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[2010] ZASCA 94
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Calibre Clinical Consultants (Pty) Ltd and Another v National Bargaining Council for the Road Freight Industry and Another (410/09) [2010] ZASCA 94; 2010 (5) SA 457 (SCA) ; [2010] 4 All SA 561 (SCA) (19 July 2010)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No: 410/09
In the matter between:
CALIBRE CLINICAL CONSULTANTS (PTY)
LTD First
Appellant
THE RIGHT TO CARE CONSORTIUM Second Appellant
and
THE NATIONAL
BARGAINING COUNCIL FOR THE
ROAD
FREIGHT
INDUSTRY First Respondent
HIV MANAGED CARE SOLUTIONS (PTY) LTD Second
Respondent
Neutral citation:
Calibre
Clinical Consultants (Pty) Ltd v National Bargaining Council for the
Road Freight Industry
(410/09)
[2010] ZASCA 94
(19 July 2010)
Coram:
NUGENT,
LEWIS, PONNAN, CACHALIA and LEACH JJA
Heard:
7
MAY 2010
Delivered:
19
JULY 2010
Summary:
Bargaining
Council established under
Labour Relations Act 66 of 1995
–
decisions relating to procurement of services – whether subject
to judicial review under the
Promotion of Administrative Justice Act
3 of 2000
– whether decisions in conflict with that Act.
_____________________________________________________________________
__
ORDER
_____________________________________________________________________
__
On appeal from:
South
Gauteng High Court, Johannesburg (Willis J sitting as court of first
instance).
The appeal is dismissed. The appellants, jointly and severally, are
to pay the costs of the appeal, and the reserved costs of the
application for interim relief. The costs in each case are to include
the costs of two counsel so far as two counsel were employed.
_____________________________________________________________________
__
JUDGMENT
_____________________________________________________________________
__
NUGENT JA
(LEWIS,
PONNAN, CACHALIA and LEACH JJA concurring).
[
1] The first respondent
– the Bargaining Council for the Road Freight Industry –
is a bargaining council established
under the enabling provisions of
s 27 of the Labour Relations Act 66 of 1995 (LRA). Wishing to appoint
a service provider to manage
one of its projects the council invited
interested parties to submit proposals for its consideration.
Proposals were submitted
by, amongst others, a partnership
1
comprising Thebe Ya Bophela Healthcare Administrators (Pty) Ltd
(Thebe) and Calibre Clinical Consultants (Pty) Ltd (the latter
is the
first appellant
2
)
to which I shall refer as the partnership, and by a consortium (the
second appellant) comprising Right to Care Limited and the
remaining
appellants, to which I shall refer as the consortium.
[
2] After considering
the various proposals the council decided not to appoint any of those
who had submitted proposals. Instead
it asked the auditing firm KPMG
to assist it to identify an appropriate service provider. Two
candidates were identified, one of
which was the second respondent,
HIV Managed Care Solutions (Pty) Ltd (it trades under the name
Careworks and I will refer to it
as such) which the council
appointed.
[
3] Aggrieved by the
decisions of the council the appellants
3
applied to the High Court at Johannesburg to review and set them
aside,
4
relying upon the provisions of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA). Their application was dismissed by
Willis J. This appeal against his order is before us with the leave
of this court.
[
4] It is convenient at
the outset to outline the nature of a bargaining council. Section
27(1) of the Labour Relations Act 66 of
1995 (LRA) allows for one or
more registered trade unions and one or more registered employers'
organisations to establish a bargaining
council for a particular
industry and area. The parties do so by adopting a constitution and
having the bargaining council registered.
A bargaining council exists
primarily as a forum for collective bargaining between the parties.
Generally the parties will conclude
collective agreements from time
to time, which become binding on them and on their members. In
certain circumstances the Minister
may extend the terms of a
collective agreement to third parties in the industry by a
declaration to that effect published in the
Government Gazette. A
bargaining council has various statutory powers to enforce the terms
of its collective agreements.
[
5] In addition to
serving as a forum for collective bargaining a bargaining council
might also undertake other functions directed
at maintaining
industrial harmony and promoting the welfare of employees in the
industry. In particular a bargaining council is
empowered by the LRA
– powers that are replicated in the constitution of the council
in this case – to ‘promote
and establish training and
education schemes’
5
and to ‘establish and administer pension, provident, medical
aid, sick pay, holiday, unemployment and training schemes or
funds or
any similar schemes or funds for the benefit of one or more of the
parties to the bargaining council or their members.’
6
[
6] The material facts
in this case are lucidly set out in the judgment of the court below
but some repetition is necessary to explain
in more detail how this
matter arose. The council’s concern for the impact of the
HIV/AIDS pandemic on employees in the road
freight industry led it to
establish an awareness programme that it called ‘Trucking
Against AIDS’. In about 2007 the
parties to the council agreed
to extend that programme by establishing what it called a ‘wellness
fund’ that would,
amongst other things, introduce and maintain
a programme to provide anti-retroviral treatment to employees in the
industry. Their
agreement to establish the fund, and the terms upon
which it was to function, were recorded in a clause that was inserted
into
the existing collective agreement. The collective agreement had
been extended to the industry generally by declaration of the
Minister
in the Gazette and the amendment was similarly extended.
[
7] The fund was to be
financed from compulsory contributions levied upon employers and
employees. It was agreed that the fund would
be under the control of
what was referred to in the evidence as a ‘wellness committee’
(called an ‘AIDS committee’
in the agreement) and it was
agreed that the committee ‘may contract with service providers
for the provision of services,
facilities, publications, support,
training, counseling, presentations and all other forms of services
necessary for the implementation
and continuance of the plan …’.
[
8] The council needed
an appropriate service provider to manage and administer the
programme. In about July 2007 it invited selected
parties to submit
proposals for the provision of such a service. The service that was
required encompassed the co-ordination of
an anti-retroviral
management programme, the provision of education and training, the
provision of a counseling service, the procurement
of
pharmaceuticals, and the establishment of a drug distribution
service. A poor response to its invitations prompted the council
later to advertise the invitation more generally.
[
9] Written proposals
were submitted by, amongst others, the partnership and the
consortium. In September 2007 the various proposers
were invited to
present their proposals to an interview panel. On 5 October 2007 the
council wrote to the consortium, congratulating
it on its
presentation, and advising that the panel had decided in principle
that the consortium should be appointed, but that
a due diligence
review was still required. It was told that once that had been
completed the panel would ‘put together a
recommendation to the
Council for final adjudication’.
