INTRODUCTION TO THE DELAY RULE
AN EVALUATION OF GIJIMA AND BUFFALO CITY
- Introduction
- Gijima background and facts
- The Gijima journey: High Court, Supreme Cour of Appeal and the Constitutional Court 9
- General Gijima critiques
- Gijima’s impact on the delay rule
- Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd
- Majority opinion
- Minority opinion
- The Buffalo City legacy
- Conclusion
In answering the question, the court interpreted section 33 of the Constitution,40 and reflected on who the fundamental rights in the Constitution are supposed to protect. Where the court applied the public interest exception and held that a state body may review its own decision when acting in the public interest. Gijima's suggestion that PAJA is not available to a state body wishing to review its own decision, and the eradication of the deferment rule, have caused quite a stir.
If the court finds no basis to overlook the delay, it cannot consider the request for revision and the case is closed. This points to the fact that the court appreciates the danger of eradicating the delay rule in South African administrative law.
THE GIJIMA PRINCIPLE IN LOWER COURTS
- Introduction
- Dissenting judgements
- Total avoidance of applying Gijima
- Incorrect Interpretation of the Gijima principle
- Conclusion
The total avoidance of the Gijima principle is another trend that has emerged from the Supreme Court of Appeal. Challenges to the precedent set by Gijima have not only been evident in the decisions of the Supreme Court of Appeal. In my view, this case is a clear example of the Supreme Court's complete misinterpretation of the Gijima principle.
The crux of the matter, however, concerns the disregard of government procurement laws by state bodies. The case before him arose from deficiencies in the oversight of the board of the state body. That change lies in the language of the court and the way the court treats these types of litigants.
I believe that the Constitutional Court in Gijima has effectively developed common law based on section 172 of the Constitution. It has not been stated that the delay rule is contrary to the Constitution. I argued that the postponement rule serves a legitimate purpose: to give effect to the certainty and irrevocability of decisions and to Article 217 of the Constitution.
In this paper, it was argued that the rule on delay is not only a procedural limitation, but also ensures the finality of decisions, which is a principle of the rule of law.
THE IMPACT OF THE GIJIMA JUDGEMENT
Introduction
In my view, the abolition of the delay rule has the potential to deter potential providers of basic services from contracting with the state. It is also a rule of law that undue delay should not be tolerated, and the court must therefore exercise vigilance, consideration and decency before overlooking a late assessment. Regardless of the answer to the second leg of the Khumalo test, the court can invoke section 172 and overturn the decision.
The court does so without any reference or express intention to the correctness or incorrectness of the Khumalo principle. The confusion that remains is the existence of the delay rule in our law; its relevance remains intact. I emphasize that the court is within its power to change the Khumalo test if it sees fit, but the unintentional erasure of the delay rule has far-reaching consequences as previously pointed out.
During the development of the common law, the Constitutional Court in Gijima, when faced with a delayed self-review application, held that the court could nevertheless be compelled to declare a decision illegal in accordance with section 172(1)(a) of the Constitution even if there is no basis for overlooking the unreasonableness of the delay. I have argued that Gijima's erasure of the delay rule is firstly threefold, it promotes arbitrary and opportunistic attempts by government officials to overturn decisions. I argued that the delay rule is still relevant and necessary in administrative law as it complements section 217 and section 237 of the Constitution and ensures finality of decisions, which is a principle of the rule of law.
Freeman, R “The Rights of the State and the State of Rights in State Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd” (2019) Constitutional Court Review 521.
Arbitrary an opportunistic attempt to undo decisions
Undermining legality and finality of decisions
It guarantees certainty to both the grantor and the recipient of rights, because once a decision has been made, it cannot be revoked by the decision maker.223 There is a well-known tension between the legal principle and the principle of certainty. My argument is that if the delay rule is eradicated, it means that a state organ can at any given time seek to overrule its own decision, thereby undermining the principle of functus officio in the process. The doctrine of functus officio considers decisions to be final and binding until set aside by a competent court.
224 R Henrico “The Functus Officio Doctrine and Invalid Administrative Action in South African Administrative Law: A Flexible Approach Speculum Juris 115 at 117-118. In my view, the relationship between functus officio and the delay rule is twofold. This increases legal certainty because a decision remains valid and binding until it is set aside by a competent court.
Attempts to overturn a decision must adhere to the reasonable time frame for initiating a review procedure. The Gijima Principle undermines the functus officio doctrine and the purposes of certainty and finality it serves, by effectively eliminating the time limit in which someone can initiate a review procedure and successfully overturn a decision. As a result, the status quo is that decisions can be set aside long after they have been made and the parties have complied with the terms of the contract.
