Masakhane Security Services (Pty) Ltd v University of Fort Hare (530/2011) [2012] ZAECBHC 1 (19 January 2012)

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[2012] ZAECBHC 1
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Masakhane Security Services (Pty) Ltd v University of Fort Hare (530/2011) [2012] ZAECBHC 1 (19 January 2012)

IN THE HIGH COURT OF SOUTH AFRCA
EASTERN CAPE HIGH COURT –
BHISHO
Case no:  530/2011
Date argued:  15.12.2011
Date order granted:  19.1.2012
In the matter between:
MASAKHANE
SECURITY SERVICES (PTY) LTD
Applicant
vs
UNIVERSITY
OF FORT HARE
Respondent
REASONS FOR JUDGMENT
SUMMARY
Applicant and respondent herein entered into an
agreement of provision of security services by applicant.  The
contested portion
of the agreement reads: “This contract will
be for a period of at least 12 months renewable in terms of the
University of
Fort Hare Supply Chain Management Policy which may be
for a further 12 months’.
Respondent refused to renew the
agreement on the grounds that its interpretation of the terms of the
contract aforesaid is that
the agreement was renewable subject to the
applicant tendering for and is subsequently awarded a contract in
terms of the respondent’s
Supply Chain Management Policy, if
appointed.
When respondent refused to change its
mind, applicant brought the present proceedings.  Court ordered
that the conduct of respondent
is reviewable and gave the order
setting aside the respondent’s refusal to renew the contract
and payment of costs of the
applicant.
TSHIKI  J:
A)
INTRODUCTION
[1]      On
25 November 2011, applicant filed an urgent application against
respondent for an order in
the following terms:
“
1.
Dispensing with the forms of service provided for in Rule 6
and allowing the matter to be enrolled and heard
as one of urgency in terms of Rule 6(12).
2.
That the Respondent is called upon to show cause on the 15th
December 2011 at 09h30 or as soon thereafter as
counsel may be heard why:
2.1     The
Respondent should not be interdicted and restrained from terminating
the Applicant’s contract
in terms of Annexure “MSS2”
and/or appointing another service provider pending the review of the
decision to terminate
the said agreement.
2.2     The
decision of the Respondent to terminate the agreement between the
parties should not be judicially
reviewed and set aside.
2.3     The
Respondent should not be ordered to pay costs of this application.
3.
Prayer 2.1 and 2.2 is to operate as an interim order pending the
return day of the rule nisi.
4.
The Respondent is ordered to provide reasons for its decision to
terminate the agreement between
the parties within 5 days of the
service of this order.
5.
Further and/or alternative relief.”
[2]
Respondent has opposed the application which was argued on 15
December 2011.
[3]
After the matter was argued, I reserved my judgment and on 19th
January 2012, I granted an order
in the following terms:
“
1.
That the decision by the Respondent to refuse to consider extending
the contract of service with
the applicant beyond 31 December 2011
and for a period not in excess of 24 months, as contained in annexure
“MSS2”,
is hereby reviewed, declared unlawful and is
hereby set aside.
2.
The respondent is ordered to pay costs of this application.
3.
Reasons for judgment will be furnished at a later stage.”
[4]      What
next follows hereafter are those reasons.
[5]
During argument of the application, Ms S.A. Collett appeared for the
applicant and Mr S. Swartbooi
represented the respondent.
[6]      It
would appear from the submissions by Ms Collett, which have been
recorded, that by the time
of argument a lot had taken place which
necessitated applicant to seek only the order of review and costs.
This was so because
the respondent had already appointed another
service provider in place of applicant and consequently there was no
longer a reason
for applicant to seek an order of interdict in terms
of paragraph 2.1 of the notice of motion.   Consequently,
the urgency
of the application was no longer urgent for the reason
that it was no longer necessary to prevent the appointment of another
service
provider by respondent. What is disturbing though is the
pressure that has,  since the order was granted,  been put
to
me through my secretary by a certain Mr Jarana.  All along my
secretary was under the impression that Mr Jarana was an attorney

from the respondent’s attorneys.  It was only on 7 March
2012 that my secretary became aware that Mr Jarana is in fact
an
employee in the office of the applicant.  I cannot, even for a
moment, comprehend why the registrar’s office in East
London
would release my phone number to the parties in litigation dealt with
by me.  This is so especially for the purposes
of establishing
developments in a case that I am handling on behalf of the parties.
