Case  CCT 266/24
[2026] ZACC 05

Hearing Date:  28 August 2025

Judgement Date: 11 February 2026

Post Judgment Media Summary  

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 Wednesday, 11 February 2026, the Constitutional Court handed down judgment in an application for leave to appeal against a judgment and order of the High Court of South Africa, Gauteng Division, Pretoria (High Court).

This matter arises from an application for leave to appeal and concerns whether a procurement decision of a private entity/body could be reviewed under the Promotion of Administrative Justice Act (PAJA), alternatively, under the principle of legality or alternatively, or under the common law.

The background to this matter is as follows. The applicant is Famous Idea Trading 4 (Pty) Limited, trading as Dely Road Courier Pharmacy, a company that unsuccessfully tendered for the delivery of medical courier pharmacy services for the Government Employee Medical Scheme (GEMS), the first respondent. The tender was instead awarded to the fourth and fifth respondents, Marara Pharmacy (Pty) Limited and Pharmacy Direct (Pty) Limited, who formed a joint venture (JV), as well as the sixth respondent, HH Durrheim (Pty) Limited, trading as Medipost Pharmacy.

On 9 March 2023, the applicant instituted a review application in the High Court, where it sought to challenge the decision made by GEMS. The two main issues were GEMS’ decision to reject its tender; and GEMS’ decision to award part of the tender to the JV (excluding the sixth respondent). In its main application, the applicant challenged the decision on three grounds:

• 1. The impugned decision constituted administrative action within the meaning of PAJA and that it was reviewable under the Act;
• 2. In the first alternative, in taking the impugned decision, GEMS exercised public power and the impugned decision was reviewable under the legality principle; and
• 3. In the second alternative, the impugned decision was reviewable under the common law.

The applicant further called on GEMS to deliver the record of the impugned decision in terms of rule 53 of the Uniform Rules of Court. GEMS refused to file the record, filing instead a rule 6(5)(d)(iii) notice raising two points of law. Before the High Court, GEMS submitted that it was not obliged to provide a record of its decision as it was not an organ of state, nor was it exercising public power at the time that the impugned decision was made; subsequently, its decision was not reviewable. The applicant argued that the courts have previously held that the obligation to disclose a rule 53 record is triggered by a review application itself, as well as review jurisdiction.

The High Court’s judgment found that the impugned decision was a commercial decision that related to the procurement of services by a medical scheme. It further held that it was not necessary to consider the merits of the main application when dealing with the jurisdictional challenge as the Supreme Court of Appeal, in GEMS and Others v Public Protector of the Republic of South Africa and Others (GEMS v Public Protector decision), had made a decision on GEMS’ specific, unique position. Furthermore, the Court held that a court should first determine whether it has review jurisdiction before making an order that compels the delivery of a record, and that this should be done before determining the merits of the review. The Court noted that it would be dangerous to set a precedent that allows for the decisions of private parties to appoint service providers to be reviewed, especially if the ambit of common law review is broadened. The Court held that GEMS’ use of rule 6(5)(d)(iii) was not incompetent.

It reasoned that GEMS was entitled to show cause why its decision should not be reviewed by way of a dispositive point of law

The applicant then filed an application for leave to appeal against the judgment, which was later dismissed, with the Court reasoning that there were no compelling grounds to grant leave to appeal, nor were there any reasonable prospects of success on appeal, and ordered costs against the applicant. The applicant then petitioned the Supreme Court of Appeal, which also dismissed the application for leave to appeal, with costs, on the grounds that there was no reasonable prospect of success nor any other compelling reasons to grant leave to appeal. The applicant then sought leave to appeal in this Court. It further sought condonation for the late filing of its application and, later, for leave to file a replying affidavit.

Before this Court, the applicant submitted that this Court’s constitutional and general jurisdiction were engaged. On constitutional jurisdiction, it submitted that there was a violation of its rights under sections 33 and 34 of the Constitution, as well as a breach of the principle of legality. On general jurisdiction, it submitted that the matter raises an arguable point of law and that the question of whether GEMS is insulated from any review (including common law) is an important legal consideration which the High Court did not adequately address. Additionally, the question of whether a court has jurisdiction to entertain the merits of a rule 53 review application when the record has not been disclosed must be pronounced by this Court.

On the merits, the applicant submitted that the High Court erred in its findings for several reasons. First, the applicant contended that jurisdiction ought to have been decided during the adjudication of the merits, once the record was produced. It submitted that the facts supported its assertion that the impugned decisions were reviewable. Second, the applicant maintained that GEMS exercised public power, and not private contractual power, in reaching the impugned decision. It argued that the Court’s focus should have emphasised the nature of the power exercised rather than the nature of the functionary. Third, the applicant submitted that its case was based on common law and public law grounds of review. In concluding that the impugned decision was not reviewable, the Court, in the applicant’s view, only did so “in terms of the common law” and did not consider the public law grounds or the other grounds relied on by the applicant. Finally, the applicant persisted in its contention that GEMS’ rule 6(5)(d)(iii) notice was incompetent, as the record had not been produced. According to the applicant, such a notice had the effect of frustrating the review.

