IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION, CAPE TOWN]
Case no: 1365/23
In the matter between:
TMT SERVICES & SUPPLIES (PTY) LTD
t/a TRAFFIC MANAGEMENT TECHNOLOGIES Applicant
(Reg no. 2000/022850/07
and
CITY OF JOHANNESBURG
METROPOLITAN MUNICIPALITY First respondent
SYNTELL (PTY) LTD Second respondent
(Reg no. 2003/022275/07)
JUDGMENT DELIVERED (VIA EMAIL) ON 27 MARCH 2024
SHER, J:
1. This is an application to review and set aside an award by the City of
Johannesburg (‘the City’) to the 2 nd respondent (‘Syntell’) on 2 December 2022,
of a three-year tender to the value of R 177.1 million odd, for the provision of
advanced law enforcement and ‘crash’ management services.
2. The applicant was one of 3 bidders for the tender. It was disqualified by the City’s
bid evaluation committee (‘the BEC’) on 6 May 2022 on the grounds that its bid
was non-responsive, as it had failed to file certified copies of license certificates
for the equipment it was to supply. A second bidder was disqualified for the same
reason. According to the BEC , Syntell was the only compliant and responsive
bidder.
The background
3. The applicant is in the business of providing traffic management services to state
entities such as municipalities and provincial governments. These services
comprise both so -called ‘front’ and ‘back’ office services. Front -office services
2
involve capturing traffic violations or ‘infringements’ with fixed or mobile cameras
and equipment . Back-office services consist of processing and analysing the
data captured and issuing fines and court process. The applicant supplied these
services to the City between 2015 and 2017 in terms of a previous tender which
was awarded to it. The subsequent 3-year tender which ran from 2018 to 2021
was awarded to Syntell.
4. In 2018-2019 the City decided to review the operating model in terms of which
these services were provided, whereby the City acquired the hardware and
equipment which the service provider who was awarded the tender would
operate, for which it would be remunerated on the basis of the number of traffic
violations that it captured and processed, utilizing the City’s equipment.
5. Due to financial constraints t he City proposed that in future the hardware and
equipment should be supplied by the service provider , who would provide both
front and back -office services for the period the tender was to run, for a ‘flat’ i.e.
fixed monthly fee. As before, t he services would include the capturing ,
processing and analysis of traffic infringement and accident data (which would be
in photographic, digital and/or documentary form ), and would have to interface
with several electronic platforms including eNatis (the National Traffic Information
System which contains the national register for all motor vehicle licences and
registrations), AARTO (the Administrative Adjudication of Road Traffic Offences
system which provides for the administration and collection of fines related to
road traffic infringements), and the City’s Ops Centre.
6. To develop and compile the requisite specifications for the new operating model
consultations were held with a variety of roleplayers and technical experts and a
bid specifications committee (‘BSC’) was established , which met on numerous
occasions during 2021 to formulate specifications for a new tender. Once these
were compiled, they were reviewed, before being approved by the City Manager.
7. On 15 February 2022 the City advertised a new 3-year tender, which required
bids to be submitted by 22 March 2022. The tender documents contained
detailed specifications for the ‘front-office’ equipment which was to be supplied by
the successful bidder, which included a number of fixed and mobile cameras with
3
automatic number plate recognition, identity , photo scanning and data capturing
facilities, as well as other devices. The back-office system specifications included
electronic data and traffic violation related processing (including notices,
summonses and warrants), and payment systems. The bid specifications also
made provision for a host of new services to be provided in relation to the
capturing, processing and analysis of accident and vehicle impounding related
data.
8. The tender documents specified a list of returnable documents which had to be
submitted by bidders which included valid, certified copies of OEM (‘original
equipment manufacturer’) license certificates for all cameras and devices w hich
were to be used, issued by ICASA, the Independent Communications Authority of
SA. These certificates were necessary to ensure that the hardware which was to
be provided would be compatible with the radio and telecommunications systems
which were used by the City’s law enforcement. The tender documents clearly
stipulated that a failure to provide these certificates would result in
disqualification.
