Self-reviews of unlawful exercise of public power by organs of state have taken the center stage in administrative law litigation in recent times.[1] Arguably, this may have a correlation to the Executive’s calls to end egregious malfeasance in public procurement, the state’s efforts to restore the legitimacy of public administration and not least, the laudable and consistent expose of irregular expenditure by the Auditor General.[2] This is a positive development, in line with the country’s constitutional aspirations. However, self-reviews are commonly brought up short by delays, and inadequate explanations given for those delays.
This article deals with the question of whether the interests of justice is an adequate all-encompassing standard with which to judge delays in bringing about self-reviews. For instance, should the interests of justice trump all other considerations where the delay is occasioned by serious malfeasance on the part of the state actors responsible for the impugned decision?
The Legality Constraint
To be clear, our law recognises self-reviews initiated by an organ of state to review and set aside its own unlawful exercise of public power on the grounds of illegality. Section 1(c) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) prescribes that the governance of the Republic is premised on the rule of law. That the rule of law is supreme is a grundnorm upon which our constitutional democracy is founded. The Legislature and the Executive in every sphere are constrained by the principle of legality, they may exercise no more power nor may they perform any more functions than they are authorised by law. It is so that the exercise of public power is only legitimate where lawful.[3].
It is settled law that self-reviews by an organ of state can only be brought under the legality principle and not under the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) which is legislated standard for judicial reviews.[4]
The Delay Rule
Self-reviews, however, have an often-insurmountable limitation in that whilst there is no prescribed time within which they may be brought[5], they must be initiated within a reasonable time.[6] Essentially, organs of state are not permitted to handle the affairs of the state lackadaisically, letting the clock tick away, only to wake up and seek a review and the setting aside of their unlawful actions after an inordinate lapse of time. In Asla the court held that state officials ought to know sooner that their employees procured goods without following procurement prescripts.
Increasingly Courts are presented with undue delays in commencing self-reviews, often brought by way of a counter-application in response to a claim for contractual damages and/or specific performance. Arguably, the delay is a symptom of a wider problem of entrenched maladministration, turpitude on the part of state officials overseeing the impugned contracts, and complicity of the contractors. More often than not, the delays in such instances are unreasonable and lack a full explanation by the organ of state involved.
As mentioned above, our courts have the discretion to condone delays or dismiss the application if the delay is inordinate or unreasonable.[7] The test involves two legs, firstly examining whether the delay is reasonable or unreasonable, and secondly, if the delay is unreasonable, the assessment of whether the court’s discretion should be exercised to overlook the delay.[8]
The first leg entails a factual enquiry upon which a value judgment is made in light of all the relevant circumstances of the case.[9] The second leg is a factual multi-factor and context-sensitive enquiry in which the following range of factors are considered:[10] the length of the delay; the full explanation given for the delay; the potential prejudice to the parties as well as the possible consequences of setting aside the impugned decision; the nature of the impugned conduct; the conduct of the applicant and the prospects of success on the merits.
The granting or refusal of condonation is not a mechanical process but one that involves a balancing of competing factors. For example, very weak prospects of success may not offset a full, complete and satisfactory explanation for a delay, while strong prospects of success may excuse an inadequate explanation for the delay, only to a point.[11] The discretion of the court is not open-ended and must be informed by the values of the Constitution.
The Interests of Justice
Beyond this, I would suggest that there is a justification for the elevation of the interests of justice, when a court considers whether to condone a delay in bringing a self-review.
In Valor IT when presented with an egregious flouting of section 217 of the Constitution, Ponnan J found that even though the explanation for the delay was wanting, the interests of justice, in the light of strong prospects of success, required condonation to be granted. By contrast in Khumalo in the context of employment law, the apex court declined to condone an inordinate delay of 20 (twenty) months in bringing the review to court, finding that the delay was reprehensible. The Khumalo decision must be understood in the context of labour law where certain provisions of the Labour Relations Act prescribe time limits for reviews, as well as consideration of the resultant prejudice to the employees who were the beneficiaries of the impugned conduct, through no fault of their own. In Valor IT the government department stood to suffer massive prejudice of over a hundred million rands if no condonation had been granted and an invalid decision had been allowed to stand.
