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C & M Fastners CC v Buffalo City Metropolitan Municipality (1371/2017) [2019] ZAECGHC 22 (14 March 2019)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 1371/2017

Date heard: 28 February 2019

Date delivered: 14 March 2019

In the matter between:

C & M FASTNERS CC                                                                               Applicant

and

BUFFALO CITY METROPOLITAN MUNICIPALITY                                   Respondent

JUDGMENT

LOWE, J:

INTRODUCTION

[1]          Applicant seeks an order compelling Respondent to award Applicant Tender No. BCM ED402, alternatively an order compelling the Municipality to make an award in respect of the tender, by way of an Application launched on 10 May 2018.

[2]          The Tender record was filed on 6 June 2018.  On 22 June 2018 by Notice in the Daily Dispatch Respondent purported to cancel the Tender. 

[3]          Notice of Opposition was given (on 6 June 2018) and Applicant consequently filed two Supplementary Founding Affidavits on 20 and 27 June 2018 respectively.  

[4]          Respondent’s Answering Affidavit was filed, dated 13 August 2018 and Applicant’s reply, dated 12 September 2018. 

[5]          After the close of papers Applicant gave notice of intention to amend its Notice of Motion (18 September 2018) inserting a new prayer (a), (with the original prayer (a) becoming (b)), seeking an order that the purported cancellation of Tender BCM ED402 during June 2018 be reviewed and set aside.

[6]          The intention to amend the Notice of Motion is opposed and there is a substantive application to strike out certain paragraphs in Applicant’s reply.

[7]          Respondent argues that the case for new prayer (a) is made out in reply and thus that Respondent has been unable to answer this new case.  Hence the striking out Application. 

[8]          Applicant argues that there is no prejudice and anyway that it was not informed of the purported decision or cancellation hereof, the first confirmation of withdrawal being in the Answering Affidavit (although it saw the advertisement of cancellation of 22 June 2018).

[9]          At the commencement of the proceedings (and effectively to avoid a postponement) Applicant consented to the striking out of paragraphs 6, 7, 16.2, 16.3, 16.4 and 16.5 of Applicant’s reply, by way of my order given during argument, costs to be dealt with in the Application. 

[10]       At the end of the day Applicant persisted in an order that the cancellation of the tender be set aside and that the Tender be awarded to it.

GENERAL APPROACH TO TENDERS

THE LEGAL FRAMEWORK

[11]       The legal framework relevant was set out as follows by Plasket J in WDR Earthmoving Enterprises CC and Another v Joe Gqabi District Municipality and Others [1]:

[6]       Section 217 of the Constitution provides that when organs of state procure goods and services they must do so in accordance with a system that is “fair, equitable, transparent, competitive and cost-effective”. These principles are given effect to by a complex web of primary and subordinate legislation as well as supply chain management policies[2].  These instruments both empower organs of state in their procurement processes and place limits on their powers. Procurement processes, in order to be lawful and constitutionally compliant, must be undertaken in accordance with these provisions: compliance with them is legally required and they may not be disregarded[3]

[7]        Decisions by organs of state either to award or not to award tenders are administrative actions, as that term is defined in terms of Section 1 of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA). That being so, such decisions are reviewable in terms of Section 6(1) of the PAJA if one or more of the grounds of review codified in Section 6(2) are present[4].  Framed in the obverse, a decision-maker in a public procurement process is required by Section 33(1) of the Constitution to act lawfully, reasonably and in a procedurally fair manner and if he or she does not, the impugned decision may be set aside.

[8]        A court that is approached to review an administrative action does not have a free hand to interfere in the administrative process. Its powers are limited. As Lord Brightman stated in Chief Constable of the North Wales Police v Evans[5][j]udicial review is concerned, not with the decision, but with the decision-making process”. This was made clear by Innes CJ more than a century ago in Johannesburg Consolidated Investment Co Ltd v Johannesburg Town Council[6] when he said:

Whenever a public body has a duty imposed on it by statute, and disregards important provisions of the statute, or is guilty of gross irregularity or clear illegality in the performance of the duty, this Court may be asked to review the proceedings complained of and set aside or correct them.’

[9]        Less than a decade later, after Union and the establishment of the Appellate Division, Innes ACJ, in Shidiack v Union Government (Minister of the Interior)[7], captured the limits of the review function of a superior court when he said that a court would be “unable to interfere with a due and honest exercise of discretion, even if it considered the decision inequitable or wrong”. The reason for this is simple: the legislature mandated and empowered administrators to administer, and not courts; and the role of the courts is limited to ensuring that administrators do not stray beyond the legal limits of their mandates.

[10]      The passages I have cited from the Johannesburg Consolidated Investments case and the Shidiack case articulated the position when the review of administrative action was a common law jurisdiction of the superior courts. The principles stated still hold good now that the power to review administrative action is sourced in the Constitution and the PAJA[8]:  the distinction between appeal and review, based as it is on the doctrine of the separation of powers, remains in place and remains fundamentally important. Administrative action may only be set aside by a court exercising its review powers if it is irregular. It may not be interfered with because it is a decision a judge considers to be wrong.”

[12]       I will deal with other relevant legal issues in due course.

THE TENDER DOCUMENTS AND THE DISPUTE

[13]       In respect of this matter the general approach to the facts is as follows: 

[14]       Motion proceedings, unless concerned with interim relief, are about the resolution of legal issues based on common case facts[9].  Save in special circumstances, and the facts here do not raise special circumstances, such proceedings cannot resolve factual disputes on issues, as they are not designed to determine probabilities.  As set out in the Plascon-Evans rule[10] if disputes of fact arise on the affidavits a final order can only be granted if the facts, averred by Applicant, which have been admitted by Respondent, together with the facts alleged by Respondent, justify such relief. 

[15]       The position may be different if Respondent’s versions consist of bald or uncreditworthy denials, raises fictitious disputes of fact or are implausible, farfetched or clearly untenable[11]

[16]       The question of onus does not arise in motion proceedings and the position above pertains regardless of where the evidential onus lies[12].

[17]       Finally the more serious the allegation (or its consequence) the stronger must be the evidence before a Court will find the allegations established[13].

[18]       It was argued, and with justification, that in this matter Respondent’s answer was replete with bald unsubstantiated denials on material facts.  Respondent’s explanation of its so-called “decision” to cancel the relevant tender was bald and unsatisfactory to say the least and did not disclose who, or what committee had taken such decision, with what authority and for what reason.

