Admin Law Cases Part 2

Bato Star 2004 (CC).............................................................................................................................................................2

Trinity Broadcasting 2003 (SCA)........................................................................................................................................3
DA v President of RSA (Simelane) 2013 (CC)....................................................................................................................4
Scalabrini 2018 (SCA).........................................................................................................................................................5
Albutt 2010 (CC)..................................................................................................................................................................6
Cape Bar 2013 (SCA)...........................................................................................................................................................7
Ehrlich v Minister of Correctional Services 2009 (E)..........................................................................................................8
Joseph 2009 (CC).................................................................................................................................................................9
Grey’s Marine.....................................................................................................................................................................10
Walele.................................................................................................................................................................................11
Administrator, Transvaal v Traub 1989 (A).......................................................................................................................12
Motau..................................................................................................................................................................................13
Masethla v President of RSA.............................................................................................................................................14
Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (SCA..................................................................................................15
Kiva 2007 (E).....................................................................................................................................................................16
Koyabe v Minister of Home Affairs...................................................................................................................................17
Phambili Fisheries 2003 (SCA)..........................................................................................................................................18
Khumalo v MEC for Education 2014 (CC)........................................................................................................................19
Tasima................................................................................................................................................................................21
Buffalo City v Asla Construction 2019 (CC).....................................................................................................................22
SITA v Gijima 2018 (CC)..................................................................................................................................................24
SITA v Gijima 2016 (SCA)................................................................................................................................................25
Comparecare v Registrar of Medical Schemes 2020.........................................................................................................26
Koyabe v Minister for Home Affairs 2010 (CC)...............................................................................................................27
AllPay 1 (CC).....................................................................................................................................................................28
AllPay 2..............................................................................................................................................................................29
Chairperson, Standing Tender Committee v JFE Sapela Electronics (Pty) Ltd 2008 (SCA)............................................30
Millenium Waste................................................................................................................................................................31
Eskom Holdings Ltd v New Reclamation Group (Pty) Ltd...............................................................................................32
Trencon Construction 2015 (CC).......................................................................................................................................33
Trustees of the Simcha Trust v De Jong 2015 (SCA)........................................................................................................34

1
 Bato Star 2004 (CC)

Facts:

Legal Question:

Ratio Decidendi:
Paras 1-54
Court held: reasonableness – ground in PAJA must be construed consistently with S 33 in Constitution
Court held: would thus require simple test for reasonableness – whether decision is one that reasonable decision-maker
could not reach

Done: 21-26 & 45-48

Reasonableness (including proportionality & the principle of deference)

Paras 45-54
Court held: what will constitute reasonableness decision will depend on circumstances of each case

Court Order:

Notes:

2
 Trinity Broadcasting 2003 (SCA)

Facts:

Legal Question:

Ratio Decidendi:
Rationality under PAJA
Court held: review threshold under S 6(2)(f) of PAJA is rationality
Court held: rationality is objective test – being immaterial if functionary acted in the belief, in good faith, that the action
was rational
Court held: reasonableness can be a relevant factor – but only where the question is whether the action is so
unreasonable that no person would have resorted to it (under S 6(2)(h) of PAJA)
Court held: reviewing court will ask: is there a rational objective basis justifying the connection made by the admin
decision-maker between the material made available & the conclusion arrived at

Court Order:

Notes:

3
 DA v President of RSA (Simelane) 2013 (CC)

Facts:

Legal Question:

Ratio Decidendi:
Rationality under the principle of legality
Court held: reasonableness & rationality distinct concepts which might to some extent overlap
Court held: reasonableness – S 33 of Constitution obliged administrators to act reasonably & reviewable if decision
could not have been made by reasonable administrator
Court held: review for rationality – whether the means to achieve the purpose for which a power was conferred, were
rationally related to that purpose – if they were, they would be constitutional
Court held: rationality review not concerned with whether there were better means to achieve a purpose

Court held: both process leading to decision & decision itself were part of means to achieve the purpose
Court held: as they are part of the means, the process had to rationally relate to the purpose
Court held: if particular step in process impugned – then enquiry was whether the step was so unrelated to the purpose
as to taint the purpose & the decision with irrationality

Court held: party’s failure to take into account relevant material would constitute part of the means to achieve the
purpose for which a power was granted
Court held: if failure made the process irrational – might render decision irrational
Court held: 3 stage enquiry where party had ignored relevant material & then made decision

Court held: on whether finding the decision to appoint Simelane irrational would infringe the separation of powers –
noted that rationality comprised the lowest threshold for the validity of Executive decisions & that the test involved
restraint on the part of the court
Court held: thus, difficult to conceive how the rationality enquiry undermined the separation of powers

Court Order:

Notes:

4
 Scalabrini 2018 (SCA)

Facts:

Legal Question:

Ratio Decidendi:
On rationality under the principle of legality
Court held: impugned decision falls to be reviewed & set aside on basis of the legality principle if:
a) Decision is not rationally related to purpose for which power was given
b) Decision-maker failed to act in accordance with the empowering provision
c) Decision-makers’ failure to consider relevant factor “had an impact on the rationality of the entire
process”
d) Decision breaches the Constitution
Court held: rationality concerns the relationship between the exercise of a power & the purpose for which the power
was granted
Court held: reading of Act in question reveals general orientation towards protection of the rights of asylum seekers &
refugees & their integration into SA society

