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[2015] ZAGPPHC 1079
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State Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd (32665/2014) [2015] ZAGPPHC 1079 (18 May 2015)
R
E
P
U
B
L
I
C
OF
S
OUTHA
F
R
I
CA
I
N
THE
H
I
GH
C
O
U
RT
O
F
S
O
U
TH
AFR
I
CA
GAUT
E
N
G
D
I
V
I
S
I
O
N
,
P
R
ETO
R
IA
C
ASE
N
O
:
32665/20
1
4
REPORTBALE:
NO
OF
INTEREST TO TOHER JUDGES: NO
DATE:
18.05/2015
In
the matter
b
etween:
STATE
INFORMATION TECHNOLOGY
AGENCY
Appl
i
cant
SOC
L
TD
And
GIJIMA
HOLDINGS
(
PTY)
L
TD
R
e
s
p
o
ndent
J
U
D
G
M
E
N
T
MATOJANE
J
Introduct
i
on
[
1
]
Th
i
s
i
s an
appl
i
cation
to set aside the main agreement
and
addenda which
was
ente
r
ed
i
nto
without
complying
with
proper
procurement procedures
l
aid down
in
section
2
1
7
of
the
Constitution
and
supply
chain management
policy
in
circumstances
where applicant has
delayed
in
bringing
the
application
and
has
permitted
the
respondent
to
perform
i
n full
on
the
main
agreement
and
i
ts
addenda.
[2]
The
appl
i
cant
seeks
an
order
reviewing
and
sett
i
ng
aside
the
decision
-
of
i
ts
own
functionaries
to
appoint
the
respondent
.
to
provide
information
technology
hardware,
maintenance
and
support
services
to an organ
of
state
by
circumvent
i
ng
the
peremptory
requirement
of
the
Pro
m
o
tion
of
Admin
i
strative
Just
i
ce
Ac
t
[1]
("PAJA") and
relying
directly
on
sections
2
and
2
1
7
of
the
Constitution
and
the princip
l
e
of
l
egal
i
ty.
[3]
The
respondent
contends
that
this
applicat
i
on
ought
to
have
been
brought in
terms
of PAJA
and
within
1
80
days
from
the
date
on which tile agreement
was
concluded.
The
parties
[4]
The
respondent,
a l
i
sted
company,
i
s
one
of
South
Africa's
leading information
and
communication
technolog
y
services
companies.
It services both private and public
entities
.
[5]
The appl
i
cant
i
s
the
State Information Technology Agency. It
i
s
i
ncorporated
by
the
State
Information Techno
l
ogy
Act
[2]
(
"SITA
Act"). It
i
s
subject to and bound by,
inter
alia,
section
2
1
7
of
the
Constitution
of the Republ
i
c
of South Africa Act, the
Publ
i
c
.
Finance
Management
Act
[3]
("PFMA
"
),
and the S
TA
Ac
t
.
The
Preferential
Procurement
Policy Framework Act and
i
ts
regulations
apply
to
the
applicant
when
i
t
procures goods and services and so does
appl
i
cant's
supply
chain
management
polic
y
.
Salient
common
cause or
admitted
facts.
[6]
On
27
September
2006,
the
appllcant
and
the
respondent
entered
i
nto
an
agreement
in
terms
of
which
the
respondent,
on
behalf
of the applicant, was
·
to
provide
i
n
formation
technology
services
to the South African Police
Service
(
"SAPS
agreement")
.
[7]
The
respondent
performed
in
terms
of
the
agreement
and
the
agreement was extended on various
occasions. On
25
January
2012
the
applicant
unlawfully
attempted
to
terminate
the
SAP
agreement.
This
repudiation
threatened to
cause
the
respondent
significant
damage
and
it stood
to
suffer
at
least R20
million in lost
revenue.
[8]
On
1
February
20
1
2
the
respondent
brought
an
urgent
application seeking
an
order
compelling
applicant
to
comply
with
its
obl
i
gations
in terms of the SAPS agreement. The urgent application was settled
in
terms
of
a
confidential
agreement
concluded between
the
respondent
and
applicant,
the settlement
agreement
was
not
made
an
order of
court. The
intention
of the
settlement
agreement
was to compensate
the
respondent
for
the
losses
that
the
applicant
1
s
unlawful
termination
of
the
SAPS
agreement
would cause
the
respondent.
