The short answer will be to bring the application as soon as reasonably possible and as soon as the applicant obtained knowledge of facts supporting the unlawful administrative action.

Judicial Review proceedings

It has been alluded to that Judicial Review is arguably the most effective judicial weapon against an unlawful administrative decision.

It is essential to act timeously when considering judicial review and interim interdictory proceedings.

The issue of urgency is decided by the sitting judge and it is essential to make a comprehensive application laying out the reason.

INTRODUCTION

1. Caroline de Villiers Attorneys (“CDV”), has been involved in numerous cases where the award of a tender has come into question. Most recently, CDV was successful in representing The Document Warehouse, (“TDW”) by way of interdicting SASSA from implementing its award to appoint Metrofile as its service provider for the co-sourcing of beneficiary records management services for a period of three years. A copy of this judgement is available at the following link : https://www.saflii.org/za/cases/ZAGPPHC/2023/1857.html

2. A question often posed to CDV is when it is appropriate to launch an urgent interim interdict pending the outcome of a review application in respect of an impugned tender.

3. Before dealing with the high-level merits, the review process and nature of an interdict will be briefly discussed.

4. A review is a process whereby the court will assess an administrative action taken by a State body ( ie this includes a decision to award a tender) to ensure that such action is line with the constitution and applicable legislation. An interim interdict is a court order which by way of a court interdict stopping your opponent from implementing the award into until the review has been determined by the court.

5. Prior to making a decision whether interdictory proceedings and/or launching a review is an appropriate legal remedy, CDV will first assess the merits of the case. This will include an assessment of the relevant tender documentation and possible deficiencies alleged in your competitor’s tender submission (“its bid”) and the public body’s decision (“the award”). This assessment will focus on foremost: Can I obtain interdictory relief (in the form of prohibiting the implementation of the award), pending the outcome of the review proceedings? Should the facts allow, this application is simultaneously brought in two parts, a Part A and a Part B application.

6. Part A will seek that the relevant Department and/or Public Body concerned, be interdicted and restrained from implementing the award until the finalisation of Part B ( ie the review application), thus prohibiting your competitor from implementing the tender award until the review has been determined.

7. Part A of the Application will thus not purely be a request for an interdict and will be structured in such a manner as to seek the following relief:

1. 1. 1 That an interdict be granted pending the finalisation of the Review Application (Part B), at a later stage;

1. 1. 2 That the time period established in Section 5 of the Promotion of Administrative Justice Act 3 of 2000, (“PAJA”), (the request of written reasons for the award), be reduced in accordance with the provisions of Section 9;

1. 1. 3 That the written reasons for the award so granted be produced within a set period of time;

1. 1. 4 That the full record of proceedings be made available to the parties under the auspices of Rule 53; and

1. 1. 5 That the applicant’s rights to add to, vary or supplement its papers on receipt of the record be reserved in full, put differently, that upon receipt of your opponent’s bid submission, you will be permitted to supplement your case.

8. Part B of the application will only be heard at a later date and will deal with the setting aside of the award in its totality. To “showcase” the effectiveness of the above principles, CDV will use a recent case in which it was successful, as a case study.

DOCUMENT WAREHOUSE (PTY) LTD VS SASSA and OTHERS ( 2023/088251)

9. As one of the leading record management companies in its field, the Document Warehouse (“TDW”) has been a service provider of the South African Social Security Agency (“SASSA”) for more than 7 years. TDW required urgent relief in respect of a tender awarded to Metrofile (Pty) Ltd (“Metrofile”).Both TDW and Metrofile submitted bids to SASSA and originally, the tender was awarded to Metrofile.

10. In the hearing of the matter before the Honourable Madam Justice Potterill (“Judge Potterill”), it became apparent that the legal battle between two service providers in the industry would all come down to the legal aspects of adequately protecting the right to fair and just administrative action.

11. The triumph of TDW found its basis in overcoming the aspect of urgency, proving that irreparable harm would undoubtedly ensue the award of the tender to Metrofile, and showing that TDW had good prospects of success in its application for review to follow (its Part B review).

12. The methodology followed in the TDW matter provided successful relief and can certainly be regarded as one of the most efficient manners of obtaining appropriate and immediate interdictory relief pending the hearing of a review application.

WHY CONSIDER JUDICIAL REVIEW?

13. Judicial review is arguably the most effective judicial weapon against maladministration and potential abuse of power. Section 33 of the Constitution of the Republic of South Africa (“the Constitution”) provides that every person has a right to administrative action that is lawful, reasonable and procedurally fair. The Constitution is enforced by the implementation of PAJA which provides for the opportunity and possibility of taking an administrative decision on review.

14. It follows that judicial review proceedings could be brought in a variety of ways. Section 217 of the Constitution provides an aggrieved applicant with the opportunity to bring a review based on the principle of legality, whereas Section 6 of PAJA further sets out numerous grounds for review, which includes when an administrative decision has been taken unlawfully. The question to bring review proceedings is therefore a factual one.

