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[2019] ZAGPPHC 76
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Coal Transporters Forum v Eskom Holdings Limited and Others (42887/2017) [2019] ZAGPPHC 76 (26 March 2019)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Reportable
Of
interest to other judges
Revised.
26-03-2019
Case
No. 42887/2017
In
the matter between:
COAL
TRANSPORTERS
FORUM
Applicant
and
ESKOM
HOLDINGS
LIMITED
1
st
Respondent
NATIONAL
ENERGY REGULATOR OF SOUTH AFRICA
2
nd
Respondent
MINISTER
OF
ENERGY
3
rd
Respondent
INDEPENDENT
POWER PRODUCERS
4
th
-
38
th
Respondents
Case
Summary:
Electricity - Generation from
renewable energy sources in line with government's policy decision to
move towards a low-carbon economy
and to incrementally introduce
energy from private sector renewable energy technologies into the mix
of energy sources • The
Minister of Energy published
Determinations relating to renewable energy under s 34(1) of the
Electricity Regulation Act 4 of 2006
on 1 August 2011 and on 19
December 2012, in terms of which she determined, in consultation with
the National Energy Regulator
of South Africa, that 3 725 MW and a
further 3 200 MW of new renewable energy capacity should be procured
by Eskom from independent
private producers (IPPs) through a
procurement programme conducted by the Department of Energy • A
bidding process followed
and successful IPP bidders were announced -
Eskom ultimately concluded power purchase agreements (PPAs) with all
the successful
IPP bidders, except with three of them.
Contending
that Eskom may not conclude PPAs with the IPPs until the Regulator
has taken decisions on certain matters, the applicant
seeks an order
(a) interdicting Eskom from concluding PPAs with the IPPs until the
Regulator has taken the decisions in question
and (b) declaring
invalid all the PPAs Eskom had already concluded. Application
dismissed.
JUDGMENT
MEYER
J
[1]
On 1 August 2011 and on 19 December 2012, the Minister of Energy (the
Minister), with the concurrence of the National Energy
Regulator of
South Africa (the Regulator), acting in terms of s 34(1) of the
Electricity Regulation Act 4 of 2006 (ERA) and the
Electricity
Regulations on New Generation Capacity (published as GNR. 399 in
Government Gazette
No. 34262 dated 4 May 2011 (the New
Generation Capacity Regulations)), determined that electricity
generated from renewable energy
sources - wind, concentrated solar
power (CSP), solar photovoltaic (solar PV), biogas, biomass landfill
gas, small hydro and other
forms of energy (referred to as small
projects) - should be procured through tender processes conducted by
the Department of Energy
(the DoE) for purchase by Eskom Holdings SOC
Limited (Eskom) from independent power producers (IPPs). Pursuant to
the procurement
process that followed, successful IPP bidders were
announced and power purchase agreements (PPAs) were ultimately
concluded between
Eskom and them, except with three of the successful
IPP bidders.
[2]
The applicant, the Coal Transporters Forum (CTP), which is a
voluntary association with legal personality whose approximately
fifty members are companies transporting coal for Eskom and engaged
in the provision of logistical support and other services,
seeks to
interdict Eskom from entering into PPAs with the three IPPs until the
Regulator has taken certain decisions and a declaration
of invalidity
of the PPAs that Eskom has already concluded with the other IPPs.
[3]
The first respondent, Eskom, a state-owned company, is the largest
generator, transmitter and distributor of electricity in
Africa. Its
27 power stations produce approximately 95% of the electricity in
South Africa. The vast majority of the electricity
generated by Eskom
emanates from coal-fired plants. The second respondent, the
Regulator, which is a juristic person established
in terms of s 3 of
the National Energy Regulator Act 40 of 2004 (NERA), is, in terms of
s 3 of ERA, the custodian and enforcer
of the regulatory framework
provided for in ERA The third respondent, the Minister, issued the
two Determinations in question pursuant
to her powers in terms of s
34(1) of ERA. The fourth to thirty-eighth respondents are IPPs in the
renewable energy industry and
they were successful bidders in the
Renewable Energy Independent Power Production Procurement Programme
(REIPPPP). They all oppose
the application, except for the seventh,
nineteenth, twenty-ninth, thirtieth, thirty-third to thirty-seventh
respondents. The seventh
respondent IPP, Ngodwana Energy (RF) (Pty)
Ltd (Ngodwana), filed an answering affidavit but did not appear at
the hearing. It,
however, adopted the contentions of the other
opposing IPPs.
