Fumana Thuto Consulting v Eskom Holdings (22/18028) [2023] ZAGPJHC 243 (16 March 2023)

Fumana Thuto Consulting v Eskom Holdings (22/18028) [2023] ZAGPJHC 243 (16 March 2023)

The court found that Eskom's decision to disqualify the applicant from tenders KZN0072/DG and KZN0073/DG was unlawful because the financial criteria applied were not specified in the tender documents. The only relevant requirement was the CIDB grading, which the applicant met by holding a level 6 EP grading, exceeding the minimum required level 3EP. The absence of any reference to financial criteria in the tender documents meant Eskom had no legal or factual basis to disqualify the applicant on that ground. The application for review was therefore granted, and Eskom was ordered to reconsider and evaluate the applicant's bids in accordance with the published criteria, excluding the...

Citation
[2023] ZAGPJHC 243
Parties
Applicant: Fumana Thuto Consulting; Respondent: Eskom Holdings
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 March 2023
Case Number
22/18028
Procedural Posture
Review Application / Unopposed Motion; Judgment After Adjournment for Consent Order
Outcome
Application granted; Eskom's decision reviewed and set aside.
Judges
ML Senyatsi
Legal Topics
Promotion of Administrative Justice Act, Tender Review, Public Procurement, Setting Aside Administrative Action
Administrative Law Civil Procedure Promotion of Administrative Justice Act Tender Review Public Procurement Setting Aside Administrative Action

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Parties

Fumana Thuto Consulting

Applicant

Eskom Holdings

Respondent

Procedural Posture

Review Application / Unopposed Motion; Judgment After Adjournment for Consent Order

Legal Issues

  1. 1 Whether Eskom's decision to disqualify the applicant from tenders KZN0072/DG and KZN0073/DG based on financial criteria was lawful.
  2. 2 Whether the financial criteria applied by Eskom were part of the published tender requirements.
  3. 3 Whether the applicant met the minimum CIDB grading required by the tenders.

Ratio Decidendi

The court found that Eskom's decision to disqualify the applicant from tenders KZN0072/DG and KZN0073/DG was unlawful because the financial criteria applied were not specified in the tender documents. The only relevant requirement was the CIDB grading, which the applicant met by holding a level 6 EP grading, exceeding the minimum required level 3EP. The absence of any reference to financial criteria in the tender documents meant Eskom had no legal or factual basis to disqualify the applicant on that ground. The application for review was therefore granted, and Eskom was ordered to reconsider and evaluate the applicant's bids in accordance with the published criteria, excluding the...

Court Disposition

Application granted; Eskom's decision reviewed and set aside.

Orders

  • The decision by Eskom that the applicant did not meet the financial criteria of tenders KZN0072/DG and KZN0073/DG is reviewed and set aside.
  • Eskom is ordered to further consider and evaluate the applicant's tender bids in terms of the tender criteria, excluding the financial criteria previously applied.