H & I Civil & Building (Pty) Ltd and Another v City of Cape Town and Others (59/24) [2024] ZAWCHC 329 (18 October 2024)

H & I Civil & Building (Pty) Ltd and Another v City of Cape Town and Others (59/24) [2024] ZAWCHC 329 (18 October 2024)

The court held that the City of Cape Town was lawfully empowered to determine and implement its own preferential procurement policy and scoring system for tenders, provided it acted within the constitutional and legislative framework. The process followed by the City in developing the new scoring system was rational, involved internal consultation and legal advice, and was necessitated by changes in the regulatory environment following the Afribusiness judgment and the 2022 Procurement Regulations. The applicants' arguments regarding procedural unfairness, legitimate expectation, and alleged exclusionary effects were rejected, as the City was not required to consult individual bidders...

Citation
[2024] ZAWCHC 329
Parties
Applicant: H & I Civil & Building (Pty) Ltd; Applicant: H & I Construction (Pty) Ltd; Respondent: City of Cape Town; Respondent: Wilson Bayly Holmes – Ovcon Limited; Respondent: CVS Construction (Pty) Ltd; Respondent: ASLA Construction (Pty) Ltd; Respondent: Baseline Civil Contractors (Pty) Ltd; Respondent: Martin & East (Pty) Ltd; Respondent: Power Construction (Pty) Ltd; Respondent: Ruwacon (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
18 October 2024
Case Number
59/24
Procedural Posture
Review Application / Final Judgment on Review and Interdict Applications
Outcome
Application dismissed with costs.
Judges
Magardie, Fortuin, Erasmus
Legal Topics
Preferential Procurement, Broad Based Black Economic Empowerment, Municipal Supply Chain Management, Promotion of Administrative Justice Act, Constitutional Review, Public Tender Scoring
Administrative Law Civil Procedure Commercial and Corporate Preferential Procurement Broad Based Black Economic Empowerment Municipal Supply Chain Management Promotion of Administrative Justice Act Constitutional Review +1 more

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Parties

H & I Civil & Building (Pty) Ltd

Applicant

H & I Construction (Pty) Ltd

Applicant

City of Cape Town

Respondent

Wilson Bayly Holmes – Ovcon Limited

Respondent

CVS Construction (Pty) Ltd

Respondent

ASLA Construction (Pty) Ltd

Respondent

Baseline Civil Contractors (Pty) Ltd

Respondent

Martin & East (Pty) Ltd

Respondent

Power Construction (Pty) Ltd

Respondent

Ruwacon (Pty) Ltd

Respondent

Procedural Posture

Review Application / Final Judgment on Review and Interdict Applications

Legal Issues

  1. 1 Whether the City of Cape Town's new preferential procurement scoring system for construction tenders is lawful and consistent with the Constitution.
  2. 2 Whether the City was required to consult affected parties before implementing the new scoring system.
  3. 3 Whether the new scoring system unlawfully disregards B-BBEE contributor status and sectoral codes.

Ratio Decidendi

The court held that the City of Cape Town was lawfully empowered to determine and implement its own preferential procurement policy and scoring system for tenders, provided it acted within the constitutional and legislative framework. The process followed by the City in developing the new scoring system was rational, involved internal consultation and legal advice, and was necessitated by changes in the regulatory environment following the Afribusiness judgment and the 2022 Procurement Regulations. The applicants' arguments regarding procedural unfairness, legitimate expectation, and alleged exclusionary effects were rejected, as the City was not required to consult individual bidders...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.
  • The application in case no. 59/24 in relation to the Macassar interdicts ('Part C') is dismissed with costs.