[19]       This is, I agree with Applicant, unbecoming of an Organ of State which failed to raise, on many issues, any real or genuine dispute of fact, the issues as appears hereafter, not being seriously or unambiguously addressed in the answer. In such circumstances a Court may well legitimately accept the facts, as stated in Applicant’s founding papers[14].

LEGAL ISSUES RELEVANT TO PAJA AND CENCELLATION OF A TENDER

[20]       In principle PAJA gives effect to the right to just administrative action in terms of Section 33 of the Constitution, and provides for judicial review of administrative action.

[21]       If a cancellation of a tender, before adjudication, is a relevant issue in a matter it must be determined whether the cancellation is administrative action subject to PAJA review.  It must be a decision of an administrative nature and also have direct external legal effect[15].   In this matter the decision relates to procurement.  Respondent in the tender reserved the right not to accept any tender.  Regulation 10(4) of the Procurement Framework Regulation 2011 (in terms of the Preferential Procurement Policy Framework Act 5 of 2000) provides that prior to amending a tender it may be cancelled by an Organ of State in certain circumstances being:  changed circumstances in which there is no longer a need;  when funds are no longer available or where no acceptable tenders are received.  Allegations of impropriety underlying the cancellation decision such as improper political influence, fraud, bribery or corruption in effect brings in different considerations however[16].  This latter issue is of direct relevance to this matter[17].  In this matter, as I shall set out, there can only be recourse to the tender/contractual entitlement to withdraw in the light of the Regulations referred to above, on the basis that no acceptable tender was received.

[22]       In Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Limited and Another[18] it was held that the Regulations constrained the discretion afforded by the tender which could only be cancelled on one or other of the grounds set out in the Regulations[19].  In this matter the only issue relevant to cancellation is that of whether there were compliant tenders, as this is the only factual basis set out relevant to cancellation entitlement.  In addition there are clear allegations of impropriety in the hands of Respondent.

[23]       I do not agree with Respondent’s submission that, in circumstances where a tender should have been found compliant, long before cancellation and would, had it been found so, have been awarded, the subsequent opportunistic cancellation (at best) on basis of no acceptable tenders having been received, does not constitute administrative action[20].

[24]       I also do not agree that such cancellation lacks direct, external legal affect in circumstances where a tenderer would inevitably have been awarded a tender having been clearly compliant and the only acceptable bid, this for probable reason of impropriety being deprived thereof.  The purported cancellation was months later in the absence of a valid or even arguable reason or explanation and with no disclosed authority or resolution therefor.  This is distinguishable entirely from the facts and issues in Tshwane City[21].

THE ISSUES TO BE DECIDED

[25]       [25.1]  The application for leave to amend the Notice of Motion.

[25.2]  The issue as to whether the failure to pursue an internal Appeal in terms of Section 62(1) of the Local Government:  Municipal Systems Act 32 of 2003 is fatal.

[25.3]  The main application, particularly whether Applicant’s tender was responsive and whether the cancellation should be set aside.

[25.4]  If so whether this Court, applying PAJA, should review the non-award.

[25.5]  If successful in some or all of the above the appropriate order, awarding the tender or referring the issue back to Respondent.

[26]       The remaining issue, as to striking out succeeds as set out above, only the issue of costs remaining.

[27]       To consider the above it is first necessary to set out the accepted facts on the appropriate test.

THE COMMON CAUSE FACTS WITH THOSE ESTABLISHED ON THE APPROPRIATE TEST

[28]       The following facts are established on a proper analysis of the papers on the appropriate approach thereto:

[28.1]       Respondent provides electrical services to consumers in the Municipal area, and to do so reliably, requires components and parts, often at short notice.

[28.2]       Respondent previously maintained its own logistics warehouse in this regard but this failed to provide the necessary service within a reasonable time.

[28.3]       Applicant took over this responsibility as long ago as 2008.

[28.4]       In June 2012 tenders were invited for the provision of the above referred to logistics within Mdantsane, for a 3 year period.

[28.5]       Applicant tendered and was duly awarded a three year contract RD358.

[28.6]       This worked well and upon expiry several extensions were awarded to Applicant continuing through 2015.

[28.7]       In July 2015 a new tender was advertised for the same services for a three year period RD387.

[28.8]       Applicant tendered herefor prior to the closing date 18 August 2015.  Applicant’s tender was responsive and was either the only tender, or at least achieved the highest points rated.

[28.9]       This tender was however not awarded but “withdrawn”, purportedly due to certain omissions in the tender requirements.

[28.10]  The withdrawal was advertised on 9 May 2017 nearly two years after the tender invitation.  Applicant was still performing the logistics services and had done so continuously since 2008.

[28.11]    On 1 August 2017 a new tender ED402 was advertised, for the identical contract but certain additional detail was included in the Tender document.

[28.12]    Applicant again tendered herefor (1 September 2017).

[28.13]    Only Applicant submitted, what it alleges, was a valid responsive tender (this latter aspect is disputed).

[28.14]    The Tender was apparently not awarded (or withdrawn) and Applicant despite enquiring could get no response from Respondent at all – but was still doing the work.

[28.15]   This being so, on 21 February 2018 Applicant’s attorney addressed a letter to Respondent’s City Manager referring to the above tender and informing Respondent that should an award not be made by 8 March 2018 an Application would be brought to compel same.

[28.16]    Up until this time seven months had passed from the advertising date thereof and not a word had been received from Respondent despite enquiries and demand.

[28.17]    I interpose that Respondent admits receipt of the demand of 21 February 2018 and alleges having answered this on 10 May 2018 (nearly three months later) stating only at this late date that the tender had been non-responsive as “CV’s” had not been submitted.   (This also is the date upon which this application was instituted).  Applicant’s attorneys deny receipt of such letter – all rather strange to say the least.

[28.18]    In respect of all the above I should interpose that Respondent’s answer is bald and unhelpful – the main issues are not seriously disputed (save the CV issue) and there is absent any explanation at all as to the long delay, lack of notification and silence on the tender award decision. 

[28.19]    In fact in answer the following is disclosed and is effectively either common cause or not properly disputed:

[28.19.1]     Respondent’s Bid Evaluation Committee (BEC) convened on 29 November 2017 to consider the tenders filed, assisted by a report thereon (so-called securitization) of the Respondent’s Niel Rieck a “technical Assessor” as to whether the bid met the technical requirements outlined in the bid specification document. 

[28.19.2]     This report stated that Applicant’s bid was responsive (on 20 October 2017), Respondent deposes significantly that if the BEC is in agreement with Rieck it adopts the report and signs same. 

