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[2017] ZACC 40
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State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited (CCT254/16) [2017] ZACC 40; 2018 (2) BCLR 240 (CC); 2018 (2) SA 23 (CC) (14 November 2017)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
254/16
In the matter
between:
STATE INFORMATION
TECHNOLOGY
AGENCY SOC
LIMITED
Applicant
and
GIJIMA HOLDINGS
(PTY)
LIMITED
Respondent
Neutral citation:
State Information Technology Agency SOC Limited v Gijima Holdings
(Pty) Limited
[2017] ZACC 40
Coram:
Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius

AJ and Zondo J
Judgments:
Madlanga J and Pretorius AJ (unanimous):
Heard on:
9
May 2017
Decided on:
14 November 2017
ORDER
On appeal from the
Supreme Court of Appeal the following order is made:
1. Leave to appeal is granted.
2.
The appeal is
upheld in part.
3.
The
order of the High Court of South Africa, Gauteng Division, Pretoria
is set aside, and replaced with the following:
(a)
The applicant’s decision to appoint
the respondent as a DSS service provider under a contract which was
to be effective from
1 April 2012 to 31 July 2012 and
all decisions in terms of which the contract was extended from time
to time are
declared constitutionally invalid.
(b)
The order of constitutional invalidity in
paragraph 3(a) does not have the effect of divesting the respondent
of any rights it would
have been entitled to under the contract, but
for the declaration of invalidity.
4. The applicant must pay the respondent’s costs, including
costs of two counsel, in the High Court, the Supreme Court of
Appeal
and in this Court.
JUDGMENT
MADLANGA J AND
PRETORIUS AJ (Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta
J, Khampepe J, Mhlantla J, Mojapelo AJ
and Zondo J concurring):
Introduction
[1] By what means
may an organ of state seek the review and setting aside of its own
decision?  May it invoke the Promotion
of Administrative Justice
Act
[1]
(PAJA)?  Or, is the appropriate route legality review?
These are the questions that must be determined in this matter.

An answer given by a majority of the Supreme Court of Appeal
was that PAJA is the appropriate avenue.  This
is an application
for leave to appeal against that decision.
[2] We must emphasise that the issue has nothing to do with a
scenario where an organ of state that is in a position akin to that

of a private person (natural or juristic) may be seeking to review
the decision of another organ of state.  Nor are we concerned

with a situation where – in seeking a review of its own
decision – an organ of state is purporting to act in the

public interest in terms of section 38 of the Constitution.
Those questions are not before us.  Thus in this judgment
any
statement about the power that an organ of state has or does not have
to seek the review of its own decision under PAJA does
not go beyond
what we are concerned with here.
Background
[3] The applicant,
the State Information Technology Agency SOC Limited (SITA), provides
information technology services (IT services)
to State departments.
It does this by concluding agreements with private service providers
which then do the actual work
of providing IT services to State
departments.  A department requiring IT services submits a
business case and user requirements
to SITA.  SITA prepares a
procurement schedule for the execution of a request bid and a
detailed costing for the proposed
contract.  SITA concludes a
business agreement with the relevant department for IT services.
Then a procurement
process follows, after which SITA enters into an
agreement with the successful private service provider for the
provision of IT services
to the relevant department.  The
respondent, Gijima Holdings (Pty) Limited (Gijima), is one of the
private service providers
whose services have in the past been
enlisted by SITA.
[4] On
27 September 2006 SITA and Gijima concluded an agreement
(SAPS agreement) in terms of which Gijima was required
to
provide IT services to the South African Police Service on behalf of
SITA.  Gijima performed in terms of that agreement.
The
agreement was extended several times.  On 25 January 2012
SITA terminated it with effect from 31 January 2012.
[5] As a result of
this, Gijima instituted an urgent application against SITA in the
High Court of South Africa, Gauteng Division,
Pretoria (High Court)
on 1 February 2012.  SITA and Gijima entered into a
settlement agreement on 6 February 2012.
This
agreement was intended to compensate Gijima for the loss of
approximately R20 million that it would have suffered as a result
of
SITA’s termination of the SAPS agreement.  The settlement
agreement was not made an order of court.  The urgent

application was then removed from the court roll.
[6] In terms of the
settlement agreement Gijima was appointed as the DSS
[2]
service provider for the KwaZulu-Natal Health Department from 1 March
2012 to 31 July 2012 and for the Department of
Defence
(DoD) from 1 April 2012 to 31 July 2012 on SITA’s
standard terms applicable to agreements of that nature.
It was
agreed that SITA would comply with all its internal procurement
procedures in respect of these two agreements.  Throughout,

Gijima was concerned whether SITA had complied properly with its
procurement processes.  SITA assured Gijima that it had the

authority to enter into the settlement agreement.  It inserted
the following term into the DoD services agreement (DoD

