Kusa Kokutsha (Pty) Ltd V South African National Roads Agency SOC Limited and Others (26213/20) [2020] ZAGPPHC 746 (8 December 2020)

Kusa Kokutsha (Pty) Ltd V South African National Roads Agency SOC Limited and Others (26213/20) [2020] ZAGPPHC 746 (8 December 2020)

The court found that material irregularities occurred in the tender process, specifically non-compliance with the mandatory statutory requirement of 30% local subcontracting under Regulation 9 of the Preferential Procurement Regulations. The tender call and subsequent clarifications failed to comply with this requirement, and the addenda/clarifications were issued by a committee lacking the necessary authority. These irregularities were material and justified the Board's decision to cancel the tender. The applicant's arguments regarding bias, mala fides, and entitlement to the tender were unsupported by facts and amounted to speculation. The Board of SANRAL retained the authority to award...

Citation
[2020] ZAGPPHC 746
Parties
Applicant: Kusa Kokutsha (Pty) Ltd; First Respondent: South African National Roads Agency SOC Ltd; Second Respondent: Gijima Holdings (Pty) Ltd; Third Respondent: Guma Supply Chain Management (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 December 2020
Case Number
26213/20
Procedural Posture
Review Application / Judgment
Outcome
Application for review dismissed with costs.
Judges
C J van der Westhuizen
Legal Topics
Public Procurement, Preferential Procurement Regulations, Material Irregularity, Delegation of Authority, Bbbee Compliance
Administrative Law Civil Procedure Public Procurement Preferential Procurement Regulations Material Irregularity Delegation of Authority Bbbee Compliance

Case Brief

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Parties

Kusa Kokutsha (Pty) Ltd

Applicant

South African National Roads Agency SOC Ltd

First Respondent

Gijima Holdings (Pty) Ltd

Second Respondent

Guma Supply Chain Management (Pty) Ltd

Third Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the cancellation of the tender call by SANRAL was lawful.
  2. 2 Whether material irregularities occurred in the tender process justifying cancellation.
  3. 3 Whether SANRAL's Board acted with bias, mala fides, or for an ulterior purpose.

Ratio Decidendi

The court found that material irregularities occurred in the tender process, specifically non-compliance with the mandatory statutory requirement of 30% local subcontracting under Regulation 9 of the Preferential Procurement Regulations. The tender call and subsequent clarifications failed to comply with this requirement, and the addenda/clarifications were issued by a committee lacking the necessary authority. These irregularities were material and justified the Board's decision to cancel the tender. The applicant's arguments regarding bias, mala fides, and entitlement to the tender were unsupported by facts and amounted to speculation. The Board of SANRAL retained the authority to award...

Court Disposition

Application for review dismissed with costs.

Orders

  • The application for review is dismissed.
  • The applicant is to pay the costs of the first, second and third respondents, including the costs of two counsel where applicable.