[4]
The government's policy on energy, which has been developed over
almost two decades after extensive public participation and
stakeholder involvement, recognizes that South Africa is heavily
dependent on coal as its primary source for power generation.
This is
so because the country has large coal reserves which can easily and
cheaply be exploited. Government's policy accepts that
coal will
remain the primary source of energy generation for the foreseeable
future. However, it also acknowledges that coal has
significant
detrimental impacts on the environment, resulting in measurable
external costs, also known as 'negative externalities',
as well as
other costs that are more difficult to quantify. The most significant
impact is the emission of greenhouse gasses which
make the earth's
surface warmer and in turn contributes to climate change. In view of
the environmental and health impacts of coal
and the need to
diversify the sources of supply to maintain energy security,
government's energy policy supports and promotes the
development of
renewable energy to achieve a more sustainable energy mix.
[5]
Government has adopted an integrated resource planning (IRP) approach
to long term electricity planning. It is undisputed that
'the primary
objective of the IRP is to forecast the long-term electricity demand,
to determine what energy sources should be used
to meet this demand,
how new generation capacity will be allocated between the different
energy sources, and when new capacity
generation will be needed'.
Cabinet, in mid-2008, adopted a peak, plateau and decline trajectory
(the PPD trajectory), meaning
that our greenhouse gas emissions will
grow for a while (as a result of investment in new coal-fired power
plants), peak between
2020 and 2025, remain flat for a decade and
decline in absolute terms from 2030-35 onwards. The use of coal as a
power source will
thus decline from 2030 onwards. (See
White Paper
on Energy Policy
(1998);
White Paper on Renewable Energy
(2003);
Long Term Mitigation Scenarios Report
(2008).) A
policy decision, therefore, was made to move towards a low-carbon
economy (i.e. an economy and energy industry that is
less dependent
on coal) and to incrementally introduce energy from private sector
renewable energy generation technologies into
the mix of energy
sources. The project is premised on the need for diversifying Eskom's
energy mix and implementing technologies
that will contribute to
clean energy production, such as wind, solar, biomass and small scale
hydro.
[6]
ERA regulates electricity supply in South Africa. Section 1 defines
the 'integrated resource plan' (IRP) as 'a resource plan
established
by the national sphere of government to give effect to national
policy'. It is 'a coordinated schedule for generation
expansion and
demand-side intervention programmes, taking into consideration
multiple criteria to meet electricity demand'. Section
4(a) obliges
the Regulator to 'issue rules designed to implement the national
government's electricity policy framework, the integrated
resource
plan and this Act'. Section 34 regulates the establishment and
procurement of new generation capacity. Section 34(1) provides
that-
'[t]he
Minister may, in consultation with the Regulator-
(a)
determine that new generation capacity is needed to ensure the
continued uninterrupted supply of electricity;
(b)
determine the types of energy sources from which electricity
must be generated, and the percentages of electricity that must be
generated from such sources;
(c)
determine that electricity thus produced may only be sold to
the persons or in the manner set out in the notice;
(d)
determine that electricity thus produced must be purchased by
the persons set out in such notice;
(e)
require that new generation capacity must-
(i) be
established through a tendering procedure which is fair, equitable,
transparent, competitive and cost-effective;
(ii) provide for
private sector participation.
[7]
The New Generation Capacity Regulations establish rules and
guidelines that are applicable to the undertaking of an IPP bid
programme for the procurement of new generation capacity. They also
facilitate the fair treatment and non-discrimination between
IPPs and
the buyer of the energy. In terms of the New Generation Capacity
Regulations, an IRP will be developed by the DoE and
will set out the
new generation capacity requirement per technology, taking energy
efficiency and the demand-side management projects
into account. The
required new generation capacity must be met through the technologies
and projects listed in the IRP and all
IPP procurement programmes
would be executed in accordance with the specified capacities and
technologies listed in the IRP. Regulation
6 elaborates on the
content and the nature of Determinations made under s 34(1) of ERA,
thus:
'(1)
The Minister may, in consultation with the Regulator, make a
determination in terms of section 34 of the Act.
