Manong & Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape, and Others (No 2)

• Jurisdiction: South Africa
• Judge: Froneman J
• Judgment Date: 24 April 2008
• Docket Number: 02/08
• Hearing Date: 24 April 2008
• Counsel: Mr Manong for the applicant.NJ Sandi and GH Bloem for the first respondent.No appearance for the second, third, fourth or fifth respondent.
• Court: Equality Court

Froneman J:

Introduction to the issues

[1] This judgment concerns matters brought before court under the provisions of the Promotion of Equality and Prevention of Unfair D Discrimination Act (the Equality Act). [1] A person who institutes proceedings in terms of the Equality Act, based on an allegation that a provision of the Act has been contravened, is referred to in the Act as a 'complainant'. [2] The complainant in this matter is a commercial company whose complaints relate to the allocation of tenders by the first respondent for the construction of a number of roads in the province. It E contends that the tender process is unfair under the Equality Act because it amounts to indirect discrimination against previously disadvantaged persons. The unfair discrimination in the process is said to lie in the requirements that successful bidders must have a history of at least seven years' involvement in similar projects, must have completed at least five F similar projects, and that technical members of its staff must have a minimally prescribed level of engineering experience. These requirements, although non-discriminatory on their face, are said to effectively exclude previously disadvantaged persons or groups, who did not have the opportunity to gain such experience earlier, from entrance to the public road works construction industry and thus amounts to indirect, G but still unfair, discrimination. In addition to these grounds the complainant also alleges that the procurement process is flawed in that it is insufficiently transparent in a number of respects; not cost-effective; contrary in some aspects to its enabling legislation; and that the complainant's disqualification at an early stage of the process was H actuated by improper motives on the part of officials of the first respondent, resulting from the complainant's earlier refusal to involve itself in corrupt practices involving those officials.

[2] The complainant brought the application as a matter of urgency, initially seeking relief in two parts. The first part sought temporary relief, I pending determination of the relief sought in the main application. I gave judgment on the application for temporary relief earlier and, apart from the question of costs relating to those proceedings, nothing further needs

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to be said about that part of the application. What remains for A determination is the final relief sought by the complainant.

[3] The complainant delivered a formal notice of motion seeking (1) the review, correction and setting-aside of the decision to disqualify from further consideration its tender for the relevant road works; (2) the review, correction and setting aside of the award of the tenders to the B successful bidders; [3] (3) an order declaring the contracts resulting from the allocation of tenders to be null and void; (4) orders declaring the procedure followed in awarding the tenders to be inconsistent with s 217 of the Constitution and unfairly discriminatory under the Equality Act; and (5) a direction that the first and second respondents' procurement C procedures and practices should undergo an 'audit' in a manner that the court must prescribe.

[4] The first and second respondents oppose the relief sought on the basis, firstly, that this court does not have the power or competence to grant relief in the form of administrative review; secondly, that the D correct procedures under the Equality Act have not been followed; and, thirdly, that there is no substance in the alleged complaints of unfair discrimination and unlawfulness in the procurement process. I will deal with the first two together before turning to a more detailed examination of the facts and the substantive merit of the application. For the moment E I will simply draw attention to the fact that the complainant's grounds for the review relief it seeks are not simply restricted to the provisions of the Equality Act, but include reliance on general constitutional provisions which do not relate solely to equality.

Review jurisdiction F

[5] The judicial authority of the Republic is vested in the courts, established in terms of the Constitution. [4] These courts are the Constitutional Court, [5] the Supreme Court of Appeal, [6] the High Courts, [7] the magistrates' courts [8] and any court established or recognised by an Act of Parliament, including any court of a 'status similar to either the High G Courts or the Magistrates' Courts'. [9] Under the common law only the then Supreme Court had the inherent power to review and set aside the exercise of public power of other branches of government under certain circumstances. But they had 'to claim space and push boundaries' [10] in order to do so. That is no longer the case. The Constitution has defined H

