court properly, but also in
accordance with the principle
of legality, which is the foundational
component of the rule of law.
[18]
[30]
However, the defendant has never challenged its own decision to
conclude the agreement, by way
of a direct review application. Its
invocation of the constitutional and statutory regime does not assist
it, even if there were
some unconstitutionality, the agreement is not
thereby rendered a nullity as it continues to exist in law and fact,
although it
may be liable to be set aside on review.
[19]
[31]
Further,
Kirland
makes it plain that organs of state, like the
defendant, cannot simply ignore their own actions, which they believe
to be unlawful.
They are obliged “
to do right, and do it
properly.”
To amplify the aforementioned, it means that the
defendant was required to institute a formal, direct application to
review and
set aside the agreement.
To
this end, I am reminded of the majority judgment’s explicit
statements in
Kirland
which states that: “
When
government errs by issuing a defective decision, the subject affected
by it is entitled to proper notice, and to be afforded
a proper
hearing, on whether the decision should be set aside. Government
should not be allowed to take shortcuts…. Once
the subject has
relied on a decision, government cannot, barring specific statutory
authority, simply ignore what it has done.
The decision, despite
being defective, may have consequences that make it undesirable or
even impossible to set aside. That demands
a proper process, in which
all factors for and against are properly weighed.”
[32]
I have considered the judgments in
Merafong
and
Tasima
and
am in agreement with the plaintiff that there seems to have been some
terminological confusion introduced by these judgments.
I have duly
noted that the exception that is raised herein by the defendant is
referred to as a ‘collateral challenge’,
or a ‘reactive’
or even a ‘defensive’ challenge. The key point is that it
is raised as a defence in enforcement
proceedings, which are not
intended to consider the validity of the act in question. To this
end, I am in agreement with the plaintiff
that this is a critical
distinction from what this court is called upon to determine in the
present matter.
[33]
I am further reminded of what was said at paragraph 32 in Oudekraal,
wherein the Court emphasised
that a collateral challenge is one “
to
the validity of the administrative act that is raised in proceedings
that are not designed directly to impeach the validity of
the
administrative act”.
However, in opening the door to collateral challenges, the Supreme
Court of Appeal also expressly acknowledged that- “
A
collateral challenge to the validity of an administrative act will be
available… only ‘if the right remedy is sought
by the
right person in the right proceedings’ Whether or not it is the
right remedy in any particular proceedings will be
determined by the
proper construction of the relevant statutory instrument in the
context of the principles of the rule of law.”
[20]
[34]
A collateral challenge may only be raised where a person is coerced
by a public authority to
do or refrain from doing something, in terms
of unlawful administrative action. It is an exceptional remedy that
must be justified
by the facts and circumstances if the case.
Accordingly, in my view this is not the case here.
[35]
A “collateral review” enjoys a unique status in
administrative law as set out in
Kouga Municipality v Mark
Bellingan and Others
2012 (2) SA 95
(SCA)
, para 12. I am in
agreement with the submission of the plaintiff that the defendant has
sought to take advantage of this special
status in a deliberate
attempt:
a).
First, to overcome the inordinate delay in bringing the review;
b).
Second, to circumvent the other procedural and substantive safeguards
afforded to the plaintiff in a
review application (including the
right to the record, without which the Court cannot responsibly
determine the validity or otherwise
of the agreements, and the
application of the
Plascon-Evans
rule that would inevitably inure to the benefit of the
plaintiff);
[21]
c).
Third, to close down the possibility of the Court’s determining
that a just an equitable
remedy would in fact entail an order crafted
along the lines of the order in the
Gijima
case, which would
mean that the defendant would still be required to make payment of
the outstanding amounts under the agreement.
[36]
In
Kwa Sani Municipality v Underberg/HImeville Community Watch
Association
2015 (2) All SA 657
(SCA)
it was confirmed that
collateral review is not available where the public body which took
the decision seeks to resist compliance
with its own decision.
FINDING
[37]
I accept the allegations of fact in the defendant’s plea and
counterclaim as true and correct,
to the extent that “the
accounting officer and/or the adjudication committee of the defendant
did not act [as required by
the defendant’s SXM policy and the
relevant procurement prescripts]” when the decision to enter
into the agreement
was taken.
[38]
I accept that this Court may not at this stage consider anything
outside the pleaded facts. Accordingly,
this Court must accept that
the defendant has at no stage applied to Court for the judicial
review and setting aside of its decision
to enter into the agreement
with the plaintiff.
[39]
In the circumstances, it is clear from the totality of the evidence
that the defendant has failed
to take proper steps to have a court
confirm their view that the agreements are unlawful, through direct
review; and in the absence
of direct review, waited until the
plaintiff sought to enforce its rights under the agreement before
raising their constitutional
argument as a defence to the plaintiff’s
claims through a “collateral challenge”.
[40]
Having due regard to the facts of this matter as well as the case
law, I find that it was essential
for the defendant’s to have
instituted a formal, direct review application, as required by the
Constitutional Court in
Kirland
. This is not a mere formality
nor does it place unnecessary procedural obstacles in the path of the
state’s endeavours to
uphold the rule of law and the principle
of legality. The state, including the defendant, must do right, and
must do it properly.