Both GEMS and the JV submitted that this Court’s constitutional jurisdiction is not engaged. However, GEMS conceded that this Court’s general jurisdiction might be engaged. The JV resisted making this concession. Regarding leave to appeal, both GEMS and the JV submitted that the matter was moot, as the agreement forming the subject matter of the review expired on 31 December 2023.

GEMS submitted that a review application must show jurisdiction in its founding papers. Should such papers be lacking on jurisdiction, there is no entitlement to disclose the record in order to bestow the Court with jurisdiction. In addition, GEMS argued that the Court did not find that it was common cause that the impugned decision was the exercise of private contractual power. The Court reached such a decision based on the common cause facts. GEMS alleged that the applicant confined itself to a common law review in both its written submissions and oral arguments. As such, the Court found that the impugned decision was not administrative action and, following from that, not reviewable. Asserting its support for the Court’s reliance on the GEMS v Public Protector decision in the High Court’s determination, GEMS submitted that its decision was made in the “business of medical scheme”.

The JV raised the contention that the parties specifically asked the Court to determine the jurisdictional point and that the applicant did not take the Court into its confidence by failing to disclose the agreement between the parties. Just as GEMS has submitted, the JV also accentuated the point that the purpose of the joint practice note was to inform the Court of the issues that were to be determined, borne out of agreement between the parties. In addressing the jurisdictional point raised by the applicant, the JV argued that the jurisdictional point was brought before the Court through the parties’ shared request and that it was dispositive of the applicant’s entire application. In raising confidentiality concerns in its answering affidavit to the rule 30A application, the JV once more highlighted that a litigant should not be able to, by way of a purported “review” application, obtain insight into information which it would not ordinarily be entitled to under PAIA, if the decision is not capable of being reviewed. In support of the High Court’s determination, the JV agreed that a dangerous precedent would be set if the decisions of private bodies to appoint service providers were capable of being reviewed.

In a unanimous judgment penned by Musi AJ, regarding jurisdiction, this Court held that the question of whether the applicant is entitled to the rule 53 record raises a constitutional issue, as it implicates the right to access to court. This Court further held that the question of whether GEMS was exercising a public power similarly raises a constitutional issue. For this reason, this Court’s constitutional jurisdiction was engaged. This Court recognised two arguable points of law of general public importance which engaged its general jurisdiction. The first was whether decisions which are neither administrative action nor exercises of public power or the performance of a public function are reviewable in terms of the common law. The second was whether rule 53 is applicable to the common law review of decisions made by private bodies. With regard to mootness, this Court concluded that, because the contract was renewed, and that renewed contract derived its validity from the initial contract, the matter was not moot. For these reasons, leave to appeal was granted.

This Court held that serving a rule 6(5)(d)(iii) notice before the record has been produced is competent. The Court reasoned that the purpose of such a notice is to resist an application devoid of legal grounds by raising a point in limine (preliminary legal objection). The effect of this is that the court does not have to consider the merits of the matter and may dispose of it early.

Regarding the reviewability of the decision, this Court held that, if a party fails to establish on the facts that a decision is reviewable under PAJA, the principle of legality or the common law, it will have failed to engage the court’s review jurisdiction. Under these circumstances, the party is not entitled to a review record. A court’s review jurisdiction may be challenged by way of a rule 6(5)(d)(iii) notice. For this reason, the issue of jurisdiction must be determined before the record is produced. Accordingly, this Court concluded that POLMED and Murray were wrongly decided.

In considering the High Court review jurisdiction, this Court noted that GEMS is not an organ of state. Based on the Supreme Court of Appeal’s reasoning in GEMS v Public Protector, it concluded that the business of a medical scheme does not entail the exercise of public power or the performance of a public function. GEMS’ decision was therefore not administrative action. This Court therefore held that the PAJA and the principle of legality were not applicable and that the High Court did not have review jurisdiction in terms of these pathways. This Court further held that the High Court had indeed considered the public law grounds when it considered the question of jurisdiction and concluded that GEMS’ decision had been commercial and not administrative.

This Court then went on to consider whether a private law review was appropriate. It noted that, despite the courts’ general reluctance to interfere in the affairs of private entities, interference may be warranted where the entity exercises decision-making or adjudicative powers in terms of a private contract. When tender conditions pursuant to a public invitation for the procurement of goods and services by private entities, like GEMS, stipulate that the acceptance of those conditions constitute a contract between the procurer and the tenderer, the latter may subsequently claim, depending on the contractual terms, that the rules of natural justice should be implied as a term of their contract. Although GEMS exercised an adjudicatory function when it decided to grant the contract to the JV, the applicant did not plead that the tender conditions constituted a contract between it and GEMS. This Court therefore held that a private law quasi review was not supported.

For the reasons elucidated above, this Court held that the appeal should be dismissed. As there was no reason why costs should not follow the result, this Court ordered costs against the applicant..

The Full judgment  here