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[2021] ZAGPPHC 390
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City of Tshwane Metropolitan Municipality and Others v New GX Enviro Solutions and Logistics Holdings (Pty) Ltd (53694/20) [2021] ZAGPPHC 390 (21 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: 53694/20
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
21/06/2021
In
the matter between:
CITY OF TSHWANE
METROPOLITAN MUNICIPALITY
ACTING MUNICIPAL
MANAGER – CITY OF TSHWANE METROPOLITAN MUNICIPALITY
THE ADMINISTRATOR –
CITY OF TSHWANE METROPOLITAN MUNICIPALITY
First applicant
Second applicant
Third
applicant
and
NEW
GX ENVIRO SOLUTIONS AND LOGISTICS HOLDINGS (PTY) LTD
Respondent
JUDGMENT
van
der Westhuizen, J
[1]
The applicants seek to review certain of the first applicant’s
(City of Tshwane
Metropolitan Municipality) decisions on the
principle of legality. The relevant decisions led to the appointment
of the respondent
to render waste processing services in respect of
recyclable and non-recyclable household and business waste collected
from two
identified regions within the first applicant’s
jurisdictional area. The second and third applicants are
functionaries of
the first applicant.
[2]
The bases upon which the applicants seek to review the first
applicant’s said
decisions are summarised as follows:
(a)
The respondent’s appointment in
respect of recyclable household and business waste from the
stipulated two regions was contrary
to the provisions of section 217
of the Constitution of the Republic of South Africa of 1996;
(b)
The respondent’s aforesaid
appointment was irrational under the particular circumstances;
(c)
The deviation from the relevant prescripts
to enable the respondent’s aforesaid appointment was irrational
and unlawful.
[3]
It is common cause that where an organ of state seeks to review its
own decision,
it may only do so under the principle of legality and
not in terms of PAJA.
[1]
In this
review the constitutionality of the first applicant’s
decisions, sought to be impugned, is to be determined.
[4]
There are further issues relating to the delay in launching this
review, in the context
of the dates of the decisions sought to be
reviewed, and the alleged tardiness on the part of the first
applicant in finalising
its papers to be considered. In the latter
regard, it is the late filing of a replying affidavit and heads of
argument that require
consideration. The respondent contends that
those issues should be considered as a relevant factor when
determining whether the
review should be granted and the
consequential remedy that should then follow.
[5]
The relevant factual matrix upon which this review is premised, is as
follows:
(a)
The respondent drafted a proposal proposing
the establishment of a sorting, recycling and composting facility at
the Kwaggasrand
landfill site which it presented to the first
applicant;
(b)
On 6 March 2015, a notarial lease agreement
was entered into by the first applicant’s erstwhile City
Manager and the respondent.
The lease agreement was in respect of
certain adjacent land to the Kwaggasrand Landfill Site for a period
of 15 years. That agreement
was entered into following on the
proposal made on behalf of the respondent to the first applicant.
(c)
The said lease agreement only made
provision for the recycling of recyclable waste from the two
identified and stipulated regions.
(d)
In respect of non-recyclable waste, clause
10.6 of the lease agreement provided as follows:
“
The
Lessor may dispose of non-recyclable waste at the Property, such
non-recyclable waste will be compacted, transported in bulk
and
disposed of by the Lessee at a licensed municipal landfill site on
the terms and subject to the conditions to be determined
by the
Parties.”
(e)
The first applicant and the respondent
further agreed, in the lease agreement, that the first respondent
would, at its own cost,
upgrade the existing recycling facility on
the said land into a Multi-Purpose Waste Recycling Facility over 3
phases.
(f)
A
report was tabled before the Executive Acquisition Committee (EAC) on
19 November 2015. The objective of that report was to propose
the
procurement of a waste transfer station service from the respondent
in respect of all the non-recyclable household and business
waste
received from the said identified and stipulated regions. The
intended proposed procurement was to be done in terms of
regulation
36
of the
Municipal Supply Chain Management Regulations
[2]
and which was subject to a process contemplated in section 33 of the
Municipal Finance Management Act, 56 of 2003 (the MFMA). The
said
proposal originated from the respondent who was apparently alive to
an expected crisis relating to the eminent closure of
a particular
landfill site.
