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[2023] ZAFSHC 330
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AfriRent Fleet (Pty) Ltd v Moqhaka Local Municipality and Another (4023/2021) [2023] ZAFSHC 330; [2024] 1 All SA 85 (FB) (18 August 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
4023/2021
In
the matter between:
AFRIRENT
FLEET (PTY) LTD
and
MOQHAKA
LOCAL MUNICIPALITY
MOIPONE
FLEET (PTY) LTD
Applicant
First
Respondent
Second
Respondent
CORAM:
DANISO, J
et
CRONJÉ, AJ
HEARD
ON:
29
MAY 2023
DELIVERED
ON:
18
AUGUST 2023
JUDGMENT
BY:
PR
CRONJÉ, AJ
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 14h30 on 18 August 2023.
I
NATURE OF THE APPLICATION
[1]
The Applicant (“Afrirent”) brought a review application
to have the awarding of a tender to the Second Respondent
(“Moipone”)
by the First Respondent (“the municipality”) be: declared
unlawful
and
void
ab initio
; that the tender
process be reviewed and the tender set aside; and compensation for
its alleged loss as a result of the awarding
of the tender to
Moipone. It is important to state that this judgment does not
determine the merits/demerits of the relationship
between the
municipality and Moipone. If the tender did not comply with
legislative provisions, Moipone may suffer the same consequence
of
not being entitled to any relief. What is good for the goose is good
for the gander.
[2]
The precise relief sought are:
“
1.1
The decision by the First Respondent to award the tender with
Reference number: 3/2/3/2020–21 and dated 20 April
2021
described as “APPOINTMENT LETTER: SUPPLY AND DELIVER[Y]
OF MUNICIPAL FLEET ON FINANCE LEASE (3/2/3/2020-21)
[“the
tender”]
to
Moipone
[Moipone
Fleet (Pty) Ltd]
is
declared
unlawful
and
invalid
ab
initio.”
1.2
The decision by the First Respondent to award the tender referred to
in paragraph 1.1 above to Second Respondent is reviewed
and set
aside.
1.3
Any agreement concluded between the First Respondent and Moipone in
consequence of the award of the tender by the First Respondent
to
Moipone is set aside.
1.4
The Applicant is entitled to just and equitable compensation for the
loss of profits in accordance with
Section 8(1)(c)(ii)(bb)
of the
Promotion of Administrative Justice Act, 3 of 2000
, which amount of
compensation is equal to Afrirent’s bidding price
(R139 979 786.00, VAT inclusive).
1.5
The First Respondent is ordered to pay the cost of the application,
such costs to include those consequent upon the employment
of two
counsel, where so employed.
1.6
Afrirent also applies for an order granting any further and/or
alternative relief, including but not limited to, an order directing
the First Respondent to award the tender to the Applicant forthwith
for a period of three (3) years from date of award.”
[1]
(own
emphasis)
II
THE INVITATION TO SUBMIT A BID/TENDER
[3]
On or about 19 August 2020, the municipality invited interested
prospective bidders to submit offers for the tender. The
closing date
was 21 September 2020 at 12:00.
[2]
[4]
The requirements in respect of the tender were
inter alia
:
“
11.3.1
Only SANAS accredited B-BBEE certificates and the sworn B-BBEE
Affidavit Exempted Micro Enterprise which was signed by the
Commissioner of Oaths, also is accepted. No other B-BBEE
certificates would be acceptable according to the new preferential
procurement regulations (PPR).
11.3.2
Bidders who do not have B-BBEE
certificates would not be disqualified but would not qualify for
B-BBEE points
.
11.3.3
Bids would be evaluated according to the 80/20 or 90/10 for
preferential points system.
11.3.4
Tenders submitted were to hold good for a period up to 90 days.
…
11.3.6
Preference would be given to service providers within the Moqhaka
Local municipality area.
11.3.7
The bid proposals will not necessary be accepted and the municipality
reserves the right to accept, where applicable,
a part or portion of
any bid (or where possible) bids/proposals from multiple bidders.
11.2.8
The municipality also reserved the right in its sole discretion to
readvertise or not to award the tender.
…
11.3.10
Failure
to attach the abovementioned copies would result in the tender being
non-responsive
.
[3]
11.3.11
The municipality would only communicate the outcome of the bid with
the successful bidder and more information could
be obtained from the
municipal website.
” (own
emphasis)
[5]
Five tenders were submitted and were found to be responsive.
[4]
For purposes of this judgement only that of Afrirent and Moipone are
discussed. Afrirent’s tender price was R139 979 786.00
and that of Moipone R154 874 242.00.
[5]
III
AFRIRENT’S B-BBEE CERTIFICATES AND COMPLAINT
[6]
It complains that the municipality acted unlawfully
[6]
when it did not award it any B-BBEE points. It had a valid
certificate at date that it
submitted
its
tender. It seeks compensation in terms of the Promotion of Justice
Act
[7]
(“PAJA”). The
municipality aligns itself with Afrirent in so far as it states that
the process was irregular.
[7]
The certificate that Afrirent submitted with its tender documents
expired on 12 September 2020.
[8]
As a result of the expired certificate, Afrirent forfeited 10 (ten)
B-BBEE points. If it received the points, it would have
received the
highest points which would have entitled it to be awarded the tender.
[8]
On 17 September 2020,
[9]
INC
Ratings informed Afrirent that its audit findings in respect of its
certificate will be issued as soon as a decision is made.
[10]
On 9 October 2020, a B-BBEE verification certificate was issued to
Afrirent with date of expiry on 8 October 2021.
[11]
This entitled Afrirent to 10 B-BBEE points if the evaluation
committee accepted it.
[9]
Annexure “MRG1” shows that Mr Gama (deponent of Afrirent)
sent an e-mail to Mr Visagie of the municipality
on 15 October 2020
at 6:17 pm wherein he stated:
“
Afri
Rent
[12]
responded
to the fleet tender which was advertised by Moqhaka municipality, at
the time when the tender closed we were still busy
with the B-BBEE
verification and we attached a letter from a SANAS accredited
verification agency confirming the audit.
I
am happy to inform you that the verification has been completed and
we retained our level 1 B-BBEE score. I have attached
the
certificate to enable the municipality to allocate the necessary
B-BBEE points.
”
[13]
[10]
It forwarded a valid copy of its certificate to Supply Chain after
the tender was evaluated. It was not too late as the certificate
was
not mandatory at closing date of the bids.