agreement) at the insistence of Gijima:
“SITA unconditionally warrants, undertakes and guarantees that
it has taken all steps necessary to ensure compliance to any
relevant
legislation governing the award of the Services to the Service
Provider and specifically towards ensuring that this Agreement
is
entirely valid and enforceable, including but not limited to the
Public Finance Management Act 1 of 1999
.  Indemnifies the
Service Provider against any loss it may suffer should this
warranty be infringed.”
[7] After entering
into the settlement agreement, protracted negotiations took place
between the parties.  At a meeting at
which the DoD agreement
was concluded, SITA’s former executive for supply chain
management once more allayed Gijima’s
fears by giving the
assurance that SITA’s executive committee had the power to
authorise agreements up to an amount of R50 million.
[8] The DoD
agreement was extended by addenda on several occasions, namely on
20 September 2012, 21 December 2012 and
then, for the last
time, on 8 April 2013.  On 30 May 2013 SITA informed Gijima that
it did not intend to renew the DoD agreement
any further.
[9] A payment
dispute arose.  As at 30 May 2013 SITA allegedly owed
Gijima an amount of R9 545 942.72.
When the dispute
could not be resolved, Gijima instituted arbitration proceedings in
September 2013.  SITA resisted the claim
on the basis that the
DoD agreement, as well as the three extending addenda that followed
it, were invalid as there was non-compliance
with the provisions of
section 217 of the Constitution when the parties concluded the
agreement.  SITA was adopting this stance
for the first time as
it had always assured Gijima that all relevant procurement processes
had been complied with.  SITA also
argued that Gijima had not
performed in terms of the DoD agreement and the three addenda.
On 20 March 2014 the
arbitrator issued an award.  He held that
he did not have jurisdiction to adjudicate the question whether
proper procurement
processes had been followed.
[10] SITA approached
the High Court to set aside the DoD agreement and the three
addenda.  The High Court held that the
decision to award and
renew the DoD agreement qualified as administrative action in
terms of the provisions of PAJA.
[3]
It further held that the review had been brought way out of the
180-day period stipulated in section 7(1) of PAJA
[4]
and that SITA had not sought an extension of this period.
[5]
The Court could not find any basis for extending the period.
It concluded that it would not be just and equitable to
set aside the
DoD agreement and the addenda.
[6]
Consequently, the application was dismissed with costs.
[11] SITA turned to
the Supreme Court of Appeal.  Writing for the majority,
Cachalia JA held that a decision by an organ
of state to award
an agreement for services constitutes administrative action in terms
of PAJA.
[7]
The majority also held that the wording in section 6(1) of PAJA,
which allows
any person
to institute proceedings in a court or
tribunal for the judicial review of an administrative action, is wide
enough to include
organs of state.
[8]
It found that the conclusion of the settlement agreement had the
capacity to affect Gijima’s rights.
[9]
This was because the effect of this agreement was that Gijima was to
forego any damages claim that it might have had as a
result of the
cancellation of the SAPS agreement.  The Court further held that
SITA’s repeated assurances that the DoD
agreement had been
validly concluded would have created a legitimate expectation that
that contract would be honoured.
[10]
It also held that litigants cannot rely on section 33(1) of the
Constitution or common law when reviewing unlawful administrative

action.
[11]
For that reason, PAJA was the vehicle to use for that purpose.
The appeal was dismissed with costs.
[12] In a minority
judgment, Bosielo JA held that it was legally permissible for SITA to
launch review proceedings under the principle
of legality, as there
was no clarity on whether organs of state were obliged to institute
review proceedings under PAJA.
[12]
He further held that it would be subversive of the obligation
contained in section 7(2) of the Constitution
[13]
for a court to deny an applicant its right to attack the
constitutionality of an agreement simply because it opted for an
attack
based on the principle of legality and not on PAJA.
[14]
[13] In this Court,
SITA contended that PAJA does not apply.  It argued that the
conclusion of the agreement did not constitute
administrative action
as it did not adversely affect Gijima’s rights; on the
contrary, the decision to award the DoD agreement
had benefited
Gijima.  SITA further contended that, even if PAJA did apply,
the 180-day rule contained in section 7 of PAJA
did not apply to
organs of state seeking the review of their own decisions.  On
this, SITA submitted that
none of the dates
from which – in terms of section 7(1) – the 180-day
period is computed could possibly apply to an
organ of state seeking
the review and setting aside of its own decision
.  SITA
further submitted that no explanation for the delay was needed.
[14] SITA maintained
that there is nothing in the Constitution nor PAJA suggesting that
the right to lawful administrative action
is exercisable by an organ
of state
by itself
and
against itself.
Put
differently, it is inconceivable that an organ of state can assert
the right to lawful administrative action against
itself, but then
complain to itself that it has violated its own right to lawful
administrative action and seek to invoke PAJA
against itself.
By way of illustration and with reference to section 5 of PAJA,
[15]
SITA argued that it is difficult to comprehend how an organ of
state can request from itself reasons for its own action.
[15] Gijima
contended that the central question is whether an organ of state,
seeking to set aside its own administrative decision,
is required to
explain its delay in instituting review proceedings either under PAJA
or under the principle of legality.
It asserted that there was
no explanation as to how and when SITA became aware of the alleged
invalidity of the agreement and the
reason for the inordinate delay.
[16] Gijima argued
that PAJA applies in the present circumstances as SITA’s
decision to award the contract to it had the capacity
to affect its
rights.  If, for instance, one considers the matter from the
angle of a person that – as a result of non compliance