Court held: closure of other offices could never be reason for closing the office in casu – reason is inexplicable &
irrational
Court held: CT refugee officer second busiest in country – refugee reception office necessary in CT – if refugee
reception office is necessary, it can never be a rational response to close down the existing office & then do nothing to
find alternative premises
Court held: if closed, remaining offices are inadequate for purposes of Act – CT office necessary for purposes of Act

Court Order:

Notes:

5
 Albutt 2010 (CC)

Facts:

Legal Question:

Ratio Decidendi:
Rationality under the principle of legality
Court held: exercise of the power to grant pardon must be rationally related to purpose sought to be achieved by
exercise of it
Court held: flows from supremacy of Constitution – President derives power to grant pardon from Constitution &
Constitution proclaims its own supremacy & defines the limits of the powers it grants
Court held: to pass constitutional muster – President’s decision to undertake the special dispensation process must be
rationally related to the achievement of the objectives of the process – if not, falls short of standard of Constitution
Court held: Executive has wide discretion in selecting the means to achieve its constitutionally permissible objectives

Court held: given our history, victim participation in accordance with principles & values of the TRC was the only
rational means to contribute towards national reconciliation & national unity
Court held: thus follows that subsequent disregard of these principles & values without any explanation was irrational
Court held: decision to exclude victims from participating in the special dispensation was irrational

Court held: requirement afford victims a hearing is implicit (if not explicit) in the very specific features of the special
dispensation process
Court held: context-specific features of the special dispensation & in particular its objectives of national unity &
national reconciliation require (as a matter of rationality) that the victims must be given the opportunity to be heard in
order to determine the facts on which pardons are based
Court held: decision to exclude victims of the crimes in respect of which pardons were sought under the special
dispensation process was irrational

Court held: should not reach argument based on PAJA

Court held: not necessary to reach the question whether the exercise of the power under S 84(2)(j) constituted admin
action & whether, upon its proper construction, PAJA included within its ambit the power to grant pardon under S 84(2)
(j)

Procedural fairness & the principle of legality

Court held: requirement afford victims a hearing is implicit (if not explicit) in the very specific features of the special
dispensation process
Court held: context-specific features of the special dispensation & in particular its objectives of national unity &
national reconciliation require (as a matter of rationality) that the victims must be given the opportunity to be heard in
order to determine the facts on which pardons are based
Court held: decision to exclude victims of the crimes in respect of which pardons were sought under the special
dispensation process was irrational

Paras 70-78

Court Order:

Notes:

6
 Cape Bar 2013 (SCA)

Facts:

Legal Question:

Ratio Decidendi:
Rationality under the principle of legality
Court held: no express constitutional or other legal enactment that obliges JSC to give reasons for not recommending
candidate for judicial appointment – but that does not exclude an implied obligation to do so
Court held: once premises (that JSC under constitutional duty to exercise its powers in way that is not irrationally or
arbitrary & that JSC as Organ is bound by S 195 with regards to transparency & accountability) accepted – cannot see
how the inference of obligation to give reasons [for decision] can be avoided
Court held: difficult to account for one’s decision without giving reasons
Court held: affected individual should receive reasons for decision, otherwise impossible for them to rebut defence by
decision-maker that their decision is rational
Court held: general rule – JSC obliged to give reasons for decision
Court held: extent of reasons & who is entitled to request them or under which circumstances they can be requested –
will depend on the facts & circumstances of each case

Court held: JSC entitled to decide on its own internal procedures – but these procedures must enable JSC to comply
with its constitutional & legal obligations – if it does not, procedure must be changed

Court held: not saying that JSC has to provide reasons for every decision it makes – will depend on what JSC under
constitutional obligation to do
Paras 42-51

Court Order:

Notes:

7
 Ehrlich v Minister of Correctional Services 2009 (E)

Facts:

Legal Question:

Ratio Decidendi:

Court Order:

Notes:

8
 Joseph 2009 (CC)

Facts:

Legal Question:

Ratio Decidendi:
Material & adverse
Court held: “materially” & adversely simply means that admin action had significant & not trivial effect
Court held: in the circumstances of this case, if any rights of the applicants were affected, such effect was material &
adverse

Meaning of “rights” in S 3(1)

Court held: municipalities are obliged to provide water & electricity to the residents in their area as a matter of public
duty
Court held: electricity is one of the most common & important basic municipal services & has become virtually
indispensable
Court considered obligations of local government in terms of S 152 of Constitution
Court held: in addition to these objects of local Gov – Constitution specifically entrenches the developmental duties of
municipalities – under S 153 a municipality is obliged to prioritize the basic needs of the community & to promote the
social & economic development of the community
Court considered constitutional duties of local Gov under Municipal Systems Act
Court held: taken together, these provisions impose constitutional & statutory obligations on local Gov to provide basic
municipal services which incl. electricity
Court held: applicants entitled to receive these services
Court held: these rights & obligations have their basis in public law
Court held: although no specific provision on electricity in Constitution, it is important basic municipal service which
local Gov is ordinarily obliged to provide

