IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO: 698/98
In the matter between:
OLITZKI PROPERTY HOLDINGS
Appellant
and
STATE TENDER BOARD
First  Respondent
PREMIER OF THE PROVINCE OF GAUTENG
Second Respondent
BEFORE:
HEFER ACJ, OLIVIER, MARAIS, ZULMAN and
CAMERON JJA
HEARD:
MONDAY,   26 FEBRUARY 2001
DELIVERED:
WEDNESDAY, 28 MARCH 2001
The procurement provision of the interim Constitution does not give rise
to a civil claim for damages for lost profit; similarly, the administrative
justice provisions in the Fundamental Rights chapter of the interim
Constitution do not confer such a claim where the claimant had an
alternative remedy in interdict and review

J U D G M E N T

CAMERON JA:
[1] This appeal raises two questions. The first is whether the provision
regarding procurement administration in the interim Constitution
(Constitution of the Republic of South Africa,  Act 200 of 1993) creates a
right to claim damages for lost profit at the instance of a party claiming
injury because of its infringement.  The second is a similar question
regarding breach of the administrative justice provisions in that
Constitution’s Chapter on Fundamental Rights.  The first question raises
the not unfamiliar issue of the circumstances in which the breach of a
statutory provision (one in this case embodied in the interim Constitution)
gives rise to a civil claim for damages.  The second is whether in the
circumstances of this case damages for lost profit are an appropriate
remedy for the infringement of a fundamental constitutional right
(“constitutional damages”).
JURISDICTION
[2]  The proceedings were commenced before the 1996 Constitution
came into effect on 4 February 1997.  Both issues raise questions

1 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council
and Others 1999 (1) SA 374 (CC) para 109
2 Commissioner of Customs and Excise v Container Logistics (Pty) Ltd 1999 (3) SA 771 (SCA)
paras 4 - 6
concerning the interpretation of the interim Constitution.  Under that
Constitution, this Court had no jurisdiction to decide such issues (sections
98(2) and 101(5)). Chapter 8 of the 1996 Constitution however grants
such jurisdiction, which in terms of item 17 of Schedule 6 this Court may
exercise in regard to matters that arose when the interim Constitution was
in force, provided that the interests of justice require it to do so. The
Constitutional Court has signalled its general view that “compelling
interests of justice” suggest that this Court should now exercise this
jurisdiction,1 while this Court has indicated that it will do so on an ad hoc
appraisal of what the interests of justice in a particular case require.2
[3]  In the present matter, the judge in the court below granted leave to
appeal to this Court; and the parties were agreed (the respondents having
abandoned their opposition) that this Court should exercise its
constitutional jurisdiction.  Taking into account the course of the
proceedings, the delay and the wasted costs that would be occasioned if
this Court declined to exercise its appellate jurisdiction in regard to the

3 Fedsure (above) para 106
order of the Court below, and the consideration that in such circumstances
it is undesirable that other courts should “be denied the benefit of the
experience and expertise” of this Court in matters involving the interim
Constitution,3 I am satisfied that the interests of justice require us to
determine the matter.
FACTUAL AVERMENTS, EVIDENCE AND PROCEDURE
[4]  In 1995, the provincial government of Gauteng began to make
arrangements to relocate from Pretoria to Johannesburg.  It invited
tenders for office accommodation to house various departments in an
inner-city precinct.  The appellant (“the plaintiff”) obtained an option to
purchase a building in the precinct, and tendered to provide office space
in it to the provincial government.  Its tender was not accepted.  Thereafter
it instituted a claim for damages against the first and second respondents
(“the defendants”), respectively the State Tender Board (“the Tender
Board”), which awarded the tender, and the Province of Gauteng (“the
provincial government”) which the plaintiff alleged had misconducted itself
during the tender process in specified ways with which the Tender Board

had associated itself.  The damages the plaintiff claimed allegedly arose
from the defendants’ unlawful conduct in managing the tender process and
in awarding the tender.  They consisted in the profit the plaintiff asserted
it would have made from rentals if it had been awarded the tender.
[5]  The plaintiff pleaded its claim on two alternative bases. Claim A
alleged that its entitlement to damages arose from the defendants’ breach
of the plaintiff’s right to a fair, public and competitive system of tendering
embodied in section 187(2) of the interim Constitution.   Claim B alleged
in the alternative that the defendants’ conduct constituted an infringement,
entitling the plaintiff to damages, of the fundamental right to administrative
justice enshrined in section 24 (a), (b) and (d) of the interim Constitution.
[6]  In the court below, the parties agreed to test the legal foundation for
the plaintiff’s claims before possibly protracted evidence supporting them
would have to be led.  They requested the court to decide on the basis
that the factual allegations in Claim A were correct whether the plaintiff was
in law entitled to the damages it claimed.  In regard to Claim B, the court
was requested to assume the correctness of the same factual allegations,