(2) A
determination under section 34(1) shall include a determination as to
whether the new generation capacity shall be established
by Eskom,
another organ of state or an IPP.
(3) If the
determination referred to in sub-regulation (2) requires that the new
generation capacity be established by an IPP, the
Minister shall also
determine the identity of the buyer or, where applicable, the
procurer and the buyer.
(4) …
(5) A
determination contemplated in this Regulation is binding on the buyer
and the procurer.'
'Buyer'
is defined to mean
'
in
relation to a new generation capacity project, any organ of state
designated by the Minister in terms of section 34(1)(c) and
(d) of
the Act' and 'procurer' means 'the person designated by the Minister
in terms of section 34 as being responsible for the
preparation,
management and implementation of the activities related to
procurement of new generation capacity under an IPP procurement
programme including the negotiation of the applicable power purchase
agreements, which person may or may not be the buyer'.
[8]
The powers and duties of the Regulator include the powers and duties
to 'regulate prices and tariffs' (s 4(a)(ii) of ERA), to
'consider
applications for licenses' and to 'issue licenses for . . . the
operation of generation, transmission or distribution
facilities' (s
4(a)(i)(aa)). Section 7(1)(a) read with s 4(a)(i) is to the effect
that nobody may operate an electricity generation,
transmission or
distribution facility without a licence issued by the Regulator. The
Regulator may make any licence subject to
conditions relating,
inter
alia,
to 'the setting and approval of prices, charges, rates and
charges charged by licensees' (s 14(1)(d)), 'the methodology to be
used
in the determination of rates and tariffs which must be imposed
by licensees (s 14(1)(e)), 'the format and contents of agreements
entered into by licensees' (s 14(1)(f)) and 'the regulation of the
revenues of licensees' (s 14(1)(9)). Section 15 provides for
tariff
principles applicable to licence conditions determined in terms of s
14.
[9]
Following extensive public participation, representations and
comments by interested parties and independent international
consultants and consultations with government departments (in which
process, it is undisputed, neither CTF nor any of its members
participated), the final version of the IRP 2010-2030 (the IRP 2010)
was promulgated in the
Government Gazette
on 6 May 2011. It is
undisputed that when deciding on the required mix of energy sources,
the DoE sought to achieve a balance between
the expectations of
different stakeholders. It considered key constraints and risks,
including: reducing carbon emissions; new
technology uncertainties
such as costs, operability and lead time to build; water usage;
localisation and job creation; regional
development and integration;
and security of supply, The IRP 2010 was informed by the PPD
trajectory and included a cap on carbon
emissions. Ultimately, the
IRP 2010 determined that, in order to secure the continued and
uninterrupted supply of energy, the following
mix of new generation
technologies was required between 2010 and 2030: a nuclear fleet of
9.6 GW; 6.3 GW of coal; 17.8 GW of renewables;
and 8.9 GW of other
generation sources. The IRP 2010 was ultimately adopted by Cabinet,
and presently represents the government's
policy.
[10]
The Minister of Energy published the first Determination relating to
renewable energy under s 34 of ERA on 1 August 2011, in
terms of
which she determined, with the concurrence of the Regulator, that 3
725 MW of new renewable energy generation capacity
(from wind, CSP,
solar PV, biogas, biomass, landfill gas and small hydro) should be
procured from IPPs by 2016 or as soon as reasonably
possible (the
2011 Determination). On 19 December 2012, the Minister, with the
concurrence of the Regulator, published a further
Determination under
s 34, determining,
inter alia,
that
a further 3 200 MW of new renewable energy generation capacity should
be procured from IPPs between 2017 and 2020 or as soon
as reasonably
possible (the 2012 Determination). Each Determination provides that:
(a) the new generation capacity allocations
are in accordance with
the IRP 2010; (b) the DoE shall be the procurer; (c) the electricity
produced from the new generation capacity
shall be procured through
one or more tendering processes; (d) DoE's role as procurer is to
conceptualise and conduct the procurement
programme and preparation
of all associated documents, including the power purchase agreements
(PPAs) and other project agreements;
(e) Eskom shall be the buyer;
(f) the electricity must be purchased from IPPs; (g) the electricity
may only be sold to Eskom in
accordance with the PPAs and other
project agreements prepared as part of the procurement programme; and
(h) the procurement programme
should target connection to the Grid
for new generation capacity as soon as possible taking into account
all relevant factors including
the time for procurement.
