ZZZ Building Construction and Security Services v Goldfields Tvet College and Another (A83/2016) [2017] ZAFSHC 50 (16 March 2017)

ZZZ Building Construction and Security Services v Goldfields Tvet College and Another (A83/2016) [2017] ZAFSHC 50 (16 March 2017)

The court found that the acting principal's decision to award the tender to the second respondent was unlawful and irrational. The Bid Adjudication Committee had correctly disqualified the second respondent for failing to provide a valid tax clearance certificate, and the letter from its auditors did not constitute a valid arrangement with SARS. The acting principal's reliance on complaints from 2014, without informing the applicant or affording it an opportunity to respond, violated the audi alteram partem principle and procedural fairness. The reasons for deviation from the committee's recommendation were not justifiable or defendable in law, rendering the administrative action invalid....

Citation
[2017] ZAFSHC 50
Parties
Applicant: ZZZ Building Construction & Security Services; Respondent: Goldfields TVET College; Respondent: Iceberg Trading 735 CC
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
16 March 2017
Case Number
A83/2016
Procedural Posture
Review Application / Judgment on Review Application Under Rule 53
Outcome
The decision to award the tender to the second respondent was set aside. The resultant contract was declared null and void. The matter was remitted to the first respondent for reconsideration within 14 days, with implementation within 30 days. Costs were awarded against the first respondent.
Judges
Musi, Van Zyl
Legal Topics
Public Procurement, Preferential Procurement Policy Framework Act, Administrative Action Review, Tax Clearance Certificate Requirement, Audi Alteram Partem, Irrationality in Decision Making
Administrative Law Civil Procedure Commercial and Corporate Public Procurement Preferential Procurement Policy Framework Act Administrative Action Review Tax Clearance Certificate Requirement Audi Alteram Partem +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 3 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

ZZZ Building Construction & Security Services

Applicant

Goldfields TVET College

Respondent

Iceberg Trading 735 CC

Respondent

Procedural Posture

Review Application / Judgment on Review Application Under Rule 53

Legal Issues

  1. 1 Whether the decision to award the tender to the second respondent was lawful and procedurally fair.
  2. 2 Whether the accounting officer's deviation from the Bid Adjudication Committee's recommendation was justifiable and defendable.
  3. 3 Whether the absence of a valid tax clearance certificate disqualified the second respondent from being awarded the tender.

Ratio Decidendi

The court found that the acting principal's decision to award the tender to the second respondent was unlawful and irrational. The Bid Adjudication Committee had correctly disqualified the second respondent for failing to provide a valid tax clearance certificate, and the letter from its auditors did not constitute a valid arrangement with SARS. The acting principal's reliance on complaints from 2014, without informing the applicant or affording it an opportunity to respond, violated the audi alteram partem principle and procedural fairness. The reasons for deviation from the committee's recommendation were not justifiable or defendable in law, rendering the administrative action invalid....

Court Disposition

The decision to award the tender to the second respondent was set aside. The resultant contract was declared null and void. The matter was remitted to the first respondent for reconsideration within 14 days, with implementation within 30 days. Costs were awarded against the first respondent.

Orders

  • The decision of the first respondent to award the tender for security services to the second respondent is set aside.
  • The resultant contract entered into between the first and second respondents is declared null and void and set aside.