(g)
After consideration of the report and
apparent comments from various relevant departments within the first
applicant, the EAC resolved
that:
(i)
A deviation in terms of regulation 36(1)(a)(v) of the Municipal
Finance Management
Regulations be allowed from the normal procurement
process and authorised the City Manager accordingly;
(ii)
The respondent is appointed to provide the
transfer station service for the two said regions (albeit that the
one region was stated
to refer to a different region from that
referred to in the lease agreement);
(iii)
The respondent’s appointment to be
effective from the date of commercial operation of that facility up
to March 2030, as aligned
with the approved lease period, subject to
the normal approval in terms of section 33 of the MFMA;
(iv)
The appointment to be linked to the lease
period for 15 years, effective from March 2015.
(h)
A further resolution was passed on or about
23 June 2016 amending the resolution of 19 December 2015 in three
respects: rectification
of the incorrect region referred to; to
reduce the duration of the respondent’s appointment to a period
of three years pending
the completion of the section 33 process; and,
to impose certain conditions upon the respondent’s appointment.
The appointment
of the respondent for the three years remained
predicated on a deviation in terms of regulation 36 and further
remained in respect
of non-recyclable waste. The stated purpose of
the EAC’s decisions was to allow for terms and conditions to be
agreed upon
that would provide for the respondent being in a position
to dispose of non-recyclable waste as was contemplated in clause 10.6
of the notarial lease agreement recorded earlier.
(i)
In conformity of the EAC resolution of 19
November 2015, the City manager dispensed with the normal procurement
process and issued
an amended letter of appointment of the respondent
in terms of the resolution of 23 June 2016.
(j)
Following on the amended letter of
appointment of the respondent, a service agreement was entered into
on or about 10 August 2016
between the first applicant and the
respondent. The terms of that service agreement (and contrary to the
said EAC resolutions)
provided for the respondent to render waste
processing services to the first applicant for a period of three
years in respect of
all non-recyclable and recyclable household and
business waste collected from the said two regions. Furthermore, the
service agreement
provided that the respondent would be paid a
consideration for its service calculated on a waste disposal fee
equal to the refuse
removal portion of the bulk tariff less 10% as
per the first applicant’s prevailing refuse service schedule.
The service
agreement further contained onerous provisions concerning
tonnage and rates concerning recyclable waste.
(k)
It is common cause that the respondent’s
attorney drafted the service agreement on the respondent’s
instructions.
(l)
The first applicant, needless to say,
repeatedly did not comply with the delivery of the service
agreement’s stipulated tonnage
of recyclable waste. That
repeated failure on the part of the first applicant, resulted in the
respondent considering that conduct
of the first applicant as a
breach of the service agreement and subsequently cancelled that
agreement on or about 1 March 2019.
(m)
In furtherance of the said cancellation,
the respondent claimed damages from the first applicant, which claim
was subject to arbitration
proceedings. The first applicant in its
defence and counterclaim challenged the legality of the aforesaid
actions, on the part
of the City Manager, that deviated from the EAC
resolutions. That challenge was, by agreement between the parties, to
be determined
in a review application to be brought before this
court. That review application is the present one.
[6]
The first applicant, as a state organ, is obliged to follow statutory
prescripts.
The primary statutory prescript being the Constitution
and in particular section 217 thereof. That section provides:
“
1.
When an organ of state in the national, provincial or local sphere of
government, or
any other institution identified in national
legislation, contracts for goods or services, it must do so in
accordance with a system
which is fair, equitable, transparent,
competitive and cost-effective.
2.
Subsection (1) does not prevent the organs of state or institutions
referred
to in that subsection from implementing a procurement policy
providing for –
a.
Categories of preference in the
allocation of contracts; and
b.
The protection or advancement of
persons, or categories of persons, disadvantaged by unfair
discrimination.
3.
National legislation must prescribe a framework within which the
policy referred
to in subsection (2) must be implemented.”
[7]
The afore quoted passage of section 217 of the Constitution is given
effect in sections
111 – 119 of the MFA, read with the
Municipal Supply Chain Regulations (the MSCR). Further in this
regard, section 111 of
the MFMA prescribes that each Municipality and
each Municipal Entity must have and implement a supply chain
management policy.
The regulations promulgated in terms of the MFMA
prescribe the framework within which the policy referred to in
section 217(2)
of the Constitution must be implemented.
[8]
Regulation 2(3) of the MSCR stipulates that no municipality or
municipal entity may
act in a manner that is not in accordance with
its supply chain management policy when procuring goods or services.
However, that
supply chain management policy is to adhere to the
prescripts of section 217 of the Constitution.
[9]
The first applicant had, as required by section 111 of the MFMA and
the MSCR, a supply
chain policy in place that guided the first
applicant in the procurement of goods and services.