9. To qualify for the tender b idders were also required to attend a compulsory
briefing session, which took place on 25 February 2022. During the session the
applicant’s General Manager François Du Toit enquired whether an indication
could be given of the current monthly volume of traffic infringements that were
being processed. The presiding official in timated that a ‘figure’ could be provided
but that he would have to consult his colleagues , upon which he immediately
indicated that the information would not be supplied as it would not be ‘useful’ for
the tender. The City’s head of ICT infrastructure confirmed that the information
would not be provided. He pointed out that some of those who were in
attendance had previously provided the services which were on tender, and if
they considered the bid specifications they would be able to ‘come up with
something’ i.e. to put in a bid. He said t he City did not w ish to entertain the
request for information as it would delay the process.
10. At the conclusion of the session bidders were invited to submit any further
questions they might have , in writing. On 2 March 2022 Du Toit submitted a
4
detailed list of questions in relation to several aspects of the bid specifications. At
the end thereof he asked the City to indicate the ‘amount of mobile, fixed-site and
handwritten’ infringements which were currently being generated on a monthly
and/or annual basis, as this information would ‘significantly influence ’ the price
which would be submitted. In a note on the side, he said that it was the duty of
the invitee to ensure that the tender was not void for vagueness and that all
participants were placed on an ‘equal footing’.
11. On 22 March 2022 bidders who had attended the briefing were informed that the
bid specifications had been amended in some respects and. as a result , the
closing date would be extended to 13 April 2022.
12. On 16 March 2022 the applicant sent an email to City officials in which it pointed
out that a response to the questions which had been submitted by bidders had
not yet been provided. On the same day the City addressed a letter to all
prospective bidders in which it sought to supply the requisite answers. The letter
did not pertinently deal with the questions which had been posed by the applicant
in its list, or its request for information pertaining to the volume of traffic
infringements. The applicant noted this in a response which it sent the following
day, in which it enquired whether there was a reason for this and whether an
answer would be provided to it. The City never responded to this communication.
13. Notwithstanding the City’s failure to do so and its failure to provide any data
pertaining to traffic infringement volumes, the applicant nonetheless proceeded
to submit a bid before the closing date of 13 April 2022.
14. The first meeting of the BEC (which consisted of 9 officials from various
departments/sections of the municipality including the Metro Police Department,
Public Safety, Group Legal, and Group Strategic Supply Chain Management
(GSSCM)), took place on 5 May 2022, at which time it was noted that 3 bids had
been received, which had been opened in public on 13 April 2022.
15. The BEC then dealt with several preliminary issues before adjourn ing to the
following day, at which time it proceeded to go through the bids to determine
whether they were responsive i.e. whether they complied with the qualifying
criteria which had been stipulated. During this process it found that only Syntell’s
5
bid was properly compliant, and the bids of the remaining bidders were not , as
they had supplied copies of ICAS A license certificates for their equipment which
were not certified. As a result, they were treated as non-responsive and were
disqualified.
16. The BEC thereafter met on a further 5 occasions between 9 May and 23 June
2022 to consider various aspects and after attending a ‘live simulated’
demonstration of Syntell’s systems it concluded that the tender should be
awarded to it. At the instance of the Head: Group Internal Audit Services an
independent firm of attorneys, Prince Mudau & Associates, was commissioned to
conduct a probity assessment into whether the re had been compliance by the
BEC with the requisite legal prescripts during the evaluation process , and
whether the preferred bidder had been correctly selected. As part of their
assessment the attorneys reviewed the tender and bid documents. After doing so
they were satisfied that two of the bids had been correctly disqualified as non -
responsive, for their failure to fi le certified copies of the required licence
certificates.
17. After reviewing the process that had been followed in evaluating the remaining
bidder’s submission, they concluded that it had been correctly and fairly scored
by the BEC , and accordingly advised that it should proceed with its
recommendation that the tender be awarded to Syntell. The BEC met on 2
further occasions thereafter: on 7 November to consider the probity report a nd
again on 22 November 2022 , at which time it formally resolved to recommend
that the tender be awarded to Syntell.
18. Pursuant to this GCSCM gave notice that a meeting of the executive adjudication
committee (‘the EAC’) was to take place on 24 November 2022 for the purpose
of the adjudication, in public, of the award of the tender. To this end the BEC
provided a detailed report to the EAC in su pport of its recommendation that the
bid should be awarded to Syntell for its bid price of R177 .1 million odd. In the
report it confirmed that the other bidders had been disqualified because they had
not complied with the qualifying criteria , as they had not supplied certified copies
of their licence certificates.
