Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd

Legality principle examined and dissenting judgment deals in some detail why it cannot agree with everything stated in the majority judgment.

“In exercising its discretion whether to hear a review despite unreasonable delay it is not necessary that a final and definitive pronouncement always be made on the unlawfulness of an exercise of public power or an administrative action. This is especially so when the public body approaches the Court with questionably smudged hands and the possible unlawfulness is not of an obviously serious nature.” [para 139]

Essence

Legality principle examined in detail in minority judgment by three constitutional court judges and contrasted with requirements of PAJA

Decision

(CCT91/17) [2019] ZACC 15 (16 April 2019).

Split decision – see judgment for details

Judges

Coram: Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J

Judgments: Theron J (majority): [1] to [107] (see separate post)
Cameron J and Froneman J (dissenting): [108] to [154]

Heard on: 4 September 2018

Decided on: 16 April 2019

Reasons

“The important point is that there is no reason to intervene to vindicate any public principle of contract or section 217 transparency or fairness. There is no public purpose that would be served here by getting to the Municipality’s antecedent challenge at all.  In Gijima, this Court correctly pronounced the principle founded in section 172(1)(a) of the Constitution that this Court is mandated “to declare invalid any law or conduct that it finds inconsistent with the Constitution”.[1]

However in this instance we find that there was no proper ground for exercising a discretion in favour of the Municipality to hear the review.  Resorting to section 172(1)(a) is not necessary to arrive at a just outcome.” [para 150][1] Gijima above n 3 at para 52.  Section 172(1)(a) provides:

“When deciding a constitutional matter within its power, a court—

(a)   must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency.”

Court summary

Legality review — unreasonable delay — overlooking delay — section 172 of the Constitution — Gijima

MEDIA SUMMARY
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The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Tuesday, 16 April 2019 at 10h00, the Constitutional Court handed down a judgment in an application for leave to appeal against the judgment and order of the Supreme Court of Appeal upholding an appeal against a decision of the High Court of South Africa, Eastern Cape Division, Grahamstown (High Court). In the High Court, the applicant, the Buffalo City Metropolitan Municipality (Municipality), instituted proceedings seeking an order reviewing and setting aside its decision to award a tender to the respondent, Asla Construction (Pty) Limited (Asla), on the basis of non-compliance with section 217 of the Constitution and the statutory provisions governing procurement.

In 2003, the Municipality recognised the need to address housing shortages in Duncan Village, and specifically in informal settlements in that area, including Reeston. Asla tendered for and was appointed as an implementing agent on a turnkey basis for a housing project to address the housing needs of Duncan Village. The Municipality accepted Asla’s tender. On 30 May 2014, the Municipality and Asla concluded an agreement (the Turnkey Agreement). The Turnkey Agreement required Asla to provide 3000 housing units for the Duncan Village Development. In October 2014, the parties concluded a subsequent agreement for the engineering services and construction of housing top structures within Reeston (the Reeston Agreement). Asla then commenced work under the Reeston Agreement.

A dispute arose between the parties surrounding the conclusion of the Reeston Agreement. When the Municipality failed to pay Asla for its work under the Reeston Agreement, Asla instituted provisional sentence proceedings against the Municipality. The Municipality brought a counter-application seeking to review and set aside its decision relating to the Reeston Agreement. The Municipality contended that there ought to have been a separate tender and procurement process before the Reeston Agreement was concluded.

Majority judgment

In a majority judgment penned by Theron J (Basson AJ, Dlodlo AJ, Goliath AJ, Mhlantla J and Petse AJ concurring), the Constitutional Court granted leave to appeal and upheld the appeal. It held that the delay by the Municipality in launching its review proceedings was unexplained and thus unreasonable. The Municipality had conducted itself outrageously and flippantly throughout its litigation. Significantly, it refused to take the Court into its confidence regarding the irregularities surrounding the Reeston Agreement and attempted to make a settlement agreement about patently unlawful conduct an order of court.

However, because of the manifestly unlawful nature of the Reeston Agreement, the Court was obliged to declare the contract unlawful. Asla’s scope of work had been expanded significantly without any proper tender process. In these circumstances, justice and equity dictate that the Municipality should not benefit from its own undue delay and in allowing Asla to proceed to perform in terms of the contract.

The majority judgment therefore made an order declaring the Reeston Agreement invalid, but not setting it aside so as to preserve the rights that Asla might have been entitled to. It was noted that this award preserves rights which have already accrued but does not permit a party to obtain further rights under the invalid Reeston Agreement.

