South Africa Case Law

General Council of the Bar of South Africa and Another v Minister of Finance and Others (2023/132695)

General Council of the Bar of South Africa and Another v Minister of Finance and Others (2023/132695) [2024] ZAGPPHC 558 (28 June 2024)

Court

North Gauteng High Court, Pretoria

Case number

2023/132695

Judge

Millar

The court found that the Public Finance Management Act does not apply to the Office of the State Attorney or the tender process for referral advocates. The correct statutory framework is the State Attorney Act and the Legal Practice Act. The tender was issued without an extant policy approved by Cabinet and tabled in Parliament as required by the State Attorney Act. The terms of the tender, including the requirement for referral advocates to enter into transversal contracts with non-attorneys and the fee arrangements, breach the Code of Conduct under the Legal Practice Act and would render su…

Source excerpt

• Legality Review
• Public Procurement
• Legal Practitioners Regulation
• Preferential Procurement
• Code Of Conduct
• Constitution Section 217

East London Boating Association v Transnet SOC Limited (EL1571/2022)

East London Boating Association v Transnet SOC Limited (EL1571/2022) [2024] ZAECELLC 19 (14 May 2024)

Court

Eastern Cape High Court, East London Local Court

Case number

EL1571/2022

Judge

Cengani-Mbakaza

The court dismissed an application for a declaratory order about a lease tender, holding that the highest score did not fix the lease terms and negotiation of market-related rent was lawful.

• Public Procurement
• Preferential Procurement Policy Framework Act
• Constitution Section 217
• Tender Award Criteria
• Market Related Pricing
• Public-procurement

Kunene Rampala Inc. v North West Province Department of Education and Sport and Development (460/2022)

Kunene Rampala Inc. v North West Province Department of Education and Sport and Development (460/2022) [2023] ZASCA 120 (15 September 2023)

Court

Supreme Court of Appeal

Case number

460/2022

Judges

Mbatha, Mothle, Hughes, Matojane, Mali

The Supreme Court of Appeal held that the addendum to the service level agreement was concluded in breach of section 217 of the Constitution and the applicable public procurement prescripts, including the Public Finance Management Act and Treasury Regulations. The transaction value exceeded the threshold requiring an open tender, which was not followed. The addendum unlawfully increased the scope, duration, and fees of the contract without competitive bidding. The Department was entitled to raise the invalidity of the addendum in its plea, and the court could declare the contract invalid and…

Source excerpt

• Public Procurement
• Constitution Section 217
• Collateral Challenge
• Contract Invalidity
• Treasury Regulations
• Just And Equitable Remedy

Special Investigating Unit v National Minister in the Department of Public Works and Another (GP11/2021)

Special Investigating Unit v National Minister in the Department of Public Works and Another (GP11/2021) [2022] ZAST 19 (26 August 2022)

Court

Special Tribunal

Case number

GP11/2021

Judge

L.T. Modiba

The Tribunal found that the procurement process for the lease agreements was irregular and unlawful, infracting the requirements of section 217(1) of the Constitution. The tender invitation failed to specify evaluation criteria and minimum requirements, resulting in unfair adjudication and giving Plebian Properties an unfair advantage. The SIU established that Plebian Properties misrepresented its ability to provide the required number of undercover parking bays and failed to comply with zoning and building regulations. However, the SIU did not prove that these misrepresentations induced the…

Source excerpt

• Public Procurement
• Constitution Section 217
• Review Of Administrative Action
• Prescription
• Just And Equitable Remedy

Eastern Cape Rural Development Agency and Another v Agribee Beef Fund (Pty) Ltd and Others (827/2020)

Eastern Cape Rural Development Agency and Another v Agribee Beef Fund (Pty) Ltd and Others (827/2020) [2022] ZASCA 2; 2023 (5) SA 100 (SCA) (6 January 2022)

Court

Supreme Court of Appeal

Case number

827/2020

Judges

Saldulker, Dambuza, Mathopo, Mocumie, Plasket

The Supreme Court of Appeal held that the tripartite agreement between the Department, the Agency, and Agribee Beef Fund (Pty) Ltd was for the provision of goods and services as contemplated by section 217(1) of the Constitution. The agreement required the private entity to provide cattle, veterinary kits, feed supplements, training, and mentorship to smallholder farmers, all funded by public money. Both the Department and the Agency, as organs of state, benefited from these services, which otherwise would have had to be provided directly by them. The absence of a procurement process that com…

Source excerpt

• Public Procurement
• Constitution Section 217
• Contract Invalidity
• Declaratory Relief
• Agency Powers
• Rural Development Funding

MEC for the Department of Public Works, Eastern Cape and Another v Ikamva Architects (2610/2019)

MEC for the Department of Public Works, Eastern Cape and Another v Ikamva Architects (2610/2019) [2021] ZAECGHC 12 (16 February 2021)

Court

Eastern Cape High Court, Grahamstown

Case number

2610/2019

Judge

N G Beshe

The court found that the contract in question had already been the subject of previous litigation, resulting in a final judgment in favour of the respondent. The principle of res judicata applies, barring the applicants from re-litigating the validity of the contract. The orders sought would directly affect the respondent, who has a substantial interest in the matter. Even if the merits were considered, the evidence showed that at the relevant time, the procurement of professional consultants was conducted via a roster system and not by tender, both provincially and nationally. The respondent…

Source excerpt

• Self Review
• Public Procurement
• Res Judicata
• Delay In Review
• Law Of Evidence Amendment Act
• Constitution Section 217

JL Excavators (Pty) Ltd v Tshwane Metropolitan Municipality and Others (27907/2018)

JL Excavators (Pty) Ltd v Tshwane Metropolitan Municipality and Others (27907/2018) [2018] ZAGPPHC 584 (11 June 2018)

Court

North Gauteng High Court, Pretoria

Case number

27907/2018

Judge

Maier-Frawley

The court found that the first respondent had procured services from the fifth and sixth respondents in breach of section 217 of the Constitution, the PPPFA, and the Service Level Agreement, by failing to approach higher-ranked bidders first and by issuing orders in excess of what was tendered for. The applicant established ongoing unlawful conduct causing financial prejudice, justifying urgency. The relief sought did not prejudice other tenderers, as it merely compelled the first respondent to act lawfully. The objections on urgency and non-joinder were dismissed. The striking out applicatio…

Source excerpt

• Municipal Procurement
• Preferential Procurement Policy Framework Act
• Constitution Section 217
• Service Level Agreement
• Mandatory Interdict
• Non Joinder