6
19. After considering the report which had been submitted to it the EAC duly
resolved, on 2 December 2022 , to recommend that the tender should be
awarded to Syntell, and the Head: Public Safety in consultation with Group Legal
Services should be authorized to negotiate, conclude, and sign the necessary
service level agreement (‘SLA’) with Syntell. The Acting City Manager duly
accepted these recommendations and awarded the tender on the same day.
20. On 13 December 2022 the Group Head: GSSCM sent a letter of ‘regret’ to the
applicant’s tender email address advising it that its bid had been unsuccessful.
The applicant claims not to have received this notification and avers that it was
‘oblivious’ to the steps that were taken by the City prior thereto, in the process
leading up to the award, even though, as previously pointed out the adjudication
of the tender took place in public on 24 November 2022. The applicant avers that
it only heard about the award of the tender from a newspaper report that was
published on 22 December 2022 . According to it, at that stage it had ‘absolutely
no knowledge of anything concerning’ its bid . Notably, in its founding affidavit it
did acknowledge that it was aware of the announcement that was made when
the bids were opened on 13 April 2022 that Syntell’s bid was R 177 109 884,
which was lower than its bid of R 190 720 851. As the 3 rd bidder’s announced
price was R508.1 million odd the applicant must have known that as Syntell’s bid
was the lowest of the three it was therefore in ‘pole position’ to be awarded the
tender. Curiously, despite this the applicant made no attempt to communicate
with the City thereafter, in order to ascertain what was going on and whether the
tender had been awarded to Syntell. Instead, it remained s upine until publication
of the report in the newspaper, in which it was reported not only that the tender
had been awarded to Syntell, but that it was in the process of being
implemented.
21. On the same day, 22 December 2022, the applicant’s attorney addressed a letter
to the City Manager in which he sought confirmation that the tender had been
awarded to Syntell and requested certain information , including copies of
Syntell’s bid and the decisions of the BSC, BEC and EAC.
7
22. The City responded o n 24 December 202 2 in a letter in which it confirmed that
Syntell had been awarded the tender and pointed out that the decision to
recommend the award to it was made at the adjudication which had taken place
in public a month earlier. It also indicated that an SLA had been entered into with
Syntell the same day.
23. In response to a request from applicant’s attorney on 10 January 2023 the City
indicated that it was not prepared to halt the implementation of the SLA , as this
would be detrimental to residents and would impact negatively on service
delivery.
The applicant’s case
24. The applicants entire 40-page founding affidavit was devoted to setting out its
case for urgent interim relief (whereby immediate implementation of the award
was to be interdicted pending the outcome of the review), and the requirements
for such relief.
25. The applicant contended that its clear alternatively prima facie right to procedural
fairness in terms of s 6(2) of the Promotion of Administrative Justice Act1 (‘PAJA’)
had been infringed in a variety of ways. The City had allowed Syntell to compete
against other bidders with an unfair advantage, as the bid specifications favoured
it over other bidders. The City had treated the applicant unfairly and in a biased
manner during the course of the briefing, as a bidder who w as seeking merely to
delay the process, when it had fairly sought information pertaining to infringement
volumes. The City’s failure to provide the information because it thought it was
unimportant or irrelevant resulted in it acting in an arbitrary fashion and taking
irrelevant considerations into account . And n ot providing the applicant with the
infringement ‘numbers’ had resulted in an irrational process which undermined
the constitutional requirements of transparency, competitiveness, fairness,
equitableness and cost effectiveness.
26. No case was set out or pleaded by the applicant in respect of the principal relief
which was sought in terms of part B of the notice of motion i.e. the review.
Notwithstanding this deficiency a month later the applicant filed a supplementary
1 Act 3 of 2000.
8
founding affidavit in which it sought to supplement the grounds of review it
claimed to have set out in its founding affidavit, by the addition of a further
ground which it said had become apparent after it had considered the record
which had been filed by the City, in terms of rule 53. In this regard i t said that it
was evident from the copies of the licence equipment certificates which had been
filed that those which belonged to Syntell had also not been certified, contrary to
the BEC minute s of 6 May 2022. Thus, Syntell had also been non -responsive
and should also have been disqualified.
The respondents’ case
27. In its answering affidavit the City’s Acting Group Head: Legal Services contended
that the review had no basis in law and the City had scrupulously followed the
requisite legal prescripts.