[14]
It submits that the SCM regulations did not prohibit a request for a
certificate before/upon appointment as with tax certificates
and
municipal rates and taxes accounts a provided for by the Municipal
Finance Management Act
[15]
,
Circular no. 90.
[16]
[11]
The minutes of the meeting of the Bid Adjudication Committee (“BAC”),
held on 22 October 2020, showed serious irregularities
which favoured
Moipone. Secret price negotiations for various items took place
and in failing to accept Afrirent’s
fresh B-BBEE certificate,
Moipone had an unfair advantage, which resulted in it being awarded
the tender irregularly after it lowered
its tender price.
[17]
[12]
In respect of the B-BBEE certificate of Afrirent, the BAC minutes
record:
“
Members
asked whether Afri Rent (Pty) Ltd could not have been contacted to
provide the municipality with the
latest
valid B-BBEE certificate before adjudication
,
as the point difference between the two bidders was on 0.42.
The member stated that
because on
closing
date
their B-BBEE certificate had expired, they could not be given the
B-BBEE points during the tender evaluation process as the committee
was not in a position to determine at what B-BBEE Level will they be
scored due to their
expired
certificate
.
It was noted that Afri Rent (Pty) Ltd did forward a copy of a
valid
B-BBEE certificate to Supply Chain after the tender was already
evaluated, but it was too late as this document was a mandatory
valid
document needed at the closing date
.
This
was also clearly indicated on the tender advert and
has
been our practice not to award B-BBEE points in instances where the
bidder did not submit a valid B-BBEE certificate
.
The member noted that the SCM regulations are silent in terms of
requesting a valid B-BBEE certificate before/upon appointment,
unlike
with the Tax Clearance Certificate and up to date municipal rates and
taxes as provided by MFMA Circular no. 90.
Member
also indicated that in terms of alignment with the
specifications
of the vehicles, Afri Rent (Pty) Ltd scored higher than Moipone Fleet
(Pty) Ltd as per the Technical Report
and
the main reason why Moipone Fleet (Pty) Ltd scored the highest was
because of the B-BBEE points.
Therefore
when looking at the price and the specification alignment Afri Rent
(Pty) Ltd is the better bidder
.
”
[own emphasis]
[13]
The BAC made reference to MBD 6.1
[18]
under Section 1: General Conditions, subsection 1.6 and 1.7
[19]
which states:
“
1.6
Failure on the part of a bidder to submit proof of B-BBEE status
level of contributor
together
with the bid, will be interpreted to mean that preference points for
B-BBEE status level of contribution are not claimed
.
1.7
The
purchaser reserves the right to require of a bidder, either before a
bid is adjudicated or at any time subsequently, to substantiate
any
claim in regard to preferences, in any manner required by the
purchaser
.
”
[own emphasis]
[14]
It was further noted that it was not the first time that a bidder’s
certificate had expired before the closing date and
the committee
has
not in the past requested a valid one to be submitted
. It
has to main consistency in the matter. Afrirent complains that there
was no consensus during the adjudication process
in that some members
were of the view that the certificate should be considered whilst
others were opposed to it.
[15]
The committee eventually resolved to:
“
Request
for a cost estimation to be conducted by the user department, based
on the quotation submitted by the bidders Moipone Fleet
and Afri
Rent.
Thereafter
the committee will meet again to conclude the recommendation to the
Acting Municipal Manager
.
”
[20]
[16]
The recommendation for appointment of Moipone was dated 16 October
2020.
[21]
On 24 March 2021,
the Acting Municipal Manager met with Moipone where he, the CFO, the
Manager: Supply Chain Management and three
representatives of Moipone
were present. The prices in respect of items 2, 11, 14, 16, 19,
25 and 34 were discussed. Moipone
was requested to see how it could
accommodate the municipality in respect of price.
[22]
[17]
In a letter dated 19 March/April 2021, Moipone reported that it
reviewed its prices in respect of those items and the bid price
can
be decreased by R2.1 million.
[23]
On 20 April 2021, the municipality appointed Moipone on a contract
amount of R152 777 509.94.
[24]
Afrirent complains that Moipone was favoured based on allegedly
providing a better model via secret price negotiations.
[18]
It submits that the definition of “
acceptable
tender
”
must
be construed against the background of Section 217 of the
Constitution and that Moipone’s tender was not an acceptable
tender as it was not judged on the values of the Constitution.
[25]
[19]
The price negotiations between the municipality and Moipone falls
foul of the provisions of
Regulation 24
of the
Municipal Supply Chain
Management Regulations in
that it allowed Moipone a second and unfair
opportunity.
[26]
[20]
Its case is exceptional and compensation is an appropriate remedy.
Remittal would no longer be practicable or feasible.
IV
THE MUNICIPALITY’S CASE
[21]
The deponent states that he played no role in the decision to
advertise the tender, nor did he participate in the procurement
process. The municipality, upon legal advice, was of the view that
the appointment is constitutionally invalid, unlawful and that
it
must be reviewed and set aside.
[27]
The municipality was not entitled to request tenders, and the process
of adjudication was deeply flawed in respect of both procedure
and
substance.
[28]
[22]
Mr Majavu (the attorney for the municipality) raised reservations
about the appointment of Moipone. This was communicated directly
to
the municipality’s erstwhile CFO, as well as the then acting
municipal manager.”
[29]
No less than four separate legal memoranda were provided to the
municipality.
[30]
Mr Majavu
raised issues pertaining to why Afrirent’s fresh certificate
was ignored and that it appears that the relevant
committees of the
municipality have shown a predilection in manipulation of prices to
favour Moipone. There would have been a huge
cost saving if
Afrirent’s certificate was accepted.
[31]
[23]
On assessment of the municipality’
s 2021/2022
annual budget it
was determined that the total amount budgeted for capital expenditure
was R255 917 000.00 for the 2020 –
2024 financial years.
The budget did not make express provision for a new municipal fleet,
most certainly not to the extent
contemplated by the tender.
[32]
The conclusion of the agreement with Moipone would have been an
additional capital expenditure. In terms of the provisions
of
Section 19
of the MFMA, the municipality may only spend money on
capital projects where money for the project, excluding the cost of
the feasibility
studies conducted by or on behalf of the
municipality, has been appropriated in the capital budget.
[24]
The municipality could only incur expenditure in terms of an approved
budget and within the limit of amounts appropriated for
different
votes as per
s 15
of the MFMA and there was a specific prohibition on
spending on capital projects, absent compliance with
s 19
of the
MFMA.