In my view,  if any
represented litigant approaches
the registrar’s office to know anything concerning his or her
case dealt with by a Judge,
the registrar should advise the
litigant to approach his or her attorneys who will make the enquiries
on his or her behalf.
It was improper and undesirable for the
East London registrar to release the details of the Judge’s
office phone to a litigant
and even to an attorney for that matter.
Only attorneys of represented litigants can approach the registrar’s

office for establishing progress in any matter before a Judge.
Attorneys themselves cannot deal directly with the Judge in
question
but can only address their concerns to the office of the registrar
and the latter can then forward the matter to the Judge
concerned for
his or her response.  The Judge in turn can only respond through
the registrar’s office.  The East
London registrar’s
office should discontinue the practice of releasing Judge’s
office phone number to litigants or
their attorneys and this judgment
should be brought to the attention of the Head of the Office of the
Registrar of this Division.
In any event,  an application
for review of the respondent’s conduct in the circumstances of
this case could never have
been considered on an urgent basis.
This is also confirmed by the recorded argument by Ms Collett on
pages 13-14 of the record.
On page 13 line 21-22 Ms Collett
says:
“
but M’Lord
I would seek an order in terms of order 2.2 and 2.3  M’Lord”
Whereas on page 14 line 15 Ms Collett
says:
“
The
relief that we would see(k) M’Lord would be that the decision
of the   Respondent to terminate the agreement
between the
parties should be judicially reviewed and set aside.”
B)
FACTS
[7]      In
December 2010, applicant and respondent entered into an agreement in
terms of which applicant
was appointed by respondent to provide
security services to the respondent effective from 1January 2011.
The terms of the
agreement are contained in the letter annexure
“MSS2” on page 18 of the record which reads:
“
NOTICE OF
APPOINTMENT AS A SERVICE PROVIDER:  PROTECTION SERVICE
This serves to advise you that you
have been appointed to provide security service to the University of
Fort Hare with effect from
01 January 2011.  Kindly take note
that this service contract will be regulated by a service level
agreement which will be
signed by both the University of Fort Hare
and Masakhane Security service.  This contract will be for a
period of at least
12 months renewable in terms of the University of
Fort Hare Supply Chain Management policy which maybe for a further 24
months.
Currently the University is protected by Qush Security
service whose contract has been cancelled by mutual agreement as at
31 December
2010.
The University may request you to
start earlier than the indicated date to manage the transition phase
in the interest of protecting
the University assets.  The
contract amount as greed with the Managing Director of Masakhane
Security service (Mr N Ndinisa)
is R670 000.00 per month
inclusive of VAT.  Should a  need arise for any further
deployment of security guards a
quotation will be required and the
necessary approval sanctioned.  Our approval of this solicited
bid has been influenced
by your current service with Nelson Mandela
Metropolitan University and we hope that you will provide high
quality standards.
Once more congratulations on your
appointment, thanks.”
[8]      As
the terms of the contract indicate the contract was renewable
possibly for a further two years.
[9]
Towards the expiry of the first 12 months and on 15 October 2011, the
respondent’s operational
manager contacted applicant through
its director Mr Ndinisa informing him that respondent was putting the
security services of
the applicant out for tender for 2012.  It
was, therefore, clear to applicant that respondent was no longer to
consider the
renewal of the contract for a further 24 months period.
Letters written by applicant to respondent to avert the inevitable

fell on deaf ears.  Applicant then filed the present
application.
[10]    Respondent’s
opposition of the applicant is based mainly on the contention that
the contract was for
a period of 12 months from 1 January 2011 to 31
December 2011 and on the latter date the contract would cease to
exist.  However,
the contract could only be extended if the
applicant “tendered for and was awarded a contract in terms of
the respondent’s
supply management policy”.
