Dr JS Moroka Municipality and Others v Betram (Pty) Limited and Another (937/2012) [2013] ZASCA 186; [2014] 1 All SA 545 (SCA) (29 November 2013)

Dr JS Moroka Municipality and Others v Betram (Pty) Limited and Another (937/2012) [2013] ZASCA 186; [2014] 1 All SA 545 (SCA) (29 November 2013)

The Supreme Court of Appeal held that the municipality was entitled to disqualify the first respondent's tender for failing to submit an original SARS tax clearance certificate as required by the tender invitation. The court found no discretion in the relevant legislation, regulations, or tender documents to condone non-compliance with this peremptory requirement. The requirement for an original certificate was neither unreasonable nor unconstitutional, and only bids validly submitted in compliance with all minimum qualifying requirements could be considered. The principle of legality and established case law precluded condonation of non-compliance in this context. The high court erred in...

Citation
[2013] ZASCA 186
Parties
Appellant: Dr JS Moroka Municipality; Appellant: The Chairperson of the Tender Adjudication Committee of the Dr JS Moroka Municipality; Appellant: Committee of the Dr JS Moroka Municipality; Appellant: The Acting Municipal Manager of the Dr JS Moroka Municipality; Respondent: Bertram (Pty) Limited; Respondent: Eldocrete CC
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 2013
Case Number
937/2012
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court, Pretoria
Outcome
Appeal upheld; order of the court a quo set aside and substituted with dismissal of the application with costs.
Judges
Brand, Maya, Bosielo, Leach, Wallis
Legal Topics
Public Procurement, Tender Disqualification, Preferential Procurement Policy Framework Act, Municipal Supply Chain Management, Tax Clearance Certificate Requirement, Condonation of Non Compliance
Administrative Law Civil Procedure Commercial and Corporate Public Procurement Tender Disqualification Preferential Procurement Policy Framework Act Municipal Supply Chain Management Tax Clearance Certificate Requirement +1 more

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Parties

Dr JS Moroka Municipality

Appellant

The Chairperson of the Tender Adjudication Committee of the Dr JS Moroka Municipality

Appellant

Committee of the Dr JS Moroka Municipality

Appellant

The Acting Municipal Manager of the Dr JS Moroka Municipality

Appellant

Bertram (Pty) Limited

Respondent

Eldocrete CC

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court, Pretoria

Legal Issues

  1. 1 Whether a municipality was entitled to disqualify a tender supported by a copy of a tax clearance certificate when the invitation required an original certificate.
  2. 2 Whether the municipality had discretion to condone non-compliance with the requirement for an original tax clearance certificate.
  3. 3 Whether public policy permits condonation of non-compliance with peremptory tender requirements.

Ratio Decidendi

The Supreme Court of Appeal held that the municipality was entitled to disqualify the first respondent's tender for failing to submit an original SARS tax clearance certificate as required by the tender invitation. The court found no discretion in the relevant legislation, regulations, or tender documents to condone non-compliance with this peremptory requirement. The requirement for an original certificate was neither unreasonable nor unconstitutional, and only bids validly submitted in compliance with all minimum qualifying requirements could be considered. The principle of legality and established case law precluded condonation of non-compliance in this context. The high court erred in...

Court Disposition

Appeal upheld; order of the court a quo set aside and substituted with dismissal of the application with costs.

Orders

  • The appeal succeeds with costs, including the costs of two counsel.
  • The order of the court a quo is set aside and substituted with: 'The application is dismissed with costs, including the costs of two counsel where so employed.'