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[2016] ZANCHC 72
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Jodan Construction (Pty) Ltd v Premier of the Northern Cape and Others (898/2016) [2016] ZANCHC 72 (19 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
YES
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
CASE
NO:
898/2016
DATE
HEARD:
14/12/2016
DATE
DELIVERED:
19/12/2016
In
the matter between:
JODAN
CONSTRUCTION (PTY)
LTD
Applicant
and
PREMIER
NORTHERN CAPE PROVINCE
1
st
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR THE
NORTHERN
CAPE DEPARTMENT OF ROADS AND PUBLIC
WORKS
2
nd
Respondent
DOWN
TOUCH INVESTMENTS (PTY)
LTD
3
rd
Respondent
Coram:
Olivier
J
et
Mamosebo J
JUDGMENT
Olivier
J:
[1.]
The
applicant, Jodan Construction (Pty) Limited, submitted a tender to
the Department of Public Roads and Works, Northern Cape,
for the
upgrading of a gravel road. Eighteen other tenders were received by
the Department.
[2.]
The
contract was eventually awarded to Down Touch Investments, the third
respondent, after the applicant's tender had been found
to be
non-responsive and was disqualified from further evaluation.
[3.]
On 6 May
2016 the applicant brought this application. In the first part
of the notice of motion it sought an order preventing
the handing
over of the site to the third respondent, pending the review of the
award, and in the second part of the notice of
motion the relief
sought in respect of the award was set out.
[4.]
The third
respondent opposed the first part of the application. The
applicant’s attitude was that the third respondent
had no
interest in the interdict proceedings. That part of the
application was heard on 19 May 2016 and on 25 May 2016 Erasmus
AJ
decided the issue of the third respondent's standing in that part of
the application in its favour, but nevertheless granted
the
interdict. The costs of 19 May were ordered to be costs in the
review application, but the costs occasioned by the postponement
of 6
May were reserved for later determination.
[5.]
What
serves before us at this stage is the second part of the
application. The Premier of the Northern Cape province and the
Member of the Executive Council for the Northern Cape Department of
Roads and Public Works have been cited as respectively the
first and
second respondents, and will at times collectively be referred to as
"
the
Department
".
[6.]
The
relief sought in terms of the amended notice of motion
[1]
is set out as follows in paragraphs 4, 4A and 4B thereof:
"
4.
That the first and second respondents are called upon to show cause
why the decision that:
4.1
The proceedings, and/or;
4.2
The decision pursuant to the proceedings, and/or;
4.3
The awarding of the tender (whether to the third respondent or to any
other person or entity)
be reviewed and/or
corrected and/or set aside.
4A
That following an order in terms of prayer 4, the court issues an
order in terms of which the applicant’s
tender is declared
responsive.
4B
That following an order in terms of prayer 4A above, the first and
second respondents be ordered to award
and give the tender to the
applicant and to conclude a contract with the applicant in respect of
the rendering of the services
and performance of the works in terms
of the tender.
”
[7.]
This part
of the application is opposed by the second and third respondents.
[8.]
In
evaluating the applicant's tender both the Bid Evaluating Committee
and the Bid Adjudicating Committee of the Department referred
to
“
NCP4
(para 2.10)
”
and found the tender to be non-responsive because the applicant "
did
not disclose other business interests
".
[9.]
The
paragraph referred to, forms part of Section NCP 4, which in turn was
part of Form C of the so-called returnable documents in
terms of the
Department's procurement document. The section is titled
"
DECLARATION
OF INTEREST
",
and it is in this section, under this heading and in paragraph 2 that
tenderers had to answer certain questions, which included
the
following question in subparagraph 2.10 :
"
Do
you or any of the directors/trustees/shareholders/members of the
company have any interest in any other related companies whether
or
not they are bidding for this contract?
"
[10.]
The form
provided the tenderer, or the person completing the form on behalf of
the tenderer, with a choice between only two answers;
either "
Yes
"
or "
No
".
In the event of the answer being "
Yes
",
subparagraph 2.10.1 required particulars, presumably of such
interests.
[11.]
The
general purpose of the particular section is quite clearly to elicit
assurances and information that would satisfy the Department
that
there would be no risk or perception of favouritism or corruption in
respect of any particular tender.
[12.]
Mr Nico
Pretorius, who completed the form in the case of the applicant and
who is also the deponent for the applicant in this matter,
answered
"
No
"
and furnished no particulars under subparagraph 2.10.1.