but, in addition, after hearing “such evidence as the parties may tender ...
and which the court regards as relevant” to a specified issue, to decide
whether the plaintiff was similarly entitled.  That issue was the plaintiff’s
averment that an award of damages constituted “appropriate relief” in
terms of s 7(4)(a) of the interim Constitution, since it had no other
satisfactory remedy for the alleged breach of its fundamental right to
administrative justice.  In the event of a finding favourable to the plaintiff in
regard to either Claim A or B, the court was requested to postpone the
matter for further hearing.  Eloff JP, who heard the matter, expressed his
support for this arrangement.
[7]  The allegations that the Court below in upholding the defendants’
challenge to the legal basis of the plaintiff’s claim assumed to be correct
were in essence that the defendants in awarding the tender acted
irregularly, unreasonably and arbitrarily.  More particularly, the plaintiff
alleged (and the Court assumed) that —
C
The provincial government, an interested party which could not
impartially appraise the tenders and formulate recommendations,
had acted as an advisory body to the Tender Board;

C
The
Tender
Board
took
the
provincial
government’s
recommendations into account in awarding the tender;
C
The Tender Board failed to appraise the plaintiff’s tender
independently and impartially, and acted partially in making a pre-
selection of premises;
C
The Tender Board thus acted in breach of the plaintiff’s right to a fair,
public and competitive tender process as required by s 187 of the
interim Constitution, in that it permitted the provincial government to
act in this way, and had in addition made itself party to those acts;
C
As a result the plaintiff was not awarded the tender, which would
have been awarded to it had a fair, public and competitive tender
process been followed.
[8]  Eloff JP, after hearing evidence from the plaintiff regarding the
appropriateness of constitutional damages [Claim B], upheld the
defendants’ contention that both claims were unsustainable in law.  He
considered that the availability to the plaintiff of the remedy of review
precluded it from claiming damages for its lost profit under either s 187 or
the administrative justice provisions of the interim Constitution.  He

4 The effect on a claimant’s cause of action of the provisions of s 187 was alluded to, but did not
arise for decision, in Premier, Free State and Others v Firechem Free State (Pty) Ltd 2000 (4) SA 413
(SCA) para 32.
5The comparable provision in the 1996 Constitution, which is not before us, is section 217.  This
reads:
“217 Procurement
(1)
When an organ of State in the national, provincial or local sphere of government, or any other institution
identified in national legislation, contracts for goods or services, it must do so in accordance with a system
which is fair, equitable, transparent, competitive and cost-effective.
(2)
Subsection (1) does not prevent the organs of State or institutions referred to in that sub-section from
implementing a procurement policy providing for - (a) categories of preference in the allegation of contracts;
and (b) the protection or advancement of persons, or categories of persons, disadvantaged by unfair
discrimination.
(3)
National legislation must prescribe a framework within which the policy referred to in sub-section (2) may
be implemented.”
accordingly granted with costs an order setting aside the two claims,
together with leave to file amended particulars.  Against this order the
plaintiff with the leave of Eloff JP now appeals.
CLAIM A: DOES BREACH OF THE PROCUREMENT PROVISIONS OF
THE INTERIM CONSTITUTION GIVE RISE TO A CIVIL CLAIM IN
DAMAGES FOR LOST PROFIT?
[9]  Claim A was premised on the contention that section 187 of the interim
Constitution conferred a right to claim damages for lost profit on those
injured by its breach.4  Section 187 reads:
Procurement Administration
(1)
The procurement of goods and services for any level of Government shall be regulated by
an act of Parliament and Provincial laws, which shall make provision for the appointment
of independent and impartial tender boards to deal with such procurements.
(2)
The tendering system referred to in sub-section ( 1) shall be fair, public and competitive,
and tender boards shall on request give reasons for their decisions to interested parties.
(3)
No organ of State and no member of any organ of State or any other  person shall
improperly interfere with the decisions and operations of the tender boards.
(4)
All decisions of any tender board shall be recorded.5

6Tony Honoré Responsibility and Fault (1999) page 101
7Government of the Republic of South Africa v Basdeo and Another 1996 (1) SA 355 (A) 367E-G
[10]  The question is whether the defendants’ (assumed) unreasonable,
irregular and arbitrary conduct in relation to the tender breached these
provisions so as to constitute a civil wrong actionable at the plaintiff’s
instance.  In other words, did the section impose a legal duty on the
defendants to refrain from causing the plaintiff the kind of loss it claims it
suffered?
[11]  It is well-established that in general terms the question whether there
is a legal duty to prevent loss depends on a value judgment by the court
as to whether the plaintiff’s invaded interest is worthy of protection against
interference by culpable conduct of the kind perpetrated by the defendant.
The imposition of delictual liability (as Prof Honoré has pointed out) thus
requires the court to assess not broad or even abstract questions of
responsibility, but the defendant’s liability for conduct “described in
categories fixed by the law”.6  This process involves the court applying a
general criterion of reasonableness, based on considerations of morality
and policy, and taking into account its assessment of the legal convictions
of the community7 and now also taking into account the norms, values and