[41]
I find that the defendant’s plea and counterclaim are not, nor
are they capable of being
“collateral challenges” and
therefore enjoy none of the benefits afforded to that special
category of reviews.
[42]
I find the agreement between the parties to be binding and
enforceable, as it has not been set
aside.
[43]
I now turn to deal with the plaintiff’s submissions in respect
of the judgment in
Trudon 1
. It is trite that a single judge
is bound by the decision of another single judge in the same
division. A recent finding by the
full court, Gauteng Division in
Democratic Alliance v President of the Republic of South Africa
921424/2020) [2020] ZAGPPHC 326 (29 July 2020)
effectively
confirms that the Pretoria and Johannesburg High Courts fall under
the same division. The full court found that the
decision of the full
court in Pretoria is binding on “all courts in Gauteng”.
It was stated as follows: “
Mr Cockrell noted that the ratio
of this Court would bind all courts in Gauteng and may also bind all
other divisions of the High
Court subsequent to the enactment of the
Superior Courts Act. In
this connection he cited and article by
Malcolm Wallis “Whose decisis must we stare””
(2018) 135 SALJ 1.
There is no need to engage in the interesting
issues raised by Judge Wallis, writing in an extra curial capacity.
There is a binding
ratio in that, at the very least, the judgment of
this court is binding on all courts in Gauteng.”
[44]
In the circumstances, I am duly satisfied that the plaintiff has made
out a proper case for the
relief it seeks herein. I am satisfied that
the decision in
Trudon 1
is not wrong and accordingly conclude
that this Court is bound thereto on the principle of
stare decisis
et non quieta movere
. I pause to mention that I would have
nonetheless found as I do, even in the absence of
Trudon 1
.
However, I find that my view and conclusion are fortified by the
findings and outcome therein.
ORDER
[45]
In the result, I make the following order:
[a].
The plaintiff’s exception is upheld.
[b].
Paragraphs 2.2 to 2.15 of the defendant’s plea, and the
entirety of the defendant’s
counterclaim dated 03 September
2019 are struck out.
[c].
The defendant is ordered to pay the plaintiff’s costs of the
exception, such costs
to include the costs of two counsel.
C
I MOOSA
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
JOHANNESBURG
01
FEBRUARY 2021
Counsel
for the Plaintiff:
GW Girdwood SC
MZ Gwala
Instructed
by:
Adams & Adams
Lynwood Bridge Office
Park
4 Daventry Street
Lynnwood Manor
Pretoria
Tel: 0124326117
leander.opperman@adams.africa
Ref: LJO/VN/ot/LT4354
Counsel
for the Defendant
A G Amiradakis
Instructed
by:
Moodie & Robertson
12
th
floor
East Wing
Libridge Building
25 Ameshoff Street
Braamfontein
Johannesburg
Tel: 0116288600
Ref: Tumelo
Lethetsa/J308506
Date
of hearing:
20 October 2020
Date
of Judgment:
01 February 2021
[1]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222
(SCA)
[2]
Oudekraal
supra at para 35
[3]
Marney
v Watson
1978 (4) SA 140
(C) at 144 F - G
[4]
Pretorius
& Another v Transport Pension Fund & Other
2018 ZACC 10
,
para 15
[5]
H
v Fetal Assessment Centre
2015 (2) SA 193
(CC) at para 10 [quoting
Telematrix (Pty) Ltd v Advertising Standards Authority SA
2006 (1)
SA 461
(SCA) at para 3]
[6]
Trustees
for the Time Being of the Children’s Resource Centre Trust and
Others v Pioneer Food (Pty) Ltd and Others
2013 (2) SA 213
(SCA) at
para 36
[7]
Ocean
Echo Properties 327 CC and Another v Old Mutual Life Assurance
Company (SA) Ltd
2018 (3) SA 405
(SCA) at para 9
[8]
See
Defendant’s plea, Caselines 005-9 - 005-10 (pages 26 -27),
para 2.15
[9]
Pretorius
and Another v Transport Pension Fund and Others
2019 (2) SA 37
(CC)
at para 15
[10]
Plaintiff’s
exception, Caselines 006-2, para 4
[11]
Trudon
1, supra; para 8.1
[12]
Trudon
1, supra; para 8.2
[13]
Trudon
1, supra ; para’
s 19
and
28
[14]
M
Wallis “Whose decisis must we stare?”
(2018) 135 SALJ 1
(“Article”)
[15]
AllPay
Consolidated Investment Holdings (Pty) Ltd v Chief Executive
Officer, South African Social Security Agency and Others (No2)
2014
(4) SA 179
(CC) para 30
[16]
Pepkor
Retirement Fund and Another v Financial Services Board and Another
2003 (6) SA 38
(SCA); Ntshangase v MEC for Finance, KwaZulu-Natal
and Another 2010 (3) SA 201 (SCA)
[17]
Oudekraal
supra at para 26
[18]
Following
the Constitutional Court’s judgment in State Information
Technology Agency SOC Limited v Gijima Holdings (Pty)
Ltd
2018 (2)
SA 23
(CC) at para 40, it is apparent that PAJA does not avail the
State where the State seeks to review and set aside its own
decisions
[19]
Kirland
supra para 65
[20]
Oudekraal
at para. 35, citing Wade Administrative Law 6
th
edition at 331
[21]
See
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634E – 635E