[13.]
It is
common cause that the committees, in the process of verifying answers
provided on behalf of the applicant, subsequently established
that
the directors of the applicant indeed had interests in other
companies and that it is on the basis of that information that
the
applicant's tender was then found to be non-responsive and was
disqualified.
[14.]
It is not
in dispute that, if the finding that the applicant's tender was
non-responsive was correct, the tender would not have
qualified for
further evaluation. What is in dispute is whether that finding
was indeed correct and, if not, whether the
applicant is entitled to
the relief sought in terms of the amended notice of motion.
[15.]
It is
also not in dispute that the decisions to disqualify the applicant's
tender and to award the contract to the third respondent
constitute
administrative action for the purposes of the
Promotion
of Administrative Justice Act
[2]
("
the
Act
").
[16.]
Mr
Pretorius says he interpreted subparagraph 2.10 as only pertaining to
interests in “
related
”
companies, and that "
related
"
in the context of the subject of this tender referred to other
companies in the road construction industry.
[17.]
In their
findings the committees simply referred to "
other
business interests
"
of the applicant's directors. No mention was made of the nature of
those other interests, or indeed of the businesses of
the companies
in which those interests were held. The word "
related
"
was not so much as mentioned. On the face of it the committees
applied subparagraph 2.10 as if it referred to any other
companies at
all, which would mean that they disregarded the word "
related
"
in the question.
[18.]
Despite
the fact that Mr Pretorius in his supplementary founding affidavit
made it clear that the applicant's case is that the question
in
subparagraph 2.10 only pertained to interests in related companies,
more specifically companies involved in the business of
road
construction, the deponent for the Department, Mr Fabian Borman, has
not explained how subparagraph 2.10 was intended, and
even less how
it was indeed interpreted by the committees.
[19.]
This can
also not be established by comparing the evaluation and treatment of
the other tenders as far as the question in subparagraph
2.10 is
concerned, because the applicant’s tender was the only one
where there was a "
No
"
answer and where the directors of the tenderer were then found to
have interests in other companies.
[20.]
The
unqualified reference to "
other
business interests
",
together with the fact that the committees decided that those
interests should have been disclosed in response to the question
in
subparagraph 2.10, leads to the inescapable inference that the
committees indeed disregarded the word "
related
"
in subparagraph 2.10.
[21.]
That this
is in effect what the committees did, is exactly the applicant's case
and the second respondent has not even remotely
challenged it, nor
for that matter has the third respondent.
[22.]
In
interpreting subparagraph 2.10 it has to be assumed, as a starting
point, that the word "
related
"
was included in the wording of the question with a purpose
[3]
.
[23.]
A meaning
therefore has to be attributed to the word, "
having
regard to the context provided by reading the particular provision or
provisions in the light of the document as a whole
and the
circumstances attendant upon its coming into existence. Whatever the
nature of the document, consideration must be given
to the language
used in the light of the ordinary rules of grammar and syntax; the
context in which the provision appears; the
apparent purpose to which
it is directed
"
[4]
.
[24.]
The word
"
related
"
in my view clearly qualifies the words "
any
other .... companies
"
and restricts the wide meaning they would arguably otherwise have
had
[5]
.
[25.]
Even the
application of the interpretational principle and aid
inclusio
unius est alterius exclusio
[6]
would also result in an interpretation that the "
other
"
companies referred to were intended to include only "
related
"
companies, to the exclusion of "
unrelated
"
companies.
[26.]
According
to the
Concise
Oxford English Dictionary
[7]
the word "
related
"
would refer to a "
causal
connection between
"
what is being compared. This is the "
ordinary
grammatical meaning
"
of the word
[8]
"
related
".
[27.]
As
already mentioned it is the applicant's case that, in the context of
this matter, this "
causal
connection
"
would have had to be found between the nature of the business of the
tendering company and those of the "
other
... companies
"
concerned.
[28.]
This
interpretation is in my view strengthened by the presence in the
question of the words "
whether
or not they are bidding for this contract
",
immediately after the words "
any
other related companies
".
If the question was intended, and should be interpreted, as referring
to interests in literally any other company
whatsoever, there would
not have been any need to inform the tenderers that interests in a
company should also be declared regardless
of the fact that such a
company has not submitted a tender. Companies not in any way
involved in road construction would
in any event not have been able
to tender for this contract. An interpretation that the question was
aimed at interests in any
conceivable kind of "
other
"
company would therefore in my opinion render the words "
whether
or not they are bidding for this contract
"
superfluous; a result that the parties must be assumed not to have
intended
[9]
.