[11]
The DoE is accordingly the procurer for purposes of the REIPPPP. The
process has been run by the IPP office, an office established
under
the auspices of the DoE, together with significant input and support
from National Treasury and the Development Bank of Southern
Africa.
The bidding process comprised the following stages: (a) bid
notification; (b) bid registration; (c) bid submission; (d)
bid
evaluation; (e) announcement of preferred bidders; and (f) signing of
project documents, including the PPAs. The REIPPPP bid
evaluation
involved a two stage process: Bidders had to satisfy certain minimum
threshold requirements or qualification criteria
in six areas. Bids
that satisfied the threshold requirements then proceeded to the
second stage of evaluation, where bidders were
evaluated on price and
economic development commitments. The bidder with the best (lowest)
price received 70 points and all other
bidders received a
proportionate score based on the difference between the lowest price
and their own price. The bid price is the
electricity tariff offered
by the bidder in rand per megawatt-hour. The economic development
requirements were broken down into
sub-categories covering job
creation, local content, ownership by black people, management
control, preferential procurement from
sub-contractors, enterprise
development and socio-economic development for local communities.
Price counted for 70 out of 100 points
and economic development
requirements for 30 out of 100 points. To date there have been six
procurement rounds in the REIPPPP,
referred to as Bid Window 1, Bid
Window 2, Bid Window 3, Bid Window 3.5, Bid Window 4, a Small
Projects IPP Programme for projects
of under 5 MW and what is
referred to as the Expedited round.
[12]
The present case only concerns the successful bidders in Bid Windows
4 and the Small Projects Programme. CTF seeks that Eskom
be
interdicted to sign the PPAs with the successful IPPs until the
Regulator has taken certain decisions and that all PPAs that
have
already been concluded be declared null and void. A PPA is a standard
purchase agreement that is signed between a successful
bidder and
Eskom; it governs the rights and duties of the parties regarding the
generation and sale of electricity. The PPA has
a lifespan of 20
years from the commercial operation date of the power plant
concerned. The PPA, it is undisputed, is non-negotiable
in that
bidders must accept the terms thereof as they are when submitting
their bids. It was developed after an extensive review
of global best
practice and consultations with numerous public and private sector
entities, including the Regulator. On 26 February
2018, Minister Jeff
Radebe was appointed as the new Minister of Energy. He arranged for
Eskom to sign the PPAs at a signing ceremony
in Johannesburg on 4
April 2018. All the PPAs in respect of Bid Window 4 have been signed.
It is only the 271h respondent, Adams
Solar PV Project (RF) (Pty) Ltd
(Adams), the 281h respondent, Bellatrix Solar PV Project (Pty) Ltd
(Bellatrix), and the 3151 respondent,
Du Plessis Solar PV4 (Pty) Ltd
(Du Plessis), who have not yet signed PPAs in respect of the Small
Projects IPP Programme for projects
of under 5 MW. The claim to
interdict Eskom from concluding the PPAs, therefore, is moot as far
as all the IPPs are concerned,
except in respect of Adams, Bellatrix
and Du Plessis.
