Sanyathi Civil Engineering & Construction (Pty) Ltd and Another v eThekwini Municipality and Others, Group Five Contruction (Pty) Ltd v eThekwini Municipality and Others (KZP) [2011] ZAKZPHC 45; 2012 (1) BCLR 45 (KZP); [2012] 1 All SA 200 (KZP) (24 October 2011)

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[2011] ZAKZPHC 45
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Sanyathi Civil Engineering & Construction (Pty) Ltd and Another v eThekwini Municipality and Others, Group Five Contruction (Pty) Ltd v eThekwini Municipality and Others (KZP) [2011] ZAKZPHC 45; 2012 (1) BCLR 45 (KZP); [2012] 1 All SA 200 (KZP) (24 October 2011)

IN THE KWAZULU-NATAL HIGH COURT,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
CASE NO: 7538/2011
Heard: 16 September 2011
Order: 30 September 2011
Reasons and further
remedies: 25 October 2011
In the matter between
SANYATHI CIVIL
ENGINEERING & CONSRTUCTION (PTY) LTD
…..............................
1
ST
APPLICANT
PHAMBILI PIPELINES (PTY)
LTD
….................................................................................
2
ND
APPLICANT
AND
ETHEKWINI MUNICIPALITY
….....................................................................................
1
ST
RESPONDENT
ESORFRANKI PIPELINES
(PTY) LTD
….....................................................................
2
ND
RESPONDENT
CYCAD PIPELINES (PTY) LTD
…................................................................................
3
RD
RESPONDENT
CASE NO: 9347/2011
GROUP FIVE CONSTRUCTION
(PTY) LTD
…........................................................................
APPLICANT
AND
ETHEKWINI MUNICIPALITY
…....................................................................................
1
ST
RESPONDENT
ESORFRANKI PIPELINE (PTY)
LTD
…........................................................................
2
ND
RESPONDENT
CYCAD PIPELINES (PTY) LTD
…................................................................................
3
RD
RESPONDENT
MICHAEL OLIVER SUTCLIFFE
…................................................................................
4
TH
RESPONDENT
SANYATHI CIVIL
ENGINEERING & CONSRTUCTION (PTY) LTD
….........................
5
TH
RESPONDENT
PHAMBILI PIPELINES (PTY)
LTD
…............................................................................
6
TH
RESPONDENT
NOCI INVESTMENTS (PTY)
LTD
….............................................................................
7
TH
RESPONDENT
______________________________________________________________
JUDGMENT
______________________________________________________________
PILLAY D, J
Introduction
The supremacy
of the Constitution and the rule of law are founding values of our
democracy.
1
Law or
conduct inconsistent with it is invalid; the obligations it imposes
must
be
fulfilled.
2
Did
eThekwini Municipality, the first respondent, break the law? If it
did, how should it remedy its breach? These questions must
be
answered in two applications for review of a tender.
Sanyathi Civil
Engineering and Construction (Pty) Ltd and Phambili Pipelines (Pty)
Ltd launched the first application against
eThekwini, Esorfranki
Pipelines Limited and Cycad Pipelines (Pty) Ltd. They prefaced this
application for review with an interdict
granted on 26 July 2011 in
which Esorfranki agreed not to perform any construction or civil
engineering work arising from the
tender,
pending this
review
. Phambili fell away as an applicant
as
they were not properly suited
.
In the second application Group Five
Construction (Pty) Ltd added the City Manger, Sanyathi, Phambili and
NOCI formerly known
as ICON, its erstwhile joint venture partner, as
the fourth, fifth, sixth and seventh respondents. NOCI did not
participate in
the proceedings.
The principle relief claimed in both
applications is a declaration that the process of awarding tender
number WS5980 for a contract
for the construction of the Western
Aqueduct Phase Two was illegal and invalid; therefore eThekwini’s
award of the tender
to the Esorfranki-Cycad joint venture should be
reviewed and set aside. Initially, Sanyathi asked that it be awarded
the tender;
alternatively, that the tender be remitted for
reconsideration by the Bid Evaluation Committee (BEC) of eThekwini
but to exclude
Esorfranki-Cycad. By the end of the hearing, Mr
Broster SC, who appeared for Sanyathi, abandoned these remedies to
make common
cause with Mr Olsen SC who appeared for Group Five. The
remedy all the applicants now seek is to direct eThekwini to conduct

a fresh tender process if it intends to proceed with the
construction.