[29.]
An
alternative argument could be that, because most of the other
questions under paragraph 2 seem to pertain to interests in state
entities and connections with the bid committees of the Department,
this is the "
causal
connection
"
to which the word "
related
"
in subparagraph 2.10 was intended to refer.
[30.]
For
purposes of the question whether the committees’ decisions is
reviewable it is, however, not really decisive which of
these causal
connections was intended to be referred to by the use of the word
"
related
".
The point is that the word must be assumed to have been intended to
refer to some causal connection that had to exist
and which would
narrow down the class or number of companies in which interests
should be disclosed.
[31.]
The
committees clearly approached the question on the basis that
interests in literally "
any
"
companies, and with any conceivable businesses, had to be disclosed.
In doing so they by necessary implication disregarded
the qualifying
word "
related
".
In the absence of any explanation by Mr Borman for this, their
decision to apply the wording of the question in this
manner must be
assumed to have been taken arbitrarily, and this in itself renders
their decisions reviewable
[10]
.
[32.]
The
committees' decisions in any event make no reference to any
relationship, which appeared from the information obtained by them,
between the business interests referred to and the applicant, its
business and the contract. Mr Borman has also not shed light
on this
in his answering affidavit on behalf of the second respondent. If
there was in fact no indication in the information of
such a
relationship, there would in any event not have been any rational
connection between that information and the decisions
[11]
,
in other words even if it could be said that the committees did not
disregard the qualifying word "
related
".
[33.]
The
action is also not rationally connected to the purpose of the
question in paragraph 2.10, namely to elicit information about
interests in related companies
[12]
.
[34.]
Even if
it could somehow be said that the committees did have regard to the
word "
related
"
in considering the applicant's answer, Mr Borman has failed to
explain in what way the other companies in which the directors
of the
applicant have interests were considered to be "
related
"
to the applicant for the purposes of the particular question.
[35.]
The
allegations by Mr Pretorius that the companies in which the directors
have interests are not related to the applicant and that
they are not
involved in the same industry as the applicant have not really been
challenged. They may have been included
in broad denials of
paragraphs in the supplementary founding affidavit which also
contained other averments, but they were never
responded to by means
of an allegation that there is indeed some relationship, let alone by
providing particulars of such relationship.
[36.]
At this
juncture it has to be considered what the appropriate remedy would be
in the circumstances of this matter.
[37.]
A finding
that a decision is irregular and reviewable would not in all cases
justify it being declared invalid and set aside.
The court
would still have to consider what relief would in the circumstances
be "
just
and equitable
"
[13]
.
In doing so the interests of the successful applicant, those of the
tenderer to which the contract had already been awarded
and those of
the community will be weighed up and balanced
[14]
.
In paragraph [23] of the
Millennium
Waste
judgment
[15]
it was put as
follows:
“
The
difficulty that is presented by invalid administrative acts, as
pointed out by this court in Oudekraal Estates, is that they
often
have been acted upon by the time they are brought under review.
That difficulty is particularly acute when a decision
is taken to
accept a tender. A decision to accept a tender is almost always
acted upon immediately by the conclusion of a
contract with the
tenderer, and that is often immediately followed by further contracts
concluded by the tenderer in executing
the contract. To
set aside the decision to accept the tender, with the effect
that the contract is rendered void from
the outset, can have
catastrophic consequences for an innocent tenderer, and adverse
consequences for the public at large in whose
interests the
administrative body or official purported to act. Those interests
must be carefully weighed against those of the
disappointed tenderer
if an order is to be made that is just and equitable.
”
[38.]
Not every
irregularity will invalidate the award of a tender
[16]
.
[39.]
The
closing date for the submission of the tenders for this contract was
29 January 2016, and the expiry date for the acceptance
of one
of those tenders 28 April 2016. It is not in dispute that
it only came to the applicant's knowledge on 20 April
2016 that
the contract had been awarded to the third respondent. The applicant
had never been notified of the fact that its tender
had not been
accepted, and obviously also not of the fact that its tender had been
disqualified as non-responsive.
[40.]
The
applicant then immediately approached the court for the interdict
alluded to above. It is not clear what led to the considerable
delay of more than 6 months since then. The fact is, however,
that the delay has had consequences.