[33]
Section 46(3)
of the MFMA provides that the municipality may only incur long-term
debt in accordance with the provisions of
inter
alia
s
19
after acting in accordance with s 21A of the Systems Act, by
obtaining Council approval and having considered information setting
out particulars of the proposed debt, the amount thereof, the purpose
thereof and provision of security, as well as inviting the
public,
national treasury, provincial treasury to submit written comments or
representations to Council in respect of the proposed
debt.
[34]
[25]
On 8 March 2022, the erstwhile CFO of the municipality provided a
copy of a communication in respect of audit findings by the
Auditor-General. The communication is dated 27 October 2021.
In its audit findings, it
inter
alia
stated
that awarding the tender to Moipone would result in non-compliance
and possible understatement of irregular expenditure.
[35]
[26]
According to the municipality the process was flawed to the extent
that it could never have resulted in a legitimate outcome
binding the
municipality.
[36]
It
simply does not have the money to pay for the tender.
[37]
[27]
Moipone was allowed to swap the lease agreement it initially
submitted with a new document. This was at a stage when
the BAC
refused to take Afrirent’s new certificate. The BAC
displayed naked bias in favour of Moipone and the rejection
of
Afrirent’s bid as non-responsive could be termed
“
arbitrary
”
.
[38]
On this basis, the municipality does not oppose the relief sought in
paragraphs 1 to 3 of the Notice of Motion.
[28]
It submits that compensation is not the only remedy or indeed an
available remedy as Afrirent never attempted to interdict
the
municipality from concluding the agreement and/or pay the full sum of
the bid. Compensation is not a suitable remedy
in circumstances
where a litigant successfully reviews an administrative decision.
[39]
[29]
Afrirent would in any event not be entitled to appointment where
there has been non-compliance with the provisions of s 46
of the
MFMA.
V
MOIPONE’S CASE
[30]
It refers to the advertisement which stated:
“
Bidders
must submit an
original
certified copy of [a] B-BBEE status level verification certificate
to
substantiate their B-BBEE rating claims and B-BBEE status
should
also
be captured on CSD registration;
Only
[a] SANAS accredited B-BBEE certificate and the sworn B-BBEE
affidavit, B-BBEE exempted micro-enterprise, which is signed by
[a]
Commissioner of Oaths, also is accepted;
No
other B-BBEE certificate will be acceptable according to the new
preferential procurement regulations (PPR);
Bidders
who do not have B-BBEE certificates will not be disqualified but
will
not qualify for B-BBEE points
.
”
(own emphasis)
[31]
All the bids were found responsive but in respect of Afrirent it was
noted that its B-BBEE certificate had expired prior to
the closing
date.
[40]
The compliance
report was reviewed by two independent parties on 25 September 2020
and 28 September 2020.
[41]
[32]
The adjustment of the bid price was as a result of an adjustment in
the number of vehicles which the municipality required
whereas
Moipone included more vehicles. In exercising its discretion
the municipality applied the quoted pricing to the number
of vehicles
required. There was no change in pricing save for the number of
vehicles quoted.
[42]
[33]
Were Afrirent allowed to submit a certificate after the closing date,
it would have been a direct violation of s 217 of the
Constitution
which requires a fair, equitable, transparent, competitive and
cost-effective procurement process.
[43]
[34]
It submits that the provisions of s 217 of the Constitution was
replicated in s 38(1)(a) of the PFMA. The Preferential Procurement
Policy Framework Act
[44]
(“the
PPPFA”) was enacted to give effect to Section 217(3) of the
Constitution. The General Procurement Guidelines
were issued by
Treasury in terms of s 76(4)(c) for proper and successful Government
procurement.
[45]
These
guidelines rest upon the principles of Five Pillar Procurement which
is to be read with Supply Chain Management: A
Guide for Accounting
Officers/Authorities.
[46]
The pillars are: value for money; open and effective competition;
ethics and fair dealing; accountability and reporting;
and equity.
The guidelines establish that open and effective competition requires
a framework of procurement laws, policies, practices,
and procedures
that are transparent; openness in the procurement process;
encouragement of effective competition through procurement
methods
suited to market circumstances; and observance of the PPPFA.
[47]
[35]
The accounting officer or authority must develop and implement an
effective and efficient supply chain management system.
Regulation 16A 3.2 of the Treasury Regulations
[48]
requires that the supply chain management system must be fair,
equitable, transparent, competitive and cost-effective and be
consistent
with the provisions of the PPPFA. Supplementing a tender
ex
post facto
will
be to the detriment of bidders. The validity of the certificate is
determined in relation to its date of issue vis-à-vis
its
expiration date.
[49]
Moipone was appointed on 12 December 2020, well within the ninety
(90) day validity period.
VI
AFRIRENT’S ARGUMENT
[36]
Mr Bomela, for Afrirent, refers to
AAA
Investments (Proprietary) Limited v Micro Finance Regulatory Council
and Another
[50]
where the Constitutional Court held:
”
[68]
This is a matter of the application of the rule of law and the
principle of legality
[51]
which
flows from the value of the rule of law enshrined in section 1 of the
Constitution. This Court has held that “[t]he
exercise of all
public power must comply with the Constitution, which is the supreme
law, and the doctrine of legality, which is
part of that law".
[52]
The
doctrine of legality, which requires that power should have a source
in law, is applicable whenever public power is exercised.
Private
power, although subject to the law and in certain circumstances the
Bill of Rights, does not derive its authority or force
from law and
need not find a source in law. Public power on the other hand can
only be validly exercised if it is clearly sourced
in law.”
[37]
Section 217 of the Constitution
[53]
provides that when an organ of state contracts for goods or services,
it must do so in accordance with a system which is fair,
equitable,
transparent, competitive and cost-effective. Reliance is placed on
Steenkamp
N.O. v Provincial Tender Board (Eastern Cape).
[54]
That
Court, however, also held that
c
ompelling
public considerations require that adjudicators of disputes, as of
competing tenders, are immune from damages claims in
respect of their
incorrect or negligent but honest decisions. However, if an
administrative or statutory decision is made in bad
faith or under
corrupt circumstances or completely outside the legitimate scope of
the empowering provision, different public policy
considerations may
well apply.
[38]
The verification agency issued a letter on 17 September 2020, before
the closing day for the bids confirming that Afrirent
would submit a
fresh certificate. Rejection of the fresh certificate caused the
process not to be fair based on fairness, equity,
transparency and
consistency.
