Constitutional court of south africa



Download 284.83 Kb.
Page5/5
Date conversion15.05.2016
Size284.83 Kb.
1   2   3   4   5

  1. This confusion is further demonstrated by evidence that appears elsewhere in the record – specifically, in handwritten notes from the Bid Evaluation Committee meeting,5 October 2011, where members of the Committee expressed confusion about the where and when of biometric verification (whether it applied only to annual enrolment, was a requirement or was flexible); in handwritten notes from the Bid Evaluation Committee meeting, 31 August 2011, where Bid Evaluation Committee members said that the requirement of Bidders Notice 2 favoured one bidder and excluded 20 others; and in a 14 November 2011 memorandum, where legal advisors to the Bid Adjudication Committee said that, because proof of life biometric confirmation went to the heart of the specification and the final scoring given to the two service providers, “proper analysis of the intention, meaning and application of [Bidders Notice 2] must be conducted as a matter of urgency.”

96 Supreme Court of Appeal judgment above n 8 at paras 73-5.

97 Hoexter above n 26 at 332-4 and 356-7.

98 New Clicks above above n 19 at para 246.

99 Section 6(2)(c) of PAJA provides: “A court or tribunal has the power to judicially review an administrative action if the action was procedurally unfair”.

100 Section 3 of PAJA in full reads:

“(1) Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.

(2) (a) A fair administrative procedure depends on the circumstances of each case.

(b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1)―

(i) adequate notice of the nature and purpose of the proposed administrative action;

(ii) a reasonable opportunity to make representations;

(iii) a clear statement of the administrative action;

(iv) adequate notice of any right of review or internal appeal, where applicable; and

(v) adequate notice of the right to request reasons in terms of section 5.

(3) In order to give effect to the right to procedurally fair administrative action, an administrator may, in his or her or its discretion, also give a person referred to in subsection (1) an opportunity to―

(a) obtain assistance and, in serious or complex cases, legal representation;

(b) present and dispute information and arguments; and

(c) appear in person.

(4) (a) If it is reasonable and justifiable in the circumstances, an administrator may depart from any of the requirements referred to in subsection (2).

(b) In determining whether a departure as contemplated in paragraph (a) is reasonable and justifiable, an administrator must take into account all relevant factors, including—

(i) the objects of the empowering provision;

(ii) the nature and purpose of, and the need to take, the administrative action;

(iii) the likely effect of the administrative action;

(iv) the urgency of taking the administrative action or the urgency of the matter; and

(v) the need to promote an efficient administration and good governance.

(5) Where an administrator is empowered by any empowering provision to follow a procedure which is fair but different from the provisions of subsection (2), the administrator may act in accordance with that different procedure.”


101 Quinot “Administrative Law” (2010) Annual Survey of South African Law 41 at 63.

102 See Currie above n 52 at 105. See also Baxter Administrative Law (Juta and Co Ltd, Cape Town 1984) at 546.

103 See Minister of Social Development and Others v Phoenix Cash and Carry Pmb CC [2007] ZASCA 26; [2007] 3 All SA 115 (SCA) at para 2:

“[A] tender process which depends on uncertain criteria lends itself to exclusion of meritorious tenderers and is opposed to fairness among tenderers, and between tenderers and the public body which supposedly promotes the public weal. . . . [A] public tender process should be so interpreted and applied as to avoid both uncertainty and undue reliance on form, bearing in mind that the public interest is, after giving due weight to preferential points, best served by the selection of the tenderer who is best qualified by price.”



  1. See also Firechem above n 48 at para 30: “[A] tender should speak for itself. Its real import should not be tucked away, apart from its terms.”

104 Supreme Court of Appeal judgment above n 8 at para 6.

105 Mr Tsalamandris, a SASSA employee, was a member of the support team for the tender evaluation and was responsible for taking minutes at meetings of the Bid Evaluation Committee.

106 Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others [2004] ZACC 20; 2005 (2) SA 359 (CC); 2005 (4) BCLR 301 (CC) at paras 41-3; Knox D’Arcy Ltd and Others v Jamieson and Others [1996] ZASCA 58; 1996 (4) SA 348 (SCA) at 378; and Colman v Dunbar 1933 AD 141 at 161-2.

107 Corruption Watch relies on regulation 16A9.1(b) of the Treasury Regulations, as amended, which states that an accounting officer must―

“investigate any allegations against an official or other role player of corruption, improper conduct or failure to comply with the supply chain management system, and when justified―

(i) take steps against such an official or other role player and inform the relevant treasury of such steps; and

(ii) report any conduct that may constitute an offence to the South African Police Service.”

The Regulations in terms of the Public Finance Management Act, 1999 Government Gazette 25767 of 5 December 2003: Framework For Supply Chain Management similarly state in regulation 9:

“(1) The accounting officer or accounting authority of an institution to which these regulations apply must―



  1. take all reasonable steps to prevent abuse of the supply chain management system;

  2. investigate any allegations against an official or other role player of corruption, improper conduct or failure to comply with the supply chain management system, and when justified―

(i) take steps against such official or other role player and inform the relevant treasury of such steps; and

  1. (ii) report any conduct that may constitute an offence to the South African Police Service”.

108 The second amicus curiae.
1   2   3   4   5


The database is protected by copyright ©essaydocs.org 2016
send message

    Main page