Category Archives: Publications

Escaping the ‘Shifren Shackle’ Through the Application of Public Policy: An Analysis of Three Recent Cases Shows Shifren is not so Immutable after All

Nearly five decades ago, and in the wake of debate in legal circles, the Shifren principle found its way into our law pursuant to the Appellate Division decision in SA Sentrale Ko-op Graanmaatskappy Bpk v Shifren. In terms of this principle, ‘contracting parties may validly agree in writing to an enumeration of their rights, duties and… Read More »

B-BBEE status and fronting in the Procurement Context: Enterprises seeking to win state tenders, take note

On 7 December 2011 the new Preferential Procurement Regulations, 2011 (‘the Regulations’) made under the Preferential Procurement Policy Framework Act, 2000 (‘the PPPFA’) came into effect. The Regulations have a broader scope of application than the 2001 Regulations: municipal entities, as well as schedule 2 and 3 public entities listed under the Public Finance Management… Read More »

Our curious administrative law love triangle : the complex interplay between the PAJA, the Constitution and the common law

The proverbial saying goes: two’s company; three’s a crowd. This about encapsulates the awkward relationship between the fundamental right to administrative justice (in section 33 of the Constitution), the Promotion of Administrative Justice Act, 2000, enacted to give legislative effect to the right, and the common-law principles of judicial review of administrative action. Following the… Read More »

The failure of an arranged marriage: The traditional leadership / democracy amalgamation made worse by the Draft Traditional Affairs Bill (2014) 29 SA Public Law 343

This article presents an analysis of the recently published Draft Traditional Affairs Bill, 2013 and, in particular, clause 25 thereof. Clause 25 (‘[a]llocation of roles…’) contemplates something akin to the delegation of legislative power – in an unguided and unfettered manner – to ‘departments’ in the national and provincial spheres of government and the concomitant… Read More »

The Anomaly that is Section 24G of NEMA: An Impediment to Sustainable Development

Section 24G of NEMA was introduced in 2004 to allow for the ‘[r]ectification of unlawful commencement or continuation of [a] listed activity’ conducted in the absence of the requisite environmental authorisation; typically pursuant to an environmental impact assessment (EIA). The section essentially permits the ex post facto legalising of an otherwise unlawful act. This controversial addition to NEMA has… Read More »

The burgeoning constitutional requirement of rationality and the separation of powers: has rationality review gone too far?

This article presents an analysis of three recent judgments of our apex courts which collectively illustrate a maximising of the ‘minimum threshold requirement’ of rationality through the seemingly inexhaustible principle of legality. The question sought to be addressed is whether, in extending this baseline requirement to cover procedural fairness, reason-giving and something akin to proportionality,… Read More »

Squaring up for government tenders

This is a follow-up to my earlier article, “Preferential Procurement: urgent legislative reform required” (without prejudice September 2010 p41), which addressed the implications of Sizabonke Civils CC t/a Pilcon Projects v the Zululand District Municipality 2010 JDR 0565 (KZP) (Sizabonke). Sizabonke highlighted the need for urgent legislative reform in the field of preferential procurement, and my discussion of this case concluded:… Read More »

Preferential procurement: urgent legislative reform required

The recent case of Sizabonke Civils CC t/a Pilcon Projects v the Zululand District Municipality and Others [case no. 10878/2009], handed down on May 12 2010 in the Kwazulu-Natal High Court, Pietermaritzburg] (the Sizabonke judgement) highlights the need for urgent legislative reform in the field of preferential procurement. In this case the applicant (Sizabonke) sought, inter alia, a declaration that regulation 8 of… Read More »