[9]
I
n terms of
the settlement
agreement
respondent
was
appointed
for the provisioning of hardware
maintenance
and
support services for
the
Department
of defence.
[
1
0]
During
the
currency
of
the
main
agreement
and
its
addenda,
a
p
ayment
dispute arose between the applicant and the respondent. The
respon
d
ent
contended
that
it
was
short
paid
by
the
appl
i
cant.
This
caused
the respondent,
afte
r
the
termination
of
the
main
agreement
and
addenda
by·
the efflu
x
i
on
of t
i
me
the payment
d
i
spute
to
a
rbitration.
I
n
it
s
p
l
ea
i
n
the
arbitration,
the applicant, for the
first
time
contested
the
validity
of
the
main
agreement
and
i
ts
addenda
on
the
basis
that
the
agreement
and addenda breached
the
constitution. On
20
March
20
1
4
the arbitrator
ruled
that
he could
not determ
i
ne
the
val
i
dity
of the agreement
on the
basis of
the
constitutional
challenge.
After
some
delay,
i
n
May
20
1
4
the
appl
i
cant
brought
the
present
application to set aside the main
agreement and its three addenda.
Legislative
framework
[
1
1
]
At
common
law,
the
High
Court
has
i
nherent
jurisdiction
to
review
administrative decisions
and
to set
aside
or
.
correct
them
in
order
to
remedy
invalid
administrative
action
[4]
.
It
i
s
now
trite
l
aw
that reviews
under
the
principle
of
legality
are
competent
where
PAJA
finds
no
applicat
i
on.
Ngcobo
J
i
n
Affordable
M
e
dicines
Trust
&
others
v
Mi
n
i
ster
of
Hea
l
th
&
others
[5]
explained
i
ts
underlying constitutional
foundation
as
follows:
"The
exercise
of
publ
i
c
power
must
therefore
comply
with
the Constitution, which
is the
supreme
l
aw; and
the
doctrine of
l
egality,
which
i
s
part
of
that
law.
The
doctrine
of
l
egality,
which
is
an
i
ncident
of
the
rule
of
l
aw,
is
one
of
the
constitutional controls
through
which
the
exercise of public
power
i
s
regulated
by
the
C
onstitution."
[
12]
The reviews under
the principle
of
l
egal
i
ty
must
still
be
brought
without
unreasonable
delay and
courts
have
the
power
to
refuse a
review
applicat
i
on
in
the
face
on
an undue delay.
The
delay
i
n
reviewing unlawful
administrative
action my
render
it
unassailable.
The
Supreme
Court
of
Appeal
in
Opposition
to
Urban Tolling
Alli
a
nce
v Sanral
[6]
judgment
stated
i
n
paragraph
36
that:
"
The
fourth
basis
invoked by the appellants
as
to
why the
1
80-day
time
bar
sho
u
l
d
be extended was t
h
at
i
t is a
requirement of the rule of
l
aw
that the exercise
of
all publ
i
c
power shou
l
d
be
l
awful
and that SANRAL and the
government
has failed to act
l
egally.
As I see it,
however,
the argument
i
s
m
i
sconceived.
While it is true that the principle of legal
i
ty
is constitutionally
entrenched,
the constitutional
enjoinder
to fair
administrative
action, as
I
t has
been expressed
through
PAJA,
expressly recognises
that
even
unlawful administrative
action
may
be
rendered
unassai
l
able
by delay
.
"
.
[
1
3]
In
All
p
ay
Consolidated
I
nvestment
H
oldings
(Pty)
Ltd
v.
Chief
Executive
Officer,
South
African
Social
Security
Agency
and
Other
[7]
the
Constitutional
Court
explained
the
legislative
framework
for
procurement
policy
under
the Constitution,
PFMA
and
PAJA
as
follows:
"
Section
2
1
7
of
th
e
Const
i
t
ution,
the
Procurement
Act and the Public Finance
Manag
e
ment
Act
provide
the constitutional
and
l
eg
i
slative
framework within
which
administrative
action
may
be
taken
in
the
procurement
process. The lens for judicial review
of these actions, as with
other administrative action
,
is
found
in
PAJA.
The central focus
of
this
enquiry is
n
ot
whether the decision
was correct,
but
whether the process
i
s
reviewable
on
the
grounds
set
out
in
PAJA
.
