Topfix (PTY) LTD v Eskom Holdings SOC LTD and Others (5765/2022) [2023] ZAGPPHC 33 (17 January 2023)

Topfix (PTY) LTD v Eskom Holdings SOC LTD and Others (5765/2022) [2023] ZAGPPHC 33 (17 January 2023)

The court held that Eskom's tender process was lawful, reasonable, and fair. The applicant failed to comply with a mandatory requirement by not submitting the central supplier database (CSD) MAA number as stipulated in the invitation to tender. Proof of registration on the database was not sufficient; the specific number was required. All tenderers were subject to the same criteria, and the applicant's non-compliance justified its disqualification. The court found no procedural unfairness or irrationality in Eskom's conduct. The relief sought by the applicant was refused, and Eskom was awarded costs, including those of two counsels.

Citation
[2023] ZAGPPHC 33
Parties
Applicant: TOPFIX (PTY) LTD; Respondent: ESKOM HOLDINGS SOC LTD; Respondent: KAEFER THERMAL CONTRACTING SERVICES (PTY) LTD; Respondent: ELECTRO HEAT ENERGY (PTY) LTD; Respondent: ORAM INDUSTRIALS (PTY) LTD; Respondent: RSC INDUSTRIAL SERVICES (PTY) LTD
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 January 2023
Case Number
5765/2022
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs, including costs of two counsels.
Judges
M Munzhelele
Legal Topics
Public Procurement, Mandatory Tender Requirements, Procedural Fairness, Judicial Review, Acceptable Tender Definition
Administrative Law Civil Procedure Public Procurement Mandatory Tender Requirements Procedural Fairness Judicial Review Acceptable Tender Definition

Case Brief

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Parties

TOPFIX (PTY) LTD

Applicant

ESKOM HOLDINGS SOC LTD

Respondent

KAEFER THERMAL CONTRACTING SERVICES (PTY) LTD

Respondent

ELECTRO HEAT ENERGY (PTY) LTD

Respondent

ORAM INDUSTRIALS (PTY) LTD

Respondent

RSC INDUSTRIAL SERVICES (PTY) LTD

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether Eskom's decision to disqualify the applicant for failing to submit the mandatory central supplier database (CSD) MAA number was lawful and fair.
  2. 2 Whether the applicant's tender complied with the mandatory requirements set out in the invitation to tender.
  3. 3 Whether the tender process was unreasonable, unfair, irrational, or contrary to Eskom's obligations under procurement law.

Ratio Decidendi

The court held that Eskom's tender process was lawful, reasonable, and fair. The applicant failed to comply with a mandatory requirement by not submitting the central supplier database (CSD) MAA number as stipulated in the invitation to tender. Proof of registration on the database was not sufficient; the specific number was required. All tenderers were subject to the same criteria, and the applicant's non-compliance justified its disqualification. The court found no procedural unfairness or irrationality in Eskom's conduct. The relief sought by the applicant was refused, and Eskom was awarded costs, including those of two counsels.

Court Disposition

Application dismissed with costs, including costs of two counsels.

Orders

  • The applicant's application is dismissed with costs, including the costs of two counsels.