[13]
Despite CTP's protestation to the contrary, the evidence is simply
overwhelming that the Regulator issued to each successful
IPP bidder
an electricity generation licence after following a public
participation process for each project, including public
hearings,
and it issued a written decision. This is the evidence presented by
all in the know; the Regulator and the IPPs, including
Ngodwana. The
Regulator, in issuing the licences, is guided by whether the
application for a license is in compliance with the
IRP 2010 and, in
doing so, is bound by the Determinations. CTF criticises the veracity
of the evidence of the Regulator and the
IPPs regarding the issuing
of the electricity generation licences on the basis that the licences
are not annexed to their answering
affidavits. Such criticism, in my
view, is without merit. The IPPs explain that the decisions and
generation licenses are voluminous
and for that reason they were not
attached to their answering affidavit. CTF, therefore, was at
liberty, in terms of r 35(12) of
the Uniform Rules of Court, to have
required the IPPs to produce the electricity generation licenses, the
decisions and the reasons
for the decisions referred to in the
answering affidavit of the IPPs but has failed to do so. Ngoldwana
indeed attached the licence
that the Regulator issued to it for the
purpose of the operation of its generation facility, dated 29 October
2015, as well as
the Regulator's decision and the reasons for the
decision. Furthermore, in its replying affidavit, CTF did not take
issue with
the evidence that the Regulator issued to each IPP an
electricity generation licence after following a public participation
process
for each project, including public hearings, and by issuing a
written decision. Instead, it avers that only the generation licences
issued to the IPPs are available on the Regulator's website, but not
the decisions and the reasons for the decisions.
[14]
CTF's core contention is that Eskom may not conclude PPAs with the
IPPs until the Regulator has taken decisions on the ten
matters
listed in prayers 1.1 to 1.1O of the notice of motion. However, at
the commencement of the hearing, it conceded that the
Regulator
indeed has taken decisions on the matters listed in prayers 1.1 to
1.5 and 1.7, and what remains in dispute, therefore,
is whether the
Regulator has taken decisions on the four matters listed in prayers
1.6, 1.8 to 1.10. They are:
'1.6
the tariffs and provisions that would be contained in agreements
between the IPPs and the buyer;
…
1.8 the prices
and tariffs at which the electricity that is produced by an IPP
should be sold and purchased;
1.9 the terms
and conditions of the agreements that would be entered into between
an IPP and the buyer; and
1.10
whether the intended power purchase agreement between the seller and
the buyer meet all the regulatory requirements.'
[15]
CTF concedes in its replying affidavit that, if the Regulator has in
fact taken the decisions in question, then its application
must fail.
Furthermore, it concedes that it does not matter whether the
Regulator lawfully took the decisions because even unlawful
administrative action stands until reviewed and set aside and it has
not sought to review any of the Regulator's decisions. It
bears
quoting what CTF
says
in this regard:
'If
it can be shown that NERSA did in fact make the decisions relating to
the said agreements as alleged, with or without a procedurally
fair
process, then obviously this application will be ill-founded because
the said decisions should have been taken on review many
years ago.'
[16]
CTF's concession accords with the
Oudekraal
principle that
until administrative action (and the consequences thereof) is set
aside by a court in proceedings for judicial review
it exists in fact
and it has legal consequences that cannot simply be overlooked.
(Per
Howie P and Nugent JA in
Oudekraal Estates (Pty) LTD v City of
Cape Town and others
2004 (6) SA 222
(SCA) ([2004]
3 All SA 1
(SCA)) para 26. Also see
MEG for Health, Eastern Cape v Kirland
Investments (Pty) Ltd t/a Eye
&
Lazer Institute
2014
(3) SA 481
(CC) paras 101-103;
Corruption Watch v President of the
RSA
[2018] ZACC 23
(13 August 2018) para 31.) Both the Minister's
Determinations in terms of s 34(1) of ERA and the Regulator's
concurrence in the
determinations constitute administrative actions
as contemplated in the
Promotion of Administrative Justice Act 3 of
2000
PAJA).
(Earthlife Africa and another v Minister of Energy and
others
2017 (5) SA 227
(WCC) paras 32 and 37.)
[17]
All the parties in the know - the Regulator, ESKOM and the IPPs -
testify that the Regulator has taken the decisions in question.
CTF
offers no evidence to the contrary. What it does, instead, is to turn
its burden of proof on its head. It contends that the
respondents
bear the burden of proving that the Regulator has already taken the
decisions. It says for instance-
'[i]f
the respondents are unable to prove that NERSA has indeed taken the
said decisions, then the application must succeed.'
But
that, of course, is not so. CTF bears the burden of establishing that
it is entitled to the relief it seeks. It claims to be
entitled to
the interdict and declaratory order it seeks only because the
Regulator has not yet taken the decisions on the matters
in question.