28. He detailed the process that had been followed by the City and emphasised that
the tender sought to introduce a new model for the provision of the required
services whereby the equipment , including both hardware and software , was to
be acquired by the service provider and not the City, which would effectively
remunerate the provider for the services which were rendered on a monthly
basis, in contrast to the previous model where its remuneration was based on the
number of infringements which were captured and processed.
29. He explained what transpired at the compulsory briefing session and how bidders
were given an opportunity to submit any further questions they may have had , in
writing. He pointed out that it had been made clear to the applicant at the briefing
that the infringement information it sought would not be provided as it was
considered to be irrelevant , and that is why the City did not respond to the
applicant’s request for the selfsame information in its email of 16 March 2022 . In
requesting this information for the 2nd time the applicant clearly still laboured
under the misapprehension that traffic infringement volumes were critical for the
provision of the service s which w ere the subject of the tender. This was not
correct, as the tender envisaged a complete shift from the former operating
model which had been followed in previous tenders.
9
30. The Acting Head reiterated that when the bid was evaluated by the BEC it was
apparent that both the applicant and a 2 nd bidder had failed to comply with the
qualifying criteria as they had failed to submit certified copies of the licence
certificates for their equipment , and they had therefore been correctly and
properly disqualified on the grounds that the ir bids were non -responsive. As to
the contention, in the supplementary founding affidavit , that Syntell should also
have been disqualified on this basis as it s certificates were also not certified , he
explained that the re had been a mix -up in the filing of the record , which had
caused confusion. The City’s attorneys had been provided by City officials with
files containing hard copies of the bid documents. As the files had gone through
various processes and committees for evaluation and adjudication , they had
been jumbled up, and the papers had not been properly ‘repackaged’ in the
correct order in which they had originally been submitted , before they were
provided to the attorneys, and in certain instances the contents of the files were
incomplete. It appeared that, as the licence certificates were all issued by ICASA
and bore the names of common equipment providers, when compiling the rule 53
record the clerks had simply made copies of one of the sets of certificates which
had been submitted (by a non -compliant bidder), instead of copies of the actual
certificates which had been lodged by each of the 3 bidders.
31. After a query was raised about the certificates the City’s attorneys attended on
the City’s offices where they were furnished with the original , complete bids
which had been lodged by the 3 bidders , in their proper order , together with
digital copies which had been made thereof. From these documents the y were
able to draw the actual certificates which had been filed by each bidder , which
were then filed as a supplementary record , on 6 March 2023. From these
documents it was clear that the ICA SA certificates which had been filed by
Syntell had been certified, whereas those which had been filed by the other 2
bidders had not. In support of these averments reference to the actual certificates
that were filed in the supplementary record was made in confirmatory affidavits
which were lodged by the City’s attorneys.
10
32. As to the applicant’s principal complaint that it had not been provided with traffic
infringement statistics the Acting Group Head: Legal Services restated that whilst
the previous model was based on a fee per infringement that was captured , the
tender proposed a service contract in terms of which a flat monthly service fee
would be paid by the City, irrespective of the number of infringements captured
and processed, or the fines generated pursuant thereto. Thus, as far as the City
was concerned the information that was sought by the applicant in relation to the
volume of infringements was unnecessary and irrelevant.
33. In the answering affidavit which Syntell filed, it too contended that historic traffic
infringement data was irrelevant for the tender and its pricing , although it could
serve as an estimation of future traffic infringement volumes. It pointed out that
during 2 of the 3 years between 2018 and 202 1 when it had been the incumbent
service provider , traffic volumes and infringements had been significantly
depressed because of the COVID -19 pandemic, and the number of traffic
infringements during this period could accordingly not serve as an accurate basis
to forecast infringement volumes for the following 3 years. If anything, the data
for the previous 3 -year period up to 2018, when the applicant was the service
provider, would provide a more accurate and realistic picture of the volume of
infringements that could be expected for the 2022 -2025 period. What further
skewed the potential value of any historic data was that th e tender specifications
envisaged the deployment of a significantly higher number of infringement
‘capturing devices’ than had previously been deployed. In this regard , as at May
2021 only 33 ‘speed’ cameras (fixed and mobile) were deployed whereas the
tender envisaged the deployment of 110 such cameras. In addition, the tender
specifications provided for an additional 6 average -speed-over-distance
cameras, 1500 handheld camera units, and 5 portable weighbridge
instruments/devices, the use of which would result in a significant increase in the
volume of recorded infringements for the 2022 -2025 period . The tender
specifications also required new service modules to be supplied as part of the
back-office services, which pertained to statutory contraventions, accidents and
impounds, which were not dependent on traffic volumes.