According to respondent it was not the latter’s intention “to
create the impression
in the minds of the applicant that they had
secured a contract for a three year period”.  Respondent’s
further
submission for the dismissal of the application is that the
contract in excess of 12 months would, in any event, have been
contrary
to the provisions of the Supply Chain Management Policy
(SCMP) of the respondent.  According to respondent, the above
policy
is in line with the provisions of the Preferential Procurement
Policy Framework Act[1] and the Broad Based Black Economic
Empowerment
Act[2].
C)
ISSUES
[11]    During her
address Ms Collett for the applicant narrowed her points of argument
and limited them to those
specifically mentioned in the preceding
paragraph 6 supra.  She limited the issues to only one issue
which is the review and
setting aside of the respondent’s
decision to terminate the agreement between the parties as well as
costs of suit.
[12]    Mr Swartbooi,
in addition to the interpretation of the contract, has also argued
the issues regarding urgency
of the matter.  I must say though
that in view of Ms Collett’s submissions it was no longer
necessary for Mr Swartbooi
to argue the issue of urgency.
Applicant could not pursue an order of interdict for the reason that
respondent had already
appointed another service provider by the date
of argument of the application.
[13]    In my view, the
only issues herein are whether or not the conduct of the respondent
is the subject of review.
Secondly, whether the contract
between the parties is renewable for a further period of two years
after its expiry.  As the
terms of the contract suggest, it
would appear that applicant has entertained an expectation that the
contract would be renewed
after the expiry of twelve years.
Therefore, the Court should also consider whether such expectation by
applicant was legitimate.
Or to put it in line with the modern
legal parlance, whether the administrative conduct by the respondent
in refusing to extend
the contract with applicant was fair.  If
so, whether the parties should have automatically renewed the
contract for a further
two year period after 31 December 2011.
The interpretation of the contract,  in my view,  is
decisive of this application.
D)
RATIO DECIDENDI
D1)     WHETHER
THE RESPONDENT’S CONDUCT IS REVIEWABLE
[14]    A question
arises herein whether or not the conduct of the respondent should be
subject to review.
Generally speaking administrative law
regulates the activities of bodies that exercise public powers or
perform public functions
irrespective of whether those bodies are
public authorities in the strict sense[3].  Section 8 of the
Constitution[4] provides:
“
(1)
The Bill of Rights applies to all law, and binds the legislature, the
executive, the judiciary and all
organs of state.
(2)
A provision of the Bill of Rights binds a natural person or a
juristic person if, and to the extent
that, it is applicable, taking
into account the nature of the right and the nature of any duty
imposed by the right.”
Whereas section 239 of the
Constitution defines an organ of state as follows:
“ ‘
Organ
of state’
means –
(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, ...”
[15]    Section (1) of
Promotion of Administrative Justice Act[5] (PAJA) defines
administrative action to include
the decisions of organs of state and
also of 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[6].  It also defines an
empowering provision as
meaning:
“
a law, a
rule of common law, customary law, or an agreement, instrument or
other document in terms of which an administrative action
was
purportedly taken.”
[16]    The respondent
herein is a learning institution which has been established in terms
of the Higher Education
Act[7]  which provides for the
establishment of all higher education institutions in the country.
It follows that the
respondent is an organ of state and therefore its
actions and decisions are subject to review in terms of the
Constitution.
[17]    Applicant’s
contention is that it had a reasonable expectation of the renewal of
the agreement and
bases its averment on the terms of the agreement as
appearing from letter annexure “MSS2”.
[18]    According to
the respondent’s interpretation of the contract,  the
agreement will endure for a
period of 12 months ending on 31 December
2011 and on that date it will cease to exist.  And that the
agreement was renewable
subject to the applicant tendering for and is
subsequently awarded a contract in terms of the respondent’s
supply management
policy, if appointed.  Therefore, respondent
contends that it has never been its intention to create the
impression that the
applicant has secured a three year contract.
