Mathata General Trading CC and Others v Head of Department of Mpumalanga Department of Community Safety, Security and Liaison and Others (2350/2022) [2022] ZAMPMBHC 49 (29 June 2022)

Mathata General Trading CC and Others v Head of Department of Mpumalanga Department of Community Safety, Security and Liaison and Others (2350/2022) [2022] ZAMPMBHC 49 (29 June 2022)

The court found that the Department's extension of the bid validity period was procedurally defective, as no consent was sought from bidders and the published notices were insufficiently specific. The award of the tender after expiry of the original validity period, without proper extension, rendered the process unconstitutional and invalid. The applicants acted with requisite haste and did not create their own urgency. The successful bidders were not joined due to lack of disclosure by the Department, but the court issued a rule nisi to allow them and other interested parties to participate before final orders were made. The court suspended the declaration of invalidity pending...

Citation
[2022] ZAMPMBHC 49
Parties
Applicant: Mathata General Trading CC; Applicant: Mabotwane Security Services CC; Applicant: Mafoko Security Patrols (Pty) Ltd; Respondent: Head of Department: Mpumalanga Department of Community Safety, Security and Liaison; Respondent: Member of the Executive Council for the Department
Court
Mbombela High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
29 June 2022
Case Number
2350/2022
Procedural Posture
Urgent Application / Interim Relief and Review Application; Joinder and Intervention Applications Granted; Rule Nisi Issued
Outcome
The award of the tender was declared constitutionally invalid, but the declaration of invalidity was suspended pending determination of a just and equitable remedy. A rule nisi was issued to allow interested parties to make submissions. Costs were awarded against the Department.
Judges
Roelofse AJ
Legal Topics
Public Procurement, Constitutional Invalidity, Just and Equitable Remedy, Joinder of Parties, Urgency in Motion Proceedings
Administrative Law Civil Procedure Public Procurement Constitutional Invalidity Just and Equitable Remedy Joinder of Parties Urgency in Motion Proceedings

Case Brief

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Parties

Mathata General Trading CC

Applicant

Mabotwane Security Services CC

Applicant

Mafoko Security Patrols (Pty) Ltd

Applicant

Head of Department: Mpumalanga Department of Community Safety, Security and Liaison

Respondent

Member of the Executive Council for the Department

Respondent

Procedural Posture

Urgent Application / Interim Relief and Review Application; Joinder and Intervention Applications Granted; Rule Nisi Issued

Legal Issues

  1. 1 Whether the award of the tender for security services by the Department was constitutionally valid.
  2. 2 Whether the extension of the bid validity period without bidders' consent rendered the award invalid.
  3. 3 Whether the matter was urgent and whether urgency was self-created.

Ratio Decidendi

The court found that the Department's extension of the bid validity period was procedurally defective, as no consent was sought from bidders and the published notices were insufficiently specific. The award of the tender after expiry of the original validity period, without proper extension, rendered the process unconstitutional and invalid. The applicants acted with requisite haste and did not create their own urgency. The successful bidders were not joined due to lack of disclosure by the Department, but the court issued a rule nisi to allow them and other interested parties to participate before final orders were made. The court suspended the declaration of invalidity pending...

Court Disposition

The award of the tender was declared constitutionally invalid, but the declaration of invalidity was suspended pending determination of a just and equitable remedy. A rule nisi was issued to allow interested parties to make submissions. Costs were awarded against the Department.

Orders

  • A rule nisi is issued calling upon all interested parties, including the successful bidders, to show cause why the orders should not be made final.
  • It is declared that the award of tender Number SS/048/21/MP is constitutionally invalid.