[28.19.3]     The BEC at its meeting found (it is alleged) that CV’s were not attached as “documentary proof of verifiable experience”.  Niel Rieck confirmed there were no CV’s but was of the view (“under the impression”) that there was no need therefor.   This report was not adopted and he prepared a further report on Applicant’s tender stating this “did not have verifiable proof of the staff experience”.  (I will deal with this later in respect of both whether the tender was in fact responsive and what relief is appropriate.)

[28.19.4]     I should point out that importantly that, neither Rieck nor the BEC, let alone Respondent’s deponent suggests any other defect, problem or omission in Applicant’s tender, nor is it suggested that it is in any way inadequate, unsuitable or inappropriate let alone would not have been accepted and a tender awarded, if the CV issue had not been seen as an omission. 

[28.20]    The BEC convened again on 1 December 2017 and resolved that as all the bids were non-responsive (three in number) the tender be “withdrawn”.  There is no suggestion how, to whom and when this was conveyed nor who, on what authority or when the decision was taken to in fact cancel the Tender, bar the bald allegation that this in fact occurred and was advertised on 22 June 2018, some seven months later.  Again there is no explanation as to why this delay occurred. 

[28.21]    It should be borne in mind at this stage that Applicant’s demand for a decision in February 2018 had gone unanswered for months – no other communication had been sent by Respondent to Applicant prior to Applicant’s Application to compel a decision had been launched on 10 May 2018, some six weeks prior to the cancellation advertisement.

[28.22]    I interpose to say that this all smacks of serious incompetence at best, mala fides at worst.  The lack of explanation by Respondent and effective silence points to the latter.  One would have expected a full exposition explaining and clarifying all the issues and delays – regrettably there is none.

[28.23]    Against this background it is not surprising that the Notice of Motion sought an order that an award be made in respect of Tender ED402.  Notice of Opposition to the Application was filed on 6 June 2018 and the “Record of the Proceedings” was filed shortly thereafter.

[28.24]    After receiving the record Applicant filed a founding supplementary affidavit on 21 June 2018 alleging that the record was incomplete and that the tender had been found to be purportedly “non-responsive”.   It pointed out however that it had been found (initially) to be responsive by Rieck, that whilst CV’s were not in fact required by the tender documents they had in fact been provided (annexing same as “SA1”) and formed part of the tender but had been removed from the record in circumstances unknown and that the recommendation of the BEC was deeply flawed and simply wrong. 

[28.25]    On 21 June 2018 a further founding supplementary affidavit was filed relevant to the purported cancellation of the Tender advertised on 22 June 2018 – certainly an extraordinary delay which goes unexplained – and Applicant alleges a well orchestrated campaign within Respondent to ensure that Applicant was not awarded the tender – this allegation in the circumstances has substantial merit more especially having regard to the bald denials and lack of explanation.  Indeed this accusation which is well supported by the history, background and detail is met with bald denial – whilst this may on occasion be adequate if there has already been full explanation and response – in this case that is not so and the silence is deafening and significant. 

[28.26]    Respondent’s response was to attempt to raise technical issues, being the failure to pursue internal remedies, the fact that the tender had been cancelled and this not challenged in the original Notice of Motion and thereafter apart from the CV issue – little else. 

THE AMENDMENT OF THE NOTICE OF MOTION

[29]       Against the background and after the filing of its affidavit Applicant filed a Notice to amend its Notice of Motion to insert a prayer that the purported cancellation of Tender ED402 in June 2018 be reviewed and set aside.

[30]       This was hotly opposed essentially on the basis that the case therefore was made in reply and that those allegations would be struck out in due course.  No prejudice was advanced beyond the spurious suggestion that Respondent was prejudiced in not being able to deal therewith – it should have done so in its answering affidavit in any event as this was implicitly part of its necessary response to Applicant’s allegation in its founding affidavits to say the least.   

[31]       The striking out of the said paragraphs went by agreement.

[32]       The background above illustrates that the objection to the amendment is entirely without any foundation or merit whatsoever. 

[33]       Respondent had, in answer, the fullest opportunity of dealing with the cancellation in all its detail.  It should have done so initially, but failed to do so.  The amendment sought made little or no practical difference to this issue.   

[34]       Respondent suffers no prejudice at all, the touchstone of amendments.  The opposition is a groundless technical point which cannot succeed.    Respondent by its silence and delay prior to the launch of the Application was the author of its own misfortune – compounded by its failure in its answering affidavit to sufficiently join issue with the fundamental facts alleged and its extremely late attempt to cancel the Tender.

[35]       In the circumstances the amendment falls to be granted as per the order which follows. 

THE CV ISSUE

[36]       This is not a difficult matter to decide.

[37]       The tender document provided as follows:

1.4     TENDER EVALUATION CRITERIA

            TENDER EVALUATION CRITERIA

The tenderer will be evaluated as per the requirements below.  Failure to provide any of the required documentary proof below shall disqualify the tenderer.  Only tenderers that meet the requirements below will be evaluated further on the 80/20 preference point system.

·           The tenderer shall have a minimum of five years’ experience in the provision of a logistical function within local government.  Contactable references to be provided.

·           The tenderer must have a credit limit of no less than R 12 Million from a registered financial institution.  Proof of the above credit limit must be submitted.

Minimum staff requirements

                         Staff                 Years’ Experience

 

1 x Stores Manager. (proof of experience must be verifiable)

 

10

 

1 x Buyer. (proof of experience must be verifiable)

 

5

 

1 x Storeman. (proof of experience must be verifiable)

 

5

 

1 x Assistant Storeman/Hyster Driver (note: certification of hyster driver to be submitted with tender)

 

 

5”


[38]       The initial Rieck report described the tender as responsive until changed at the instance of the BEC.[22]

[39]       Mr Buchanan SC in his heads submitted that:

17.      The Respondent relies upon the same alleged deficiency in its answering affidavit.  See in this regard Record p 74 and Record p 80 ff.

18.       The portion of the tender requirements apparently relied upon by the Respondent appears at paginated p 19 of the Record filed in terms of Rule 53.  In particular it is necessary to refer to that portion of the tender conditions under the heading “Minimum Staff Requirements”.

19.       It is only the storeman/hyster driver in respect of which (“certification of hyster driver to be submitted with tender”) the actual submission of a document is required.  It is common cause that such a certificate was supplied.

20.       In respect of the other “minimum staff requirements” the number of years experience is set out and it is said that “proof of experience must be verifiable”.

21.       There is of course no reference to “CV’s” which the Respondent now contends would have constituted “documentary proof”.  There is also of course no reference whatsoever to “documentary proof” other than in respect of the storeman/hyster driver.

