Sizabonke Civils CC t/a Pilcon Projects v Zululand District Municipality and Others (10878/2009) [2010] ZAKZPHC 21 (12 May 2010)

Sizabonke Civils CC t/a Pilcon Projects v Zululand District Municipality and Others (10878/2009) [2010] ZAKZPHC 21 (12 May 2010)

The court found that the tender process adopted by the first respondent was inconsistent with section 2(1)(b) of the Preferential Procurement Policy Framework Act, as it allocated less than the required minimum of 90 points for price by including functionality within those points. The impugned regulations, which permitted such allocation, were ultra vires and breached the principle of legality. The applicant had locus standi due to its direct and substantial interest in the tender process and future municipal contracts. The contract awarded to the second respondent was reviewed and set aside, and Regulations 8(2) to 8(7) of the Preferential Procurement Regulations, 2001 were declared...

Citation
[2010] ZAKZPHC 21
Parties
Applicant: Sizabonke Civils CC t/a Pilcon Projects; Respondent: Zululand District Municipality; Respondent: NRB Construction & Hire CC; Respondent: The Minister of Finance
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
12 May 2010
Case Number
10878/2009
Procedural Posture
Review Application / Final Judgment
Outcome
Application granted. The contract award is set aside and the impugned regulations are declared invalid.
Judges
Gorven
Legal Topics
Preferential Procurement Policy Framework Act, Tender Review, Ultra Vires, Principle of Legality, Municipal Procurement, Declaration of Invalidity
Administrative Law Civil Procedure Commercial and Corporate Preferential Procurement Policy Framework Act Tender Review Ultra Vires Principle of Legality Municipal Procurement +1 more

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Parties

Sizabonke Civils CC t/a Pilcon Projects

Applicant

Zululand District Municipality

Respondent

NRB Construction & Hire CC

Respondent

The Minister of Finance

Respondent

Procedural Posture

Review Application / Final Judgment

Legal Issues

  1. 1 Whether the award of the contract under tender number ZDM769/2008 by the first respondent to the second respondent was lawful and should be set aside.
  2. 2 Whether Regulations 8(2) to 8(7) of the Preferential Procurement Regulations, 2001 are inconsistent with section 2(1)(b) of the Preferential Procurement Policy Framework Act, No. 5 of 2000 and therefore invalid.
  3. 3 Whether the applicant has locus standi to seek the relief requested.

Ratio Decidendi

The court found that the tender process adopted by the first respondent was inconsistent with section 2(1)(b) of the Preferential Procurement Policy Framework Act, as it allocated less than the required minimum of 90 points for price by including functionality within those points. The impugned regulations, which permitted such allocation, were ultra vires and breached the principle of legality. The applicant had locus standi due to its direct and substantial interest in the tender process and future municipal contracts. The contract awarded to the second respondent was reviewed and set aside, and Regulations 8(2) to 8(7) of the Preferential Procurement Regulations, 2001 were declared...

Court Disposition

Application granted. The contract award is set aside and the impugned regulations are declared invalid.

Orders

  • The award of the contract under tender number ZDM769/2008 by the first respondent to the second respondent is reviewed and set aside.
  • Regulations 8(2) to 8(7) of the Preferential Procurement Regulations, 2001 published in Government Notice R725 of 10 August 2001 are declared inconsistent with section 2(1)(b) of the Preferential Procurement Policy Framework Act, No. 5 of 2000 and are invalid.