SKG Africa (Pty) Ltd v South African Local Government Association and Others

SKG Africa (Pty) Ltd submitted a tender to SALGA for provision of office accommodation in the Eastern Cape for five years (Bid No. SALGA/20/2022). The tender closed on 22 December 2022. On 30 May 2023, the applicant was notified its bid was unsuccessful. On 23 June 2023, SALGA provided a screenshot showing the successful bidder (Sthathu Funding) had quoted a higher price than the applicant. On 27 June 2023, applicant's attorney requested documents and reasons for the decision under both PAJA section 5(1) and PAIA section 18(1), requesting reduction of the 90-day period to 7 days. After no substantive response within 30 days (the PAIA deadline), the applicant launched urgent proceedings on 16 August 2023 seeking: (a) written reasons for the award decision; (b) reduction of the 90-day PAJA period; and (c) access to tender documents including all bids, evaluation reports, and committee minutes. SALGA opposed, arguing it was entitled to the full 90-day period under PAJA and that some documents related to third parties requiring notification under PAIA section 47.

• Whether the applicant was entitled to urgent relief requiring production of tender documents under PAIA
• Whether the matter was urgent given the delay between the initial threat to launch proceedings (27 June) and actual launch (16 August)
• Whether the 90-day period prescribed by section 5(2) of PAJA for providing reasons should be reduced under section 9(1) of PAJA
• Whether section 25(1) of PAIA (30-day response period) applied where third parties needed to be notified under section 47
• Whether in terms of section 27 of PAIA, SALGA was deemed to have refused the request after 30 days
• The interaction and application of both PAJA and PAIA to a request for tender information and reasons

1. Condonation granted for non-compliance with court rules relating to service, time periods and form, and application disposed of as urgent in terms of Rule 6(12) read with Rule 2(2) of the PAIA Rules. 2. First and/or second respondents ordered to produce for inspection and collection by applicant, within 48 hours of service, copies of documents listed in paragraph 4 of the notice of motion (all bids, committee agendas/minutes/reports, evaluation reports, risk analyses, site inspection results, award letter, SCM policy, and internal appeal process) in terms of section 82 of PAIA. 3. Application for reduction of 90-day PAJA period dismissed. 4. Each party to pay its own costs.

1. A request for access to information under PAIA must be distinguished from a request for reasons under PAJA - each is governed by different timelines and procedures. 2. Under section 27 of PAIA, where an information officer fails to provide a decision on a PAIA request within 30 days as required by section 25(1), the officer is deemed to have refused the request, entitling the requester to approach court under section 82. 3. Urgency for purposes of access to tender information can be established where delay may compromise the requester's ability to timeously challenge the procurement decision, particularly where implementation of the award is imminent or ongoing. 4. The court has discretion under section 9(1) of PAJA to reduce the 90-day period for providing reasons, but this will only be exercised where the interests of justice so require - the mere fact that a matter is urgent for other purposes does not automatically justify truncation of the statutory 90-day period. 5. An applicant who has complied with the procedural requirements of PAIA (particularly section 18) and who seeks information necessary to exercise or protect rights (such as the right to challenge administrative action) is entitled to an order for production of documents under section 82 of PAIA.

The court observed that common sense dictates that every day that passes brings the implementation of a tender award closer, which supports a finding of urgency in applications for access to tender information. The court also commented that respondents appeared to treat the PAIA and PAJA requests as one unified request, despite the different legal frameworks and timelines applicable to each. The court noted that while section 47 of PAIA requires notification to third parties where records relate to them, this does not relieve the information officer of the obligation to respond within the prescribed timeframes. The judgment suggests (without deciding definitively) that where an unsuccessful tenderer requires information to decide whether reviewable irregularities occurred, delay in providing that information exposes the tenderer to potential irreparable financial prejudice, particularly given that damages against public bodies may only be available in cases of fraud.

This case illustrates the interaction between PAJA and PAIA in the tender/procurement context, clarifying that: (1) requests for reasons for administrative decisions are governed by PAJA's 90-day period (section 5), while requests for access to documents are governed by PAIA's 30-day period (section 25); (2) where an information officer fails to respond within 30 days under PAIA, they are deemed to have refused the request under section 27, entitling the requester to approach court for relief under section 82; (3) urgency in access to information applications may be established where delay could affect the requester's ability to exercise remedial rights (such as review applications); (4) courts will not readily truncate the 90-day PAJA period for providing reasons absent compelling circumstances showing it is in the interests of justice; and (5) the fact that requested information relates to third parties (requiring notification under section 47) affects the applicable PAIA timelines. The judgment reinforces that access to tender information is crucial for enabling unsuccessful bidders to assess whether to challenge procurement decisions.