Big Five Duty Free (Pty) Limited v Airports Company South Africa Limited and Others

ACSA awarded a ten-year duty-free retail tender at three international airports to Big Five in August 2009. An unsuccessful bidder, DFS Flemingo, successfully reviewed and set aside the award in the High Court on the basis that the tender process was unlawful. Big Five appealed. ACSA and another unsuccessful bidder, Tourvest, chose to abide the appeal and did not participate. Before judgment was delivered, Big Five and Flemingo settled: Flemingo abandoned the High Court judgment and withdrew the review application, and the settlement was made an order of the full court. Despite this, ACSA later claimed it was not bound by the settlement order and sought to restart the tender process. Big Five then applied to compel ACSA to implement the original tender award. The High Court refused, holding the review judgment was a public remedy that could not be undone by private settlement. Big Five appealed to the Supreme Court of Appeal.

The appeal was upheld. The High Court order was set aside and replaced with an order declaring ACSA bound by its 2009 tender award to Big Five, directing ACSA to sign and implement the lease agreements within 30 days, and ordering ACSA to pay Big Five’s costs, including the costs of two counsel.

The case clarifies that a settlement agreement made an order of court on appeal binds all parties to the litigation, including those who elect to abide the outcome. It affirms the finality and binding effect of court-sanctioned settlements in administrative law disputes and limits attempts by organs of state to evade such orders by invoking the public-law character of review judgments.