Mobile Telephone Network v Special Investigating Unit (LP/03/2022) [2024] ZAST 6 (24 July 2024)

Mobile Telephone Network v Special Investigating Unit (LP/03/2022) [2024] ZAST 6 (24 July 2024)

The court held that the plaintiff need not attribute unlawful conduct to the excipient to sustain its cause of action. It is sufficient for the plaintiff to allege and prove that the contract was tainted by irregularity, specifically the breach of procurement prescripts under the PFMA. The approach in Allpay and Mining Qualifications Authority was followed, confirming that the consequences of invalidity must be addressed and that benefit from an unlawful contract is subject to public scrutiny. The excipient's argument that the expenditure was not fruitless or wasteful and that no unlawful conduct was attributed was rejected, as these issues are fact-dependent and cannot be resolved on...

Citation
[2024] ZAST 6
Parties
Applicant: Mobile Telephone Networks (Pty) Ltd; Respondent: Special Investigating Unit; Defendant: Thokozani Florence Mhlongo; Defendant: Vodacom (Pty) Ltd
Court
Special Tribunal
Jurisdiction
South Africa
Judgment Date
24 July 2024
Case Number
LP/03/2022
Procedural Posture
Exception Application / Exception to Particulars of Claim; Reasons for Dismissal
Outcome
Exception dismissed with costs, including costs consequent upon the engagement of two counsel.
Judges
K Pillay
Legal Topics
Public Procurement Irregularity, Exception Procedure, Fruitless and Wasteful Expenditure, Unlawful Contract, Just and Equitable Relief
Administrative Law Civil Procedure Public Procurement Irregularity Exception Procedure Fruitless and Wasteful Expenditure Unlawful Contract Just and Equitable Relief

Case Brief

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Parties

Mobile Telephone Networks (Pty) Ltd

Applicant

Special Investigating Unit

Respondent

Thokozani Florence Mhlongo

Defendant

Vodacom (Pty) Ltd

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim; Reasons for Dismissal

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim disclose a cause of action against the excipient.
  2. 2 Whether attribution of unlawful conduct to the excipient is necessary for the plaintiff's claim to succeed.
  3. 3 Whether the submission of an unsolicited bid and subsequent contract can constitute unlawful conduct justifying relief under the PFMA and Constitution.

Ratio Decidendi

The court held that the plaintiff need not attribute unlawful conduct to the excipient to sustain its cause of action. It is sufficient for the plaintiff to allege and prove that the contract was tainted by irregularity, specifically the breach of procurement prescripts under the PFMA. The approach in Allpay and Mining Qualifications Authority was followed, confirming that the consequences of invalidity must be addressed and that benefit from an unlawful contract is subject to public scrutiny. The excipient's argument that the expenditure was not fruitless or wasteful and that no unlawful conduct was attributed was rejected, as these issues are fact-dependent and cannot be resolved on...

Court Disposition

Exception dismissed with costs, including costs consequent upon the engagement of two counsel.

Orders

  • The exception is dismissed with costs.
  • Costs include those consequent upon the engagement of two counsel where applicable.