Court held: structure of S 3(1) is important as it indicates the broad application of the procedural fairness provisions
under PAJA
Court held: S 3 must be interpreted generously to give proper effect to S 33(1) of Constitution
Court held: has been previous support for purposive approach to concept of “rights” under S 3 of PAJA
Court held: has been held that “it may be that a broader notion of “right” than that used in private law may well be
appropriate”
Court held: proper regard to the import of the right to admin justice in constitutional democracy confirms the need for
an interpretation of rights under S 3(1) of PAJA that makes clear that the notion of “rights” includes not only vested
private-law rights but also legal entitlements that have their basis in the constitutional & statutory obligations of Gov
Court considered preamble to PAJA, what its objectives were , & how these objectives give expression to founding
values in S 1 of Constitution (e.g. accountability, responsiveness, openness, efficiency & good governance)

31-47
Already done: 27-31

Court Order:

Notes:

9
 Grey’s Marine

Facts:

Legal Question:

Ratio Decidendi:
On the meaning of “rights” in S 3(1)
Court held: S 3(1) confers right to procedural fairness only in respect of admin action that “materially & adversely
affects rights or legitimate expectations of any person”
Court held: while “rights” may have wider connotation in this context & may incl. prospective rights that have yet to
accrue, difficult to see how the term could encompass interests that fall short of that
Court held: no rights (or prospective rights) of any of appellants adversely affected – none of appellants have any right
to use property that has been let, or to restrict its use by others, nor has any case been made out that their rights of
occupation of their own premises have been unlawfully compromised
Court considered Kyalami Ridge decision: general rule is that the reasonable use of property by an owner is not subject
to restriction, even if such user causes prejudice to other
Paras 29-33

Legitimate expectation
Court held: previous case granted protection to interest falling short even of a prospective right – but court had in mind
a legitimate expectation, grounded in past practice, that the affected property would continue to be available for use of
the aggrieved party
Court held: but in casu, no legitimate expectation that property would be left vacant or even that they would be
consulted or their comments invited before it was let

Court Order:

Notes:

10
 Walele

Facts:

Legal Question:

Ratio Decidendi:
On the meaning “rights” in S 3(1)
Majority (31-33)

Minority (127-132)
Court held: zoning schemes restrict rights of all owners in area – but also confer rights on owners because owners
entitled to require that neighbouring owners comply with the applicable zoning scheme
Court held: where owner seeks to depart from scheme, the rights of neighbouring owners affected & they are entitled to
be heard on the departure
Court held: owners in area are also entitled to be heard when land is rezoned
Court held: zoning scheme is based on give & take in terms of ownership – result is that where owner seeks to use his
property within the terms of the zoning scheme, it cannot be said that the rights of surrounding owners are affected
materially or adversely
Court held: in casu, use & enjoyment of property were affected but does not mean rights materially & adversely
affected – cannot hold that whenever use & enjoyment of property is affected by admin decision it will constitute
material & adverse effect as contemplated by S 3(1) of PAJA (use & enjoyment affected by many things)
Court held: if it were allowed, would cause great disruption to the administration of urban spaces – would be
inconsistent with the overall purposes of PAJA & with S 33 of Constitution

Court Order:

Notes:

11
 Administrator, Transvaal v Traub 1989 (A)

Facts:
Doctors recommended for particular posts were refused appointments by particular administrator. Claimed to have
legitimate expectation to be appointed or given hearing before appointment. Argued this expectation arose from
administrator’s long standing past practice of appointing all the doctors recommended for post.

Legal Question:

Ratio Decidendi:
Court recognised legitimate expectations of doctors
Court afforded this expectation procedural protection – given their expectation the doctors were entitled to be heard if
administrator wanted to depart from its long standing past practice

Court Order:

Notes:

12
 Motau

Facts:

Legal Question:

Ratio Decidendi:
Procedural fairness & the principle of legality
Court held: Companies Act requires that shareholder must give a director notice & a chance to make representations
before a resolution is adopted to dismiss him
Court held: Armscor Act must be read together with Companies Act – Armscor falls within definition of state-owned
company
Court held: minister took no steps required by Companies Act when exercised her power – therefore failed to observe
the prescribed procedure & acted unlawfully when she sought to terminate the directors’ membership of the board
without first affording them a reasonable opportunity to make representations
Court held: whether procedural fairness required will depend on nature of case before court
Court held: Masethla decision was due to the sensitive nature of the special relationship & the “effective pursuit of
national security”
Court held: Albutt attached procedural fairness obligations independently of statutory obligation in virtue of the
principle of legality – procedural fairness was required as matter of rationality in that specific case

Paras 72-90

Court Order:

Notes:

13
 Masethla v President of RSA

Facts:

Legal Question:
Whether the power to appoint & correlative power to dismiss a head of the NIA are subject to a requirement of
procedural fairness