There
i
s
no
magic
in the procurement process that
requires
a
different
approach. Alleged ir
r
eg
u
l
arities
may
differ
from
case
to
case,
but they
will
still
be
assessed
under
the
same
grounds
of
review
in
PAJA
.
I
f
a
court
finds
that
there
are
valid
grounds
for
review
,
i
t
I
s obliged
to
enter
into
an
enquiry
with
a
view
to
formulating
a just
and
equitable
remedy.
That
enquiry
must
entail
weighing
all relevant
factors,
after
the
objective
grounds
for
r
eview
have been establ
i
shed.”
[
1
4]
In
Bato
Star
fishing
(Pty)
Ltd
v
Minister
of
Environmental
Affair
s
[8]
O'Reagan
J
confirmed
that
(“PAJA”)
gives
effect
to
section 33
[9]
of
the
Constitution
of
the
Republ
i
c
of
South
Africa
(
"
The
Constitution")
[10]
•
Accordingly,
the
cause
of
action
for
the
jud
i
cial
review
of
admin
i
strative
action
ordinarily
arises
from
PAJA
and
not
the common l
a
w,
as
i
n
the
past.
[
1
5]
Section
1
72
of the Constitution regulates the powers of the Court
i
n
respect
of
constitutional matters. Section
1
72
(
1
)
provides
as
follows:
(1)
When
deciding
a
constitutional
matter within
its
power,
a
court-
(a)
Must
declare that
any
l
aw
or
conduct
that
is
inconsistent
with
the
Constitution
i
s
invalid
to
the
extent
of
its
inconsistency;
and
(b)
May
make
any
order
that
i
s
just
and
equitable,including-
(ii)
An
order
limiting
the
retrospective
effect
of the
declaration
of
invalidity;
and
(iii)
An order suspend
i
ng
the
declaration
of
invalidity
for any
period
and
on
any conditions, to
allow
the
competent
authority
to
correct
the
defect.
[
1
6]
The
applicant contends
that the
appointment
of the
respondent
was made
and
the
resultant
agreement
concluded
in
order
to
comply
with
the
settlement
agreeme
n
t
and
not
i
n
terms
of
a
power
vested
upon
the
applicant
by any
legislation. Applicant
submit
i
n
i
ts
heads of argument
and in court that the conclusion of the
agreement
i
s
not
a
decision
and
does
not
fall
under
the
definit
i
on
of
administrative action contained
in section
1
of
PAJA. This submission
is
in
my view,
incorrect.
[
1
7]
I
n
MEC
for
Hea
l
th,
E
-
C
v
Kir
l
and
I
nvestments
[11]
Cameron
J
confirmed
that
decisions
taken
because
of
unauthorized
or
unwarranted
dictates
of
another person or body
constitutes
administrative
action
that
i
s
reviewable.
It
follows
that
an
unlawful
decision
i
s
still
a
decision
for
purposes
of
PAJA
[12]
.
Section
1of
PAJA defines a "decis
i
on"
to
mean,
“
any
decision of an
admin
i
strative
nature
made,
proposed
to
be
made
or
required
to
be
made,
as
the
case
may
be
under
an
empowering
provision".
Cameronstated
that
a
decision
might
exist
if
an
administrator
is
required
to
make
a
decision
but
as
a
matter
of
fact
has
not
decided
.
[13]
In the present
matter
the
conclusion
of
the
agreement
even
i
f
unauthorized i
s
a
decision
as
defined.
[
1
8]
S
I
TA
i
s
exercising
a
public
function
i
n
spending
public
funds
for
information technology services required by the Defence
force. It
i
s
empowered by Sita Act to provide information technology systems
and
related
services
on
behalf
of
participating
departments
and
organs
of state, an in regard to these services, act as an agent of the
Government.
[
1
9]
It
follows
therefore
that
the
decision to award
and
renew
the
main
agreement,
qualifies
as
an
admin
i
strative
act
[14]
and
PAJA
i
s
implicated. It
is
common cause that the tender process required by
section
217 of
the
Constitution,
the
Procurement Act and the Public
Finance
management Act were not complied with.
The
appropriate
legislation
to
jud
i
cially
review
such
decision
is
s
6
of
PAJA
-
in
particu
l
ar
that
·
the
decision
maker
was
not
authorised
to
take
the
decision
[s
6 (2) (a)
(i)],
that
a
mandatory
and material procedure
or
condition was
not
complied
with[s
6
(
1
)
(b)], and that the action
contravenes
a
l
a
w
or
i
s
not authorised by the empower
i
ng
provision
s
6(2)(f)(i).
