Dlamini INC. v Transnet SOC Ltd and Others (16593/19; 23785/19) [2022] ZAGPJHC 409 (2 June 2022)

Dlamini INC. v Transnet SOC Ltd and Others (16593/19; 23785/19) [2022] ZAGPJHC 409 (2 June 2022)

The court held that both Transnet and EY unlawfully refused to furnish the rule 53 record, prejudicing Dlamini and frustrating the course of justice. However, on the merits, Dlamini failed to establish that its exclusion from the contract was discriminatory under s 9(2) of the Constitution or amounted to fronting under the B-BBEE Act. The evidence showed that Dlamini was excluded due to changes in the scope of work and breakdown in negotiations, not because of its racial or gender profile. The court found no breach of constitutional or statutory obligations by Transnet or EY, nor any basis for monetary relief or declaratory orders in public law or contract. The delay in launching the...

Citation
[2022] ZAGPJHC 409
Parties
Applicant: Dlamini INC.; Respondent: Transnet SOC Ltd; Respondent: Ernst & Young Advisory Services (PTY) LTD; Respondent: Covington & Burling (PTY) LTD; Respondent: Minister of Trade, Industry and Competition
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
2 June 2022
Case Number
16593/19; 23785/19
Procedural Posture
Review Application / Final Judgment on Merits
Outcome
Application dismissed on the merits; costs awarded to applicant in Dlamini 1; no order as to costs in Dlamini 2.
Judges
Vally
Legal Topics
Promotion of Administrative Justice Act, Bbbee Fronting, Tender Exclusion, Rule 53 Record, Public Procurement, Contractual Negotiation Breakdown
Administrative Law Commercial and Corporate Civil Procedure Promotion of Administrative Justice Act Bbbee Fronting Tender Exclusion Rule 53 Record Public Procurement +1 more

Case Brief

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Parties

Dlamini INC.

Applicant

Transnet SOC Ltd

Respondent

Ernst & Young Advisory Services (PTY) LTD

Respondent

Covington & Burling (PTY) LTD

Respondent

Minister of Trade, Industry and Competition

Respondent

Procedural Posture

Review Application / Final Judgment on Merits

Legal Issues

  1. 1 Whether the refusal by Transnet and EY to furnish the rule 53 record was unlawful and prejudicial to Dlamini.
  2. 2 Whether the exclusion of Dlamini from the tender contract constituted fronting under the B-BBEE Act.
  3. 3 Whether the exclusion of Dlamini was unconstitutional or discriminatory under s 9(2) of the Constitution.

Ratio Decidendi

The court held that both Transnet and EY unlawfully refused to furnish the rule 53 record, prejudicing Dlamini and frustrating the course of justice. However, on the merits, Dlamini failed to establish that its exclusion from the contract was discriminatory under s 9(2) of the Constitution or amounted to fronting under the B-BBEE Act. The evidence showed that Dlamini was excluded due to changes in the scope of work and breakdown in negotiations, not because of its racial or gender profile. The court found no breach of constitutional or statutory obligations by Transnet or EY, nor any basis for monetary relief or declaratory orders in public law or contract. The delay in launching the...

Court Disposition

Application dismissed on the merits; costs awarded to applicant in Dlamini 1; no order as to costs in Dlamini 2.

Orders

  • In case number 16593/19: The application is dismissed.
  • The first and second respondents are to pay the costs of the application including the costs of two counsel to be taxed on an attorney and client scale.