Dissenting minority judgment

In a dissenting judgment (the second judgment), Cameron J and Froneman J (Khampepe J concurring) concluded that the main judgment erred in finding that the interests of justice required this Court to make a definitive finding on the lawfulness of the Reeston Agreement. The second judgment held that the Municipality’s delay in bringing self review proceedings to set aside its own decision was so lamentably inexcusable, that there is no public interest or constitutional necessity for pronouncing on its legality.

This Court’s jurisprudence and constitutional imperatives envisage instances of this kind and equally insist that delays must be explained. In the absence of an adequate explanation, justice may not require courts to inquire into unlawfulness. It would be different where the seriousness of the unlawfulness warrants a court to overlook the delay.

The second judgment accordingly found that the interests of justice do not favour this Court entertaining the Municipality’s application. The minority thus held that leave to appeal should have been refused.

Quotations from judgment

Note: Footnotes omitted and emphasis added

CAMERON J AND FRONEMAN J (Khampepe J concurring):

[108] We have read the deft and comprehensive judgment by Theron J (first judgment). Although our reasoning reaches the same eventual practical outcome

[109] (namely that the respondent is entitled to the money it claims under the Reeston contract), our reasoning takes us along a different route.

[110] The contours of our divergent lines of reasoning are significant for this Court’s developing legality jurisprudence on judicial review applications brought by organs of state. We disagree with the first judgment that in delay cases the interests of justice require this Court to make a final and definitive finding on the lawfulness of the Municipality’s actions in concluding that contract. We agree that the issue of lawfulness plays a part in weighing up whether the review should be entertained, but it is not the sole determining factor. Here there are no compelling reasons to entertain the review given the Municipality’s unreasonable delay in bringing its application. Accordingly, it is our view that leave to appeal should be refused.

[111] In coming to this conclusion, we show that this Court’s jurisprudence, and the deep constitutional imperatives that underlie it, provide for instances where a public authority’s delay in bringing “self-review” – legal proceedings to set aside its own decision – is so prodigiously and lamentably inexcusable that there is no public interest or constitutional necessity for pronouncing on its legality. Those cases will be rare, for, as this Court’s decisions show, there is a constitutional imperative to locate and declare unconstitutional conduct invalid under the Constitution. However, our precedents envisage those cases; and this is one of them.

Self-review under the principle of legality

[112] The Municipality seeks judicial review of its own decision in concluding the Reeston contract with the respondent. State self-review is a novel, but burgeoning, species of judicial review that has claimed the attention of this Court in a number of recent decisions. In Gijima, this Court, over a split decision in the Supreme Court of Appeal, opted for legality review – rather than PAJA review – as the pathway for dealing with a narrowly construed category of self-review applications. The first judgment correctly notes that this matter falls within this category of state self-review identified in Gijima and should accordingly be dealt with under the principle of legality. In doing so, Gijima, understood in the light of the preceding decisions of this Court in Khumalo, Kirland and Tasima I, governs.

[113] The reasoning this Court advanced in Gijima for choosing legality as the appropriate pathway for state institutions’ self-review has not found universal favour. While its treatment of standing and delay has been the immediate target of this criticism, Gijima is also accused of aggravating the bifurcation or “parallelism” in our administrative law between PAJA review as opposed to legality review. This has been a persisting source of academic concern. It may in due course become necessary to reconsider whether the legality review pathway chosen in Gijima withstands the test of time. Now is not that time. This is because the issue was not argued before us and also because this case may help show that the adverse consequences predicted of Gijima – which would be necessary to justify any fundamental change of course – may not necessarily eventuate.

[114] This judgment converges with the first judgment in seeking approaches that best promote open, responsive and accountable government. This is the lodestar guiding the development of legality jurisprudence in respect of state self-review. We acknowledge that there may be reasonable disagreement on how best to achieve this goal. Both the first judgment and ours seek to achieve the same goal, although we differ, in this instance, on how to get there. That is to be expected, debated and celebrated in a developing democracy like ours. There is no permanent harm in acknowledging that we are still feeling our way to a better future, rather than relying on the so-called, but ephemeral, certainties of the past.

[115] Common law judicial review – the predecessor and part-ancestor of constitutional legality review – did not provide for self-review by state organs. The constitutional era claims that capacity for state organs. This is because its commitment to open, responsive and accountable government not only permits state self-review but places a duty on state officials to rectify unlawful decisions.

