THE HIGH COURT OF SOUTH AFRICA
          (WESTERN CAPE DIVISION, CAPE TOWN)

In the matter between	  Case No:23870/2012  	
		
GAFFLEY’S TRANSPORT (PTY) LTD 	 APPLICANT	
t/a GAFFLEY’S		
		
And		
		
DONALD GRANT N.O. as MEC FOR WESTERN	FIRST RESPONDENT	
CAPE DEPARTMENT OF EDUCATION		
JRO SWANEPOEL t/a SWANN’S	SECOND RESPONDENT	

Coram:	ROGERS J

Heard:	26 NOVEMBER 2014

Delivered:	12 DECEMBER 2014

______________________________________________________________

JUDGMENT
______________________________________________________________

Rogers J:

Introduction
[1]	The applicant (‘Gaffley’s’) applies to set aside decisions by the first respondent (‘the MEC’) in terms whereof he failed to withdraw a tender for the transport of learners and awarded the tender to the second respondent (‘Swann’s’). The MEC abides the court’s decision. Swann’s opposes the application. Gaffley’s was represented by Mr Grobbelaar and Swann’s by Mr Motzinger.
[2]	The Western Cape Education Department (‘the Department’) from time to time issues tenders for transporting learners to and from schools along various routes. Pursuant to such tenders Gaffley’s had a five-year contract with the Department, running from the second term of 2006, to transport learners on the T244 route. That route covered transportation between various rural locations and Bissetsdrift Primary School and Villiersdorp Secondary School. The rural locations from which the learners were collected did not include Klipfontein or Rustfontein.
[3]	Pursuant to another such tender, Gaffley’s had a five-year contract with the Department, running from the first term of 2011, to transport learners on the T243 route. That route covered transportation between various rural locations (not included on T244) to Bissetsdrift Primary School and from those locations and from Klipfontein and Rustfontein to Villiersdorp Secondary School.
[4]	Gaffley’s’ T244 contract, which expired at the end of the first term of 2011, was twice extended on an ad hoc basis.
[5]	When the T244 contract was put up for tender in 2006, tenderers were told that the number of learners to be transported on the route was 394. Gaffley’s tendered R0,078 during the first year per learner per kilometre per day, escalating to R0,115 per learner (ie 11,5 cents) by the fifth year. The Department did not allow any increase during the first ad hoc extension but agreed to an increase to 15 cents per learner for the second ad hoc extension.
[6]	On 18 November 2011 the Department advertised new tenders for several routes including T244 and T317. The closing date was 9 December 2011. The new five-year contract for T244 would run from the first quarter of 2012. In the T244 advertisement the number of learners to be transported was specified as 177. The route was said to include transportation from Klipfontein and Rustfontein to Villiersdorp Secondary School.
[7]	At 10h10 on 5 December 2011 Gaffley’s emailed the Department’s Ms Hickley, stating that the number of learners specified in the tender was considerably below the number currently transported by Gaffley’s. The actual number, according to Gaffley’s, was 295, not 177. (Gaffley’s did not, in its email, mention that Klipfontein and Rustfontein should not have been included in the T244 route, those locations being part of the T243 route, the contract for which was still running.)
[8]	It appears that Gaffley’s also held the current contract for the T319 route. At 10h52 on 5 December 2011 (ie about 40 minutes after sending the email mentioned in the preceding paragraph) Gaffley’s sent another email to the Department, pointing out that the number of learners stated in the T319 tender was also below the number currently transported by Gaffley’s.
[9]	At 11h05 the Department’s Ms Hickley sent a reply to Gaffley’s. At least in form, this was a reply to the email dealing with the T319 route. The reply read thus:
‘Approval was given to use the specification, learner total and the distance as advertised in the Tender Bulletin of 18 November 2011. At this time we cannot cancel the service. We have to get in tenders for the advertised specification. The closing date is 9 December 2011 at 11h00. The specification will remain as advertised.’
[10]	Gaffley’s timeously submitted a tender for T244. Gaffley’s tendered 44 cents per learner for the first year, rising to 65 cents by the fifth year. Gaffley’s says that it arrived at the tendered price with reference to the specified number of learners, namely 177. Gaffley’s says that if the correct number of learners had been specified (295), it would have bid a considerably lower rate.
[11]	Swann’s also submitted a tender for T244. Swann’s tendered 35 cents per learner for the first year, rising to 60 cents by the fifth year.
[12]	Because Swann’s was the lowest compliant bid, the Department awarded the T244 contract to it. The award was made by way of the letter to Swann’s dated 21 February 2012. (The award was subsequently published in the Provincial Gazette on 20 April 2012.)
