Swifambo Rail Leasing (Pty) Limited v Passenger Rail Agency of South Africa (1030/2017) [2018] ZASCA 167; 2020 (1) SA 76 (SCA) (30 November 2018)

Swifambo Rail Leasing (Pty) Limited v Passenger Rail Agency of South Africa (1030/2017) [2018] ZASCA 167; 2020 (1) SA 76 (SCA) (30 November 2018)

The Supreme Court of Appeal found that the tender awarded to Swifambo was vitiated by serious irregularities, corruption, and fronting, with specifications tailored to benefit Vossloh and Swifambo lacking the required experience and compliance. The evidence of corruption was uncontested and admissible. The delay in instituting review proceedings was reasonable given the obstruction and complexity faced by the reconstituted PRASA board, and condonation would be granted even if the delay were unreasonable, due to the overriding public interest. Swifambo was not an innocent tenderer but a front for Vossloh, undermining the objectives of the BBBEE Act. The contract had been partially...

Citation
[2018] ZASCA 167
Parties
Appellant: Swifambo Rail Leasing (Pty) Limited; Respondent: Passenger Rail Agency of South Africa
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 2018
Case Number
1030/2017
Procedural Posture
Civil Appeal / Appeal From Gauteng Local Division of the High Court, Johannesburg
Outcome
Appeal dismissed with costs of two counsel.
Judges
Lewis, Ponnan, Zondi, Makgoka, Schippers
Legal Topics
Tender Irregularities, Fronting, Broad Based Black Economic Empowerment Act, Delay in Review, Condonation, Corruption in Procurement
Administrative Law Commercial and Corporate Tender Irregularities Fronting Broad Based Black Economic Empowerment Act Delay in Review Condonation Corruption in Procurement

Case Brief

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Parties

Swifambo Rail Leasing (Pty) Limited

Appellant

Passenger Rail Agency of South Africa

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Local Division of the High Court, Johannesburg

Legal Issues

  1. 1 Whether the award of the tender to Swifambo was vitiated by irregularities, corruption, and fronting.
  2. 2 Whether the delay in instituting review proceedings by PRASA was unreasonable and, if so, whether condonation should be granted.
  3. 3 Whether Swifambo was an innocent tenderer or a party to fronting practices.

Ratio Decidendi

The Supreme Court of Appeal found that the tender awarded to Swifambo was vitiated by serious irregularities, corruption, and fronting, with specifications tailored to benefit Vossloh and Swifambo lacking the required experience and compliance. The evidence of corruption was uncontested and admissible. The delay in instituting review proceedings was reasonable given the obstruction and complexity faced by the reconstituted PRASA board, and condonation would be granted even if the delay were unreasonable, due to the overriding public interest. Swifambo was not an innocent tenderer but a front for Vossloh, undermining the objectives of the BBBEE Act. The contract had been partially...

Court Disposition

Appeal dismissed with costs of two counsel.

Orders

  • The appeal is dismissed with the costs of two counsel.
  • The contract between PRASA and Swifambo is set aside.