[41.]
The third
respondent has shown, with reference to the contents of its answering
affidavit in the interdict proceedings, that it
will suffer
significant harm if the award is to be set aside now. The
expenses it has incurred and to which it has, presumably
after the
award of the contract to it, committed itself in anticipation of site
handover and the commencement of construction,
run into well in
excess of a million rand per month.
[42.]
The
consequences will, however, not be limited to financial losses. A
subcontractor has already been appointed by the third respondent
and
34 people will lose their employment if the award is set aside.
[43.]
Mr J J
Cronje, the deponent for the third respondent, has also explained
that it is in the interests of the community that the work
on this
derelict road is not further delayed. The setting aside of the
award will inevitably result in a considerable further
delay, because
the tender would have to be re-advertised and the whole process would
have to begin again.
[44.]
The
applicant's only response to all of this is a statement by Mr
Pretorius that the costs allegedly incurred by the third respondent
"
are
no justification for the Court not adjudicating objectively on the
tender process and all that it entails
".
In the interdict part of the application Mr Pretorius was content to
state only that, if a contract had been concluded
between the
Department and the third respondent, the latter's remedy would "
lie
in that contract
".
[45.]
Although
construction has not commenced, significant expenses have already
been incurred in preparation and site establishment.
Insofar as
Mr Pretorius intended to submit that the impact on the third
respondent of a setting aside of the reward is not relevant
at this
stage, he would of course have been wrong.
[46.]
Mr Vlok,
counsel for the applicant, argued that it is not clear on the papers
that a contract has indeed been concluded between
the Department and
the third respondent and that the third respondent should somehow
have terminated those expenses when the interim
relief was granted.
This is an untenable proposition. The acceptance of the third
respondent’s tender would quite
obviously have led to it having
to begin the process of putting things in place for the commencement
of the actual construction
work. Whether this flowed from the
acceptance of the tender or from the subsequent conclusion of a
contract is immaterial.
The fact is that those expenses have
been incurred as a direct consequence of the award of the contract to
the third respondent,
and they cannot simply be thought away.
[47.]
Although
Mr Vlok’s argument did not go that far, it has to be added that
it would be far-fetched to speculate that the Department,
and
therefore the taxpayer and the public at large, would not be liable
to compensate the third respondent in the event of the
award being
set aside because of an irregularity committed by the Department.
[48.]
It is so
that it was the irregular decision of the committees that led
to the unjustified disqualification of the applicant’s
tender,
but on the other hand the applicant has not even attempted to show
why it would be just and equitable to set the award
aside on that
basis in the circumstances of this particular matter. Mr
Pretorius has in fact not even made such an allegation.
[49.]
I
realise that it has not been shown that the applicant is in any way
whatsoever to blame for the fact that its tender was disqualified.
This is, however, exactly what also happened to the innocent tenderer
in the
Moseme
case, where the award was nevertheless not set aside and where Harms
DP set out the relevant considerations in such a case in paragraphs
[20] and [21]:
"
The setting
aside of a contract has a number of consequences. The first
contractor may not be able to claim under the revoked
contract and be
left with an enrichment claim, and the employer may not have a claim
for defective workmanship. The second contractor
may even have a
claim for damages against the employer in respect of loss of profit
on the executed part of the contract because
it has now become
contractually entitled to the whole contract.
These problems may
not be of any consequence in the case of corruption or fraud, or
where the successful tenderer was complicit
in the irregularity.
But, as said, that is not the case. The learned judge, in reaching
his conclusion, failed to have any
regard to the position of the
innocent Moseme. He also did not consider the degree of the
irregularity. He assumed incorrectly
that King was entitled to the
contract and he underestimated the adverse consequences of the order.
I therefore conclude that he
erred in the exercise of his discretion.
This means that King, in spite of the imperfect administrative
process, is not entitled
to any relief. Not every slip in the
administration of tenders is necessarily to be visited by judicial
sanction
".
[51.]
These
considerations have not been dealt with by Mr Pretorius.
[52.]
While it
is so that Mr Pretorius has made the allegation that the other
companies in which the interests are held are not related
to the
applicant and to the subject of this tender, he has not explained
this allegation and has chosen not to disclose what exactly
the
business of those companies are. There is therefore
insufficient evidence for this court to find that the contract will,
as a fact, be awarded to the applicant in the event of a
reconsideration of its tender.