[13]	Gaffley’s was not notified of the outcome of the tender. In ignorance thereof, Gaffley’s caused its attorneys to write to the Department on 23 February 2012, pointing out the error in the learner numbers and in the description of the route and requesting that the T244 contract not be awarded but rather re-advertised. Gaffley’s’ attorney said that, if the contract had already been awarded, the award would be taken on review and the tender would have to be re-advertised. The Department was requested to permit Gaffley’s to continue transporting learners on the route on an ad hoc basis pending finalisation. An undertaking in that regard was sought by 28 February 2012.
[14]	The Department acknowledged receipt of this letter, stating that it would consider and revert. It did not.
[15]	On 3 April 2012 Gaffley’s, still in ignorance of the award of the tender, launched a semi-urgent application for an order interdicting the Department from awarding  the T244 contract and directing it to re-advertise the tender with the correct specifications. The application was set down to be heard on 20 April 2012. Only the MEC was cited as a respondent.
[16]	However, Gaffley’s, which had transported learners on the T244 route during the first term of 2012, learnt on about 10 April 2012 that Swann’s was starting to transport learners on that route. On that day Gaffley’s wrote to the Department, referring to the misleading form in which the tender had been advertised and stating that the reason Gaffley’s had brought this to the Department’s attention was to avoid inconvenience to learners, schools, the Department and the selected contractor. Gaffley’s continued by stating that the new contractor (ie Swann’s) had that day begun conveying learners on the T244 route. Gaffley’s requested the Department to inform the new contractor that Klipfontein and Rustfontein had always formed part of the T243 route (ie that Swann’s should refrain from collecting pupils from Klipfontein and Rustfontein as part of its T244 contract).
[17]	The Department acknowledged receipt of the email and said further correspondence would come from its legal division. Again, nothing further was heard from the Department.
[18]	On 18 April 2012 Gaffley’s served an amended notice of motion and supplementary founding affidavit. The amended papers involved the joinder of Swann’s as a second respondent. The amended relief was for a rule nisi calling on the respondents to show cause why an order should not be granted authorising Gaffley’s to transport learners from Klipfontein and Rustfontein to Villiersdorp Secondary School and interdicting Swann’s from doing so, pending the determination of a review to set aside the award of the T244 tender to Swann’s, with the rule to operate as an interim interdict.
[19]	The hearing scheduled for 20 April 2012 became unnecessary after the Department and Swann’s gave undertakings that Swann’s would not transport learners from any of the locations forming part of the T243 route. This disposed of the semi-urgent application.
[20]	During the period April to August 2012 Swann’s transported only 177-181 learners on the T244 route. It is clear, I think, that the actual number of learners requiring transportation on this route was considerably larger. During September 2012 Swann’s began transporting an additional 108 learners (ie 285 in all) after acquiring two further buses.
[21]	Gaffley’s, having discovered that Swann’s was now transporting an increased number of learners, caused its attorneys to write to the Department on 12 September 2012 to ascertain on what basis Swann’s was conveying more than the advertised number of 177. Information and documentation in that regard was requested by 13 September 2012 so that the attorneys could advise their client of its legal position.
[22]	Nothing having been heard from the Department, Gaffley’s attorneys wrote to the State Attorney (who was on record in the semi-urgent application), referring to the letters of 23 and 29 February 2012 and 12 September 2012 and stating that Gaffley’s was entitled to responses to those letters and to reasons for the Department’s decisions, including the decision to award the T244 tender rather than withdrawing and re-advertising it. A response was demanded by 19 October 2012. The State Attorney replied that he would respond in due course. No response was, however, forthcoming.
[23]	On 19 October 2012 Gaffley’s attorneys wrote to the Department attaching a formal request for reasons in terms of s 5(1) of the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’). The covering letter linked the formal request to the one made in the letter of 12 September 2012, ie reasons for allowing Swann’s to transport more than 177 learners. This is also what the attached formal request reflects. The Department did not respond to the formal request for reasons.