[
10] The council
instructed a firm of auditors, SizweNtsaluba VSP, to perform what was
described as a ‘limited financial due
diligence review’
of the various bidders ‘for the sole purpose of assisting the
[council] in assessing the appropriateness
of the bidders as the
designated Wellness Program Service Provider’. SizweNtsaluba
duly performed the review and submitted
a substantial report dated 6
December 2007.
[
11] In its report
SizweNtsaluba raised certain concerns that it said ‘might
require further discussion and consideration’
before the
council selected the bidder concerned. So far as the partnership was
concerned it was reported, amongst other things,
that Thebe was
insolvent (its liabilities exceeded its assets by R130 556). So far
as the consortium was concerned two concerns
were expressed:
‘
The [Right to Care] consortium is heavily reliant
on a single individual who will be in charge of co-ordinating the
project with
no clear indication of succession planning regarding the
replacement of this person should it prove necessary’
(The person concerned was Dr
Grietjie
Strydom, who was the sole employee of one of the members of the
consortium.)
‘
[Right to Care] is heavily
reliant on income from a single source, namely USAID.
The income is reliant on dependencies that are not under the control
of [Right to Care].’
[
12] After considering
the report the council requested SizweNtsaluba to ‘engage with
the bidders and report back’ on
the steps taken by the various
bidders to address the concerns that had been expressed.
SizweNtsaluba raised its concerns with
the partnership and with the
consortium. The partnership responded in a further presentation that
it made to SizweNtsaluba and
also submitted further documents, while
the consortium responded in writing.
[
13] On 18 February 2008
SizweNtsaluba submitted a further report to the council in which it
provided a summary of the responses
it had received. As far as the
insolvency of Thebe was concerned it reported Thebe’s response
as follows:
‘
There is a [memorandum of
understanding] in place between [Thebe Investment Corporation]
7
and [Thebe] whereby [Thebe Investment Corporation] has subordinated
its claims against [Thebe] for the benefit of other creditors.
In the
letter from [Thebe Investment Corporation] to [the council] (dated 6
September 2007) it was stated that [Thebe Investment
Corporation]
regards the provision of affordable healthcare as a core component of
their financial services strategy and are fully
committed to
establishing [Thebe] as a major player in the healthcare industry. As
a result, [Thebe Investment Corporation] will
continue to provide
full financial backing to [Thebe] to enable [Thebe] to meet its
objectives.’
As for the two concerns raised in relation to the consortium the
response was reported as follows:
‘
RTC has stated that as the
primary partner in the contract with [the council], RTC will take
full responsibility for the implementation
of the project.
Dr Grietjie Strydom will increase her capacity in the organization to
meet the needs of [the council].’
‘
RTC has stated that it is expanding its
interventions and programmes into the private sector and is
broadening the funding base
across the organisation, thereby further
diversifying the funding of its revenue.’
[
14] On 27 February 2008
the Wellness Committee met to consider the reports. Meanwhile a
further concern had arisen. On the previous
day the council received
a letter from Alexander Forbes Financial Services (Pty) Ltd. The
council was informed that Dr Grietjie
Strydom had formerly been
employed by Alexander Forbes, and was subject to a restraint
agreement that precluded her from providing
AIDS intervention
programmes and from dealing with clients or potential clients of
Alexander Forbes, until November 2009. The council
sent a copy of the
letter to the consortium. Dr Strydom’s response was that she
had been advised by her attorneys that the
restraint was not
enforceable. The council also sought the advice of its attorneys, who
advised that the risk of the restraint
being enforced was slender but
that the council would need to weigh that against the material harm
that would result if it was
indeed enforced.
[
15] The committee
remained uncomfortable with appointing both the partnership and the
consortium and it sought a second opinion
from KPMG. KPMG reviewed
the information that had been before SizweNtsaluba. It expressed the
opinion that ‘the issues highlighted
by Ntsaluba relating to
the appointment of the consortium had been addressed’ and
recommended that it be awarded the contract.
[
16] The wellness
committee considered the matter at meetings held on 23 and 26 May
2008. It felt itself unable to agree with the
opinion that had been
expressed by KPMG. It considered that neither the partnership nor the
consortium had adequately addressed
the concerns that had been raised
by SizweNtsaluba and decided to recommend to the council that neither
should be appointed. Instead
KPMG should be asked to identify
alternative service providers. The council adopted the committee’s
recommendations on 28
May 2008.
[
17] KPMG duly
identified Careworks and another organisation as potential service
providers. A due diligence review revealed no difficulties
with
either and KPMG recommended that Careworks be appointed. The
committee, and ultimately the council, resolved to appoint Careworks
and a formal contract was concluded on 1 December 2008.
8
[
18] In their notice of
motion the appellants sought orders setting aside the council’s
decision not to appoint any of the
initial bidders, its decision to
exclude the appellants when identifying alternative providers, and
its decision to appoint Careworks.
[
19] The decisions of
the council are susceptible to review at the instance of the
appellants only if they constitute ‘administrative
action’
as contemplated by PAJA, which is defined as much by the nature of
the decision concerned (or the failure to make
a decision) as by its
source. In that respect it constitutes ‘administrative action’
only if, amongst other things,
it was made by
‘
(a)
an
organ of state when –
exercising
a power in terms of the Constitution or a provincial constitution;
or
exercising a public power or
performing a public function
in terms of any legislation; or
(b) a natural or juristic person,
other than an organ of state, when exercising a public power or
performing a public function in
terms of an empowering provision ….’
[
20] PAJA provides that
an ‘organ of state’ bears the ‘meaning assigned to
it in section 239 of the Constitution’
– and that section
defines the term to mean
‘
(a) any department of state or administration in
the national, provincial or local sphere of government; or
(b) any other functionary or institution –
(i) exercising a power or performing a function in terms
of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public
function in terms of any legislation
…
.’
[21]
It will be readily
apparent that once that definition is inserted in PAJA’s
definition of ‘administration action’
much of the latter
definition is tautologous. Had the term been defined in PAJA to mean
‘
a decision taken (or any failure to
take a decision) by an institution or functionary exercising a public
power or performing a
public function’
9
it would have covered much the same ground. Once the definition is
stripped of its superfluity the enquiry in the present case
really
comes down to whether the council, in making the decisions that are
sought to be impugned, was ‘exercising a public
power or
performing a public function’.
