Appeal against cancellation of tender was dismissed as decision constituted executive function and not administrative function

Supreme Court of Appeal of South Africa: In an appeal against the cancellation of the tender by the South African Police Services (SAPS) and legality and rationality of the decision, the Court held that the decision was in regard to the executive function and not in the administrative function and therefore Promotion of Administrative Justice Act 3 of 2000(PAJA) could not be applied in the appeal for review of decision. Further, on the question of legality, rationality or reasonableness, the Court found no reasons in support of the appeal, and therefore it was dismissed.

The tender in question dated 13.2.2009 was published by the State Information Technology Agency(SITS) on behalf of the South African Police Service (SAPS) for an integrated mobile data command and control system. The recommendation committee and the procurement committee had recommended the tender to be awarded to the appellant-company. By 26.6.2012 the company received no indication from SITA or SAPS concerning the tender and sent a letter to both in the same regard. On 8.8.2012 it was notified that the tender had been canceled due to the time lapse in the evaluation process and the business requirements of SAPS has changed in the mean time. The appellant questioned the cancellation on grounds of validity of the cancellation of the tender, the substantive grounds for the cancellation and fairness of the procedure.

The Court relying on Tshwane City & others v. Nambiti Technologies (Pty) Ltd [2015] ZASCA 167 held that the decision of cancellation was not administrative action and was not susceptible of review in terms of Promotion of Administrative Justice Act. Therefore, the level of scrutiny for irrationality under principle of legality required only a connection between the action and the reason given for it. In further deliberation it was held the cancellation was not fraught due to procedural irregularity, and an argument of non-publication of cancellation could not be entertained at that instant as the same was not raised in the affidavit and would be prejudicing the respondents. Further it was held that while a reason of the time lag would not be reasonable ground for cancellation, it was not the only ground as the change in the business requirements of the SAPS was the reason for cancellation, which demonstrated a change of circumstance and there was no longer a need for the command solution. Therefore, the appeal was dismissed. [SAAB Grintek Defence v. South African Police Service (316/2015) [2016] ZASCA 104, decided on 5 July 2016]

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