Agribee Beef Fund (Pty) Ltd and Another v Eastern Cape Development Agency and Another (CCT 26/22) [2023] ZACC 6; 2023 (5) BCLR 489 (CC); 2023 (6) SA 639 (CC) (1 February 2023)

Agribee Beef Fund (Pty) Ltd and Another v Eastern Cape Development Agency and Another (CCT 26/22) [2023] ZACC 6; 2023 (5) BCLR 489 (CC); 2023 (6) SA 639 (CC) (1 February 2023)

The Constitutional Court held that the matter was moot because the contract had expired and a successful appeal would not reinstate it. The applicants did not require a successful appeal to pursue compensation for performance under the contract, and their assertion of a claim for punitive constitutional damages was unsupported. None of the interests of justice factors justified hearing the matter. The Biowatch rule did not apply as the applicants sought to avoid, not enforce, constitutional obligations. Leave to appeal was refused and costs awarded to the respondents, including the costs of two counsel.

Citation
[2023] ZACC 6
Parties
Applicant: Agribee Beef Fund (Pty) Limited; Applicant: Berlin Beef (Pty) Limited; Respondent: Eastern Cape Rural Development Agency; Respondent: Member of the Executive Council for Rural Development and Agrarian Reform, Province of the Eastern Cape
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
1 February 2023
Case Number
CCT 26/22
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Constitutional Court After Supreme Court of Appeal Decision
Outcome
Leave to appeal is refused with costs, including the costs of two counsel.
Judges
Zondo CJ, Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mbatha AJ, Rogers J, Tshiqi J
Legal Topics
Public Procurement, Section 217 Constitution, Tripartite Agreement, Mootness, Costs Award, Constitutional Damages
Constitutional Law Civil Procedure Commercial and Corporate Public Procurement Section 217 Constitution Tripartite Agreement Mootness Costs Award +1 more

Case Brief

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Parties

Agribee Beef Fund (Pty) Limited

Applicant

Berlin Beef (Pty) Limited

Applicant

Eastern Cape Rural Development Agency

Respondent

Member of the Executive Council for Rural Development and Agrarian Reform, Province of the Eastern Cape

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Constitutional Court After Supreme Court of Appeal Decision

Legal Issues

  1. 1 Is a tripartite agreement between two organs of state and a private entity subject to section 217(1) of the Constitution?
  2. 2 Does the agreement constitute procurement of goods and services requiring compliance with constitutional and statutory procurement processes?
  3. 3 Is the matter moot and, if so, do the interests of justice require the Constitutional Court to grant leave to appeal?

Ratio Decidendi

The Constitutional Court held that the matter was moot because the contract had expired and a successful appeal would not reinstate it. The applicants did not require a successful appeal to pursue compensation for performance under the contract, and their assertion of a claim for punitive constitutional damages was unsupported. None of the interests of justice factors justified hearing the matter. The Biowatch rule did not apply as the applicants sought to avoid, not enforce, constitutional obligations. Leave to appeal was refused and costs awarded to the respondents, including the costs of two counsel.

Court Disposition

Leave to appeal is refused with costs, including the costs of two counsel.

Orders

  • Leave to appeal is refused with costs, including the costs of two counsel.