11
34. Lastly, Syntell submitted that if the applicant had an issue with the lack of
infringement in formation which it had requested it should have launched a
challenge in this regard at the time i.e. in February -March 2022 and should not
have waited until after the tender had been awarded in December 2022 , 4
months later than the 6 month s/180 days period provided for in PAJA, to do so.
Its review was accordingly out of time.
The applications to strike out
35. Syntell made application to strike out certain material in the applicant’s replying
affidavit, on the grounds that it had sought to make out a new case in reply. In the
alternative, it contended that it should be allowed to file a further affidavit in
relation to traffic infringement statistics which , it said, were publicly available in
annual reports which were filed by the Road Traffic Infringement Agency (‘RTIA’),
from 2015 onwards. The statistics for the 2020 -2021 year were contained in a
report dated 31 October 2021.
36. The applicant opposed the striking out application and the introduction of a
further affidavit in relation to the RTIA reports, on the basis that they were not
part of the rule 53 record , and it similarly made application to strike the further
affidavit out. It contended that any new material which was contained in its
replying affidavit was occasioned by the contradictory and deficient
supplementary rule 53 records which had been filed by the City on 14 and 21
February 2023, and 6 March 2023, and was aimed at responding thereto.
37. At the commencement of argument, I was informed that the parties had agreed
to withdraw their respective striking applications on condition that both the
applicant’s replying affidavit and the respondent’s further affidavit were before the
Court.
An assessment
38. Section 217(1) of the Constitution 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. The express inclusion of
these principes is aimed at safeguarding the integrity of state procurement
12
processes, the prudent use of public resources and the prevention of corruption.2
These constitutional imperatives are reiterated and given substance to in several
legislative instruments, including the Preferential Procurement Policy Framework
Act, 3 the Public Finance Management Act, 4 the Local Government: Municipal
Systems Act5 and the Local Government: Municipal Finance Management Act 6
and various regulations which have been promulgated in terms thereof.7
39. In Tetra Mobile8 the S upreme Court of Appeal emphasised the importance of
fairness and transparency and how these values ‘permeate’ the entire tender
process.
40. In assessing whether the award of a tender has been fair the primary focus is on
the process and not on the substantive outcome i.e. the result. 9 The purpose of
having a fair process is to arrive at the ‘best’ outcome.10
41. Thus, fairness is a procedural requirement which is aimed at ensuring the ‘even’
treatment of all bidders to a tender. 11 As they are competitors, they are required
to be treated equally. 12 In Firechem 13 the SCA held that bidders should all be
entitled to tender for the ‘same thing’ and c ompetitiveness is not served by only
one or more of them knowing what the ‘true subject’ of the tender is.
42. Whether a tender process has been fair is a matter that must be de termined on
the facts of each case. 14 The facts will determine whether any ‘shortfall’ in any of
the constitutional requirements listed in s 217 of the Constitution establishes
2 Bolton The Law of Government Procurement in South Africa (2007) at 57.
3 Act 5 of 2008.
4 Act 1 of 1999.
5 Act 32 of 2000.
6 Act 56 of 2003.
7 These include the Preferential Procurement Regulations promulgated in terms of the PPFA, the Treasury
regulations promulgated in terms of the PFMA, and the Municipal Supply Chain Management Regulations
promulgated in terms of the MFMA.
8 Tetra Mobile Radio (Pty) Ltd v MEC, Department of Works & Ors 2008 (1) SA 438 (SCA) para 10.
9 AllPay Consolidated Investment Holdings (Pty) Ltd & Ors v Chief Executive Officer, South African Social
Security Agency & Ors 2014 (1) SA 604 (CC) para 42.
