Eskom Holdings Limited and Another v New Reclamation Group (Pty) Ltd (358/08) [2009] ZASCA 8; 2009 (4) SA 628 (SCA) ; 2009 (8) BCLR 813 (SCA) ; [2009] 2 All SA 513 (SCA) (13 March 2009)

Eskom Holdings Limited and Another v New Reclamation Group (Pty) Ltd (358/08) [2009] ZASCA 8; 2009 (4) SA 628 (SCA) ; 2009 (8) BCLR 813 (SCA) ; [2009] 2 All SA 513 (SCA) (13 March 2009)

The Supreme Court of Appeal held that Eskom, as an organ of State, was required under PAJA to consider only relevant factors in awarding the tender. Eskom awarded the tender to Kwanda based on the financial position of Rappa Holdings, a third party, without any binding obligation for support, and failed to assess Kwanda's own financial ability. This constituted taking into account irrelevant considerations and failing to consider relevant ones, rendering the award irrational and reviewable. The court found no merit in the argument that NRG's failure to seek an interdict precluded relief, as there was no guarantee such an interdict would have been granted and the delay was not...

Citation
[2009] ZASCA 8
Parties
Appellant: Eskom Holdings Limited; Appellant: Kwanda Ferro-Alloy African Resources (Pty) Ltd; Respondent: The New Reclamation Group (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
13 March 2009
Case Number
358/08
Procedural Posture
Civil Appeal / Appeal From the High Court, Johannesburg
Outcome
Appeal dismissed. The award of the tender to Kwanda set aside. Costs awarded against appellants jointly and severally.
Judges
Harms, Cloete, Ponnan, Snyders, Leach
Legal Topics
Promotion of Administrative Justice Act, Tender Review, Irrelevant Considerations, Just and Equitable Remedy, Public Procurement
Administrative Law Civil Procedure Promotion of Administrative Justice Act Tender Review Irrelevant Considerations Just and Equitable Remedy Public Procurement

Case Brief

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Parties

Eskom Holdings Limited

Appellant

Kwanda Ferro-Alloy African Resources (Pty) Ltd

Appellant

The New Reclamation Group (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From the High Court, Johannesburg

Legal Issues

  1. 1 Whether Eskom's award of the tender to Kwanda was reviewable under PAJA.
  2. 2 Whether Eskom considered irrelevant and failed to consider relevant factors in awarding the tender.
  3. 3 What is the appropriate remedy for an irregular tender award under administrative law.

Ratio Decidendi

The Supreme Court of Appeal held that Eskom, as an organ of State, was required under PAJA to consider only relevant factors in awarding the tender. Eskom awarded the tender to Kwanda based on the financial position of Rappa Holdings, a third party, without any binding obligation for support, and failed to assess Kwanda's own financial ability. This constituted taking into account irrelevant considerations and failing to consider relevant ones, rendering the award irrational and reviewable. The court found no merit in the argument that NRG's failure to seek an interdict precluded relief, as there was no guarantee such an interdict would have been granted and the delay was not...

Court Disposition

Appeal dismissed. The award of the tender to Kwanda set aside. Costs awarded against appellants jointly and severally.

Orders

  • The appeal is dismissed.
  • The appellants are ordered to pay the respondent's costs of appeal jointly and severally, the one paying, the other to be absolved.