[20]
Section 6 of PAJA i
s
subject to s 7 which reads:
"(
1
)
Any
proceedings
for
jud
i
cial
review
in
terms
of
section 6
(
1
)
must
be
instituted without
unreasonable delay and not
l
ater
than
1
80
days after the date-
(a)
.
..
(b)
… on
which
the
person
concerned
was informed of
the
administrative
action,
became
aware
of
the
action
and
the
reasons
for
it
or
might
reasonably have been
expected to
have
become
aware
of
the
action
and
the
reasons."
[2
1
]
Section
9
of
PAJA
allows
the
time
period
of
1
80
days
to
be
varied
only "by
agreement
between the
parties
or,
failing
such
agreement,
by a
court
or
tribunal
on
application
by
the
person
or
administrator
concerned."
[22]
On the
facts,
applicant
should
have
reviewed
the
award
of
the
main
agreement by
not
l
ater
than,
1
4
January 2013,
i
t
has
brought
this review
application some
1
4
months out
of the
1
80-day
time in terms of PAJA.
The applicant
has
provided
no
explanation
for
its delay
in
bringing
the ·present application
nor
sought
an
extension
of
the
1
80-day
time period by applying to court. This
delay
i
s
per
se
unreasonable and
has
validated
the
decision
by
applicant
to
appoint
the respondent to provide hardware, maintenance
and support services to the Department of Defence
[2
3
]
In
Opposition
to
U
r
b
an
Tolling
Alliance
v
South
African
National Roads
Agency
Limited
[15]
is
the
SCA
emphasized
that
a
review
after
the
time
period
of
1
80
days
prescribed
by
section
7(
1
)
i
s
unreasonable,
the
court
stated
at
para
26
that
:
"At
common
l
aw
application
of the
undue
delay
rule
required
a
two
stage
enqu
i
ry.
F
irst,
whether
there
was
an
unreasonable
delay
and, second,
i
f
so, whether
the
delay
should
in
all
the
circumstances be
condoned
(see
eg
Associated
I
nstitutions
Pension Fund and
others v Van
Zyl and
others
2005
(2)
SA 302
(SCA)
para 47). Up
to
a point,
I
think, s 7(
1
)
of PAJA requires the
same
two
stage
approach.
The
difference
lies,
as
Isee
it,
I
n the
l
egislature
'
s
d
etermination
of
a
delay
exceeding
1
80
days
as
per
se unreasonable
.
Before
the
effluxion
of
1
80
days,
the
first enquiry
i
n
appl
y
i
n
g
s 7(
1
)
i
s
still whether the delay (if any) was unreasonable. But after the
180
day
pe
r
i
od
the
issue
of
unreasonableness
is predetermined by
the
l
egislature;
i
t
is unreasonable
per se.
It follow
that the
court
i
s
only empowered
to
entertain
the
review
application
i
f
the
interest
of
justice dictates an extension i
n
terms of s 9
.
Absent such extension the court has
no authority to entertain
the review
appl
i
cation
at
all
.
Whether
or
not the
decision was unlawful no
longer matters. The decision has been 'validated'
by
the
delay
(see
eg
Associat
e
d
Insti
t
utions
Pension
Fund
para 46)
.
That
of course
does
not
mean that, after
the
1
80
d
a
y
perio
d
,
·
an enquiry into the reasonableness
of
the
applicant
'
s
conduct becomes
entirely
irrelevant. Whether
or
not
the
delay
was
unreasonable
and,
i
f
so, the
extent
of that unreasonableness
is still a factor to
be taken
into account
in
determining
whether an extension
should
be
granted
or not
(see
eg
Camps
Bay
Ratepayers' and Residents'
Association
v
Harrison
[2010]
2 All
SA
519
(
SCA)
para 54)
."
[24]
In
my
view,
i
t
will
not
be
i
n
the
i
nterest
of
just
i
ce
to
grant
an extension
in
terms
of
s
9
since
the respondent
has
fully
performed
on
its obligations
in
terms
of
the
main agreement
and
its
addenda
and
i
ts
i
nvoices
has
been
paid
and
applicant
did
not
at
any
stage raise
i
ts
concerns
regarding
the validity
of
the agreement
.