8Knop  v Johannesburg City Council 1995 (2) SA 1 (A) at 27F-G
9Knop at 28C-D; Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) para 60
10The Law of South Africa (Lawsa) first reissue vol 8 part 1 paras 35, 61 by JC van der Walt, revision
by JR Midgley; compare Callinicos v Burman 1963 (1) SA 489 (A) 497-8;  Da Silva and Another v Coutinho
1971 (3) SA 123 (A) 134-141
principles contained in the Constitution. Overall, the existence of the legal
duty to prevent loss “is a conclusion of law depending on a consideration
of all the circumstances of the case”.8

[12]  Where the legal duty the plaintiff invokes derives from breach of a
statutory provision, the jurisprudence of this Court has developed a supple
test.  The focal question remains one of statutory interpretation,9 since the
statute may on a proper construction by implication itself confer a right of
action, or alternatively provide the basis for inferring that a legal duty exists
at common law.  The process in either case requires a consideration of
the statute as a whole, its objects and provisions, the circumstances in
which it was enacted, and the kind of mischief it was designed to prevent.10
But where a common law duty is at issue, the answer now depends less
on the application of formulaic approaches to statutory construction than
on a broad assessment by the court whether it is “just and reasonable” that

11Knop 21F-G, 32C-D; Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) paras 8-17;
compare Faircape Property Developers (Pty) Ltd v Premier, Western Cape 2000 (2) SA 54 (C) 66B-D
12 Lawsa (above) para 61
13Knop at 35F
14 see for instance Neethling and Potgieter “Deliktuele Onregmatigheid by die Nie-nakoming van
‘n Statutêre Voorskrif” (1995) 58 THRHR 528 at 531-532
15compare for instance Stovin v Wise (Norfolk County Council, third party) [1996] 3 All ER 801 (HL)
at 827g-h and 833b, per Lord Hoffmann;  Pyrenees Shire Council v Day and Another (1998) 192 CLR 330
a civil claim for damages should be accorded.11  “The conduct is wrongful,
not because of the breach of the statutory duty per se, but because it is
reasonable in the circumstances to compensate the plaintiff for the
infringement of his legal right”.12  The determination of reasonableness
here in turn depends on whether affording the plaintiff a remedy is
congruent with the court’s appreciation of the sense of justice of the
community.13  This appreciation must unavoidably include the application
of broad considerations of public policy determined also in the light of the
Constitution and the impact upon them that the grant or refusal of the
remedy the plaintiff seeks will entail.
[13] Though this Court’s broad-based approach to determining whether in
such circumstances a legal duty exists has attracted criticism,14 it seems
generally to accord with trends in other jurisdictions grappling with related
issues.15  More importantly, it seems to me to be especially apposite to

(High Court of Australia) at 418ff, per Kirby J
16S v Zuma and Others 1995 (2) SA 642 (CC) paras 17-18
17Kalla and Another v The Master and Others 1995 (1) SA 261 (T) 269B-C
18 Kentridge and Spitz (above) § 11.5.
constitutional interpretation, which involves the application of just such
standards of public principle and policy.  Section 187 does not appear in
an ordinary statute.  It is part of a Constitution, and within the limits of
linguistic meaning16 constitutional principles must infuse our understanding
of its effect.  The enactment of the interim Constitution marked the
transition from the old order to a new society — one avowedly open and
democratic and based on freedom and equality, in which courts were not
only enjoined in interpreting fundamental rights provisions to promote the
values underlying such a society (section 35(1)), but in interpreting “any
law” to have due regard to the spirit, purport and objects of the
fundamental rights chapter (section 35(3)).  Though the provisions of the
interim Constitution do indeed deal with many mundane questions of
governmental structure and organisation not requiring the application of
lofty principle,17 “any law” in section 35(3) in my view includes where
appropriate the other provisions of the interim Constitution itself.18
Specifically, therefore, in interpreting such provisions section 35(3)

19Davis, Chaskalson and de Waal, Chapter 1 in van Wyk and others, Rights and Constitutionalism
— The New South African Legal Order (1994) page 127
20 Compare Lawsa (above) para 61
applies, and —
“... when a court is confronted with a problem of unenumerated rights it should seek to answer the
question as to whether the development [scil: recognition] of a right which is unenumerated in the
Constitution would foster or promote those values which underlie an open and democratic society
based on freedom and equality.”19
[14] To these considerations may be added that in determining whether a
delictual claim arises from breach of a statute the fact that the provision is
embodied in the Constitution may (depending on the nature of the
provision) attract a duty more readily than if it had been in an ordinary
statute.20
[15]  With this in mind I return to section 187.  Mr Ginsburg SC for the
plaintiff contended that on a proper construction the provision entitled the
plaintiff to claim damages for its lost profit from the defendants.  Though
the plaintiff’s claim pleaded reliance on section 187 in general terms,
counsel focussed his argument on sub-sections (2) and (3).  He accepted
that nothing in the interim Constitution expressly afforded the plaintiff the
right it claims.  In ordinary legislation, the absence of an expressly
conferred damages remedy does not however preclude such an

