The judicial discretion to allow unlawful government procurement awards to stand: justification and implications for the principle of legality and the rule of law

Master Thesis

2015

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University of Cape Town

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The development of subjecting government procurement awards to judicial review is a relatively recent development in South African law. It accords with a similar development in the United States, as well as South Africa's own constitutional requirements of transparency and public accountability. Given the often lucrative nature of public contracts, challenges to the lawfulness of government procurement awards have become a regular occurrence in South Africa. However, the setting aside of such an award does not automatically follow upon a finding of unlawfulness. For a number of reasons, a court may decline to set aside an unlawful government procurement award. This raises a number of interesting questions, particularly with regard to how such a decision may be reconciled with, and the implications this may have for, the principle of legality and the Rule of Law. This dissertation will address these issues, arguing that, ultimately, the concerns are resolved by appreciating the nature of the principle of legality, and the Rule of Law's place as a value in society.
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