[10]
It is trite that when an organ of state procures goods or services
contrary to the prescriptions
of section 217 of the Constitution,
such procurement is constitutionally invalid and hence unlawful.
[3]
[11]
Furthermore, it is trite that the procurement of goods and services
by an organ of state is an
exercise of public power and a performance
of a public function. Accordingly, that decision to procure goods or
services is to
be rational to pass constitutional muster.
[4]
[12]
The test in respect of determining the rationality of the decision
was stated in
Albutt
v Centre for the Study of Violence and Reconciliation et al
[5]
to be that the courts are obliged to examine the means selected to
determine whether they are rationally related to the objective
sought
to be achieved. If it is found that the means, objectively
considered, are not so related, they fall short of the standard
demanded by the Constitution. It would thus be constitutionally
invalid.
[13]
It is trite that regulation 36 of the MSCR permits a state organ to
deviate from the normal (i.e.
the prescribed) tendering processes in
certain circumstances. In that regard, compliance with the
requirement of competitive bidding
may be excused. Regulation
36(1)(a) provides:
“
(1)
A supply chain management policy may allow the accounting officer-
(a)
to dispose with the official
procurement processes established by the policy and to procure may
required goods or services through
any convenient process, which may
include direct negotiations, but only;
(i)
in an emergency;
(ii)
if such goods or services are
produced or available from a single provider only;
(iii)
for the acquisition of special works
of art or historical objects where specifications are difficult to
compile; or
(iv)
acquisition of animals for zoos; or
(v)
in any other exceptional case where
it is impractical or impossible to follow the official procurement
processes;”
[14]
The EAC’s decision to deviate from the normal procurement
processes was premised upon the
respondent being an alleged sole
provider in view thereof: that the respondent was “on-site”;
and had been approved
for a long-term lease with the first applicant.
This view was contained in the aforementioned report of 19 November
2015. Reliance
was placed upon the provisions of regulation
36(1)(a)(ii) of the MSCR.
[15]
It is to be noted and recorded that the respondent, in a written
confirmation by itself, was
said to be a sole provider for a transfer
station service that was required, induced the first applicant to
deviate from the normal
procurement processes. No market research was
undertaken by the first applicant in that regard. The document
recording the issue
of sole provider for the required services was
not traceable from the first applicant’s records. The
respondent, who authored
the document, un-obligingly, did not supply
a copy thereof in these proceedings.
[16]
There is a dearth of authority in respect of single-source
procurement. However, in this regard
Bolton
[6]
states that:
“
Of
all the procurement methods, however, single-source procurement has
the greatest potential to defeat compliance with all the
principles
in section 217(1) of the Constitution, i.e. competitiveness,
cost-effectiveness, equity, fairness and transparency.
It is
important, therefore, for proper safeguards to be in place.”
[17]
It is submitted on behalf of the first applicant that when
considering the deviation from the
normal procurement processes on
the premise of regulation 36(1)(a)(ii) of the MSCR, three reasons
arise why the conclusion by the
EAC that the respondent was a sole
provider of the required services of a transfer station service, was
irrational.
[18]
The first reason advanced relates to the reliance by the EAC on the
respondent’s self-confirmation
of being a sole provider for the
services required, without conducting an unbiased market analysis to
confirm the position. The
second reason relates to the EAC’s
reliance on the respondent enjoying a 15 years lease of the property
on which the transfer
station services would be conducted, and was
on-site. In this regard, it was submitted that those facts are
irrelevant, as it would
amount to the tailoring of a tender to suit
the strength of a particular provider.
[7]
Thirdly, it was submitted, and it is common cause, that at the time
when the deviation decisions were made, the initial multi-purpose
recycling facility was not yet built and/or in operation. Building
thereof only commenced in June 2016. For that reason, it was
submitted that the respondent could not have been a sole provider of
the services required.
[19]
The aforementioned facts upon which the reasons for the irrational
decisions were premised, were
not disputed by the respondent.
[20]
It follows that the EAC’s reasoning was seriously flawed.
[21]
Considering the peremptory provisions of section 217 of the
Constitution and the peremptory provisions
of regulation 2(3) of the
MSCR, the reliance upon the provisions of regulation 36(1)(a)(ii) of
the MSCR by the first applicant
bears close scrutiny.