[55]
[39]
Moipone was provided the benefit of secret price negotiations on
certain items whereas Afrirent’s fresh certificate
was
rejected. Afrirent was not contacted by the municipality before
adjudication. It is argued that the advertisement
“
vaguely
stated
” that bidders who did not have certificates would
not be disqualified but would not earn points. The SCM
Regulations
does not prohibit a request for a valid certificate
before or upon appointment. In respect of the specification of
the vehicles,
Afrirent scored higher than Moipone. Given the
provisions of subsection 1.7 of the General Conditions, a member of
the committee
did enquire whether the committee may request a
certificate. The failure to do so constituted a serious miscarriage
of administrative
justice.
[40]
Moipone was selectively and inconsistently afforded the favourable
opportunity for price negotiations after expiry of
the validity of
the tender period and to reduce the price outside the validity of the
tender period.
[41]
Reference is made to
City
of Ekurhuleni Metropolitan municipality v Takubiza Trading &
Projects CC and Others
[56]
where it was held:
“
[9]
Plasket J, who took the view that the judgment in
Telkom
SA
was
‘
essentially
on all fours with [Searle]’, observed:
‘
[68]
As with this case, what had to be decided, according to Southwood J,
was “the legal consequence of a failure by a public
body to
accept, within the stipulated validity period for the (tender)
proposals, any of the proposals received.” In deciding
this
issue, Southwood J’s starting point was four inter-related
propositions. They are that: (a) the decision to
award a
tender is an administrative action and the PAJA therefore
applies; (b) generally speaking, once a contract has
been
entered into following the award of a tender, the law of contract
applies; (c) but a contract entered into contrary
to
prescribed tender processes is invalid; and (d) consequently,
“even if no contract is entered into, all steps
taken in
accordance with a process which does not comply with the prescribed
tender process are also invalid.”
VII
THE MUNICIPALITY’S ARGUMENTS
[42]
The municipality concedes the merits of Afrirent’s case with
exclusion of the relief in paragraphs 4 and 6 of the Notice
of
Motion. It aligns itself with Afrirent stating that the
appointment of Moipone was not cost-effective, the process of
evaluation appears to have been manipulated in favour of Moipone, the
SLA was concluded in circumstances when the municipality’s
budget did not make provision for the acquisition of a new municipal
fleet, the contract contravenes s 19 of the MFMA, and the
Auditor
General found that the tender was invalid as Moipone’s bid was
non-responsive.
[43]
It states that it could not support the tender process with reference
to the decision of the Constitutional Court in
Matatiele
Municipality and Others v President of the Republic of South Africa
and Others.
[57]
The
Constitution requires public officials to be accountable and to
observe heightened standards in litigation. They must
not
mislead or obfuscate. They must do right and they must do it
properly. They are required to be candid and place a full
and fair
account of the facts before a court.
[58]
[44]
It denies that Afrirent is entitled to compensation as no proper
basis was laid in the founding affidavit. Nor does the supplementary
affidavit address the issue sufficiently. In
Minister
of Defence and Others v Dunn
[59]
,
the SCA held that some loss has to be proved. The Court found that
compensation was not justifiable even had the administrative
action
complained of been reviewable.
[45]
Exceptional circumstances has to be established. In
Darson
Construction (Pty) Ltd v City of Cape Town and another
[60]
it
was held that it is apparent that an award for compensation is not
intended to be the norm in cases where administrative action
is
reviewed.
[46]
In
Olitzka
Property Holdings v State Tender Board and another
[61]
it was held:
“
[38]
This in my view has acute consequences for the plaintiff’s task
in seeking to convince the Court that an award of the
profit lost
through the non-award of the tender could constitute “appropriate
relief”.
An
interdict would not only have anticipated the later dispute; it would
have eliminated the source of loss the plaintiff invokes.
This
no doubt reflects the wisdom of hindsight, and offers stony comfort
to a plaintiff who, as Mr Ginsburg was at pains to emphasise,
has
never manifested an intention to abandon its rights. Yet, as Ngcobo J
emphasised on behalf of the Constitutional Court in Hoffmann
v
South African Airways, what constitutes “appropriate
relief” depends on the facts of each case. The plaintiff
relies
on its special circumstances to found a constitutional entitlement.
Fair
scrutiny must encompass all aspects of its position, and the
alternative remedies available to it, at all stages of the dispute,
must be a critical factor in that assessment
.”
(own
emphasis)
[47]
Afrirent could have brought an interdict but elected not to do so.
The compensation that Afrirent seeks bears no relation
to its
profits. Afrirent also did not make a case for substitution
relief. Exceptional circumstances must exist to
justify
substitution.
[48]
If the Court sets the tender aside, Afrirent would only be partially
successful and that there should therefore not be
punitive costs.
VIII
MOIPONE’S ARGUMENT
[49]
The municipality cannot, so to speak, use the proceedings to
self-review its decision to award the tender.
[50]
The PPPFA, Section 1, states what an acceptable tender means.
Reference is made to
Chairperson:
Standing Tender Committee and Others v JFE Sapela Electronics (Pty)
Lt
d
and Others
[62]
where it was
held that the starting point is s 217 of the Constitution, which
enquires a system which is fair, equitable, transparent,
competitive
and cost-effective. A tender has to comply in every respect
with the specifications and conditions of tender
as set out in the
tender document. The legislature and executive in all spheres are
constrained by the principle that they may
exercise no power and
perform no function beyond those conferred upon them by law.
[63]
[51]
In
Dr
JS Moroka municipality and Others v Betram (Pty) Limited and
Another
[64]
(
Bertram
)
it was held that a bid that does not satisfy the necessary prescribed
minimum qualifying requirements simply cannot be viewed
as a bid
‘validly submitted’. Moreover, the tender process
consists of various stages: first, examination of all bids
received,
at which stage those which do not comply with the prescribed minimum
standards are liable to be rejected as invalid;
second, the
evaluation of all bids ‘validly submitted’. The fact that
all bids validly submitted are to be taken into
consideration affords
no discretion to condone and take into account bids not validly
submitted but disqualified.
[65]
In
Bertram
supra
there
was no discretion to condone a failure to comply with the prescribed
minimum prerequisite of a valid and original tax clearance
certificate.
[66]
[52]
An administrative authority has no inherent power to condone a
failure to comply with a
peremptory
requirement.