The facts
The facts
giving rise to these applications began on 6 November 2009, when
eThekwini issued a
notice and invitation to
tender for the construction of about 50 kilometres of steel pipeline
with associated road rehabilitation and realignment from
Inchanga
Station to Ntuzuma with branches to Tshelimnyama and Mount Moriah.
The closing date for prospective contractors to submit
tenders was
19 February 2010. EThekwini was to announce the award of the tender
by 14 May 2010 after which the validity of the
tenders would have
expired. This date was extended several times until 15 December
2010. By eThekwini’s letters dated 16
December 2010 the joint
ventures of Sanyathi-Phambili and Group Five-ICON learnt that their
tenders were rejected.
In the
meantime, on 12 May 2010 the High Court handed down its judgment in
Sizabonke
Civils CC v Zululand District Municipality and Others
3
.
Gorven J held that regs 8 (2) - (7) of the Preferential Procurement
Regulations, 2001 published in Government Notice R725 of
10 August
2001 (the regulations) were inconsistent with s 2 (1) (b) of the
Preferential Procurement Policy Framework Act 5 of
2000 (PPPFA) and
were invalid. The inconsistency turned on the fact that s 2 of the
PPPFA prescribed that 90 points be allocated
for price alone as a
component of tenders whereas reg 8 (3) combined functionality with
price for tenders above the value of
R500 000.00. As the regulations
imported a discretion to allocate fewer than 90 points for price, it
was
ultra
vires
s
2 (1) (b) of the PPPFA. The Minister of Finance cured the defect in
the regulations by issuing new regulations which will come
into
effect on 7 December 2011.
In the circumstances, at least seven
months before eThekwini had decided to award the tender to
Esorfranki-Cycad, the High Court
in this province had already
declared invalid the very regulations on which eThekwini invited
tenders. In its tender notice and
invitation to tender, eThekweni
had notified potential tenderers that it would allocate a maximum of
20 points for quality, 10
points for relevant experience in
constructing large diameter (1000 millimetre) and high pressure
welded steel pipelines, and
70 points for price. This tender, like
the tender in
Sizabonke,
in which price also counted for 70
points, was
ultra vires
not only because the regulations in
terms of which it was issued were
ultra vires
but also
because the notice to tender itself conflicted with s 2 (1) (b) of
the PPPFA.
According to the appeals authority,
Sizabonke
came
to the attention of eThekwini sometime between the date when the
tenders were called for and the date when they had to be
evaluated.
4
That means sometime between 6
November 2009, or more likely 12 May 2010 when the judgment was
issued, and 15 December 2010 eThekwini
knew before evaluating the
bids that the regulations on which it issued the notice to tender
were invalid.
Notwithstanding,
eThekwini elected to proceed with awarding the tender to
Esorfranki-Cycad,
dismissing
the invalidity of the regulations as a red herring. In the opinion
of its officials, Esorfranki-Cycad was the only
remaining tenderer
whose tender was
cost-effective
and compliant with the goals of the
PPPFA. Claiming to have used experience as a gate-keeper eThekwini
rejected Sanyathi’s
bid as unresponsive at the outset. Mr
Marnewick SC submitted for eThekwini that
Sizabonke
appeared to endorse the gate-keeping
approach in which functionality did not feature in the point-scoring
part of the process.
5
The first inkling the applicants had
of eThekwini’s reasons for not applying
Sizabonke
emerges from the opinion of the
appeals authority. It opined that
Sizabonke
did not interrupt this tender process
even though the advertised tender had indicated that 90 points would
be allotted to both
functionality and price because in the
evaluation process itself, price actually counted for 90 points.
EThekwini
alleged that
in this
way
it
gave full effect to
Sizabonke
during
the evaluation process. In the view of eThekwini’s officials,
price became a non-issue because there was only one
compliant
tender. Every other tenderer had been eliminated by that stage
without price having become a relevant consideration.
