South African National Roads Agency Limited v City of Cape Town (66/2016) [2016] ZASCA 122 (22 September 2016)

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

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 – Promotion of Administrative Justice Act 3 of 2000 (PAJA) – application for review of administrative action – delay in instituting application – s 7(1) of PAJA – no agreement between the parties under s 9(1) for extension of period prescribed in terms of s 7(1) – nor application to court under s 9(2) for extension of the prescribed 180 day period.

Procurement by municipality of debt management services – quintessentially a constitutional issue – factors to be applied in considering delay in self-review by public authority – contract invalid for want of compliance with applicable regulations and constitutional imperatives – s 172(1)(b) applied – just and equitable remedy to avoid denying accrued rights – part of contract not set aside – concern about frequency of late self-review applications where contract periods have run their course and no sanctions for aberrant officials.