South Africa Case Law

Maximum Profit Recovery (Pty) Ltd v Mogalakwena Local Municipality and Others (Leave to Appeal) (13528/2022)

Maximum Profit Recovery (Pty) Ltd v Mogalakwena Local Municipality and Others (Leave to Appeal) (13528/2022) [2025] ZALMPPHC 38 (28 February 2025)

Court

Limpopo High Court, Polokwane

Case number

13528/2022

Judge

Mashamba

The High Court refused leave to appeal in a tender review dispute, finding no reasonable prospects of success and upholding the costs order against the applicant.

• Public Procurement
• Promotion Of Administrative Justice Act
• Preferential Procurement Policy Framework Act
• Leave To Appeal Standard
• Costs Award
• Tender Disqualification

Tsela Tsweu Consulting Engineers (Pty) Ltd v Mangaung Metropolitan Municipality (4222/2023)

Tsela Tsweu Consulting Engineers (Pty) Ltd v Mangaung Metropolitan Municipality (4222/2023) [2024] ZAFSHC 327 (19 September 2024)

Court

Free State High Court, Bloemfontein

Case number

4222/2023

Judges

Chesiwe, W J. Groenewald

The court found that the applicant failed to comply with the express requirements of the tender documents by not ticking the required box on the front page to indicate the services for which it was bidding. This omission constituted non-compliance with a peremptory requirement, and the respondent was entitled to disqualify the bid. The tender process was open, transparent, and fair, and there was no evidence of irregularity or unlawfulness. The court emphasized that strict compliance with procurement requirements is necessary to ensure fairness and equality among bidders. The relief sought by…

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• Promotion Of Administrative Justice Act
• Public Procurement
• Tender Disqualification
• Judicial Review
• Constitutional Compliance

Eskom Holdings SOC Limited v Babcock Ntuthuko Engineering (137/2023, 156/2023 and 148/2023)

Eskom Holdings SOC Limited v Babcock Ntuthuko Engineering (137/2023, 156/2023 and 148/2023) [2024] ZASCA 63 (29 April 2024)

Court

Supreme Court of Appeal

Case number

137/2023, 156/2023 and 148/2023

Judges

Mbatha, Mabindla-Boqwana, Weiner, Smith, Mbhele

The Supreme Court of Appeal held that the RFP unambiguously required submission of a valid ISO 3834 certificate as a mandatory returnable, and this was clarified at the tender clarification meeting attended by all bidders, including Babcock. Babcock's failure to submit the certificate by the deadline constituted material non-compliance with a peremptory requirement, and Eskom had no discretion to condone such non-compliance. The court distinguished this case from precedents where non-compliance was trivial or minor, finding that the ISO certificate was essential to ensure bidders' qualificati…

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• Public Procurement
• Preferential Procurement Policy Framework Act
• Mandatory Tender Requirements
• Substantial Compliance
• Tender Disqualification
• Splitting Of Tenders

Roadmac Surfacing (Pty) Ltd v MEC for the Department of Public Works and Roads, North West Province and Another (UM23/22)

Roadmac Surfacing (Pty) Ltd v MEC for the Department of Public Works and Roads, North West Province and Another (UM23/22) [2023] ZANWHC 199 (2 November 2023)

Court

North West High Court, Mafikeng

Case number

UM23/22

Judge

A Reddy

High Court review of a provincial roadworks tender dismissed after the court held that failure to complete Annex E rendered the bid non-responsive.

• Public Procurement
• Preferential Procurement Policy Framework Act
• Promotion Of Administrative Justice Act
• Tender Disqualification
• Local Content Requirements
• Public-procurement

WBHO-Lubocon JV v Eskom Holdings SOC Limited and Another (005599/2022)

WBHO-Lubocon JV v Eskom Holdings SOC Limited and Another (005599/2022) [2023] ZAGPJHC 1008 (8 September 2023)

Court

South Gauteng High Court, Johannesburg

Case number

005599/2022

Judge

N Manoim

Court upheld Eskom’s disqualification of WBHO’s tender bid for failing to submit a mandatory Appendix to Tender, and dismissed the review application.