6
Neither
Sanyathi-Phambili nor Group Five-ICON met the prescribed
requirements of the tender. Sanyathi-Phambili’s tender
was non
responsive and Group Five-ICON’s tender failed to meet the
sub-minimum for quality. Therefore eThekwini did not
have to
evaluate the only remaining responsive tender. Although the tender
invitation provided for a scoring system of 70 (price):
20
(quality): 10 (preference), eThekwini scored the tenders in
compliance with
Sizabonke.
Consequently,
no tenderer was prejudiced.
7
So it
alleged.
In short, eThekwini raised the ‘no
difference’ defence in answer to the legality question. Even
though the tender
notice was founded on invalid regulations, it
contended that it made no difference because it ameliorated the
irregularity by
actually giving effect to s 2 (1) (b) of the PPPFA.
Mr Daniels SC for Esorfranki-Cycad
conceded that the invitation to tender and the adjudication of the
tender were non-compliant
with the mandatory provisions of s 2 (1)
(a) of the PPPFA. Notwithstanding this, he persisted that the court
has a discretion
under Promotion of Administrative Justice Act, 3 of
2000 (PAJA) to grant relief that is just and equitable in the
circumstances.
That relief, he submitted is to leave the award of
the contract intact.
In this review,
it became common cause that the tender notice conflicted with s 2
(1) (b) of the PPPFA. Is this conflict formal,
superficial and
easily remedied
as eThekwini and Esorfranke-Cycad submitted
or is it so flawed that it is not merely a formal irregularity but a
fundamental illegality
as Sanyathi and Group Five contended
?
The rule of law
Starting with
the Constitution,
8
all the
authorities
9
state
unambiguously that an illegal act is invalid.
No
one can be in any doubt that this is the position in our law. A
public body may not only be entitled but also duty bound to
approach
a court to set aside its own irregular administrative act,
10
because a public authority has an
interest and a duty to act on behalf of the public.
11
It is also under a duty not to submit
itself to unlawful contracts but to resist attempts to enforce such
contracts.
12
Neither
a
public authority
nor
this court has any discretion other than to declare an illegal act
invalid. Exceptionally, as in
Oudekraal
13
in which
the substantive validity of the initial act was not a precondition,
a declaration of invalidity is dispensable.
This,
in essence, is the import of the rule of law and the principle of
legality.
The
discretion arises only in deciding on an appropriate remedy. Whether
the declaration of invalidity results in the setting
aside,
correction or validation of the invalid act depends on the
circumstances. In circumstances such as
Oudekraal
,
setting aside was not necessary. However, the peremptory nature of
procurement law (discussed below) strictly proscribes the
wide range
of remedies permitted under s 8 of PAJA,
in
order to comply with the objectives of the law, especially those
aimed at preference and curbing corruption
.
Still, in order to meet the interests of all concerned
administrative authorities should have some inflexibility in
deciding
whether to set aside, correct or validate their actions.
14
To this
end PAJA acts as a countervailing force against the peremptoriness
of procurement law, provided that whatever remedies
the
administrative authorities elect, they do so fairly, transparently
and cost-effectively.
In devising a
remedy that strikes a balance between the interests of an
administrative body, the unsuccessful tenderers and the
successful
tenderer,
15
Froneman J recognises the need
for flexibility to ameliorate the effects of an illegality but not
at the expense of abandoning
the rule of law:
‘
The
apparent anomaly that an unlawful act can produce legally effective
consequences is not one that admits easy and consistently
logical
solutions but then the law often is a pragmatic blend of logic and
experience. The apparent rigor of declaring conduct
in conflict to
the Constitution and PAJA unlawful is ameliorated by both the
Constitution and PAJA by providing for a just and
equitable remedy in
its wake……
The
rule of law must never be relinquished
,
but the circumstances of each case must be examined in order to
determine whether factual certainty requires some amelioration
of
legality and if so to what extent
.’
16
(my
emphasis)
The factors
that count for determining the remedy include the nature of the
illegality and the reasonableness of eThekwini’s
decisions and
conduct.
