Undoing Unlawful Municipal Procurement Contracts Through State Self-review: A Reflection on Govan Mbeki Municipality v New Integrated Credit Solutions (Pty) Ltd 2021 4 SA 436 (SCA)

Abstract

The aim of this contribution is to reflect on what the judgment of the Supreme Court of Appeal (SCA) in Govan Mbeki Municipality v New Integrated Credit Solutions (Pty) Ltd 2021 4 SA 436 (SCA) adds to the existing jurisprudence on state self-review and to show some gaps that still need to be addressed by courts. This case note argues that the principles on state self-review, including the requirements for assessing delay, were correctly applied by the unanimous decision of the SCA in the Govan Mbeki case. It argues that the main contribution the SCA adds to the jurisprudence on state self-review is that, as part of assessing delays and deciding on whether to condone them or not, courts can now ask organs of state to show the steps they took against delinquent officials such as disciplinary actions and, where appropriate, criminal proceedings. This is a strong requirement that may dissuade municipal officials from instituting frivolous large-scale self-review applications that falsely seek to give the impression that they are self-correcting unlawful procurement decisions. This contribution identifies two main gaps in the jurisprudence on state self-review: the absence of a specified timeframe within which self-review applications should be instituted; and the lack of clarity on the percentage of profits that businesses can keep from unlawful procurement contracts.