[116] Constitutional legality review also finds rich grounding in sections 1(c), 41(1)(b), 195 and, as far as public procurement is concerned, section 217 of the Constitution. In its objective, state self-review should therefore promote open, responsive and accountable government. In this, its underlying concern is consonant with that of the fundamental right to lawful, reasonable and procedurally fair administrative action that the Constitution affords to everyone. What legality review does, in sketching out a distinctive path, is to recognise the distinctive roles of those entitled to exact constitutional rights and the organs of government whose duty it is to obey and fulfil those rights. It is far from the only reasonable and logical conclusion that PAJA, which seeks to give legislative content to the right to just administrative action, must necessarily afford the exclusive or indeed the most appropriate pathway for state self-review.

Purpose-driven procedure: the delay enquiry

[117] It is with this imperative objective of legality review in mind that we deal with the procedural obstacles this case presents to the Municipality’s self-review application.

[118] It is important, at the outset, to clarify that we are dealing with a review where delay is a central feature. The law is clear where delay is not a feature. On that, we are on the same page as the first judgment.

[119] Where there has been no delay by an organ of state in seeking to review its own prior decision, a declaration of unlawfulness should invariably be made. In AllPay II, we affirmed that this “default position” reflects the most basic imperative of the principle of legality in “requir[ing] the consequences of invalidity to be corrected or reversed where they can no longer be prevented”. In bringing an application for self-review promptly, the state is also complying with its duty to correct suspected unlawful decisions expeditiously and diligently. In short, timely self-review generally results in a win-win for the rule of law.

[120] Where there is non-negligible delay by an organ of state in bringing a self review application, the court must determine whether the delay is reasonable and should accordingly be condoned.

In Khumalo, this Court rightly cautioned that “a court should be slow to allow procedural obstacles to prevent it from looking into a challenge to the lawfulness of an exercise of public power”. Skweyiya J was quick to add, however, that this does not make the procedural requirement regarding delay superfluous.

[121] On the contrary, the delay bar serves an important rule of law function: it promotes the public interest in the certainty and finality of decision-making. This is an imperative focus whenever a court undertakes a case-specific enquiry as to the reasonableness of the delay. The explanation proffered is a key consideration in assessing its reasonableness, particularly in state self-review. It is an opportunity for the state to demonstrate that its self-review seeks to promote open, responsive and accountable government rather than the self-interest of state officials seeking to evade the consequences of their prior decisions. This is the key in deciding whether the Municipality’s behaviour passes the interests of justice test for granting leave to appeal.

[122] Even where a delay is found to be unreasonable, however, our precedents establish that a court retains a discretion to overlook the delay provided it is in the interests of justice to do so. This stage of the procedural enquiry should not take place in a “vacuum”.

It must instead involve weighing

  • (a) the effect of the delay on the parties and
  • (b) the nature of the impugned decision.

[123] It is only at this stage that we differ from the first judgment in our application of this Court’s guidelines, including those in Gijima, for addressing an unreasonable delay when a state organ seeks to have its own decision set aside.

[124] The first judgment requires “a full and honest explanation for the whole period of the delay” and seeks to hold it, as a constitutional organ bearing higher duties in relation to accountability, “to a rigorous standard”. It finds no basis to overlook the Municipality’s unreasonable delay, but nevertheless concludes that the interests of justice favour pronouncing on the unlawfulness of the conduct while also affording ASLA a just and equitable remedy.

[125] In this, the first judgment reflects the ambivalence that emerges from this Court’s own previous decisions. These have insisted that where delay is unreasonable and unexplained, the nature of the application and its merits would not favour overlooking it (Khumalo), and indeed that undue delay should not be overlooked (Tasima I). These decisions have also asserted that a government actor must afford a court a basis for overlooking inordinate delay (Gijima), in the absence of which there can be no possible basis for exercising the court’s discretion to assist the actor by affording it the relief it seeks.

[126] At the same time, in tension with these enunciations, our precedents have sought to impose a square on the circle they create by nonetheless inquiring into the legality of the state conduct at issue, and thence to afford deserving subjects dealing with the errant state body a just and equitable remedy (Tasima I, Gijima ) in exercise of the wide remedial powers the Constitution grants a court faced with invalid conduct.

