Marce' Projects (Pty) Ltd and Others v The City of Johannesburg Metropolitan Municipality and Others (2019/33291) [2021] ZAGPJHC 137 (29 March 2021)

Marce' Projects (Pty) Ltd and Others v The City of Johannesburg Metropolitan Municipality and Others (2019/33291) [2021] ZAGPJHC 137 (29 March 2021)

The Court found that the procurement process for the supply of fire engines and rescue vehicles by the City of Johannesburg was unlawful and constitutionally invalid, having breached section 217 of the Constitution and the Municipal Supply Chain Management Regulations. The deviation process was unjustified and resulted from poor planning and deliberate mismanagement. TFM Industries was not an innocent awardee, having made false representations regarding its ability to deliver and its financial standing, and having received irregular payments while litigation was pending. The Court held that neither the City nor TFM should benefit from the unlawful contract. Applying the corrective...

Citation
[2021] ZAGPJHC 137
Parties
Applicant: Marcé Projects (Pty) Ltd; Applicant: Marcé Firefighting Technologies (Pty) Ltd; Applicant: Fire Raiders (Pty) Ltd; Respondent: The City of Johannesburg Metropolitan Municipality; Respondent: TFM Industries (Pty) Ltd; Respondent: The Executive Mayor of the City of Johannesburg Metropolitan Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
29 March 2021
Case Number
2019/33291
Procedural Posture
Review Application / Determination of Just and Equitable Remedy Following Declaration of Invalidity
Outcome
Declaration of invalidity of the contract and tender confirmed; just and equitable remedy granted.
Judges
Siwendu
Legal Topics
Municipal Supply Chain Management, Deviation From Procurement Process, Constitutional Invalidity, Just and Equitable Remedy, Performance Guarantee, Public Interest in Procurement
Administrative Law Civil Procedure Commercial and Corporate Municipal Supply Chain Management Deviation From Procurement Process Constitutional Invalidity Just and Equitable Remedy Performance Guarantee +1 more

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Parties

Marcé Projects (Pty) Ltd

Applicant

Marcé Firefighting Technologies (Pty) Ltd

Applicant

Fire Raiders (Pty) Ltd

Applicant

The City of Johannesburg Metropolitan Municipality

Respondent

TFM Industries (Pty) Ltd

Respondent

The Executive Mayor of the City of Johannesburg Metropolitan Municipality

Respondent

Procedural Posture

Review Application / Determination of Just and Equitable Remedy Following Declaration of Invalidity

Legal Issues

  1. 1 Whether the procurement process for the supply of fire engines and rescue vehicles by the City of Johannesburg was lawful and constitutionally valid.
  2. 2 Whether the deviation from official procurement processes under Regulation 36 of the Municipal Supply Chain Management Regulations was justified.
  3. 3 What constitutes a just and equitable remedy following the declaration of invalidity of the tender and contract.

Ratio Decidendi

The Court found that the procurement process for the supply of fire engines and rescue vehicles by the City of Johannesburg was unlawful and constitutionally invalid, having breached section 217 of the Constitution and the Municipal Supply Chain Management Regulations. The deviation process was unjustified and resulted from poor planning and deliberate mismanagement. TFM Industries was not an innocent awardee, having made false representations regarding its ability to deliver and its financial standing, and having received irregular payments while litigation was pending. The Court held that neither the City nor TFM should benefit from the unlawful contract. Applying the corrective...

Court Disposition

Declaration of invalidity of the contract and tender confirmed; just and equitable remedy granted.

Orders

  • The suspension of the declaration of invalidity is extended pending delivery of vehicles and compliance with this order.
  • The City shall retain for its exclusive use the 15 Grass Fire Unit vehicles already paid for and delivered by TFM.