In a July 2025 judgment, the Supreme Court of Appeal reaffirmed that the Promotion of Administrative Justice Act (PAJA) is the appropriate mechanism for litigants to challenge administrative action.
The matter arose from a tender issued by a provincial department for waste management services, to which 15 bidders responded. One day after the expiry of the tender validity period, the provincial department attempted to extend the tender validity period. The incumbent service provider consented to the extension and continued providing services during the extended period.
Approximately 11 months later, the incumbent service provider launched an urgent application seeking to interdict the provincial department from proceeding with any tender award, and in the alternative, sought a declaration that the tender had lapsed before the attempted extension. Before the hearing in the High Court, it emerged that the tender had been awarded to two other bidders.
On appeal, the court held that the High Court had erred in setting aside administrative action (the tender award) through the declaration sought rather than by way of a review in terms of PAJA. The court emphasised that a litigant should not be allowed to bypass PAJA’s procedural safeguards by seeking declaratory relief instead. Having done so in this matter, the incumbent service provider impermissibly circumvented:
- the need to request condonation for instituting review proceedings after the 180-day period prescribed by PAJA; and
- the production of the record of decision which would have allowed for a proper ventilation of the issues.
The court remarked that the incumbent service provider “opportunistically” sought declaratory relief at a belated stage, in circumstances where it could have timeously sought a review of the invalid extension of the tender, most likely so that it could continue providing services during the extended period.
The court accordingly upheld the appeal and replaced the High Court’s order with an order dismissing the incumbent service provider’s application.