[127] The first judgment follows this approach by affording a deserving subject – the respondent here – a just and equitable remedy, but only after inquiring into and pronouncing upon the government action in issue, in defiance of the unexplained and unreasonable delay in coming to court. We appreciate the judicial pragmatism in this approach, and recognise its forebears in our own jurisprudence. But equally present in that jurisprudence is the clear insistence that delay must be explained, that the court has to be fully informed, that unexplained delay impedes just adjudication and that in the absence of explanation no indulgence can be afforded.

[128] We suggest an alternative route. This is that, in the absence of adequate explanation for unreasonable delay, courts should not intervene to inquire into a final and determinative holding into unlawfulness, unless the seriousness of the unlawfulness at issue warrants overlooking the manifest deficiencies in the state actor’s case.

[129] The facts here offer a good example. Yes, the Municipality complained about the Reeston contract’s non-compliance with constitutional procurement requisites, but none of the deficiencies it instanced, and none of the external factors surrounding the performance of the contract, imperatively warrant the court’s overlooking the public body’s egregious lapse in failing to explain the delay.

[130] None of the values underlying self-review afford any virtue in pronouncing on the lawfulness of the conduct at issue here. No evidence suggests any manifest deficiency in lawfulness that may outweigh the importance of insisting on the state’s scrupulous adherence to legal requirements in complying with its constitutional duties. All we have is a public body that seeks to evade the consequences of its prior decision without offering any explanation at all for its delay in coming to court. And – as the first judgment rightly notes – the Municipality only adds to the topsy-turviness of all this by now seeking an order pronouncing the conduct sought to be impugned as valid.

[131] All this points inexorably to one pragmatic, just conclusion: that it is not in the interests of justice for this Court to entertain the Municipality’s application, and that leave to appeal must be refused.

[132] Refusing to overlook the Municipality’s unreasonable and unexplained delay, and refusing to countenance its illogical somersault in now seeking court sanction for the impugned conduct, does not denote slavish adherence to procedure. Rather, it recognises that the procedural rules regarding delay should be applied in pursuance of the overarching objective of legality review. The delay rule should not be viewed solely through the ancestor lens of common law review, but through our constitutional lens in which legality review serves to promote open, responsive and accountable government.

[133] This purpose-driven approach to procedure is very different to the formalistic notion that the delay rule must necessarily be assessed as a point in limine (preliminary point) that precludes any consideration of the merits of the review. Rather, a careful weighing up of two different aspects of the rule of law is required when considering whether it is in the interests of justice to condone or overlook a delay: the importance of declaring (and correcting) unlawful decisions, and the importance of expeditious and diligent compliance with constitutional duties so as to ensure certainty and finality for the parties relying on such decisions.

[134] In Khumalo, this Court held that the effects of the delay on the parties should not generally cause an applicant to be non-suited because the court’s remedial powers can be exercised to mediate any potential prejudice to the parties in overlooking the delay and control the possible consequences of setting aside the impugned decision. The nature of the impugned decision concerns the seriousness of the illegality, and therefore has a direct bearing on the importance that is attached to declaring the decision unlawful. The weight that should be afforded to this factor is not yet settled in our legality jurisprudence. It is therefore unsurprising that we part ways on this very point with the first judgment.

The nature of the impugned decision

[135] Khumalo offers an instructive point of departure for considering when the nature of the impugned decision might justify overlooking an unreasonable delay. The Court held that the enquiry “requires analysing the impugned decision within the legal challenge made against it and considering the merits of that challenge”. The pivotal question was whether it was in the interests of justice to pronounce on the unlawfulness of the decision.

[136] Since there was scant detail to explain the Member of the Executive Council’s impugned decision, the Khumalo Court did not pronounce on the lawfulness or constitutional validity of the decision at all. The lack of an explanation was an impediment, even though the Court had observed that the decision was apparently unfair and there were reasons to suspect it was unlawful. The public warrant in inquiring into the decision at issue stopped exactly there. So the Court made no finding on the unlawfulness of the decision.

[137] Just so here. There is no compelling reason for this Court to entertain the Municipality’s application for leave to appeal. That was so before its settlement was placed before us with such conspicuous and contradictory illogicality. The first judgment, even though it refuses to condone the lateness of the Municipality’s review application, nevertheless proceeds to consider the lawfulness of the decision. We cannot go that route, and our precedents do not oblige it.

[138] The important principle here is how this Court manages complex institutional settings of corruption and maladministration, particularly at the local government level. If this Court were to allow collateral review challenges in the face of utterly unreasonable delays, without even minimal explanations, the important protections our judgments have elaborated would provide leaky cover.

