Orapa Mega Phase Trading Store 176 CC and Another v University of North-West and Another (39/2003) [2003] ZANWHC 11 (18 March 2003)

Orapa Mega Phase Trading Store 176 CC and Another v University of North-West and Another (39/2003) [2003] ZANWHC 11 (18 March 2003)

The court found that the tender committee had properly considered all relevant factors, including the employment of retrenchees, but did not make such employment a condition for awarding the tender. The committee's decision was not based solely on the undertaking to employ retrenchees, and the subsequent failure of the second respondent to employ retrenchees did not amount to fraud or a basis for review. The applicants' legitimate expectation was not supported by the written agreement, and the committee's process was fair, transparent, and equitable. The absence of a further affidavit from the respondents did not justify an inference of failure to apply mind or reliance on false facts....

Citation
[2003] ZANWHC 11
Parties
Applicant: Orapa Mega Phase Trading Store 176 CC; Applicant: Second Applicant; Respondent: University of North-West; Respondent: Second Respondent
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
18 March 2003
Case Number
39/2003
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs, except for costs related to the interlocutory application for security.
Judges
Pistor
Legal Topics
Tender Review, Legitimate Expectation, Public Procurement, Review Under Rule 53
Administrative Law Civil Procedure Tender Review Legitimate Expectation Public Procurement Review Under Rule 53

Case Brief

Summary, issues, holding and outcome

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Parties

Orapa Mega Phase Trading Store 176 CC

Applicant

Second Applicant

Applicant

University of North-West

Respondent

Second Respondent

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the tender committee's decision to award the cleaning contract to the second respondent should be reviewed and set aside due to alleged fraud or failure to apply its mind.
  2. 2 Whether the applicants had a legitimate expectation to be awarded the tender based on prior agreements and communications with the university.
  3. 3 Whether the committee's consideration of retrenchee employment was decisive and whether subsequent conduct by the successful tenderer invalidated the award.

Ratio Decidendi

The court found that the tender committee had properly considered all relevant factors, including the employment of retrenchees, but did not make such employment a condition for awarding the tender. The committee's decision was not based solely on the undertaking to employ retrenchees, and the subsequent failure of the second respondent to employ retrenchees did not amount to fraud or a basis for review. The applicants' legitimate expectation was not supported by the written agreement, and the committee's process was fair, transparent, and equitable. The absence of a further affidavit from the respondents did not justify an inference of failure to apply mind or reliance on false facts....

Court Disposition

Application dismissed with costs, except for costs related to the interlocutory application for security.

Orders

  • The application is dismissed with costs, save for the costs referred to in paragraph 2.
  • The costs of the application to demand security, reserved by Hendler J on 20 June 2002 and of the opposition to such application, shall be paid by the applicants in the application for security.