[67]
The notice that bidders who do not have a certificate will not be
disqualified but will not qualify for points is clear.
It
denies that the fresh certificate was submitted on 19 October
2020
[68]
before adjudication
by the BAC on 22 October 2020.
[53]
Regulation 7(8) states that subject to sub-regulation (9) and
Regulation 11, the contract must be awarded to the tenderer
scoring
the highest points. Regulation 7(9)(a) provides that if the
price offered by a tenderer scoring the highest points
is not
market-related
[69]
, the organ
of state may not award the contract to the tenderer.
Subparagraph (b) however provides that an organ of state
may
negotiate a market-related price with the tenderer scoring the
highest points or cancel the tender.
[54]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[70]
makes
it clear that there is
no
indication of unreasonableness, nor of relevant factors having been
ignored nor of irrelevant factors having been taken into
account.
[71]
[55]
South
African National Road Agency Ltd v The Toll Collect Consortium and
Another
[72]
gave content to the requirement of transparency in tender processes.
Once the tender is awarded in an open and public fashion it
is not
open to a “
disappointed
tenderer to find some ground for reversing the outcome or commencing
the process anew
”
.
In
Metro
Projects CC and Another v Klerksdorp Local municipality and
Others
[73]
the SCA acknowledged that in given circumstances it may be fair to
ask a tenderer to explain an ambiguity in its tender and to
correct
an obvious mistake or call for clarification or details to enable a
proper evaluation of a bid. However, “
whatever
is done may not cause a process to lose the attribute of fairness or,
in the local government sphere, attributes of transparency,
competitiveness and cost-effectiveness.
”
[56]
In
Minister
of Social Development and Others v Phoenix Cash & Carry Pmb
CC
[74]
,
the SCA urged that public tender processes be interpreted and applied
without undue reliance on form. The present matter is to
be
distinguished as the stipulation of the certificate was clear.
So too was the consequence of failing to submit it. In
Azcon
Projects CC
v National Minister , Department of Public Works,
Mthatha & another (Azcon”)
[75]
,
Azcon posted a valid tax certificate a day after the closing day of
the bids. Neither its certificate nor the explanation
for the
delay in submitting it came to the attention of the BEC. The
sole reason for excluding Azcon’s bid from the
tender process
was its failure to submit its tax certificate with its tender
documents. The Court considered itself bound
by
Millennium
Waste Management (Pty) Ltd. v Chairperson of the Tender Board:
Limpopo Province and Others (Millennium)
[76]
to condone “
innocent
omissions and/or bona fide errors in the bid process
”
.
Bertram
declared
that
Millennium
should
be regarded as incorrect. The importance of the duty to issue
clear deadlines for submission of all requirements for
an acceptable
bid is apparent in
Azcon
.
If the body did not have the information in the first place, it
cannot be faulted for not taking it into account.
[57]
In
Vodacom
(Pty) Ltd and Another v Nelson Mandela Bay municipality and
Others
[77]
,
the Court refused to sanction a tender that allowed bidders to supply
omissions or complete parts of obligatory questionnaires
after the
closing date for the tender. The Court, however, for other
reasons set the award aside. To challenge an administrative
decision
substantively, a complainant must show that the decision is one that
no reasonable decision-maker could reach.
[58]
In
Rainbow
Civils CC v Minister of Transport and Public Works, Western Cape and
Others
[78]
the Court held:
“
[88]
I might add, en passant, that I do not consider that the terms of the
Preference Document afforded the Decision Maker
any discretion to
condone non-compliance with the requirements regarding the
Verification Certificate. And had the Decision Maker
been aware of
the defect and afforded Safaz an opportunity to augment its ender by
submitting the prescribed Verification Certificate,
such conduct
might well have founded a complaint that all tenders were not being
treated equally. That, however, is not the situation
with which we
are faced in this case, and in my view the simple answer, for present
purposes, is that Safaz did not submit the
prescribed Verification
Certificate and should not, therefore, have been awarded any
preference points for B-BBEE Status.”
[59]
Reference is made to
Tetra
Mobile Radio (Pty) Ltd. v Member of the Executive Council of the
Department of Works and Others
[79]
where the SCA held that fairness is inherent in tender process. A
proper evaluation is done of what is available and at what price,
so
as to ensure cost-effectiveness and competitiveness.
IX
EVALUATION
[60]
The Constitution of the Republic of South Africa
[80]
requires that administrators take decisions lawfully, reasonably and
in a procedurally fair manner.
[61]
To succeed in its relief, Afrirent’s first hurdle would be to
show that the municipality exercised a discretion
to reject the fresh
certificate on any of the grounds in s 6 of PAJA. In the Notice of
Motion only one ground was selected –
the decision was
unlawful.
[81]
Section 6 does
not explicitly refer to the other ground that is relied on –
the decision being invalid
ab
initio.
[62]
From the record of the evaluation committee it is clear that it opted
for applying the principle of consistency in not
asking for updated
(fresh) certificates in respect of the B-BBEE certificate. I cannot
find that the committee exercised it discretion
on any basis that may
invoke a review thereof.
[63]
In applying the principle of consistency in the admission or not of
additional information, in this instance the B-BBEE
certificate, it
was held in
Minister
of Finance v Afribusiness NPC
:
[82]
“
[38]
It is trite that assessing the validity of a statute (and by
extension regulations promulgated thereunder) demands that
courts
adopt an objective approach. In Ferreira, this Court
captured the principle aptly as follows:
“
A
statute is either valid or ‘of no force and effect to the
extent of its inconsistency’. The subjective positions in
which
parties find themselves cannot have a bearing on the status of the
provisions of a statute under attack.
”
[83]
(own
emphasis)
[64]
The principle of consistency is more commonly found in labour law.
In
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[84]
,
Van Niekerk J stated the following:
“
[10]
The legal principles applicable to consistency in the exercise of
discipline are set out in Item 7 (b) (iii) of the Code of
Good
Practice: Dismissal establishes as a guideline for testing the
fairness of a dismissal for misconduct whether ‘the rule
or
standard has been consistently applied by the employer’.
This
is often referred to as the ‘parity principle’, a basic
tenet of fairness that requires like cases to be treated
alike
.
The courts have distinguished two forms of inconsistency
– historical and contemporaneous inconsistency.
The
former requires that an employer apply the penalty of dismissal
consistently with the way in which the penalty has been applied to
other employees in the past; the latter requires that the
penalty be applied consistently as between two or more employees
who
commit the same misconduct.”
(own emphasis)
[65]
In
C
& M Fasteners CC v Buffalo City Metropolitan municipality
[85]
it was held:
“
The
legal framework relevant was set out as follows by Plasket J in WDR
Earthmoving Enterprises CC and Another v Joe Gqabi District
municipality and Others:
“
[6]
Section 217 of the Constitution provides that when organs of state
procure goods and services they must do so in accordance
with a
system that is “fair, equitable, transparent, competitive and
cost-effective”.
These
principles are given effect to by a complex web of primary and
subordinate legislation as well as supply chain management
policies.
These instruments both empower organs of state in their procurement
processes and place limits on their powers. Procurement
processes, in
order to be lawful and constitutionally compliant, must be undertaken
in accordance with these provisions: compliance
with them is legally
required and they may not be disregarded.
[7]
… Framed in the obverse, a decision-maker in a public
procurement process is required by Section 33(1) of the Constitution
to act lawfully, reasonably and in a procedurally fair manner and if
he or she does not, the impugned decision may be set aside.
[8]
… Whenever a public body has a duty imposed on it by statute,
and disregards important provisions of the statute, or
is guilty of
gross irregularity or clear illegality in the performance of the
duty, this Court may be asked to review the proceedings
complained of
and set aside or correct them.’
[9]
… a court would be “unable to interfere with a due and
honest exercise of discretion, even if it considered the
decision
inequitable or wrong”. The reason for this is simple: the
legislature mandated and empowered administrators to administer,
and
not courts; and the role of the courts is limited to ensuring that
administrators do not stray beyond the legal limits of their
mandates.
[10]
… Administrative action may only be set aside by a court
exercising its review powers if it is irregular.
[86]
It
may not be interfered with because it is a decision a judge considers
to be wrong
.”
(own
emphasis)
[66]
Chaskalson, in
Pharmaceutical
supra,
held:
“
[36]
… The law does not interfere with the proper exercise of the
discretion by the executive in those situations:
but it can set
limits by defining the bounds of the activity: and
it
can intervene if the discretion is exercised improperly or
mistakenly
.
That is a fundamental principle of our constitution.”
[82]
… “Now it is settled law that where a matter is left to
the discretion or the determination of a public officer,
and where
his discretion has been bona fide exercised or
his
judgment bona fide expressed, the Court will not interfere with the
result. Not being a judicial functionary, no appeal or review
in the
ordinary sense would lie; and if he has duly and honestly applied
himself to the question which has been left to his discretion,
it is
impossible for a Court of Law either to make him change his mind or
to substitute its conclusion for his own
.”
(own emphasis)
[67]
From the summary of the parties’ versions and arguments, I find
that it cannot be said that the committee did not
exercise its
discretion fairly. The advertisement set an objective criterium. If
there is no valid certificate, there cannot be
points to be claimed.
Azcon supra
is
distinguishable. The tenderer was registered for VAT at date of
closing of the tender. All that it had to do was to submit its
proof.
In Afrirent’s case, its certificate lapsed, It did not have a
valid certificate in the period between 12 September
2020 and 9
October 2020. Its status thus changed and it was not possible to
determine whether it would again qualify. One can only
speculate
whether other companies who did not tender because they did not have
valid certificates at close of the tender may also
have applied if
they knew that it could be submitted later. The advertisement made it
clear that it had to be valid at date of
closing.
[68]
If Afrirent does not pass this hurdle, the fact that there were
negotiations on price or that the grounds that the municipality
relies on for arguing that it could in any event not award any tender
is of no moment. If the municipality’s version is correct,
neither Afrirent nor Moipone would qualify for the tender. It is for
this reason that I decided not to express myself on the
enforceability
of any claim, whether by Afrirent or Moipone.
[69]
The question whether Afrirent could qualify for damages was answered
in
Steenkamp supra
, where the Court held:
“
54”
The residual question is whether there is justification to develop
the common law to embrace this narrow claim for
damages based on
out-of-pocket expenses in favour of an initially successful tenderer
where the award is subsequently set aside
by the court and the
tenderer retains the right to participate in the subsequent tender
process. I think not. First, there is no
magic in characterising
financial loss as out-of-pocket.
If
public policy is slow to recompense financial loss of disappointed
tenderers it should not change simply because of the name
the
financial loss bears. Second, even if there may not be a public law
remedy such as an interdict, review or appeal this is no
reason for
resorting to damages as a remedy for out-of-pocket loss. This is so
because first, as I found earlier, the loss may
be avoided and second
it is not justified to discriminate between tenderers only on the
basis that they are either disappointed
tenderers or initially
successful tenderers. To do so is to allot different legal rights to
parties to the same tender process.
There is no justification for
this distinction particularly because ordinarily both classes of
tenderers are free to tender again
should the initial tender be set
aside.
”
(own emphasis)
[70]
Rodpaul
Construction CC t/a Rods Construction v Ethekwini municipality and
Others
[87]
is on all fours with the matter before us. In that matter the B-BBEE
certificate also expired on close of the tender.
“
[14]
Its Certificate had expired on 11 July 2012. The certificate that
Rodpaul supplied on 28 January 2013 was neither original
nor valid at
the closing date of the tender. It was effective from 28 January 2013
to 27 January 2014. The failure to submit an
original, valid
Certificate with the tender documents rendered Rodpaul’s bid
‘non-compliant’. It is against principles
and unfair to
render a non-compliant bid compliant.
[68]
In respectful disagreement with Rodpaul I see nothing incorrect or in
conflict with decisions of the High Courts in the above
quotation.
The extract demonstrates that
the
chairman understood the risk of compromising the integrity of the
process if Rodpaul was allowed to submit its Certificate after
the
closing date of the tender. He was open to persuasion to do so on
production of legal authority. In that event he would have
given all
six bidders a chance to improve their points. Crucial to the decision
was that the Certificate that Rodpaul had allegedly
submitted with
its tender had expired six months before the closing date. Correctly
the chairman concluded that such a Certificate
could not have any
value in the scoring of the tender
.
(own emphasis)
[71]
In respect of Moipone’s argument that the municipality cannot
self-review by way of this application, I refer to
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
[88]
where
the Constitutional Court held:
“
[56]
In Khumalo Skweyiya J stated that it is the duty of state litigants
to rectify unlawful decisions:
“
This
Court has affirmed as a fundamental principle that the state ‘should
be exemplary in its compliance with the fundamental
constitutional
principle that proscribes self-help’. What is more, in Khumalo,
this Court held that state functionaries are
enjoined to uphold and
protect the rule of law by, inter alia, seeking the redress of their
departments’ unlawful decisions.