[19]    The contract
was made known to the applicant by a letter containing its
terms which is dated 17 December
2010.  Therefore, the parties
had agreed to be bound by the terms of the agreement as envisaged by
contents of annexure “MSS2”.
D2)     WHETHER
CONTRACT IN ISSUE COMPLIES WITH RESPONDENT’S SCMP
[20]    I think it
would be apposite for me to first deal with the preliminary issue
raised by the respondent, if
I understood him correctly, which is:
[20.1]  That the contract
applicant relies on does not comply with the provisions of the
University of Fort Hare SCMP[8]
and, therefore,  an
illegality has occurred.
[21]    Section 2 of
the respondent’s supply chain management policy provides:
that the university may
not act otherwise than in accordance with its
SCMP when:
(a)
procuring goods or services
(b)
disposing of goods no longer needed.
[22]    However, there
are exceptions to the above rule in that section 28 of the same
document provides:
“
EXCEPTION TO
OPEN TENDER POLICY
(28)(1) The
Accounting Officer may –
(a)
dispense with the official procurement processes established by this
Policy and to procure any
required goods or services through any
convenient process, which may include direct negotiations, but only –
(i)
in an emergency;  an emergency is considered an unforeseeable
and sudden event with
materially harmful or potentially materially
harmful consequences for the university which requires urgent action
to address.
(ii)
where the Accounting Officer determines that it is impractical to
invite competitive bids for
specific procurement such as urgent or
emergency cases, or in the case of a sole supplier, he may in
consultation with the Chief
Financial Officer, General Manager:
Operations and End User procure the goods or services by other means
such as price quotations
or negotiations, or reduce the required
advertising period from 14 days to an appropriately deemed period.
(ii)      ...
(vi)     ...
(v)      ...
(vi)     ...”
[23]
The contract between applicant and respondent was concluded in terms
of paragraph (1)(a)(i) and (ii) of section
28 thereof which provides
for exceptions to the general rule.  The respondent’s SCMP
and the Act have not prohibited
the conduct of the respondent in the
manner in which the parties contracted.  It is, therefore, not
correct to suggest that
the respondent acted ultra vires
when
appointing the applicant to provide security services.  Section
28 of the SCMP applies to all contracts irrespective of
the amount
involved.  I say so because there is no indication to the
contrary in the wording of the document and therefore
I am entitled
to assume that there is no such exception.  In the circumstances
it is not for the applicant to establish or
prove that the respondent
has complied with the internal requirements or management of the
university on whether or not the internal
processes had been
correctly done[9].  This is so because the requirements of the
Act in question are no longer in issue as
the contract was concluded
in terms of the exceptions to the general rule imposed by the SCMP of
the respondent[10].
[24]
In the present case, we are not dealing with a situation where ultra
vires
has arisen.  In fairness to the
respondent the least that could be imagined is that the situation in
casu
is akin to the rule in Royal British
Bank v Turquand[11] (the Turquand rule).  This is so because
there has been no contravention
of any provision of a statute.
In any event, there is no suggestion from the respondent that the
parties could and have not
entered into this contract in terms of the
exception provided by section 28 above.  Even if there is such a
contention it
has not been seriously contended by the respondent and
should be rejected as having no basis.  There has been no
illegality
committed by the respondent in entering into the contract
with the applicant[12].  Therefore,  the contract in issue
is valid and enforceable.  The decision in Eastern Cape
Provincial and Others Government v Contractprops 25 (Pty) Ltd[13]
quoted by Mr Swartbooi has no application in the
present scenario.  Its facts are completely distinguishable from
those in
casu.  In that case the contract was concluded contrary
to the applicable section 4(1) of the Provincial Tender Board Act[14]

(Eastern Cape).  The statute provided that lease agreements
could be concluded on behalf of the province solely by the tender

board.  The Eastern Cape Department of Education, Culture and
Sport had entered into such a contract contrary to the provisions

aforesaid.  The Supreme Court of Appeal (SCA) set aside the
trial Court’s order which held that the Provincial Department

of Education was correct in entering into the contract instead of the
Provincial Tender Board.  The SCA held that the Eastern
Cape
Provincial Government cannot override or ignore the provisions of the
statute and enter into the contract which the Act stipulates
should
be concluded with the provincial tender board.