[
22] The scope of
judicial review in the context of the present case
10
has been the subject of enquiry in numerous cases in other
jurisdictions. In
AAA Investments (Pty)
Ltd v Micro Finance Regulatory Council
11
Yacoob J observed that in the United
States institutions are subject to constitutional review
‘
if in the final analysis, they
can be said to be
“an
agency or instrumentality of the United States”’.
12
He observed that in
Canada
‘
[i]t is well established that
the Charter applies to all the activities of a government entity
whether those activities are described
as private, and that the
Charter may also apply to non-governmental entities when engaged in
activities that are governmental in
nature …
.
When it is alleged that the action of a private entity violates the
Charter it must be established that the entity, in performing
the
function, is part of government within the meaning of s 32(1).’
13
[
23] It would be
superfluous to retrace the authorities in those countries that led
the learned judge to those conclusions. But very
much the same
approach has been taken by the courts in England and it is
instructive to explore in some detail the leading cases
in that
regard.
[24] In determining the scope of judicial review
at common law the courts in that country have always looked to
whether the conduct
in question has features that might be said to be
‘governmental’ in nature. While at one time the source of
the power
that was exercised by the body concerned was considered to
be determinative the authors of
De
Smith’s Judicial Review
14
observe that in more recent times courts have considered that to be
too restrictive. They go on to say:
‘
Since 1987
[the
courts] have developed an additional approach to determine
susceptibility [to judicial review] based on the type of
function
performed
by the
decision-maker. The “public function” approach is, since
2000, reflected in the Civil Procedure Rules: CPR. 54.1(2)(a)(ii),
defines a claim for judicial review as a claim to the lawfulness of
“a decision, action or failure to act in relation to
the
exercise of a public function”’.
[
25] On that extended
approach the courts, once more, have consistently taken account of
the extent to which the conduct in question
might or might not have
features that are ‘governmental’ in nature when
determining whether it is reviewable. In the
seminal decision that
marked the start of that more expansive approach –
Regina
v Panel on Take-Overs and Mergers, Ex parte Datafin Plc
15
–
the Master of the Rolls said
the following of the Panel on Take-overs and Mergers (an
unincorporated association without legal personality,
having about
twelve members appointed by and representing various financial
bodies):
‘
No one could have been in the
least surprised if the panel had been instituted and operated under
the direct authority of statute
law, since it operates wholly in the
public domain. Its jurisdiction extends throughout the United
Kingdom. Its code and rulings
apply equally to all who wish to make
take-over bids or promote mergers, whether or not they are members of
bodies represented
on the panel.
Its lack of a direct statutory base is a complete anomaly, judged by
the experience of other comparable markets world wide. The
explanation is that it is a historical “happenstance”, to
borrow a happy term from across the Atlantic. Prior to the
years
leading up to the “Big Bang”, the City of London prided
itself upon being a village community, albeit of a unique
kind, which
could regulate itself by pressure of professional opinion. As
government increasingly accepted the necessity for intervention
to
prevent fraud, it built on City institutions and mores, supplementing
and reinforcing them as appeared necessary. It is a process
which is
likely to continue, that the position has already been reached in
which central government has incorporated the panel
into its own
regulatory network built up under the Prevention of Fraud
(Investments) Act 1958 and allied statutes, such as the
Banking Act
1979.’
[
26] Later, in
Regina
v Disciplinary Committee of the Jockey Club, Ex parte Aga Khan
,
16
which held that conduct of the Jockey Club was not susceptible to
public law review, the Master of the Rolls said:
‘
[The Jockey Club] has not been
woven into any system of governmental control of horseracing, perhaps
because it has itself controlled
horseracing so successfully that
there has been no need for any such governmental system and such does
not therefore exist. This
has the result that while the Jockey Club’s
powers may be described as, in many ways, public they are in no sense
governmental.’
In the same case Lord Justice
Hoffman
said:
17
‘
What one has here
[referring
to
Regina v Panel on
Takeovers and Mergers, ex parte Datafin Plc
18
]
is a privatisation of the business of government itself. The same has
been held to be true of the Advertising Standards Authority
…
and the Investment Management Regulatory Organisation Ltd.…
Both are private bodies established by the industry
but integrated
into a system of statutory regulation. There is in my judgment
nothing comparable in the position of the Jockey
Club.’
[
27] A similar approach
is reflected in the decision of Simon Brown J in
Regina
v Chief Rabbi of the United Hebrew Congregations of Great Britain and
the Commonwealth, Ex parte Wachmann:
19
‘
To say of decisions of a given
body that they are public law decisions with public law consequences
means something more than that
they are deci
sions
which may be of great interest or concern to the public or, indeed,
which may have consequences for the public. To attract
the court’s
supervisory jurisdiction there must be not merely a public but
potentially a governmental interest in the decision-making
power in
question.… In other words, where non-governmental bodies have
hitherto been held reviewable, they have generally
been operating as
an integral part of a regulatory system which, although itself
non-statutory, is nevertheless supported by statutory
powers and
penalties clearly indicative of government concern.’
[
28]
De
Smith’s Judicial Review
notes
that in applying a ‘public functions’ test the courts
have held decisions taken by the following, amongst others,
to be
susceptible to judicial review: the Advertising Standards Authority;
the Press Complaints Commission; the Code of Practice
Committee of
the Association of the British Pharmaceutical Industry; the Life
Assurance Unit Trust Regulatory Organisation; London
Metal Exchange
Ltd; the managers of a privately owned psychiatric hospital; and
Hampshire Farmers Markets Ltd. On the other hand
the courts have not
been receptive to exercising those powers over sports governing
bodies,
20
religious bodies,
21
and various commercial organisations,
22
notwithstanding the influence they assert in substantial sectors of
the community.
[
29] More recently the
courts in that country have been statutorily empowered to test
conduct for compatibility with the European
Convention on Human
Rights by s 6 of the Human Rights Act 1998, which provides:
‘
(1) It is unlawful for a public authority to act
in a way which is incompatible with a Convention right.
…
(3) In this section
“public
authority” includes … (b) any person certain of whose
functions are functions of a public nature …
…
(5) In relation to a particular act, a person is not a
public authority by virtue only of subsection 3(b) if the nature of
the act
is private.’