Generally, it is the duty of a
state functionary to rectify unlawfulness. The courts have a duty to
insist that the state, in all
its dealings, operates within the
confines of the law and, in so doing, remains accountable to those on
whose behalf it exercises
power. Public functionaries ‘must,
where faced with an irregularity in the public administration, in the
context of employment
or otherwise, seek to redress it’.”
[119]
Where there has been no delay by an organ of state in seeking to
review its own prior decision, a declaration of unlawfulness
should
invariably be made. In AllPay II, we affirmed that this “default
position” reflects the most basic imperative
of the principle
of legality in “requir[ing] the consequences of invalidity to
be corrected or reversed where they can no
longer be prevented”.
In bringing an application for self-review promptly, the state is
also complying with its duty to correct
suspected unlawful decisions
expeditiously and diligently. In short, timely self-review generally
results in a win-win for the
rule of law.
[120]
Where there is non-negligible delay by an organ of state in bringing
a self-review application, the court must determine whether
the delay
is reasonable and should accordingly be condoned. In Khumalo, this
Court rightly cautioned that “a court should
be slow to allow
procedural obstacles to prevent it from looking into a challenge to
the lawfulness of an exercise of public power”.”
[72]
It is not necessary for purposes of this judgment to express any
views on it, except to state that there was no counter-application.
[73]
The matter before us raises the important issue that government may,
compared with other tenderers who may have lower
B-BBEE points, pay
much higher amounts for the same services when costs are not
carefully considered. The Constitutional values
of competitiveness
and cost-efficiency should always be considered. This municipality
may pay in excess of R12million more for
the same service just on a
points difference. I take no issue with the point system but this is
an aspect that needs further consideration
in public procurement.
X
COSTS
[74]
Afrirent asked for costs only against the municipality.
[75]
The municipality aligned itself with Afrirent to the extent that it
agreed that awarding the tender to Moipone was irregular.
The
municipality, however, went further to state that the tender could
never have been awarded. If
Rodpaul supra
is followed, which I
do, Afrirent had itself to blame for not having a valid certificate
at the date of closing of the tender or
during evaluation.
[76]
Afrirent has not shown exceptional circumstances for a claim of
damages. It has not been successful in either turning
the tender
process around, nor for damages. In view of the municipality’s
ambivalent alignment with Afrirent, an order that
Afrirent pays half
the cost of the municipality would be fair.
[77]
In respect of the relief that involved Moipone, Afrirent failed.
Following the general rule and finding no reason to
deviate from it,
Afrirent should pay the costs of Moipone. In view of the important
issues raised, the costs of two counsel is
justified.
[78]
I would make the following order:
ORDER:
1.
The Application is dismissed.
2.
The Applicant pays half the taxed party and party costs of the First
Respondent.
3.
The Applicant pays the costs of two counsel of the Second Respondent
on party and party scale.
P
R CRONJé, AJ
I
agree:
N
S DANISO, J
On
behalf of the Applicant:
Adv.
L Bomela
Instructed
by:
Malebogo
Maeyane Attorneys
C/o
MM Inc Legal
BLOEMFONTEIN
On
behalf of the First Respondent:
Adv
AE Ayayee
Instructed
by:
Rampai
Attorneys
BLOEMFONTEIN
On
behalf of the Second Respondent:
Adv
MM Lebakeng
Adv
Mosilili
Instructed
by:
Webbers
BLOEMFONTEIN
[1]
Pleadings, p. 1 – 2 - Notice of Motion
[2]
Pleadings p. 10, para 11. The advertisement in the pleadings is
illegible and the salient provisions are quoted from the founding
affidavit of Afrirent - A copy of the advertisement appears at p.
146 of the pleadings
[3]
This did not apply to the B-BBEE certificates
[4]
Pleadings, p. 13
[5]
Ibid, p. 14
[6]
Prayer 1 of the Notice of Motion
[7]
3 of 2000
[8]
Approximately 9 days before closing date. All the other tenderers’
certificates only expired in 2021
[9]
Approximately 4 days before closing date
[10]
Pleadings, p. 60
[11]
Ibid, p. 61; p. 106
[12]
“Afri Rent” and “Afrirent” is used
inconsistently in the papers
[13]
Pleadings, p. 200
[14]
Ibid, p. 17, para 19.2.6
[15]
56 of 2003
[16]
Pleadings,
p. 18, para 19.2.8
[17]
Ibid, p. 16, para 19.2.1. It should be noted that Moipone had a
higher rating even before the lowering of the tender price.
[18]
Preference Points Claim Form in terms of the Preferential
Procurement Regulations and Preferential Procurement Policy of
Council: 90/10 Preference Point System
[19]
It should be paragraph 1.5 and 1.6. See:
http://ocpo.treasury.gov.za/Buyers_Area/Pages/
Standard-Bidding-Forms.aspx
[20]
Pleadings, p. 41; This raises the question about the criterium of
cost-effectiveness provided for in section 217 of the Constitution.
[21]
Ibid, p. 49 - 50
[22]
Ibid, p. 52
[23]
Ibid, p. 56
[24]
Ibid, p. 57
[25]
Ibid
,
p. 32, para 21
[26]
Ibid
,
p. 34, para 23
[27]
Ibid
,
p. 214, para 6
[28]
Ibid
,
p. 215, para 7.1 – 7.3
[29]
Ibid
,
p. 218, para 16
[30]
None were appended to the opposing affidavit
[31]
Pleadings,
p. 218, para 19
[32]
Ibid
,
p. 219, para 21 - 22
[33]
Ibid
,
p. 221, para 25
[34]
Ibid
,
p. 221, para 26
[35]
Ibid
,
p. 240; Afrirent’s case is not premised on the various grounds
in the communiqué.
