“PAJA or legality? An interesting question arose during the hearing: Is an administrator’s right to review its own decision sourced in PAJA or the broader principle of legality? The position in our law on this question is presently uncertain. Despite this, both the City and Aurecon were quite content to pursue the matter within the confines of PAJA. The litigants expressly relied upon PAJA in the High Court, the SCA and before this Court. In effect, this may be termed an “inadvertent legal concession”. Several of this Court’s decisions have held that it is trite that a court is never bound by a legal concession if it considers the concession to be wrong in law”.
City of Cape Town v Aurecon SA (Pty) Ltd (CCT21/16)  ZACC 5 (28 February 2017) per Mbha AJ (Nkabinde ACJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Musi AJ and Zondo J concurring)
Further excerpts without footnotes
 This is an application for leave to appeal against a judgment and order of the Supreme Court of Appeal (SCA). The matter started as a review application in the High Court of South Africa, Western Cape Division, Cape Town (High Court). The applicant, the City of Cape Town (City), seeks to review its own decision in terms of which the respondent, Aurecon South Africa (Pty) Ltd (Aurecon), was awarded a tender for the decommissioning of the Athlone Power Station. Relying on the provisions of the Promotion of Administrative Justice Act (PAJA), the City contends that its decision ought to be set aside on the basis of procedural irregularities in its award of the tender to Aurecon.
 Consulting Engineers South Africa (CESA) was admitted as amicus curiae (friend of the court). CESA is a voluntary association of independent consulting engineers in private practice. It has about 540 members. Given its involvement in the consulting engineering industry, it sought to advance submissions in promotion of the public interest and the interests of the industry.
. . . . .
 The SCA meticulously assessed each of the grounds under review. These included:
- the issue of the bids not being evaluated collectively;
- the participation of a non-member in the BEC meetings;
- the withdrawal of the indemnity qualification by Aurecon;
- the initial reluctance by Aurecon to provide financial statements;
- the irregular extension of the validity period of Aurecon’s bid; and
- the alleged material defects in the report prepared by the BEC for the BAC’s consideration.
The SCA held that none of the alleged irregularities constituted irregularities at all. Aurecon’s tender was the only one found to be responsive and the alleged irregularities only occurred after all the other tenders had been found to be ineligible. No other tenderer could have been prejudiced and it was only Aurecon that suffered prejudice due to the City’s missteps. The SCA upheld the appeal and set aside the High Court’s decision.
. . . . .
Leave to appeal
 Jurisdiction in this Court is determined according to section 167(3)(b) of the Constitution which provides that this Court may hear either (i) a constitutional matter; or (ii) any other matter which raises an arguable point of law of general public importance that this Court should consider. It must also be in the interests of justice for the Court to hear the matter.
 From the submissions made by the parties, it is evident that two issues arise in this matter, namely,
(i) the calculation of the 180-day period contemplated in section 7 of PAJA; and
(ii) the prior involvement of a prospective tenderer (which, on the City’s submissions, also implicates section 217 of the Constitution).
The first issue raised is a constitutional matter given that it requires the interpretation of PAJA which was enacted to give effect to section 33 of the Constitution.
The second issue regarding prior involvement is an arguable point of law of general public importance.
 In order to determine whether leave should be granted, we have to consider the prospects of success and determine whether it is in the interests of justice for this Court to determine the matter.
PAJA or legality?
 An interesting question arose during the hearing: Is an administrator’s right to review its own decision sourced in PAJA or the broader principle of legality? The position in our law on this question is presently uncertain. Despite this, both the City and Aurecon were quite content to pursue the matter within the confines of PAJA. The litigants expressly relied upon PAJA in the High Court, the SCA and before this Court. In effect, this may be termed an “inadvertent legal concession”. Several of this Court’s decisions have held that it is trite that a court is never bound by a legal concession if it considers the concession to be wrong in law. However, I am of the view that this case presents a certain nuance that militates against venturing into a judicial inquisition. The main reason is that it cannot be said for certain that the litigants’ reliance on PAJA is “wrong in law” because the law on the issue has not been settled.
 While it is tempting to launch a legal expedition and settle the question, I am of the view that this case is an inappropriate channel through which to do so. As was aptly put in Ferreira, “it is important that this Court should not be required to deal with abstract or hypothetical issues, and should devote its scarce resources to issues that are properly before it”. It would be undesirable for this Court to attempt to answer this important administrative law question without the benefit of legal argument from the litigants. To proceed unaided with complex legal questions is likely to give rise to unpredictable and altogether unintended consequences. In Albutt, this Court observed:
“Sound judicial policy requires us to decide only that which is demanded by the facts of the case and is necessary for its proper disposal. This is particularly so in constitutional matters, where jurisprudence must be allowed to develop incrementally. At times it may be tempting, as in the present case, to go beyond that which is strictly necessary for a proper disposition of the case. Judicial wisdom requires us to resist the temptation and to wait for an occasion when both the facts and the proper disposition of the case require an issue to be confronted. This is not the occasion to do so.”
 The benefit of full argument is indispensable in the decision-making process. I am therefore of the view that the issue ought to be left open until the opportunity properly presents itself. For now, determining the matter within the strictures of PAJA, without deciding whether the litigants’ reliance on it is appropriate, is the way in which this judgment proceeds.
 While it is so that the case cannot be decided on an assumption of the appropriateness of PAJA as a regulatory framework if legality review might yield a different result, this need not be an insurmountable hurdle to disposing of the present matter within the confines of PAJA. It may well be that there are differences, even significant differences, between condonation in terms of section 9 of PAJA and unreasonable delay under legality review in some cases, but this is not so here. In the present matter, for reasons set out below, the delay is found to be both unreasonable and outside of the 180-day time limit. The practical implication is that, on these particular facts, it is essentially the same enquiry conducted by the Court as would be the case if assessing the application for condonation within the framework of legality review. The delay in instituting review proceedings in terms of the principle of legality would have been unreasonable and would not have been met with condonation, for the same reasons that are set out below. Khumalo confirmed that unreasonable delay in legality review proceedings must be considered in the broader context of the matter, including the prejudice that would result for other parties and the consequences of setting aside an action or decision.