WDR Earthmoving Enterprises and Another v Joe Gqabi District Municipality and Others (392/2017) [2018] ZASCA 72 (30 May 2018)

WDR Earthmoving Enterprises and Another v Joe Gqabi District Municipality and Others (392/2017) [2018] ZASCA 72 (30 May 2018)

The Supreme Court of Appeal held that the requirement to submit three years of audited annual financial statements was a peremptory statutory obligation under the Municipal Supply Chain Management Regulations and the tender conditions. Both the appellants and the fourth respondent declared they were legally obliged to submit such statements but failed to do so. The municipality had no discretion to condone non-compliance with this requirement. The appellants' bid was correctly declared non-responsive, and their appeal on this point failed. However, the fourth respondent's bid was also non-responsive for the same reason, and the award of the tender to the fourth respondent was unlawful and...

Citation
[2018] ZASCA 72
Parties
Appellant: WDR Earthmoving Enterprises; Appellant: Cotterrell’s Construction CC; Respondent: Joe Gqabi District Municipality; Respondent: Municipal Manager: Joe Gqabi District; Respondent: Chairperson of the Bid Adjudication Committee: Joe Gqabi District Municipality; Respondent: Amadwala Trading 363 CC
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 May 2018
Case Number
392/2017
Procedural Posture
Civil Appeal / Appeal From the Eastern Cape Division of the High Court, Grahamstown
Outcome
Appeal partly upheld. The appellants' challenge to the declaration of their own bid as non-responsive failed, but their challenge to the award of the tender to the fourth respondent succeeded. The award to the fourth respondent was set aside and the tender process must recommence.
Judges
Navsa, Swain, Davis, Pillay, Hughes
Legal Topics
Municipal Supply Chain Management, Tender Non Responsiveness, Standing in Review Applications, Preferential Procurement Policy Framework Act, Returnable Documents, Judicial Review
Administrative Law Civil Procedure Commercial and Corporate Municipal Supply Chain Management Tender Non Responsiveness Standing in Review Applications Preferential Procurement Policy Framework Act Returnable Documents +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 14 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

WDR Earthmoving Enterprises

Appellant

Cotterrell’s Construction CC

Appellant

Joe Gqabi District Municipality

Respondent

Municipal Manager: Joe Gqabi District

Respondent

Chairperson of the Bid Adjudication Committee: Joe Gqabi District Municipality

Respondent

Amadwala Trading 363 CC

Respondent

Procedural Posture

Civil Appeal / Appeal From the Eastern Cape Division of the High Court, Grahamstown

Legal Issues

  1. 1 Whether the appellants have standing to seek review and setting aside of the declaration of the fourth respondent's tender offer as responsive and the award of the tender to the fourth respondent.
  2. 2 Whether the declaration of the appellants’ tender offer as non-responsive is reviewable.
  3. 3 Whether the declaration of the fourth respondent's tender offer as responsive is reviewable.

Ratio Decidendi

The Supreme Court of Appeal held that the requirement to submit three years of audited annual financial statements was a peremptory statutory obligation under the Municipal Supply Chain Management Regulations and the tender conditions. Both the appellants and the fourth respondent declared they were legally obliged to submit such statements but failed to do so. The municipality had no discretion to condone non-compliance with this requirement. The appellants' bid was correctly declared non-responsive, and their appeal on this point failed. However, the fourth respondent's bid was also non-responsive for the same reason, and the award of the tender to the fourth respondent was unlawful and...

Court Disposition

Appeal partly upheld. The appellants' challenge to the declaration of their own bid as non-responsive failed, but their challenge to the award of the tender to the fourth respondent succeeded. The award to the fourth respondent was set aside and the tender process must recommence.

Orders

  • Special leave to appeal is granted to the appellants.
  • The appeal succeeds to the extent that the award of the tender to the fourth respondent is set aside.