Airports Company South Africa v Tswelokgotso Trading Enterprises CC

• Jurisdiction: South Africa
• Judge: Unterhalter J
• Judgment Date: 22 June 2018
• Citation: 2019 (1) SA 204 (GJ)
• Docket Number: 19548/2015
• Hearing Date: 22 June 2018
• Counsel: E Mokutu for the applicant D Watson for the respondent.
• Court: Gauteng Local Division, Johannesburg

Unterhalter J: F

Introduction

[1] The Airports Company South Africa (Acsa) brings proceedings for judicial review to set aside its own decision to award a tender for grass- cutting and vegetation services ('the services') to the respondent, Tswelokgotso Trading Enterprises CC (TTE). G

[2] The review was originally brought under the provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). In the light of the recent decision of the Constitutional Court in Gijima, [1] Acsa pursues its review on the basis of legality review, without objection from TTE. H

[3] The grounds of review relied upon by Acsa in its founding affidavit and supplementary affidavit are stated to be errors of fact committed by Acsa in awarding the tender to TTE. These errors of fact fall into two categories. First, Acsa says that it disqualified bidders when it should not have done so. Second, Acsa permitted TTE's bid to be considered and I ultimately awarded the tender to it, when TTE should have been disqualified from consideration because, at the time that TTE submitted

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its A bid and had its bid evaluated, Acsa had issued letters of non-performance to TTE in respect of TTE's subsisting agreement with Acsa to render the services.

[4] Since Acsa's review is predicated upon the application of the B principle of legality, I consider, first, error of fact as a ground of review under the principle of legality. Once the conceptual scope of error of fact has been determined, I consider whether Acsa has made out its case.

Error of fact and the principle of legality

[5] Judicial review under the principle of legality has come to assume an C ever greater significance in our public law. Originally conceived as a residual and limited form of scrutiny, of application in the exercise of powers that do not constitute administrative action, the principle of legality has been recognised in two ways that have greatly enhanced its centrality.

[6] D First, the principle of legality is of application in the exercise of all public power. The exercise of a power that is not administrative action falls under the discipline of the principle of legality. Less clear is whether recourse to the principle of legality applies only residually, where an applicant seeks to review administrative action. This position is based on E the constitutional primacy that PAJA enjoys and considerations of subsidiarity. The other stance is that the review of administrative action may rely upon the principle of legality, whether or not PAJA offers a basis for determining the matter. The Constitutional Court has given different guidance on these issues. [2] But if the principle of legality is of application in the exercise of all public power, without regard to subsidiarity considerations, F its reach is cast wide.

[7] Second, the range and intensity of review permitted by the principle of legality has enjoyed some expansion by way of judicial interpretation. Central to the principle of legality are the requirements that for a public G power to be exercised lawfully it may not be exercised ultra vires; the holder of the power must act in good faith and must not have misconstrued the power conferred; nor may the power be exercised arbitrarily or irrationally. [3] It is the requirement of rationality, as an

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incident of legality, that has given rise to some significant expansion of A judicial review under the principle of legality. Rationality has been found to encompass considerations of procedural fairness, [4] the duty to give reasons [5] and to take into account relevant material in reaching a final decision. [6] This broad conception of rationality has meant that the principle of legality covers much territory that is also to be found in the B grounds of review specified in PAJA. Whether this concurrence is warranted under the separation of powers is a matter of ongoing consideration.

[8] In a number of appeal court decisions, mistake of fact has been C recognised as a ground of review, both under the principle of legality and in terms of PAJA. [7] In Pepcor the Supreme Court of Appeal (SCA) reasoned that a functionary cannot render a proper decision made in ignorance of material facts. But then cautioned that, in order to avoid collapsing the distinction between appeal and review, where the functionary is vested with the power to determine whether facts exist and whether facts are D relevant, a court on review could not interfere if the functionary was in error as to these matters.

[9] This demarcation of the ambit of review for mistake of fact is not without difficulty. It rests on the proposition that a functionary may not E lawfully make a decision based upon an error as to the material facts unless the functionary enjoys the power to establish those facts, in which event such an error is not reviewable.

[10] In Dumani [8] the SCA returned to the ambit of review for mistake of F fact. Citing the cautionary remarks in Pepcor, to which I have referred, the court held that where the functionary enjoys the power to make findings of fact, mistake of fact as a ground of review is confined, following English law, to situations in which a mistake is made as to an

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existing A material fact, established in the sense of being uncontentious and objectively verifiable. [9]

[11] Dumani, in my view, enlarges the ambit of review on the grounds of mistake of fact. Even where the functionary enjoys competence as the finder of fact, an error made as to a material fact that was established, in B the requisite sense, is reviewable. The qualification in Pepcor ousted review for mistake of fact, even if material, where the functionary enjoyed the power to determine the relevant facts. In Dumani a functionary, though empowered as a finder of fact, who renders a decision mistaken as to a material fact which was established as uncontentious and C objectively verifiable, has made a reviewable error.

[12] In sum, a court may interfere where a functionary exercises a competence to decide facts but in doing so fails to get the facts right in rendering a decision, provided the facts are material, were established, and meet a threshold of objective verifiability. That is to say, an error as D to material facts that are...