CTF thus bears the burden of proving that ingredient of its case.
[18]
CTF has offered no evidence in support of that element of its case
and can in any event not overcome the evidence of the Regulator,
the
IPPs and Eskom to the contrary, which evidence must prevail under the
Plascon-Evans
rule.
(Plascon-Evans Paints Limited v Van
Riebeeck Paints (Pty) Limited
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E- 635C.)
Motion proceedings in which final relief is sought 'cannot be used to
resolve factual issues because they are
not designed to determine
probabilities':
Per
Harms JA in
National Director of Public
prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 290DE. I,
therefore, have to accept the facts alleged by the Regulator, the
IPPs and Eskom, unless they constitute
bald or uncreditworthy denials
or are palpably implausible, far fetched or so clearly untenable
that they could safely be
rejected on the papers. Such finding, it is
trite, 'occurs infrequently because courts are always alive to the
potential for evidence
and cross-examination to alter its view of the
facts and the plausibility of the evidence.
(Media 24 Books (Pty)
Ltd v Oxford University Press Southern Africa (Pty) Ltd
2017 (2)
SA 1
(SCA) at 18A-B). That test was not satisfied
in casu.
[19]
Decisions 6 and 8 to 10 relate to the prices and terms upon which the
IPPs will sell their electricity to Eskom. There is simply
no merit
in CTF's argument that the Regulator must first determine these
matters before Eskom may enter into PPAs with the IPPs.
The Regulator
may regulate these matters by imposing licence conditions on the IPPs
in terms of
sections 14(1)(d)
to (g) read with
s 15
of the ERA; it is
not obliged to do so. There is nothing in
s 14
to suggest that
license conditions of the kind contemplated by questions 6 and 8 to
10 are a precondition for the conclusion of
a valid PPA. The matters
contemplated in those questions have been determined by the 2011
Determination and the 2012 Determination,
in which Determinations the
Regulator concurred. The Regulator, when issuing a generation
license, is in terms of
s 34(3)
of ERA bound by any Determination
made by the Minister in terms of
s 34(1)
in which the Regulator
concurred. In terms of reg 6(5) of the New Generation Capacity
Regulations the Determinations are also binding
on the DoE, as the
procurer, and on Eskom, as the buyer of the electricity generated by
the IPPs. There is, therefore, nothing
left for the Regulator's
discretionary determination.
[20]
Furthermore, when regard is had to the licence issued to Ngodwana
(and I think it is safe to assume that similar licenses were
issued
to the other IPPs), it is clear that the Regulator adhered to the
Determinations by the Minister in which it concurred.
Therein, the
Regulator endorsed the terms of the PPAs,
inter alia
by
providing that '[t]he Licensee must at all times comply with its
obligations under the Commercial Agreements, subject to and
in
accordance with the terms and conditions of those Commercial
Agreements' (clause 7.1). 'Commercial Agreements', in terms of
clause
1 of the license, 'means Power Purchase Agreement (PPA),
Implementation Agreement (IA), Direct Agreement (DA), and Connection
Agreement'. The license further provides that '[a]mendment,
variations and/or ratification of Power Purchase and Connection
Agreements
must not be made without the prior written approval of the
Energy Regulator'. As to tariffs and the payment of licence levies,
the licence provides as follows:
'8.
Tariff
8.1 The Licensee
must sell electricity from the Contracted Capacity to the Buyer, at
the tariff stipulated in the PPA.
8.2 Any
variations to the tariff in the PPA, other than escalation of such
tariff in accordance with the PPA, will be subject to
approval by the
Energy Regulator.
9.
Payment of licence levies
The
Licensee must pay to the National Energy Regulator such levies in
respect of this Licence as determined by the Minister of Energy
under
the prevailing legislation.'
[21]
Under the
Oudekraal
principle, the licences stand and are
deemed valid for better or for worse. The Regulator, therefore, is
functus officio
and there is nothing left for it to determine.