E)
INTERPRETATION OF THE CONTRACT
[25]    I now turn to
the interpretation of the contract entered into by the parties
herein.  Obviously the
main issue in this case is the
interpretation of the contract in question.  The controversial
words of the contract are:
“
This
contract will be for a period of at least 12 months renewable in
terms of the University of Fort Hare Supply Chain Management
policy
which maybe for a further period of  24 months.”
[26]    Fairness or
otherwise in a contract can only be determined by having regard to
the language used in the contract
when interpreted.  It follows
that there is nothing preventing the parties to a contract from
including such terms as they
will require the observance of
fairness.  By now it has long been established that our courts
have accepted that the requirements
of natural justice may be
imported into contracts entered into by private as well as public
bodies in given circumstances[15].
In modern language brought
by the Constitution natural justice in this context is known as
procedural fairness.
[27]    At page 397-398
Hoexter states:
“
Contracts
entered into by private bodes are generally governed by the
principles of private rather than public law, and there is
no general
presumption as such in favour of procedural fairness.  The
parties are free to include terms requiring the observance
of
fairness, however, and our Courts have often recognised implied terms
to this effect ... In the case of contracts entered into
by public
bodies in terms of statutory powers, the contract may vary the usual
requirements of fairness or indeed excluded them
from altogether at
common law.  There is less freedom to do so under the
Constitution, ...”[16]
[28]    The
Constitution also governs the contractual relationship whenever
public powers are in issue.  The
reason for this Constitutional
provision is clearly to prevent the public bodies from acting
unfairly to the detriment of the other
party to the contract.[17]
[29]    It seems to me
that the terms of the contract indicate that the contract between
them is renewable for a
further 24 months.  This additional
clause, in my view, creates a legitimate expectation on the part of
the applicant to have
the contract extended in light of the
provisions of the contractual terms.  On the contrary,
respondent has,  however,
decided to give its
interpretation to the contract which suits is own interests.
Unfortunately for the respondent,
the interpretation of the contract
is a matter for the Court and not for the witnesses or parties to the
contract[18].  Having
said that I will then have to deal with
the interpretation of the agreement between the two parties by having
regard to the language
used in the document “MSS2”.
[30]
According to the “golden rule” of interpretation the
language used in the document is to be given
its grammatical and
ordinary meaning, unless this would result in some absurdity, or some
repugnancy or inconsistency with the
rest of the instrument[19].
Where the terms of a contract are unambiguous, in relation to
context, intention and purpose,
evidence of any interpretation which
the parties may have given to the contract is not admissible.
By the same parity of
reasoning, the conduct of parties to a contract
is also inadmissible to show that an ambiguity exists in the wording
of a contract[20].
If the language of a contract is unambiguous
no recourse may be had to extraneous considerations.  The words
used should be
given their full effect provided, of course, that the
language does not conflict with the clear intention or purpose of the
contract
and does not lead to an absurdity which the parties could
not have intended[21].  In KPMG v Chartered Accountants (SA) v
Securefin
Ltd and Another supra
at p 409
para [39] Harms DP held:
“
If a
document was intended to provide a complete memorial of a jural act,
extrinsic evidence may not contradict, and to or modify
its meaning
(Johnson v Leal
1980 (3) SA 927
(A) at 943B).  Second,
interpretation is a matter of law and not of fact and, accordingly,
interpretation is a matter for
the Court and not for witnesses (or,
as said in common law jurisprudence, it is not a jury question:
Hodge M Malek (ed) Phipson
on Evidence (16 ed 2005) paras 33-64).”