[53.]
Mr Cronje
has referred to a number of other aspects in which the applicant's
tender had according to him in any event not complied
with the
requirements of the procurement document, including the fact that Mr
Pretorius had not indicated the particulars of the
subcontractor that
had to be appointed by the successful tenderer. The applicant's
case in this regard is that the need for
those particulars would only
have arisen once the contract had been awarded to the successful
tenderer. In view of the above
it is not necessary to decide
this.
[54.]
Paragraph
1.2 of Form J of the procurement document provided that the “
Main
Contractor
”,
if not based in the Northern Cape, would have to appoint as a
subcontractor a part of the contract to a Northern Cape contractor
or
contractors. If this is where it ended, there may have been
merit in what Mr Pretorius said in this regard, but the procurement
document went much further.
[55.]
Paragraph
8 of Form K deals with the issue of subcontracting. It required
tenderers to indicate whether a subcontractor was
going to be
appointed and, if so, the tenderer was required to furnish
particulars of,
inter
alia
,
the name of that contractor and its B-BBEE status and to provide
proof of such status in the form of a certificate.
[56.]
Mr
Pretorius answered in the affirmative, as he was compelled to do in
view of the fact that the applicant is not Northern Cape
based, but
in response to the questions pertaining to the particular
subcontractor’s name and status he merely answered “
To
be confirmed
”,
and in response to the request for a certificate he noted “
On
award of contract
”.
[57.]
Mr
Pretorius’ response quite clearly did not provide the
particulars required, and the fact that those particulars were
required
at the tender stage seems to militate against the argument
advanced by Mr Vlok in this regard. Why require these
particulars
in the tender documents if the understanding was that
they would only be furnished by the successful tenderer upon the
award of
the contract to it? If Mr Cronje’s
interpretation is correct, it would mean that the tender documents
had not been
properly completed.
[58.]
This has
not been raised by the Department as a reason for awarding the
contract to the third respondent, but it could in
my view have
been a relevant consideration in deciding whether the setting aside
of the award to the third respondent, at the instance
of the
applicant, would be just and equitable. In view of the above it
is however not necessary to decide this issue.
[59.]
In my
view it has not been shown that it would in the circumstances be just
and equitable to declare the award invalid and to set
it aside.
The relief sought in paragraph 4 of the notice of motion can
therefore not be granted.
[60.]
This
really renders the relief sought in paragraphs 4A and 4B obsolete.
It is therefore unnecessary to deal with it in any
detail.
[61.]
As
regards the issue of the responsiveness of the applicant's tender
there is, as already mentioned, no information before this
court
about the business of the other companies in which the applicant's
directors have interests, which would have made it impossible
to come
to an independent and informed decision as to whether there is indeed
no relationship between the applicant and the subject
of the tender,
on the one hand, and those companies, on the other hand. The
denial of such a relationship alone would have
been insufficient, and
without insight into the information that the committees had at their
disposal, and proper information about
the nature of the business of
those companies and about the industries they are involved in, this
court would not have been able
to verify the answer to the question
in subparagraph 2.10.
[62.]
The
applicant in my view has therefore in any event not made out a case
for a declaratory order that its tender is responsive in
terms of the
procurement document.
[63.]
For the
same reason this court would not in the circumstances have been able
to award the contract to the applicant.
[64.]
This
makes it unnecessary to consider the other aspects of the applicant's
tender which the third respondent has submitted would
in any event
have disqualified it.
[65.]
As far as
the costs of the review proceedings are concerned, it is the
Department that was responsible for the irregular disqualification.
It has also to this day not from its side disclosed the nature of the
businesses of the other companies to this court.
[66.]
The
applicant, on the other hand, has in any event failed to show why the
Department's reviewable action should in the circumstances
of this
matter lead to the setting aside of the reward and to the reward of
the contract to it.
[67.]
The third
respondent is in no way to blame for the irregular disqualification
of the applicant's tender. The notice of motion in
any event contains
no prayer for costs against the third respondent. Its
opposition of the relief sought by the applicant
was justified.
[68.]
In my
view the fair result as far as the costs of the review proceedings
are concerned would be for the applicant and the second
respondent to
each pay their own costs and for them to pay the third respondent's
costs.
[69.]
This
brings me to the costs of 6 May 2016. The applicant and the
second respondent had already before the application was
brought on 6
May 2016 agreed that the second respondent would not oppose the
relief sought at that stage, but only the review application.
