Maano Water (Pty) Ltd v Eskom Holdings SOC Limited (383/24) [2025] ZASCA 87 (12 June 2025)

Maano Water (Pty) Ltd v Eskom Holdings SOC Limited (383/24) [2025] ZASCA 87 (12 June 2025)

The Court held that Eskom's decision to cancel the tender was an executive action, not administrative action, and thus not reviewable under PAJA but under the principle of legality. The tender documents expressly reserved Eskom's right to cancel the tender at any time prior to contract formation. Maano did not have an enforceable right to compel Eskom to continue negotiations until deadlock, as the relevant contractual clause was too vague and lacked a deadlock-breaking mechanism. The cancellation was rationally connected to Eskom's need to protect public funds in light of significant and unforeseen market volatility, and was not arbitrary, biased, or procedurally unfair. Eskom's version...

Citation
[2025] ZASCA 87
Parties
Appellant: Maano Water (Pty) Ltd; Respondent: Eskom Holdings SOC Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
12 June 2025
Case Number
383/24
Procedural Posture
Civil Appeal / Appeal From High Court Judgment Dismissing Urgent Application; Leave to Appeal Granted
Outcome
Appeal dismissed; costs awarded against appellant.
Judges
Matojane, Keightley, Phatshoane
Legal Topics
Tender Cancellation, Executive Action Vs Administrative Action, Rationality Review, Pactum De Contrahendo, Preferential Procurement Regulations
Administrative Law Commercial and Corporate Tender Cancellation Executive Action Vs Administrative Action Rationality Review Pactum De Contrahendo Preferential Procurement Regulations

Case Brief

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Parties

Maano Water (Pty) Ltd

Appellant

Eskom Holdings SOC Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment Dismissing Urgent Application; Leave to Appeal Granted

Legal Issues

  1. 1 Whether Eskom's decision to cancel the tender constitutes administrative action subject to review under PAJA or executive action subject to legality review.
  2. 2 Whether Eskom had authority to cancel the tender prior to reaching deadlock in negotiations with Maano.
  3. 3 Whether the cancellation of the tender was rational and lawful under the circumstances.

Ratio Decidendi

The Court held that Eskom's decision to cancel the tender was an executive action, not administrative action, and thus not reviewable under PAJA but under the principle of legality. The tender documents expressly reserved Eskom's right to cancel the tender at any time prior to contract formation. Maano did not have an enforceable right to compel Eskom to continue negotiations until deadlock, as the relevant contractual clause was too vague and lacked a deadlock-breaking mechanism. The cancellation was rationally connected to Eskom's need to protect public funds in light of significant and unforeseen market volatility, and was not arbitrary, biased, or procedurally unfair. Eskom's version...

Court Disposition

Appeal dismissed; costs awarded against appellant.

Orders

  • The appeal is dismissed.
  • The appellant is ordered to pay the costs of the appeal.