Practice AREA

Constitutional and Administrative Law

The firm’s constitutional and administrative law practice encompasses a broad service offering that focuses on the constitutional and statutory framework regulating the exercise of public power, be it administratively or by the executive. The practice is managed by Leslie Mkhabela, who is supported by a legal team with a proven track record and expertise in regulatory matters.

Apart from its extensive exposure to the public sector in all spheres of government, one of MHA’s distinct advantages is the firm’s strong regulatory background, having among its long-standing clients industry regulators such as the Independent Communications Authority of South Africa (ICASA), South African Diamonds and Precious Metals Regulator (SADPMR) and the National Electricity Regulator of South Africa (NERSA).

Leslie and his team have expertise in legislative drafting and have advised clients in the public and private sectors in the areas of Supply Chain Management (SCM), procurement, compliance with the Public Finance Management Act (PFMA), and Municipal Finance Management Act (MFMA). The team also handles judicial reviews (legality reviews and those lodged in terms of PAJA) on behalf of clients.

Leslie also heads up the firm’s Litigation and ADR practice and as such, MHA is well poised to provide litigation support in regulatory and public law matters, something which it has done regularly for more than two decades, in a variety of forums, including the Constitutional Court.

The department offers the following services:

  • Appearance in regulatory and statutory tribunals and statutory inquiries.
  • Appearance before industry ombuds.
  • Drafting of legislation and regulations and advising on the constitutionality of legislation (statutes, by-laws and regulations).
  • Preparing legal opinions dealing with the constitutionality of administrative decisions taken or under consideration by the State.
  • Assessing general legal compliance, including PFMA and MFMA compliance.
  • Advising on procurement and supply chain management matters, including conducting investigations, reviewing SCM policies and handling tender disputes.
  • Representing clients in judicial reviews, by launching or defending High Court proceedings to review tender awards.
  • Providing litigation support in the High Court, Supreme Court of Appeal, and Constitutional Court.
  • Undertaking legal forensic investigations relating to alleged irregularities in tender evaluations and awards.

A discerning feature of MHA is its involvement in numerous landmark judgments that have shaped the nation’s constitutional jurisprudence. Our team’s experience working with clients in the public sector and providing regulatory support and advice to clients in the private sector has established MHA as the service provider of choice for businesses operating within regulated industries.

  • Drafted the proposed amendments to the Electronic Communications Act, 36 of 2005.
  • Advised ICASA on the constitutionality of amendments to the Independent Communications Authority of South Africa Act and on the constitutionality of certain provisions of the Broadband Infraco Act.
  • Represented the Mining Council of South Africa (formerly Chamber of Mines) in litigation regarding the constitutionality of legislative provisions regulating the levying of rates and taxes on mining properties.
  • Advised on the constitutionality of the policy directive issued by the Minister of Communications on the determination of Interconnection Rates for mobile telephoning termination rates.
  • Represented ICASA in the Islamic Convention case before the Constitutional Court.
  • Represented the Johannesburg Society of Advocates before the Constitutional Court in the high-profile “Silk” case involving a challenge to the constitutionality of the President’s powers in terms of the Constitution to award silk status to advocates.
  • Represented the South African Diamonds and Precious Metals Regulator (SADPMR) in proceedings against the South African Diamond Producers Organisation.
  • Represented aggrieved board members of Armscor before the Constitutional Court, in litigation against the Minister of Defence regarding the unlawful termination of their tenure without due process.
  • Represented the Land Bank before the Constitutional Court in litigation related to the constitutionality of a High Court judgment pertaining to enforcement of deeds of suretyship relating to an unlawful loan agreement.
  • Represented the chairperson of the Moyane Inquiry in constitutional litigation instituted by the previous SARS Commissioner, challenging the President’s decision to accept recommendations of the Nugent Commission into SARS, and subsequently the decision of the President to dismiss him.
  • Advised PRASA on the constitutionality of procurement processes conducted without compliance with the legislative prescripts stipulated by section 217 of the Constitution.
  • Advised the NHBRC on a number of regulatory matters including procurement issues and compliance with SCM policies.
  • Served as independent assessors of the procurement processes followed by the Department of Energy in the IPP procurement process.
  • Advised ACSA on alleged tender irregularities on two sets of contracts, namely, cleaning and security tenders for the King Shaka Airport.
  • Legal advisor to PetroSA on a number of matters including on matters relating to procurement and compliance with the PFMA.
  • Advised SAA on various procurement issues resulting from the awarding of the security contract at O.R. Tambo Airport.
  • Advised Intersite Asset Management SOC Ltd on a number of procurement issues arising from a number of contracts including the E – ticketing contract, Massmart contract. Broadcasting contracts, and various Media contracts.
  • Advised Broadband Infraco in respect of its procurement processes.
  • Advised the City of Johannesburg with regard to the validity of various procurement processes undertaken without following the appropriate legislative prescripts.
  • Advised Transnet National Ports Authority in relation to its procurement processes pursuant to its obligations under section 56 of the Ports Act.
  • Advised the Department of Trade and Industry on the establishment of the B-BBEE Commission.
  • Extensive advice provided to public entities and municipalities on various compliance matters pertaining to the PFMA and MFMA.
  • Acted as Independent Process Monitor in the procurement process relating to the much-publicised social security pensions payment tender for SASSA.

Noteworthy Cases:

  • Mansingh v General Council of the Bar 2014 (2) SA 26 (CC)
  • Islamic Unity Convention v Minister of Telecommunications 2008 (3) SA 383 (CC)
  • Minister of Defence and Military Veterans v Motau 2014 (5) SA 69 (CC)
  • South African Diamond Producers Organisation v Minister of Minerals and Energy 2017 (6) SA 331 (CC)
  • Shabangu v Land and Agricultural Development Bank of South Africa 2020 (1) SA 305 (CC)
  • Big Five Duty Free (Pty) Limited v Airports Company South Africa Limited [2017] 4 All SA 295 (SCA)
  • Panamo Properties 103 (Pty) Ltd v Land and Agricultural Development Bank of South Africa 2016 (1) SA 202 (SCA)
  • Firstrand Bank Limited v Land and Agricultural Development Bank of South Africa 2015 (1) SA 38 (SCA)
  • Minister of International Relations and Co-operation v Simeka Group (Pty) Ltd [2023] 3 All SA 323 (SCA)
  • Moyane v Rampahosa [2019] 1 All SA 718 (GP)

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