with proper procurement procedures – was denied the opportunity
to submit a bid, the rights of that would-be competitor would
be
adversely affected.  From that perspective, the award of the DoD
agreement would certainly be administrative action.
On this,
Gijima contended that it is untenable for SITA to suggest that the
award of the DoD agreement would be or not be administrative
action,
depending on the identity of the person complaining about it.
In providing specificity on its rights that would be
affected, Gijima
pointed to the fact that SITA prompted it to settle its claim against
SITA arising from the unlawful termination
of the SAPS agreement.
Further, Gijima submitted that the language of section 6 of PAJA was
wide enough to permit even an
approach to a court or tribunal by an
organ of state for the review of its own decision.
Jurisdiction and
leave to appeal
[17] This matter
raises an important constitutional issue relating to the proper
interpretation and application of PAJA.  The
question whether
PAJA applies when an organ of state seeks to review its own conduct
has not yet been decided by this Court.
It is a question of
some import.  There are reasonable prospects of success.
The interests of justice dictate that the
question be finally and
authoritatively determined by this Court.  Leave to appeal must
thus be granted.
Does PAJA apply?
[18] The answer to
this question must surely turn on an interpretation of the
Constitution and PAJA.  In this regard, the most
relevant
section of the Constitution is section 33.
[16]
Before we engage in an interpretation of the Constitution and PAJA,
we think it necessary to consider the philosophical underpinnings
of
the very notion of whom fundamental rights are meant to protect.
It is quite axiomatic – it seems to us –
that fundamental
rights are meant to protect warm-bodied human beings
[17]
primarily
[18]
against the State.  Why this discussion then?  We think it
will help inform the interpretative exercise on whether PAJA
applies
when organs of state seek the review of their own decisions.
[19] That the
creation of fundamental rights was about the protection of
human beings
finds expression in the
First
Certification Judgment
.  There this Court said:
“The movement to recognise and protect the fundamental rights
of all
human beings
gained increased momentum in the
international arena from the end of the Second World War.  In
1945, the Charter of the United
Nations was signed.  Among its
aims were the achievement of ‘international co-operation in
promoting and encouraging
respect for human rights and for
fundamental freedoms for all’ (article 1(3)).  This
ambition was given further voice
by the 1948 Universal Declaration of
Human Rights (‘UDHR’).  Then in 1966, in order to
give these rights the binding
force of international obligations, the
General Assembly of the United Nations adopted the International
Covenants on Civil and
Political Rights and on Economic, Social and
Cultural Rights (‘ICCPR’ and ‘ICESCR’).  The
adoption
of the UDHR led also to the drafting of regional instruments
such as the European Convention on Human Rights and Fundamental
Freedoms
in 1951, the European Social Charter in 1961, the American
Convention on Human Rights in 1969 and the Banjul Charter on Human
and
Peoples’ Rights in 1981.  These developments in the
international sphere were mirrored in various national constitutions,

many of which now contain bills of rights.”
[19]
(Emphasis added.)
[20] When the
interim Constitution
[20]
was adopted, the preamble characterised what is known as the
Constitutional Principles (CPs) as a solemn pact in the following

terms:
“AND WHEREAS in order to secure the achievement of this goal,
elected representatives of all the people of South Africa should
be
mandated to adopt a new Constitution in accordance with a solemn pact
recorded as Constitutional Principles.”
[21] It is out of CP
II that the Bill of Rights was born.  That principle read:
“Everyone shall enjoy all universally accepted fundamental
rights, freedoms and civil liberties, which shall be provided
for and
protected by entrenched and justiciable provisions in the
Constitution, which shall be drafted after having given due
consideration to
inter alia
the fundamental rights contained
in Chapter 3 of this Constitution.”
[22]
In the
First Certification Judgment
the Court explained
that, in using “fundamental rights, freedoms and civil
liberties”, “[w]
hat the drafters
had in mind were those rights and freedoms recognised in open and
democratic societies as being the inalienable
entitlements of
human
beings
”.
[21]
As to what those rights are, there is – as this Court put it –
“no finite list”; “[e]ven among
democratic
societies what is recognised as fundamental rights and freedoms
varies in both subject and formulation from country
to country, from
constitution to constitution, and from time to time”.
[22]
But what is the significance of the drafters’ use of
“universally accepted” in relation to “
fundamental
rights, freedoms and civil liberties
”?
The Court explains:
“Although a strict literal interpretation should not be given
to ‘universal’, for that may result in giving little

content to CP II, it nevertheless establishes a strict test.  It
is clear that the drafters intended that only those rights
that have
gained a wide measure of international acceptance as fundamental
human rights must necessarily be included in the [new
text of the
Constitution].  Beyond that prescription, the
[Constitutional Assembly] enjoys a discretion.”
[23]
[23]
Part of what was at issue in the
First
Certification
Judgment
were contentions by some that the proposed new text of the
Constitution went too far or did not go far enough.
[24]
The Court clarified the position thus:
“The ‘universally accepted fundamental rights, freedoms
and civil liberties’ required by the CP is a narrower
group of
rights than that entrenched by the [interim Constitution].  We
emphasise this point because in several instances
objectors argued
that [Chapter 2 of the new text of the Constitution] should fail
certification because the scope of a particular
[provision of the new
text] falls short of – or goes further than – the
corresponding provision in the [interim Constitution].
That
is not the test.  Although it is true that the drafters of the
CPs also drafted [Chapter 3 of the interim Constitution]
and had its
provisions in mind in plotting the guidelines for the
[Constitutional Assembly], they expressly did not bind it
to
draft a bill of rights identical to that in the
[interim Constitution].  To the extent that the
[interim Constitution]
afforded rights which went beyond the
‘universally accepted’ norm, the [Constitutional
Assembly] was entitled to reduce
them to that measure.  By like
token, the [Constitutional Assembly] was entitled to formulate rights
more generously than
would be required by the ‘universally
accepted’ norm, or even to establish new rights.  It
should be emphasised
that in general the Bill of Rights drafted by
the [Constitutional Assembly] is as extensive as any to be found in
any national
constitution.”
[25]
[24] That is the
context in which we came to have our Bill of Rights.  And the
context explains why the reach of the content
of the Bill of the
Rights may be more extensive than most bills of rights.  But,
based on this Court’s pronouncement
that fundamental rights
differ “
from country to country, from
constitution to constitution, and from time to time
”,
[26]
whatever is contained in our Bill of Rights is very much a
fundamental right.  And that is true of all rights regardless of