[25]
Froneman
J,
i
n
Allpay
Consolidated
i
nves
t
ment
Holdings (Pty) Ltd and others v Ch
i
ef
Executive
Officer
of the South African Social Security Agency and Others
,
[16]
explained
the co-operative effect of section
1
72
(
1
)
of the Constitution and section 8 of PAJA as follows:
"Once
a
ground of
review under PAJA
has
been established
there
i
s
no
room
for
shying
away
from
it.
Section
1
72
(
1
)
(a)
of
the
Constitution requires the decision to be
declared
unlawful.
The consequences of the
declaration
of unlawfulness must
then
be
dealt
with in
a
just and
equitable
order under
section
1
72
(
1
)(b).
Section 8 of PAJA gives detailed
legislative content
to
the Constitution's
'just
and
equitable' remedy."
[26
]
I
n the
present
matter
the
applicant's
ground
of
review
of
the
award
and
extention
of
the
main
agreement
falls
within
the
ambit
of
the
grounds
set
out
in
section
6(2)
of
PAJA. Applicant
states
it
its
founding affidavit
inter
alia
that
(a)
there
was
no
public
invitation
to
i
nterested
parties
to
submit
tenders
for
the
provisio
n
of
the
goods
and
services
·
provided
for
i
n
the
agreement
(b)
the
respondent
·
did
not
submit
a
tender
for
the
provision
of
the
goods
and
services
provided
for in the agreement (c)
The Respondent's
goods and
services
were
not
assessed
to
determine
i
f
the
agreed
upon
price
was
competitive
and
cost
effective
(d) the
process which
l
ed to
the conclusion of
the
agreement
was
not
fair in that
other
service
providers
were not
publ
i
cly
i
nvited
to
submit
tenders
for
the provision of goods and services in
i
ssue.
[27]
Applicant
submit
i
n
i
ts
head
of
argument
and
i
t
court
that
the
relief
i
t
seeks
i
s
contemplated in
section
1
72(
1
)
of
the
Constitution
and does
not depend
on
the
applicant
having first
invoked
PAJA
due
to
the fact
that the
applicant
does
not
rely on
a
contravention
of
section
6
of
PAYA.
[28]
Firstly, the
applicant
cannot
disavow
PAJA
and
claim
to
bring this
review directly
on the
principle of
l
egality.
Applicant
must
bring its claim under
PAJA
which
has been enacted to give
effect to
section
33
of
the
Constitution. The appl
i
cation
falls to be dismissed on this ground alone.
[29]
I
n
New Clicks
[17]
Chief
Justice Chaskalson
explained
at
par 95
that:
"PAJA
i
s the
national legislation that was passed to give effect to the rights
contained in section 33. It
was
clearly intended to be, and in substance is, a codification
of
these
rights
.
It
was required
to
cover
the
field
and
purports to do so. A
litigant
can
n
ot
avoid
the
provisions
of
PAJA
by
going
behind
i
t,
and seeking to
rely
on
section
33(1)
of
the
Constitution
or
the
common
l
aw.
That would defeat the purpose of the Constitution in
r
equiring
the rights in section 33 to be given effect to by means of national
l
egislation."
Ngcobo
J
elaborated
on this duty
as follows:-
"Our
Constitution contemplates
a
single
system of
l
aw
which
i
s
shaped
by
the
Constitution.
To
rely
directly
on
s
33(
1
)
of
the
Constitution
and
on
common-law
when
PAJA,
which
was
enacted
to
give
effect
to
s
33
i
s
applicable, is, in my view,
inappropriate. It
will
encourage the development of
two parallel systems of law, one under
PAJA and another under
s 33
and
the common law."
[30]
Secondly,
while
the
principle
of
l
egal
i
ty
generally
requires
that
i
nval
i
d
adm
i
n
i
strative
acts should be
set
aside, the court has
a
discretion
to
refuse
this
remedy
in
the
interest
of
finality
of
admin
i
strative
decisions
and
the
exercise
of
administrative
functions
[18]
.
This
normally
arises
in
the
context of
"
third
parties
having
altered
their
position
on
the
basis
that
the administrative action
was
val
i
d
and would
suffer
prejudice
i
f
the
admi
n
i
strative
action
i
s
set asid
e
[19]
.
It
i
s
not
i
n
dispute
that
there
was
an
extensive negotiations process preceding the main agreement and
before each
extension
of the main agreement. The applicant did not at any
stage
raise
i
ts
concerns
regar
d
ing
the
validity
of
the
agreement.
