Thabzo Security Services CC v Msunduzi Municipality and Others (2682/23P) [2023] ZAKZPHC 122 (24 October 2023)

Thabzo Security Services CC v Msunduzi Municipality and Others (2682/23P) [2023] ZAKZPHC 122 (24 October 2023)

The court found that the applicant's bid was non-responsive due to its failure to submit the mandatory audited financial statements required by the tender invitation. The Bid Evaluation Committee and Bid Adjudication Committee had no discretion to condone non-compliance with pre-qualification criteria. The contract awarded to the applicant was invalid from inception as it was concluded in breach of statutory and constitutional procurement requirements. The Municipality was entitled to raise a reactive challenge to the validity of the contract in response to the applicant's enforcement proceedings, even though it had not yet applied for self-review. The applicant failed to establish a...

Citation
[2023] ZAKZPHC 122
Parties
Applicant: Thabzo Security Services CC; Respondent: Msunduzi Municipality; Respondent: Wise Security Training CC; Respondent: Royal Security CC
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
24 October 2023
Case Number
2682/23P
Procedural Posture
Urgent Application / Opposed Motion for Interim Interdict and Joinder, Pending Review
Outcome
Applications for interim interdictory relief dismissed with costs on an attorney and own client scale, including costs of two counsel where employed and all costs previously reserved.
Judges
Annandale AJ
Legal Topics
Public Procurement, Collateral Challenge, Interim Interdict, Municipal Finance Management Act, Preferential Procurement Policy Framework Act
Administrative Law Civil Procedure Public Procurement Collateral Challenge Interim Interdict Municipal Finance Management Act Preferential Procurement Policy Framework Act

Case Brief

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Parties

Thabzo Security Services CC

Applicant

Msunduzi Municipality

Respondent

Wise Security Training CC

Respondent

Royal Security CC

Respondent

Procedural Posture

Urgent Application / Opposed Motion for Interim Interdict and Joinder, Pending Review

Legal Issues

  1. 1 Whether the applicant's bid was non-responsive due to failure to submit mandatory audited financial statements.
  2. 2 Whether the Municipality had a contractual or public law right to cancel the service level agreement after awarding the tender.
  3. 3 Whether the Municipality could raise a reactive challenge to the validity of the contract without a formal self-review application.

Ratio Decidendi

The court found that the applicant's bid was non-responsive due to its failure to submit the mandatory audited financial statements required by the tender invitation. The Bid Evaluation Committee and Bid Adjudication Committee had no discretion to condone non-compliance with pre-qualification criteria. The contract awarded to the applicant was invalid from inception as it was concluded in breach of statutory and constitutional procurement requirements. The Municipality was entitled to raise a reactive challenge to the validity of the contract in response to the applicant's enforcement proceedings, even though it had not yet applied for self-review. The applicant failed to establish a...

Court Disposition

Applications for interim interdictory relief dismissed with costs on an attorney and own client scale, including costs of two counsel where employed and all costs previously reserved.

Orders

  • The application under Notice of Motion dated 21 February 2023 and the application under Notice of Motion dated 4 April 2023 are dismissed with costs on the scale as between attorney and own client, such costs to include those of two counsel where so employed and all costs previously reserved.