[
30] In determining
whether a function is ‘of a public nature’ for purposes
of that legislation the courts, again, have
searched for the presence
or absence of features of the conduct in question that are
‘governmental’ in nature. In
Aston
Cantlow and Wilmcote with Billesley Parochial Church Council v
Wallbank
23
Lord Nicholls of Birkenhead approached the question as follows:
‘
What
,
then, is the touchstone to be used in deciding whether a function is
public for this purpose? Clearly there is no single test
of universal
application. There cannot be, given the diverse nature of
governmental functions and the variety of means by which
these
functions are discharged today. Factors to be taken into account
include the extent to which in carrying out the relevant
function the
body is publicly funded, or is exercising statutory powers, or is
taking the place of central government or local
authorities, or is
providing a public service.’
24
[
31] In
YL
(by her litigation friend the Official Solicitor) v Birmingham City
Council,
25
the House of Lords was divided on the question whether a private care
home exercised ‘functions of a public nature’
in relation
to residents who had been placed by the local authority in fulfilling
its statutory obligation to provide such care.
26
Notwithstanding the division the enquiry in each case was conducted
with reference to the extent to which the home could be said
to be
performing governmental functions. Thus Lord Bingham (in the
minority) said the following:
27
‘
As Lord Nicholls also observed
[in
Aston Cantlow
]
(at [12]), there is no single test of universal application to
determine whether a function is of a public nature. A number of
factors may be relevant, but none is likely to be determinative on
its own and the weight of different factors will vary from case
to
case. Tempting as it is to try and formulate a general test
applicable to all cases which may arise, I think there are serious
dangers in doing so.’
He went on to list as relevant factors
‘
the role
and
responsibility of the state in relation to the subject matter in
question, ... the nature and extent of any statutory power
or duty in
relation to the function in question, … the extent to which
the state, directly or indirectly, regulates, supervises
and inspects
the performance of the function in question, and imposes criminal
penalties on those who fall below publicly promulgated
standards in
performing it, … whether the function in question is one for
which, whether directly or indirectly, and whether
as a matter of
course or as a last resort, the state is by one means or another
willing to pay, … the extent of the risk,
if any, that
improper performance of the function might violate an individual's
convention right.’
28
Baroness Hale of Richmond
(also in the minority) said the following:
29
‘
While there cannot be a single
litmus test of what is a function of a public nature, the underlying
rationale must be that it is
a task for which the public, in the
shape of the state, have assumed responsibility, at public expense if
need be, and in the public
interest…. One important factor is
whether the state has assumed responsibility for seeing that this
task
is performed.…
Another important factor is the public interest in having that task
undertaken… Another important
factor is public funding …
Another factor is whether the function involves or may involve the
use of statutory coercive
powers.’
Reciting with approval
extracts
from the various speeches in
Aston
Cantlow
, Lord Neuberger said:
‘
Even more to the point, Lord
Hope also said (at [49]) that
“public
functions” in this context is thus clearly linked to the
functions and powers, whether centralised or distributed,
of
government.…. Lord Rodger referred (at [159], [160] and [163])
to entities “exercising governmental power”,
“carrying
out the functions of government” and having the “public
function of government”. This is very
much in line with the
broader approach of Lord Nicholls: while stressing that it was “no
more than a useful guide”,
he said (at [10]) that in the light
of “the repetition of the description ‘public’”
in s 6(3)(b), “essentially
the contrast being drawn is between
functions of a governmental nature and functions, or acts, which are
not of that nature”.
To similar effect, Lord Hobhouse of
Woodborough (at [88]) invoked the test of a function which is
“governmental in nature”
and of entities which are
“inherently governmental” (At para [159]).’
[
32] In
AAA
Investments
30
Yacoob J, having noted the position in the United States and Canada,
said the following:
‘
Our Constitution ensures, as
in Canada and the United States, that government cannot be released
from its human rights and rule
of law obligations simply because it
employs the strategy of delegating its functions to another entity.
Our Constitution does
not do this, however, by an expanded notion of
the concept of Government or the Executive or by relying on concepts
of agency or
instrumentality.
It does so by a relatively broad definition of an organ of State.
This definition renders the legality principle and the Bill
of Rights
applicable to a wider category of function than the Charter does in
Canada. … In our constitutional structure,
the Council or any
other entity does not have to be part of government or the government
itself to be bound by the Constitution
as a whole.’
[
33] To the extent that
the learned judge might be taken to have suggested in that passage
that the power of review in this country
might extend beyond
functions that, broadly speaking, might be said to be governmental in
nature, the learned judge did not expand
upon what those functions
might be. But consistent with the approach that is followed in other
jurisdictions the basis for the
decision in that case was nonetheless
that the Micro Finance Regulatory Council indeed performed a
‘governmental’ function,
so far as it was the instrument
through which the Minister exercised regulatory control over the
industry.
31
[
34] Governmental
control over the licensing of the Johannesburg Stock Exchange was
determinative of its susceptibility to review
in
Dawnlaan
Beleggings (Edms) Bpk v Johannesburg Stock Exchange,
32
decided before the present constitutional dispensation, in which
Goldstone J said the following:
‘
In my judgment, the enquiry
posed in the present case is whether the terms of the Act impose a
public duty upon the JSE to adhere
to its own rules and requirements.
In my view such a duty is clearly imposed by the Act. In the first
place a stock exchange may
only be licensed in the public interest
:
... In the second place, the rules of a stock exchange are required
to be published in the
Government
Gazette.
Thus the
whole public is required to be given notice of such rules. ....
Thirdly, interested parties, apart from members of the
stock
exchange, may object to amendments of, or additions to, those rules
after publication thereof in the
Government
Gazette
. ... Then
the rules are designed to ensure that the stock exchange is carried
on with due regard to the public interest: ... To
regard the JSE as a
private institution would be to ignore commercial reality and would
be to ignore the provisions and intention
of the Act itself. It would
also be to ignore the very public interest which the Legislature has
sought to protect and safeguard
in the Act.’
[
35] Some recent
decisions of the high courts in this country reflect a more expansive
approach but they are not always consistent.
The question whether the
conduct of a political party is susceptible to review
33
evoked varying responses in
Marais v
Democratic Alliance,
34
Van Zyl v New National Party,
35
and
Max v
Independent Democrats.