Ratio Decidendi:
Procedural fairness & principle of legality
Unfairness complained about was the president not affording him an opportunity to be heard before the impending
dismissal
Court held: power to dismiss must ordinarily be constrained by the requirement of procedural fairness which
incorporates the right to be heard ahead of an adverse decision
Court held: however, the special legal relationship that obtains between President as head of the national executive, on
the one hand, & the director-general of intelligence agency on the other, is clearly distinguishable from the
considerations relied upon in another case
Court held: one distinguishing feature is that the power to dismiss is an executive function that derives from the
Constitution & national legislation
Court held: would not be appropriate to constrain executive power to requirements of procedural fairness – powers in
casu conferred upon president for effective business of Gov & effective pursuit of national security
Court held: does not mean there are not constitutional requirements on exercise of power – must be exercised lawfully,
rationally & in manner consistent with Constitution
Court held: procedural fairness is not requirement

Court Order:

Notes:

14
 Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (SCA

Facts:

Legal Question:
Which rights, interests, or legitimate expectations were affected or threatened?

Ratio Decidendi:
Court held: one of most fundamental rights is S 9 – right to equal treatment pervades whole field of admin law –
fundamental right that obviously justifies application of S 33 of Constitution
Court held: cannot say you have constitutional right to equal treatment but are not allowed to know whether you have
been treated equally
Court held: right to be furnished with reasons for admin decision is the bulwark of the right to just admin action
Court held: entitled to protection of S 33

Court Order:

Notes:

15
 Kiva 2007 (E)

Facts:

Legal Question:

Ratio Decidendi:
Court held: “materially” does not change approach to interpretation of the right – S 5(1) must still be construed
consistently with S 33(2) of Constitution
Court held: find it difficult to imagine situation where person’s rights have been adversely affected by the effect is not
material
Court quoted Baxter (see notes)
Court held: noted that “rights” could be right to equality, right to admin justice, right of access to courts, right to fair
labour practices (need reasons to exercise these rights)

Court Order:

Notes:

16
 Koyabe v Minister of Home Affairs

Facts:

Legal Question:

Ratio Decidendi:
Entitlement to reasons
Court held: S 33(2) of Constitution provides right to written reasons to those whose rights have been adversely affected
by admin action
Court held: PAJA enacted to give effect to this & other admin justice rights
Court held: keeping in mind goal of PAJA (accountability, transparency, openness), S 5 of PAJA must be viewed as
giving effect to S 33(2) of Constitution
Court held: reasons for the finding are important in seeking a meaningful review by Minister & in enhancing chances of
getting immigration agent’s adverse finding overturned
Court held: further, in our constitutional democracy, officials enjoined to ensure that public administration governed by
values enshrined by Constitution
Court held: values of ubuntu enjoin public service to treat people with respect & dignity & avoid undue confrontation
Court held: list of factors relevant to adequacy of reasons is not closed one & will hinge on the facts & circumstances of
each case
Court held: test for the adequacy of reasons must be an objective one
Court held: agreed with factors in Maimela
Paras 56-64

Adequacy of reasons
Court held: reasons for the withdrawal of their residence permits were adequate to enable them to request a meaningful
review by the minister
Court held: nature of info they sought would instead have been more appropriately sought from the minister
Paras 60-70

Court Order:

Notes:

17
 Phambili Fisheries 2003 (SCA)

Facts:

Legal Question:

Ratio Decidendi:
Court held: adequacy requires that decision-maker should set out:
(a) His understanding of the relevant law
(b) Any findings of fact on which his conclusions depend (especially if those facts have been in dispute)
(c) Reasoning processes which led him to those conclusions
Court held: decision maker should do so in clear & unambiguous language – not in vague generalities or the formal
language of legislation
Court held: appropriate length of statement covering such matters will depend upon considerations such as:
(i) Nature & importance of decision
(ii) Its complexity
(iii) Time available to formulate the statement

Court Order:

Notes:

18
 Khumalo v MEC for Education 2014 (CC)

Facts:
Vacancy in department of education – Mr Khumalo applied for promotion to take up vacancy – granted promotion –
decision subsequently challenged on basis that he lack qualifications – from time MEC actually appraised of problems
with his appointment, was 22 month delay – during duration of 22 months, Khumalo had arranged his affairs according
to validity of his appointment – documentation surrounding appointment appears not to be available.

Legal Question: Par 39-57

Ratio Decidendi: Par 47-50 in notes

Common law rule (applicable legality reviews)
Court held: long standing rule that legality review must be initiated without undue delay & courts have power (as part
of their inherent jurisdiction to regulate their own proceedings) to refuse a review application in the face of an undue
delay in initiating proceedings
Court held: discretion not open-ended & must be informed by the values of Constitution
Court held: however, because there are no express, legislated time periods in which MEC was required to bring
application – is no requirement that formal application for condonation needs to have been brought
Court held: rule of law (founding value of Constitution) – state functionaries enjoined to uphold & protect it by seeking
redress of their department’s unlawful decisions – because of these fundamental commitments, 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
Court held: but does not mean Constitution dispensed with basic procedural requirement that review proceedings are to
be brought without undue delay or with court’s discretion to overlook a delay
Court held: S 237 provides that all constitutional obligations must be performed diligently & without delay –
acknowledges significance of timeous compliance with constitutional principles
Court held: elevates expeditious & diligent compliance with constitutional duties to an obligation in itself – principle
thus requirement of legality

