Makhathini Medical Waste (Pty) Ltd and Another v MEC for Health, KwaZulu-Natal and Others (8721/21P) [2023] ZAKZPHC 151 (3 August 2023)

Makhathini Medical Waste (Pty) Ltd and Another v MEC for Health, KwaZulu-Natal and Others (8721/21P) [2023] ZAKZPHC 151 (3 August 2023)

The court found that Buhle Waste's review application was instituted outside the 180-day period prescribed by PAJA, with no condonation sought, and was thus dismissed without consideration of the merits. The Department's tender document contained objective criteria for broadening market participation by limiting awards to one area per bidder, which was rational and in line with the PPPFA. Compass's bid was compliant, and the award was conditional on matching Makhathini's price, which Compass accepted within a reasonable time. The validity period of the tender was properly extended by the relevant bidders prior to the award. No basis existed for setting aside the award, and costs were...

Citation
[2023] ZAKZPHC 151
Parties
Applicant: Makhathini Medical Waste (Pty) Ltd; Applicant: Buhle Waste (Pty) Ltd; Respondent: MEC for Health, KwaZulu-Natal; Respondent: Compass Medical Waste Services (Pty) Ltd; Respondent: Chairman, Bid Appeals Tribunal, KwaZulu-Natal; Respondent: MEC for Finance, KwaZulu-Natal
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
3 August 2023
Case Number
8721/21P
Procedural Posture
Review Application / Final Judgment on Review and Intervention Applications
Outcome
Both review applications are dismissed with costs, except that the Department is not entitled to recover costs.
Judges
Poyo Dlwati JP
Legal Topics
Preferential Procurement Policy Framework Act, Objective Criteria in Tender Awards, Bid Validity Period, Judicial Review Delay, Intervention Application
Administrative Law Civil Procedure Preferential Procurement Policy Framework Act Objective Criteria in Tender Awards Bid Validity Period Judicial Review Delay Intervention Application

Case Brief

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Parties

Makhathini Medical Waste (Pty) Ltd

Applicant

Buhle Waste (Pty) Ltd

Applicant

MEC for Health, KwaZulu-Natal

Respondent

Compass Medical Waste Services (Pty) Ltd

Respondent

Chairman, Bid Appeals Tribunal, KwaZulu-Natal

Respondent

MEC for Finance, KwaZulu-Natal

Respondent

Procedural Posture

Review Application / Final Judgment on Review and Intervention Applications

Legal Issues

  1. 1 Whether Buhle Waste's review application was instituted within the 180-day period required by PAJA.
  2. 2 Whether the Department established objective criteria in the tender document justifying the award to Compass.
  3. 3 Whether the validity period of the tender was properly extended prior to the award.

Ratio Decidendi

The court found that Buhle Waste's review application was instituted outside the 180-day period prescribed by PAJA, with no condonation sought, and was thus dismissed without consideration of the merits. The Department's tender document contained objective criteria for broadening market participation by limiting awards to one area per bidder, which was rational and in line with the PPPFA. Compass's bid was compliant, and the award was conditional on matching Makhathini's price, which Compass accepted within a reasonable time. The validity period of the tender was properly extended by the relevant bidders prior to the award. No basis existed for setting aside the award, and costs were...

Court Disposition

Both review applications are dismissed with costs, except that the Department is not entitled to recover costs.

Orders

  • The review application by the second applicant is dismissed with costs, save that no costs shall be recoverable by the first respondent.
  • The second applicant is ordered to pay the first applicant’s and the first respondent’s costs in the intervention application.