[139] In exercising its discretion whether to hear a review despite unreasonable delay it is not necessary that a final and definitive pronouncement always be made on the unlawfulness of an exercise of public power or an administrative action. This is especially so when the public body approaches the Court with questionably smudged hands and the possible unlawfulness is not of an obviously serious nature.

[140] The objective served by legality review must therefore be borne in mind when evaluating the importance to be attached to the seriousness of the illegality. A court should be vigilant in ensuring that state self-review is not brought by state officials with a personal interest in evading the consequences of their prior decisions. It should scrutinize the conduct of the public body and its candour in explaining that conduct to ensure, in the public interest, open, responsive and accountable government. Where there is glaring arbitrariness and opportunism – that is, where the government actor’s efforts to correct the suspected unlawful decision serve the antithesis of the rule of law – the interests of justice weigh against giving it a free pass by overlooking an unreasonable delay.

[141] This case typifies these instances. We spell out our reasons below in our assessment of the facts. Although the first judgment has dutifully set out the background to this case, the facts depict such flagrant opportunism and a bald-faced dereliction of constitutional commitment that they bear repeating.

Absent explanation and inadequate evidence

[142] In August 2014, the Municipality indicated that the Reeston contract would be part of the Turnkey contract and, in a letter from Mr Pillay, dated 4 September 2014, “awarded” the contract to the respondent. There was a change in the office of the city manager. Mr Pillay acted in that office from September 2014 until August 2015. He realised that there was something off about the award of the contract to the respondent. He suspected that the award was unlawful because the Municipality did not adhere to the precepts in section 217 of the Constitution nor did it carry out a procurement process in accordance with the Local Government: Municipal Finance Management Act 56 of 2003 (MFMA). In a letter to the municipal council dated 4 August 2015, Mr Pillay mentioned irregularities in the process. Although no evidence has been offered as to what the response to his letter was (if indeed there was one), Mr Pillay did not make much of his suspicions in the following year. No further explanation as to the events or reasons for the lack of any further action during this period has been offered.

[143] Twelve months later, Mr Pillay’s concerns resurfaced when he reported alleged irregularities on the part of the municipal manager to the Executive Mayor. This time the municipal council commissioned an investigation into the lawfulness of the Reeston contract. The investigator, Ms York, confirmed Mr Pillay’s suspicions: the contract was unlawful. She found that Mr Pillay’s award of the Reeston contract to the respondent contravened the MFMA. Ms York reported this to the Municipality on 21 October 2015.

[144] But even with this report, the Municipality seems to have done nothing. It neither initiated legal proceedings to challenge the lawfulness of the Reeston contract nor informed the respondent that the contract was found to be unlawful and thus should not be implemented. Instead, the Municipality allowed the respondent to continue performing in accordance with the terms of the contract. The only suggestion that the Municipality did not regard the contract as enforceable was its refusal to pay when the respondent submitted invoices for the work it had completed. This was, at best, a weak indication from which to expect the respondent to realise the unlawfulness at issue. The respondent approached the High Court on 15 October 2015. The Municipality had last paid the respondent on 20 May 2015, following a payment certificate issued by the respondent on 28 April 2015. Further payment certificates issued on 3 June 2015, 7 July 2015 and 4 August 2015 remained unpaid. The Municipality raised the unlawfulness of the contract (a collateral challenge of its decision to award the contract) only after the respondent dragged it to court for payment in November 2015. This was a month after Ms York’s report confirming that the contract was unlawful had been considered by the Municipality. This does not suggest good faith in undoing Mr Pillay’s conduct.

[145] The Municipality’s hands are thoroughly smudged and grimy. It wanted the High Court and this Court to uphold its defence to a private actor’s claim for moneys due on the premise that the claim sprang from an unlawful contract. Yet it did not tell the Court what it knew or knows now, or ought to have known, about precisely that unlawfulness. More specifically, there are significant remaining questions relating to Mr Fani and Mr Pillay’s knowledge and roles and we are left wondering why neither of them testified, when at all crucial points in this litigation these persons were still the Municipality’s employees. This is a distinctive factual difference from Gijima. In that case, the entire governance and management teams had been replaced since the conclusion of the impugned contract. For the Municipality to seek to invoke judicial sanction for unexplained shenanigans while shielding persons from the duty to testify was to treat the duty of full explanation this Court propounded in Khumalo, Kirland and Tasima with near insolence.