[22]
The respondent bemoans the fact that the applicants have not put
forward all relevant documentation
and had not provided “first
hand” affidavit evidence by specific persons who were allegedly
privy to the decisions
to be impugned. It is common knowledge that
the City of Tshwane Metropolitan Municipality recently endured a
chequered history
in its governance of the municipality. There were
changes in the political governance and it was further subjected to
so-called
administration. The latter was the subject of litigation to
re-instate the properly elected political party from which the power
to govern was wrenched during the administration period. Furthermore,
it is also common knowledge that many key personnel were
replaced
from time to time during the aforementioned strife, in particular
those personnel that were part of the decision making
process under
consideration. However, the relevant documents speak for themselves.
Those are to be interpreted. It is essentially
the decision that is
to be measured against the prescripts of the Constitution for
constitutional validity.
[23]
Where the facts underlying the particular decisions are not in
dispute, an informed determination
can and should be made of whether
those decisions were to be impugned. These relevant facts are
recorded earlier.
[24]
The submissions on behalf of the applicants in respect of the reasons
advanced for a finding
of irrationality of the decisions to be
impugned, have merit for what follows.
[25]
In view thereof that: the vexed service agreement included an
extension of the services that
were not authorised in any of the
decisions of the EAC; that onerous conditions were included therein
as indicated earlier, which
were also not authorised by the EAC; and
further that the service agreement was drafted by the respondent’s
attorneys, there
was clear non-compliance with the peremptory
requirements relating to procurement of services. Particularly where
the intended
section 33 of the MFMA still has to be initiated and
finalised.
[26]
Further in my view, objectively speaking, the decisions of the EAC
and the concluding of the
service agreement by City Manager at the
time, were irrational. There were no bases for the inclusion in the
service agreement
of the non-recyclable household and business waste,
and the onerous conditions relating to the tonnage to be supplied by
the first
applicant. Furthermore, there is no merit in the
respondent’s contention that an independent market analysis was
conducted
by a specific entity. That entity was the respondent’s
own consultant. Hence, there was no independence. The first applicant
itself was obliged to do the market analysis. The first applicant
merely relied on the say-so of the respondent. It was not verified
by
the first applicant in any manner. Objectively considered, there was
no rational relation between the objective and the means.
[27]
It follows that the further question to be determined is whether the
aforesaid irrational decisions
are to be impugned and what remedy
should be afforded. The parties were at odds in this regard.
[28]
The applicants were of the view that the said decisions should be set
aside, whilst the respondent
contended, in view of the lengthy period
that had elapsed and the dilatory conduct of the applicants in
seeking a review of the
said decisions, that the review should not be
upheld. Furthermore, the respondent contended that it would be just
and equitable
to hold the first applicant to its decisions, including
the concluding of the service agreement.
[29]
Section 172(1)(a) of the Constitution provides that on declaring
conduct constitutionally invalid,
a court may make an order which is
just and equitable. In this regard, reference is to be had to
Electoral
Commission v Mhlope et al
[8]
where the following was held:
“
Section
172(1)(b) clothes our courts with remedial powers so extensive that
they ought to be able to craft an appropriate or just
remedy even for
exceptional, complex or apparently irresoluble good situations. And
the operative words in this section are “an
order that is just
and equitable”. This means that whatever consideration of
justice and equity point to as the appropriate
solution for a
particular problem, may justifiably be used to remedy that problem.
If justice and equity would best be served or
advanced by that
remedy, then it ought to prevail as a constitutionally sanctioned
order contemplate in section 172(1)(b).”
[30]
Furthermore, fundamental to an enquiry on a just and equitable
remedy, is the public interest.
[9]
[31]
In a similar matter,
[10]
the
Constitutional Court held that section 172(1)(a) of the Constitution
enjoins a court to declare invalid any law or conduct
that it finds
to be inconsistent with the Constitution.
[32]
In view of the finding that the non-compliance with the prescriptions
of the Constitution, the
MFA and the MSCR, and that the decisions,
including the concluding of the service agreement, were irrational,
this court is obliged
to hold that conduct on the part of the first
applicant inconsistent with the Constitution, and consequently
constitutionally invalid.
[33]
What remains to be determined is what remedy would be appropriate
considering the principle of
just and equitable and taking into
consideration the public interest.
[34]
The respondent contended that it was obliged to obtain financing to
enable it to establish the
transfer station service. It incurred a
debt for millions in that regard. Further, that in view of the fact
that the first applicant
did not supply the tonnage as stipulated in
the service agreement which led to the cancellation of that
agreement, the respondent
could not recoup a profit in the amount of
approximately R94 million for which it seeks to hold the first
respondent liable.
