Litigation is like rugby?

"When you have your mind on rugby all of life’s other rugby just seems to rugby into rugby." (Bloombury Sport on Twitter)

How often do we watch a loose forward get his hands on the ball after a tackle and through brute strength and determination, manages to stay on his feet and wrest the ball from the grasp of the opposition, only to have the referee penalise him for "not coming through the gate"?

Of course that is not the end of the game of rugby but for the applicant in the matter of DDP Valuers (Pty) Ltd v Madibeng Local Municipality, it was the end of its day in court. The Municipality had issued a tender and DDP Valuers submitted a bid. When the tender was awarded to somebody else with a far higher price DPP went to court. The Municipality claimed that DDP had not "come through the gate" and exhausted its internal remedies as it is required to do in terms of s7(1) of the Promotion of Administrative Justice Act, No 3 of 2000 (PAJA).

DDP disputed that regulation 49 of the Municipal Supply Chain Management Regulations constituted an internal remedy because that internal process did not have the power to declare the award of the tender invalid and set it aside. That regulation states that "the supply chain management policy of a municipality…must allow persons aggrieved by decisions… to lodge…a written objection or complaint to the municipality…". Regulation 50 goes on to provide for the appointment of an independent and impartial person "to assist in the resolution of disputes between the municipality…and other persons…or to deal with objections, complaints or queris…". Regulation 50 (4) provides that the person appointed must "strive to resolve promptly all disputes…received".

In the Gauteng Division of the High Court, Pretoria the court agreed with the Municipality and dismissed the review application on the technical point without determining the merits of the application. DPP appealed to the Supreme Court of Appeal which found that although the powers of the independent and impartial person are not set out in the regulations, "they clearly do not include powers to correct or set aside the decision of the Municipality complained of". The court found that this independent and impartial person has no decision-making powers and in the circumstances this falls far short of what would constitute an internal remedy. The appeal was successful and the parties must now return to Pretoria from Bloemfontein for the Gauteng Division to decide the substance of the review.

So DPP was found ultimately to have "come through the gate" and retrieved possession of the ball legitimately and it will get another day in court. The penalty imposed by the Pretoria court was set aside and DPP is allowed to continue with the review.

Unsurprisingly litigation does have some characteristics in common with rugby. Except that it is not a game, it is not over in 80 minutes (sometimes not even 80 weeks) and you don’t have to wear really short shorts to participate.