Khumalo on explanation – para 50 & 51

Court held: first legal common law enquiry – in terms of first leg of enquiry, any explanation offered for delay is
considered
Court held: present matter – MEC has made no attempt to explain why she was idle for so long
Court held: considering typically short timeframes to challenge decisions in labour law (resolving labour disputes in
good time central to LRA framework) – delay of 20 months from time of receipt of report is significant in itself
Court held: furthermore, in absence of any explanation by state for delay, delay is taken to be unreasonable & first leg
of enquiry is satisfied
Court held: fact that MEC has elected not to account for delay despite opportunity to do so at multiple stages during
litigation – leads to only infer that she had no reason at all, or was not able to be honest about her real reason
Court held: if matter had been brought by private litigant, this aspect of the test might have weighed less heavily
Court held: however given MEC responsible for decision & obliged to act expeditiously in fulfilling her constitutional
obligations & should have within her control the relevant resources to establish unlawfulness of decision she impugns –
unreasonableness of unexplained delay is serious

Court held: condonation of unreasonable delay – delay cannot be evaluated in vacuum but must be assessed with
reference to its potential to prejudice affected parties & having regard to possible consequences of setting aside
impugned decision
Court held: in context of public sector employment, value of security for employees & mitigating the arguably inherent
inequality of the workplace must be kept in mind
Court held: under Constitution, however, requirement to consider consequences of declaring the decision unlawful is
mediated by court’s remedial power to grant just & equitable order in terms of S 172(1)(b)
Court held: court has greater powers under Constitution to regulate any possible unjust consequences by granting an
appropriate order – while court must declare conduct it finds to be unconstitutional invalid, it need not set conduct aside

19
Khumalo on delay par 56
Court held: Khumalo & public administration would suffer prejudice if decision changed
Court held: however factor of prejudice would not weigh so heavily in decision whether to condone delay – could
temper prejudice that would be suffered at stage of remedy
Court held: could condone delay & still engage in merits of case – but can still craft remedy which would not result in
Khumalo losing his job
Court held: considering court’s power to grant just & equitable remedy, impact of a finding of invalidity may be
ameliorated by fashioning a remedy that is fair to Mr Khumalo

Court Order:

Notes:

20
 Tasima

Facts:
State self-review – unlawful extension of procurement contract – State only did so after 5 year delay – court condoned 5
year delay even though explanation was porous & lacked markings of good constitutional citizenship – reason turned on
other contextual factors – mainly issue of prejudice (minimal prejudice in circumstances) – private person had already
benefitted from contract – even if extension was set aside, Tasima would not really be worse off

21
 Buffalo City v Asla Construction 2019 (CC)

Facts:
Contract for housing between municipality & private contractor ASLA – had tendered for contract in respect of certain
area - after awarded, entered into another contract which “piggy-backed” off initial tender contract – second contract
did not go through tender process – Buffalo city would not pay in terms of contract & tried to set aside its own decision

Legal Question:

Ratio Decidendi:
Delay & state self-reviews
Court held: following decision in Gijima, now settled that Organ seeking to review its own decision must do so under
principle of legality & cannot rely on PAJA
Par 44-63

Common law rule applicable legality reviews

Court held: four principles that answer question on assessing delay in this case

Principle 1
Court held: 1st assessing delay under PAJA & legality differs in two respects, even though both hinge on reasonableness
– first difference is role of 180 day bar in S 7(1) of PAJA
Court held: time period not absolute – S 9 provides mechanism for extensions
Court held: when delay is longer than 180 days, court required to consider whether it is in interests of justice for time
period to be extended
Court held: legality review on other hand has no similar fixed period – use test in Khumalo
Court held: first enquiry: must be determined whether delay unreasonable or undue – factual enquiry upon which value
judgment made having regard to circumstances of the matter
Court held: second enquiry: if delay unreasonable, question becomes whether the court’s discretion should nevertheless
be exercised to overlook the delay to entertain the application
Court held: standard to be applied in assessing delay under both PAJA & legality – whether delay was unreasonable
Court held: in both assessments, clock starts running from date that applicant became ware or reasonable ought to have
become ware of action taken
Court held: however, distinction between assessments of delay under PAJA vs PoL turns on the prescribed time period
of 180 days
Court held: distinction – S 7 creates presumption that delay of longer than 180 days is per se unreasonable
Court held: approach to undue delay within context of legality challenge necessarily involves exercise of broader
discretion than that traditionally applied to S 7 of PAJA

Principle 2
Court held: 2nd principle relating to delay under legality is that the first step in Khumalo test (reasonableness of delay)
must be assessed on (inter alia) the explanation offered for the delay
Court held: where delay can be explained & justified – it is reasonable & merits of review can be considered
Court held: if there is explanation for delay – explanation must cover entirety of delay
Court held: if there is no explanation – delay will necessarily be unreasonable

