Gijima hig court zacc11/12/2022 ![]() Is everyone wide enough to include the state? Section 33(3)(b) provides that national legislation, in terms of s33(3), must impose a duty on the state to give effect to rights in s33(1) and (2). The section is concerned with everyone's rights to procedurally fair, reasonable and lawful administrative action. To answer this question, the court considered both PAJA and the Constitution, particularly s33 and who has the obligation to give effect to the stated rights. Gijima argued that PAJA is applicable as the decision to award the contract to Gijima had the capacity to affect its rights. It was further contended that even if PAJA did apply, the 180-day rule provided for in s7 of PAJA, did not apply to organs of state seeking to review their own decision.Ĭounsel for Gijima contended that the central question is whether an organ of state is required to explain the delay for instituting review proceedings under PAJA or the principle of legality where it seeks to set aside its own administrative decision. The appeal was dismissed with costs as the court held that litigants cannot rely on section 33(1) of the Constitution of the Republic of South Africa, 1996 (the Constitution) to review unlawful administrative action, as PAJA was the correct route for that purpose.Ĭounsel for SITA argued that the conclusion of the agreement does not constitute administrative action as it did not adversely affect Gijima's rights under the agreement. The court held that the conclusion of the settlement agreement had the capacity to affect Gijima's rights, as Gijima would have to relinquish any damages claim that it would have as a result of the cancellation of the agreement. On appeal to the SCA, Justice Cachalia writing for the majority held that the decision by an organ of state to award an agreement for services does constitute administrative action in terms of PAJA, and that the wording of s6(1) of PAJA, which allows for any person to institute proceedings in a court or tribunal for judicial review, is wide enough to include an organ of state. SITA had appealed the decision of the Pretoria High Court, which had ruled that the decision to award the Department of Defence (DoD) an agreement and the three extensions (the agreement) thereof qualified as administrative action in terms of the provisions of PAJA and, further, that the review was brought way out of the 180-day period provided for in terms of s7(1) of PAJA. In a unanimous judgment, written by Justices Madlanga and Pretorius, it was held that an organ of state cannot utilise PAJA for purposes of reviewing and setting aside its own decision and it must do so through the legality route. The Constitutional Court in the case of State Information Technology SOC Limited v Gijima Holdings (Pty) Ltd ZACC 40 was seized with this vexed question. May an organ of state invoke the Promotion of Administrative Justice Act 3 of 2000 (PAJA) or the legality review route in seeking to set aside its own decision? Published Works | Without Prejudice | March 2018 PAJA vs legality ![]()
0 Comments
Leave a Reply.AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |