King Civil Engineering Contractors (Pty) Ltd and Another v Member of the Executive Council for the Department of Public Transport, Roads and Works of the Gauteng Provincial Government and Others (2009/12600) [2009] ZAGPJHC 102 (2 April 2009)

King Civil Engineering Contractors (Pty) Ltd and Another v Member of the Executive Council for the Department of Public Transport, Roads and Works of the Gauteng Provincial Government and Others (2009/12600) [2009] ZAGPJHC 102 (2 April 2009)

The court held that while the applicants established a prima facie right to seek interim relief, this right was open to doubt due to the circumstances surrounding the tender process and the published qualification criteria. The balance of convenience did not favour the applicants, as the contract with the second and third respondents had already been concluded and substantial steps taken in execution, including employment and site establishment. The applicants had not been awarded the contract and remained free to pursue review proceedings for final relief. The urgency of the works and the prejudice to the respondents outweighed the applicants' interests. The court found that the tender...

Citation
[2009] ZAGPJHC 102
Parties
Plaintiff: King Civil Engineering Contractors (Pty) Ltd; Plaintiff: Ludonga Construction CC; Respondent: Member of the Executive Council for the Department of Public Transport, Roads and Works of the Gauteng Provincial Government; Respondent: Moseme Road Construction CC; Respondent: Lonerock Construction (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
2 April 2009
Case Number
2009/12600
Procedural Posture
Urgent Application / Application for Interim Interdict Pending Review Proceedings
Outcome
Application dismissed. Costs awarded against the applicants, including costs for two counsel.
Judges
P.A. Meyer
Legal Topics
Tender Review, Interim Interdict, Preferential Procurement, Balance of Convenience, Administrative Fairness, Public Contracting
Administrative Law Civil Procedure Commercial and Corporate Tender Review Interim Interdict Preferential Procurement Balance of Convenience Administrative Fairness +1 more

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Parties

King Civil Engineering Contractors (Pty) Ltd

Plaintiff

Ludonga Construction CC

Plaintiff

Member of the Executive Council for the Department of Public Transport, Roads and Works of the Gauteng Provincial Government

Respondent

Moseme Road Construction CC

Respondent

Lonerock Construction (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict Pending Review Proceedings

Legal Issues

  1. 1 Whether the applicants are entitled to an interim interdict restraining the execution of a public works contract pending review proceedings.
  2. 2 Whether the tender process conducted by the first respondent was fair, equitable, and lawful under the Constitution and procurement legislation.
  3. 3 Whether the applicants established a prima facie right and satisfied the requirements for interim relief, including balance of convenience.

Ratio Decidendi

The court held that while the applicants established a prima facie right to seek interim relief, this right was open to doubt due to the circumstances surrounding the tender process and the published qualification criteria. The balance of convenience did not favour the applicants, as the contract with the second and third respondents had already been concluded and substantial steps taken in execution, including employment and site establishment. The applicants had not been awarded the contract and remained free to pursue review proceedings for final relief. The urgency of the works and the prejudice to the respondents outweighed the applicants' interests. The court found that the tender...

Court Disposition

Application dismissed. Costs awarded against the applicants, including costs for two counsel.

Orders

  • The application is dismissed.
  • The applicants are ordered to pay the first respondent's costs of this application, jointly and severally, including the costs of two counsel, one being senior counsel.