whether some may be recognised not universally, but only in South
Africa or a few countries.  For that reason, the right to
just
administrative action enshrined in section 33 of the Constitution is
a fundamental right like any other.
[25] The right to
just administrative action has particular significance in the
South African context.  Hoexter explains
that during the
apartheid era, administrative law was used as “an instrument of
oppression, a means of recognising and facilitating
the use of wide
discretionary power which was conferred for deliberately
discriminatory ends”.
[27]
Because of parliamentary sovereignty, even courts could not do much
to curb the excesses of the apartheid government.
Hoexter
blames part of the judiciary
[28]
for “self imposed factors constraining [it]”.
She writes:
“The most important of these were the courts’ generally
parsimonious attitude towards administrative justice and their

exaggerated deference to other branches of government, which at times
made them ‘all too willing partners, displaying what
virtually
amounts to a phobia of any judicial intervention of the exercise of
powers by administrative agencies.’”
[29]
[26] So obnoxious
and unjust was South Africa’s administrative law that Corder
says it “ha[d] [deservedly] been called
a ‘dismal
science’”.
[30]
All this explains the need for a significant overhaul of South
Africa’s administrative law.  Needless to say,
the
intended beneficiaries of the change were private persons (natural
and juristic).  The State was to be the bearer of any

obligations brought about by the innovation.  In this context,
we can conceive of no reason why an organ of state seeking
to review
its own decision could ever have been meant also to be a
beneficiary.  After all, it was the conduct of organs of
state
that had necessitated the change.
[27] Does section 33
of the Constitution, which is at the centre of the innovation, shed a
different light to that gleaned from
this background?  This
section is primarily concerned with “everyone’s”
right to procedurally fair, reasonable
and lawful administrative
action.  Is “everyone” in this section so wide as to
extend to the State?  We think
not.
[31]
Section 33(3)(b) provides that national legislation, which – in
terms of section 33(3) – has to give effect to
the section 33
rights, must impose a duty
on the State
to give effect to the
rights in section 33(1) and (2).  It seems inconsonant that the
State can be both the beneficiary of
the rights and the bearer of the
corresponding obligation that is intended to give effect to the
rights.  This must, indeed,
be an indication that only private
persons enjoy rights under section 33.
[28] Let us look
more closely at the rights themselves.  We have mentioned the
one created by section 33(1), which is the right
to lawful,
reasonable and procedurally fair administrative action.  If the
State holds this right, who is the correlative
duty-bearer?  Put
differently, from whom would an organ of state whose own decision is
the subject of its concern expect this
lawful, reasonable and
procedurally fair administrative action?  From itself?
That simply cannot be.  Section 33(2)
affords a person whose
rights have been adversely affected by administrative action a right
to be given written reasons.
Surely, it could never have been
the object of the section that an organ of state should – like
private persons – also
enjoy a right to be furnished, by
itself, written reasons for administrative action taken by itself.
What purpose would a
right of that nature serve?  None
whatsoever.
[29] In the end, we
are fortified in the conclusion that section 33 of the Constitution
creates rights enjoyed only by private persons.
And the bearer
of obligations under the section is the State.
[30] Given this
interpretation of section 33 of the Constitution, does the language
of section 6 of PAJA extend to an organ of state
seeking the review
of its own administrative action?  In answering this question, a
fact that should be paramount is that
PAJA is legislation that was
enacted pursuant to the provisions of section 33(3) of the
Constitution to give effect to the rights
contained in section 33(1)
and (2) of the Constitution.
[32]
PAJA must therefore be interpreted through the prism of section 33 of
the Constitution.
[31] Section 6(1) of
PAJA provides that “[a]ny person may institute proceedings in a
court or tribunal for the judicial review
of an administrative
action”.  Section 6(2) then itemises the grounds on which
a court or tribunal may undertake this
review.  When decreeing –
in section 33(3) – that national legislation must be enacted
to,
inter alia
, “provide for the review of
administrative action”, the reference to “administrative
action” in this section
must surely be a reference to the
earlier “administrative action” referred to in section
33(1) and (2).  The Constitution
thus envisages that – in
making provision for the review of administrative action – the
national legislation must direct
itself to the administrative action
referred to in section 33(1) and (2).  We have already
concluded that the right to
administrative action that is lawful,
reasonable and procedurally fair (section 33(1)) and the right of
everyone whose rights have
been adversely affected to be given
written reasons (section 33(2)) are enjoyed by private persons, not
organs of state.
Therefore, when section 33(3)(a) stipulates
that national legislation which provides for the “review of
administrative action”
must be enacted, that can only be
administrative action that relates to the rights enjoyed by private
persons under section 33(1)
and (2).
[32] That being the
case, it escapes us how – in reading section 6 of PAJA –
one would start on a clean slate and disregard
all this
constitutional background.  The concept of “administrative
action” in whatever section of PAJA cannot
suddenly have a
meaning wider than that envisaged by the source of the concept,
namely the Constitution.  Unsurprisingly,
PAJA itself recognises
that it was enacted to “give effect to the right to
administrative action that is lawful, reasonable
and procedurally
fair and to the right to written reasons for administrative action as
contemplated in section 33 of the Constitution . . .

