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[2022] ZAECMKHC 59
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Tekoa Consulting Engineers (Pty) Ltd v Alfred Nzo District Municipality and Others (1284/2021) [2022] ZAECMKHC 59 (6 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO. 1284/2021
In
the matter between:
TEKOA
CONSULTING ENGINEERS (PTY LTD
Applicant
and
ALFRED
NZO DISTRICT MUNICIPALITY
First Respondent
THE
MUNICIPAL MANAGER:
ALFRED
NZO DISTRICT MUNICIPALITY
Second Respondent
ZINZAME
CONSULTING ENGINEERS / CYCLE
PROJECTS
/ UBUNTU BAM JV
Third Respondent
EMLANJENI
JV
Fourth Respondent
OLON
CONSULTING ENGINEERS JV
IPM
PLANT
HIRE
Fifth Respondent
BM
INFRASTRUCTURE JV MAGNACORP
Sixth Respondent
JUDGMENT
LAING
J
[1]
This is an application for leave to appeal
against the judgment handed down in relation to the award of a tender
for the appointment
of a panel of service providers for the planning,
design and construction of Water Services Infrastructure Grant
(‘WSIG’)
funded projects for the Alfred Nzo District
Municipality. The parties will be referred to in the same manner as
their citation
in the main application.
[2]
The applicant had sought an order that,
inter
alia
, reviewed and set aside the decision to
refuse to appoint it to the panel. It had also sought alternative
relief that the decision
to appoint the third to sixth respondents be
reviewed and set aside and that the decision be referred back to the
Bid Evaluation
Committee (‘BEC’) and the Bid Adjudication
Committee (‘BAC’) for reconsideration.
[3]
In its judgment, this court ordered,
inter
alia
, that: the tender process be declared
unlawful; the first respondent’s decision to disqualify the
applicant’s bid be
reviewed, declared unlawful, and set aside;
and the second respondent’s decision to award the tender to the
third, fourth,
fifth and sixth respondents be reviewed, declared
unlawful, and set aside.
[4]
The first and second respondents’ grounds
for application for leave to appeal were to the effect that the court
erred in deciding
the issue pertaining to the formulation of the
tender because no relief was sought by the applicant in that regard.
Consequently,
the court ought to have found that there had indeed
been unreasonable delay on the part of the applicant. Finally, the
court ought
to have found that the applicant’s failure to have
submitted proof of registration with the Construction Industry
Development
Board (‘CIDB’) meant that its bid did not
satisfy the definition of an acceptable tender.
[5]
The third, fourth, fifth and sixth respondents’
grounds were, in essence, the same as those raised by the first and
second
respondents.
[6]
The court is of the view that the findings made
with regard to the lawfulness of the tender process did not amount to
findings on
any decision with regard to the actual formulation of the
tender itself. That decision was a separate matter entirely and did
not
form the subject of these review proceedings. Instead, the manner
in which the first respondent applied the preference point system
gave rise to one or more of the grounds of review listed under
section 6(2) of the Promotion of Administrative Justice Act 3 of
2000
(‘PAJA’) and determined, ultimately, the legality of the
tender process itself. This in turn led to the finding
that the
decision to award the tender to the third, fourth, fifth and sixth
respondents was indeed unlawful, as contended by the
applicant.
[7]
The question of unreasonable delay must be
confined to the time period applicable to the institution of review
proceedings in relation
to the decision to award the tender to the
third, fourth, fifth and sixth respondents. The decision with regard
to the actual formulation
of the tender itself was not the subject of
the applicant’s challenge. The 180-day period contemplated
under section 7(1)
of PAJA only began from the date upon which the
applicant had been informed or had become aware of the decision to
award the tender
and the reasons therefor or upon which it might
reasonably have been expected to have acquired such knowledge. The
court found
that the applicant was within the applicable time period.
[8]
The specifications and conditions of the tender
did not indicate, clearly and unambiguously, that the submission of
proof of registration
with the CIDB was a mandatory requirement. Any
suggestion to that effect was vague at best. Consequently, the
applicant’s
failure to have done so did not mean that it had
failed to submit an acceptable tender, as defined in terms of section
1 of the
Preferential Procurement Policy Framework Act 5 of 2000
(‘PPPFA’).
[9]
The respondents’ argument that the
provisions of the Construction Industry Development Board Act 38 of
2000 (the CIDB Act’)
prevented the applicant from participating
in the tender ignores the broad nature of the goods and services
required for the project
in question. There was nothing to have
prevented the applicant from having submitted a bid. Whether it was
permitted to supply
or whether it was capable of providing the goods
and services required was an aspect of the functionality of its bid,
not its responsiveness
to the specifications and conditions of the
tender. The respondents have incorrectly conflated the two concepts.
[10]
Overall, the court has considered the grounds of
appeal and the submissions made by the parties in terms of their
heads of argument
and at the hearing itself. Having taken the above
into account, including the test for leave to appeal as summarised by
counsel
for the respondents, the court respectfully stands by the
findings made and the relief granted.
[11]
In the circumstances, the following order is
made:
(a)
the application for leave to appeal is dismissed;
and
(b)
the respondents are liable for the costs of the
application, jointly and severally.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCE
Counsel for the
applicant:
Adv Nyangiwe, instructed by Moletsane PN Attorneys Inc, East London.
Counsel
for the 1
st
and 2
nd
respondents:
Adv Bodlani SC, instructed by Funani Attorneys, Mthatha.
Counsel
for the 3
rd
to 6
th
respondents:
Adv Tshikila, instructed by Gilindoda Attorneys, Makhanda.
Date
of hearing:
31 August 2022
Date
of delivery of judgment:
06 September 2022