22.       What the tender conditions require is that “proof of experience must be verifiable”.  On a simple grammatical construction this obviously means that tenderers must be able to “verify” the relevant minimum years of experience if and when called upon to do so. 

23.       “Verify” means to demonstrate that something is true or accurate.  See the South African Concise Oxford Dictionary.  This implies that the tenderer must be in a position to “verify” the recorded years of experience, if and when, requested to do so. 

24.       If CV’s were required then the tender conditions would have made this clear.

25.       In the circumstances it is hardly surprising that initially the Applicant’s tender was regarded as responsive, indeed the only responsive tender.

26.       The decision to import further requirements, not supported by the express and material tender conditions, immediately raises concerns as to the objectivity and motive of the officials of the Municipality who dealt with this matter.”  

[40]       I agree with the above nor was any cogent argument put up to contradict this.

[41]       The tender document provides that Respondent can call for clarification and “any other material” bearing on the bid, after submission. 

[42]       Clearly under this tender evaluation criteria the documents specified were indeed provided (a minimum of 5 years experience in respect of Applicant and the certificates of the hyster driver), whilst CV’s were not required to be furnished, only proof of experience, if verification was required, would have to be provided for such purpose. 

[43]       It is unnecessary then to have regard to whether CV’s were in fact provided, but if I am incorrect in this above, I find in any event that on a proper approach to the papers the Applicant in fact provided CV’s for the minimum staff  requirement, four in number, as per SA1 to the supplementary founding affidavit.

THE INTERNAL REMEDY ISSUE

[44]       The tender documents draw attention to the possibility of a “Section 62 Systems Act Appeal” to be lodged with the office of the Municipal Manager[23].

[45]       Mr Buchanan SC in his heads further submitted that:

7.        The provision provides that persons whose “rights are affected by a decision taken by a ‘municipality’ may appeal against that decision by giving written notice and reasons to the Municipal Manager within twenty one days of the date of notification of the decision”.

8.         It is now clearly established in our law that Section 62 of the Systems Act is only applicable where rights or legitimate expectations are directly affected by a final decision of a Municipality.  See in this regard City of Cape Town v Reader & Others [2008] ZASCA 130; 2009 (1) SA 555 (SCA) at p 560 ff and Turnbull-Jackson v Hibiscus Coast Municipality 2014 (6) SA 592 (CC) at p 660 ff.

9.         It is essential to point out that a Municipality which relies upon Section 62 of the Systems Act, must allege and prove that Applicant’s rights have been affected by a final decision of the Municipality.  See Cape Town v Reader & Others (supra) at [24] ff.

10.       In the present instance the Respondent makes no allegation that the Applicant’s rights have been affected, nor does the Respondent allege what rights may have been affected.  See for example Record p 65.

11.       The reality is that the Municipality, on its own version, has not finally awarded the relevant tender, and indeed, on the contrary, has sought to “withdraw” the tender.  Absent an appropriate Court Order (as sought both in the original and amended notice of motion) the Applicant’s direct rights will only arise upon the granting of an order in its favour.

12.

12.1     In any event, the Constitutional Court has recently emphasised that reliance upon Section 7(2) of PAJA, and reliance upon an alleged internal remedy, should not be rigidly imposed or used by organs of state to frustrate an Applicant’s efforts to review administrative action.  See in this regard Gavric v Refugee Status Determination Officer 2019 (1) BCLR 1 (CC) particularly at paragraph [54] ff.

12.2     The Applicant in any event contends that, even should Section 62 of the Systems Act have been applicable, there exist exceptional circumstances why the Applicant was not required to utilise such provisions in the present case.  See Record p 101.

12.3     Those “exceptional circumstances” include not merely the history of the matter but the failure or refusal of the Municipality to respond to repeated demands and requests for information.  See page 102 – 103 of the main application.  There is little doubt that any “appeal” would have received a similar lack of attention.”    

[46]       Again these submissions have considerable merit and fall to be upheld.

[47]       In my view, however, and if I err in this regard as to the Application of Section 26, and in the event of Section 62 being of application it would be unjust and inequitable were the Applicant to be held to have been obliged to exercise a Section 62 Appeal.  In the first instance it was completely in the dark as to what had happened to its Tender Application,  and what “decision” had been taken when launching its application, despite enquiry, and it was seven months after the undisclosed decision of 1 December 2017 that the cancellation notice was published (this after the application was launched).  Applicant discovered this, through no fault of its own, subsequent to the application being launched.

[48]       As to Respondent’s reference to Evaluations Enhanced Property Appraisals (Pty) Ltd v Buffalo City Metropolitan Municipality and Another[24] the learned Judge recognised the principle set out in Koyabe v Minister of Home Affairs[25] that exceptional circumstances may require a Court to condone non-exhaustion of internal remedies and proceed with judicial review nonetheless.  Dukada J found however that an exemption could not be made apparently absent an application therefor.  Regrettably I do not agree with the reasoning to that extent.  In my view in a matter such as this exceptional circumstances justify the review being heard even absent a specific application therefor.[26]

[49]       Respondent seems intent on the subterfuge of a mixture of deep silence and then when forced out of hiding, a Stalingrad Strategy, taking all possible technical points and staying coy at best on the details of the merits and purported cancellation.

[50]       I have no hesitation in finding exceptional circumstances present in which the failure to pursue an internal remedy is condoned, the matter to proceed. 

[51]       Indeed in this regard Ms Da Silva was driven to submit that Applicant, once informed of the decision and long subsequent cancellation, ought to have stayed the application pending an internal review.  That only has to be stated to be rejected.

THE PAJA REVIEW

[52]       In essence this Application commenced in terms of PAJA on the basis of a decision not having been made and to compel same, (Section 6(2)g), this then deemed to be a decision[27].

[53]       It transformed itself however into a review of the finding that Applicants tender was non-responsive and the cancellation issue, seeking an order rectifying the above.

[54]       Whilst the papers were accordingly far from ideal the supplementary founding affidavits alleged that:

[54.1]  There was no rational basis for the bid to have been declared non-responsive;

[54.2]  This being so the cancellation of the Tender, on the facts, was reviewable;

[54.3]  That the failure to find the bid responsive and the cancellation of same was a mala fide orchestrated campaign to ensure this Tender was not awarded to Applicant.

[55]       In my view, these allegations were sufficient, if found to be established, to lay the basis for the review sought – the change of stance being through no fault of Applicant and due to Respondent’s unconscionable silence and delay. 