The review application
[24]	Gaffley’s instituted the present review application on 14 December 2012. Gaffley’s contends, in essence, that the Department should not have made an award on the T244 contract advertised on 18 November 2011, given the error in the learner number and route. The decisions which are the target of the review, as identified in the notice of motion, are (i) the decision not to cancel the tender with a closing date of 9 December 2011; (ii) the decision not to re-advertise the said tender; (iii) the decision to award the said tender to Swann’s. There is no independent attack on the third of these decisions. The award of the tender to Swann’s is not said to have been irregular except by virtue of the errors in the tender specifications, errors which should – so it is alleged – have caused the Department to cancel the tender and re-advertise.
[25]	 Although the founding papers deal with the error in the route (ie the inclusion of Klipfontein and Rustfontein), I think it is fair to say that the focus was and remains the alleged error in the number of learners. The error in the route description has not been shown to have had a material impact on the content of tenders, and the resultant dispute regarding the erroneous inclusion of Klipfontein and Rustfontein was in the event resolved relatively easily between those parties with a direct interest in it. 
[26]	In accordance with rule 53, the notice of motion called upon the MEC to furnish the record of the decisions. The delivery of the record and the filing of papers was considerably delayed by virtue of settlement negotiations between the parties. It is unfortunate, I think, that those settlement negotiations eventually broke down. The Department, it appears, saw merit in Gaffley’s review application and was in favour of re-advertising the contract. While Swann’s was, unsurprisingly, put out at this proposal, it expressed a willingness to allow the contract to be re-advertised subject to certain conditions, one of which was the reservation of its right to sue the Department for damages. The Department balked at this reservation. Eventually the only issue standing in the way of a settlement was the question of costs. Gaffley’s insisted that its review cost be paid on an opposed basis. The Department tried unsuccessfully to get Swann’s to agree to share the costs. When this failed, the Department tried to prevail upon Gaffley’s to accept costs on an unopposed basis, which Gaffley’s rejected.
[27]	While these settlement negotiations were taking place, the Department in June 2013 re-advertised the T244 tender, with a closing date of 5 July 2013. The new contract would run from the third term of 2013. Viewed from Gaffley’s perspective, the tender now correctly stated the number of learners as 295 but still erroneously included Klipfontein and Rustfontein.
[28]	Swann’s attorneys objected to the new advertisement, not on the basis that the Department should not be advertising at all but on the basis that the route distance was incorrectly stated. They demanded that the Department cancel the new tender and re-advertise yet again.
[29]	The Department conceded that certain errors had occurred due to ‘haste’. The contract was thus re-advertised during July 2013. Both Gaffley’s and Swann’s accepted the correctness of the specifications in the advertisement of July 2013 though during argument it emerged that the route description remained erroneous through its inclusion of Rustfontein (though Klipfontein had correctly been removed).
[30]	In the event, though, the re-advertisement of July 2013 came to nothing because the parties could not reach agreement on the costs of the review application. The Department adopted the position that it had re-advertised on the assumption that the review would be settled on a basis which would permit the award of the contract to Swann’s to be set aside. Since no overall settlement was reached, the Department did not proceed with the new tender and instead filed a notice to abide on 27 September 2013.
[31]	Gaffley’s attorneys then attempted to compel Swann’s to file its answering papers. The latter’s attorneys said that their client would not file papers until the rule 53 record had been delivered by the MEC. On 6 February 2014 an order was made compelling the Department to deliver the record by 28 February 2014, with a timetable for further papers. The record was delivered by the end of February 2014. Swann’s filed its answering papers on 1 April 2014 and Gaffley’s its replying papers on 22 April 2014. The matter served before me on 26 November 2014.
[32]	The contract awarded to Swann’s has, by now, run about half its five-year term.
180 days and delay
[33]	Swann’s took several preliminary points. The only one pressed in argument was the contention that the review application had not been launched within the 180 days specified in s 7(1) of PAJA. Section 7(1) reads as follows:
‘(1) Any proceedings for judicial review in terms of section 6(1) must be instituted without unreasonable delay and not later than 180 days after the date –
(a) subject to subsection (2)(c), on which any proceedings instituted in terms of internal remedies as contemplated in subsection (2)(a) have been concluded; or
(b) where no such remedies exist, on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons.’
[34]	Paragraph (a) of the sub-section is not applicable because there was no internal remedy. (Swann’s alleged in its answering papers that Gaffley’s had failed to exhaust an internal remedy but the remedy was not identified. This is one of the preliminary points which Gaffley’s did not press.)
[35]	As to paragraph (b), the application was instituted on 14 December 2012. If the 180 days specified in s 7(1) began to run on or after 18 June 2012, the review was instituted within the prescribed period. There is no application in terms of s 9 to extend the 180 day-period if it was not complied with. 
[36]	The competing contentions were in summary the following. For Gaffley’s, Mr Grobbelaar submitted that in terms of s 5(1) a person whose rights have been materially and adversely affected by administrative action and who has not been given reasons has 90 days to request such reasons. The 90 days run from the date on which the person became aware of the action or might reasonably have been expected to have become aware of the action. The administrator then has 90 days to furnish the reasons. In terms of s 5(2) the administrator has 90 days after receipt of the request to furnish the reasons. In terms of s 7(1) the aggrieved person then has 180 days within which to institute the review proceedings. Where the aggrieved person has not been given reasons, the 180 days run from the date on which he might reasonably have been expected to become aware of the action and the reasons. The time-limits specified in s 5 for requesting and giving reasons indicate the time by which a person could reasonably be expected to become aware of reasons for administrative action. Effectively, therefore, the 180 days in s 7(1) only begins to run after the expiry of an initial 180-day period during which the affected person might have requested and received reasons.
[37]	Mr Grobbelaar submitted, further, that the Department could have cancelled the original tender and re-advertised it at any time up to the date on which it actually awarded the tender. Gaffley’s only became aware that the Department had awarded the tender on 10 April 2012. This was about eight months before it instituted the review application. Given the time periods for requesting and receiving reasons stated in s 5, it cannot be said that Gaffley’s could reasonably have become aware, before 18 June 2012, of the reasons for the decision not to cancel the tender and instead to make an award thereon. The review application was thus in time.
[38]	For Swann’s, Mr Montzinger submitted that the Department’s email of 5 December 2011 made clear to Gaffley’s that the Department would not cancel the tender and that its reasons were those set out in the email. At least by 9 December 2011, when the tender closed and the Department received the tenders, Gaffley’s knew of the decision to persist with the tender and of the reasons for that decision. The review is in substance directed at the decision not to cancel the original tender. The 180 days specified in s 7(1) thus began to run, at the latest, by 9 December 2011. Even if time only began to run when Gaffley’s learnt on 10 April 2012 that the tender had actually been awarded, Gaffley’s knew by then what the Department’s reasons were (namely those stated in the email of 5 December 2011). The review application was not launched within 180 days of 10 April 2012.
[39]	I said earlier that the Department’s email of 5 December 2011 was ‘in form’ a reply to Gaffley’s’ query regarding the T319 specification. In other words, the Department’s official used the ‘reply’ email function, so that the reply carried the same subject heading as the email relating to T319 and formed part of the same email thread. However, Gaffley’s had raised an identical point in relation to T244 in an email sent about 40 minutes earlier to the same official. Gaffley’s did not receive a separate reply to its email concerning T244. Gaffley’s does not say that it pressed for a separate reply. It proceeded to submit a tender for T244 on 9 December 2011, based on the specified number of learners (177).