10 Id, para 24.
11 Id.
12 Id, para 40.
13 Premier, Free State & Ors v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA) para 30.
14 Metro Projects CC & Ano v Klerksdorp Local Municipality & Ors 2004 (1) SA 16 (SCA) para 13.
13
procedural unfairness, irrationality, unreasonableness, or any of the other review
grounds set out in PAJA.15
43. The applicant contends that even though the tender is predicated on an
operating model which differs from the one which was previously in place, the
information which it sought pertaining to traffic infringement volumes was still
relevant for the purpose of the bid it wished to submit. The fact that the
successful bidder would no longer be remunerated on a per infringement basis
and would instead be paid a fixed monthly fee to provide the services did not
render such information meaningless. The information was necessary for the
applicant so that it could properly price its bid, given that it would be required to
acquire the equipment specified in the bid specifications. It needed the
infringement statistics as these would enable it to arrive at a determination of
what it should charge as a monthly fee in order not only to cover its running and
operational expenses but also to make a reasonable profit. The greater the
number of infringements the higher the running costs (including staff, software
and printing costs).
44. The historic data which it had in respect of traffic infringements during the time
that it had been the service provider, was 5 years old. It needed the current data
as the COVID -19 pandemic had ‘radically altered socio -economic patterns of
movement’, and had vastly reduced traffic volumes, as many people had
resorted to working from home and it was difficult to know whether drivers had
returned to pre-COVID patterns.
45. I have my doubts about whether the applicant really required or needed the
information it sought in relation to the current traffic infringement volumes and
whether it was materially prejudiced in any way, by not having them , at the time
when it put in its bid. I say this because despite not having this information the
bid price which the applicant put up was , remarkably, only R 13.6 million or 7.6%
more than that which was put by Syntell. Given the numbers involved that
indicates a very accurate pricing, which was very close to that which Syntell
15 AllPay n 9 para 43.
14
adopted, with the benefit of up -to-date information, as the incumbent service
provider.
46. Be that as it may, for the purposes of the judgment I accept the applicant’s
submissions as to why it required the information it sought. That said, it does not
necessarily follow that the City’s refusal/failure to provide the information qualifies
as unfairness, so as to allow for the process to be set aside on review , on one or
more of the established grounds set out in PAJA, on which the applicant seeks to
rely.
47. It is not only the applicant’s simple complaint of unfairness that is to be put into
the scale and weighed. As the respondents point out , annual traffic infringement
statistics were publicly available from the RTIA, and its latest report of October
2021 reflected figures for the 2020 -2021 years. The applicant does not deny that
it could have obtained these statistics from the RTIA reports and it does not say
whether it did, or did not, do so and if not, why not. In addition, the applicant has
not provided any explanation for why, in the event that it required
statistics/figures from the City instead of, or in addition to those from the RTIA, in
order to submit a properly competitive bid, it failed either to take any steps to
compel the City to provide or disclose them or to challenge the tender
specifications, or the process whereby the matter was put out to tender without
such information being supplied, before submitting its bid.
48. As was pointed out by in Airports Company 16 where a bidder considers that a
decision to go out to tender was taken was on terms which were unlawful or
unconstitutional, in that they were in breach of the prescripts of s 217 of the
Constitution, or the tender specifications are assailable on the grounds that they
are unlawful or unfair, or irrational or unreasonable , they may be challenged on
review. In SMEC17 Rogers J expressed the view ( obiter) that in such cases it is,
in principle, undesirable that a bidder should be at liberty not to do so and should
take a chance in the hope that it w ill be awarded the tender, and thereby keep ‘in
reserve’ an attack on the validity of the tender or its specifications, should it be
16 Airports Company South Africa SOC Ltd v Imperial Group Ltd 2020 (4) SA 17 (SCA).
17 SMEC South Africa (Pty) Ltd v The City of Cape Town & Ors (WCD 8277/21,14097/21) [2022] ZAWCHC 131
para 92.
15
unsuccessful in winning the bid. These comments were endorsed en passant by
the Gauteng full court in IN2IT Tech.18
49. In my view in such circumstances unless the process can otherwise be found to
have been unlawful a bidder should not be allowed to participate in a tender only
to challenge it when the decision goes against it. I say this because , to my mind,
the need to be fair is a requirement of the process that cuts both ways: it applies
not only to the state organ which puts out a tender but also to the bidders who
participate therein. If it was unfair for the applicant not to have been in
possession of the current traffic infringement statistics at the time when the
tender was advertised it was equally unfair towards its competitors and the City
for it to have acquiesced in the tender process instead of challenging it on this
basis, and only seeking to raise the unfairness after the award went against it. In
my view, bidders who adopt such a strategy must not be allowed to raise
unfairness as a ground by way of a subsequent challenge which is brought more
than the PAJA requirement of 180 days i.e. 6 months after the time when the y
first became aware of the unfairness in the basis of a tender or its specifications.
