In an important judgment, the Constitutional Court emphasises that fundamental rights are primarily meant to protect human beings against the state. All the rights contained in our Bill of Rights are very much fundamental rights, including the right to just administrative action enshrined in section 33.
South Africa’s administrative law benefits natural and juristic private persons. The state is the bearer of obligations and neither the state nor an organ of state can seek to review its own decision under the Promotion of Administrative Justice Act (PAJA) because they are not the beneficiaries of that fundamental right.
Section 33 imposes a duty on the state to give effect to the right to lawful, reasonable and procedurally fair administrative action and to provide written reasons for any such action taken. PAJA cannot therefore be used by an organ of state wanting to have its own decision reviewed.
The court refused PAJA relief to the State Information Technology Agency SOC Limited when it sought to set aside an IT services contract granted to Gijima Holdings (Pty) Ltd without following proper procurement processes.
According to the principle of legality (which is an incident of the rule of law and a founding value of our Constitution), the exercise of a public power at variance with that principle and inconsistent with the Constitution is invalid. The legality principle may therefore be the basis for a review and setting aside the unlawful exercise of those powers (in this case improper award of the IT services contract). An organ of state may use the principle of legality to seek the review of its own decision.
But in this case SITA took 22 months before approaching the court for a review. Reviews are required to be instituted without undue delay to ensure certainty and to promote legality. The delay was unexplained and there was no basis on which the court could exercise a discretion in favour of SITA to grant it full relief from the consequences of the illegal contract.
Although the contract was declared invalid, the court was empowered by section 172 of the Constitution to make ‘any order that is just and equitable’. Justice and equity dictated that, despite the invalidity of the award of the agreement, SITA was not entitled to benefit from having given Gijima assurances as to the legality of the contract and from its own undue delay in instituting review proceedings. The court declared the contract invalid but ordered that the declaration of invalidity of the contract must not have the effect of divesting Gijima of rights to which it might have been entitled but for the invalidity. The extent of those rights has yet to be determined.