[40]	When Gaffley’s’ attorneys wrote to the Department on 23 February 2012, they referred to and annexed the emails relating to both T244 and T319. In the body of their letter they said that, in response to Gaffley’s’ email of 5 December 2011 regarding the incorrect learner number for T244, the Department’s Ms Hickley had said that the specification would remain as advertised. Although Gaffley’s’ attorneys referred in this regard to the reply which had been received, as a matter of form, in response to the email relating to T319, they and their client appear to have understood the reply to cover both routes. Gaffley’s’ attorneys did not, in their letter, request further reasons from the Department. Instead they requested the Department not to award the tender, adding that if the tender had already been awarded Gaffley’s would be taking the award on review.
[41]	The semi-urgent application which Gaffley’s launched on 3 April 2012 was in substance a review of the Department’s decision not to withdraw the T244 tender and re-advertise it, because Gaffley’s sought an interdict to prevent the Department from awarding the tender and a mandamus compelling it to re-advertise the tender. Those orders could only be granted on the supposition that the Department’s decision to press ahead with the original tender was unlawful. Gaffley’s was able to launch that application without having received any further explanation from the Department as to why it had decided not to re-advertise the tender with correct specifications.
[42]	In my view, the evidence shows that Gaffley’s was aware by 9 December 2011 that the Department did not intend to cancel the T244 tender. It would have understood the Department’s email of 5 December 2011 as providing the reasons for proceeding not only with the T319 tender but also the T244 tender. The reasons were (i) that the advertised specifications for the tenders had been approved; (ii) that the Department could not cancel the services and thus had to get tenders for the advertised specifications. Though these reasons were stated somewhat cryptically, the first reason would have conveyed that a relevant official or body within the Department had considered, among other things, the appropriate learner numbers to be specified for the various routes and had approved the numbers specified for the T244 and T319 routes. The second reason would have conveyed that, because the new contracts were to take effect in the near future and because there could not be an interruption in the transportation of learners, the Department had to proceed with the tenders as advertised, ie even if there were errors in the specifications.
[43]	It might be said that these were not good reasons. There is no ground for doubting, however, that they were the Department’s actual reasons. In most review cases the reasons given by the administrator will be criticised as inadequate or irrational or misconceived. The affected party is entitled to be given the administrator’s actual reasons, not reasons sufficient to show that the decision cannot be impugned.
[44]	In the ordinary course, therefore, Gaffley’s had 180 days as from 9 December 2011 to institute review proceedings directed at setting aside the Department’s decision to proceed with the T244 tender rather than to re-advertise it. I do not think, though, that in the particular circumstances of this case Gaffley’s was entitled to wait out the full 180 days. It must be remembered that the 180-day period in s 7(1) is an outer limit. There is a separate requirement in s 7(1) that proceedings for judicial review be instituted ‘without unreasonable delay’. What is reasonable will depend on the circumstances of the case. Here, the decision was one in terms whereof the Department had resolved to proceed to adjudicate tenders rather than re-advertise. The tender documents stated that the contract for T244 would run as from the first term of 2012. The Department could thus be expected to make an award reasonably soon unless action were taken by Gaffley’s. Once the tender was awarded, the decision not to cancel the tender and re-advertise could not be successfully reviewed unless the award of the tender was itself set aside. Dislocation as well as prejudice to the successful tenderer could be expected if a review were only instituted after the award of the tender. In the event, the tender was awarded on 21 February 2012. Gaffley’s’ criticisms of the T244 specifications were relatively straightforward. The founding affidavit in the semi-urgent application launched on 3 April 2012 was (excluding annexures) less than nine full pages. 
[45]	I thus think that Gaffley’s should have instituted a review application within a few weeks, certainly not more than a month, after the closing date of the tender, if necessary coupled with an interim interdict to prevent the Department from awarding the tender pending the determination of the review.
