659 THE QUEST FOR ‘REASONABLE CERTAINTY’: REFINING THE JUSTICE AND EQUITY REMEDIAL FRAMEWORK IN PUBLIC PROCUREMENT CASES RAISA CACHALIA † Lecturer, Faculty of Law, University of Johannesburg LAUREN KOHN ‡ Senior Lecturer, Department of Public Law, University of Cape Town Flowing from the constitutional imprimatur in s 172(1) to further ‘justice and equity’ (‘J&E’), the courts have made important strides in developing a framework for remedying irregular public procurement. They have not, however, done so clearly and coherently; nor in a way that encourages predictability in remedial outcomes. In response, we have sought to leverage an argument for ‘reasonable certainty’ as a rule-of-law justifcation for refning the framework in a comprehensive and helpful way that does not pit form against ‘individualised justice’. We have done so against the backdrop of two hypothetical tender scenarios — a review by a private contractor and a state self-review — based upon a pattern emerging from the jurisprudence. Through our analysis, we illustrate that ultimately the J&E enquiry is a kind of proportionality assessment that has, at its heart, an appreciation of the overall ‘impact’ of setting a tender aside, from both a practical and principled perspective. We posit a two-step approach to addressing this overarching ‘impact question’: a big-picture assessment of the various interests to be weighed in the balance, followed by the particularised balancing of these afected interests with reference to several open-list factors. Ultimately, we seek to provide a principled and pragmatic guide for the exercise of the courts’ remedial discretion and so draw the analysis together by applying this framework to the scenarios sketched. Just and equitable remedy – public procurement – certainty – legality – compensation – delay – state self-review – Gijima I INTRODUCTION The question as to how to remedy invalid tenders has become a persistent challenge for South African courts, especially in recent years given the ‘alarming frequency’ 1 with which public procurement contracts are being subjected to judicial review. What is more, a survey of the expanding body of case law in this area reveals a clear pattern: we are seeing permutations of essentially two re-occurring scenarios that frequently come before the † BA LLB LLM (Wits). Attorney of the High Court of South Africa. https:// orcid.org/0000-0003-0407-9142. ‡ BBusSci LLB LLM (UCT). Attorney of the High Court of South Africa. https://orcid.org/0000-0002-8453-4952. We would like to thank the anonymous reviewers for their insightful observations and suggestions for strengthening this piece. 1 South African Post Ofce v De Lacy 2009 (5) SA 255 (SCA) (‘ De Lacy’) para 1. (2020) 137 SALJ 659 © Juta and Company (Pty) Ltd