M5 Developments (Cape) (Pty) Ltd v Groenewald NO and Others (6277/08) [2009] ZAWCHC 3 (12 February 2009)

M5 Developments (Cape) (Pty) Ltd v Groenewald NO and Others (6277/08) [2009] ZAWCHC 3 (12 February 2009)

The court found that Groenewald, as acting municipal manager, was authorised to consider appeals under section 62 of the Municipal Systems Act. However, his authority was limited to the subject of the appeal lodged by Blue Whale, which was dismissed after due consideration. There was no valid appeal before him from Asla, whose notice was time-barred. Once Blue Whale's appeal was dismissed, Groenewald became functus officio and could not re-allocate the tender to Asla. The administrative process was also found to be procedurally unfair, as M5 was not afforded a reasonable opportunity to provide further information, and the audi alteram partem rule was not properly applied. The failure to...

Citation
[2009] ZAWCHC 3
Parties
Applicant: M5 Developments (Cape) (Pty) Ltd; Respondent: CC Groenewald N.O; Respondent: Overstrand Municipality; Respondent: ASLA Devco (Pty) Limited; Respondent: Blue Whale Property Projects CC
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
12 February 2009
Case Number
6277/08
Procedural Posture
Review Application / Judgment
Outcome
Application granted; the decision to re-allocate the tender is reviewed and set aside.
Judges
Le Grange
Legal Topics
Municipal Tender Review, Procedural Fairness, Audi Alteram Partem, Functus Officio, Ultra Vires, Preferential Procurement
Administrative Law Civil Procedure Municipal Tender Review Procedural Fairness Audi Alteram Partem Functus Officio Ultra Vires Preferential Procurement

Case Brief

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Parties

M5 Developments (Cape) (Pty) Ltd

Applicant

CC Groenewald N.O

Respondent

Overstrand Municipality

Respondent

ASLA Devco (Pty) Limited

Respondent

Blue Whale Property Projects CC

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the acting municipal manager was authorised to re-allocate the tender to Asla Devco (Pty) Limited.
  2. 2 Whether the appeal by Asla Devco (Pty) Limited was time-barred and could be considered.
  3. 3 Whether the audi alteram partem rule was properly applied in the appeal process.

Ratio Decidendi

The court found that Groenewald, as acting municipal manager, was authorised to consider appeals under section 62 of the Municipal Systems Act. However, his authority was limited to the subject of the appeal lodged by Blue Whale, which was dismissed after due consideration. There was no valid appeal before him from Asla, whose notice was time-barred. Once Blue Whale's appeal was dismissed, Groenewald became functus officio and could not re-allocate the tender to Asla. The administrative process was also found to be procedurally unfair, as M5 was not afforded a reasonable opportunity to provide further information, and the audi alteram partem rule was not properly applied. The failure to...

Court Disposition

Application granted; the decision to re-allocate the tender is reviewed and set aside.

Orders

  • The First Respondent's decision to re-allocate the tender is reviewed and set aside.
  • The Applicant is entitled to enter into a contract with Second Respondent pursuant to the allocation of tender SC055/2007.