Factors that
determine whether its decisions are reasonable include the nature of
its decision, its identity and expertise as
the decision-maker, the
range of factors relevant to its decision, the reasons given for
them, the nature of the competing interests
involved and the impact
of the decision. As for conduct, the complaint against eThekwini is
not only that it made unreasonable
decisions but also the process it
followed in making them was unfair and unlawful. Group Five alleges
that eThekwini was biased
in the way it processed the tenders and
the appeal. Sanyathi alleges that eThekwini defied the interdict.
The nature of these
challenges against eThekwini’s decisions
and conduct compel a review of both the substantive and procedural
aspects of
the tender.
17
The nature of the illegality
The question of illegality arises in
respect of three main decisions:
eThekwini’s initial decision to
issue a notice and invitation to tender in terms of the invalid
regulations.
eThekwini’s subsequent decision
to persist with the tender notwithstanding
Sizabonke
.
eThekwini’s final decision on
appeal to uphold its decision to award the tender to
Esorfranke-Cycad
The invalidity of the notice to
tender was not a formal, superficial irregularity but a fundamental
illegality.
Sizabonke
says so in the following analysis of
the regulations against the PPPFA :
‘
Accordingly,
those parts of reg 8 which mention functionality, and in particular
reg 8(3), are in conflict with the Act, since they
envisage that
points for functionality may be allocated within the 90 points
required by the Act to be awarded for price alone.
It also does not
assist to argue that, because organs of State inviting tenders made
under the impugned regulation decide to award
the entire 90 points
for price the impugned regulations pass muster. This is because the
Act requires a minimum allocation of 90
points for price whilst the
regulations purport to give a discretion to organs of State to
allocate fewer than 90 points for price.
’
18
He puts to rest any doubt about the
illegality of the regulations and what the remedy should be in the
following opinion:
‘
In
the view I take of the matter that the entire tendering process was
fatally flawed and invalid, the setting aside of the specific

contract is not going to result in the award of a contract to one of
the other tenderers under the same process. Any award of a
contract
or project in question will require the applicant to adopt an
entirely new tender process, based on the provisions of
the Act.’
19
This reasoning excludes the
interpretation that Mr Marnewick seeks to place on Gorven J’s
obiter remarks about a gate-keeping
exercise. The learned judge’s
reference to gate-keeping was merely to note rather than endorse
that the provincial treasury
directed municipalities to comply with
a circular in an attempt to address the conflict between the PPPFA
and its regulations.
In this case
too the deviation from s 2 (1) (b) of the PPPFA contaminates the
core of the tender.
Anything flowing from it is likewise
infected. Factually,
an invitation to tender
for a contract where price counts for only 70 points differs
substantially from a tender in which price
counts for 90 points. A
tender in which 70 points is allocated to price signals to the
tenderer that eThekwini placed less emphasis
on price,
notwithstanding the prescripts of s 2 (b) (1). Correspondingly, it
also signals that eThekwini valued quality more
highly for the
particular contract.
That eThekwini in fact scored the
Esorfranki-Cycad bid against 90 points for price is irrelevant and
in fact expressly disallowed
by
Sizabonke.
Effectively, not all tenderers tendered for the same thing i.e. a
contract in which price counted for 90 points. Not all tenderers

were evaluated for the same thing. The illegality is therefore
foundational.
Ouderkraal
,
an exceptional judgment in which an invalid act was allowed to stand
is distinguishable from this case on the facts and on the
applicable
law. In that case, the invalid act was not applied coercively by a
public authority against the subject; hence no
rule of law
consideration militated against allowing the invalid act to stand.
The subsequent acts were not dependant on the
legal validity of the
original administrator’s approval but merely on the fact that
it had been given.
20
However, when exercising its
contractual rights in a tender process, an authority exercises
public power; it does not exercise
contractual powers only and
jettison its administrative justice rights and public duties under
the Constitution and legislation.
21
As the superior party to a contract
an administrative authority dictates the terms and conditions of the
tender and the contract.
In a municipality as large as eThekwini its
superiority and power is all the more formidable. Consequently, its
positive duty
to take action to set aside a legally invalid act and
not simply ignore it is compelling.