36
In
Cronje v United Cricket Board of
South Africa
37
it was held, consistently with decisions in England,
38
that the United Cricket Board did not perform a public function.
Kirk-Cohen J expressed his reasons for that conclusion as follows:
‘
The respondent is not a public
body. It is a voluntary association wholly unconnected to the State.
It has its origin in contract and not in statute. It powers are
contractual and not statutory. It functions are private and not
public. It is privately and not publicly funded. The applicant,
indeed, makes the point that it “has no statutory recognition
or any “official” responsibility for the game of cricket
in South Africa.”’
39
[
36] On the other hand,
in
Tirfu Raiders Rugby Club v SA Rugby
Union
,
40
Yekiso J held that the SA Rugby Union exercised public powers and
performed a public function, principally, it seems, because the
matters in which it engages are matters of public interest.
41
I have considerable doubt whether a body can be said to exercise
‘public powers’ or perform a ‘public function’
only because the public has an interest in the manner in which its
powers are exercised or its functions are performed, and I find
no
support for that approach in other cases in this country or abroad.
[
37] In
Mittalsteel
South Africa (Ltd) (formerly Iscor Ltd) v Hlatswayo
42
this court enquired into the meaning of
a ‘public body’ under the Promotion of Access to
Information Act 2 of 2000 (which
is defined in much the same terms as
the definition with which we are concerned) and relied heavily upon
the extent to which the
body exhibited governmental features.
[
38] Thus in cases
concerning the scope of public law judicial review in other countries
– and most often in this country as
well – courts have
consistently looked to the presence or absence of features of the
conduct concerned that is governmental
in nature. What has been
considered to be relevant is the extent to which the functions
concerned are ‘woven into a system
of governmental control’,
or ‘integrated into a system of statutory regulation’, or
the government ‘regulates,
supervises and inspects the
performance of the function’, or it is ‘a task for which
the public, in the shape of the
state, have assumed responsibility’,
or it is ‘linked to the functions and powers of government’,
or it constitutes
‘a privatisation of the business of
government itself’, or it is publicly funded, or there is
‘potentially a
governmental interest in the decision-making
power in question’, or the body concerned is ‘taking the
place of central
government or local authorities’, and so on.
[
39] While curial
pronouncements from other jurisdictions are not necessarily
transferrable to this country they can nonetheless
be instructive. I
do not find it surprising that courts both abroad and in this country
– including the Constitutional Court
in
AAA
Investments –
have almost always
sought out features that are governmental in kind when interrogating
whether conduct is subject to public law
review. Powers or functions
that are ‘public’ in nature, in the ordinary meaning of
the word, contemplates that they
pertain ‘to the people as a
whole’ or that they are exercised or performed ‘on behalf
of the community as a whole’
43
(or at least a group or class of the public as a whole
44
),
which is pre-eminently the terrain of government.
[
40] It has been said
before that there can be no single test of universal application to
determine whether a power or function is
of a public nature and I
agree. But the extent to which the power or function might or might
not be described as ‘governmental’
in nature, even if it
is not definitive, seems to me nonetheless to be a useful enquiry. It
directs the enquiry to whether the
exercise of the power or the
performance of the function might properly be said to entail public
accountability and it seems to
me that accountability to the public
is what judicial review has always been about. It is about
accountability to those with whom
the functionary or body has no
special relationship other than that they are adversely affected by
its conduct and the question
in each case will be whether it can
properly be said to be accountable notwithstanding the absence of any
such special relationship.
[
41] A bargaining
council, like a trade union and an employers’ association, is a
voluntary association that is created by
agreement, to perform
functions in the interests and for the benefit of its members. I have
considerable difficulty seeing how
a bargaining council can be said
to be publicly accountable for the procurement of services for a
project that is implemented for
the benefit of its members –
whether it be a medical aid scheme, or a training scheme, or a
pension fund, or, in this case,
its wellness programme.
[
42] I do not find in
the implementation of such a project any of the features that have
been identified in the cases as signifying
that it is subject to
judicial review. When implementing such a project a bargaining
council is not performing a function that
is ‘woven into a
system of governmental control’ or ‘integrated into a
system of statutory regulation’.
Government does not ‘regulate,
supervise and inspect the performance of the function’, the
task is not one for which
‘the public has assumed
responsibility’, it is not ‘linked to the functions and
powers of government’,
it is not ‘a privatisation of the
business of government itself’, there is not ‘potentially
a governmental interest
in the decision-making power in question’,
the council is not ‘taking the place of central government or
local authorities’,
and most important, it involves no public
money. It is true that a government might itself undertake a similar
project on behalf
of the public at large – just as it might
provide medical services generally and pensions and training schemes
to the public
at large – but the council is not substituting
for government when it provides such services to employees with whom
it is
in a special relationship.
[
43] Much was sought to
be made by counsel for the appellants of the fact that the council’s
collective agreement – which
records the terms upon which the
wellness fund was established and is to be administered – has
been extended to the industry
in general by declaration in the
Government Gazette.
The argument, as I understand it, was that the collective agreement –
which has been called in a comparable context, a ‘piece
of
subordinate, domestic legislation’
45
– constitutes a ‘public power’ that it exercises
when it establishes and administers such a fund, but in my view
counsel’s reliance on the collective agreement is misplaced.
The collective agreement is not the source of the council’s
powers. The powers of the council emanate from its constitution, or
the equivalent powers conferred upon it by s 28 of the statute.
The
collective agreement is no more than the terms upon which the parties
have agreed that the council will exercise those powers.
[
44] That the
procurement of goods and services by the council – for whatever
purpose – is not a public function seems
to me to find support
in the Constitution itself. Government and its agencies are expected
to be publicly accountable for the contracts
that they conclude
because they are spending public money and there are two principal
reasons why that should be so. In the first
place the public is
entitled to be assured that its moneys are properly spent. And
secondly, the commercial public is entitled
to equal opportunity to
benefit from the bounty of the state to which they are themselves
contributories.
46
The accountability of government for procurement is expressly
provided for in s 217 of the Constitution, which requires that
government
bodies must contract ‘in accordance with a system
which is fair, equitable, transparent, competitive and cost
effective’,
but that prescript does not apply to a bargaining
council. It is not an ‘organ of state’ within the
narrower definition
of that term in s 217, nor is it an ‘institution
identified in national legislation’ to which that procurement
policy
applies. I also see no principial reason why it should be
publicly accountable for the contracts that it concludes. It is not
expending
public money, but money that emanates from its members and,
in some cases, others in the industry, and it is to them, not the
public,
that it is accountable for the manner in which it does so.