[31]
In the present case it is not in issue that the applicant had entered
into the contract on the terms contained
in the letter to the
applicant annexure “MSS2”.  Neither did the
applicant seek clarification of the terms of
the contract when it
received the terms of the agreement.  It was only surprised when
advised by respondent that it has to
compete with others in a tender
process for the reason that the contract would expire on 31 December
2011 and was not automatically
renewable.  This was in fact an
indication that there was no automatic renewal of the contract in the
manner explained by
the language used by the respondent in the letter
“MSS2”.  In Union Goverment v Vianini Ferro-Concrete
Pipes (Pty)
Ltd[22]
at p 47 Watermeyer JA
said:
“
Now this
Court has accepted the rule that when a contract has been reduced to
writing the writing is, in general, regarded as the
exclusive
memorial of the transaction and in a suit between the parties no
evidence to prove its terms may be given save the document
or
secondary evidence of its contents, nor may the contents of such
document be contradicted, altered, added to or varied by parol

evidence.”
[32]    It appears to
me that if the contract was meant to expire on 31 December 2011 and
was not automatically renewable,
as the respondent contends, I find
it strange that there could have been any reason to indicate in the
letter of appointment “MSS2”
that the contract was
renewable for a further 24 months.  I say so because
respondent’s contention is that the meaning
of the renewable
clause is that applicant would have to be treated like any other
contender by having to join the queue of potential
tenderers and
could only be appointed if he wins the tender.  Such an
interpretation is absurd to say the least.  In
any event,  in
view of the clear intention as expressed by the words used in the
agreement,  my interpretation of this
contract makes it
unnecessary for me to go beyond the words used in the contract.
[33]    It is clear
from the literal interpretation of those words that the contract in
issue was renewable after
the expiry of the first 12 months for a
further period of 24 months.  I have not been convinced by
respondent what absurdity
would occur if the words used in the
contract are given their ordinary grammatical meaning[23].  I
also do not find any.  On
the contrary any departure from the
ordinary grammatical meaning of the words used would create an
absurdity which could never
have been contemplated by the parties who
contracted genuinely.   Therefore, the problem of
construction which had to
be decided herein is capable of solution by
linguistic treatment alone, in as much as the language of the
contract seems to reveal
an unambiguous meaning.
[34]    In the
circumstances respondent should have advised the applicant that on
the expiry of the 12 months it
intended to negotiate with the
respondent the terms and conditions of the extended renewal portion
of the agreement and should
have considered that as a priority before
31 December 2011.  In doing so, both parties would have met to
discuss such terms
and possibly have the contract reduced to
writing.  There was no attempt from respondent to do so.
Naturally,  upon
the expiry of the 12 months portion of the
agreement the new  lease agreement beyond 31 December 2011 need
not be on the same
terms as the old one and the new terms of the
contract have to be negotiated[24].  Respondent was, therefore,
bound to consider
the extension of the agreement with the applicant
and this he stoutly refused to do and its failure to do so rendered
its conduct
unconstitutional and unfair.  Instead of doing so,
respondent terminated the agreement and appointed another service
provider
notwithstanding that the contract stipulates that it was
renewable for a possible two years after the expiry of 12 months.

Respondent’s conduct aforesaid was unlawful and is hereby
reviewed and set aside.
[35]    It is for the
above reasons that I made the order which was delivered on 19 January
2012.
[36]    The costs will
always follow the event and respondent would have to pay costs
occasioned by the review and
setting aside of its conduct aforesaid.
[37]    The above,
therefore, constitutes my entire reasons for judgment and the
order aforesaid.
P.W. TSHIKI
JUDGE OF THE HIGH COURT
For
the applicant:
Ms
S.A. Collett
Instructed
by:
Andre
Schoombee Attorney
c/o
Squires
KING
WILLIAMS TOWN
For
the respondent:
Mr S.
Swartbooi
Instructed
by:
B.