[56]        As already pointed out Applicant’s response deposed to by no less than the Municipal Manager of Respondent, apart from certain technical defences relating to internal remedies and that the decision to cancel had not been set aside, was to attempt to support the non-responsive decision on a unsound basis, the Affidavit being devoid of other necessary answers and explanations.  Importantly it was not suggested for a moment that Applicant’s process or procedure was, beyond the points referred to above, in any way objectionable or defective or that it was not properly set up as a PAJA review.

[57]       In reply Applicant persisted pointing out the deficiency in the Answering Affidavit. 

[58]       In that event the matter is to be dealt with as a PAJA based review of both the rejection of the bid as non-responsive and the subsequent long delayed cancellation. 

[59]       Of importance in this matter is the Respondent’s failure to be candid with this Court and disclose the reasons for the delay, silence and obfuscation.  I cannot do otherwise than conclude that there is merit in Applicant’s contention of an orchestrated campaign to avoid awarding its contract, and this, on the patently spurious basis of CV failure – not based on any acceptable facts and in any event in circumstances where CV’s were patently not required.  In the first instance Applicant ignored the well reasoned conclusion of its own expert Mr Rieck. 

[60]       That brings both aspects of this review within PAJA Section 6(2)(e)(i), (ii) and (v). 

[61]       As to bad faith and other grounds of review in Shidiack[28] Innes ACJ formulated the grounds of review as follows:

There are circumstances in which interference would be possible and right. If for instance such an officer had acted mala fide or from ulterior and improper motives, if he had not applied his mind to the matter or exercised his discretion at all, or if he had disregarded the express provisions of a statute - in such cases the Court might grant relief. But it would be unable to interfere with a due and honest exercise of discretion, even if it considered the decision inequitable or wrong.”

[62]       Chaskalson P in Pharmaceutical Manufacturers Association of SA & Another:  In re ex parte President of the Republic of South Africa & Others[29], approved Innes ACJ’s statement of the grounds of review and then went on to say[30]:

To the extent that Shidiack requires public officials to exercise their powers in good faith and in accordance with the other requirements mentioned by Innes ACJ, it is consistent with the foundational principle of the rule of law enshrined in our Constitution. The Constitution,  however, requires more; it places further significant constraints upon the exercise of public power through the bill of rights and the founding principle enshrining the rule of law.”

[63]       Courts require public authorities to exercise their discretionary powers in accordance with certain minimum standards.  If these standards are not met, an authority will have abused its power, contrary to the enabling legislation, and it will have acted unreasonably.  The manner in which the public power must be exercised is also the subject matter of review and this aspect has been developed and applied by the Courts, expanding the principles set out in Shidiack.  The Constitutional Court has embraced the Shidiack principles, development and current meaning.  These principles apply to the exercise of public power, and not only administrative power.  There are further constraints upon the exercise of public power that go beyond Shidiack.

[64]       In this matter there were considerable defects in the decision-making process.  There was at best no proper reasoning or justification for the decisions taken (if indeed the cancellation was a decision properly taken which is doubtful) these taken in bad faith, irrational and wrongly taking into account considerations given inappropriate weight.  This implicates improper purpose and ulterior motive[31].

[65]       National Director of Public Prosecutions v Zuma[32], whilst not a PAJA review, implicates nevertheless the grounds of review of ulterior motive or purpose.  In short if an administrator acts in a way to undermine the purpose for which a power is granted for good or bad motive the exercise of the power is invalid. 

[66]       It is clear that while bad faith, per se, is a ground of review, it will often overlap with other grounds of review, this is of course in any event the case due to PAJA Section 6(2)(e)(v).

[67]       Good faith is an element of the principle of legality and implicates the impartial, fair, equitable and unbiased provision of services let alone transparency[33].   Bad faith does not necessarily require dishonesty or corruption but includes the wrongful use of power even if an official is not shown to have been dishonest[34].

[68]       In this matter the necessary relevant grounds of review of both the decision that Applicant’s bid was not responsive and the cancellation of the Tender are presently overlaid with more than a hint of bad faith.  

THE CANCELLATION OF THE TENDER

[69]       Against the background above this can be dealt with shortly.

[70]       The facts make it clear that the Tender cancellation many months after the BEC decision was a ploy in an attempt to meet the Application and one not in good faith. 

[71]       Not only is the decision and origin obscure and undisclosed but the reasoned basis and authority therefor is not disclosed.

[72]       Further the only possible basis therefor was and remains the supposed CV infraction which has no justifiable basis. 

[73]       In the circumstances even if a decision to cancel was taken, which is not disclosed beyond the recommendation of the BEC, there is no statutory basis for this cancellation in the Regulations as set out above. 

[74]       In the circumstances the purported cancellation, is insofar as is necessary, set aside.                                                                

THE APPROPRIATE REMEDY

[75]       In finding for Applicant the question is whether, as Applicant claims I should “compel Respondent to award to the Applicant the tender .... BCM ED402” in effect then awarding this tender to Applicant. 

[76]       In general terms the remedies for judicial review in the PAJA, as was said in Steenkamp v Provincial Tender Board of the Eastern Cape[35], are public law remedies the purpose of which is to pre-empt, correct or reverse an improper administrative function.

[77]       Section 8 of PAJA confers on a Court in proceedings for judicial review a generous jurisdiction to make orders that are “just and equitable”.

[78]       The Court’s discretion is wide and it must fashion an appropriate remedy for unlawful administrative action. This gives legislative content to the Constitution’s “just and equitable” remedy.  Obviously the setting aside of administrative action may not properly remedy the matter and the Courts will usually exercise the power to remit the matter for reconsideration by the administrator.  This is affirmed as a general power in Section 8(1)(c)(i) of PAJA, and it is accepted that this is almost always the prudent and proper course.  Again in general terms this will suffice unless this is not sufficient to achieve a just and equitable remedy. Section 8(1)(c)(ii) of PAJA recognizes the exceptional case where the court may substitute its decision for that of the decision-maker.

[79]       In this context to decide whether the case is exceptional  upon a consideration of all the facts, and that the decision should not be left to the decision maker, the following factors must be considered as are relevant to this particular matter:  where it would serve no purpose to remit the matter as the end result  is a foregone conclusion Gauteng Gambling Board v Silverstar Development Ltd[36] and Hangklip Environmental Action Group v MEC for Agriculture Environmental Affairs and Development Planning Western Cape[37];  where further delay would cause undue prejudice to the other party  Hangklip[38];  where the Court is in as good a position as the decision-maker to make the decision Silverstar[39];  where the decision-maker might not fairly apply his or her mind if the matter were to be remitted Silverstar[40].

