The Constitutional Court did not agree with the High Court or the majority decision of the Supreme Court of Appeal, finding that an organ of state is not bound by PAJA when seeking to set aside its own decision. On the other hand, a minority of the appeal judges favoured a more flexible approach and would have permitted SITA to have the impugned contract reviewed in accordance with the principle of legality, with the result that SITA would not have been required to comply with the 180-day period imposed by PAJA. It therefore dismissed SITA’s challenge.Ī majority of the Supreme Court of Appeal came to the same conclusion as the High Court, deciding emphatically that SITA was bound by, and had failed to comply with, the provisions of PAJA in prosecuting the review. However, the High Court found that SITA had failed to explain its reasons for the lengthy delay and further failed to make out any case for the extension of the 180-day period. Such a review should have been brought within 180 days of the impugned decision, rendering SITA’s review application many months late. The High Court concluded that SITA had to challenge its decision to conclude the agreement by way of judicial review in terms of PAJA. The issue could not be determined at arbitration and SITA approached the High Court to review and set aside the agreement under the principle of legality. When a payment dispute arose in 2013, SITA argued that the agreement with Gijima was invalid for want of compliance with the constitutional prescripts regarding public procurement, in particular, s217 of the Constitution. SITA, however, assured Gijima that proper procedures had been followed and went so far as to provide an unconditional warranty in this regard. Throughout the contract and negotiation period Gijima was concerned that the necessary procurement processes had not been complied with. The agreement was subject to various extensions and revisions. The facts were these: In September 2006 the State Information Technology Agency (SITA), the government’s information technology procurement agency, concluded an agreement in terms of which Gijima, a private company, would provide information technology services to the South African Police Service. The Constitutional Court recently delivered clarity in a landmark judgment: State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Ltd ZACC 40. In that matter Mbha AJ asked: “Is an administrator’s right to review its own decision sourced in PAJA or the broader principle of legality?” The learned Judge elected to leave this question open. This uncertainty was confirmed by the Constitutional Court in City of Cape Town v Aurecon South Africa (Pty) Ltd 2017 (4) SA 223 (CC). In a previous alert, we highlighted a persistent uncertainty for litigants, in particular organs of state, regarding whether or not the Promotion of Administrative Justice Act, 2000 (PAJA) applies when seeking to review their own decisions.
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