Basadi Joint Venture and Others v MEC of Education for the Province of the Free State and Others [2004] ZAFSHC 74 (29 July 2004)

Basadi Joint Venture and Others v MEC of Education for the Province of the Free State and Others [2004] ZAFSHC 74 (29 July 2004)

The court held that the exclusion of the applicant's tender was lawful because the tender conditions and the Preferential Procurement Regulations required submission of a tax clearance certificate by every tenderer, including joint ventures. The applicant's own documentation created the impression that it was registered for tax purposes, and the tender committee was entitled to rely on that representation. The court found no basis for the legitimate expectation doctrine to apply, as there was no clear, unambiguous practice or representation by the respondent. Previous acceptance of tenders without proper tax clearance certificates was an administrative error and did not bind the...

Citation
[2004] ZAFSHC 74
Parties
Applicant: Basadi Joint Venture; Applicant: Ziphamamise Capital Caterers (Pty) Ltd t/a Capitol Caterers; Applicant: Baikemetseng Bomme CC; Respondent: MEC of Education for the Province of the Free State; Respondent: Chairperson of the Central Procurement Evaluation Committee for the Free State Province; Respondent: MDC Catering Services; Respondent: Dee Dee Enterprises; Respondent: Autum Star; Respondent: Silver Solution t/a Bacha Tswelopele; Respondent: Jott General Supplies; Respondent: Baikemetseng Bomme CC; Respondent: Suh Sem Trading; Respondent: Mamzwakhe; Respondent: Bolata Wholesalers; Respondent: Ethos Trading 13
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
29 July 2004
Case Number
1455/2004
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs, including costs of two counsel and costs of the appearance on 20 May 2004, but excluding costs occasioned by annexing certain pages to the opposing affidavit.
Judges
C.B. Cillié
Legal Topics
Tender Review, Preferential Procurement Regulations, Tax Clearance Certificate, Legitimate Expectation, Estoppel
Administrative Law Civil Procedure Tender Review Preferential Procurement Regulations Tax Clearance Certificate Legitimate Expectation Estoppel

Case Brief

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Parties

Basadi Joint Venture

Applicant

Ziphamamise Capital Caterers (Pty) Ltd t/a Capitol Caterers

Applicant

Baikemetseng Bomme CC

Applicant

MEC of Education for the Province of the Free State

Respondent

Chairperson of the Central Procurement Evaluation Committee for the Free State Province

Respondent

MDC Catering Services

Respondent

Dee Dee Enterprises

Respondent

Autum Star

Respondent

Silver Solution t/a Bacha Tswelopele

Respondent

Jott General Supplies

Respondent

Baikemetseng Bomme CC

Respondent

Suh Sem Trading

Respondent

Mamzwakhe

Respondent

Bolata Wholesalers

Respondent

Ethos Trading 13

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the exclusion of the applicant's tender for failure to submit a tax clearance certificate was lawful.
  2. 2 Whether a joint venture is required to submit a tax clearance certificate under the Preferential Procurement Regulations.
  3. 3 Whether the legitimate expectation doctrine applies to the tender process in this case.

Ratio Decidendi

The court held that the exclusion of the applicant's tender was lawful because the tender conditions and the Preferential Procurement Regulations required submission of a tax clearance certificate by every tenderer, including joint ventures. The applicant's own documentation created the impression that it was registered for tax purposes, and the tender committee was entitled to rely on that representation. The court found no basis for the legitimate expectation doctrine to apply, as there was no clear, unambiguous practice or representation by the respondent. Previous acceptance of tenders without proper tax clearance certificates was an administrative error and did not bind the...

Court Disposition

Application dismissed with costs, including costs of two counsel and costs of the appearance on 20 May 2004, but excluding costs occasioned by annexing certain pages to the opposing affidavit.

Orders

  • The application is dismissed with costs, such costs to include the costs of two counsel as well as the appearance on 20 May 2004 on behalf of the first respondent, but excluding the costs occasioned by annexing pages 231 to 246 (Annexure 'C') of the opposing affidavit.