15. It generally follows that one would first seek immediate interdictory relief prior to the review being heard. In the TDW matter the implication of Section 33 of the Constitution was adequately addressed, and although Section 33 of the Constitution protects the right to fair administrative action by way of judicial review, Judge Potterill correctly expressed the view that the interpretation of Section 33 of the Constitution does not imply that an aggrieved applicant must suffer potential harm until the judicial review can be concluded sometime later. Put differently, she held that the implementation of the award should be interdicted, pending the outcome of the review proceedings.

16. The answer therefore lies in a judicial review proceeding which is coupled with an interim interdict pending the finalisation of the review proceedings. This approach therefore not only protects an applicant’s right to fair administrative action but provides real, immediate and adequate relief until a competent court can make a decision regarding the review itself.

THE BEST APPROACH TO JUDICIAL REVIEW

17. The leading case law on judicial review proceedings supports the notion that an application for judicial review, coupled with an application for an interim interdict carries a higher probability of success, regarding Part B (the review) if it may be shown regarding Part A (the interdictory relief).

18. The Uniform Rules of Court further sets out the procedure for a review application under the guidance of Rule 53, which provides the applicant with the opportunity to receive a copy of the full record that sought to be corrected (i.e. your opponent’s bid submission). Undoubtedly, in the haste of bringing the application for judicial review, some information may not yet be at your disposal. It therefore follows that under the provisions of Rule 53(4) you are further provided with an opportunity to supplement its papers within 10 (ten) days after receipt of the record of proceedings.

19. A “Rule 53 review” therefore not only provides you with an opportunity to adequately protect your rights, but it also provides the opportunity to properly assess your competitor’s bid submission and to determine the best way forward including the possible supplementation to your application, if any and pursuant to receiving the record.

20. As alluded to herein above, the TDW matter proves the notion that a Rule 53 review coupled with an application for an interdict is arguably regarded as the most efficient and strategic way forward. This is achieved by breaking the Notice of Motion into two parts, a Part A and a Part B. Although contained in the same application, Part A of the Notice of Motion will set out the application for an interdict, whilst Part B will be the formal Rule 53 review. Bearing in mind the applicant’s opportunity to supplement its papers upon receipt of the Record, the Founding Affidavit in support of Part A of the application will predominantly address the aspect surrounding the interdict.

21. Although Part A of the application will address the requirements for granting an interdict, (i.e. that the applicant must show it has a prima facie right even if it is open to some doubt, that there exists an apprehension of irreparable harm if the interdict is not granted, that the balance of convenience favours the granting of the interdict, and, that there exists no alternative remedy available to the applicant), the issue of review is not left in isolation.

22. In the matter of Vea Road Maintenance and Civils (Pty) Ltd and The South African National Road Agency SOC Ltd and another, the Honourable Madam Justice Bezuidenhout reiterated the long-standing legal principle that a court adjudicating on an interdict application is required to peek into the grounds of review raised in the main application and assess their strength of the review. Moreover, she confirmed that only if a court is convinced that the review is likely to succeed, may it be appropriate to grant the interdict sought.

23. In the aforesaid matter the Honourable Madam Justice noted that at the time of adjudicating over the matter, there was “no review to peep into as the applicant has chosen not to follow the rule 53 route, combined with interdict proceedings”.

24. The Part A and Part B approach subsequently allowed TDW to prove the connection between the requirements for an interdict and the reasonable prospects of success of the review, the most important of which TDW was able to prove that should the interdict fail, there will undoubtedly be an immediate and irreparable harm of which the proverbial egg cannot be unscrambled.

WHEN CAN I BRING AN URGENT APPLICATION?

25. The short answer will be as soon as reasonably possible and as soon as the applicant obtained knowledge of facts supporting the unlawful administrative action.

26. The TDW matter successfully followed the above approach. It allows the applicant to first seek its relief out of court under the auspices of Section 5 of PAJA, whereafter it can proceed on an urgent basis whilst protecting the right to supplement its papers.

27. It is essential to act timeously when considering judicial review and interim interdictory proceedings. In the TDW matter the applicant first conducted various site inspections during a two-week period based on the suspicion that Metrofile might not be in a position to readily implement the awarded tender. During this time, CDV addressed a Section 5 letter to SASSA requesting written reasons for the award as well as a copy of the tender record in order to adequately assess the available options. Within approximately one month since TDW received knowledge that the tender was subsequently awarded to Metrofile, the urgent application for review was served on all parties.

28. Judge Potterill found regarding the issue of urgency that TDW will suffer undue irreparable harm and that the two-week period of internal investigations by TDW does not negate the urgency of the matter.

CONCLUDING REMARKS

29. It has been alluded to that Judicial Review is arguably the most effective judicial weapon against an unlawful administrative decision.

30. The first step is to urgently set up a consultation to explore the appropriate legal strategies, which depending on the facts and the circumstances, may warrant instituting an urgent interdict application pending the outcome of a review application.

31. The TDW matter followed the aforesaid process. Should you have any queries regarding the above or require legal advice concerning administrative action please contact CDV Attorneys.