DILEMMA OF ORGANS OF STATE IN THE FACE OF IRREGULAR ADMINISTRATIVE ACTIONS

DILEMMA OF ORGANS OF STATE IN THE FACE OF IRREGULAR ADMINISTRATIVE ACTIONS

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The unavoidable consequence of exercising public power by organs of the state is that in certain instances, the exercise of such public power results in the conclusion of contracts or making decisions that are not in line with the applicable legal framework.

This is mostly prevalent in public procurement where tender awards do not follow section 217 of the Constitution, Public Finance Management Act and/or the Preferential Procurement Policy Framework Act.

The net effect of this is that such contracts and/or decisions are irregular and fall foul of the legality principles that organs of state are required to comply with. The conundrum that is always faced by organs of state in such instances is whether:

• are they compelled to abide by the irregularly concluded contract or irregular decision until such awards are set aside by a court; or

• on their own accord, can they simply ignore such awards and/or contracts to avoid the further incurrence of irregular expenditure or the perpetuation of illegality.

The above conundrum has not been made easy by the series of judgments of both the Supreme Court of Appeal and the Constitutional Court. This article provides a snapshot of some of the principles emanating from these courts and proffers a possible solution out of the conundrum faced by organs of state.

The dominant school of thought emanating from our courts is that: “…the courts alone, and not public officials, are the arbiters of legality” 1 ; “…government officials, or anyone else for that matter, may not usurp that role by themselves of pronouncing on whether decisions are unlawful, and then ignoring them” 2 ; “…organs of state as constitutional citizens should be exemplary in its compliance with the fundamental constitutional principle that proscribes self-help” 3 ; “…an organ of state, like any other party, must therefore challenge an administrative decision to escape its effects” 4 .

MEC for Health Eastern Cape v Kirland Investment (Pty) Ltd 2014 (5) BCLR 547 (CC)

Merafong City Local Municipality v AngloAshanti Limited 2017 (2) BCLR 182

Merafong City

Department of Transport & Others v Tasima & Others 2017 (1) BCLR 1 (CC)

Premier, Free State and Others v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA)

TSHIAMO SEDUMEDI | MANAGING DIRECTOR

The golden thread that runs from these principles suggest that organs of state cannot take the law into their own hands and ignore decisions that they consider to be irregularly concluded until a court of law has pronounced on the matter.

However, in the same vein, our courts have also made pronouncements that may be construed as requiring organs of state not to submit themselves to irregular administrative actions even if they have not been set aside by a court. This school of thought is found in the following remarks from different judgments: “The province was under a duty not to submit itself to an unlawful contract and entitled, indeed obliged, to ignore the delivery contract and to resist Firechem’s attempts at enforcement. Its acts in doing so did not amount to an unlawful repudiation” 5 ; “…there may be occasions where an administrative decision should be treated as invalid even though no action has been taken to strike it down” 6 ; “…Kirland 7 and Oudekraal 8 did not imply or entail that unless court proceedings are instituted to challenge an administrative decision, public authorities are obliged to accept it as valid” 9 .

On the face of it, there seems to be an uneasy tension that exists between these two different schools of thoughts advanced by our courts. Until the Constitutional Court has made a final pronouncement on the reconciliation of the two positions, organs of state are well advised that as constitutional citizens, they have an obligation to promptly institute legal proceedings to allow the courts to be the final arbiters of the legality or otherwise of their irregular administrative actions.

Even in instances where an organ of state has opted to provisionally ignore or resist the implementation of the irregular administrative action, it must still without delay, institute legal proceedings to set aside such irregular administrative decisions. An organ of state cannot simply fold its arms and ignore an irregular decision without a concomitant action of instituting legal proceedings to review and set aside such an irregular decision.

Merafong City

This is reference to MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC)

This is reference to Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA)

Merafong City

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