Sivivane Construction CC and Others v Ramotshere Moiloa Local Municipality and Another (272/2011) [2011] ZANWHC 87 (5 May 2011)

Sivivane Construction CC and Others v Ramotshere Moiloa Local Municipality and Another (272/2011) [2011] ZANWHC 87 (5 May 2011)

The Court found that the newspaper advertisement constituted a public invitation to tender for the contract in question. It was common cause that the advertisement did not specify the specific goals or the quantity of points to be awarded for each goal, as required by section 2(1)(e) of the PPPFA. The requirement is peremptory, and failure to comply renders the entire tender process null and void. The applicants conceded that if the advertisement was an invitation to tender, the process was invalid. The Court granted the first respondent's counter-application to set aside the process. On costs, the Court found that both parties contributed to the unnecessary litigation: the first...

Citation
[2011] ZANWHC 87
Parties
Applicant: Sivivane Construction CC; Applicant: Emisang Construction & Projects CC; Applicant: Totwane Ismael Legoe; Respondent: Ramotshere Moiloa Local Municipality; Respondent: Bakgatla Entrepreneur Services & Khetwayo Construction CC
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
5 May 2011
Case Number
272/2011
Procedural Posture
Review Application / Final Judgment on Review and Counter Application
Outcome
Application dismissed with costs; counter-application granted with costs against applicants.
Judges
N. Gutta
Legal Topics
Public Procurement, Preferential Procurement Policy Framework Act, Municipal Supply Chain Management, Bid Adjudication, Nullity of Tender Process
Administrative Law Civil Procedure Public Procurement Preferential Procurement Policy Framework Act Municipal Supply Chain Management Bid Adjudication Nullity of Tender Process

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Parties

Sivivane Construction CC

Applicant

Emisang Construction & Projects CC

Applicant

Totwane Ismael Legoe

Applicant

Ramotshere Moiloa Local Municipality

Respondent

Bakgatla Entrepreneur Services & Khetwayo Construction CC

Respondent

Procedural Posture

Review Application / Final Judgment on Review and Counter Application

Legal Issues

  1. 1 Whether the tender process for contract RMLM/02/2010 complied with section 2(1)(e) of the Preferential Procurement Policy Framework Act.
  2. 2 Whether failure to specify specific goals in the invitation to tender renders the process null and void.
  3. 3 Whether the advertisement constituted a valid invitation to tender under the PPPFA.

Ratio Decidendi

The Court found that the newspaper advertisement constituted a public invitation to tender for the contract in question. It was common cause that the advertisement did not specify the specific goals or the quantity of points to be awarded for each goal, as required by section 2(1)(e) of the PPPFA. The requirement is peremptory, and failure to comply renders the entire tender process null and void. The applicants conceded that if the advertisement was an invitation to tender, the process was invalid. The Court granted the first respondent's counter-application to set aside the process. On costs, the Court found that both parties contributed to the unnecessary litigation: the first...

Court Disposition

Application dismissed with costs; counter-application granted with costs against applicants.

Orders

  • The application is dismissed with costs, each party to pay their own costs.
  • The counter-application is granted; the applicants are to pay the first respondent's costs, including the costs of two counsel.