• Tender Disqualification
• Mandatory Returnables
• Promotion Of Administrative Justice Act
• Fairness In Procurement
• Rationality Of Administrative Action
• Tender-disqualification

Quality Plant Hire CC / Expectra 388 CC Joint Venture and Others v MEC for the Department: Transport & Public Works, Western Cape Government and Others (20263/2021)

Quality Plant Hire CC / Expectra 388 CC Joint Venture and Others v MEC for the Department: Transport & Public Works, Western Cape Government and Others (20263/2021) [2023] ZAWCHC 156 (20 June 2023)

Court

Western Cape High Court, Cape Town

Case number

20263/2021

Judge

Henney

The court held that the Department's requirement for an authenticated Joint Venture Agreement was clear, material, and mandatory. Authentication in the legal context refers to verification by a notary public or commissioner of oaths, not merely the submission of an original document. The applicants failed to comply with this requirement, and their bid was correctly deemed non-responsive. The court found no merit in the argument that only copies required authentication or that the tender conditions were unclear. The Department's decision was lawful, rational, and procedurally fair under PAJA.…

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• Public Procurement
• Promotion Of Administrative Justice Act
• Preferential Procurement Policy Framework Act
• Tender Disqualification
• Interpretation Of Tender Conditions
• Authentication Of Documents

Mombeeg (PTY) Limited v Eskom Rotek Industries SOC Limited (2021/15418)

Mombeeg (PTY) Limited v Eskom Rotek Industries SOC Limited (2021/15418) [2022] ZAGPJHC 1014 (15 December 2022)

Court

South Gauteng High Court, Johannesburg

Case number

2021/15418

Judge

E F Dippenaar

The court found that the applicant failed to establish that the respondent took any reviewable administrative decision to disqualify its bid or to award the tender to the applicant. The evidence showed that the respondent was still evaluating the tender and had not issued any notice of award or disqualification. The applicant's failure to submit a Generic Scorecard for B-BBEE compliance was a legitimate issue for clarification and did not amount to an error of law or fact. The applicant's refusal to make representations under Regulation 14 of the PPPF Regulations constituted repudiation of th…

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• Public Procurement
• Preferential Procurement Policy Framework Act
• Broad Based Black Economic Empowerment
• Tender Disqualification
• Condonation
• Review Under Paja

Babcock Ntuthuko Engineering (Pty) Ltd v Eskom Holdings SOC Limited and Others (64288/2021)

Babcock Ntuthuko Engineering (Pty) Ltd v Eskom Holdings SOC Limited and Others (64288/2021) [2022] ZAGPPHC 865 (17 November 2022)

Court

North Gauteng High Court, Pretoria

Case number

64288/2021

Judge

Millar

The court found that the tender requirements regarding ISO 3834 were ambiguous, using 'certification' and 'certificate' inconsistently. Babcock had provided evidence of certification in its covering letter and subsequently submitted the certificates when requested. Eskom's interpretation that 'certification' required the submission of a certificate was not supported by the wording of the tender documents, which distinguished between the two terms elsewhere. The ambiguity was not clarified by Eskom, and tenderers were not given an opportunity to rectify the omission, resulting in procedurally…

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• Public Procurement
• Tender Disqualification
• Procedural Fairness
• Promotion Of Administrative Justice Act
• Interpretation Of Tender Documents

Down Touch Investments (Pty) Ltd and Another v MEC: Provincial Government of the Gauteng Province: Department of Roads and Transport (2096/2022)

Down Touch Investments (Pty) Ltd and Another v MEC: Provincial Government of the Gauteng Province: Department of Roads and Transport (2096/2022) [2022] ZAGPJHC 65 (7 February 2022)

Court

South Gauteng High Court, Johannesburg

Case number

2096/2022

Judge

Réan Strydom

The court found that the Department's disqualification of the Consortium's bid was unlawful as it was based on an unsubstantiated suspicion of collusion, without affording the Consortium an opportunity to make representations as required by procurement regulations. The Department's attempt to introduce a new ground for disqualification (non-certification of the B-BBEE certificate) at a late stage was impermissible, as administrative fairness requires that only the reasons originally provided be considered. The court distinguished the OUTA decision, noting that the present matter involved admi…

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• Tender Disqualification
• Collusive Trading
• B Bbee Certificate Requirement
• Interim Interdict
• Procurement Regulations
• Just Administrative Action

Gijima Holdings (Pty) Ltd and Others v South African National Roads Agency SOC Limited and Others (57952/2020)

Gijima Holdings (Pty) Ltd and Others v South African National Roads Agency SOC Limited and Others (57952/2020) [2021] ZAGPPHC 391 (17 June 2021)

Court

North Gauteng High Court, Pretoria

Case number

57952/2020

Judge

C J van der Westhuizen

The court held that SANRAL was correct in excluding the applicants' bid from further consideration due to non-compliance with the pre-qualification requirement of submitting a valid B-BBEE affidavit. The affidavit submitted by the applicants did not comply with the mandatory requirements of the Justices of the Peace and Commissioners of Oaths Act, as it was not signed in the presence of the commissioner and lacked necessary certification details. The tender specifications were clear and peremptory, leaving no discretion for SANRAL to condone non-compliance or allow rectification after the clo…

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• Public Procurement
• Preferential Procurement Policy Framework Act
• B Bbee Compliance
• Tender Disqualification
• Audi Alteram Partem
• Judicial Review