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[1998] ZASCA 25
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GNH Office Automation CC and Another v Provincial Tender Board Eastern Cape and Another (427/96) [1998] ZASCA 25; 1998 (3) SA 45 (SCA); (26 March 1998)
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REPUBLIC OF SOUTH AFRICA
In die matter of:
GNH OFFICE AUTOMATION C.C. First Appellant
NAUGIS INVESTMENTS C.C. Second Appellant
and
PROVINCIAL TENDER BOARD
EASTERN CAPE First Respondent
THE PREMIER OF THE EASTERN
CAPE GOVERNMENT Second Respondent
CORAM: Smalberger, Eksteen, Olivier, Streicher JJA et Farlam AJA DATE OF HEARING: 27 February 1998
DATE OF DELIVERY: 26 March 1998
costs. The judgment of the learned judge is reported - see GNH Office
[1996]3 All SA 87 (Tk). The appellants were subsequently granted the required leave to appeal to this Court.
Court. Indeed, it is arguable that they were under a duty to do so. Their
attitude has precluded this Court from having the benefit of full argument,
thereby depriving it of assistance to which it was entitled in the resolution
of what remained a live issue between the parties. Their conduct could
be construed as an act of discourtesy towards this Court.
contracts arising therefrom, are fully set out in the judgment of the court
a quo ("the judgment"). It is not necessary to repeat mem. After a
careful analysis of the facts Pickering J concluded that the conduct of an
official of the Department in relation to the award of the contracts to the
appellants was not "impartial, unbiased and fair" (at 106 b). He further
held that "the entire tendering process was tainted and fatally flawed by
the involvement of Singh therein" (at 106d). While there is undoubtedly
6 evidence to support these findings it is unnecessary, for the purposes of
the present appeal, to decide whether they are correct.
necessary to consider one of them. It relates to whether the Board had
the power to suspend the contracts which had been concluded between
the appellants and the Province. This is the primary issue which the
parties seek to have resolved. The essence of the appellants' complaint,
which gave rise to the proceedings in the court a quo, was that the Board,
in purporting to suspend the contracts, exceeded its administrative
powers. While there may have been other remedies available to the
appellants for the enforcement of their contractual rights, no objection was
raised in the court a quo to the way they went about challenging the
Board's decision. Having regard to the peculiar circumstances of the
present matter it was in my view permissible for them to have followed
7 the course they did, as there was a need for an authoritative determination
"3 (2)(a) If the Board is of the opinion that a person —
(i) ...
(ii)
3(2)(a) read with sec 4(l)(f) of the Act. Baxter supra at 404-5 (quoted
in the judgment at 102 h-i) states the position thus:
means "To destroy the force, effectiveness, or validity of. To annul or
abrogate". Suspension is "A temporary step, a temporary delay,
interruption or cessation" (Black's Law Dictionary, 5th Edition at 187,
1297). The one (suspension) is not a logical component of the other
(cancellation). The power to suspend is not reasonably necessary for the
purposes of cancellation. Nor is it necessary to give effect to the power
to cancel; the effective exercise of the power to cancel is not thwarted by
the denial of a power to suspend. It may be useful or convenient to have
a power to suspend, but that is not the test (Lekhari v Johannesburg City
Council 1956 (1) SA 552 (A) at 567 B). As cancellation and suspension
are unrelated concepts this is not a case, as found by the court a quo (at
103 e), of the greater including the lesser.
strictly be necessary.
(1)
The appeal is allowed, with costs;
(2)
EKSTEEN, JA) OLIVIER, JA) Concur
STREICHER, JA) FARLAM, AJA)