Tekoa Engineers (Pty) Ltd v Alfred Nzo Municipality and Others (1284/2021) [2023] ZAECMKHC 1; [2023] 2 All SA 279 (ECG) (17 January 2023)

Tekoa Engineers (Pty) Ltd v Alfred Nzo Municipality and Others (1284/2021) [2023] ZAECMKHC 1; [2023] 2 All SA 279 (ECG) (17 January 2023)

The court found that the applicant failed to establish exceptional circumstances as required by section 18 of the Superior Courts Act. The mere fact that a tender was set aside and the contract would expire before the appeal process concluded does not, in itself, constitute exceptionality. The applicant's alleged harm was speculative, as no right to the tender accrued from the judgment, and any future participation in a tender process was not guaranteed. Conversely, the respondents, including the successful tenderers and the municipality, demonstrated real and potentially irreparable harm if the execution order was granted, including loss of contract, possible loss of funding, exposure of...

Citation
[2023] ZAECMKHC 1
Parties
Applicant: Tekoa Engineers (Pty) Ltd; Respondent: Alfred Nzo Municipality; Respondent: The Municipality Manager: Alfred Nzo District Municipality; Respondent: Zinzame Consulting Engineers/Cycle Projects/Ubuntu Bam JV; Respondent: Emlanjeni JV; Respondent: Olon Consulting Engineers JV IMP Plant Hire; Respondent: BM Infrastructure JV Magnacorp
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
17 January 2023
Case Number
1284/2021
Procedural Posture
Stay Application / Application for Execution Order Pending Appeal Under Section 18 of the Superior Courts Act
Outcome
Application dismissed with costs, including costs of two counsel where so employed.
Judges
M.S. Jolwana
Legal Topics
Stay of Execution, Review of Tender Award, Exceptional Circumstances, Irreparable Harm, Section 18 Superior Courts Act
Civil Procedure Administrative Law Stay of Execution Review of Tender Award Exceptional Circumstances Irreparable Harm Section 18 Superior Courts Act

Case Brief

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Parties

Tekoa Engineers (Pty) Ltd

Applicant

Alfred Nzo Municipality

Respondent

The Municipality Manager: Alfred Nzo District Municipality

Respondent

Zinzame Consulting Engineers/Cycle Projects/Ubuntu Bam JV

Respondent

Emlanjeni JV

Respondent

Olon Consulting Engineers JV IMP Plant Hire

Respondent

BM Infrastructure JV Magnacorp

Respondent

Procedural Posture

Stay Application / Application for Execution Order Pending Appeal Under Section 18 of the Superior Courts Act

Legal Issues

  1. 1 Has the applicant established exceptional circumstances justifying an execution order pending appeal.
  2. 2 Has the applicant proved it will suffer irreparable harm if the order is not granted.
  3. 3 Has the applicant proved that the respondents will not suffer irreparable harm if the order is granted.

Ratio Decidendi

The court found that the applicant failed to establish exceptional circumstances as required by section 18 of the Superior Courts Act. The mere fact that a tender was set aside and the contract would expire before the appeal process concluded does not, in itself, constitute exceptionality. The applicant's alleged harm was speculative, as no right to the tender accrued from the judgment, and any future participation in a tender process was not guaranteed. Conversely, the respondents, including the successful tenderers and the municipality, demonstrated real and potentially irreparable harm if the execution order was granted, including loss of contract, possible loss of funding, exposure of...

Court Disposition

Application dismissed with costs, including costs of two counsel where so employed.

Orders

  • The application in terms of section 18 of the Superior Courts Act for the granting of an execution order is dismissed.
  • The applicant is ordered to pay costs including costs consequent upon the employment of two counsel, where so employed.