(See
FSB and Another v De Wet N.O.
and Others
2002 (3)
SA 525
(C) para 147.) CTF is neither entitled to have Eskom
interdicted from concluding the PPAs with Adams, Bellatrix and Du
Plessis,
nor is it entitled to have all the other PPAs in question
declared unlawful, and therefore null and void. They too, under the
Oudekraal
principle, are deemed to be valid until reviewed and
set aside. CTF seeks to escape the conclusion by arguing that 'the
conclusion
of an agreement . . . is not an administrative action' and
accordingly not subject to PAJA. But this is manifestly not so. The
decision to enter into each PPA in question constitutes
administrative action and is subject to the
Oudekraal
principle.
(See
Steenkamp NO v Provincial Tender Board, Eastern Cape
2007
(3) SA 121
(CC) para 90;
Kwa Sani Municipality v
Underberg!Himeville Community Watch Association and Another
[2015]
2 All SA 657
(SCA) para 12;
Bowman Gilfillan Inc v Minister of
Transport, In Re: Minister of Transport v Mah/ale/a and Others
[2018]
3 All SA 484
(GP) paras 62 and 72·80.)
[22]
Finally, it bears mentioning that the process and procedure in
challenging and setting aside administrative action is by means
of
legality review proceedings or review proceedings under PAJA, and not
proceedings wherein a party merely seeks that the contract
concluded
be set aside by a court of law or declared null and void. Section
172(1)(a) of the Constitution makes it mandatory for
a court to
declare conduct that is inconsistent with the Constitution invalid
and s 172(1)(b) gives the court the further power
to make any order
that is 'just and equitable'. Section 8 of PAJA empowers a court, in
proceedings for judicial review under PAJA,
to 'grant any order that
is just and equitable'.
[23]
My findings and conclusions thus far are dispositive of the relief
claimed by CTF and renders it unnecessary to consider the
other
issues raised in the application.
[24]
In the result, the following order is made:
(a) The
application is dismissed.
(b) The
applicant is to pay the costs of opposition of:
(i)
the first respondent, including those of two counsel;
(ii)
the second respondent, including those of two counsel;
(iii)
the third respondent, including those of two counsel;
(iv)
the fourth, fifth, sixth, eighth, ninth, tenth, eleventh, twelfth,
thirteenth, fourteenth, fifteenth, sixteenth, seventeenth,
eighteenth, twentieth, twenty first, twenty-second,
twenty-third, twenty-fourth, twenty-fifth, twenty-sixth,
twenty-seventh,
twenty-eighth, thirty-first, thirty-second and thirty
eighth respondents, including those of two counsel; and
(v)
the seventh respondent.
_________________________
P.A.MEYER
JUDGE
OF THE HIGH COURT
Date
of hearing: 18 March 2019
Date
of judgment: 26 March 2019
Counsel
for the applicant: Adv AB Rossouw SC (assisted by Adv M Riley)
Instructed
by: Sebueng Attorneys, Montana Park, Pretoria
Counsel
for the 1
st
respondent: Adv B Roux SC (assisted by Adv KD
Ramolefe)
Instructed
by: Cliffe Dekker Hofmeyr Inc, Sandton
C/o
Asgar Gani Attorneys, Pretoria
Counsel
for the 2
nd
respondent: Adv K Tsatsawane SC (assisted by
Adv N Ferreira)
Instructed
by: Bowman Gilfillan Inc, Sandton
C/o
Boshoff Inc., Hazelwood, Pretoria
Counsel
for the 3
rd
respondent: Adv WR Mokhare SC (assisted by Adv
J Maisela)
Instructed
by: State Attorney, Pretoria
Counsel
for the 4
th
, 5
th
,
6
th
, 8
th
,
9
th
, 10
th
,
11
th
, 12
th
,
13
th
, 14
th
,
15
th
, 16
th
,
17
th
, 18
th
,
20
th
, 21
st
,
22
nd
, 23
rd
,
24
th
, 25
th
,
26
th
27
th
28
th
,
31
st
32
nd
and 38
th
respondents: Adv W Trengove SC (assisted by Adv L Sisilana)
Instructed
by: Webber Wentzel, Cape Town
C/o
Hills Inc., Brooklyn, Pretoria
Counsel
for the 7
th
respondent: No appearance
Attorneys
for the 7
th
respondent: Shepstone & Wylie, Umhlanga
Rocks C/o Stegmanns Inc., Menlo Park, Pretoria