![]() In the second scenario the court would have had to consider whether the conclusion of the settlement contract was legal in so far as a state contract was offered as damages. The first scenario would entail that there is an administrative act which could be set aside upon judicial review. In other words, whether it was an illegal administrative act, which could be set aside because it had become legally binding and enforceable, or whether it was an illegal decision in a settlement agreement offering Gijima another state contract as damages for the breach of contract. There was a lot of confusion about the nature of the decision that was taken. Other aspects of the dispute have been resolved less satisfactorily. The Constitutional Court fortunately corrected the incorrect interpretation by the courts a quo and held that section 6(1) of the PAJA must be interpreted through the lens of section 33(1) of the Constitution. In this case, Gijima as a juristic person would be entitled to assert the right to administrative justice. Section 8(4) of the Constitution further specifies that a juristic person is entitled to such rights to the extent “required by the nature of the rights and the nature of the juristic person”. The word “everyone” therefore indicates that the right of administrative justice is available to everyone. Some rights are available only to citizens, children or persons belonging to specific groups such as religious, linguistic or cultural groups. Not every right in the Bill of Rights is available to everyone. Section 33(1) reads as follows: “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.” Section 33(3) determines that the legislature should adopt legislation that provides “for review of administrative action by a court or, where appropriate, an independent and impartial tribunal” to give effect to the rights in subsections 1 and 2 (this is the right to be given reasons). Section 6(1) specifies: “Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.”īoth the High Court and the Supreme Court of Appeal interpreted the phrase “any person” literally and did not contextualise the concept in the light of section 33(1) of the Constitution which confers the right to administrative justice upon “everyone”. One of the points of dispute was whether the remedy to take administrative action on review in terms of section 6 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) is available only to the bearers of the right to administrative justice or whether it includes state organs. The contract was offered as damages for the breach of another state contract to provide such services to the South African Police Service (SAPS), which had been terminated prematurely. The facts in the Gijima case were briefly that the State Information Technology Agency (SITA) concluded a state contract with Gijima Holdings to provide IT services to the Department of Defence but failed to follow the procurement proceedings prescribed by section 217 of the Constitution and legislation regulating procurement. Share 1 Facebook 0 Tweet 0 Pin 0 Print 0 Email 1 LinkedIn 0
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