State Information Technology Agency Soc Limited v Gijima Holdings (Pty) Ltd [2017] ZACC 40 (14 November 2017)

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

Public procurement – contract awarded for the provision of services to
organ of state – no open tender process followed, as required – agreement unlawful for want of compliance with legal prescripts – further contracts for provision of services also unlawful – effect of settlement agreement – court cannot validly make settlement
agreement an order if settlement agreement unlawful.

Legality review – delay – whether delay unreasonable – whether delay
should be condoned.

Review under principle of legality and Promotion of Administrative Justice Act 3 of 2000 – rotation of country’s strategic oil stock – decisions and resultant transactions reviewed and set aside – just and equitable relief – factors relevant to assessment – misconduct by state officials – contracting parties innocent – compensation for out-of-pocket expenses appropriate – appeal dismissed.

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

Legality review – state organs as co-applicants – validity of decisions to
award tenders – validity of pursuant contracts – whether delay unreasonable –
whether delay should be overlooked

Administrative law – lease declared unlawful – equitable relief under s 172(1)(b) of the Constitution – true discretion – test for interference on appeal – no misdirection on fact or law – no basis to interfere.