21 Da Silva and Another v Coutinho 1971 (3) SA 123 (A) 134F-G
22 Para 13 above
entitlement,21 since (as pointed out earlier)22 the entitlement may be
impliedly conferred by the statute itself or, even if it is not, may arise from
the application of common law principles having regard to the existence
of the statutory duty.  Whether s 187 entails the duty sought to be relied
upon therefore depends on its overall construction in the context of the
interim Constitution.
[16]  It can immediately be seen that section 187 contains a variety of
distinct provisions, which perform a diversity of functions.  But its sub-
sections cannot in my view be sundered:  the provision must be read and
understood as a whole.  Thus sub-section (2) must be read in the light of
the content of sub-section (1), while sub-sections (3) and (4) clearly flow
from the preceding two sub-sections, and must (as will be seen below) be
understood in the context that they create.
[17]  So seen, the primary and overriding import of s 187 is to impose
legislative duties on the national and provincial legislatures.  It requires in
the first instance that procurement “shall be regulated” by legislation

23 See, for instance, the Free State Tender Board Act 2 of 1994, at issue in  Premier, Free State
and Others v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA).
(subsection (1)).23  In the second instance, it prescribes a minimum
content for that legislation — it must contain “provision for the appointment
of independent and impartial tender boards” to deal with procurement
(subsection (1)).  Subsection (2) falls syntactically into two parts.  The first
describes the tendering system that subsection (1) requires the
legislatures to create:  it must be “fair, public and competitive”.  The
second requires that “tender boards shall on request give reasons for their
decisions to interested parties”.  The boards envisaged are plainly those
to be created by the legislation subsection (1) envisages.
[18]  The cross-allusion in the first part of subsection (2) to subsection (1)
leaves no doubt that the former’s injunction that the tendering system be
“fair, public and competitive” also constitutes a directive aimed at the
legislatures, in the sense that it imposes upon them an obligation to create
by the exercise of their legislative powers the system envisaged.
[19] The second part of subsection (2) defines further the content of this
system.  It does so by imposing upon tender boards a duty on request to

give reasons for their decisions to interested parties.  Subsection (3) must
in my view be read and understood against this background.  It embodies
a prohibition on improper interference with the decisions and operations
of “the tender boards” (the definite article signalling a clear reference back
to subsections (1) and (2)). The  prohibition is imposed on three classes
of actors: (a) organs of State;  (b) members of organs of State; and (c) any
other person.   Finally, sub-section (4) imposes an obligation that all
decisions of any tender board be recorded.
[20] Counsel for the plaintiff submitted that, since at the time material to
the plaintiff’s claim there was no relevant post-Constitutional legislation, the
State Tender Board Act 86 of 1968 (“the 1968 Act”) must be interpreted
in the light of and as subject to section 187.  Although it seems evident, as
counsel for the defendants indeed argued, that s 187 requires the
adoption of new, post-constitutional legislation, and to this extent
constitutes a “framework provision”, the plaintiff’s approach to the 1968
Act for so long as it remains in operation is in my view is correct.  Courts
must so far as possible read all legislation to conform with the Constitution

24 See Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and
Others 2001 (1) SA 545 (CC) paras 21-26;  S v Dzukuda and Others; S v Tshilo 2000 (4) SA 1078 (CC)
para 37(a)
and to give effect to its fundamental values.24  It follows in my view that in
so far as it is possible the 1968 Act should be read, in conformity with s
187, to require that (i) the State and regional tender boards it empowers
the Minister of Finance to appoint should be independent and impartial; (ii)
the tendering system they operate must be fair, public and competitive;
(iii) the boards the 1968 Act creates are required on request to give
reasons for their decisions to interested parties; (iv) no improper
interference with their decisions and operations is permitted; (v)  all
decisions they take must be recorded.
[21] It is not necessary to decide whether in fact the 1968 Act is
susceptible of an interpretation that would give effect to each one of these
requisites.  I shall assume that it is.  But this conclusion offers scant
comfort to the plaintiff in establishing its cause of action.  This is because
the twelve provisions of the 1968 Act extant at the time of the events in
issue dealt only with the establishment, constitution, powers, committees,
expenditure and administration of the State and regional tender boards.