Furthermore, the Supreme Court of Appeal in SIU held that even if there is no basis to overlook the delay, the Court is nevertheless enjoined by Section 172(1)(a) of the Constitution to declare invalid any conduct that is inconsistent with the Constitution to the extent of its inconsistency.[12] Moreover, given that state officials are obliged to report or rectify any irregularities that they uncover to promote a culture of lawfulness, accountability, openness, and transparency in the exercise of public power, it could be difficult for a Court to disregard those constitutional imperatives in light of the delay.[13]
In the context of public procurement contracts, where a court is faced with a manifestly egregious contract that contravenes constitutional procurement prescripts, section 172(1)(a) of the Constitution offers a catch-all net for the impugned contract to be invalidated even if the explanation given for the delay is inadequate or not-existent.
Section 172(1)(b) of the Constitution may ameliorate the consequences of such invalidation with a just and equitable order, arguably, only where it cannot be established that the contractor was complicit or aware of the contraventions of procurement statutes.
What holds up self-reviews?
The reality faced by Courts in self-reviews is that the impugned contracts in self-reviews are often tainted with a degree of turpitude on the part of the state actors or the external contractor or both. This may very well explain the delays in bringing matters to Court. If the state official responsible for the conclusion of the unlawful contract still occupies the position, they are likely to conceal their complicity in the unlawfulness and would therefore not commence a self-review. Where the state official has left the position but still holds some level of sway over persons who have authority, the current administration would still be reluctant to bring about a self-review. In both scenarios a self-review is unlikely to see the doors of court or tribunal or would be brought after an inordinate delay. While this conflict of interest is unlikely to be explicitly stated as the reason for the delay, an inference can be drawn from the facts of the case. A similar scenario played out in Valor IT, where Ponnan J remarked that drawing inferences from the facts of the case to deduce the reasons for the delay was far from satisfactory, but it was necessary in the interests of justice.[14]
Conclusion
I am of the view that considering the unambiguous constitutional obligations to act on unlawfulness and rectify irregularities whenever they occur, condoning a delay advances legality and the interests of justice. Thus, the interests of justice justifiably trump the procedural rule of no delay.
[1] In Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited [2019] ZACC 15; 2019 (4) SA 331 (CC) (Asla) at para 111, http://www.saflii.org/za/cases/ZACC/2019/15.html Ponnan J remarked that “self-review is a novel, but burgeoning species of judicial review that has claimed the attention of this Court in recent decisions”.
[2] The Minister of Finance, Mr Enoch Godongwana, in the 2022/2023 Budget Speech “called for Accounting Officers to ensure that their procurement processes have integrity, provide value for money and are free from interference from politically connected persons and bidders”.
[3] Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) (Fedsure) at para 58.http://www.saflii.org/za/cases/ZACC/1998/17.html
[4] State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited (CCT254/16) [2017] ZACC 40; 2018 (2) BCLR 240 (CC); 2018 (2) SA 23 (CC) (14 November 2017) (Gijima).http://www.saflii.org/za/cases/ZACC/2017/40.html
[5] This position is contrary to reviews brought under the PAJA, which prescribes no later than 180 days of receipt of knowledge of the administrative action.
[6] Khumalo and Another v Member of the Executive Council for Education, KwaZulu-Natal (CCT 10/13) [2013] ZACC 49; 2013 (3) BCLR 333 (CC); 2014 35 ILJ 613 (CC); 2014(5) SA 579 (CC) (18 December 2013) (Khumalo) at para (Khumalo) at 44.http://www.saflii.org/za/cases/ZACC/2013/49.html
[7] Khumalo and Another v Member of the Executive Council for Education, KwaZulu-Natal (CCT 10/13) [2013] ZACC 49; 2013 (3) BCLR 333 (CC); 2014 35 ILJ 613 (CC); 2014(5) SA 579 (CC) (18 December 2013) (Khumalo) at para 44.
[8] Khumalo at 49; Valor IT at para 28.
[9] Khumalo supra at para 49;
[10] Valor IT v Premier of North West Province & Others (322/19) [2020] ZASCA 62 (Valor IT) at para 30; Asla at para 82.https://www.saflii.org/za/cases/ZASCA/2020/62.html
[11] Valor IT supra at para 38.
[12] Special Investigating Unit and Another v Engineered Systems Solutions (Pty) Ltd (Case no 216/2020) [2021] ZASCA 90 (25 June 2021) at para 29 (SIU) at para 31.http://www.saflii.org/za/cases/ZASCA/2021/90.html
[13] Khumalo supra at paras 36 and 38.
[14] Valor IT supra at para 33.
By: Luyanda Mgudlwa
Member of the Bridge Group of Advocates