[46]	Once the tender was awarded on 21 February 2012, a review could no longer be directed simply at the Department’s decision not to re-advertise the tender; the decision to award the tender itself would now have to be the subject of attack. Indeed, that is why the relief sought in the semi-urgent application instituted on 3 April 2012 was amended and why that application eventually became a dead letter. It does not necessarily follow that a new 180-day period began to run from the date on which the tender was awarded or on which Gaffley’s could reasonably have become aware that the tender had been awarded. The identification of the administrative action which triggers the running of the 180-day period cannot be answered in the abstract but depends on an evaluation of the facts (see Camps Bay Ratepayers’ and Residents’ Association & Another v Harrison & Another 2011 (4) SA 42 (CC) para 57). The award of the tender to Swann’s was not attacked as being irregular in itself. Gaffley’s case was that, by virtue of the incorrect tender specifications, the Department could not lawfully award the tender to anyone and should thus have decided to cancel the tender and re-advertise. It was the failure to cancel the tender and re-advertise that Gaffley’s was really attacking. The setting aside of the award of the tender would follow in consequence of the unlawful decisions which preceded it (cf the Camps Bay case supra paras 62-63).
[47]	 However, if the award of the tender triggered a new 180 day-period, time began to run when Gaffley’s became aware of or could reasonably have been expected to become aware of the decision to award the tender and of the reasons for the award. One might have expected Gaffley’s, particularly in view of its attack on the tender specifications, to have made enquiries during February and March 2012 about the fate of the tender. However, I am prepared to assume that Gaffley’s could not reasonably have been expected to learn of the award of the tender before the date on which it actually came to Gaffley’s knowledge, namely 10 April 2012.
[48]	In the context of the present case, the reasons for the award of the tender are the same as the reasons for failing to cancel it and re-advertise. I say this because there has never been any suggestion that, if the tender specifications were correct, the tender was not properly awarded to Swann’s. Even before it learnt of the award of the tender, Gaffley’s’ position was that an award of the tender would be irregular regardless of the person to whom it was awarded. At least in regard to a review of the award based on material errors in the tender specifications, Gaffley’s could reasonably have been expected to know by 10 April 2012 what the Department’s reasons were for awarding the tender, namely (i) that the tender specifications had been duly approved; and (ii) the service of transporting the learners could not be interrupted by the delay which would be entailed by cancelling the tender and re-advertising it.
[49]	Gaffley’s attorneys’ letter of 12 September 2012 did not seek reasons for the decision to proceed with the original tender or for the award of the tender to Swann’s. That letter dealt only with the basis on which Swann’s was transporting learners above the specified number of 177. (The same seems to be true of the formal request for reasons lodged on 19 October 2012.)
[50]	Gaffley’s attorneys did, in their letter of 16 October 2012, request reasons inter alia for the Department’s decision not to re-advertise the tender. However, and assuming that Gaffley’s was entitled to 90 days from 10 April 2012 to request reasons, the request of 16 October 2012 was way out of time. (The same would be true of the formal request for reasons lodged on 19 October 2012, assuming such request related to the decision not to re-advertise the tender.)
[51]	In the event, Gaffley’s instituted its review application on 14 December 2012 without having heard further from the Department. The grounds of review were essentially the same as those set out in the semi-urgent application of 3 April 2012, though Gaffley’s provided further information as to what had happened since April 2012.
[52]	I thus consider that the 180 day-period specified in s 7(1) began to run by not later than 10 April 2012. The review application was thus launched about two months later. As I have said, there is no application in terms of s 9 to extend the 180-day period. If such an application had been made, it is by no means obvious that it would have succeeded. Among the things that Gaffley’s would have needed fully to explain, in seeking an extension of time, were the reasons for the delay from 10 April to 14 December 2012 (see PriceWaterhouse Coopers Inc & Others v Van Vollenhoven NO & Another [2010] 2 All SA 256 (SCA) paras 6-7; Beweging vir Christelik-Volkseie Onderwys & Another v Minister of Education & Others [2012] 2 All SA 462 (SCA) para 47). I have already indicated my view that Gaffley’s should have instituted proceedings within a few weeks of 9 December 2011. In any event, I find it difficult to fathom why Gaffley’s did not at least institute the review proceedings very shortly after 10 April 2012, upon learning of the award of the tender to Swann’s. Gaffley’s had already formulated its grounds of review in the semi-urgent application. The institution of a review application directed at setting aside the award to Swann’s was foreshadowed in the amended notice of motion and supplementary founding affidavit of 18 April 2012. Yet Gaffley’s allowed eight months to pass before instituting the review application. By then, so it appears from the answering affidavit, Swann’s had purchased two new buses to accommodate the increased number of learners.