and to provide for matters incidental thereto”.
[33]
Surely then, the same parameters that delineate the ambit of
“administrative action” in section 33 of the Constitution

apply to “administrative action” under PAJA.
[33] Does the
provision in section 9 of PAJA that an “administrator”
may apply for an extension of time support Gijima’s
argument?
Section 7(1) provides for a 180-day limit within which to bring
review proceedings under section 6.
[34]
Section 9(1) provides that this limit may be extended by a court or
tribunal on application by “the person or administrator

concerned”.
[35]
According to Gijima this means an administrator is entitled to seek
an extension of the period within which to bring a review
under
section 6.  And it may only do so if, in the first place,
it is entitled to launch a review under section 6.
[34] This argument
is without merit.  Context is important.  In section 5(2)
the administrator is required to give reasons
within 90 days of
receipt of a request.  In terms of section 7 a person must lodge
an application for review within 180 days
of the stipulated date.
When section 9 says “the period of 90 days or 180 days referred
to in sections 5 and 7 may
be extended for a fixed period . . . on
application by the person or administrator concerned”, all it
means
is that the 90 day period applicable to the administrator
may be extended on application by the administrator and the 180 day

period applicable to the person seeking review in terms of section 6
may be extended on application by that person.  We now
know who
enjoys the right to bring review proceedings under section 6.
[35] In sum, SITA
ought not to have been non-suited on the basis of the time limit in
section 7 of PAJA because PAJA does not apply
to the review of its
own decision.
[36] The majority
judgment in the Supreme Court of Appeal suggests that an approach
that says, in circumstances as we have here,
PAJA is not available to
organs of state as a vehicle for review may make it easy for
them to escape accountability.
[36]
Indeed, Gijima asserted that SITA simply wished to avoid the
provisions of PAJA.  The Supreme Court of Appeal, relying
on
Kirland
,
[37]
held that there was no “justification for permitting the State,
with all the resources at its disposal, not to be subjected
to the
exacting requirements of PAJA in the way that all other litigants
are”.
[38]
In
Kirland
, the organ of state concerned had taken a decision
that overturned its earlier decision.  It averred that it had
done so because
the earlier decision was vitiated by impropriety.
Of importance, it had taken a conscious decision not to seek the
review
and setting aside of the earlier decision because that
decision had been taken well over the 180-day time limit for
instituting
review proceedings provided for in section 7 of
PAJA.
[39]
Obviously, it had adopted this stance because it was under the
impression that a review of the earlier decision would have
had to be
under PAJA.  Thus it was not an issue in
Kirland
whether
PAJA applies to an organ of state seeking to have its own decision
reviewed.  So,
Kirland
is distinguishable and cannot
provide an answer to the issue at hand.
[37] The Supreme
Court of Appeal also makes the point that no sane applicant would
submit to PAJA’s definition of administrative
action or to the
strict procedural requirements of section 7 if he or she had a choice
and that, as a result, PAJA would soon become
redundant.
[40]
We do not agree.  The point of the matter is that no choice is
available to an organ of state wanting to have its own
decision
reviewed; PAJA is simply not available to it.  That is the
conclusion we have been led to by an interpretation of,
primarily,
section 33 of the Constitution and, secondarily, PAJA itself.
Thus there is no basis for suggesting that an organ
of state seeking
a review of its own decision may simply choose to avoid review under
PAJA for reasons of expediency.
Review under
legality
[38]
The conclusion that PAJA does not apply does not mean that an
organ of state cannot apply for the review of its own decision; it

simply means that it cannot do so under PAJA.  In
Fedsure
this Court said that “[i]
t seems central
to the conception of our constitutional order that the Legislature
and Executive in every sphere are constrained
by the principle that
they may exercise no power and perform no function beyond that
conferred upon them by law”.
[41]
It also said that
—
“a local government may only act within the powers lawfully
conferred upon it.  There is nothing startling in this
proposition – it is a fundamental principle of the rule of law,
recognised widely, that the exercise of public power is only