Scrutiny of these provisions, interpreted in the light of s 187, reveals none
that assists the plaintiff in justifying the conclusion that a tenderer’s lost
business opportunity can be recovered for breach of its provisions.  We
are therefore driven back to s 187 itself to see if its provisions can found
the entitlement the plaintiff relies upon.
[22]  I am of the view that they do not.  Critical to the determination of the
plaintiff’s case is the nature of the duties that subsections (1) and (2)
impose.  The constitutional injunctions they contain are directed to the
national and provincial legislatures.  It is not necessary to decide at whose
instance the legislative duties they create are exigible, if at all, since the
plaintiff is a member neither of a legislature seeking their fulfilment, nor of
the public complaining of legislative omission in that regard.  The content
subsection (1) specifies for the national and provincial laws it envisages
(“provision for the appointment of independent and impartial tender
boards”) does not assist in establishing a legal foundation for the plaintiff’s
claim since, in its setting (the imposition of legislative duties), it is at best
for the plaintiff neutral on the critical question of securing an independent
entitlement for a lost bargain.

252000 (4) SA 1078 (CC) para 10
[23]  Subsection (2) is of even less assistance.  By contrast with
subsection (1), it contains no direct prescription regarding legislative
content.  It merely imposes minimum desiderata for the system to be
created.  The content of that system is bounded only by the stipulation that
it be “fair, public and competitive”.  The rest is left undefined.  Both the
legislative framework and its detail are left to the national and provincial
legislatures.  As Ackermann J has recently pointed out S v Dzukuda and
Others,25 in the context of the Bill of Rights in the 1996 Constitution, it is
a mistake to assume that a constitutional entitlement can be achieved by
only one specific system or legislative structure.  There may be more than
one way of securing the various elements necessary for the fulfilment of
a constitutional duty and, provided that the legislature devises a system
that effectively secures the right in question, it cannot be faulted merely
because it selects one system rather than another.  The question to be
determined in each case is whether the scheme the legislature devises,
whatever its form, conforms in substance to the constitutional norm.

[24] This has critical implications for the plaintiff’s claim.  Since section
187's injunctions are directed to the legislatures, and leave them free to
devise any of a variety of schemes, provided only that the one selected
ensures a “fair, public and competitive” system of tendering, it follows in
my view that the interim Constitution also empowers them to legislate
regarding the entitlement or otherwise of members of the public to claim
damages for lost profit arising from conduct in breach of the desiderata in
question.  Their legislative capacity must as a matter of logic include this
power.  It is after all the defining premise of this litigation that the interim
Constitution itself contains no express injunction or entitlement in this
regard.  Subject to fundamental rights issues (which the plaintiff has not
advanced) it must follow  that it would be a legitimate exercise of
legislative power to limit a claimant aggrieved by a breach of the system
to a particular remedy, such as interdict or review or — more acutely for
the plaintiff’s case — to out-of-pocket losses caused by or actual
expenses arising from the breach complained of.
[25] From this it necessarily follows that the plaintiff’s contention that either
subsection (1) or subsection (2) without more grounds a delictual claim for

26 Compare  Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) para 21 (distinguishing
constitutional damages, which the judgment held could not be claimed, from non-pecuniary relief by way
of prohibitory or mandatory interdict or otherwise, which the judgment expressly did not foreclose).
27 On the pairing of rights and remedies see the judgment of Kriegler J in Fose v Minister of Safety
and Security 1997 (3) SA 786 (CC) at para 94.
damages is unsustainable.  The provision the plaintiff invokes entrusts the
premise critical to its claim to legislative action, and to infer, before such
action, that the interim Constitution grounds the claim the plaintiff invokes
would beg the question in issue.
[26] Subsection (3), as pointed out earlier, imposes a general prohibition
on improper interference with the decisions and operations of the tender
boards.  At first glance it offers a more promising foundation from which
to infer a direct claim sounding in damages for its breach.  Certainly it
would in my view not be difficult to infer, even before legislative action, that
a member of the public aggrieved by its breach can premise an application
for review or interdict directly upon it.26  The interim Constitution requires
that legislation in fulfilment of the provision’s requirements embody such
a right;  and that right, whether reflected in the legislation or located
residually in the constitutional provision, requires for even minimal
enforcement the remedies of review and interdict.27

[27]  But the plaintiff’s claim goes very much further; and in assessing it the
prohibition subsection (3) contains cannot in my view be seen in isolation.
It must be read in the light of and subject to the legislative directives
contained in the subsections that precede it.  Contextually and
grammatically it 2is clear that it, too, is encompassed in the legislative duty
and power to create the tendering system subsection (1) envisages; and
it, too, is subject to the legislative power to define the recourse
occasioned by its breach.  To conclude that the purpose of its inclusion
was to ground a direct action in damages for an aggrieved party’s lost
profit would in my view be wholly precipitate.
[28] This conclusion is underscored by the most notable feature of the
plaintiff’s claim.  That contains no prayer for or averments regarding out-of-
pocket expenses occasioned by the breaches the plaintiff relies on, but
claims solely its lost profit from the tender it avers it would have been
awarded if those breaches had not occurred.  This casts in sharp relief the
legislative choices that would have to be made in implementing the system
that section 187 envisages.  In the well-known words of van den Heever

