Overstrand Municipality v Water and Sanitation Services South Africa (Pty) Ltd (143/2017) [2018] ZASCA 50; [2018] 2 All SA 644 (SCA) (29 March 2018)

Overstrand Municipality v Water and Sanitation Services South Africa (Pty) Ltd (143/2017) [2018] ZASCA 50; [2018] 2 All SA 644 (SCA) (29 March 2018)

The Supreme Court of Appeal held that the Municipality's award of the tender to Veolia constituted administrative action subject to review under PAJA. The court found that Veolia's bid did not comply with the mandatory minimum staffing requirements for process controllers as set out in the RFP and Regulation 2834, which remained valid under the applicable legislative framework. The Municipality was not empowered to condone non-compliance with these requirements, and the deviation was material rather than trivial. The court concluded that the tender awarded to Veolia was not an 'acceptable tender' as defined in the Preferential Procurement Policy Framework Act. Accordingly, the decision to...

Citation
[2018] ZASCA 50
Parties
Appellant: Overstrand Municipality; Respondent: Water and Sanitation Services South Africa (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 March 2018
Case Number
143/2017
Procedural Posture
Civil Appeal / Appeal From Western Cape Division of the High Court, Cape Town
Outcome
Appeal dismissed with costs; order of the court below amended.
Judges
Navsa, Leach, Mocumie, Davis, Makgoka
Legal Topics
Public Procurement, Preferential Procurement Policy Framework Act, Promotion of Administrative Justice Act, Mandatory Bid Requirements, Process Controllers Regulation, Judicial Review
Administrative Law Civil Procedure Commercial and Corporate Public Procurement Preferential Procurement Policy Framework Act Promotion of Administrative Justice Act Mandatory Bid Requirements Process Controllers Regulation +1 more

Case Brief

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Parties

Overstrand Municipality

Appellant

Water and Sanitation Services South Africa (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape Division of the High Court, Cape Town

Legal Issues

  1. 1 Whether the successful tender complied with the mandatory staffing requirements set out in the tender specifications and Regulation 2834.
  2. 2 Whether the Municipality was entitled to condone non-compliance with mandatory bid requirements.
  3. 3 Whether the award of the tender constituted administrative action subject to review under PAJA.

Ratio Decidendi

The Supreme Court of Appeal held that the Municipality's award of the tender to Veolia constituted administrative action subject to review under PAJA. The court found that Veolia's bid did not comply with the mandatory minimum staffing requirements for process controllers as set out in the RFP and Regulation 2834, which remained valid under the applicable legislative framework. The Municipality was not empowered to condone non-compliance with these requirements, and the deviation was material rather than trivial. The court concluded that the tender awarded to Veolia was not an 'acceptable tender' as defined in the Preferential Procurement Policy Framework Act. Accordingly, the decision to...

Court Disposition

Appeal dismissed with costs; order of the court below amended.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.
  • The decision is remitted to the first respondent for a full new tender process commencing with an RFQ to be started and completed.