22
Another
consideration is that an illegal act does not acquire validity
through the passage of time. Persisting with an illegal
process in
the hope that time will render it impractical to reverse is also bad
faith.
Exceptionally,
an invalid administrative act has been allowed to stand if, by the
fluxion of time and the extent of the work performed
by a successful
tenderer restarting the tender process over again is not practical.
23
A court may also substitute its
decision for that of the administrative authority. Such exceptional
situations include circumstances
in which the administrative
authority should not be allowed to exercise its power, or the court
is in as good a position as the
administrative authority to decide
the issue, or the particular outcome is inevitable and the decision
of the court complies
in all respects with the constitution and the
right to just administrative action.
24
None of these considerations applied
before Esorfranki-Cycad was awarded the tender and even thereafter
because it has not started
the work.
25
The flaw in the
invitation to tender in this case is so fundamental that
it
also contaminates eThekwini’s subsequent decisions to proceed
with the tender and to confirm its award on appeal.
The
only way eThekwini could rectify
the illegalities was
to
set aside the award to Esorfranki-Cycad, issue a
fresh notice
and invitation to tender
calling for tenderers
to tender on the basis that price would count for 90 points.
This
was the only rational outcome to cure the defects, if it wished to
proceed with the tender.
The law on procurement
Procurement law is prescriptive not
permissive. Section 217 (1) of the Constitution which is the genesis
of the law of procurement
emphasises that organs of state
must
contract ‘
in
accordance with the system which is fair equitable, transparent,
competitive and cost-effective
’. Subsection 3
anticipates national legislation that ‘
must
prescribe’
a fair
framework to give effect to policy. That legislation is the PPPFA
which is also prescriptive. Section 2 prescribes that
an organ of
state ‘
must
determine its preferential procurement
policy and implement it within (a prescribed) framework.’ Reg
2 (2) of the regulations
was emphatic that an organ of state ‘
must
…
only
apply
a preferential procurement system which is in accordance with the
act and these regulations’. (my emphasis).
Legislation concerning local
government specifically reinforces the prescriptive nature of
procurement law. Chapter 11 of the
Municipal Finance Management Act
6 of 2003 (MFMA) pertinently regulates the procurement of goods and
services and the selection
of contractors to assist in providing
municipal services.
26
Section 112 of MFMA reiterates the
constitutional imperative that supply chain management policy of a
municipality ‘
must’
be fair, equitable, transparent,
competitive and cost-effective. It also prescribes not less than 17
criteria for a regulatory
framework for municipal supply chain
management which must itself be fair, equitable, transparent,
competitive and
cost-effective
.
27
That it must also be legal goes
without saying. Accounting officers and all other officials of a
municipality involved in implementing
the supply chain management
policy ‘
must’
meet the prescribed competency
levels. For this, national treasury or the provincial treasury
provides assistance to train officials.
28
The Local Government: Municipal
Systems Act 42 of 2000 (MSA) is another piece of legislation that
targets municipalities generally
and procurement specifically.
Municipal councils established in terms of s 157 of the Constitution
have a duty to ensure that
their councils use the resources of the
municipality in the best interests of the local community and that
it provides, without
favour or prejudice, democratic and accountable
government.
29
Section 6 (1) reiterates that a
municipality’s administration is governed by the democratic
values and principles embodied
in section 195 (1) of the
Constitution. The administration of a municipality
‘
must…
(b)
facilitate a culture of public service and accountability amongst
staff; (c) take measures to prevent corruption
.’
30
A municipality that elects to provide
municipal services through a service delivery agreement with a
non-governmental entity ‘
must’
select the service
provider through a process that complies with chapter 11 of the
MFMA. The process ‘
must’
31
allow all prospective service
providers to have equal and simultaneous access to information
relevant to the bidding process.
minimise the possibility of fraud
and corruption.
make the municipality accountable to
the local community about progress with selecting a service
provider and its reasons for
its decisions.
Procurement law
is bolstered by other provisions of the Constitution and
legislation. The constitutional right to just administrative
action
and the PAJA apply to procurement.
