Roadmac Surfacing (PTY) Ltd v MEC for the Department of Police, Roads & Transport, Free State Province & Another (171/2022) [2022] ZAFSHC 101 (2 June 2022)

Roadmac Surfacing (PTY) Ltd v MEC for the Department of Police, Roads & Transport, Free State Province & Another (171/2022) [2022] ZAFSHC 101 (2 June 2022)

The court found that the applicant had established a prima facie right to relief, as the tender process was not conducted in accordance with the requirements of fairness, transparency, and competitiveness mandated by section 217 of the Constitution and the PPPFA. The 30% subcontracting requirement was not a valid pre-qualification criterion under the tender eligibility criteria, and the first respondent's reasons for disqualification were based on errors of law and fact. The applicant acted promptly upon learning of the award, and absent interim relief, would suffer irreparable harm as the contract would likely be completed before the review could be finalised. The balance of convenience...

Citation
[2022] ZAFSHC 101
Parties
Applicant: Roadmac Surfacing (PTY) Ltd; Respondent: MEC for the Department of Police, Roads & Transport, Free State Province; Respondent: Tau Pele Construction (PTY) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
2 June 2022
Case Number
171/2022
Procedural Posture
Urgent Application / Interim Interdict Pending Review Application
Outcome
Interim interdict granted in favour of the applicant pending finalisation of the review application.
Judges
JP Daffue
Legal Topics
Public Procurement, Interim Interdict, Preferential Procurement Policy Framework Act, Tender Award Review, Constitutional Fairness, Promotion of Administrative Justice Act
Administrative Law Civil Procedure Commercial and Corporate Public Procurement Interim Interdict Preferential Procurement Policy Framework Act Tender Award Review Constitutional Fairness +1 more

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Parties

Roadmac Surfacing (PTY) Ltd

Applicant

MEC for the Department of Police, Roads & Transport, Free State Province

Respondent

Tau Pele Construction (PTY) Ltd

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Review Application

Legal Issues

  1. 1 Whether the applicant is entitled to interim interdictory relief pending the finalisation of a review application regarding the award of a public tender.
  2. 2 Whether the tender process and award complied with the requirements of fairness, transparency, competitiveness, and cost-effectiveness under section 217 of the Constitution.
  3. 3 Whether the 30% subcontracting requirement was a valid pre-qualification criterion under the Preferential Procurement Regulations, 2017.

Ratio Decidendi

The court found that the applicant had established a prima facie right to relief, as the tender process was not conducted in accordance with the requirements of fairness, transparency, and competitiveness mandated by section 217 of the Constitution and the PPPFA. The 30% subcontracting requirement was not a valid pre-qualification criterion under the tender eligibility criteria, and the first respondent's reasons for disqualification were based on errors of law and fact. The applicant acted promptly upon learning of the award, and absent interim relief, would suffer irreparable harm as the contract would likely be completed before the review could be finalised. The balance of convenience...

Court Disposition

Interim interdict granted in favour of the applicant pending finalisation of the review application.

Orders

  • The first respondent is interdicted from instructing the second respondent or any other tenderer to perform further work under Tender No: PR&T18/2021/22.
  • The second respondent is interdicted from commencing with any further work under Tender No: PR&T18/2021/22.