Airports Company South Africa v Tswelokgotso Trading Enterprises CC

• Jurisdiction: South Africa
• Citation: 2019 (1) SA 204 (GJ)

Airports Company South Africa v Tswelokgotso Trading Enterprises CC
2019 (1) SA 204 (GJ)

2019 (1) SA p204

Citation	2019 (1) SA 204 (GJ)
Case No	19548/2015
Court	Gauteng Local Division, Johannesburg
Judge	Unterhalter J
Heard	June 22, 2018
Judgment	June 22, 2018
Counsel	E Mokutu for the applicant; D Watson for the respondent.

Flynote : Sleutelwoorde

Review — Grounds — Legality — Mistake of fact — Requirements.

Headnote : Kopnota

Acsa applied to review its decision to award a tender to Tswelokgotso. [*] The review was based on the principle of legality (see [2]).

It C asserted the decision was based on, and flawed, by a mistake of fact (see [3]).

A decision based on a mistaken fact is reviewable, where the fact concerned is material and established. (Established in the sense of objectively verifiable, and uncontestable.) (See [10] – [12].)

Acsa asserted two errors.

Firstly, D a failure to inform bidders of a certain requirement (to complete and return an addendum) (see [17]); and secondly, its failure to follow a requirement it had specified. (A bidder issued with a letter of non-conformity would be disqualified. Tswelokgotso was issued such a letter, but nonetheless awarded the tender.) (See [18].)

Held, that the first was a failure of procedural fairness (see [19], [26 – [27]); and E regarding the second, that it was not 'established', in the required sense, that Tswelokgotso was issued a letter of non-conformance (see [39] – [40]).

Application dismissed (see [43]).

Cases cited

Southern Africa

Albutt v Centre for the Study of Violence and Reconciliation, and Others F 2010 (3) SA 293 (CC) (2010 (5) BCLR 391; [2010] ZACC 4): referred to

Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social Security Agency, and Others 2014 (1) SA 604 (CC) (2014 (1) BCLR 1; [2013] ZACC 42): applied

Chairman, State Tender Board v Digital Voice Processing (Pty) Ltd; G Chairman, State Tender Board v Sneller Digital (Pty) Ltd and Others 2012 (2) SA 16 (SCA): referred to

Chairpersons' Association v Minister of Arts and Culture and Others 2007 (5) SA 236 (SCA): referred to

Democratic Alliance v President of the Republic of South Africa and Others H 2013 (1) SA 248 (CC) (2012 (12) BCLR 1297; [2012] ZACC 24): referred to

Dumani v Nair and Another 2013 (2) SA 274 (SCA): dictum in para [32] applied

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458; I [1998] ZACC 17): referred to

Government Employees Pension Fund and Another v Buitendag and Others 2007 (4) SA 2 (SCA): referred to

2019 (1) SA p205

Judicial Service Commission and Another v Cape Bar Council and Another A 2013 (1) SA 170 (SCA) (2012 (11) BCLR 1239; [2012] ZASCA 115): referred to.

Minister of Defence and Military Veterans v Motau and Others 2014 (5) SA 69 (CC) (2014 (8) BCLR 930; [2014] ZACC 18): referred to

Pepcor Retirement Fund and Another v Financial Services Board and Another 2003 (6) SA 38 (SCA) ([2003] 3 All SA 21; [2003] ZASCA 56): B considered

Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241; [2000] ZACC 1): referred to

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059; C [1999] ZACC 11): referred to

State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC) (2018 (2) BCLR 240; [2017] ZACC 40): referred to.

England

E v Secretary of State for the Home Department [2004] EWCA Civ 49 ([2004] QB 1044; D [2004] 2 WLR 1351): referred to.

Case Information

E Mokutu for the applicant.

D Watson for the respondent. E

An application to review a decision. The application was dismissed with costs (see [43]).

Judgment

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

2019 (1) SA p206

Unterhalter J

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

2019 (1) SA p207

Unterhalter J

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...