Principle 3
Court held: 3rd principle – even if unreasonableness established, cannot be evaluated in vacuum – next leg of test is
whether delay ought to be overlooked
Court held: courts have power in legality review to refuse application where there is undue delay in initiating
proceedings or discretion to overlook the delay
Court held: however, must be basis for court to exercise this discretion – basis must be gleaned from facts made
available or objectively available factors

22
Court held: approach to overlooking delay in legality review is flexible – factual, multi-factor, context-sensitive
framework
Court held: this entails a legal evaluation taking into account a number of factors
Court held: factor 1 – potential prejudice to affected parties as well as possible consequences of setting aside impugned
decision
Court held: potential prejudice to affected parties & consequences of declaring conduct unlawful may in certain
circumstances be ameliorated by court’s power to grant just & equitable remedy & this ought to be taken into account
Court held: “consequences & potential prejudice – ought not in general, favour the court non-suiting an applicant in the
face of delay
Court held: factor 2 – nature of impugned decision – requires consideration of merits of legal challenge against that
decision
Court held: extent & nature of deviation form constitutional prescripts directly impacts upon application for
condonation in terms of S 7 of PAJA
Court held: in context of legality review – consideration is nature of impugned decision, which entails analysing the
impugned decision & considering the merits of the legal challenge made against that decision
Court held: extent & nature of illegality may be crucial factor in determining relief to be granted when faced with
delayed review – thus court may consider, as part of assessing delay, lawfulness of the contract under the principle of
legality
Court held: factor 3 – conduct of applicant
Court held: particularly true for state litigants seeking to review their own decision for simple reason that they are best
placed to explain the delay
Court held: Organ subject to higher duty to respect the law
Court held: even where functionary has not acted as model litigant or constitutional citizen – may be basis to overlook
the delay if functionary acted in good faith or with intent to ensure clean governance

Principle 4
Court held: 4th principle – even where there is no basis for court to overlook unreasonable delay, court may nevertheless
be constitutionally compelled to declare the state’s conduct unlawful
Court held: this is because court compelled to do so by S 172(1)(a) of Constitution

Court Order:

Notes:

23
 SITA v Gijima 2018 (CC)

Facts:
Tender awarded to private company – awarded without engaging in relevant tender process – SITA turned around &
stated did not want to pay for services rendered under tender contract – Gijima sued – SITA claimed contract unlawful
as it did not go through tender process – SITA went to court to review & set aside its own decision to award tender to
Gijima unlawfully – question was why SITA had waited so long to review decision (20 month delay) – gave no reason
why they had delayed bringing proceedings

Legal Question:

Par 2 & 18-37

Ratio Decidendi:
Delay & state self reviews
Court held: issue has nothing to do with scenario where Organ that is in position akin to that of private person may be
seeking to review decision of another Organ
Court held: nor are we concerned with situation where – in seeking a review of its own decision – Organ state is
purporting to act in public interest in terms of S 38
Court held: any statement about power Organ has or does not have to seek review of its own decision under PAJA –
does not go beyond what we are concerned with here

Court held: fundamental rights are meant to protect warm-bodied human beings primarily against the State
Court held: right to just admin action in S 33 of Constitution is fundamental right
Court held: right has particular significance in South African context – due to history of administrative law being used
as tool of oppression
Court held: intended beneficiaries of the change introduced by S 33 were private person – State was to be bear of any
obligations brought about by the innovation
Court held: in this context, can conceive of no reason why Organ seeking to review its own decision could ever have
been meant also to be a beneficiary – was conduct of Organs that had necessitated the change
Court held: S 33 states “must impose duty on the state to give effect to rights in S 33(1) & (2)”
Court held: seems inconsonant that State can be both beneficiary of rights & bearer of corresponding obligation that is
intended to give effect to the rights
Court held: much of protection in S 33 would be illogical if State enforcing it against itself
Court held: PAJA legislation enacted to give effect to S 33 – must be interpreted through prism of Constitution
Court held: cannot be that PAJA would start on clean state & disregard all constitutional background – concept of
admin action in whatever section of PAJA cannot suddenly have meaning wider than that envisaged by source of the
concept, namely Constitution
Court held: SITA ought not to have been non-suited on basis of time limit in S 7 of PAJA because PAJA does not apply
to review of its own decision
Court held: no choice to use PAJA for Organ – thus will not lead to PAJA avoidance because PAJA simply unavailable

On the discretionary nature of setting aside

Par 43-54

Court Order: Par 43-54

Notes:

24
 SITA v Gijima 2016 (SCA)

Facts:
Tender awarded to private company – awarded without engaging in relevant tender process – CETA turned around &
stated did not want to pay for services rendered under tender contract – Gijima sued – CETA claimed contract unlawful
as it did not go through tender process – CETA went to court to review & set aside its own decision to award tender to
Gijima unlawfully – question was why CETA had waited so long to review decision (20 month delay) – gave no reason
why they had delayed bringing proceedings

Legal Question:

Ratio Decidendi: Par 15-21

Delay & state self-reviews
Court held: well-established that decision by State entity to award contract for services constitutes admin action in
terms of S 1 of PAJA – once this accepted, no good reason for immunising admin decisions taken by State from review
under PAJA
Court held: PAJA does not expressly exclude State & its language carries no such implication – in fact S 6(1)
specifically empowers “any person” to institute proceedings

Court Order:

Notes:

25
 Comparecare v Registrar of Medical Schemes 2020

Facts:
Application to change name – refused – went on internal review & appeal body upheld name change – registrar of
medical schemes attempted to review & set aside this decision

Legal Question:
Par 13-20
Ratio Decidendi:
Delay & state self-reviews
Court held: two major “pathways” to review of admin-type actions are S 6 of PAJA & PoL – PAJA applies generally to
review of admin action as that term is defined in it
Court held: Gijima case was not concerned with scenario where Organ in position akin to that of private person looking
to review decision of another Organ OR where Organ acting in public interest in terms of S 38 in seeking to review its
decision
Court held: decision is admin action defined in PAJA – when Registrar & Council brought their application in the
public interest, they did so in order to safeguard the fundamental right of each member of the public to just admin action
Court held: that being so, they stepped into the shoes of the members of the public on whose behalf they litigated & in
this sense were, despite being Organs, bearers of fundamental rights to just admin action
Court held: PAJA thus applies

Court Order:

Notes:

26
 Koyabe v Minister for Home Affairs 2010 (CC)

Facts:

Legal Question:

Par 34-55
Ratio Decidendi: Fn 28
Duty to exhaust internal remedies
Court held: common law- existence of internal remedy not in itself sufficient to defer access to judicial review until it
has been exhausted
Court held: however, PAJA significantly transformed the relationship between internal admin remedies & judicial
review of admin decisions
Court held: unless exceptional circumstances found to exist by court on application by affect person – PAJA requires
that available internal remedies be exhausted prior to judicial review of AA

Court held: court must exercise judicial review power once one of two circumstances arise:
1. When all available internal admin remedies are found to have been exhausted
2. When exceptional circumstances are found to exist

Court held: mere lapsing of time period for exercising internal remedy on its own would not satisfy the duty to exhaust,
nor would it constitute exceptional circumstances
Court held: aggrieved party must take reasonable steps to exhaust available internal remedies with a view to obtaining
administrative redress
Court held: not to say that if aggrieve party had made attempt in good faith to exhaust internal remedies but had been
frustrated in his efforts would be prevented from being granted the exemption
Court held: it is for the court to determine, on case-by-case basis whether circumstances exist for judicial intervention

Court held: internal remedies in casu illustrate value & importance of a tailored remedial structure designed to cure a
specific admin irregularity

Par 34 fn 28
36-37
43, 44-45, 47

Court Order:

Notes:

27
 AllPay 1 (CC)

Facts:
Award of a tender by South African Social Security Agency (SASSA) for countrywide payment of social grants to
beneficiaries. Unsuccessful tenderer (AllPay) brought review application from the setting aside of the tender award.
Scale of tender significant – involved appointment of sole service provider for payment of social grants across the entire
country – payment of about 15 million social grants to about 10 million recipients each month for 5 years. Successful
tenderer (Cash Paymaster) contended that it had invested R1.3 billion to roll out the tender. Remedy sought by AllPay
was order setting aside tender award & directing SASSA to issue fresh tender for same contract period of 5 years. Cash
Paymaster (and others) argued that if tender award was set aside, disruptions in payment of social grants were inevitable
– contended that only just & equitable remedy & only way to ensure uninterrupted payment of social grants would be to
suspend the declaration of invalidity until the contract concluded between SASSA & Cash Paymaster had run its course.

Legal Question:

Ratio Decidendi:
Court held: were reviewable irregularities in tender process & declared tender award invalid

Discretionary nature of setting aside

Foremost concern in determining just & equitable remedy – risk of any disruption in payments of social grants, upon
which millions of children, elderly, & poor rely for their livelihood
Court noted that likelihood of disruption of payments to beneficiaries upon award of new tender was disputed by parties
& would have to be evaluated by responsible administrator, SASSA
Adopted middle path approach (similar to Millennium Waste) – remitted matter to SASSA for fresh tender process, but
it did not attempt to impose final solution on SASSA
Court left it to SASSA to decide, on an evaluation of the new tender, whether or not to award the new tender to any of
the bidders
Reason: court accepted it was not in position to determine effect of making new tender award, as it will be based on
number of interests
Thus remained open to SASSA to decide, after re-running the tender process, not to contract with any bidder or to in-
source the services
If SASSA chose not to award a new tender, court suspended the declaration of invalidity of contract concluded between
SASSA & Cash Paymaster until completion of that contract period, thereby ensuring that it remained in full force &
affect

Similar to Millennium Waste – remitted matter to administrator without annulling the unlawful decision, & made any
annulment of unlawful tender award conditional on outcome of administrator’s decision
Differed – directed administrator not merely to re-evaluate the existing bids (like in Millennium Waste), but to re-run a
fresh tender process in its entirety
Thus, SASSA required to issue new tender, followed by new bidding process, & evaluation & adjudication of the new
bids – order considerably more onerous on administrator than Millennium waste order