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A the role of the courts in relation to the other arms of government. [11] By virtue of the separation of powers and the judicial authority vested in the courts by the Constitution they now have an extended power of review to control the exercise of public power [12] in accordance with constitutional principles. More specifically in relation to public administrative B action, the courts exercise that power of review in accordance with a person's fundamental right to just administrative action under s 33 of the Constitution, as given expression to in the Promotion of Administrative Justice Act (PAJA). [13] The High Courts, the magistrates' courts (in certain respects), [14] and any independent and impartial tribunal established by national legislation for the purpose of judicially reviewing an C administrative action in terms of PAJA, [15] may judicially review administrative action in terms of the provisions of s 6 of PAJA.

[6] Where does a High Court or magistrates' court functioning as an equality court for the area of its jurisdiction fit into the judicial system D under the Constitution? Section 16 of the Equality Act provides for every High Court and certain magistrates' courts to be 'equality courts for the area of their jurisdiction' and for judicial officials to be allowed to act in them only after undergoing training courses under s 31(4).

[7] There appear to be three possibilities which would place these courts E within the judicial system with judicial authority under the Constitution. The first is that they remain High Courts or magistrates' courts constituted under s 166(c) and (d) of the Constitution, but with extended jurisdiction and powers in terms of the provision of the Equality Act. The second is that they may be courts of a status similar to a High Court or magistrates' court, established under s 166(e) of the F Constitution. The third possibility is that they may be other courts recognised or established in terms of an Act of Parliament under s 166(e) of the Constitution, but which do not have a status similar to the High Courts or the magistrates' courts. [16]

G [8] Another, fourth, possibility exists, but not as a court falling within the judicial system with judicial authority under the Constitution. Parliament may provide for an independent and impartial tribunal to deal with equality issues, which may also possibly be clothed with authority under ss 1 and 6 of PAJA to have the power to review administrative action H under PAJA. The Constitution does not prohibit the establishment of

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these kinds of institutions and they may in appropriate instances be used A to afford people the fundamental right of access to justice, to have legal disputes resolved by the application of law under s 34 of the Constitution. Generally speaking, however, they would not have judicial authority under the Constitution to determine constitutional matters. [17]

[9] Examples of each of these possibilities can be found in parliamentary B legislation. The High Court exercises admiralty jurisdiction as a High Court in terms of the provisions of the Admiralty Jurisdiction Regulation Act. [18] That appears to fit the first category mentioned above. The Labour Court and Competition Appeal Court are courts established as courts with a status similar to that of a High Court in terms of their C founding legislation. [19] The Land Claims Court is a court which has powers to the exclusion of any court 'contemplated in section 166(c), (d) or (e) of the Constitution'. [20] They are thus courts that fit in with the second category and, in the case of the Land Claims Court, its structure also seems to encompass the third category. The Tax Courts, [21] Commissioners of Patents [22] and the Competition Tribunal [23] may fall within D either the third or fourth category - it is not necessary here to decide which one. [24] The Commission for Conciliation, Mediation and Arbitration [25] is a tribunal which falls into the fourth category of an independent, impartial tribunal without judicial authority under the Constitution. [26]

[10] It is apparent from the provisions of ss 16 and 31 of the Equality Act E that equality courts are not separate courts of 'a status similar to either the High Courts or the Magistrates' Courts' in terms of s 166(e) of the Constitution. Unlike the explicit provisions establishing the Labour Court, Competition Appeal Court and Land Claims Court, there is no explicit attempt in the Equality Act to establish a separate court in terms F of the provisions of s 166(e) of the Constitution, nor is there provision for the separate appointment of judges and judicial officers in accordance with the Constitution, as there are in those Acts. Judges of the High Courts and courts of a similar status are appointed by the President on the advice of the Judicial Service Commission, [27] and other judicial G

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A officials are appointed in terms of national legislation which must ensure that their appointment, promotion, transfer, dismissal or disciplinary...