Thebe Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National Bargaining Council for the Road Freight Industry and Another

• Jurisdiction: South Africa

Thebe Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National Bargaining Council for the Road Freight Industry and Another
2009 (3) SA 187 (W)

2009 (3) SA p187

Citation	2009 (3) SA 187 (W)
Case No	39919/2008
Court	Witwatersrand Local Division
Judge	Willis J
Heard	February 18, 2009
Judgment	February 25, 2009
Counsel	BE Leech for the applicants.; PM Kennedy SC (with H Barnes) for the first respondent.; No appearance for the second respondent.

Flynote : Sleutelwoorde F

Administrative law — Administrative action — Review — Grounds — Rationality G — Full import of rationality or 'rational connectivity' test, viz that decision reviewable if no reasonable decision-maker could have reached it, not yet clear — Semble: Test onerous — 'Rationality' suffused into 'reasonableness' — If persons aggrieved at substantive (as opposed to procedural) aspects of administrative action only entitled to base his/her case on whether decision one that no reasonable decision-maker could reach, it H would have chilling effect — If such the test, it will in practice be very difficult to successfully challenge these decisions.

Headnote : Kopnota

Semble: Navsa AJ in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC) (2008 (2) BCLR 158; [2007] 12 BLLR 1097; (2007) 28 ILJ 2405) in paras 89 and 112 seems to summarise the rights to I fair administrative action in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) as being a reflection of that which appears in s 33(1) of the Constitution in these very terms, viz the right to administrative action that is: (i) lawful; (ii) reasonable and (iii) procedurally fair. It seems it may be gleaned from the Sidumo case that in regard to administrative action, PAJA is a codification of administrative law that supersedes all J

2009 (3) SA p188

A other earlier law which may be in conflict with it (except, of course, the Constitution itself). In view of the fact-complex of Sidumo, this seems to entail that, in the absence of procedural unfairness, or a failure by the administrative decision-maker to comply with an applicable statutory provision, extraneous to PAJA, a person aggrieved at administrative action B can only succeed if he or she can persuade a court that the administrative decision-maker's decision was one that no reasonable decision-maker could reach. It is not clear what the impact of Sidumo on the 'rationality' or 'rational connectivity' test has been. The silence of the Constitutional Court in the Sidumo case on the rationality test seems to have been both deliberate and significant in more ways than one. The first is: why did they not apply it when it appears so clearly in s 6(2)(f)(ii) of PAJA? The second C is that Cameron JA, as he then was, writing the judgment for a unanimous SCA in Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration 2007 (1) SA 576 (SCA) ([2007] 1 All SA 164), specifically based his decision in that very case — which the Constitutional Court reversed — on the 'rationality' principle. It seems that in regard to administrative action, at least, the Constitutional Court may D have taken the decision to suffuse 'rationality' into 'reasonableness'. Admittedly, despite the undoubtedly fine intentions of those in the government, legislature and judiciary who brought terms such as 'rationality' and 'rational connectivity' into vogue and usage, previous debates about 'rational connectivity' have become quite contorted and, at times, almost so lurid as to make one blush. Nevertheless, if all that a person aggrieved at the E substantive aspects of administrative action may hang his or her case on is whether the decision was one that no reasonable decision-maker could reach, this may be rather chilling. It seems that the rest of s 6 of PAJA (apart from that relating to procedural aspects) may have become, as a result, mere excrescences or garnishes — it is the 'reasonableness' test (cast in an onerous F form for challengers such as the applicants in this case) that seems to prevail. If the test in a challenge to an administrative decision is whether the decision was one that no reasonable decision-maker could reach, it will, in practice, be very difficult to succeed. (Paragraphs [23] - [24] at 200B - 201E.)

