Groenewald NO and Others v M5 Developments (Cape) [2010] ZASCA 47; 2010 (5) SA 82 (SCA) ; [2011] 1 All SA 17 (SCA) (31 March 2010)

Groenewald NO and Others v M5 Developments (Cape) [2010] ZASCA 47; 2010 (5) SA 82 (SCA) ; [2011] 1 All SA 17 (SCA) (31 March 2010)

The Supreme Court of Appeal held that section 62 of the Municipal Systems Act confers a right of appeal only on those whose rights are affected and who lodge an appeal within the prescribed period. The appeal authority's powers are limited to considering the appeal and the reasons advanced by the appellant, and do not extend to reconsidering all tenders or awarding the contract to a non-appellant. The appeal is a wide one in the sense of a rehearing, but only in relation to the issues raised by the appellant. In this case, since only Blue Whale appealed in time and its appeal was without merit, the appeal authority should have dismissed the appeal and left the original award undisturbed....

Citation
[2010] ZASCA 47
Parties
Appellant: CC Groenewald NO; Appellant: Overstrand Municipality; Appellant: ASLA Devco (Pty) Ltd; Respondent: M5 Developments (Cape) (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 March 2010
Case Number
283/09
Procedural Posture
Civil Appeal / Appeal From Western Cape High Court, Cape Town
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
NAVSA, CLOETE, LEWIS, MHLANTLA, LEACH
Legal Topics
Municipal Tender Review, Preferential Procurement, Section 62 Appeal, Public Contracts, Constitutional Procurement Principles
Administrative Law Civil Procedure Municipal Tender Review Preferential Procurement Section 62 Appeal Public Contracts Constitutional Procurement Principles

Case Brief

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Parties

CC Groenewald NO

Appellant

Overstrand Municipality

Appellant

ASLA Devco (Pty) Ltd

Appellant

M5 Developments (Cape) (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape High Court, Cape Town

Legal Issues

  1. 1 Whether an unsuccessful tenderer has a right of appeal under section 62 of the Local Government: Municipal Systems Act.
  2. 2 Whether the appeal authority may award a contract to an unsuccessful tenderer who did not appeal.
  3. 3 Whether the appeal process allows reconsideration of all tenders or only those of the appellant.

Ratio Decidendi

The Supreme Court of Appeal held that section 62 of the Municipal Systems Act confers a right of appeal only on those whose rights are affected and who lodge an appeal within the prescribed period. The appeal authority's powers are limited to considering the appeal and the reasons advanced by the appellant, and do not extend to reconsidering all tenders or awarding the contract to a non-appellant. The appeal is a wide one in the sense of a rehearing, but only in relation to the issues raised by the appellant. In this case, since only Blue Whale appealed in time and its appeal was without merit, the appeal authority should have dismissed the appeal and left the original award undisturbed....

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, such costs to include the costs of two counsel.