50. I share the respondent’s sentiments that the time for raising a challenge based
on unfairness in relation to the playing field on which bidders are to compete , is
when the tender is advertised , and in my view the applicant’s failure to take up
the challenge at the time is good and sufficient reason not to allow it to do so
now. Insisting that a bidder should raise any issue it may have pertaining to an
alleged unfairness, before a tender process unfolds, will ensure that it is resolved
for the benefit of all bidders before they gird up and compete with one another ,
thereby avoiding the incurring of unnecessary expense and effort in relation to
the preparation and submission of bids, their laborious evaluation and
adjudication by committees of state officials, and a subsequent legal challenge
after the tender has been awarded and is in the process of being implemented ,
when services are being delivered in terms thereof . The prejudice which is
suffered by all parties (including taxpayers ), when a legal challenge is brought
after a tender has been awarded, which may result in the award thereof being set
18 IN2IT Tech (Pty) Ltd v Gijima Holdings (Pty) Ltd & Ors [2023] ZAGPJHC 478 para 39.
16
aside, is manifestly greater than any prejudice which might eventuate were the
challenge to be brought to the basis of the proposed tender or its specifications,
before it is awarded. Insisting that any challenge to the basis of a tender or its
specifications on the grounds of unfairness is brought at the time when it is
advertised will promote and foster adherence to the other constitutional values of
transparency, cost-effectiveness, competitivity and equitableness, as required by
s 217 of the Constitution. Allowing it to be brought after a tender has been
awarded defeats the objective of ensuring that effect is given to these values
during the process.
Conclusion
51. For these reasons the application must fail. I point out, in closing, that although
other grounds of review were raised in the founding papers (which were largely
procedural in nature) they were rightly not proceeded with during argument, and
it is accordingly not necessary for me to traverse them.
52. As far as costs are concerned the applicant conceded that, save for one caveat,
there was no reason why, in accordance with accepted principles, these should
not follow the event as this was essentially a commercial dispute and not an
instance where the Biowatch exception applied.
53. Both the applicant and Syntell complained that the City’s failure to file a proper
record at the outset as required in terms of rule 53 had increased costs
unnecessarily, as it only managed to have a complete and true record before the
Court on its 3 rd attempt, in March 2023, when it filed a further supplementary
record. As a result of the City’s remissness both parties had lodged unnecessary
interlocutory striking out applications - Syntell in response to the applicant’s
additional contentions as to the state of the record in its replying affidavit, and the
applicant in response thereto , in respect of its alternative prayer for the
admission of an additional affidavit (albeit that it dealt primarily with the RTIA
reports, a new issue which had not been dealt with in Syntell’s answering
affidavit). Both parties contended that the City should pay for its failures by being
mulcted for the costs of these applications. The City’s counsel conceded that it
17
had made a hash, initially, of its duty to file a proper record which had increased
the costs unnecessarily.
54. In the circumstances, I make the following Order:
54.1 The application for the review of the decision by the City of Johannesburg
on 2 December 2022, to award tender A907 for the provision of advanced
law enforcement and ‘crash’ management services for a period of 3 years,
to the second respondent, is dismissed.
54.2 Save for the costs referred to in paragraph 54. 3 the applicant shall be
liable for the costs of the application, including the costs of two counsel
where so employed.
54.3 The first respondent shall be liable for the costs of the striking out
applications which were lodged by the applicant and the second
respondent, including the costs of two counsel where so employed.
M SHER
Judge of the High Court
(Signature appended digitally)
Appearances:
Applicant’s counsel: LW Ackermann
Applicant’s attorneys: Pepler O’Kennedy (Tygervalley)
First respondent’s counsel: F Nalane SC & N Ralikhuvhala
First respondent’s attorneys: Mncedisi Ndlovu & Sedumedi (Johannesburg)
Second respondent’s counsel: M O’Sullivan SC & T Sarkas
Second respondent’s attorneys: Hayes Inc (Cape Town)