28 1951 (1) SA 443 (A) 449B-C
29This is not even to address the distinction, fundamental to the approach to inferring wrongfulness
from a breach of statutory duty in Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 26E-I, between
pure economic loss and physical damage to property or injury to person.
JA in Trotman and Another v Edwick28 —
“A litigant who sues on contract sues to have his bargain or its equivalent in money or in money
and kind.  The litigant who sues on delict sues to recover the loss which he has sustained because
of the wrongful conduct of another, in other words that the amount by which his patrimony has been
diminished by such conduct should be restored to him.”
[29] The plaintiff, which seeks to evoke a delictual remedy from the
interstices of the interim Constitution, aspires to recover through it a loss
measured not in delictual but in contractual terms.29  That is a far-reaching
assertion.  While it is not impossible that a statutory provision,
constitutional or otherwise, could be held to accord such recompense for
its breach, it seems to me quite inappropriate for this to occur by judicial
interpretation of a provision whose primary injunction is for legislative
action to occur in that very area.
[30] Certainly the contention that it is just and reasonable, or in accord with
the community’s sense of justice, or assertive of the interim Constitution’s
fundamental values, to award an unsuccessful tenderer who can prove
misfeasance in the actual award its lost profit does not strike me in this
context as persuasive.  As the plaintiff’s claim, which amounts to more than

30 Compare the remarks of Ackermann J concerning the award of punitive damages in Fose v
Minister of Safety and Security 1997 (3) SA 786 (CC) para 72, referred to below para 41.
31 2000 (2) SA 54 (C)
R10 million, illustrates, the resultant imposition on the public purse could
be very substantial, involving a double imposition on the State, which
would have to pay the successful tenderer the tender amount in contract
while paying the same sum in delict to the aggrieved plaintiff.  As a matter
of public policy the award of such an entitlement seems to me to be so
subject to legitimate contention and debate30 as to impel the conclusion
that the scheme of the interim Constitution envisaged that it should be a
matter for decision by the bodies upon whom the legislative duties in
subsections (1) and (2) were imposed.  In these circumstances to infer
such a remedy judicially would be to venture far beyond the field of
statutory construction or constitutional interpretation.
[31]  I agree with the observations of Davis J in Faircape Property
Developers (Pty) Ltd v Premier, Western Cape31 that in deciding whether
a statutory provision grounds a claim in damages the determination of the
legal convictions of the community must take account of the spirit, purport
and objects of the Constitution, and that the constitutional principle of

32 At 64E-I
33 It is instructive to compare in this regard the principles enunciated in section 195 of the 1996
Constitution (“Basic values and principles governing public administration”).
justification embraces the concept of accountability.32  This in turn must of
course weigh in the balance when determining legal responsibility for the
consequences of public malfeasance.  The proceedings in Faircape,
however, involved an ordinary statute, not a constitutional provision
creating legislative duties, and the damages at issue were for out-of-
pocket expenses, not for lost profit.  The principle of public accountability
is central to our new constitutional culture, and there can be no doubt that
the accord of civil remedies securing its observance will often play a
central part in realising our constitutional vision of open, uncorrupt and
responsive government.33  What precise remedy or remedies within the
range available, including interdict (mandatory or prohibitory), review and
the award of damages (whether for out-of-pocket losses or more), will be
appropriate to secure that vision, depends however on the context of the
statutory provision in question;  and in section 187 I can find no basis of
interpretation and no applicable principle of public policy entitling the
plaintiff to claim its lost bargain.  It must follow that Claim A was rightly set
aside.

34 In terms of section 33 read with Item 23(2)(b) of schedule 6 of the 1996 Constitution, this
provision remained in force until the Administrative Justice Act 3 of 2000 was brought into operation on 30
November 2000.
CLAIM B: IS AN AWARD OF DAMAGES FOR LOST PROFIT AN
“APPROPRIATE REMEDY” FOR BREACH OF THE ADMINISTRATIVE
JUSTICE PROVISIONS OF THE INTERIM CONSTITUTION?
[32] In terms of section 24 of the Fundamental Rights Chapter of the
interim Constitution —
Administrative justice
24.  Every person shall have the right to —
(a)
lawful administrative action where any of his or her rights or interests is affected
or threatened;
(b)
procedurally fair administrative action where any of his or her rights or legitimate
expectations is affected or threatened;
(c)
be furnished with reasons in writing for administrative action which affects any of
his or her rights or interests unless the reasons for such action have been made
public; and
(d)
administrative action which is justifiable in relation to the reasons given for it
where any of his or her rights is affected or threatened.34
[33] Sections 4(2) and 7(1) and (2) of that Constitution entail that these
provisions were binding on the defendants as organs of state.   Section
7(3) provides that juristic persons are entitled to the rights contained in the
Fundamental Rights Chapter “where, and to the extent that, the nature of
the rights permits”.  I shall assume that the plaintiff is under s 7(3) entitled
to the benefit of the rights in s 24.  On this assumption and the facts

