Moseme Road Construction CC and Others v King Civil Engineering Contractors (Pty) Ltd and Another (385/2009) [2010] ZASCA 13; 2010 (4) SA 359 (SCA) ; [2010] 3 All SA 549 (SCA) (15 March 2010)

Moseme Road Construction CC and Others v King Civil Engineering Contractors (Pty) Ltd and Another (385/2009) [2010] ZASCA 13; 2010 (4) SA 359 (SCA) ; [2010] 3 All SA 549 (SCA) (15 March 2010)

The Supreme Court of Appeal held that the disqualification of King Civil Engineering Contractors' tender was the result of an error by the Department, but King was not entitled in law to the contract. The regulations under the Construction Industry Development Board Act required that only contractors in the higher classification could be awarded the contract, given the final tender value. The court below erred in awarding the contract to King, as it failed to consider the regulatory framework and the principle that not every administrative slip warrants judicial sanction. The court emphasized that practical and equitable considerations, including the position of the innocent successful...

Citation
[2010] ZASCA 13
Parties
Appellant: Moseme Road Construction CC; Appellant: Lonerock Construction (Pty) Ltd; Appellant: MEC for the Department of Public Transport, Roads and Works of the Gauteng Provincial Government; Respondent: King Civil Engineering Contractors (Pty) Ltd; Respondent: Ludonga Construction CC
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
15 March 2010
Case Number
385/2009
Procedural Posture
Civil Appeal / Appeal From the South Gauteng High Court (johannesburg)
Outcome
Appeal upheld; order of the court below set aside; application dismissed with costs; no order on the counter-application.
Judges
Harms, Nugent, Cloete, Lewis, Theron
Legal Topics
Government Tender Awards, Preferential Procurement Policy Framework Act, Judicial Review of Administrative Action, Points System in Tender Evaluation, Remedies for Unlawful Tender Award, Discretion in Setting Aside Contracts
Administrative Law Civil Procedure Commercial and Corporate Government Tender Awards Preferential Procurement Policy Framework Act Judicial Review of Administrative Action Points System in Tender Evaluation Remedies for Unlawful Tender Award +1 more

Case Brief

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Parties

Moseme Road Construction CC

Appellant

Lonerock Construction (Pty) Ltd

Appellant

MEC for the Department of Public Transport, Roads and Works of the Gauteng Provincial Government

Appellant

King Civil Engineering Contractors (Pty) Ltd

Respondent

Ludonga Construction CC

Respondent

Procedural Posture

Civil Appeal / Appeal From the South Gauteng High Court (johannesburg)

Legal Issues

  1. 1 Whether the disqualification of King Civil Engineering Contractors' tender was lawful and justified.
  2. 2 Whether the court below was correct in awarding the contract to King Civil Engineering Contractors.
  3. 3 Whether the administrative irregularity in the tender process warranted judicial intervention and the setting aside of the contract.

Ratio Decidendi

The Supreme Court of Appeal held that the disqualification of King Civil Engineering Contractors' tender was the result of an error by the Department, but King was not entitled in law to the contract. The regulations under the Construction Industry Development Board Act required that only contractors in the higher classification could be awarded the contract, given the final tender value. The court below erred in awarding the contract to King, as it failed to consider the regulatory framework and the principle that not every administrative slip warrants judicial sanction. The court emphasized that practical and equitable considerations, including the position of the innocent successful...

Court Disposition

Appeal upheld; order of the court below set aside; application dismissed with costs; no order on the counter-application.

Orders

  • The appeal is upheld with costs.
  • The order of the court below is set aside and replaced with an order dismissing the application with costs.