The High Court found that the decision to award and renew the contract qualified as administrative action in terms of the Promotion of Administrative Justice Act (“ PAJA”), 10 which thus had to be challenged within the statutory 180-day time limit. SITA subsequently approached the High Court to have the contract set aside, nearly two years after the contract was awarded. The arbitrator ruled that he lacked jurisdiction to hear the matter. When Gijima instituted arbitration proceedings over alleged non-payment, SITA claimed that the contract was invalid owing to non-compliance with section 217 of the Constitution 9 (which, among other things, provides that contracts for goods or services must be entered into in accordance with a system that is fair, equitable, transparent, competitive and cost-effective). In the Gijima judgment (delivered in late 2017) the Constitutional Court assessed the validity of a contract between the State Information Technology Agency SOC Limited (“ SITA”) and Gijima Holdings (Pty) Limited (“ Gijima”), under which SITA agreed to appoint Gijima as the information technology service provider for the Department of Defence and the KwaZulu-Natal Health Department. In the past two years, the Constitutional Court has delivered two judgments navigating this tension: State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Ltd (“ the Gijima judgment”) 7 and the more recent case of Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd (“ the Buffalo City judgment”). 5 In support of its view, the Court has relied on the constitutional imperative 6 to declare unlawful conduct invalid. While it is an accepted principle that judicial review proceedings ought to be brought in a timely manner, 4 the Constitutional Court has for the most part been reluctant to allow procedural obstacles (such as time bars) to prevent it from reviewing the lawfulness of an exercise of public power. Sometimes, self-review proceedings are brought months (or even years) after the contracts are concluded and implemented. 3 While this may be seen as an important means of promoting transparency and accountability, it also gives rise to some uncertainty regarding the validity of existing public sector contracts. Where public procurement processes appear to have been irregular, the implicated Government entities have increasingly turned to the courts to have these irregularities reviewed and set aside (“ self-review”). President Cyril Ramaphosa’s inaugural promise of a “new dawn”, animated by a spirit of ‘thuma mina’, 1 belatedly seems to be prompting some Government officials to investigate and expose irregularities in their departments. Recent judicial developments, including a court-ordered Commission of Inquiry into State Capture, appear to have been met, finally, with serious political will to root out corruption. South Africa is grappling with large-scale public-sector corruption, which has severely undermined the Government’s public procurement system. Author: Peter Leon, Ernst Muller and Natasha Rachwal
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