35 1997 (3) SA 786 (CC)
36 Para 69 (footnote omitted)
presumed true under the parties’ agreement, the defendants’ irregular,
unreasonable and arbitrary conduct in the tender process certainly
breached the plaintiff’s rights in s 24.  Section 7(4)(a) provides that —
When an infringement of or threat to any right entrenched in this Chapter is alleged, any person
... shall be entitled to apply to a competent court of law for appropriate relief, which may include
a declaration of rights.
[34]  In Fose v Minister of Safety and Security,35 the question was
whether a plaintiff claiming damages for assault at the hands of the police
could, over and above his entitlement to damages at common law, obtain
“constitutional damages”, including an element of punitive damages, to
vindicate the constitutional rights violated by his assault.  The Constitutional
Court held that he could not.  Before reaching that conclusion, however,
Ackermann J on behalf of the majority emphasised the following regarding
the entitlement to “appropriate relief” in s 7(4)(a):
“In our context an appropriate remedy must mean an effective remedy, for without effective
remedies for breach, the values underlying and the right entrenched in the Constitution cannot
properly be upheld or enhanced. Particularly in a country where so few have the means to enforce
their rights through the courts, it is essential that on those occasions when the legal process does
establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The
courts have a particular responsibility in this regard and are obliged to 'forge new tools' and shape
innovative remedies, if needs be, to achieve this goal.”36
[35]  In the present case, the plaintiff in addition to the facts assumed true

led evidence on Claim B seeking to establish that the award to it of its lost
profit would constitute “appropriate relief” under s 7(4)(a).  That evidence,
together with the correspondence the plaintiff attached to its particulars of
claim, established that in order to tender the plaintiff obtained an option to
purchase a building, but that when its tender was not accepted the owner
was unwilling to extend the option beyond 22 September 1995 for the
possibly protracted period that review proceedings to set aside the tender
might require.  Though the building remained unsold, the owner took in
other tenants, and at the time evidence was led it was at best for the
defendants not clear whether and under what circumstances the plaintiff
would, if it had instituted review proceedings, have been able to re-acquire
an option on it.
[36]  It was on this particular feature of the plaintiff’s circumstances that
counsel relied in contending that an award of the profit lost constituted an
appropriate remedy.  Urging that the plaintiff’s entitlement was narrowly
cast, and that a claim for lost profit would not be “appropriate” at the
instance of every failed tenderer, counsel for the plaintiff conceded that,
had the plaintiff owned the building, Eloff JP’s finding that the failure to

institute review proceedings precluded such a claim could not have been
assailed.  Counsel’s concession flowed from an appreciation that in such
circumstances the plaintiff would have been entitled through legal action
to take steps to secure the tender to itself, thus rendering a damages
award for the profit it had lost inappropriate.  The plaintiff in this way sought
to bolster its own claim by invoking the special facts pertaining to its
position as an option-holder with only a temporary stake in the building it
sought to let.
[37]  To counsel’s concession must be added the following.  It emerges
from a letter by the State Attorney to the plaintiff’s attorney attached to the
particulars of claim that nine days before the tender was awarded on 31
August 1995 the plaintiff was aware of the facts on which it later based its
allegations of impropriety, and that the provincial government’s written
recommendations to the Tender Board, on which the award was based,
and which formed the centrepiece of the subsequent complaint, were
supplied to it at that stage.  Counsel correctly conceded that in these
circumstances and on the assumptions made the plaintiff would have been
entitled to an interdict prohibiting the defendants from continuing the

37 2001 (1) SA 1 (CC) para 55
tender process and indeed from allocating the award elsewhere at all.
[38] This in my view has acute consequences for the plaintiff’s task in
seeking to convince the Court that an award of the profit lost through the
non-award of the tender could constitute “appropriate relief”.  An interdict
would not only have anticipated the later dispute; it would have eliminated
the source of loss the plaintiff invokes.  This no doubt reflects the wisdom
of hindsight, and offers stony comfort to a plaintiff who, as Mr Ginsburg
was at pains to emphasise, has never manifested an intention to abandon
its rights.  Yet, as Ngcobo J emphasised on behalf of the Constitutional
Court in Hoffmann v South African Airways,37 what constitutes
“appropriate relief” depends on the facts of each case.  The plaintiff relies
on its special circumstances to found a constitutional entitlement.  Fair
scrutiny must encompass all aspects of its position, and the alternative
remedies available to it, at all stages of the dispute, must be a critical
factor in that assessment.
[39]  The award, we were urged, would vindicate the purposes of the