More important, for present purposes, I can see no basis upon which
the commercial public, who are not contributors to its funds, not
even indirectly, might justifiably be entitled to hold the council
to
account for the manner in which they are spent.
[
45] Indeed, a singular
feature of this case is that counsel for the appellants conceded,
correctly, that the council would have
been perfectly entitled to
seek out and appoint a service provider without first inviting
tenders or proposals at all. If it is
not publicly accountable for
choosing with whom to contract then I see no reason why it is
publicly accountable for choosing with
whom not to contract.
[
46] While it is true
that the council ultimately owes its existence and its powers to its
enabling statute that applies as much
to every company, which
ultimately owes its existence and its powers to company legislation,
and is by no means determinative of
whether it is publicly
accountable for its conduct through the remedy of judicial review.
Whatever the case might be in relation
to its other functions in my
view the council, when managing its wellness fund and procuring
services for that purpose, was performing
a quintessentially domestic
function in the exercise of its domestic powers, and its decisions
that are now in issue are not subject
to review at the instance of
the appellants.
47
On that ground alone the application should have failed. But even had
the decisions of the council been reviewable, which the court
below
assumed them to be, I do not think the council can be said to have
acted unlawfully.
[
47] Three decisions of
the council were sought to be impugned – its decision not to
appoint either of the appellants, its
decision to exclude them when
it sought alternatives, and its decision to appoint Careworks –
but in my view only the first
decision is really material. If the
council was entitled to reject the proposals that had been submitted
by the appellants then
it seems to me that it was not obliged to
invite them to make proposals once more (particularly as it is
conceded that it is under
no obligation to invite proposals before it
contracts). As to the claim to set aside the decision to appoint
Careworks, that claim
was not independently founded, but was founded
on the alleged invalidity of the earlier decisions.
[
48] There were really
two grounds upon which the appellants contend that the decision to
reject their proposals was unlawful. In
the first place it was
submitted that the council’s decision was procedurally unfair
in that it was obliged to have allowed
the appellants an opportunity
to be heard before it took the decision. Secondly, it was submitted
that the decision was irrational
and unreasonable.
[
49] As to the first
complaint the court below said that while the council might ideally
have invited representations from the appellants,
nonetheless:
‘
[it] must be borne in mind
that the persons making the decisions on behalf of [the council] are
not trained lawyers, they were acting
in stressful circumstances: the
record shows that they attempted to act with appropriate fairness and
they did invite the [appellants]
to make representations on the
issues of the [first appellant’s] solvency and the restraint of
trade agreement applicable
to Dr Grietjie Strydom – the two
issues that led to the decisions of which the [appellants] now
complain. Against the background
of all the relevant circumstances of
this case, it cannot, in my view, be concluded that the court should
interfere with the decision
of the [council] to award the tender to
[Careworks]. The court is averse to taking an armchair view of the
matter.’
[
50] Even if the council
acted unlawfully, the court below went on to say, ‘the court
retains a judicial discretion as to whether
or not to quash that
decision’ and that ‘[t]aking everything into account it
would not be appropriate to intervene
in the tender process in this
matter.’ Much of the argument advanced in the appellants’
heads of argument was directed
to whether the court indeed had a
discretion to refuse relief but on the view that I take of the matter
it is not necessary to
revisit that question.
48
[
51] The submissions on
behalf of the appellants treated it as self-evident that they were
entitled to be afforded a hearing before
the council rejected their
proposals but that is by no means self-evident to me. In heads of
argument presented on their behalf
it was asserted that upon
responding to the invitation to submit proposals a contract came into
being with the council, and that
the council ‘was not at
liberty to depart from the process that had been brought about
without at the very least advising
the appellants of this fact’.
In support of those assertions reliance was placed upon
Logbro
Properties CC v Bedderson NO
49
and
Nextcom (Pty) Ltd v Funde NO.
50
In
Logbro Properties
Cameron
JA pointedly expressed no opinion on whether the invitation to tender
in that case created contractual obligations.
51
In
Nextcom
Bertelsmann J said no more than that the awarding of a contract
constituted administrative action. No doubt there will be cases
in
which the terms in which tenders are invited will give rise to
contractual obligations upon their acceptance but whether that
is so
in a particular case will depend upon its facts, as with all cases of
contract. In this case there is no factual basis upon
which to
conclude that the parties came into contractual privity upon
submission by the appellants of their proposals.
[
52] The second ground
upon which it was said that the council was obliged to afford a
hearing was an assertion that it has been
‘consistently
established’ in the decided cases that procedural fairness
requires it whenever a decision is taken that
is ‘adverse to
the rights or interests of a person affected’ and that such a
right has been given ‘express content
in s 3(2)(b) of
PAJA’. I think that states the matter too widely.
[53] It is correct that a person is generally
entitled to be heard before a decision is taken that adversely
affects his or her
rights. But that does not hold true where the
decision is adverse to no more than an ‘interest’. In
Administrator, Transvaal v Traub
52
Corbett CJ pointed out that in its
classic formulation at common law the principle
audi
alterem partem
required a hearing
before a decision was taken that prejudicially affected an individual
in his or her ‘liberty or property
or existing rights’.
53
That case extended the principle to circumstances in which the
interest at stake ‘falls short of a legal right’ but
‘rises to the level of a “legitimate expectation”’
(in the words of Professor Riggs, which were cited with
approval).
54
Nor does a right to be heard when no more than an ‘interest’
is adversely affected find expression in s 3(2)(b)
of PAJA. That
subsection affords a right to procedurally fair administrative action
(encompassing a right to be heard) where ‘rights
or legitimate
expectations’ are affected.
[
54] In
President
of the Republic of South Africa v South African Rugby Football Union
55
the Constitutional Court said that the question whether a ‘legitimate
expectation of a hearing’ exists
‘
is not whether an expectation
exists in the mind of a litigant
but whether, viewed objectively, such expectation is, in a legal
sense, legitimate; that is, whether the duty to act fairly would
require a hearing in those circumstances.’
