S v Kalingindo (CC 9 of 2007) [2007] NAHC 38 (10 May 2007)

S v Kalingindo (CC 9 of 2007) [2007] NAHC 38 (10 May 2007)

Non-compliance with regulation 11(1) is directory, not mandatory, and does not vitiate the tender process; the failure to decide on the tenders is a reviewable irregularity entitling the appellant to relief, but due to flawed evaluations and lack of information, the court cannot substitute its decision and must remit the matter for proper evaluation and decision.

Citation
[2007] NAHC 38
Parties
Appellant: Intertrade Two (Pty) Ltd; 1st Respondent: The MEC for Roads & Public Works, Eastern Cape; 2nd Respondent: The Premier of the Eastern Cape
Court
High Court
Jurisdiction
Namibia
Judgment Date
10 May 2007
Case Number
CC 9 of 2007
Procedural Posture
Civil Appeal / Judgment on Appeal
Outcome
Appeal allowed with costs
Legal Topics
Tender Process, Judicial Review, Administrative Action, Remedies for Failure to Decide, Preferential Procurement Policy Framework Act, Separation of Powers
Source Language
English
Administrative Law Constitutional Law Public Procurement Tender Process Judicial Review Administrative Action Remedies for Failure to Decide Preferential Procurement Policy Framework Act +1 more

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Parties

Intertrade Two (Pty) Ltd

Appellant

The MEC for Roads & Public Works, Eastern Cape

1st Respondent

The Premier of the Eastern Cape

2nd Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether failure to compile estimates prior to opening of tenders under regulation 11(1) of the Preferential Procurement Policy Framework Act 5 of 2000 vitiates the tender process
  2. 2 Whether the appropriate remedy for failure to decide on tenders is substitution by the court or remittal for proper evaluation and decision

Ratio Decidendi

Non-compliance with regulation 11(1) is directory, not mandatory, and does not vitiate the tender process; the failure to decide on the tenders is a reviewable irregularity entitling the appellant to relief, but due to flawed evaluations and lack of information, the court cannot substitute its decision and must remit the matter for proper evaluation and decision.

Court Disposition

Appeal allowed with costs

Orders

  • Order of the court below set aside.
  • First respondent to appoint, within two weeks, an independent consultant (not from Lukhozi Consulting Engineers (Pty) Ltd) to evaluate the four specified tenders.