[35]
It was further contended on behalf of the respondent that a just and
equitable remedy would be
to not divest the respondent from its
rights to which it, but for the declaration of constitutional
invalidity, might have been
entitled to.
[11]
This contention was premised upon the first applicant only raising
the issue of illegality at the stage of the arbitration proceedings,
some years later to the taking of the decisions and the concluding of
the service agreement. The respondent also relied on the
long delay
in launching the review application subsequently
[36]
In this regard the applicants contended that the matter
in
casu
differs substantially with the
facts in both
Gijima, supra,
and
Aslo Construction, supra
.
In both those matters the agreements and conduct sought to be
impugned were not cancelled prior to those review applications.
In
this matter, the respondent cancelled the agreement on the premise of
breach of the terms of the service level agreement on
the part of the
first applicant. Secondly, the applicants contended that in both
those matters all the stipulated obligations of
the “innocent”
parties had been fulfilled. In the present instance, the obligations
of the respondent have not been
fulfilled. The transfer station
service has not been established. Thirdly, the applicants contended
that only the respondent would
benefit unduly from upholding the
constitutionally invalid service agreement. The first applicant would
not derive any benefit
as the transfer station service has not been
established, nor completed. It follows that there can be no
quid
pro quo
issues, the first applicant has
nothing from which it would draw any advantage.
[37]
Where the Tax and Rate Payers within the jurisdiction of the first
applicant would have to foot
the bill so to speak, the remedial order
sought by the respondent would certainly not be in the public
interest. Particularly where
they would have to eke out R94 odd
million for anticipated profit had the service level agreement run to
its natural conclusion.
[38]
Whereas, in
Gijima, supra,
and
Aslo Construction, supra,
the respondents in those matters were held to be free from fault, the
respondent in this matter was not free from blame. In this
regard,
the respondent was the author of the proposals, unsolicited by the
first applicant, for the establishment of a multi recycle
facility
and the transfer station service. Furthermore, the respondent
prepared a service agreement containing aspects not authorised
by the
EAC. It was, solely on the facts before this court, so included by
the respondent itself. Should the issues of the initial
proposals for
the multi recycle facility and the transfer station service be held
to be neutral factors, the unauthorised inclusions,
relating
inter
alia
to tonnage and rates, in the vexed
service agreement clearly lies at the door of the respondent. No
basis was suggested that the
tonnage condition in the service
agreement was feasible in the circumstances. At best it would be a
thumb suck figure.
[39]
The vexed issue of delay in launching the review application requires
consideration. It is the
respondent’s contention that the first
applicant was dilatory in raising the issue of alleged
constitutionality of the said
decisions and the service agreement. It
is to be noted that when the arbitration proceedings were launched,
the applicants were
required to consider the circumstances
surrounding the concluding of the service agreement and hence the
decisions that preceded
it, for the first time. If it is the
respondent’s contention that the first applicant was obliged to
consider those issues
at an earlier stage, there is no merit in that
contention. It would require an organ of state to continually
self-review its decisions
and the concluding of any agreement that
flows therefrom. That approach would be impracticable and illogical.
There is no authority
for that exercise to be undertaken. In
particular, where, as in this instance, governance of the first
applicant intermittently
changed, it would require that at each
instance of change in governance, the incumbent governing authority
would be obliged to
review the predecessor’s conduct. That
would be senseless and illogical. The delay that occurred since the
ruling by the
arbitrator in respect of the present review application
until it was eventually launched, was explained by the first
applicant.
In my view, and due to the well-known and common fact of
the Covid-19 pandemic that has gripped the Republic, and the
consequential
imposition of measures promulgated by the Government to
control the spread thereof, the explanations proffered by the
applicants
for the further delays that followed, were adequately
explained. Further in my view, the period prior to the ruling by the
arbitrator
was also explained as dealt with earlier.
[40]
Applying the principles enunciated in
Aslo
Construction, supra,
in respect of a
delay on the part of the state organ seeking a review of its own
decisions, the following is required:
(a)
the court is to determine whether the delay
is unreasonable or undue which involves a factual inquiry of the
circumstances;
(b)
the unreasonableness of the delay depends
on,
inter alia
,
the explanation proffered;
(c)
if the delay is found to be unreasonable or
undue, the question is whether it stands to be overlooked which
includes taking into
account any prejudice to the parties would
suffer if the impugned decision is set aside;
(d)
where there is no basis to overlook the
delay, the court is obliged to nevertheless declare the conduct of
the state organ unconstitutional
in terms of section 172(1)(b) of the
Constitution.
