Merafong City Local Municipality v AngloGold Ashanti Limited [2016] ZACC 35 (24 October 2016)

Public Protector Act 23 of 1994 — personal costs — punitive costs — representative litigant — personal indemnity exceeded —  accountability

Legality review — unreasonable delay — overlooking delay — section 172 of the Constitution — Gijima

Contract awarded for the provision of services to organ of state – no
open tender followed – action brought to enforce impugned contract – collateral challenge – whether court entitled to declare contract invalid and unlawful despite organ of state not having launched counter-application to review and set aside that contract.

Constitutional and administrative law – procurement process – legality review – self-review by an organ of state – proper approach to establish whether irregularities occurred as a matter of fact – evaluation whether irregularities constitute tenable grounds of review – determination of whether there had been deviation from procurement prescripts and, if established, the materiality of such deviation from legal requirements of procurement process – determination of whether the manifest purpose sought to be served by the procurement process had been substantially accomplished.

Delay in instituting a legality review – whether delay unreasonable and if so, whether delay should nevertheless be condoned – legality self-review not subject to strictures of s 7(1) of Promotion of Administrative Justice Act 3 of 2000 – nevertheless legality self-review required to be instituted without unreasonable delay – whether delay is unreasonable is a question of fact – whether unreasonable delay should be condoned entails a value judgment dictated by constitutional value