[80]       In UWC v MEC for Health and Social Services[41], the Court summarized the general position in respect of remedies, commenting that the mere fact that a Court considers itself as qualified to take a decision as is the administrator, does not of its own justifying usurping the administrator’s powers and functions.  The court went on to point out that in some cases however fairness to the Applicant may demand that the court should take such a view.

[81]       It should be remembered that again in general terms the Constitutional Court has emphasized the need for effective remedies. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [42].  A good example is Hoffmann v South African Airways[43] where the court ordered an employer to appoint an applicant who had been turned down on the basis of his HIV positive status.

[82]       In Trencon [44] the Constitutional Court exhaustively analysed the law relevant to a substitution order as follows:

(1) Exceptional circumstances test

[34] Pursuant to administrative review under section 6 of PAJA and once administrative action is set aside, section 8(1) affords courts a wide discretion to grant ‘any order that is just and equitable’.  In exceptional circumstances, section 8 (1) (c) (ii) (aa) affords a court the discretion to make a substitution order.

[35] Section 8 (1) (c) (ii) (aa) must be read in the context of section 8(1). Simply put, an exceptional circumstances enquiry must take place in the context of what is just and equitable in the circumstances. In effect, even where there are exceptional circumstances, a court must be satisfied that it would be just and equitable to grant an order of substitution.

[36] Long before the advent of PAJA, courts were called upon to determine circumstances in which granting an order of substitution would be appropriate. Those courts almost invariably considered the notion of fairness as enunciated in Livestock and the guidelines laid down in Johannesburg City Council.

[37] In Livestock, the Court percipient held that:

the Court has a discretion, to be exercised judicially upon a consideration of the facts of each case, and . . . although the matter will be sent back if there is no reason for not doing so, in essence it is a question of fairness to both sides.”

[38] In Johannesburg City Council, the Court acknowledged that the usual course in administrative review proceedings is to remit the matter to the administrator for proper consideration. However, it recognised that courts will depart from the usual course in two circumstances:

(i) Where the end result is in any event a foregone conclusion and it would merely be a waste of time to order the tribunal or functionary to reconsider the matter. This applies more particularly where much time has already unjustifiably been lost by an applicant to whom time is in the circumstances valuable, and the further delay which would be caused by reference back is significant in the context.

(ii) Where the tribunal or functionary has exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction again.”

[39] On a plain interpretation of Johannesburg City Council, the factors under the exceptional circumstances enquiry – like foregone conclusion, bias or incompetence – are independent. That is, if any factor is established on its own, it would be sufficient to justify an order of substitution. Indeed, this interpretation is also supported by subsequent case law.

[40] The Supreme Court of Appeal in Gauteng Gambling Board seems to have added another consideration, whether the court was in as good a position as the administrator to make the decision.  For this, it noted that the administrator is “best equipped by the variety of its composition, by experience, and its access to sources of relevant information and expertise to make the right decision”.  The Court also considered the broader notion of fairness in accordance with Livestock.  This notion seemed to colour the Court’s analysis of whether, after the Court was satisfied that it was in as good a position as the administrator and a foregone conclusion was established, an order of substitution was the appropriate remedy.  In applying the notion, the Court’s findings were also informed by how a party is prejudiced by delay and potential bias or the incompetence of an administrator if the matter were remitted.

[41] It is instructive that cases applying section 8 (1) (c) (ii) (aa) of PAJA have embraced a similar approach to those that ordered substitution under the common law. However, because the section does not provide guidelines on what exceptional circumstances entail, it is of great import that the test for exceptional circumstances be revisited.

[42] The administrative review context of section 8(1) of PAJA and the wording under subsection (1) (c) (ii) (aa) make it perspicuous that substitution remains an extraordinary remedy. Remittal is still almost always the prudent and proper course.

[43] In our constitutional framework, a court considering what constitutes exceptional circumstances must be guided by an approach that is consonant with the Constitution. This approach should entail affording appropriate deference to the administrator. Indeed, the idea that courts ought to recognise their own limitations still rings true. It is informed not only by the deference courts have to afford an administrator but also by the appreciation that courts are ordinarily not vested with the skills and expertise required of an administrator.

[44] It is unsurprising that this Court in Bato Star accepted Professor Hoexter’s account of judicial deference as:

a judicial willingness to appreciate the legitimate and constitutionally-ordained province of administrative agencies; to admit the expertise of those agencies in policy-laden or polycentric issues; to accord their interpretations of fact and law due respect; and to be sensitive in general to the interests legitimately pursued by administrative bodies and the practical and financial constraints under which they operate. This type of deference is perfectly consistent with a concern for individual rights and a refusal to tolerate corruption and maladministration. It ought to be shaped not by an unwillingness to scrutinise administrative action, but by a careful weighing up of the need for – and the consequences of – judicial intervention. Above all, it ought to be shaped by a conscious determination not to usurp the functions of administrative agencies; not to cross over from review to appeal.”

[45] Judicial deference, within the doctrine of separation of powers, must also be understood in the light of the powers vested in the courts by the Constitution. In Allpay II, Froneman J stated that:

[t]here can be no doubt that the separation of powers attributes responsibility to the courts for ensuring that unconstitutional conduct is declared invalid and that constitutionally mandated remedies are afforded for violations of the Constitution. This means that the Court must provide effective relief for infringements of constitutional rights.

. . .

Hence, the answer to the separation-of-powers argument lies in the express provisions of section 172(1) of the Constitution. The corrective principle embodied there allows correction to the extent of the constitutional inconsistency”.  (Footnote omitted.)

[46] A case implicating an order of substitution accordingly requires courts to be mindful of the need for judicial deference and their obligations under the Constitution. As already stated, earlier case law seemed to suggest that each factor in the exceptional circumstances enquiry may be sufficient on its own to justify substitution. However, it is unclear from more recent case law whether these considerations are cumulative or discrete.

[47] To my mind, given the doctrine of separation of powers, in conducting this enquiry there are certain factors that should inevitably hold greater weight.  The first is whether a court is in as good a position as the administrator to make the decision. The second is whether the decision of an administrator is a foregone conclusion. These two factors must be considered cumulatively. Thereafter, a court should still consider other relevant factors. These may include delay, bias or the incompetence of an administrator. The ultimate consideration is whether a substitution order is just and equitable. This will involve a consideration of fairness to all implicated parties. It is prudent to emphasise that the exceptional circumstances enquiry requires an examination of each matter on a case-by-case basis that accounts for all relevant facts and circumstances.

