The quest for ‘reasonable certainty’: Refining the justice and equity remedial framework in public procurement cases
Authors Raisa Cachalia & Lauren Kohn
Affiliations: Lecturer, Faculty of Law, University of Johannesburg; Senior Lecturer, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 137 Issue 4, p. 659-697
Flowing from the constitutional imprimatur in s 172(1) to further ‘justice and equity’ (‘J&E’), the courts have made important strides in developing a framework for remedying irregular public procurement. They have not, however, done so clearly and coherently; nor in a way that encourages predictability in remedial outcomes. In response, we have sought to leverage an argument for ‘reasonable certainty’ as a rule-of-law justification for refining the framework in a comprehensive and helpful way that does not pit form against ‘individualised justice’. We have done so against the backdrop of two hypothetical tender scenarios — a review by a private contractor and a state self-review — based upon a pattern emerging from the jurisprudence. Through our analysis, we illustrate that ultimately the J&E enquiry is a kind of proportionality assessment that has, at its heart, an appreciation of the overall ‘impact’ of setting a tender aside, from both a practical and principled perspective. We posit a two-step approach to addressing this overarching ‘impact question’: a big-picture assessment of the various interests to be weighed in the balance, followed by the particularised balancing of these affected interests with reference to several open-list factors. Ultimately, we seek to provide a principled and pragmatic guide for the exercise of the courts’ remedial discretion and so draw the analysis together by applying this framework to the scenarios sketched.