A service of public bodies exercising public powers and performing public functions. Mostly, the functions so performed constitute decisions of these bodies, normally being an organ of state or other body having certain powers received from empowering legislation. When decisions are taken unfairly or unlawfully, it should be reviewed by a court of law .
Voluntary Disclosure: Section 22 of TAA
In this matter the dispute entails the review and set aside of a decision refusing the tax payer to grant him voluntary disclosure relief in terms of section 229 of Tax Administration Act 28 of 2011 (“TAA”). In addition to certain ancillary orders, the taxpayer also sought a declaratory order that he has complied with statutory requirements for a voluntary disclosure.
Administrative Decision by the Municipality
In this matter, our firm represent MTN (Pty) Ltd opposing an application for review and setting aside of an administrative action taken by the City of Cape Town on 19 March 2015 to approve MTN to construct a free standing telecommunication base station.
In this matter, the Applicant contend that MTN’s permit for the construction of a free standing telecommunication base station should be reviewed and set aside on the basis that the City of Cape Town has failed to consider the Applicant’s objections and also complied to comply with its policies.
Our firm has placed before the Court that the City of Cape Town’s administrative decision is lawful in that it has considered objections and gave reasons for its decision. Further, that the administrative decision was empowered by statutes. Section 13 of the National Building Regulations and Standard Act No. 103 of 1977 (as amended) grants the City of Cape Town powers to grant an exemption of building from National Building Regulations for minor building work. The matter has been argued and we currently await judgment.
Legality and/or Constitutionality of Section 67(3) of the TAA
In this matter, the dispute entails the constitutionality of Section 67(3) of the Tax Administration Act of 2011 (TAA). The legal question is whether Section 67(3) of the TAA is unconstitutional insofar as it does not permit the disclosure of Taxpayer information on the basis of public interest.
Public Procurement of Services by an organ of State
In this matter the department had cancelled various contracts issued pursuant to a tender on the basis that the contracts were entered into unlawfully, unenforceable and void abnitio. The department argued that there was no compliance with the peremptory provisions of legislation and regulation governing public procurement.
In this matter, our firm contended that a public procurement system (tender) constitutes an administrative action and thus the department had no right to unilaterally cancel the contracts without acquiring a legal remedy through a judicial process. In other words, unilateral cancellation of the contract without approaching a court of law through a review constitutes self – help and thus unlawful. In light of our firm’s submissions, the department capitulated and ultimately settled the matter in favour of our client.
Amistad / PETROSA SOC Ltd: Arbitration
The matter involves a claim in the sum of R300 million rand pertaining to cancellation of a contract as a result of PETROSA’s failure to adhere to public procurement legislation. PETROSA had issued a tender and thereafter appointed AMISTAD to construct an emergency rescue chartering vessel for purposes of implementing a floating liquefied natural gas terminal at Mossel bay, which would have extended the life of its gas – to – liquids refinery.
Immediately after entering into a six year contract with Amistad, PETROSA realised that Mossel Bay was not suitable for a floating terminal. However, instead of approaching a court to terminate the agreement or to negotiate with Amistad for a settlement, PETROSA unlawfully cancelled the contract. A public tendering process constitutes an administrative action and thus binding on parties until set aside by a court of law.
The Citizen 1978 (Pty) Ltd and Others v McBride 2011 (4) SA 191 (CC)
In this matter, our firm represented Mr. Robert McBride in an appeal brought before the Constitutional Court by the Citizen 1978 (Pty) Ltd and Others. This case turns on the effect of amnesty granted to Mr. McBride under the provisions of Section 20 of the Promotion of National Unity and Reconciliation Act 34 of 1995 (Reconciliation Act). The statute provides that once a person convicted of an offence with a political objective has been granted amnesty, any entry or record of the conviction shall be deemed to be expunged from all official documents and―the conviction shall for all purposes, including the application of any Act of Parliament or any other law, be deemed not to have taken place.
The Constitutional Court had to determine what effect does the fact that a conviction is deemed ―for all purposes not to have taken place have on the law of defamation? The main question before the Court was whether a person convicted of murder, but granted amnesty for the offence, can later be called a ―criminal and a ―murderer in comment opposing his appointment to a public position. The case had to address charged issues about the meaning of the legislative and social compact that ended apartheid, and the extent to which our Constitution guarantees freedom of expression, including freedom of the press and other media.
The matter relates to 2003 when The Citizen newspaper published a number of articles and editorials questioning McBride’s candidacy for the head of the Ekurhuleni metro police. The articles said McBride was unsuitable because he was a “criminal” and a “murderer”. The articles referred to the 1986 bombing of the Magoo’s Bar/Why Not Restaurant on the Durban beachfront. The explosion killed three young women and injured 69 other people. McBride was found guilty of murder and sentenced to death but in 1997 he applied for amnesty under the Reconciliation Act, which was granted in April 2001.
In the Constitutional Court majority judgment, the court held that the Reconciliation Act did not make the fact that McBride committed murder untrue. The court found that the act did not prohibit frank public discussion of his act as “murderer” and did not prevent his being described as a “criminal”.
The Constitutional Court said that protected comment need not be “fair or just at all” in any sense in which these terms were commonly understood. Criticism was protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, so long as it expresses an honestly held opinion, without malice, on a matter of public interest on facts that were true.
The Citizen’s main appeal was upheld and the court dismissed McBride’s cross-appeal, but nevertheless found that the newspaper had defamed McBride by claiming falsely that he was not remorseful. McBride was afforded R50 000 for this, reducing his damages awarded by the lower court from R150 000. This matter has given our firm experience to litigate a constitutional matter at the constitutional court.
Mobile Telephone Network (Pty) Ltd v SMI Trading CC (2013) 1 All SA 60 (SCA)
The firm was involved in a historic case with regard to the application of administrative law on Section 22 of the Electronic Communications Act 36 of 2005. On behalf of MTN, our firm successfully persuaded the Supreme Court of Appeal that the rights in terms of Section 22 of the ECA (power of a licensee to enter upon land, construct and maintain base station constitutes administrative action and which action had to be exercised in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”).
In exercising the rights in terms of PAJA, the court was persuaded that the administrative action as contemplated in Section 22 of the ECA is a lawful deprivation of property and as such compensation was not payable. Furthermore, Supreme Court of Appeal held that in entering into property for the purposes of Section 22 of the ECA, a lease agreement was not a prerequisite.
Section 22 of the ECA empowers a licensee to enter any property for purposes of exercising its right in terms of Section 22 of the ECA. The aforesaid matter is a leading authority on the proposition that the exercise of rights in terms of Section 22 constitutes administrative action.
Nelson Mandela Bay Metropolitan Municipality v MTN (Pty) Ltd and 8 others
The dispute pertains to an administrative law review of a decision taken by the Municipality to award a tender to MTN for the provision of telecommunication services for both data and voice. The Municipality has taken its own decision on review and it is alleging that there were various irregularities with the award of the tender to MTN. It is trite in law that an award for a tender by an organ of state constitutes an administrative action contemplated in Section 1 of PAJA.
In this regard, our firm has contended that the tender awarded to MTN was done in compliance with the principles of a just and procedurally fair administrative action and in compliance with laws governing public procurement. In this regard, our firm is assisting MTN in enforcing an administrative decision (an award for tender for the provision of telecommunication services).