Tekoa Consulting Engineers (Pty) Ltd v Alfred Nzo District Municipality and Others (1094/2023) [2025] ZASCA 180 (28 November 2025)

Case Note

Case Name: Tekoa Consulting Engineers (Pty) Ltd v Alfred Nzo District Municipality and Others
Citation: (1094/2023) [2025] ZASCA 180
Date: 28 November 2025

Reportability

This case is reportable due to its significance in the realm of municipal law, particularly with respect to tender processes and the principles governing them, including fairness, transparency, and legality as mandated by the Constitution and relevant legislation. The case brings to light issues regarding the clarity of tender documents and the effect of vagueness on the eligibility of bids, which has broader implications for public procurement processes. Furthermore, the case addresses the issue of mootness, providing judicial clarification on whether the court should entertain an appeal when the primary issue has become devoid of practical impact due to the completion of the tendered work.

The decision might set a precedent on how courts interpret and resolve similar disputes involving municipal tenders, and it addresses the obligations of state organs when procured goods and services are involved. The ruling examines the nature of a "turnkey" contract, contributing valuable insights into its legal implications for public contracts, thereby reinforcing the need for clear guidelines in procurement documents.

Cases Cited

• Kruger v Joint Trustees of the Insolvent Estate of Paulos Bhekinkosi Zulu [2016] ZASCA 163; 2016 JDR 2102 (SCA); [2017] 1 All SA 1 (SCA)
• Agribee Beef Fund (Pty) Ltd and Another v Eastern Cape Development Agency and Another [2023] ZACC 6; 2023 (5) BCLR 489 (CC); 2023 (6) SA 639 (CC)
• Western Cape Provincial Government and Others v D C Security (Pty) Ltd [2025] ZASCA 35; 2025 JDR 1393 (SCA)
• Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others [2013] ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1 (CC)
• Geldenhuys & Neethling v Beuthin 1918 AD 426

Legislation Cited

• Constitution of the Republic of South Africa, 1996, s 217
• Promotion of Administrative Justice Act 3 of 2000 (PAJA), ss 6 and 7
• Preferential Procurement Policy Framework Act 5 of 2000 (PPPFA)
• Construction Industry Development Board Act 38 of 2000 (CIDB Act)
• Water Services Act 108 of 1997

Rules of Court Cited

• Superior Courts Act 10 of 2013, s 16(2)(a)

HEADNOTE

Summary

The case examines the appeal of Tekoa Consulting Engineers (Pty) Ltd against the Alfred Nzo District Municipality, which disqualified its tender bid on the grounds of not providing proof of registration with the Construction Industry Development Board (CIDB). The full court of the Eastern Cape upheld the Municipality's decision after finding Tekoa's bid non-responsive. However, the Supreme Court of Appeal (SCA) considered the broader implications of the case, the vagueness of the tender requirements, and the significance of ensuring that procurement processes adhere to legislative and constitutional standards.

Key Issues

The key legal issues addressed include the determination of: 1. Whether Tekoa had the standing to challenge the tender process despite its disqualification. 2. The degree to which mootness affects the court's jurisdiction in hearing the appeal over a completed tender. 3. The clarity and vagueness of the tender documents issued by the Municipality and whether this impacted fairness in the evaluation process.

Held

The Supreme Court of Appeal found that the Municipal tender documents were vague, resulting in an unfair disqualification of Tekoa's tender. The appeal was upheld, granting Tekoa the appropriate declaratory relief despite the work being completed, emphasizing the importance of clear procurement processes for the future. The court ordered that the first respondent pays Tekoa's costs including costs consequent to the employment of two counsel.

THE FACTS

Tekoa Consulting Engineers (Pty) Ltd submitted a tender to the Alfred Nzo District Municipality for a panel of service providers to undertake the planning, design, and construction of projects funded by the Waste Services Infrastructure Grant (WSIG). The Municipality disqualified Tekoa's bid on the basis of lacking proof of registration with the CIDB, which it deemed a prerequisite for the tender. Tekoa subsequently sought to review and set aside this disqualification and the award of the tender to other parties, arguing that the tender documentation was vague and that it had met the relevant requirements.

Initially, the High Court found in favor of Tekoa, declaring the tender process unlawful. However, on appeal, the full court reversed this decision, affirming the Municipality’s actions. The SCA granted Tekoa leave to appeal, which was centered around whether the appeal was moot due to the work being completed, and whether the vagueness of the tender documents justified a review despite the completion of the project.

THE ISSUES

The court had to address several pivotal legal questions: 1. Did Tekoa have standing to pursue the review of the tender disqualification despite not fulfilling the CIDB registration requirement? 2. Is the appeal moot given that the tendered work has been completed and the contract already executed? 3. Was the tender documentation clear, and did the vagueness thereof affect the fairness of the tendering process?

ANALYSIS

The SCA emphasized that adjudicating a moot appeal may still be warranted when significant legal issues of public importance are at stake. Even though the work associated with the tender was completed by the time the appeal was heard, the court noted that public procurement processes must adhere to principles of fairness and clarity, particularly as they apply to future tenders. The court deepened its analysis by examining the standards for what constitutes a "turnkey" project and the legal implications of vague requirements for tender participation.

The court concluded that discussing the vagueness of the tender was crucial as it could influence future procurement practices by municipalities. The SCA criticized the full court for misinterpreting the nature of a turnkey contract and for concluding that the tender was adequate when, in fact, it led to confusion among potential bidders regarding compliance requirements. This analysis underscores that procurement documents must provide unequivocal criteria to ensure fairness and transparency in the evaluation of bids.

REMEDY

The remedy granted by the SCA included the reinstatement of the appeal and the order for the Municipality to pay costs, along with the recognition of the need for clear standards in municipal tender documentation. The SCA decided that the vagueness in the tender requirements rendered Tekoa's disqualification unjust, highlighting the significance of lawful and transparent processes in public procurement.

LEGAL PRINCIPLES

Key legal principles extracted from this case include the following: 1. The legal requirements for public procurement tenders must be articulated in a clear and unambiguous manner to ensure fair assessment and competition. 2. The principle of mootness may not prevent a court from addressing issues of significant legal importance that impact public interest and future procurement practices. 3. Entities involved in public procurement processes have standing to contest decisions affecting their participation when they can demonstrate a direct interest related to the public tender process, particularly in cases where vagueness could lead to unlawful disqualifications. 4. The court exercises its discretion under the Superior Courts Act in line with the interests of justice, especially when public principles of legality are in contention.

Overall, the case serves as an important reminder of the need for clarity and fairness in the municipal procurement process, illuminating the legal framework surrounding tenders and the obligations of public entities in engaging contractors.