[70.]
The
application was only served on the third respondent on 4 May 2016,
but the applicant's attitude was that the third respondent
in any
event had no interest in the interim relief then sought and that it
had no standing to oppose the granting of that relief.
The
third respondent's answering affidavit in that part of the
application was nevertheless filed, and timeously, and the
application was, as already mentioned, postponed to 19 May 2016 for
argument.
[71.]
The fact
that the
locus
standi
issue was then decided in favour of the third respondent means that
it must for purposes of the costs in the interdict proceedings
be
regarded as having been entitled to proper notice of the
application. On the other hand it was the third
respondent's
eventually unsuccessful opposition of that part of the
application that necessitated the postponement of 6 May 2016.
[72.]
In my
view the applicant and the third respondent should each pay their own
costs as far as the postponement is concerned.
[73.]
In the
premises the following orders are made:
1.
THE
APPLICATION FOR THE RELIEF SET OUT IN PARAGRAPHS 4, 4A AND 4B OF THE
AMENDED NOTICE OF MOTION IS DISMISSED.
2.
THE
APPLICANT AND THE SECOND RESPONDENT ARE ORDERED TO PAY THE THIRD
RESPONDENT’S COSTS IN THE APPLICATION, INCLUDING THE
COSTS OF
19 MAY 2016, JOINTLY AND SEVERALLY, THE ONE TO PAY THE OTHER TO BE
ABSOLVED PRO TANTO.
3.
THE
APPLICANT AND THE THIRD RESPONDENT WILL EACH PAY ITS OWN WASTED COSTS
OCCASIONED BY THE POSTPONEMENT OF 6 MAY 2016.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
______________________
M
MAMOSEBO
JUDGE
NORTHERN
CAPE DIVISION
For the
Applicant:
ADV J VLOK
Instructed
by:
Van De Wall Inc., Kimberley
For the 1
st
& 2
nd
Respondents:
ADV T TYUTHUZA
Instructed
by:
Office of the State Attorney, Kimberley
For the 3
rd
Respondent:
ADV S GROBLER
Instructed
by:
Duncan & Rothman Inc., Kimberley
[1]
Subsequent to the lodging of the
record with the Registrar, and as authorised in the first part of
the application, the applicant
filed a supplementary founding
affidavit and amended its notice of motion by the insertion, after
paragraph 4, of paragraphs
4A and 4B.
[2]
3 of 2000
[3]
Compare
National
Credit Regulator v Opperman and Others
2013 (2) SA 1
(CC) para [99];
Kilburn
v Tuning Fork (Pty) Ltd
2015 (6) SA 244
(SCA) para [15]
[4]
Natal Joint Municipal Pension
Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) para [18]
[5]
Compare
Rex
v Milne and Erleigh (7)
1951 (1) SA 791
(A) at 859C-860B;
Eagle
Star Insurance Co Ltd v Willey
1956
(1) SA 330
(A) at 335 G-H
[6]
Compare
Administrator,
Transvaal, and Others v Zenzile and Others
1991
(1) SA 21
(A)
at 37G
- H
[7]
10 Edition (Revised)
[8]
Compare
Premier
Foods (Pty) Ltd v Manoim NO and Others
2016 (1) SA 445
(SCA) para [42]
[9]
Compare
Wellworths
Bazaars Ltd v Chandler’s Ltd and Another
1947 (2) SA 37
(A) at 43;
African
Products (Pty) Ltd v AIG South Africa Ltd
2009 (3) SA 473
(SCA) para [13]
[10]
See section 6(2)(e)(vi) of the
Act.
[11]
See section 6(2)(f)(ii)(cc) of
the Act.
[12]
See s 6 (2)(f)(ii)(bb)of the
Act; Compare
Millennium
Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo
Province and Others
2008 (2) SA 481
(SCA) para [19]
[13]
See section 8(1) of the Act.
[14]
See
Moseme
Road Construction CC and Others v King Civil Engineering Contractors
(Pty) Ltd and Another
2010 (4) SA 359
(SCA)para [21];
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer, South African Social Security Agency,
and Others
2013 (4) SA 557 (SCA)
[15]
See footnote 11
supra
[16]
See
Allpay Consolidated
Investment Holdings (Pty) Ltd and Others v Chief Executive Officer,
South African Social Security Agency,
and Others
,
supra