[41]
I have found that the delays in seeking the review of the first
applicant’s decisions were
adequately explained. The particular
circumstances in this instance dictate that that explanation be
accepted and that the delay
was not unreasonable, nor undue. It
accordingly stands to be overlooked.
[42]
It follows, that in terms of the findings recorded earlier, this
court is obliged to declare
the first applicant’s aforesaid
impugned conduct to be unlawful and unconstitutional in terms of
section 172(1)(b) of the
Constitution.
[43]
Furthermore, I have found that in the public interest, it would not
be just and equitable to
hold the first applicant to its impugned
conduct unqualified.
[44]
Consequently, where it is not found that the delay was unreasonable
in this instance, the remedial
order sought by the respondent cannot
be upheld for all of the foregoing.
[45]
The review stands to be upheld.
[46]
There remains the issue of a possible preservation of accrued rights
under the service agreement.
It was conceded on behalf of the
applicants that any rights which may have already accrued prior to
the cancellation, and to which
the respondent would be entitled under
the impugned service agreement of 10 August 2016, save for any rights
to any claim for loss
of profit and claim for shortfalls pertaining
to waste, be preserved. In that regard, it would be just and
equitable to hold so.
[47]
The applicants effectively seek an indulgence, and in view of the
delays that followed prior
to the launching of this review
application and the subsequent delays in prosecuting it, the
applicants, in my view are not entitled
to a costs order. On the
other hand, the respondent is not without blame as recorded earlier.
In my view, it would be just and
equitable that no order as to costs
be made.
I
grant the following order:
1.
The decisions taken by the first
applicant’s Executive Acquisition Committee on 19 November 2015
and 26 June 2016, to
inter alia
resolve that the Municipal Manager dispense with the normal
procurement processes, in terms of Regulation 36 of the Municipal
Supply Chain Regulations, be declared constitutionally invalid and be
set aside;
2.
The decision by the erstwhile Municipal
Manager to dispense with the normal procurement processes, in terms
of Regulation 36 of
the Municipal Supply Chain Regulations, so that
the respondent could be appointed by the first applicant to provide a
transfer
station service for Regions 3 and 4, be declared
constitutionally invalid and be set aside;
3.
The three-year service agreement entered
into on 10 August 2016 by the first applicant and the respondent, for
the rendering of
waste processing services to the first applicant, in
respect of recyclable and non-recyclable waste, be declared
constitutionally
invalid;
4.
It is declared that any rights which may
already have accrued prior to the cancellation of the service
agreement, and to which the
respondent would be entitled under the
impugned service agreement of 10 August 2016, save for any rights to
any claim for loss
of profit and claim for shortfalls pertaining to
waste, be preserved;
5.
No order as to costs be made.
C
J VAN DER WESTHUIZEN
JUDGE
OF THE HIGH COURT
Date
of Hearing:
29
April 2021
On
behalf of Applicant: E C
Labuschagne SC
V
Mabuza
Instructed
by:
Diale Mogoshoa Attorneys
On
behalf of Respondent: I B Currie
Instructed
by:
Edward Nathan Sonnenbergs Inc
.
Judgment
handed down: 21 June 2021
[1]
State
InformationTechnology Agency SOC Limited v Gijima Holdings (Pty) Ltd
2018(2) SA 23 (CC)
[2]
Local
Government: Municipal Finance Management Act
Municipal Supply Chain
Management Regulations, GN
868 GG 40553, 30 May 2005 (as amended in
2017)
[3]
Municipal
manager: Qaukeni et al v F V General Trading CC
2010(1) SA 356 (SCA);
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
2019(4) SA 331 (CC)
[4]
Pharmaceutical
Manufacturers Association of SA et al: In re President of the
Republic of South Africa et al
2000(2) SA 674 (CC) [89] - [90]
[5]
2010(3)
SA 293 (CC) [51]
[6]
P
Bolton,
The
Law of Government Procurement in South Africa,
p 177.
[7]
Swifambo
Rail Leasing (Pty) Ltd v Passenger Rail Agency of South Africa
20201) SA 76 (SCA) [22] – [24]
[8]
2016(5)
SA 1 (CC) [132]
[9]
Allpay
Consolidated Investment Holdings et al v Chief Executive Officer of
the South African Social Security Agency et al
(No 2) 2014(4) SA 179 (CC) [33]
[10]
State
Information Technology Agency SOC Limited v Gijima Holdings (Pty)
Ltd
2018(2) SA 23 (CC)
[11]
Gijima,
supra,
[54];
Asla
Construction, supra,
[105]