[36]
Ibid
,
p. 231, para 65
[37]
Ibid
,
p. 231, para 67
[38]
Ibid
,
p. 224, para 34
[39]
Ibid
,
p. 227, para 47
[40]
Ibid, p. 121, para 17
[41]
Ibid, p. 121, para 18; p. 149
[42]
Ibid, p. 124, para 31.1.2
[43]
Ibid, p. 129, para 31.2.6
[44]
5 of 2000
[45]
Pleadings, p. 134, para 39
[46]
Ibid, p. 134, para 40
[47]
Ibid, p. 135, para 42
[48]
15 March 2005
[49]
Pleadings, p. 142, para 70.1
[50]
[2006] ZACC 9; 2006 (11) BCLR 1255 (CC); 2007 (1) SA 343 (CC)
[51]
See
:
State
Information Technology Agency SOC Ltd v Gijima Holdings (Pty)
Limited
[2017]
JOL 39257 (CC); [2017] ZACC 40 (CC); 2018 (2) SA 23 (CC)
[52]
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex
Parte President of the Republic of South Africa
and Others
[2000]
ZACC 1
;
2000
(2) SA 674
(CC)
[2000] ZACC 1
; ;
2000
(3) BCLR 241
(CC)
at para 20. See also:
Fedsure
Life Assurance Limited and Others v Greater Johannesburg
Transitional Metropolitan Council and Others
[1998]
ZACC 17
;
1999
(1) SA 374
(CC);
1998
(12) BCLR 1458
(CC)
at paras 40 and 56.
[53]
Act 108 of 1996
[54]
Steenkamp
NO v Provincial Tender Board of the Eastern Cape
[2006]
ZACC 16; 2007 (3) SA 121 (CC); 2007 (3) BCLR 300 (CC) (28 September
2006) para 55. See also:
Telematrix
(Pty) Ltd v Advertising Standards Authority SA
[2005]
ZASCA 73; [2006] 1 All SA 6 (SCA); 2006 (1) SA 461 (SCA) para [26].
The facts and principles in
Minister
of Safety and Security v Van Duivenboden
(209/2001)
[2002] ZASCA 79; [2002] 3 All SA 741 (SCA) are distinguishable
[55]
National
Treasuries Implementation Guide Preferential Regulations 2011 at
para 4.2.
[56]
[2022] ZASCA 82; 2023 (1) SA 44 (SCA)
[57]
[2006] ZACC 2; 2006 (5) BCLR 622 (CC); 2006 (5) SA 47 (CC)
[58]
Public
Protector v South African Reserve Bank
[2019]
ZACC 29; 2019 (9) BCLR 1113 (CC); 2019 (6) SA 253 (CC)
[59]
[2007] ZASCA 75; [2007] SCA 75 (RSA); [2008] 2 All SA 14 (SCA) ;
2007 (6) SA 52 (SCA)
[60]
2007 (4) SA 488
(C). See the references therein to some of the other
cases referred to in this judgment
[61]
(698/98) [2001] ZASCA 51 (28 March 2001). See also:
HT
Pelatona Projects (Pty) Ltd v Tswelopele Local Municipality and
Others
(2214/2022)
[2022] ZAFSHC 97 (23 May 2022)
[62]
[2005] ZASCA 90; 2008 (2) SA 638 (SCA) ; [2005] 4 All SA 487 (SCA)
[63]
See:
Pharmaceutical
Manufacturers Association of SA: in re ex parte President of the
Republic of South Africa
[2000]
ZACC 1
;
2000
(2) SA 674
(CC) paras 17 and 50
; Gerber
v Member of the Executive Council for Development Planning &
Local Government, Gauteng
2003
(2) SA 344
(SCA) para 35
[64]
[2013] ZASCA 186; [2014] 1 All SA 545 (SCA)
[65]
At para [15]
[66]
See also:
IMVUSA
Trading 134 CC and Another v Dr. Ruth Mompati District municipality
and Others
(2628/08)
[2008] ZANWHC 46
where it was, on different grounds, accepted
[67]
Bertram
supra
at
para [18]
[68]
Pleadings, p. 19, para 19.2.13
[69]
Whether the tender was “
market
related”
is
not relevant for the present discussion as this was not a basis for
the review. The tender of Afrirent was R139 979 786.00
and
that of Moipone initially R154 874 242.00, this was
R14 894 456.00 higher. Moipone later reduced its
tender
marginally to R152 777 509.94, which was still
R12 797 723.00 higher than Afrirent’s tender
[70]
[2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC)
[71]
At para [60]
[72]
[2013] ZASCA 102; [2013] 4 All SA 393 (SCA); 2013 (6) SA 356 (SCA)
[73]
[2003] ZASCA 91; [2004] 1 All SA 504 (SCA) at para [13]
[74]
[2007] ZASCA 26; [2007] 3 All SA 115 (SCA); 2007 (9) BCLR 982 (SCA)
[75]
[2011]
JOL 27630 (ECM)
[76]
[2007] ZASCA 165
; [2007] SCA 165 (RSA);
[2008] 2 All SA 145
;
2008
(2) SA 481
;
2008 (5) BCLR 508
;
2008 (2) SA 481
(SCA)
[77]
[2010] ZAECPEHC 34; 2012 (3) SA 240 (ECP)
[78]
[2013] ZAWCHC 3
[79]
[2007] ZASCA 128
; [2007] SCA 128 (RSA); 2008 (1) SA 438 (SCA)
[80]
108 of 1996
[81]
Pleadings, p. 1
[82]
[2022]
ZACC 4
;
2022 (4) SA 362
(CC);
2022 (9) BCLR 1108
(CC); See also
Ferreira
v Levin N.O.; Vryenhoek v Powell N.O.
[1995]
ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC); See also: “
[58]
In terms of section 2 of the Constitution, “[the] Constitution
is the supreme law of the Republic; law or conduct inconsistent
with
it is invalid, and the obligations imposed by it must be
fulfilled”. The supremacy of the Constitution thus
demands that any legislation or subordinate legislation complies
with it. Because the Constitution enjoys precedence over
other
sources of law, their validity is ultimately tested against its
provisions.”
[83]
See also para [39]
[84]
[2009] ZALC 68
; (2010) 31 ILJ 452 (LC) ; [2009] 11 BLLR 1128 (LC)
[85]
[2019] ZAECGHC 22
[86]
See:
Municipal
Manager: Qaukeni and Others v F V General Trading CC
[2009]
ZASCA 66; 2010 (1) SA 356 (SCA); [2009] 4 All SA 231 (SCA)
[87]
[2014] ZAKZDHC 18 at para 68
[88]
[2019] ZACC 15
; See also:
State
Information Technology Agency SOC Ltd v Gijima Holdings (Pty)
Limited
[2017]
JOL 39257
(CC);
[2017] ZACC 40
(CC);
2018 (2) SA 23
(CC).
That matter dealt with
condonation