South Africa Case Law

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…

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

Gcwabe Consulting (Pty) Ltd v South African Police Service (46817/2015)

Gcwabe Consulting (Pty) Ltd v South African Police Service (46817/2015) [2022] ZAGPPHC 993 (17 August 2022)

Court

North Gauteng High Court, Pretoria

Case number

46817/2015

Judge

N Janse van Nieuwenhuizen

The High Court set aside an invalid procurement contract and awarded costs against the plaintiff after finding that further damages would improperly benefit from the void agreement.

• Contract Invalidity
• Just And Equitable Remedy
• Damages Claim
• Procurement Irregularity
• Contract-invalidity
• Just-and-equitable-remedy

Special Investigating Unit and Another v Caledon River Properties(Pty) Ltd and Another (GP/17/2020)

Special Investigating Unit and Another v Caledon River Properties(Pty) Ltd and Another (GP/17/2020) [2022] ZAST 6 (8 March 2022)

Court

Special Tribunal

Case number

GP/17/2020

Judge

L.T. Modiba

The Tribunal found that both parties failed to lead evidence to substantiate their pleaded cases regarding the remedy. The applicants' claim for full repayment of prepaid amounts was inconsistent with the established no profit no loss principle in government procurement invalidity cases. The respondents did not establish exceptional circumstances justifying retention of vested rights or profits. Applying the Constitutional Court's guidance, the Tribunal held that the just and equitable remedy is to divest the respondents of any profits earned under the invalid contracts, but not to leave them…

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• Government Procurement
• Just And Equitable Remedy
• No Profit No Loss Principle
• Section 172 Constitution
• Public Interest
• Contract Invalidity

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…

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

Abrina 3765 (Pty) Ltd t/a BMW Sandton v Zascotime (Pty) Ltd (35714/2020)

Abrina 3765 (Pty) Ltd t/a BMW Sandton v Zascotime (Pty) Ltd (35714/2020) [2021] ZAGPJHC 881 (2 December 2021)

Court

South Gauteng High Court, Johannesburg

Case number

35714/2020

Judge

A Friedman

The High Court held that Zascotime had a duty to disclose pending litigation about an outdoor advertising sign, making the contract void and requiring repayment.

• Material Non Disclosure
• Restitution
• Outdoor Advertising By Laws
• Contract Invalidity
• Lis Pendens
• Material-non-disclosure

Govan Mbeki Municipality v New Integrated Credit Solutions (Pty) Ltd (121/2020)

Govan Mbeki Municipality v New Integrated Credit Solutions (Pty) Ltd (121/2020) [2021] ZASCA 34; [2021] 2 All SA 700 (SCA); 2021 (4) SA 436 (SCA) (7 April 2021)

Court

Supreme Court of Appeal

Case number

121/2020

Judges

Navsa, Dambuza, Mocumie, Kgoele, Goosen

The Supreme Court of Appeal held that the contract between Govan Mbeki Municipality and New Integrated Credit Solutions (Pty) Ltd was unconstitutional and invalid due to egregious non-compliance with procurement regulations and constitutional imperatives. The inclusion of a 2.5% commission for debts younger than 60 days was not subjected to a competitive bidding process, lacked demonstrable benefits, and was unfair to other bidders. The municipality's delay in seeking self-review was unreasonable and not overlooked, but the court was compelled to declare the contract invalid. Applying section…

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• Public Procurement
• Municipal Supply Chain Management
• Delay In Self Review
• Just And Equitable Remedy
• Contract Invalidity
• Accrued Rights

KZN Oncology Inc v KZN Province MEC for Health and Another (AR156/2020)

KZN Oncology Inc v KZN Province MEC for Health and Another (AR156/2020) [2021] ZAKZPHC 72 (19 March 2021)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

AR156/2020

Judges

Moodley J, Mnguni J, Mossop AJ

The court held that the only issue before it was whether the delay in bringing the review application by the first respondent vitiated the application. The delay was explained by the respondent as resulting from the need to await the outcome of a forensic investigation, which implicated the officials responsible for the contract. Once the report was received, the respondent acted promptly. The court found that, in the circumstances, the delay was reasonable and did not preclude the granting of the counter-application. The review was properly brought as a legality review, not under PAJA, and n…

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• Legality Review
• Delay In Review Proceedings
• Public Procurement
• Contract Invalidity
• Costs Orders
• Condonation

South African Express Airways Soc Limited v Flyfofa Limited (69620/18)

South African Express Airways Soc Limited v Flyfofa Limited (69620/18) [2019] ZAGPPHC 443 (26 August 2019)

Court

North Gauteng High Court, Pretoria

Case number

69620/18

Judge

Vlok

The court found that the second written agreement of lease of 26 July 2017 between the applicant and respondent was invalid for contravening the procurement requirements of section 217 of the Constitution and the PFMA. The respondent conceded the main relief sought, relying on the Constitutional Court's decision in Buffalo City, which held that courts are constitutionally obliged to declare unlawful contracts invalid, even where there is an unreasonable delay in bringing review proceedings. The court held that the invalidity of the second agreement rendered ancillary documents and payments of…

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• Procurement Irregularity
• Self Review
• Section 217 Constitution
• Public Finance Management Act
• Contract Invalidity

Sonasethu General Engineering Services CC v Ntinga O.R Tambo Development Agency Soc.Ltd (448/2019)

Sonasethu General Engineering Services CC v Ntinga O.R Tambo Development Agency Soc.Ltd (448/2019) [2019] ZAECMHC 46 (15 August 2019)

Court

Eastern Cape High Court, Mthatha

Case number

448/2019

Judge

Jolwana

The High Court dismissed a review challenging cancellation of a meat-inspection tender, holding the applicant had not proven compliance with statutory and bid requirements.

• Public Procurement
• Meat Safety Act Compliance
• Preferential Procurement Policy Framework Act
• Tender Specification Noncompliance
• Contract Invalidity
• Public-procurement

Medshield Medical Scheme and Another v Alumni Trading 264 (Pty) Ltd and Others (86425/2014)

Medshield Medical Scheme and Another v Alumni Trading 264 (Pty) Ltd and Others (86425/2014) [2017] ZAGPPHC 977 (15 December 2017)

Court

North Gauteng High Court, Pretoria

Case number

86425/2014

Judge

M Senyatsi

The High Court set aside a Medshield trademark sale and assignment, finding it unnecessary, not in the Scheme’s interests, and beyond the curator’s proper authority.

• Trade Mark Assignment
• Fiduciary Duties
• Curatorship Powers
• Contract Invalidity
• Waiver Of Rights
• Prior Use Protection