[48] A court will not be in as good a position as the administrator where the application of the administrator’s expertise is still required and a court does not have all the pertinent information before it. This would depend on the facts of each case. Generally, a court ought to evaluate the stage at which the administrator’s process was situated when the impugned administrative action was taken. For example, the further along in the process, the greater the likelihood of the administrator having already exercised its specialised knowledge. In these circumstances, a court may very well be in the same position as the administrator to make a decision. In other instances, some matters may concern decisions that are judicial in nature; in those instances – if the court has all the relevant information before it – it may very well be in as good a position as the administrator to make the decision.

[49] Once a court has established that it is in as good a position as the administrator, it is competent to enquire into whether the decision of the administrator is a foregone conclusion. A foregone conclusion exists where there is only one proper outcome of the exercise of an administrator’s discretion and “it would merely be a waste of time to order the [administrator] to reconsider the matter”.  Indubitably, where the administrator has not adequately applied its unique expertise and experience to the matter, it may be difficult for a court to find that an administrator would have reached a particular decision and that the decision is a foregone conclusion. However, in instances where the decision of an administrator is not polycentric and is guided by particular rules or by legislation, it may still be possible for a court to conclude that the decision is a foregone conclusion.

[50] The distinction between the considerations in as good a position and foregone conclusion seems opaque as they are interrelated and inter-dependent. However, there can never be a foregone conclusion unless a court is in as good a position as the administrator. The distinction can be understood as follows: even where the administrator has applied its skills and expertise and a court has all the relevant information before it, the nature of the decision may dictate that a court defer to the administrator. This is typical in instances of policy-laden and polycentric decisions.

[51] A court must consider other relevant factors, including delay. Delay can cut both ways. In some instances, it may indicate the inappropriateness of a substitution order, especially where there is a drastic change of circumstances and a party is no longer in a position to meet the obligations arising from an order of substitution or where the needs of the administrator have fundamentally changed. In other instances, delay may weigh more towards granting an order of substitution. This may arise where a party is prepared to perform in terms of that order and has already suffered prejudice by reason of delay. In that instance, the delay occasioned by remittal may very well result in further prejudice to that party. Importantly, it may also negatively impact the public purse.

[52] What must be stressed is that delay occasioned by the litigation process should not easily clout a court’s decision in reaching a just and equitable remedy. Sight must not be lost that litigation is a time-consuming process. More so, an appeal should ordinarily be decided on the facts that existed when the original decision was made.  Delay must be understood in the context of the facts that would have been laid in the court of first instance as that is the court that would have been tasked with deciding whether a substitution order constitutes a just and equitable remedy in the circumstances.

[53] There are important reasons for this approach. Where a matter is appealed, delay is inevitable. Thus assessing delay with particular reference to the time between the original decision and when the appeal is heard could encourage parties to appeal cases. This, they would do, with the hope that the time that has lapsed in the litigation process would be a basis for not granting a substitution order. Where a litigant wishes to raise delay on the basis of new evidence, that evidence must be adduced and admitted in accordance with legal principles applicable to the introduction of new evidence on appeal.  Ultimately, the appropriateness of a substitution order must depend on the consideration of fairness to the implicated parties.

[54] If the administrator is found to have been biased or grossly incompetent, it may be unfair to ask a party to resubmit itself to the administrator’s jurisdiction. In those instances, bias or incompetence would weigh heavily in favour of a substitution order. However, having regard to the notion of fairness, a court may still substitute even where there is no instance of bias or incompetence.

[55] In my view, this approach to the exceptional circumstances test accords with the flexibility embedded in the notion of what is just and equitable. It is, therefore, consonant with the Constitution while at the same time giving proper deference and consideration to an administrator”

[83]       In considering whether this is an exceptional matter in which the decision to exercise a power to grant the Tender should not be left to the designated functionary, I have considered the relevant factors as to whether this court should exercise its power under sub-paragraph 8(3)(c)(2)(aa) of PAJA.  The first question is whether it would serve no purpose to remit the matter as the end result is a foregone conclusion.

[84]       In this matter I bear in mind that the Respondent’s own expert certified the tender as technically correct save (when driven to it) for the CV issue.  There is no suggestion whatsoever in the said report or in the answering affidavits that absent the CV and technical objections, the tender was in any way otherwise unacceptable or flawed.  Had Respondent wished to avoid the tender being awarded it entirely failed to setup any basis herefor.  This is not surprising as on the history and against the Reick report there is no suggestion of any reason not to do so. 

[85]       Indeed there is even reason to suspect bias and mala fides in not so awarding the tender having regard to the long history set out above and Applicant’s almost ten years of doing the job apparently without any cause for criticism.  Nor is it suggested in the papers that there is any factor relevant which is not before me or that is problematic in this regard. 

[86]       In this matter taking into account the Trencon decision[45] and the above facts the following flows from the necessary approach:

1.    Exceptional circumstances must be seen in the context of what is just and equitable where a court is considering a substitution order;

2.    Careful regard must be had to the need for judicial deference;

3.    The first inquiry is whether I am in as good a position as Respondent to make the decision – an inquiry which is case-by-case fact dependent;

4.    If so, I must inquire into whether the decision of the administrator is a foregone conclusion;

5.    The issue of whether the court is in as good a position as the administrator and whether or not the administrator’s decision is a foregone conclusion, must be considered cumulatively and then the court must further consider other relevant factors;

6.    Once all the above has been accomplished the ultimate consideration is whether a substitution award is just and equitable – the question of fairness to all parties.

[87]       Dealing with the above and as to one and two, I have taken these considerations carefully into account with great care.  

[88]       As to three above the predominant issue is the report of Reick and the failure by Respondent to setup any problem in the Tender, compliance or otherwise.  He is expert and was retained by Respondent to guide it and his conclusion is clear, well reasoned and fact-based. The stage which the process as to decision-making had reached was finalized.  I conclude that the court is now in as good a position as Respondent was to make a decision.  

[89]       As to four above the question is whether there is only one proper outcome and that would be merely a waste of time to order the administrator to reconsider.  Respondent’s expert in this matter has already applied his mind and unique experience. On the facts of this matter the Reick report (and absent any reasons put by Respondent in this regard) dictates that the result is indeed a foregone conclusion, being one in favour of granting the tender sought.  

[90]       As to five above considering three and four cumulatively, which I do, I must take into account the excessive delays caused to Applicant in this matter.

