Professional Aviation Services (Pty) Ltd v City of Tshwane Metropolitan Municipality (37721/2021) [2024] ZAGPPHC 384 (16 April 2024)

Professional Aviation Services (Pty) Ltd v City of Tshwane Metropolitan Municipality (37721/2021) [2024] ZAGPPHC 384 (16 April 2024)

The court found that the City of Tshwane failed to provide any, let alone a sufficient, explanation for its delay in launching the review application. The delay, spanning over two years, was unreasonable and not condonable. The nature of the impugned procurement decisions did not support a finding of unlawfulness, as the initial agreement was automatically renewed in terms of its clauses and the deviations were justified by exceptional circumstances. The City’s conduct demonstrated a lack of effective oversight and a pattern of procedural non-compliance, suggesting the review application was a reactionary attempt to avoid payment rather than a bona fide challenge. The court held that the...

Citation
[2024] ZAGPPHC 384
Parties
Applicant: Professional Aviation Services (Pty) Ltd; Respondent: City of Tshwane Metropolitan Municipality; Respondent: Leanda Kock-Ackerman N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 April 2024
Case Number
37721/2021
Procedural Posture
Review Application / Judgment on Review and Condonation
Outcome
The arbitration award is made an order of court; the City’s counter application for review is dismissed with costs; condonation is granted for certain late filings but not for the delay in launching the review.
Judges
L.A. Retief
Legal Topics
Municipal Procurement, Condonation of Delay, Arbitration Award Enforcement, Legality Review, Service Level Agreement, Automatic Renewal of Contract
Administrative Law Civil Procedure Commercial and Corporate Municipal Procurement Condonation of Delay Arbitration Award Enforcement Legality Review Service Level Agreement +1 more

Case Brief

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Parties

Professional Aviation Services (Pty) Ltd

Applicant

City of Tshwane Metropolitan Municipality

Respondent

Leanda Kock-Ackerman N.O.

Respondent

Procedural Posture

Review Application / Judgment on Review and Condonation

Legal Issues

  1. 1 Whether the delay by the City of Tshwane in launching its self-review application was undue and condonable.
  2. 2 Whether the impugned procurement decisions of 28 November 2018 and 1 August 2019 were unlawful and should be set aside.
  3. 3 Whether the arbitration award should be made an order of court.

Ratio Decidendi

The court found that the City of Tshwane failed to provide any, let alone a sufficient, explanation for its delay in launching the review application. The delay, spanning over two years, was unreasonable and not condonable. The nature of the impugned procurement decisions did not support a finding of unlawfulness, as the initial agreement was automatically renewed in terms of its clauses and the deviations were justified by exceptional circumstances. The City’s conduct demonstrated a lack of effective oversight and a pattern of procedural non-compliance, suggesting the review application was a reactionary attempt to avoid payment rather than a bona fide challenge. The court held that the...

Court Disposition

The arbitration award is made an order of court; the City’s counter application for review is dismissed with costs; condonation is granted for certain late filings but not for the delay in launching the review.

Orders

  • The Arbitrator’s award dated 12 March 2021, as supplemented and amended on 17 March 2021, is made an order of court.
  • The First Respondent is ordered to pay the costs occasioned by prayer 1.