32
Section
195 of the Constitution promises public administration that is
governed
by a high
standard of professional ethics, efficient economic and effective
use of resources, is development-oriented, provides
services
impartially, fairly, equitably and without bias, is accountable, and
fosters transparency by providing the public with
timely, accessible
and accurate information.
As the tender process constitutes
administrative action under the Constitution and PAJA, tenderers are
entitled to a lawful and
procedurally fair process. If their rights
are affected or threatened, they are entitled to an outcome which is
justifiable in
relation to the reasons given for the administrative
action.
33
In this case, the Standard Conditions
of Tender also re-enforced the peremptory nature of the conditions
of the tender. The very
first condition stipulates that the employer
and each tenderer
‘
shall
comply
with these conditions of tender. In their dealings with each other
they
shall
discharge
their duties and obligation… timeously and with integrity, and
behave equitably, honestly and transparently.’
34
(my
emphasis)
Tenderers are obliged to
‘
provide
rates and prices that are fixed for the duration of the contract and
not subject to adjustment
except
as
provided for in the Conditions of Contract identified in the Contract
Data’.
35
(my
emphasis)
Finally, case law emanating from our
highest courts confirms that t
he
general principle is that language of a predominantly imperative
nature such as '
must
'
is to be construed as peremptory rather than directory unless there
are other circumstances which negate this construction
.
36
S
ection
217 (1) of the Constitution is couched in peremptory terms.
37
A contract in breach of these
peremptory provisions is invalid and will not be enforced.
38
As a general rule an administrative
authority has no inherent power to condone failure to comply with a
peremptory requirement.
39
Consequently, a municipality that
failed to have in place a supply chain management policy was not
relieved of its statutory obligation
to act openly and follow a
process that was fair, equitable, competitive and
cost-effective
.
40
Proc
urement
law is prescriptive precisely because t
he
award of public tenders is notoriously prone to influence and
manipulation.
41
Allowing
discretion would weaken the law of its purpose of preferential
procurement and curbing corruption. Consistent with its
peremptory
nature the PPPFA prescribes that o
nly
acceptable tenders be considered. The PPPFA defines an acceptable
tender as any tender which in all respects complies with
the
specifications and conditions of tender as set out in the tender
document. As this definition severely proscribes the exercise
of any
discretion, an organ of state wishing to exercise discretion must
reserve such discretion for itself in the tender document
in the
interests of fairness, transparency and competitiveness provided the
PPPFA permits such discretion.
42
For
example, s 9 of the PPPFA permits a contract not scoring the highest
number of points to be awarded on reasonable and justifiable

grounds.
The PPPFA is
also prescriptive about the criteria for evaluating tenders. It
prescribes for big contracts, i.e. contracts above
a prescribed
amount, that the lowest acceptable tender must score 90 points for
price alone. Only in small tenders is price lowered
to 80 points,
but not to 70 points. Price therefore is central to preferential
procurement. The SCA also acknowledged the pinnacle
position of
price in holding that p
ublic
interest is best served by the selection of the tenderer who is best
qualified by price.
43
The prescriptive nature of
procurement law also serves the goal of ensuring that the selection
process is fair, equitable, transparent,
cost-effective
and competitive.
44
T
enderers
must be treated equally by being required to tender for the same
thing.
Schutz JA
observes:
‘
One
of the requirements of (a credible tender procedure) is that the body
adjudging tenders be presented with comparable offers
in order that
its members should be able to compare, another is that a tender
should speak for itself. Its real import may not
be tucked away,
apart from its terms. Yet another requirement is that competitors
should be treated equally, in the sense that
they should all be
entitled to tender for the same thing. Competitiveness is not served
by only one or some of the tenderers knowing
what is the true subject
of tender.’
45
Bolton in
The Law of Government
Procurement in South Africa
at 182 states:
‘
Tenderers
prepare their tenders based on the specifications laid down in a call
for tenders. As a general rule, therefore, an organ
of state should
not be allowed to make changes to tender specifications after a call
for tenders has been advertised. It is in
the interests of fairness
and transparency (and also competitiveness) for organs of state to
abide by the tender specifications
initially provided.’