The
respondent
performed
on
the
main
agreement
and
i
ts
addenda
and
provided
i
nvoices
for
i
ts
services
to senior
representatives
of
the applicant
who
authorised
payment of
the
i
nvoices.
During negotiations over
the
payment
dispute between applicant and
respondent,
appl
i
cant
never
ra
i
sed
concerns
with
the
validity
of
the
main
agreement
and
i
ts
addenda.
[3
1
]
The
applicant did
not make an application for the
condonat
i
on
of
his
delay
in
bringing
the
appl
i
cation
and
did
not
offer
any
exp
l
anation
for the delay. In
my
view, the applicant has unreasonably delayed in
bringing the
present
application to the
prejudice
of
the
respondent
who
has
performed
in full
in
terms
of
the
main
agreement
and
its
addenda
.
[32]
Even
If
the
court
was
to
condone
applicant
1
s
failure
to
comply
with the
peremptory
provisions
of
PAJA
as
well
as
the
unreasonable
delay
in
bringing the
review
application,
valid
grounds
for
review
exists
And
the
Court
must consider a just and equitable remedy to address
the
consequences
of
the
const
i
tutionally
required
declarat
i
on
of unlawfulness.
[20]
[3
3]
In
Bengwenyama
Minerals (Pty)
Ltd
and
Others
v
Genorah
Resources
(Pty)
Ltd
and
Others
[21]
i
t
was
held
that:
"The
rule
of
law
must
never
be
relinquished,
but
the
circumstances
of
each
case
must
be
examined
in
order
to
determine
whether
factual
certainty
requires some amelioration of
l
egal
i
ty
and,
i
f
so,
to
what extent."
[34]
Moseneke
DCJ
i
n
Steenkamp
NO v Provi
n
cial
Tender
Board, Eastern
Cape
:
[22]
stated:
"The
purpose
of
a
public-Jaw
remedy
!
s
to
pre-empt
or
correct
or
reverse
an
i
mproper
administrative action...
Ultimately
the purpose of a public remedy
i
s
to
afford
the
prejudiced
party administrative just
i
ce,
to advance efficient and effective publ
i
c
administration compelled
by
constitutional precepts and
at
a
broader
level, to entrench the
rule of law."
[35]
Froneman
J,
in
the
Allpay
decision
on
remedy
confirmed
that
the
default
position
requires that the consequences
of invalidity
must be
corrected
or
reversed
where
they
can
no
l
onger
be
prevented
and
that
such
approach
accords
with
the
rule
of
l
aw
and
the
principle
of
l
egality;
[23]
The
court
explained
that
this
corrective
approach,
in
the
context
of
public
procurement,
operates
at
different
l
evels;
firstly,
the
corrective
approach
is
applied
to
correct
the
wrongs
that
led
to
the
declaration
of
i
nvalid
i
ty
(by
having
regard
to
the
constitutional
principles
governing
public
procurement);secondl
y
,
in
giving
priority to
the
public
good,
the
public
interest
must
be
asse
s
sed
in
relation
to:
(a)
the
immediate
consequences
of
the declaration
of
invalidity;
and
(b) the effect of the order
on
future
procurement;
[24]
[36]
The
court
emphasised
that
"a
just
and
equitable
remedy
will
not
always
lie
in a
simple
choice
·between
ordering
correction
and
maintaining
the
existing
position.
It
may
lie
somewhere
in
between.
.
.
”
[25]
.
[37]
In
my
view,
it
will not
be
just and
equitable
to
set
aside
the
main
agreement
and
its
addenda
for
the
following
grounds.
Firstly, for
a
lengthy
period
of
time,
the
applicant
has
received
the
services
for
which
i
t
contracted
for
in
the main
agreement and its
addenda. Substantial
payments
have
been
made
to
the
respondent
and
the
services
cannot
be
reversed.
The
only
dispute
i
s
the
alleged
under invoicing for services rendered
which has been referred for
arbitration.
[38]
Secondly, there
i
s
no
i
nd
i
cation
of corruption or wrongdoing by
respondent at all for the
·applicant's non-compliance with section
217
of
the
Constitution.
Both
parties
have
throughout considered
thems
e
l
ves
bo
u
n
d
by the contract and t
h
e
ad
d
enda
t
h
ereto
and the contract
h
as
been
duly executed
and
performed.
