Ignoring a decision doesn’t make it go away

Over 12.1 million licenced drivers came into contact with the electronic National Traffic Information System (eNaTIS), used to pay speeding fines, renew car licences, conduct roadworthy tests and generally implement road traffic legislation. In November 2016, the Constitutional Court in Department of Transport and Others v Tasima (Pty) Limited [2016] ZACC 39 upheld the Department’s challenge to a decision of its erstwhile Director General to extend a contract to a private company, Tasima, for the operation of the eNaTIS.

The dispute has a tortuous history, summarised in a series of interdicts and contempt proceedings resultant from the newly appointed Director General’s decision not to enforce the contract extension granted to Tasima by his predecessor. Instead of challenging the legality of the former Director General’s decision to extend the contract, the Department ignored the extension and violated multiple court orders issued by the High Court.

Five years after the contract was extended, the Department sought to reactively review and set aside the extension on the basis that the decision was unlawful. The Constitutional Court agreed. It found that the decision blatantly flouted ordinary procurement and tender processes and upheld the Department’s reactive review challenge, ordering Tasima to hand over the eNaTIS to the state-owned Road Traffic Management Corporation (RTMC) within 30 days, which Tasima failed to do.

On Monday, 3 April 2017 the High Court once again ordered Tasima to immediately hand over control of the eNaTIS to RTMC and vacate the premises from which it operates the system.

Tasima has already filed court papers indicating its intention to appeal the ruling.

Progressively more administrative decisions are being ignored because of alleged irregularities in the manner in which the administrator took the decision. However, the disregard of an administrative decision does not have any legal effect until set aside by a court.

The majority judgment of the Constitutional Court provides useful guidance to both private and public entities when confronted with a defective administrative decision.

Firstly, like an order of court, an administrative act cannot be ignored and, until set aside by a court in review proceedings, has a binding effect. Simply put, an “organ of state, like any other party, must challenge an administrative decision to escape its effects”.

Secondly, review proceedings should be brought without undue delay. However, when an applicant seeks condonation for the delay, “a full explanation that covers the ‘entire period’ must be provided”.

Finally, sound reasons can justify overlooking the delay, such as “the merits of the challenge”, “the effect on state resources” and the prejudice which may be suffered.

Thus, if you want to escape the effects of an administrative decision you must do so through the courts.