Herselman v Geleba (231/2009) [2011] ZAEQC 1 (1 September 2011)

Herselman v Geleba (231/2009) [2011] ZAEQC 1 (1 September 2011)

The court found that the applicant's appointment to the Klipfontein Corridor Project was limited to the preliminary design phase and was made by the Province, not the City. The evidence, including the appointment letter and subsequent correspondence, clearly indicated that any appointment for the detailed design phase would be subject to a separate procurement process managed by the City. The City had no contractual obligation to the applicant for the detailed design phase. As the tender process for the detailed design phase was still ongoing, the application was premature. The court declined to rule on the discrimination allegations, finding that the matter turned on the contractual...

Citation
[2011] ZAEQC 1
Parties
Applicant: Manong & Associates; Respondent: The Executive Mayor of the City of Cape Town; Respondent: The City of Cape Town; Respondent: The MEC, Provincial Department of Transport and Public Works; Respondent: The Provincial Department of Transport and Public Works; Respondent: Ninham Shand (Pty) Ltd; Respondent: Target Projects (Pty) Ltd; Respondent: NSA Mammon & Associates; Respondent: The Auditor-General; Respondent: The South African Human Rights Commission; Respondent: The Public Protector; Respondent: The African National Congress
Court
Equality Court
Jurisdiction
South Africa
Judgment Date
16 August 2011
Case Number
EC7/08
Procedural Posture
Review Application / Final Judgment After Trial
Outcome
Application dismissed with costs, including costs of two counsel.
Judges
Erasmus
Legal Topics
Public Procurement, Unfair Discrimination, Contractual Obligations, Burden of Proof Equality Act
Administrative Law Civil Procedure Public Procurement Unfair Discrimination Contractual Obligations Burden of Proof Equality Act

Case Brief

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Parties

Manong & Associates

Applicant

The Executive Mayor of the City of Cape Town

Respondent

The City of Cape Town

Respondent

The MEC, Provincial Department of Transport and Public Works

Respondent

The Provincial Department of Transport and Public Works

Respondent

Ninham Shand (Pty) Ltd

Respondent

Target Projects (Pty) Ltd

Respondent

NSA Mammon & Associates

Respondent

The Auditor-General

Respondent

The South African Human Rights Commission

Respondent

The Public Protector

Respondent

The African National Congress

Respondent

Procedural Posture

Review Application / Final Judgment After Trial

Legal Issues

  1. 1 Whether the City of Cape Town's refusal to extend the applicant's appointment to the detailed design phase of the Klipfontein Corridor Project constitutes unfair discrimination on the ground of race under section 7 of the Equality Act.
  2. 2 Whether the applicant was contractually appointed by the City or only by the Province, and whether the appointment covered the detailed design phase.
  3. 3 Whether the application is premature given the City's ongoing procurement process for the detailed design phase.

Ratio Decidendi

The court found that the applicant's appointment to the Klipfontein Corridor Project was limited to the preliminary design phase and was made by the Province, not the City. The evidence, including the appointment letter and subsequent correspondence, clearly indicated that any appointment for the detailed design phase would be subject to a separate procurement process managed by the City. The City had no contractual obligation to the applicant for the detailed design phase. As the tender process for the detailed design phase was still ongoing, the application was premature. The court declined to rule on the discrimination allegations, finding that the matter turned on the contractual...

Court Disposition

Application dismissed with costs, including costs of two counsel.

Orders

  • The application is dismissed with costs, including the costs of two counsel.