38 1997 (3) SA 786 (CC)
Constitution, and inhibit maladministration in public bodies.  Those claims
must on their own premises be assessed with an eye on their public
purposes, and the fact that interdictory relief was available to the claimant,
at an early stage in the dispute, must be relevant to assessing its position
in asserting them.
[40]  This is particularly so in relation to a remedy that would grant the
plaintiff the profit it would have gained had it been awarded the tender.  As
with its case under s 187, the amplitude of what it claims must obtrude
heavily onto the assessment.  The plaintiff claims that the bargain it lost
must be accorded to it so that the Constitution can be asserted.  Here the
judgment in Fose’s case38 casts an oblique but significant shadow across
the plaintiff’s path.  The issue there, as pointed out earlier, was the utility
to the public purposes of the Constitution of awarding an individual
damages over and above his common law entitlement.  The plaintiff’s
common law entitlement here, as Eloff JP pointed out, did not encompass
a right to be awarded the tender;  if it was aggrieved by the award, the
common law offered it the remedy of review.  What the interim Constitution

39Compare De Smith, Woolf and Jowell Judicial Review of Administrative Action Fifth Edition (1995)
para 19-033:
“The causation of damage also creates particular problems in respect of the imposition of
tortious liability on public authorities for unlawful administrative action. It is trite law that
judicial review is not concerned with the merits of administrative decisions and the court
should ordinarily avoid substituting its own opinion for that of the public body as to how
precisely a discretion should be exercised. How, then, is a court to approach a case
where, for example, a plaintiff alleges that a breach of natural justice activated by malice
has caused him loss (such as the refusal of a license to trade) or the decision maker
negligently failed to take into account a relevant consideration? The court may avoid
second-guessing what decision the public authority would have reached had the decision
not been tainted by illegality by saying that the plaintiff has at most lost an opportunity to
obtain a benefit. Probability will be defined by, among other facts, the degree of discretion
possessed by the decision maker. As Harlow points out, whilst in most cases a court may
attempt to place a value on a lost chance, special difficulties arise in relation to damages
secured additionally to the plaintiff was a right to lawful and procedurally
fair administrative action in regard to its interests as affected by the tender
process.
[41]  An appreciation of these factors is embedded in the formulation of
its claim, which does not seek the revocation of the tender awarded and
its re-allocation to itself, but asserts instead that fair process, if followed,
would have resulted in its obtaining the award and hence claims damages
for profit lost by a denial of fair process.  The claim thus derives from a
breach of fair process but it seeks to recover the equivalent of a
successful outcome.  Its failure to challenge the outcome in review
proceedings the plaintiff explains on the basis that its option over the
building did not last long enough.  Leaving aside the conceptual and
practical difficulties this omission raises,39 the nub of the matter is that the

claims associated with judicial review because this exercise would necessarily involve the
court substituting its own discretion for that of the decision maker. A solution is to defer
the action for damages until after the outcome of the application for judicial review is known
and the public body has complied with the decision. However, even if the court considering
the damages claim waits for the decision maker to reconsider the decision in accordance
with law, conceptual problems may still arise if a decision is characterised as void (rather
than voidable); in these circumstances what will have caused the plaintiff’s loss?”
40 Para 71
41 Fose para 72
plaintiff in effect claims a windfall, and does so on the premise that its gain
has also the public dimension of constitutional vindication.  Yet, as
Ackermann J pointed out in relation to the punitive damages sought in
Fose, for awards to individuals to have a salutary effect on the conduct of
public officials they would have to be very substantial, and “the more
substantial they are, the greater the anomaly that a single plaintiff receives
a windfall of such magnitude”.40  Not only is there an anomaly, but the
grave impact on the exchequer raises a critical policy consideration, which
Ackermann J described thus:
“In a country where there is a great demand generally on scarce resources, where the government
has various constitutionally prescribed commitments which have substantial economic implications
and where there are ‘multifarious demands on the public purse and the machinery of government
that flow from the urgent need for economic and social reform’, it seems to me it would be
inappropriate to use these scarce resources to pay punitive constitutional damages to plaintiffs who
are already compensated ...”41
[42] These constitute powerful reasons of policy pointing away from a
constitutional entitlement to damages in the terms the plaintiff asserts.  It
is, however, not necessary to decide that a lost profit can never be

claimed as constitutional damages.  Certainly the question of out-of-pocket
expenses is not before us.  But in all the circumstances of this particular
case, including the availability to the plaintiff of alternative remedies — by
way of interdict before the award of the impugned tender, and, thereafter,
for at least a time, by way of review — I conclude that the lost profit the
plaintiff claims would not be an appropriate constitutional remedy.  It must
follow that Claim B, also, was correctly set aside.
[43] The appeal is dismissed with costs, including the costs of two
counsel.
E CAMERON
JUDGE OF APPEAL
HEFER
ACJ)
MARAIS
JA)
CONCUR
OLIVIER JA)
ZULMAN
JA)