[39]
Thirdly,
the
r
e
are
no
d
i
sappoi
n
ted
tenders who wasted
resources
te
n
dering
and who stand to
b
enef
i
t
by t
h
e
s
e
tti
n
g
aside of the main agreem
e
nt
and
i
ts
addenda.
Lastly
and
most
i
mp
o
rtantly,
the r
e
spon
d
ent
forf
e
i
ted
co
n
tractual
damages agai
n
st
applicant
I
n
excess
of
R20
m
i
ll
i
on
i
n
the
settlement negotiatio
n
s
t
h
at
u
l
t
i
mately
l
e
t
to
the
concl
u
s
i
on
of t
h
e main
agree
m
e
n
t
a
n
d
i
ts
addenda.
[40]
With regard to the
costs
,
I
am of the
view that
the
comp
l
ex
i
ty
of t
h
i
s
matter
justif
i
es
the costs
o
f
em
p
l
oyment
of
two
counsel.
[
4
1
]
In
the result t
h
e
following order
i
s
made:
1.
T
he
appl
i
cation
i
s
d
i
sm
i
ssed
with costs, including t
h
e
co
s
ts
of
two
counse
l
s.
____________________________
K
E MA
T
OJANE
J
U
D
GE
OF THE H GH
C
OURT
[1]
Act
3 of 2000
[2]
Act
88
of
1
998
[3]
Act
1
of
1
999
[4]
4
Johannesburg Consolidated Investments Co
v
Johannesburg
Town Council
1
903
TS
111
at
115
.
[5]
[2005] ZACC 3
;
2006
(3)
SA
247
(CC)
para
49
:
[6]
(2013)
4
All SA 639
SCA
[7]
2014(1)
SA 604 (CC)
("Allpay
I")
[8]
[2004] ZACC 15
;
2004
(4) SA
490
(CC) para
25.
[9]
Section
33 provides that:
"(1)
Everyone
has
the
rig
h
t
to administrative action that
i
s
l
awful,
reasonable and procedurally fair
."
[10]
The
l
ong
title
of
P
A
JA
re
ad
s
"
T
o
give
eff
ect
to
the
right
to
administrative
action
is
lawful,
r
ea
s
onabl
e
and
.
Pro
ce
dur
ally
fair a
nd
t
o
th
e
r
i
ght
to
written
reasons
-
for
administrative
act
i
on
as·
co
nt
em
plated
i
n
secion
33
of
the
Constitution
of
the
Republ
i
c
of
south
Africa
,
1996
:
and
to
prov
i
de
for
matte
r
s
rel
a
ted
hereto
.
”
[11]
2014(3)
SA 481 par 96
[12]
s
6(2)(e)(iv)
[13]
Para
94
[14]
Millennium
Waste
Management
{Pty)
Ltd
v Chairperson Tender
Board
:
Limpopo
Prov
i
nce
and
others
2008(2)SA
481
(SCA) at para
4
and
21
[15]
[2013]
4
All
SA
6
3
9
(SCA)
par
a
26
[16]
[
2
014(1)
SA
604,
par
a
2
5
[17]
Min
i
ster
of Hea
l
th
and
Another
v
New
Clicks South Africa (Pty) Ltd
and
Others
·
(CCT
59/2004) [
2
005]
"ZACC
1
4;
2006
(8)
BCLR872
(
CC)
;
2
006
(
2)
SA
311
(CC)
[18]
Asso
c
i
ated
I
nst
i
tutions
Pension Fund
and
Others
v
Van
Zyl and
Othe
r
s
2005
(
2)
SA 302
par 46
[19]
Bengwenyama
M
i
nerals
at par 84
[20]
Allpay
C
onsolid
a
ted
I
nvest
m
ent
Ho
l
ding
(Pty)
Ltd
supra
,
pan
45.
[21]
2
011
(4)
SA
13
(CC)
at paras 84 and 85
[22]
[200
6
]
ZACC
1
6;
200
7
(
3
)
SA 121
(CC);
2007 (3) BCLR 300
{CC)
at
para 29.
[23]
Allpay
(j
u
dgment
on r
e
medy)
supra
at
para 30,
[24]
Allpay
Consolidated Investment
Holdings
(Pty) Ltd
(judgment on remedy)
para
32
.
[25]
Allpay
Consolidated
I
nvestment
Holdings
(Pty)
Ltd
{judgment on remedy)
para
39
.