Mapitsi Civil Works (Pty) Limited and Another v MEC for Roads and Transport for the Gauteng Provincial Government and Others (28418/22) [2023] ZAGPPHC 2067 (2 November 2023)

Mapitsi Civil Works (Pty) Limited and Another v MEC for Roads and Transport for the Gauteng Provincial Government and Others (28418/22) [2023] ZAGPPHC 2067 (2 November 2023)

The court held that the applicants failed to exhaust internal remedies as required by section 7(2)(a) of PAJA, specifically the Bid Appeals Tribunal established under the Gauteng Finance Management Supplementary Amendment Act. The applicants did not demonstrate exceptional circumstances justifying direct judicial review, nor did they apply for exemption under section 7(2)(c). The court found that the prescribed internal dispute resolution procedure was designed to resolve tender disputes efficiently and inexpensively, and the applicants' deviation from this process was fatal to their application. On the merits, the court noted that the probity auditor's adverse findings were legitimately...

Citation
[2023] ZAGPPHC 2067
Parties
Applicant: Mapitsi Civil Works (Pty) Limited; Applicant: Mecsa Construction (Pty) Limited; Respondent: MEC for Roads and Transport for the Gauteng Provincial Government; Respondent: Ditshimega Projects & Training (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 November 2023
Case Number
28418/22
Procedural Posture
Review Application / Final Judgment on Review Application
Outcome
Application for review dismissed; costs order made only in respect of the urgent application.
Judges
MPN Mbongwe
Legal Topics
Promotion of Administrative Justice Act, Public Procurement, Preferential Procurement Policy Framework Act, Internal Remedies Exhaustion, Bid Evaluation, Probity Audit
Administrative Law Civil Procedure Promotion of Administrative Justice Act Public Procurement Preferential Procurement Policy Framework Act Internal Remedies Exhaustion Bid Evaluation Probity Audit

Case Brief

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Parties

Mapitsi Civil Works (Pty) Limited

Applicant

Mecsa Construction (Pty) Limited

Applicant

MEC for Roads and Transport for the Gauteng Provincial Government

Respondent

Ditshimega Projects & Training (Pty) Ltd

Respondent

Procedural Posture

Review Application / Final Judgment on Review Application

Legal Issues

  1. 1 Whether the applicants were entitled to approach the court for review without first exhausting internal remedies as required by PAJA.
  2. 2 Whether the first respondent's decision to award the tender to the second respondent was procedurally fair and lawful under the applicable procurement framework.
  3. 3 Whether the second respondent's bid complied with mandatory tender requirements, specifically regarding certified completion certificates for functionality points.

Ratio Decidendi

The court held that the applicants failed to exhaust internal remedies as required by section 7(2)(a) of PAJA, specifically the Bid Appeals Tribunal established under the Gauteng Finance Management Supplementary Amendment Act. The applicants did not demonstrate exceptional circumstances justifying direct judicial review, nor did they apply for exemption under section 7(2)(c). The court found that the prescribed internal dispute resolution procedure was designed to resolve tender disputes efficiently and inexpensively, and the applicants' deviation from this process was fatal to their application. On the merits, the court noted that the probity auditor's adverse findings were legitimately...

Court Disposition

Application for review dismissed; costs order made only in respect of the urgent application.

Orders

  • The application for the review of the first respondent's decision is dismissed with no order as to costs.
  • The applicant is ordered to pay the costs of the urgent application under case number 32776/22, including the costs consequent upon the first respondent's employment of two counsel.