Conclusion
[53]	For these reasons, I am compelled to the conclusion that the application for review must fail.
[54]	 This is not an altogether satisfactory outcome. I think the review was, on its merits, sound. Gaffley’s says that it would have tendered a significantly lower rate had the tender specified the correct number of learners. This strikes me as entirely plausible. One knows that under the old contract Gaffley’s was, during the final ad hoc extension, charging 15 cents per learner per kilometre per day. Based on the lower number of learners specified in the tender advertisement, Gaffley’s increased its tendered rate to 44 cents per learner. Swann’s, the successful tenderer, bid 35 cents. Both amounts were considerably above the then prevailing rate. Economies of scale are likely to have enabled tenderers to bid lower rates for higher learner numbers.
[55]	It is possible that, if the tender specifications had been correct, Swann’s would still have been the successful tenderer. It is also possible, though, that Gaffley’s or another tenderer would, because of larger fleets and infrastructure, have been able to accommodate an increased number of learners more efficiently, and thus more cheaply, then Swann’s. Either way, the Department, and thus indirectly taxpayers, would have got the service more cheaply. Instead, Swann’s has the contract at a rate per learner determined on the incorrect basis that only 177 learners required transportation on the T244 route. Swann’s now seems to be transporting 285 learners on that route. The papers do not disclose the rate which Swann’s is being paid for the increased number but it would not have been obliged to agree to transport the additional learners at a lower rate than 35 cents per learner. The requirements of s 217 of the Constitution are not concerned only or even primarily with the interests which bidders for public work have in a fair, equitable, transparent, competitive and cost-effective procurement system but with the benefits yielded for organs of state and thus society at large by a constitutionally compliant procurement system. That cannot be achieved if the specifications which determine tendered prices differ materially from those applicable to the job which the organ of state requires to be performed.
[56]	Furthermore, the contract, although for a five-year period, strikes me as readily divisible, so that an order setting aside the award would not have been impracticable (contrast Eskom Holdings Ltd & Another v New Reclamation Group (Pty) Ltd 2009 (4) SA 628 (SCA) paras 16-18 with Moseme Road Construction CC & Others v Cane Civil Engineering Contractors (Pty) Ltd & Another 2010 (4) SA 359 (SCA) paras 15-21; see also Millennium Waste Management Pty Ltd v Chairperson, Tender Board: Limpopo Province & Others 2008 (2) SA 481 (SCA) paras 27-32). In Allpay Consolidated Investment Holdings Pty Ltd & Others v Chief Executive Officer, South African Social Security Agency & Others 2014 (4) SA 179 (CC) Froneman J observed that logic, general legal principle, the Constitution and the binding authority of the Constitutional Court ‘all point to a default position that requires the consequences of invalidity to be corrected or reversed where they can no longer be prevented’ and that such an approach ‘accords with the rule of law and principle of legality’ (para 30).
[57]	However, there is also a competing value in requiring review proceedings to be instituted promptly. Finality in administrative matters is important not only because delay may cause prejudice to other parties but because of the public interest in certainty (Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 41E-F). Inherent in achieving this value by way of setting time-limits is that bad decisions will sometimes have to be allowed to stand. The review application in the present case was not timeously instituted nor was there a request, motivated or otherwise, for an extension of the time-limit.
[58]	I thus make the following order: The application is dismissed with costs, including the costs reserved by the order of 6 February 2014. 

______________________
ROGERS J

APPEARANCES

For Applicant: 		Mr ES Grobbelaar
		Instructed by:
		Malan Lourens Viljoen Inc
		12 Pickle Street
		Strand

For Second Respondent:			Mr A Motzinger
Instructed by:
CSM Attorneys
21 Plein Street
Stellenbosch