Sekoko Mametja Incorporated Attorneys v Fetakgomo Tubatse Local Municipality (60/2021) [2022] ZASCA 28 (18 March 2022)

Sekoko Mametja Incorporated Attorneys v Fetakgomo Tubatse Local Municipality (60/2021) [2022] ZASCA 28 (18 March 2022)

The Supreme Court of Appeal held that, although the tender awarded to Sekoko Mametja Incorporated Attorneys was invalid due to non-compliance with the municipality's Supply Chain Management Policy, the municipality had received the full benefit of the services rendered. The municipality did not dispute the...

Source-derived case information.

Citation
[2022] ZASCA 28
Parties
Appellant: Sekoko Mametja Incorporated Attorneys; Respondent: Fetakgomo Tubatse Local Municipality
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
18 March 2022
Case Number
60/2021
Procedural Posture
Civil Appeal / Appeal From the Limpopo Division of the High Court, Polokwane
Outcome
Appeal upheld; order of the court a quo set aside and replaced with an order for payment to the appellant.
Judges
Petse, Van der Merwe, Dlodlo, Mbatha, Gorven
Legal Topics
Legality Review, Tender Award, Just and Equitable Remedy, Constitutional Invalidity, Public Law Remedies
Administrative Law Civil Procedure Legality Review Tender Award Just and Equitable Remedy Constitutional Invalidity Public Law Remedies

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Parties

Sekoko Mametja Incorporated Attorneys

Appellant

Fetakgomo Tubatse Local Municipality

Respondent

Procedural Posture

Civil Appeal / Appeal From the Limpopo Division of the High Court, Polokwane

Legal Issues

  1. 1 Whether the municipality was entitled to set aside its own tender award to Sekoko Mametja Incorporated Attorneys on grounds of legality.
  2. 2 Whether Sekoko Mametja Incorporated Attorneys is entitled to payment for services rendered under a contract subsequently declared void ab initio.
  3. 3 What constitutes a just and equitable remedy under section 172(1)(b) of the Constitution in the context of unlawful tender awards.

Ratio Decidendi

The Supreme Court of Appeal held that, although the tender awarded to Sekoko Mametja Incorporated Attorneys was invalid due to non-compliance with the municipality's Supply Chain Management Policy, the municipality had received the full benefit of the services rendered. The municipality did not dispute the effectiveness of the services or the entitlement to payment and did not oppose the counter-application. The high court erred by failing to consider whether a just and equitable remedy under section 172(1)(b) of the Constitution was appropriate. The appellate court found that, in circumstances where no fault lies with the service provider and the municipality benefited from the services,...

Court Disposition

Appeal upheld; order of the court a quo set aside and replaced with an order for payment to the appellant.

Orders

  • The appeal is upheld with no order as to costs.
  • Paragraph (iv) of the order of the court a quo is set aside and replaced with: 'The applicant (the municipality) is ordered to pay the respondent an amount of R436 250.30 plus interest of 10.25% per annum calculated as from 26 November 2019 to date of payment. No order is made in respect of the costs of the...