[146] In these circumstances, for the Municipality to ask the courts to be party to its assertion of a defence of unlawfulness is untenable. As the first judgment notes, its play, now, to have its resolution of its dispute with the respondent clothed with judicial authority in a settlement agreement is even more conspicuously gross. It expressly concedes that the respondent implemented the Reeston contract in good faith. Nothing here remotely warrants our busying ourselves with the Municipality’s claim that the contract is unlawful. The public interest in open and accountable government is not furthered by overlooking the Municipality’s failure to comply with its constitutional duties to act swiftly and proactively.

[147] In the absence of explanation, it is opportunistic and arbitrary for the very person who made the decision to shrink back when the review of the decision pans out. And in these proceedings, all this falls right into the Municipality’s lap. The Municipality claims to assert legality yet its actions are antithetical to it. To overlook the unreasonable delay in this context is to give the Municipality a free pass. To do so would be counter to the purpose of legality review. Thus we do not consider a definitive pronouncement on the lawfulness of the action under review essential to the determination of the matter.

Conclusion

[148] We agree with the first judgment that the Supreme Court of Appeal erred in not considering, at all, whether the Reeston contract was lawfully awarded. When determining the unreasonableness of the delay and exercising its discretion whether to allow consideration of the review, the court must balance the seriousness of the possible illegality with the extent and unreasonableness of the delay. In the circumstances of this case, the delay is sufficiently more inexcusable than the possible illegality is egregious, and the balance tips against this Court’s intervention. The possible breach of legality in this case, while relevant, does not outweigh a delay which, by way of its length and lack of explanation, is among the most serious of its kind. It is instead more than enough to note that the respondent acted in the reasonable and good faith belief that the contract was regularly and properly awarded. Nothing in the Municipality’s case suggests the opposite. So there is no manifestly serious irregularity or illegality demanding intervention.

[149] On the contrary, public interest factors indicate that it would be grossly unjust to deprive the respondent of its contractual bargain and to leave it to the enrichment claim that the Municipality says must suffice for it. In exercising a court’s discretion to decide, notwithstanding unreasonable delay, whether the review should be heard, we hold that in these particular circumstances, there is little if any ground for exercising that discretion in favour of the Municipality. There is no need for us to find that equitable refuge in our remedial powers under section 172 as the first judgment does – the procedural obstacles to overlooking the Municipality’s unreasonable delay reach the same just and equitable outcome.

[150] The important point is that there is no reason to intervene to vindicate any public principle of contract or section 217 transparency or fairness. There is no public purpose that would be served here by getting to the Municipality’s antecedent challenge at all. In Gijima, this Court correctly pronounced the principle founded in section 172(1)(a) of the Constitution that this Court is mandated “to declare invalid any law or conduct that it finds inconsistent with the Constitution”. However in this instance we find that there was no proper ground for exercising a discretion in favour of the Municipality to hear the review. Resorting to section 172(1)(a) is not necessary to arrive at a just outcome.

[151] For these reasons, which are quite distinct from the Supreme Court of Appeal’s pre-Gijima, PAJA approach, there was sufficient further justification for not exercising the discretion to allow the review to be considered, despite unreasonable delay. As stated earlier, the point is not the formal one of common law review, that delay necessarily precludes consideration of the merits, but one of weighing up different aspects of the rule of law: on the one hand upholding the rule of law by a formal declaration of invalidity, as against another vital component of it, the expeditious and diligent compliance with constitutional duties.

[152] What remains is to deal with the effect of the proposed settlement agreement and the application to make it an order of court. For the reasons given in the first judgment we agree that the agreement cannot be made an order of court. Because of that condition in the agreement, an ordinary withdrawal is also not open for us to confirm. But the fact of the agreement, even without court sanction, appears to us to strengthen our conclusion that it is not appropriate for this Court to make a final pronouncement on legality at this late stage.

[153] The mere fact of the proposed settlement agreement supports the conclusion that we have come to: that there was good faith in the Reeston contract, no manifestly illegal conduct involved, and no necessity in these particular circumstances for setting it aside. This is an additional reason why leave to appeal against the Supreme Court of Appeal judgment must be refused. The issue of whether it is in the interests of justice to grant leave to appeal extends beyond the legal requirements for condonation of delay in state self-review legality reviews. Even if we had agreed with the first judgment that determination of the lawfulness of the Reeston contract would ordinarily have been called for, the Municipality’s conduct in entering into a settlement agreement that fundamentally undermines that contention, shows that it is in the interests of justice not to go that route.

[154] We would thus refuse leave to appeal, with costs.