In addition to non-payment of invoices, the series of cases I discussed above illustrated a trend where a government agency contracts for goods and services and a service provider delivers under that contract, only for the government to backtrack on its decision by to attempt to have the contract set aside by the court.
Conclusion
It complies with Section 27, which guarantees the right of access to adequate food and water.228 The South African Human Rights Commission's research report on water and sanitation links the right to water and sanitation to other fundamental rights, such as the right to life , dignity, healthcare, housing and physical safety. The report identified poor construction and maintenance, lack of oversight of service projects and payment of outside contractors for services rendered as threats to the rights of poor communities. While a service provider may receive partial payment of contract performance and operational costs, as in Gijima, this can be of little or no consolation.
The recovery of what has been performed under a contract differs significantly from the profit a supplier would have accrued if the contract remained in place. Leaving the fate of a service provider at the mercy of a government agency that may or may not reverse its decision is not conducive to security in government contracts. Second, it perpetuates the disregard of public procurement laws by making it so easy for the state to undo decisions.
Finally, it undermines the finality and certainty of decisions and thus can discourage potential suppliers from concluding contracts with the state.
RECOMMENDATIONS
- Introduction
- The doctrine of precedent and overturning erroneous judgments
- Good-faith principle
- Narrative must be re-written
- Non-absoluteness of section 172 and 173 of the Constitution
- Intervention by the legislature
- Conclusion
Because as things stand now, despite what the answer is to the second question of the Khumalo test, the court can still consider the review and overrule the decision. Secondly, since the deferral rule was abolished, the court has not given reasons for its eradication. Thirdly, the court does not intend to provide a solution to the conciliation, on the one hand by not letting procedural obstacles stand in the way of overturning an illegal decision and on the other hand by maintaining the delay rule as an essential condition. characteristic of the rule of law.
It's what Boonzaier called an epidemic of cases the court must tame. In the absence of adequate reasons for the delay, the court effectively finds bad faith on the part of the state body.253 My opinion is that the lack of reasons should be equated with bad faith. A certain narrative about self-examination is driven by the attitude of the court, which has an impact on how the court is perceived by the public.
I believe that a change in narrative can be beneficial to the development and success of the principle of good faith. This section implements Article 27 of the Constitution by guaranteeing the provision of social security services to the vulnerable. Earlier in part 2 I argued that the development of common law lies in the inherent power of the court. When they do this, however, she must be careful that important procedural rules, such as the delay rule, are not eradicated in the process.
However, I have previously argued that in developing the common law in terms of s 173, the court obliterated the delay rule.
CONCLUSION
This lacuna has been shown to cause confusion in the lower courts, as exemplified by misinterpretation or avoidance of the Gijima principle. Black Sash Trust v Minister of Social Development and Others (Freedom Under Law Intervening BCLR 1472 (CC). Central Energy Fund SOC Ltd and Another v Venus Rays Trade (Pty) Ltd and Others 2020 ZAWCHC 164.
Central Energy Fund SOC Ltd and Another v Venus Rays Trade (Pty) Ltd and Others 2020 ZAWHC 184. Chairman, Standing Tender Committee and Others v JFE Sapela Electronics (Pty) Ltd and Others 2008 (2) SA (SCA). Ex-parte President of the Constitutional Assembly: In re-certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC).
National Education and Allied workers Union mod Minister of Public Service and Administration and Others, South African Democratic Teachers Union and Others mod Department of Public Service and Administration and Others; Public Servants Association and Others mod Minister of Public Service and Administration and Others; National Union of Public Service and Allied Workers Union mod Minister of Public Service and Administration and Others 2022 (43) SA 1032 (CC). De Beer, M “En ny rolle for princippet om lovlighed i forvaltningsret: State Information Technology Agency SOC LTD v Gijima Holdings (Pty ) Ltd “2018 4 South African Law Journal 613. Henrico, R “The Functus Officio Doctrin and Invalid Administrative Action in South African Administrative Law: A Flexible Approach" (2020) Speculum Juris 115.
Hoexter, C "South African Administrative Law at a Crossroads: PAJA and the Principle of Legality" available at https://adminlawblog.org cora-hoexter-south-african-administrative-law-at-a-crossroads-the -paja -and-the-principle-of-legality/ (accessed: 06 April 2022).
