Entsha Henra bk v Hessequa Munisipaliteit and Others (1351/08) [2008] ZAWCHC 25 (15 May 2008)

Entsha Henra bk v Hessequa Munisipaliteit and Others (1351/08) [2008] ZAWCHC 25 (15 May 2008)

The court found that the Executive Mayoral Committee of the municipality did not have statutory authority to exclude the applicant from future tenders. The relevant legislation and municipal policy vest the power to manage tenders and exclude bidders solely in the Municipal Manager as the accounting officer. The committee's decisions of 5 October and 15 November 2007 were therefore ultra vires and void, as they contravened the principle of legality and the statutory framework governing municipal procurement. The applicant is entitled to have the exclusionary decisions set aside, and the matter of the applicant's conduct was not determinative for the outcome, as the proper procedures for...

Citation
[2008] ZAWCHC 25
Parties
Applicant: Entsha Henra bk; Respondent: Hessequa Munisipaliteit; Respondent: Uitvoerende Burgemeesterskomitee van eerste Respondent; Respondent: Tenderkomitee van eerste Respondent; Respondent: Urhwebo-e Transand
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
15 May 2008
Case Number
1351/08
Procedural Posture
Review Application / Final Judgment
Outcome
Application granted; exclusionary decisions set aside; costs awarded to applicant including costs of two counsel.
Judges
B M Griesel
Legal Topics
Municipal Procurement, Ultra Vires Decision, Legalities of Tender Awards, Review of Administrative Action
Administrative Law Civil Procedure Municipal Procurement Ultra Vires Decision Legalities of Tender Awards Review of Administrative Action

Case Brief

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Parties

Entsha Henra bk

Applicant

Hessequa Munisipaliteit

Respondent

Uitvoerende Burgemeesterskomitee van eerste Respondent

Respondent

Tenderkomitee van eerste Respondent

Respondent

Urhwebo-e Transand

Respondent

Procedural Posture

Review Application / Final Judgment

Legal Issues

  1. 1 Whether the Executive Mayoral Committee of the municipality had statutory authority to exclude the applicant from future tenders.
  2. 2 Whether the decisions of 5 October and 15 November 2007 were ultra vires and void.
  3. 3 Whether the applicant is entitled to have the exclusionary decisions set aside.

Ratio Decidendi

The court found that the Executive Mayoral Committee of the municipality did not have statutory authority to exclude the applicant from future tenders. The relevant legislation and municipal policy vest the power to manage tenders and exclude bidders solely in the Municipal Manager as the accounting officer. The committee's decisions of 5 October and 15 November 2007 were therefore ultra vires and void, as they contravened the principle of legality and the statutory framework governing municipal procurement. The applicant is entitled to have the exclusionary decisions set aside, and the matter of the applicant's conduct was not determinative for the outcome, as the proper procedures for...

Court Disposition

Application granted; exclusionary decisions set aside; costs awarded to applicant including costs of two counsel.

Orders

  • The decisions of the Executive Mayoral Committee of the First Respondent taken on 5 October 2007 and 15 November 2007, excluding the applicant from future business, are set aside.
  • The First Respondent is ordered to pay the costs of the application, including the costs of two counsel.