legitimate where lawful.  The rule of law – to the extent
at least that it expresses this principle of legality –
is
generally understood to be a fundamental principle of constitutional
law. This has been recognised in other jurisdictions. In
The
Matter of a Reference by the Government in Council Concerning Certain
Questions Relating to the Secession of Quebec from Canada
the
Supreme Court of Canada held that:
‘Simply
put, the constitutionalism principle requires that all government
action comply with the Constitution.  The rule
of law principle
requires that all government action must comply with the law,
including the Constitution.  This Court has
noted on several
occasions that with the adoption of the Charter
,
the Canadian
system of government was transformed to a significant extent from a
system of Parliamentary supremacy to one of constitutional
supremacy.
The Constitution binds all governments, both federal and
provincial, including the executive branch (
Operation Dismantle
Inc. v. The Queen,
[1985]
1 S.C.R. 441
, at p.455).  They may not transgress its
provisions: indeed, their sole claim to exercise lawful authority
rests in the powers
allocated to them under the Constitution, and can
come from no other source.’”
[42]
[39]
Pharmaceutical
Manufacturers
tells us that the principle of legality is “an
incident of the rule of law”,
[43]
a founding value of our Constitution.
[44]
In
Affordable Medicines Trust
the principle of
legality was referred to as a constitutional control of the exercise
of public power.  Ngcobo J put it thus:
“The exercise of public power must therefore comply with the
Constitution, which is the supreme law, and the doctrine of
legality,
which is part of that law.  The doctrine of legality, which is
an incident of the rule of law, is one of the constitutional
controls
through which the exercise of public power is regulated by the
Constitution.”
[45]
[40] What we glean
from this is that the exercise of public power which is at variance
with the principle of legality is inconsistent
with the Constitution
itself.  In short, it is invalid.  That is a consequence of
what section 2 of the Constitution
stipulates.
[46]
Relating all this to the matter before us, the award of the DoD
agreement was an exercise of public power.  The principle
of
legality may thus be a vehicle for its review.  The question is:
did the award conform to legal prescripts?  If it
did, that is
the end of the matter.  If it did not, it may be reviewed and
possibly set aside under legality review.
[41] It was not in
dispute that the award of the DoD agreement by SITA was not pursuant
to a competitive bidding process.
Neither party produced
evidence to show that, despite not following a competitive process,
the process followed complied with the
relevant public procurement
prescripts.  Section 217 of the Constitution insists on a system
of public procurement that complies
with certain factors.  It
provides that “[w]hen an organ of state . . . contracts
for goods or services,
it must do so in accordance with a system
which is fair, equitable, transparent, competitive and
cost-effective”.  It
therefore seems reasonable for this
Court to infer that, in awarding the contract, SITA acted contrary to
the dictates of the Constitution.
Based on
Fedsure
, this
was at odds with the principle of legality and liable to be reviewed
and possibly set aside.  Indeed, we have previously
held that
the principle of legality would be a means by which an organ of state
may seek the review of its own decision.
This was in
Khumalo
.
[47]
[42] SITA delayed by
just under 22 months before approaching the High Court for review.
What impact, if any, should this delay
have?
Delay
[43] Relying on
section 237 of the Constitution,
[48]
Skweyiya J held in
Khumalo
:
“
Section 237 acknowledges the
significance of timeous compliance with constitutional prescripts.
It
elevates expeditious and diligent compliance with
constitutional duties to an obligation in itself.  The principle
is thus
a requirement of legality.
This requirement is based on sound judicial policy that includes an
understanding of the strong public interest in both certainty
and
finality.  People may base their actions on the assumption of
the lawfulness of a particular decision and the undoing
of the
decision threatens a myriad of consequent actions.
In addition, it is important to understand that the passage of a
considerable length of time may weaken the ability of a court
to
assess an instance of unlawfulness on the facts. . . .  Thus the
very purpose of a court undertaking the review is potentially

undermined where, at the cause of a lengthy delay, its ability to
evaluate fully an allegation of illegality is impaired.”
[49]
(Footnotes omitted.)
[44] The reason for
requiring reviews to be instituted without undue delay is thus to
ensure certainty and promote legality: time
is of utmost importance.
In
Merafong
Cameron J said:
“The rule against delay in instituting review exists for good
reason: to curb the potential prejudice that would ensue if
the
lawfulness of the decision remains uncertain.  Protracted delays
could give rise to calamitous effects.  Not just
for those who
rely upon the decision but also for the efficient functioning of the
decision making body itself.”
[50]
[45] Reverting to
the present matter, according to SITA, it only dawned on the relevant
officials that the award of the DoD agreement
did not comply with
legal prescripts after the arbitration proceedings had
commenced.  At that stage it had received
legal advice.
This explanation is rather curious.  From the background set out
above, it appears that in its business
SITA engages external service
providers as a matter of course.  That means procurement is part
and parcel of its business
operations.  In the absence of a
cogent explanation, it escapes us how SITA would not have been aware
– when it awarded
the DoD agreement – that it was
straying from set procurement prescripts.  That this “ignorance”
endured
for just under 22 months thereafter is even more puzzling.
All that, in the face of Gijima’s repeated expression of

concern about the lawfulness of the process that led to the award of
the contract.  This is unacceptable.  Not surprisingly,
in
oral argument before us SITA’s counsel conceded that the delay
was unexplained.
[46] The views we
have just expressed also dispose of another of SITA’s arguments
which is that the delay should be computed
from the date SITA got
legal advice.
[47]
Khumalo
also says that courts have a “discretion to overlook a
delay”.
[51]
Here is what we said:
“
[A]
court should be slow to allow procedural obstacles to prevent it from
looking into a challenge to the lawfulness of an exercise
of public
power.  But that does not mean that the Constitution has
dispensed with the basic procedural requirement that review