Bangani Attornyes
c/o
Dandala Attorneys
KING
WILLIAMS TOWN
[1]
Act 5 of 2000
[2]
Act 53 of 2003
[3]
Cora Hoexer (Hoexter) on Administrative Law in
South Africa, 2007 ed by Juta p 2
[4]
Constitution of the Republic of South Africa,
1996
[5]
Act 3 of 2000
[6]
See also Hoexter supra on page 152 where states:
“
Thus
even a wholly private body could qualify as an organ of state under
s 239,  and action taken by it could then be challenged
under
the Bill of Rights, including s 33 if the action qualified as
‘administrative action’.  Even if it did
not
qualify as an organ of state, a private body exercising public power
would still be subject to the constitutional principle
of legality,
which governs all public power”.  See also Dawnlaan
Beleggings (Edms) Bpk v Johannesburg Stock Exchange
and Others
1983
(3) SA 344
(W).
[7]
Act 101 of 1997
[8]
A policy drafted in terms of section 2 and 3 of
the Act
[9]
National and Overseas Distributors Corporation
(Pty) Ltd V Potato Board
1958 (2) SA 473
(AD) at 480
[10]
Exceptions in terms of section 28 of the SCMP of
respondent quoted in para 22 of the judgment
[11]
[1843-60] All ER Rep 435
[12]
Holgate v Minister of Justice
1995 (3) SA 921
(E)
at 932 F;  Potchefstroom se Stadsraad v Kotze
1960 (3) SA 616
at 621-624, see also Mbana v Mnquma Municipality
2004 (1) BCLR 83
(TK) at 93 para 22
[13]
2001 (4) SA 142
(SCA)
[14]
Act 2 of 1994
[15]
Cora Hoexter (Hoexter) on Administrative law in
South Africa, 2011 ed p 397
[16]
See also Turner v Jockey Club of South Africa
1974 (3) SA 633
(A) at 645 H-646B;  Hoexter p 398
[17]
Logbro Properties CC v Bedderson NO and Others
2003 (2) SA 460
(SCA) at para 8 where Cameron JA (as he then was)
stated:  “This is not to say that the conditions for
which the province
stipulated in putting out the tender were
irrelevant to its subsequent powers.  As will appear, such
stipulations might
bear on the exact ambit of the ever-flexible duty
to act fairly that rested on the province.  The principles of
administrative
justice nevertheless framed the parties’
contractual relationship, and continued in particular to govern the
province’s
exercise of the rights it derived from the
contract.”  See also Daniel Malan Pretorius ‘The
Defence of the Realm:
Contract and Natural Justice
(2002) 119
SALJ 374
;  Ramburan v Minister of Housing (House of Delegates)
1995 (1) SA 353
(D) at 361-4;  Administrator, Transvaal, and
Another v Zenzile and Others
1991 (1) SA 21
(A).
[18]
KPMG Chartered Accountants (SA) v Securefin (Pty)
Ltd and Another
2009 (4) SA 399
(SCA) at 399 para [39]
[19]
Coopers & Lybrand and Others v Bryant
[1995] ZASCA 64
;
1995
(3) SA 761
(A) at 767 E  [also reported at
[1995] 2 ALL SA 635
(A)
[20]
Richter v Bloemfontein Town Council 1922 (AD) 57
at 70;  Shill v Milner 1937 (AD) 101 at 110-111;  EA
Kellaway on Principles
of Legal Interpretation 1996 ed p 425
[21]
Kellaway – supra
p
426.  See also Glyphis v Tuckers Land Holdings Ltd
1978 (1) SA
530
(A)
[22]
1941 AD 43-47.
Approved in Affirmative
Portfolios CC v Transnet Ltd t/a Metrorail
[2008] ZASCA 127
;
2009 (1) SA 196
(SCA) at
para
[13]
;  Coopers & Lybrand v Bryant
[1995] ZASCA 64
;
1995 (3) SA 761
(A)
at 767E-768E
[23]
Brink v Premier Free State and Another 2009 (4)
SA 420 (SCA);  Also reported at
[2009] 3 ALL SA 304
(SCA)
[24]
Aronson v Sternberg Brothers (Pty) Ltd
1985 (1)
SA 613
(A);  Soteriou v Retco Poyntous (Pty) Ltd
1985 (2) SA
922
(A)