Cases Considered

Annotations

Reported cases G

Southern African cases

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687): dictum in para [44] applied

Bel Porto School Governing Body and Others v Premier, Western Cape, and H Another 2002 (3) SA 265 (CC) (2002 (9) BCLR 891): considered

Chairperson: Standing Tender Committee v JFE Sapela Electronics (Pty) Ltd [2005] 4 All SA 487 (SCA): considered

Logbro Properties CC v Bedderson NO and Others 2003 (2) SA 460 (SCA): considered

Merafong Demarcation Forum and Others v President of Republic of South I Africa and Others 2008 (5) SA 171 (CC) (2008 (10) BCLR 969): dictum in paras [62] - [66] applied

Metro Projects CC and Another v Klerksdorp Local Municipality and Others 2004 (1) SA 16 (SCA) ([2004] 1 All SA 504): considered

Millenium Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo Province and Others 2008 (2) SA 481 (SCA): dicta in paras [22] and [23] J applied

2009 (3) SA p189

Milnerton Lagoon Mouth Development (Pty) Ltd v Municipality of George and A Others [2005] JOL 13628 (C): considered

Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd and Another; Minister of Environmental Affairs and Tourism and Others v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA): dictum in para [47] followed

National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA): B dictum in para [26] applied

Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) ([2004] 3 All SA 1): dicta in paras [25] - [37] applied

Palaborwa Mining Co Ltd v Cheetham and Others (2008) 29 ILJ 306 (LAC): considered

Pharmaceutical Manufacturers of SA and Another: In re Ex parte President of the C Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241): dictum in para [90] applied

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A): dictum at 634H - 635C applied

Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration 2007 (1) SA 576 (SCA) ([2007] 1 All SA 164): D considered

S v Kgafela 2003 (5) SA 339 (SCA): referred to

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC) (2008 (2) BCLR 158; [2007] 12 BLLR 1097; (2007) 28 ILJ 2405): dicta in paras [89] and [112] discussed and applied

Silverstar Development Ltd v Gauteng Gambling Board and Others E 2004 (2) SA 289 (T): considered

Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C): dictum at 235E - G applied.

Foreign cases F

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA) ([1947] 2 All ER 680): referred to

Cassell & Co Ltd v Broome and Another [1972] AC 1027 (HL) ([1972] 1 All ER 801): considered.

Unreported cases G

Digital Horizons (Pty) Ltd v SA Broadcasting Corporation and Another (WLD case No 2008/19224, Malan J): referred to

New Reclamation Group (Pty) Ltd v Eskom Holdings Ltd and Kwanda Ferro-Alloy African Resources (Pty) Ltd (WLD case No 07/27391, Blieden J): considered and compared.

Statutes Considered

Statutes H

The Constitution of the Republic of South Africa, 1996, s 33(1): see Juta's Statutes of South Africa 2007/8 vol 5 at 1-25

The Promotion of Administrative Justice Act 3 of 2000, s 6(2)(f)(ii): see Juta's Statutes of South Africa 2007/8 vol 5 at 1-251. I

Case Information

Application for the review and setting-aside of an award of a tender. The facts appear from the reasons for judgment.

BE Leech for the applicants.

PM Kennedy SC (with H Barnes) for the first respondent.

No appearance for the second respondent. J

2009 (3) SA p190

Cur adv vult. A

Postea (February 25).

Judgment

Willis J:

B [1] This case is concerned with a public tenderer's lament. The applicants wish to set aside the award by the first respondent to the second respondent of the contract to manage the first respondent's 'HIV-Aids Wellness Programme'. The applicants believe the contract should have been awarded to them. This HIV-Aids Wellness Programme provides C Aids education, HIV-Aids testing and, more recently, antiretroviral treatment to employees in the road freight industry. The contract commenced operation on 1 December 2008.

[2] This court has to determine the application for relief in part B of the notice of motion, in which the applicants seek an order, the relevant D portions of which read as follows:

1.

Reviewing and setting aside the decision of the first respondent, which was communicated to the applicants during or about June 2008, not to appoint a service provider to provide an HIV-Aids wellness programme to the employees of the road freight industry, pursuant to a tender process initiated by the first respondent E during June alternatively July 2007.

2.

Reviewing and setting aside the decision of the first respondent, taken during or about May 2008, to exclude the applicants from any further tender process for the appointment of a service provider to provide an HIV-Aids wellness programme to the employees of the road freight industry.

3.

F Reviewing and setting aside the decision of the first respondent to appoint the second respondent as a service provider to provide an HIV-Aids wellness programme to the employees of the road freight industry.

4.

Directing the first respondent, together with such other respondents who may...