proceedings are to be brought without undue delay or
with
a court’s discretion to overlook a delay
.”
[52]
(Emphasis added.)
[48]
Tasima
explained that this discretion should not be exercised lightly:
“While a court ‘should be slow to allow procedural
obstacles to prevent it from looking into a challenge to the
lawfulness
of an exercise of public power’, it is equally a
feature of the rule of law that undue delay should not be tolerated.
Delay
can prejudice the respondent, weaken the ability of a
court to consider the merits of a review, and undermine the public
interest
in bringing certainty and finality to administrative
action.  A court should therefore exhibit vigilance,
consideration and
propriety before overlooking a late review,
reactive or otherwise.”
[53]
(Footnotes omitted.)
[49] From this, we
see that no discretion can be exercised in the air.  If we are
to exercise a discretion to overlook the
inordinate delay in this
matter, there must be a basis for us to do so.  That basis may
be gleaned from facts placed before
us by the parties or objectively
available factors.  We see no possible basis for the exercise of
the discretion here.
That should be the end of the matter.
Not according to SITA.
[50] SITA argued
that, in a reactive challenge, the question of “unwarranted
delay” does not arise due to the fact that
the challenge is
raised as a defence to the relief which is sought in the main
proceedings.  Cameron J puts paid to this in
Kirland
.
That judgment – not purporting to decide the PAJA/principle of
legality controversy – held:
“
PAJA requires that the
government respondents should have applied to set aside the approval,
by way of formal counter-application.
They must do the same
even if PAJA does not apply.  To demand this of government is
not to stymie it by forcing upon it a
senseless formality.  It
is to insist on due process, from which there is no reason to exempt
government.  On the contrary,
there is a higher duty on the
state to respect the law, to fulfil procedural requirements and to
tread respectfully when dealing
with rights.  Government is not
an indigent or bewildered litigant, adrift on a sea of litigious
uncertainty, to whom the
courts must extend a procedure circumventing
lifeline.  It is the Constitution’s primary agent.
It must do right,
and it must do it properly.”
[54]
(Footnotes omitted.)
[51] Does that mean
the decision to award the DoD agreement stands?
Relief
[52] We concluded
earlier that, in awarding the DoD agreement, SITA acted contrary to
the dictates of the Constitution.  Section
172(1)(a) of the
Constitution enjoins a court to declare invalid any law or conduct
that it finds to be inconsistent with the Constitution.
[55]
The award of the contract thus falls to be declared invalid.
[53] However, under
section 172(1)(b) of the Constitution, a court deciding a
constitutional matter has a wide remedial power.
It is
empowered to make “any order that is just and equitable”.
So wide is that power that it is bounded only
by considerations of
justice and equity.  Here it must count for quite a lot that
SITA has delayed for just under 22 months
before seeking to have the
decision reviewed.  Also, from the outset, Gijima was concerned
whether the award of the contract
complied with legal prescripts.
As a result, it raised the issue with SITA repeatedly.  SITA
assured it that a proper
procurement process had been followed.
[54] Overall, it
seems to us that justice and equity dictate that, despite the
invalidity of the award of the DoD agreement, SITA
must not benefit
from having given Gijima false assurances and from its own undue
delay in instituting proceedings.  Gijima
may well have
performed in terms of the contract,
[56]
while SITA sat idly by and only raised the question of the invalidity
of the contract when Gijima instituted arbitration proceedings.

In the circumstances, a just and equitable remedy is that the award
of the contract and the subsequent decisions to extend it be
declared
invalid, with a rider that the declaration of invalidity must not
have the effect of divesting Gijima of rights to which
– but
for the declaration of invalidity – it might have been
entitled.  Whether any such rights did accrue remains
a
contested issue in the arbitration, the merits of which were never
determined because of the arbitrator’s holding on jurisdiction.
Costs
[55]  SITA
achieves nominal success to the extent that there is a declaration of
constitutional invalidity.  Must this
affect the question of
costs?  No.  Substantially it is Gijima that succeeds.
We say so because SITA’s efforts
were directed at avoiding the
contract and Gijima, on the other hand, sought to hold on to the
contract.  To the extent that
it is not to be divested of its
entitlement under the contract, Gijima has managed to ward off SITA’s
efforts; that is the
success we are referring to.  Also counting
against SITA on the question of costs is its repeated, but
untruthful, assurances
that proper procurement prescripts had been
complied with in awarding the contract.  Gijima is thus entitled
to all its costs,
including costs of two counsel.
Order
1. Leave to appeal is granted.
2.
The appeal is
upheld in part.
3.
The
order of the High Court of South Africa, Gauteng Division, Pretoria
is set aside, and replaced with the following:
(a)
The applicant’s decision to appoint
the respondent as a DSS service provider under a contract which was
to be effective from
1 April 2012 to 31 July 2012 and
all decisions in terms of which the contract was extended from time
to time are
declared constitutionally invalid.
(b)
The order of constitutional invalidity in
paragraph 3(a) does not have the effect of divesting the respondent
of any rights it would
have been entitled to under the contract, but
for the declaration of invalidity.
4. The applicant must pay the respondent’s costs, including
costs of two counsel, in the High Court, the Supreme Court of
Appeal
and in this Court.
For the Applicant: N
G D Maritz SC, K N Tsatsawane and C R Marule instructed by
Gildenhuys Malatji Incorporated
For the Respondent:
A Subel SC and K Hofmeyr instructed by Baker & McKenzie
[1]
3 of 2000.
[2]
This is an unexplained tag given in the contract.
[3]
State Information Technology Agency Soc Ltd v Gijima Holdings
(Pty) Ltd
[2015] ZAGPPHC 1079 (
High Court judgment
) at
para 19.
[4]
Section 7(1) provides:
“
Any proceedings for judicial review in
terms of section 6(1) must be instituted without unreasonable delay
and not later than
180 days after the date—
(a) subject to subsection (2)(c), on which any proceedings
instituted in terms of internal remedies as contemplated in
subsection
(2)(a) have been concluded; or
(b) when no such remedies exist, 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.”
[5]
High Court judgment
above n 3 at para 22.
[6]
Id.
[7]
State Information Technology Agency Soc Ltd v Gijima Holdings
(Pty) Ltd
[2016] ZASCA 143
;
2017 (2) SA 63
(SCA) (
SCA
judgment
) at para 16.
[8]
Id.
[9]
Id at para 19.
[10]
Id.
[11]
Id at para 33.
[12]
Id at paras 63 and 67.
[13]
Section 7(2) provides:
“The state
must respect, protect, promote and fulfil the rights in the Bill of
Rights.”
[14]
SCA judgment
above n 7 at para 55.
[15]
Section 5(1) provides:
“Any person whose rights have been materially and adversely
affected by administrative action and who has not been given
reasons
for the action may, within 90 days after the date on which that
person became aware of the action or might reasonably
have been
expected to have become aware of the action, request that the
administrator concerned furnish written reasons for the
action.”
[16]
This section provides:
“(1) Everyone has the right to administrative action that is
lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these
rights, and must—
(a) provide for the review of administrative action by a court or,
where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in
subsections (1) and (2); and
(c) promote an efficient administration.”
[17]
Of course, because of their legal personality, juristic persons also
enjoy the protection of some fundamental rights.
[18]
We deliberately use “primarily” because we are well
aware of the reality that, depending on certain factors, private

persons also do bear obligations to respect and protect certain
fundamental rights.
[19]
Ex parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,

