South Africa Case Law

Fidelity Security Services (Pty) Ltd v Airports Company South Africa SOC Ltd and Others (2024/028669)

Fidelity Security Services (Pty) Ltd v Airports Company South Africa SOC Ltd and Others (2024/028669) [2024] ZAGPJHC 561 (30 May 2024)

Court

South Gauteng High Court, Johannesburg

Case number

2024/028669

Judge

S Van Nieuwenhuizen

The court found that the emergency tender issued by ACSA constituted administrative action subject to review under PAJA. The procurement process did not meet the legal requirements for an emergency situation, as security services could be sourced from the existing panel and no immediate risk justified bypassing a competitive process. The preference point system in the RFB was unlawful, relying on repealed regulations and lacking a valid Preferential Procurement Policy as required by the PPPFA and its 2022 regulations. The tender document was vague, contradictory, and failed to stipulate speci…

Source excerpt

• Promotion Of Administrative Justice Act
• Preferential Procurement Policy Framework Act
• Emergency Procurement
• Interim Interdict
• Public Tender Review
• Section 217 Constitution

MEC for Health North West Province Government v Brown Mogotsi Foundation and Another (UM185/2023)

MEC for Health North West Province Government v Brown Mogotsi Foundation and Another (UM185/2023) [2024] ZANWHC 30 (16 February 2024)

Court

North West High Court, Mafikeng

Case number

UM185/2023

Judge

Dibetso-Bodibe

Leave to appeal against an urgent interim interdict over a provincial catering tender was dismissed. The court upheld public-interest standing and found no reasonable prospects of success.

• Public Tender Review
• Interim Interdict
• Locus Standi
• Urgency
• Bill Of Rights Interpretation
• Leave-to-appeal

Norland Construction (Pty) Ltd v Chris Hani Development Agency (SOC) Limited and Another (18/2022)

Norland Construction (Pty) Ltd v Chris Hani Development Agency (SOC) Limited and Another (18/2022) [2024] ZAECMKHC 10 (23 January 2024)

Court

Eastern Cape High Court, Makhanda

Case number

18/2022

Judge

Govindjee

The court found that the Agency's reliance on the probity report was impermissible, as it constituted ex post facto reasoning not present at the time of the decision. The certification requirements for the tender documents were not shown to be material, as the documents themselves were provided and the Agency failed to explain the necessity of certification. The exclusion of Norland's bid was based on an ultra-strict approach that undermined constitutional values, particularly cost-effectiveness, given Norland's substantially lower bid price. The court held that the Agency misdirected itself…

Source excerpt

• Promotion Of Administrative Justice Act
• Preferential Procurement Policy Framework Act
• Bid Responsiveness
• Just And Equitable Remedy
• Certification Requirements
• Public Tender Review

Ma-Afrika Hotels (Pty) Ltd v Cape Peninsula University of Technology (20599/21; 4517/22)

Ma-Afrika Hotels (Pty) Ltd v Cape Peninsula University of Technology (20599/21; 4517/22) [2023] ZAWCHC 4; [2023] 1 All SA 731 (WCC); 2023 (3) SA 621 (WCC) (19 January 2023)

Court

Western Cape High Court, Cape Town

Case number

20599/21; 4517/22

Judge

A.G. Binns-Ward

The court held that the respondent's decision to cancel the tender process after rescinding the award to Baobab was administrative action within the meaning of PAJA, as it was closely connected to the respondent's public function of providing student accommodation as part of its constitutional and statutory mandate. However, the applicant failed to establish grounds for review under PAJA. The PPPFA and its regulations did not apply to the respondent, as it was not an organ of state for purposes of section 217 of the Constitution or the PPPFA. The applicant did not request or obtain reasons fo…

Source excerpt

• Promotion Of Administrative Justice Act
• Public Tender Review
• Preferential Procurement Regulations
• Irrationality Review
• University Procurement
• Failure To Award Tender

Collins Sebola Financial Services (Pty) Ltd v South African Forestry Company SOC (Ltd) and Others (21375/20)

Collins Sebola Financial Services (Pty) Ltd v South African Forestry Company SOC (Ltd) and Others (21375/20) [2021] ZAGPPHC 204 (12 March 2021)

Court

North Gauteng High Court, Pretoria

Case number

21375/20

Judge

A C Basson

The High Court dismissed an application for leave to appeal, finding no reasonable prospects of success and ordering attorney-and-client costs.

• Preferential Procurement Policy Framework Act
• Leave To Appeal Threshold
• Punitive Costs
• Public Tender Review
• Leave-to-appeal
• Punitive-costs

Mngomezulu and Mistry Inc v MEC for Health: N.W Province and Another (M449/2016)

Mngomezulu and Mistry Inc v MEC for Health: N.W Province and Another (M449/2016) [2019] ZANWHC 18; [2019] 3 All SA 796 (NWM) (20 March 2019)

Court

North West High Court, Mafikeng

Case number

M449/2016

Judge

A.M. Kgoele

The court found that the Department's decision to split the tender between the applicant and the second respondent was unlawful. The PPPFA and its regulations require that the tender be awarded to the highest scoring bidder unless objective criteria, clearly specified in the tender documents, justify otherwise. The Department failed to specify any such criteria in the bid invitation, and the reasons advanced for splitting the tender—risk minimisation and market entry—were not stated as evaluation criteria. The process was unfair and ad-hoc criteria were introduced after the fact, amounting to…

Source excerpt

• Promotion Of Administrative Justice Act
• Preferential Procurement Policy Framework Act
• Public Tender Review
• Just And Equitable Remedy
• Ultra Vires Decision

Gidani (Pty) Limited v Minister of Trade And Industry and Others (81420/2014)

Gidani (Pty) Limited v Minister of Trade And Industry and Others (81420/2014) [2015] ZAGPPHC 457 (4 July 2015)

Court

North Gauteng High Court, Pretoria

Case number

81420/2014

Judge

Tuchten

The court found that the Minister's decision to award the National Lottery license to Ithuba Holdings was irrational and invalid. The Minister failed to properly consider whether Ithuba could meet the fixed rand value commitment in the license agreement, which posed a significant risk of insolvency. Furthermore, Ithuba did not have the required performance bond or committed financing at the date of the license award, contrary to the mandatory requirements of the Lotteries Act and the RFP. The Minister's conduct in deviating from material conditions of the RFP without proper amendment or notif…

Source excerpt

• Lotteries Act
• Public Tender Review
• Procedural Fairness
• Performance Bond Requirement
• Irrationality
• Remedies Under Paja

AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others (CCT 48/13)

AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others (CCT 48/13) [2015] ZACC 7; 2015 (6) BCLR 653 (CC) (24 March 2015)

Court

Constitutional Court

Case number

CCT 48/13

Judges

Mogoeng, Cameron, Froneman, Jappie, Khampepe, Madlanga, Molemela, Nkabinde, Tshiqi

The Constitutional Court clarified its supervisory order in the social grants tender dispute and held that parties may only seek further relief from that Court.

• Structural Interdict
• Supervisory Jurisdiction
• Public Tender Review
• Remedial Orders
• Access To Court
• Social Grants Distribution

Indo Contractors CC v TFMC (Pty) Ltd and Others (8108/2009)

Indo Contractors CC v TFMC (Pty) Ltd and Others (8108/2009) [2009] ZAKZDHC 20 (12 June 2009)

Court

Kwazulu-Natal High Court, Durban

Case number

8108/2009

Judge

Skinner AJ

The High Court declined urgent interim interdict relief in a tender dispute, finding no prima facie right and that the balance of convenience favoured completing the project.

• Promotion Of Administrative Justice Act
• Public Tender Review
• Interim Interdict
• Balance Of Convenience
• Agency Relationship
• Contract Award Motive

Thebe Ya Bophelo Healthcare Administrators (Proprietary) Limited and Others v National Bargaining Council for the Road Freight Industry and Another (39919/2008)

Thebe Ya Bophelo Healthcare Administrators (Proprietary) Limited and Others v National Bargaining Council for the Road Freight Industry and Another (39919/2008) [2009] ZAGPHC 36; (2009) 30 ILJ 1031 (W) (25 February 2009)

Court

High Courts - Gauteng

Case number

39919/2008

Judge

N.P. Willis

High Court review of a tender award for an HIV/AIDS wellness programme was dismissed, despite procedural shortcomings in the tender process.

• Promotion Of Administrative Justice Act
• Public Tender Review
• Procedural Fairness
• Reasonableness Of Administrative Action
• Restraint Of Trade
• Due Diligence In Procurement