Department commended for seeking judicial review of extension to R120m tender

The high court has commended the department of human settlements for challenging an extension to a R120m tender it awarded to a construction company. The tender was supposed to end in 2019 but a previous head of department extended it into 2022.

“An organ of state is not only entitled but also constitutionally obliged to apply for the review of its own decision,” the Mahikeng high court ruled.

The department awarded King Associates Engineering a tender in 2016 to provide and oversee a project management unit for three years for construction-related activities around the country.

Two weeks before the contract was due to end in 2019, the department said its then head of department, Neo Sephoti, extended the relationship with the company by almost two more years.

In 2022, after reviewing its documents, department officials concluded the extension was unlawful as it didn’t adhere to proper procedures and wasn’t part of a “fair, equitable, transparent, competitive and cost-effective” procurement system.

The matter was then taken to the high court, but King Associates and Sephoti requested opposed a request for certain documents from the department before proceeding with the case.

The department argued the respondents’ request was misplaced since the department had brought the case seeking to overturn its own decision. The court concurred and ruled the department wasn’t obliged to hand over the documents.

Acting high court judge Okgabile Dibetso-Bodibe noted that when an organ of state wanted to re-evaluate or overturn one of its own decisions, the law holds that it must first approach a court. “Until the administrative decision alleged to be invalid is brought before the court for review, it remains valid and enforceable,” the judge wrote.

Case to continue

The court did not pronounce on whether the department was correct about the extensions; only that the department was correct in approaching it in the first place. Whether the extensions are unlawful will be decided at a date yet to be set down. However, Dibetso-Bodibe’s ruling paves the way for the department’s case to continue.

She also criticised the respondents’ request for documents.

“One can only imagine what would happen if the discovery of documents were to be left at the disposal of litigants ... fishing expeditions would be freely whisked through the window,” she wrote.

That would delay matters unnecessarily, she added, noting that the department is “eager to have the review application determined”. Furthermore, the respondents had been given “an opportunity to access the specified documents” but had “failed to seize” it.

Dibetso-Bodibe therefore dismissed the requests by King Associates Engineering and Sephoti and the matter can now proceed to another judge to determine whether the department’s allegations that the extensions were unlawful are correct.

King Associates Engineering and Sephoti were ordered to pay the costs of the case and file whatever they needed for the matter to proceed.

Self-review by government and officials has long been praised by the courts. Most famously, former President Nelson Mandela took himself on review towards the end of his presidency after he signed off on a law related to the control of dangerous drugs. The Constitutional Court he had made a mistake “through no fault of his own” and had approached the courts correctly. It confirmed his view and overturned his decision.

moosat@businesslive.co.za