Cell C Service Provider (Pty) Ltd v MEC: Free State Provincial Government: Department of Treasury (2812/2018) [2019] ZAFSHC 45; [2019] 3 All SA 80 (FB) (16 May 2019)

Cell C Service Provider (Pty) Ltd v MEC: Free State Provincial Government: Department of Treasury (2812/2018) [2019] ZAFSHC 45; [2019] 3 All SA 80 (FB) (16 May 2019)

The court found that the applicant failed to join the accounting officers of the relevant provincial departments, who had a direct and substantial interest in the outcome, rendering the application fatally defective for non-joinder. The purported service of third party notices was irregular, as they were served after the close of pleadings without leave of the court. On the merits, the court held that the decision to participate in the national transversal contract was an executive decision, not administrative action as defined by PAJA, and thus not reviewable. The applicant had no existing contracts with the departments at the relevant time, and its rights were not adversely affected....

Citation
[2019] ZAFSHC 45
Parties
Applicant: Cell C Service Provider (Pty) Ltd; Respondent: MEC: Free State Provincial Government: Department of Treasury
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
16 May 2019
Case Number
2812/2018
Procedural Posture
Review Application / Opposed Motion; Judgment on Merits and Preliminary Points
Outcome
Application dismissed with punitive costs.
Judges
Rampai
Legal Topics
Promotion of Administrative Justice Act, Non Joinder, Public Procurement, Access to Information, Executive Decision Making, Separation of Powers
Administrative Law Civil Procedure Commercial and Corporate Promotion of Administrative Justice Act Non Joinder Public Procurement Access to Information Executive Decision Making +1 more

Case Brief

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Parties

Cell C Service Provider (Pty) Ltd

Applicant

MEC: Free State Provincial Government: Department of Treasury

Respondent

Procedural Posture

Review Application / Opposed Motion; Judgment on Merits and Preliminary Points

Legal Issues

  1. 1 Whether the applicant was entitled to reasons and documents for the respondent's decision to migrate to the national transversal contract.
  2. 2 Whether the applicant's omission to join the accounting officers of the relevant provincial departments constituted fatal non-joinder.
  3. 3 Whether the decision to participate in the national transversal contract constituted administrative action reviewable under PAJA.

Ratio Decidendi

The court found that the applicant failed to join the accounting officers of the relevant provincial departments, who had a direct and substantial interest in the outcome, rendering the application fatally defective for non-joinder. The purported service of third party notices was irregular, as they were served after the close of pleadings without leave of the court. On the merits, the court held that the decision to participate in the national transversal contract was an executive decision, not administrative action as defined by PAJA, and thus not reviewable. The applicant had no existing contracts with the departments at the relevant time, and its rights were not adversely affected....

Court Disposition

Application dismissed with punitive costs.

Orders

  • The application is dismissed.
  • The applicant is directed to pay the costs on the scale as between attorney and client.