Court Order:

Notes:
Involved provision of critical public services, which could not be interrupted by the unqualified setting aside of a tender
award.
Considered merits of tender review & question of just & equitable remedy in this context

28
 AllPay 2

Facts:

Legal Question:

Ratio Decidendi:
Discretionary nature of setting aside

Court Order:

Notes:

29
 Chairperson, Standing Tender Committee v JFE Sapela Electronics (Pty) Ltd 2008 (SCA)

Facts:

Legal Question:

Ratio Decidendi:
Discretionary nature of setting aside
Declined to set aside tender awards for engineering work at prisons
Basis – amount of repair work that had already been done by the time the review was heard, & which was irreversible,
rendered it impracticable to start a new tender process for the little work that remained outstanding under the tender

Court Order:

Notes:

30
 Millenium Waste

Facts:

Legal Question:

Ratio Decidendi: Par 23-end

Discretionary nature of setting aside Page 249 of textbook

Court was concerned not to interrupt the performance of the tender because of the critical nature of the services being
provided under the tender – removal, treatment, & disposal of healthcare waste material from hospitals
When assessing whether setting aside tender was just & equitable, SCA adopted useful structure of analysis
Identified 4 interests that had to be factored in – interests of:
a) Disqualified bidder
b) Successful tenderer
c) Public
d) Public purse
In assessment – emphasised following factors:
a) Loss to Millennium Waste (disqualified bidder) from unfair tender process was no more than the loss of the
opportunity to have its tender considered – was by no means clear that it would win tender upon fresh
evaluation of the bids – thus effective redress for Millennium Waste meant no more than having its bid fairly
considered
b) Successful tenderer was innocent party & not complicit in the exclusion of Millennium Waste from the tender
process
c) Successful tenderer had already incurred considerable costs in performing on the contract (by purchasing
vehicles & equipment, hiring employees, leasing premises, & constructing waste treatment plant)
d) Risk of harm to public if medical waste removal services were interrupted by termination of contract
e) Potential benefits for the public purse of setting aside contract – was vast price differential between the two
bids, with the successful bidder providing the service at a fee seven times higher than Millennium Waste’s bid
– with 29 months remaining on the contract, the potential cost savings were significant
In weighing up considerations – court’s overriding concern was the uncertainty that would result from setting aside the
tender
“should not make an order that creates uncertainty – with no promise of gain but instead potential for loss & chaotic
disruption – when that can be avoided”
Court declined to set aside tender award without more

Remedy: did not simply preserve status quo

Crafted creative, middle-path remedy
Court declared tender award to be invalid & remitted the matter to the tender board for a re-evaluation of parties’ bids &
granted a setting aside order that was conditional on the tender board reaching a different decision on re-evaluating the
bids
Order thus set aside tender award only if, on the re-evaluation of the bids, the tender board decided to award the tender
to Millennium Waste
Court left the evaluation of the risks & consequences of appointing a new tender or concluding new tender to tender
board, while vindicating Millennium Waste’s right to just admin action by requiring that the tender board evaluate its
bid fairly
Effect of order – maintains balance between parties’ conflicting interests while taking into account the public interest

Court Order:

Notes:

31
32
 Eskom Holdings Ltd v New Reclamation Group (Pty) Ltd

Facts:
Respondent was unsuccessful tenderer for the collection & disposal of non-ferrous scrap metals & applied for review &
setting-aside of 1st appellant’s (Eskom’s) decision to award the tender to 2nd appellant (Kwanda)

Legal Question:

Ratio Decidendi:
Discretionary nature of setting aside
Confirmed order setting aside tender award by Eskom, even though the two-year contract had less than three months to
run by the time the appeal was heard
Critical factor was nature of particular contract – involved ad hoc removal of scrap material from Eskom sites & its
subsequent processing & sale
Terms of contract provided that each instruction given by Eskom to successful tenderer to collect scrap material would
constitute separate independent disposal agreement incorporating the terms of this agreement
In view of the nature of this contract – which was not an indivisible contract such as an engineering – court found that it
was not impracticable to set it aside
Court’s decision also informed by fact that successful tender was (at least in part) to blame for the tainted award
because its tender was flawed

Court Order:

Notes:

33
 Trencon Construction 2015 (CC)

Facts:
IDC: tender for building contract to upgrade head office. Trencon’s bid declared non-responsive – contract awarded to
Basil Read based on erroneous interpretation of tender documents (error of law).
HC: decision invalid & set aside ; substitution in favour of Trencon – foregone conclusion
SCA: overturns HC. Remits decision back to IDC. Decision not foregone conclusion – no obligation to award tender –
delay resulting in changed circumstances (unknown whether Trencon’s bid would still be most competitive in
circumstances)
CC: remit or to substitute? Important the court changed the way the traditional factors were applied

Legal Question:

Ratio Decidendi:
Remission, substitution & compensation

Court Order:

Notes:

34
 Trustees of the Simcha Trust v De Jong 2015 (SCA)

Facts:

Legal Question:

Ratio Decidendi:
Remission, substitution & compensation

Court Order:

Notes:

35