In
National Director
of Public Prosecutions v Phillips
56
Heher J, adopting the views expressed in De Smith, Woolf and Jowell
Judicial Review of Administrative
Action
,
57
held that
‘
[a] legitimate expectation
“arises where a person responsible for taking a decision has
induced in someone who may be affected
by the decision, a reasonable
expectation that he will receive or attain a benefit or that he will
be granted a hearing before
the decision is taken.”’
And that
‘
[s]
uch
an expectation may arise “either from an express promise given
on or behalf of a public authority or from the existence
of a regular
practice which the claimants can reasonably expect to continue”’
The learned judge went on to enumerate
‘requirements for legitimacy of the expectation’ which
were adopted by this court
in
South
African Veterinary Council v Szymanski.
58
[
55] In this case there
has been no suggestion that the appellants were induced by the
council to believe that they would be heard
before it took its final
decision. Nor was it suggested that it is the regular practice of
public bodies to afford a hearing before
it rejects tenders or
proposals that they have invited. No doubt there are cases in which
that should occur – that was held
to be the case in
Logbro
Properties
– but I would be most
hesitant to lay that down as a general rule. Invitations of various
kinds are regularly issued by public
bodies – whether to take
up employment, or to offer to supply goods or services, or to
participate in projects of one kind
or another – and it would
be most expansive to find that whenever a person responds to such an
invitation he or she is entitled
to be heard before the response is
rejected.
[
56] But in this case
there seems to me to be even less reason to find that the appellants
had a legitimate expectation that they
would be afforded a hearing
before their proposals were rejected. The appellants were made
pertinently aware of what the council
considered to be their
shortcomings and were invited to make representations, which they
did. The appellants could not have been
unaware that their proposals
were liable to be rejected if those concerns were not overcome. That
they should expect to be afforded
yet another hearing before that
step was taken seems to me to stretch legitimacy unduly. I do not
think the council can be said
to have acted unfairly in not inviting
yet further representations and on that ground the appellants must
fail.
[
57] The second leg of
the attack was that the rejection of the appellants’ proposals
was said to have been ‘irrational’
and ‘unreasonable’.
PAJA does not express itself in quite those terms. It provides, so
far as it is now relevant, that
administrative action is reviewable
if it is ‘not rationally connected to … the purpose for
which it was taken, [or]
the information before the administrator, or
the reasons given for it by the administrator’, or if the
functionary concerned
exercised his or her power or performed his or
her function in a manner that is ‘so unreasonable that no
reasonable person
could have so exercised the power or performed the
function’.
[
58] In the ordinary
meaning of the term a decision is ‘rationally’ connected
(to the purpose for which it was taken,
etc) if it is connected by
reason,
59
as opposed to being arbitrary or capricious. As it was expressed in
Merafong Demarcation Forum v President
of the Republic of South Africa:
60
‘
There must merely be a
rationally objective basis justifying the [impugned conduct]….
In
Pharmaceutical
Manufacturers
61
Chaskalson P made it clear that the rationality standard does not
mean that courts can or should substitute their opinions for
the
opinions of those in whom the power has been vested. A court cannot
interfere with a decision simply because it disagrees with
it or
considers that the power was exercised inappropriately.’
[
59] On the second count
– whether the decision was one that was so unreasonable that no
reasonable person could have made
it – there is considerable
scope for two people acting reasonably to arrive at different
decisions. I am not sure whether
it is possible to devise a more
exact test for whether a decision falls within the prohibited
category than to ask, as Lord Cooke
did in
R
v Chief Constable of Sussex, ex parte International Trader’s
Ferry Ltd
62
– cited with approval in
Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs
63
– whether in making the decision the functionary concerned ‘has
struck a balance fairly and reasonably open to him
[or her]’
[
60] When viewed
together it might be that these apparently separate grounds of review
will come to the same thing. If a decision
is founded upon reason
then it is difficult to see how it could be said to be so
unreasonable that no reasonable person could come
to it and the
converse is equally true. Indeed, the court below queried whether
Sidumo v Rustenburg Platinum Mines Ltd
64
had collapsed the two grounds into a single enquiry, namely, ‘is
the decision reached by the [administrator] one that a reasonable
decision-maker could not reach?’
65
[
61] The appointment of
either of the appellants would undoubtedly have exposed the council
to an element of risk in one form or
another and neither of the
appellants was able to eliminate that risk. When confronted with the
problem each went no further than
to advance reasons to the council
why the risk should be regarded as minimal. I think it goes without
saying that a decision to
avoid risk in a long-term contractual
relationship is neither arbitrary nor capricious but is one that is
founded upon reason –
there is ‘a rationally objective
basis justifying’ the decision.
66
Perhaps a more robust decision-maker would have been willing to
accept the risk but it is not for a court to direct a contracting
party to be robust. I do not think a decision that has a rational
basis can be said to be one to which no reasonable person could
come.
In my view the decision was neither irrational within the meaning of
PAJA nor was it one to which a reasonable decision-maker
could not
come. On the contrary, I find it perfectly understandable that the
council chose not to expose itself to the risks that
presented
themselves when it was able to avoid them, no matter that the risks
might have been slight.
[
62] The real basis for
the complaint seems to me to have been articulated more directly by
counsel for the appellants towards the
end of his argument. He said
that the consortium was the pre-eminent expert in its field and for
that reason it was irrational
and unreasonable not to appoint it.
That does not seem to me to say that the decision not to do so was
irrational or unreasonable
but only that it was not the best
decision. We are not concerned with the wisdom of the council’s
decision. It is the council,
and not a court, that must bear the
consequences for the contracts that it concludes, and in those
circumstances, as pointed out
in
Logbro
Properties
67
and in
Bato Star,
68
a measure of deference to the view of the decision-maker is not out
of place.
[
63] I do not think the
council’s decision not to appoint the appellants offends the
provisions of PAJA, and that being so
its consequent decisions are
also not liable to be set aside. In my view the order of the court
below cannot be faulted and I would
dismiss the appeal. As to the
costs of the appeal the employment of two counsel was warranted and
the appellants ought also to
bear the reserved costs of the
application for interim relief.
[6
4] The appeal is
dismissed. The appellants, jointly and severally, are to pay the
costs of the appeal, and the reserved costs of
the application for
interim relief. The costs in each case are to include the costs of
two counsel so far as two counsel were employed.