[91]       I turn to the final question six above: which is the consideration of whether a substitution order is just and equitable judged on fairness to both parties.  I cannot conclude otherwise. The Respondent has had expert guidance and has all the facts relevant before it, as also the approval of its own expert.  Its negative decision was simply based, at best, on a wrong legal premise.

[92]       In the result, I am more than satisfied that there are exceptional circumstances in this matter which justify my substituting the decision of this Court for that of Respondent.

COSTS:

[93]       As to costs they must follow the result.   In respect of the striking out application it would be just and equitable were each party to pay their own costs.

THE ORDER

[94]       It is according ordered:

1.         The Application succeeds with costs (save as set out in paragraph 5 below as to costs).

2.         The Notice of Motion is amended in accordance with the Notice to Amend dated 11 September 2018 by the introduction of a new paragraph (a) to read: 

that the Respondent’s purported cancellation of tender no BCMED402, during June 2018, be reviewed and set aside”

            with the renumbering of existing prayer (a) as prayer (b) and consequently further renumbering.

3.         Insofar as may be necessary the Respondent’s purported cancellation of Tender BCMED402 is reviewed and set aside.

4.         The Respondent’s finding that Applicant’s bid for Tender BCMED402 was non-responsive is set aside.

5.         In respect of Respondent’s striking out application, this is allowed as per the order already made, each party to pay their own costs. 

6.         The Respondent is ordered to award Tender Number BCMED402 to Applicant forthwith for a period of three years from date of award.

__________________________

M.J. LOWE

JUDGE OF THE HIGH COURT

Obo the Applicant:               Adv R Buchanan SC

Instructed by:                        Conlon and Associates

c/o Neville Borman & Botha Attorneys, Grahamstown

Obo the Respondent:         Adv Da Silva

Instructed by:                        Clark Laing Inc

                                                c/o Netteltons Attorneys, Grahamstown

[1] (CA298/2016) [2017] ZAECGHC 45 (13 March 2017)

[2] Joubert Galpin Searle Inc & Others v Road Accident Fund & Others 2014 (4) SA 148 (ECP) para 57

[3] AllPay Consolidated Investment Holdings (Pty) Ltd & Others v Chief Executive Officer, South African Social Security Agency& Others 2014 (1) SA 604 (CC) para 40.

[4] Joubert Galpin Searle Inc (note 1) para 58.

[5] Chief Constable of the North Wales Police v Evans [1982] UKHL 10; [1982] 3 All ER 141 (HL) at 154d.

[6] Johannesburg Consolidated Investment Co Ltd v Johannesburg Town Council 1903 TS 111 at 115.

[7] 1912 AD 642 at 652.

[8] Pharmaceutical Manufacturers Association of SA & Another:  In re ex parte President of the Republic of South Africa & Others [2000] ZACC 1; 2000 (2) SA 674 (CC) para 45; Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & Others [2004] ZACC 15; 2004 (4) SA 490 (CC) para 22.

[9] National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 26.

[10] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634 E – I.

[11] Thint (Pty) Ltd v National Director of Public Prosecutions & Others [2008] ZACC 13; 2008 (2) SACR 421 (CC);  National Director of Public Prosecutions v Zuma 2009 (1) SACR 361 (SCA) [26].

[12] Ngqumba en 'n Ander v Staatspresident en Andere; Damons NO en Andere v Staatspresident en Andere; Jooste v Staatspresident en Andere 1988 (4) SA 224 (A);  Zuma (supra) [27].

[13] Zuma (supra) [27].

[14] Wightman t/a J W Construction v Headfour (Pty) Ltd and Another  [2008] ZASCA 6; 2008 (3) SA 371 (SCA) at 375;  Ripoll-Dausa v Middleton NO and Others [2005] ZAWCHC 6; 2005 (3) SA 141 (C) [2005] 2 All SA 83 (C) at 151-3.

[15] City of Tshwane Metropolitan Municipality and Others v Nambiti Technologies (Pty) Ltd 2016 (2) SA 494 SCA [22] – [34].

[16]Tshwane (supra) [26]

[17] See also Trencon Construction (Pty) Ltd v IDC of South Africa and Another 2015 (5) SA 245 CC [68].

[18] 2015 (5) SA 245 (CC) [68]

[19] Cf Tshwane [29]

[20] (The requirements are set out in Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works and Others [2005] ZASCA 43; 2005 (6) SA 313 (SCA) [21];  Minister of Defence and Military Veterans v Motau and Others 2014 (5) SA 69 CC [33]).

[21](supra) [29] to [34].

[22] Mr Buchanan SC’s Heads of Argument [17] to [26]

[23] Mr Buchanan SC’s Heads of Argument [7] to [12]

[24] 2013 JDR 1690 (ECD)

[25] 2010 (4) SA 327 (CC) [38]

[26] Leach v Secretary for Justice, Transkeian Government 1965 (3) SA 1 (E)  

[27] Noupoort Christian Care Centre v Minister, National Department of Social Development 2005 (1) BCLR 1034 (T); Offit Enterprises (Pty) Ltd and Another v Coega Development Corporation (Pty) Ltd and Others 2011 (2) BCLR 189 (CC);  PAJA 6(3)(a); Intertrade Two (Pty) Ltd v MEC for Roads and Public Works Eastern Cape and Another 2007 (6) SA 442 (Ck)

[28] (supra) 651 – 652

[29] 2000 (2) SA 674 (CC)

[30] [83]

[31] Section 6(2)(e)(i) and (ii); Van Eck, NO, and Van Rensburg, NO, v Etna Stores 1947 (2) SA 984 (A);  Gauteng Gambling Board and Another v MEC for Economic Development Gauteng Provincial Government [2013] 3 All SA 370 SCA.

[33] SARFU (supra) [148]

[34] Pillay v Licensing Officer, Umkomaas and Another 1930 NPD 111Radebe v Minister of Law and Order and Another 1987 (1) SA 586 (W); Similela & Others v Member of the Executive Council for Education, Province of the Eastern Cape & Another (2001) 22 ILJ 1688 (LC); Suid-Afrikaanse Onderwysunie v Departementshoof, Department van Onderwys, Vrystaat, en 'n Ander 2001 (3) SA 100 (O) 107 H – 108 A; Damane v Premier, Mpumalanga, and Another 2002 (2) SA 762 (T)

[35] 2007 (3) BCLR 300 (CC)

[36] 2005 (4) SA 67 (SCA) para 29 and 38

[38] (supra) par 126

[39] para 39

[40] para 38

[42] 2000 (2) SA 1 (CC) at para 65

[43] 2001 (1) SA 1 (CC)

[44] (supra)

[45] (supra)