1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) (
First Certification Judgment
) at fn 46.
[20]
Act 200 of 1993.
[21]
First Certification Judgment
above n 19 at para 50.
Again the emphasis is ours.
[22]
Id.
[23]
Id at para 51.
[24]
Id at para 52.
[25]
Id.
[26]
Id at para 50.
[27]
Hoexter
The Transformation of South African Administrative Law
since 1994 with Particular Reference to the Promotion of
Administrative
Justice Act 3 of 2000
(Thesis submitted in
fulfilment of the requirements of the Degree Doctor of Philosophy,
University of the Witwatersrand,
2009) at 231.
[28]
We use “part of” because of her use of “generally”;
see the quote that follows.
[29]
Hoexter above n 27 at 231.
[30]
Corder “Introduction: Administrative Law Reform” (1993)
Acta Juridica
1 at 1. (Footnote omitted.)
[31]
What we express here should be viewed in the light of what we say in
[2].
[32]
Minister of Health v New Clicks South Africa (Pty)
Ltd
[2005] ZACC 14
;
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) at
paras 95 and 433 and
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism
[2004] ZACC 15
;
2004 (4) SA
490
(CC);
2004 (7) BCLR 687
(CC) at para 25.
[33]
See PAJA’s long title.
[34]
Section 7(1) of PAJA provides:
“Any proceedings for judicial review in terms of section 6(1)
must be instituted without unreasonable delay and not later
than 180
days after the date—
(a) subject to subsection (2)(c), on which any proceedings
instituted in terms of internal remedies as contemplated in
subsection
(2)(a) have been concluded; or
(b) where no such remedies exist, 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.”
[35]
Section 9 of PAJA reads:
“(1) The period of—
(a) 90 days referred to in section 5 may be reduced; or
(b) 90 days or 180 days referred to in sections 5 and 7 may be
extended for a fixed period, by agreement between the parties
or,
failing such agreement, by a court or tribunal on application by the
person or administrator concerned.
(2) The court or tribunal may grant an application in terms of
subsection (1) where the interests of justice so require.”
[36]
SCA judgment
above n 7 at para 30.
[37]
MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd t/a
Eye and Lazer Institute
[2014] ZACC 6
;
2014 (3) SA 481
(CC);
2014 (5) BCLR 547
(CC) (
Kirland
).
[38]
SCA judgment
above n 7 at para 16.
[39]
See
Kirland
above n 37 at para 83.
[40]
SCA judgment
above n 7 at para 36.
[41]
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional
Metropolitan Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998
(12) BCLR 1458
(CC) (
Fedsure
) at para 58.
[42]
Id at para 56.
[43]
Pharmaceutical Manufacturers Association of South Africa: In re
Ex Parte President of the Republic of South Africa
[2000] ZACC
1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 17.
[44]
Section 1 of the Constitution provides:
“The Republic of South Africa is one, sovereign, democratic
state founded on the following values:
…
(c) Supremacy of the Constitution and the rule of law.”
[45]
Affordable Medicines Trust v Minister of Health
[2005] ZACC
3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at para 49.
[46]
Section 2 of the Constitution provides that the Constitution “is
the supreme law of the Republic; law or conduct inconsistent
with it
is invalid, and the obligations imposed by it must be fulfilled”.
[47]
Khumalo v Member of the Executive Council for Education: KwaZulu
Natal
[2013] ZACC 49
;
2014 (5) SA 579
(CC); 2014 (3) BCLR (CC).
[48]
This section provides: “All constitutional obligations must be
performed diligently and without delay.”
[49]
Khumalo
above n 47 at paras 46-8.
[50]
Merafong City Local Municipality v AngloGold Ashanti Limited
[2016] ZACC 35
;
2017 (2) SA 211
(CC);
2017 (2) BCLR 182
(CC)
(
Merafong
) at para 73.
[51]
Khumalo
above n 47 at para 45.
[52]
Id.  This was partially quoted with approval in
Department
of Transport v Tasima (Pty) Ltd
[2016] ZACC 39
;
2017 (2) SA 622
(CC);
2017 (1) BCLR 1
(CC) (
Tasima
) at para 142.
[53]
Tasima
id at para 160.
[54]
Kirland
above n 37 at para 82.
[55]
Section 172(1) provides:
“When deciding a constitutional matter within its power, a
court—
(a) must declare that any law or conduct that is inconsistent with
the Constitution is invalid to the extent of its inconsistency;
and
(b) may make any order that is just and equitable, including—
(i) an order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an order suspending the declaration of invalidity for any
period and on any conditions, to allow the competent authority
to
correct the defect.”
[56]
We cannot express any categorical views in this regard because in
the arbitration, whose merits are yet to be determined, SITA
is
contesting Gijima’s assertion that it has performed.