__________________
R W NUGENT
JUDGE OF APPEAL
APPEARANCES:
For appellant: B Leech
Instructed by:
Werksmans Incorporating Jan S de Villiers, Johannesburg
Symington & De Kok, Bloemfontein
For 1st respondent: P J Pretorius SC
H Barnes
Instructed by:
Moodie & Robertson Attorneys, Johannesburg
Claude Reid, Bloemfontein
For 2
nd
respondent: Knowles Husain Lindsay Inc c/o John Broido, Johannesburg
1
It seems that a formal partnership agreement was never produced.
2
Thebe was the first applicant in the court below but according to
the notice of appeal it is not a party to this appeal.
3
Together with Thebe.
4
Interim relief was also sought but that was refused by Jajbhay J,
who reserved the costs in relation to that application.
5
Section 28(1)(f) and clause 4.6 of the council’s constitution.
6
Section 28(1)(g) and clause 4.8 of the council’s constitution.
7
Thebe Investment Corporation was apparently the holding company of
Thebe.
8
We were told from the bar that the council’s contract with
Careworks terminates in December of this year but it is open
to
renewal.
9
When applying the definition of ‘administrative action’
the distinction between ‘legislation’ (in subsection
(a)(ii)) and an ‘empowering provision’ (in subsection
(b)) will prove to be more apparent than real.
10
We are concerned in this case with public law review and not the
form of private law review that has been invoked in cases such
as
Turner v Jockey Club of South Africa
1974 (3) SA 633
(A) and
Theron v Ring van Wellington van die N.G. Sendingkerk in Suid
Afrika
1976 (2) SA 1
(A).
11
[2006] ZACC 9
;
2007 (1) SA 343
(CC).
12
Para 33.
13
Paras 35 and 36.
14
De Smith’s Judicial Review 6 ed by The Rt Hon The Lord Woolf,
Jeffrey Jowell QC and Andrew Le Seur, assisted by Catherine
M.
Donnelly at paras 3-041 to 3-042..
15
[1987] 1 QB 815
(CA) at 835G-836B.
16
1993 (1) WLR 909
(CA) at 923H.
17
At 931H-932A.
18
See below.
19
[1992] 1 WLR 1036
(QB) at 1041C-E.
20
R v Football Association Ltd ex parte Football League Ltd
[1993] 2 All ER 833.
21
Chief Rabbi of the United Hebrew Congregations
, above,
R v
Imam of Bury Park Mosque, Luton ex parte Ali (Sulaiman)
[1994]
COD 142.
22
R v Insurance Ombudsman ex parte Aegon Life Assurance Ltd
[1994] COD 426
,
R v Association of British Travel Agents ex parte
Sunspell Ltd (t/a Superlative Travel)
[2001] ACD 16
,
R v
Lloyd’s of London ex parte Briggs
[1993] 1 Lloyd’s
Rep. 176.
23
[2003] UKHL 37
;
[2004] 1 AC 546.
24
Para 12.
25
[2007] 3 All ER 957 (HL).
26
Lord Scott, Lord Mance and Lord Neuberger in the majority, and Lord
Bingham and Baroness Hale in the minority.
27
Para 5.
28
Paras 7 to 11.
29
Paras 65 – 69.
30
Paras 40 and 41.
31
Paras 44 and 45.
32
1983 (3) SA 344
(W) at 364B-D and 365A. See Etienne Mureinik
‘Discretion and Commitment: The Stock Exchange Case’
[1985] SALJ 434.
33
See Lisa Thornton: The Constitutional Right to Just Administrative
Action – Are Political Parties Bound?
(1999) 15 SAJHR 351.
34
[2002] 2 All SA 424
(C).
35
[2003] 3 All SA 737
(C).
36
2006 (3) SA 112
(C).
37
2001 (4) SA 1361
(T)
38
See, for example,
R v Football Association Ltd ex parte Football
League Ltd
[1993] 2 All ER 833.
39
At 1375D-E.
40
[2006] 2 All SA 549
(C).
41
Paras 28 and 29.
42
2007 (1) SA 66 (SCA).
43
Shorter Oxford Dictionary.
44
See the definition of ‘public’ in s 1 of PAJA.
45
S v Prefabricated Housing Corporation (Pty) Ltd
1974 (1) SA
535
(A) at 540A-B, in relation to industrial agreements provided for
under the Industrial Conciliation Act 28 of 1956.
46
Cf Sue Arrowsmith:
The Law of Public and Utilities Procurement
(London 2005) paras 1.2 – 1.6.
47
No doubt it might be held to account for the exercise of its powers
by members and others who have been subjected to its collective
agreement, according to the principles enunciated in cases like
Turner v Jockey Club of South Africa
and
Theron v Ring van
Wellington van die NG Sendingkerk in Suid Afrika,
above, but
that is not what we are concerned with in this case.
48
Cf
Oudekraal Estates (Pty) Ltd v City of Cape Town
2004 (6)
SA 222
(SCA) para 36;
Millenium Waste Management (Pty) Ltd v
Chairperson, Tender Board: Limpopo Province
2008 (2) SA 481
(SCA) para 23.
49
2003 (2) SA 460
(SCA) paras 7 and 8.
50
2000 (4) SA 491
(T) at 504G-505B.
51
The court below had held that it did.
52
[1989] ZASCA 90
;
1989 (4) SA 731
(A).
53
Page 748G-H.
54
Page 755C-E.
55
2000 (1) SA 1
(CC) para 216.
56
2002 (4) SA 60
(W) para 27.
57
5
th
ed para 8-037.
58
2003 (4) SA 42
(SCA) para 19.
59
Shorter Oxford Dictionary meaning of ‘rational’: ‘1.
Having the faculty of reasoning; endowed with reason.
b. Exercising
one’s reason in a proper manner; having sound judgment;
sensible, sane 2. Of, pertaining or relating to reason.
3. Based on,
derived from, reason or reasoning. 4. Agreeable to reason;
reasonable, sensible; not foolish, absurd or extravagant.’
60
[2008] ZACC 10
;
2008 (5) SA 171
(CC) para 63.
61
Pharmaceutical Manufacturers Association of SA: in re Ex parte
President of the Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC)
para 90.
62
[1998] UKHL 40
;
[1999] 1 All ER 129
(HL) at 157.
63
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 44.
64
2008 (2) SA 24
(CC).
65
See, for example,
Sidumo
para 110.
66
Merafong Demarcation Forum,
above.
67
Para 21.
68
Para 46.