Minister of Finance v Afribusiness NPC [2022] ZACC 4 (16 February 2022)

Administrative law – legality review – self-review by state organ
– delay – whether delay unreasonable – whether delay should be overlooked

Constitutional law – COVID-19 pandemic – regulation made under Disaster Management Act 57 of 2002 (the Act) – prohibiting sale of tobacco and related products – challenged as infringement of fundamental rights – dignity, bodily and psychological integrity, freedom of trade and deprivation of property – limitation under s 36 of Constitution – to reduce strain on health system – not established – interpretation of ss 27(2)(n) and 27(3) of the Act – tobacco ban unnecessary – appeal dismissed.

Administrative law – review – principle of legality – imposition of conditions of licences – condition that licensee must maintain a level 4 broad-based black economic empowerment certification – jurisdictional facts giving rise to power to impose such condition not satisfied – absent jurisdictional facts Board not empowered to impose impugned conditions – decision set aside on review.

Compensation for services delivered pursuant to an unlawful tender process — court not placed in a position to decide substantive basis for compensation — in the interests of justice not to delay compensation — unacceptable conduct for organs of state to use own unlawful conduct to avoid compensating innocent contractors