The learned author continues:
‘
To
depart from tender specifications in any event gives one tenderer an
unfair advantage over the other tenderers, who will have
relied on
the standard practice in submitting their own tenders, the amount of
which will be based on the actual tender specifications.’
Ethekwini relied on
Mhonko’s
Estate and Security Services CC and Others v Transnet Ltd
Case NO. 9137/2006 CPD para 25
(unreported) (per Wagley J) to support its proposition that an
authority may set benchmarks before
or after the close of a tender
provided the benchmark is not arbitrary, unreasonable or irrational.
As a general proposition
the submission cannot be faulted. The
circumstances of each case determine whether the authority acts
arbitrarily, unreasonably
or irrationally. However, setting
benchmarks in a manner that has the effect of unfairly preferring
some tenderers over others
evidences bias and should be disallowed.
The learned judge acknowledges that it would be improper to
negotiate prices with some
candidates when others are eliminated
without being given a similar opportunity.
46
Other factors
Besides the law of procurement and
its prescriptive nature, other factors also go to determining the
reasonableness of eThekwini’s
decisions and conduct.
EThekwini
is one the largest municipalities in South Africa. This tender
valued at over R800m is one of the biggest any municipality
might
issue. Issuing tenders is one of the core activities of a
municipality. Commensurate with the risk involved, eThekwini
is
expected to employ competent officials appropriately qualified and
knowledgeable about the law and the risks. Therefore eThekwini

officials had to know the law of procurement intimately and the
risks of an illegal award.
National
treasury or the provincial treasury provides assistance to train
officials to implement procurement policy properly.
47
In addition to the size of the
tender, the dire need for the supply of water as an essential
service to peri-urban communities
elevated the degree of care and
competence expected of the decision makers.
The fact that construction companies
capable of building large and long pipes and of meeting the onerous
tender requirements were
few was not a reason to condone the
illegality of its tender notice and short-cut the peremptory
process. In fact, eThekweni
had no powers to condone the illegality.
Reasoning based on the scarcity of capacity led eThekweni to also
make assumptions about
Esorfranki-Cycad’s capabilities, which
may not be justified, and to deny the applicants a similar
opportunity.
In these circumstances, the decision
to persist with the tender after
Sisabonke
was wholly
unreasonable and unlawful.
The appeals authority’s
reasoning
Despite the welter of weighty
authorities on procurement law, the appeals authority selected only
a few. Its selection and the
reasons for drawing on them are
intriguing. For the proposition that a municipality is entitled to
decline to award a contract
and invite fresh tenders, the appeals
authority drew on
Steenkamp
NO v Provincial Tender Board Eastern Cape
2006
(3) SA 151
(SCA) (per Harms JA). The
ratio
of that case is that an unsuccessful
tenderer has no vested or contractual right that entitles it to
recover damages in delict.
That case is therefore irrelevant to the
law and facts in this case in which the unsuccessful tenderers are
not claiming damages.
Harms JA made another point, one that is
relevant to this case. He emphasized that ‘
if
the process of awarding a tender is sufficiently tainted, the
transaction may be visited with invalidity on review
’
.
48
EThekwini cited
Logbro
to support the view that a
term in tender documents that non-compliant tenders would not be
considered was enforceable, and that
tenderers are not entitled to a
perfect process. The remark that tenderers are not entitled to a
perfect process emerged only
as a concession in a nuanced argument
by counsel for the tenderer. It is neither the ratio nor an obiter
of
Logbro
.
49
Logbro
is
better known as authority for locating procurement contracts within
administrative law to
entitle
tenderers to a lawful and procedurally fair process and, where their
rights are affected or threatened, to an outcome
which is
justifiable in relation to the reasons provided for it. Furthermore,
although the authority charged with repairing a
flawed process is
entitled to take into account any consideration material to the
decision, it must give the compliant tenderers
an opportunity to
respond, at least in writing, to the considerations in question. If
eThekwini had paid attention to this ratio
it would have informed
its response to Group Five’s request to attend the appeal.
EThekweni would also have realised that
it could not evaluate the
bids against 90 points instead of 70 points without alerting the
applicants to the change and soliciting
their reaction.
50
Most importantly,
Logbro
is
remembered for overruling
Mustapha and Another v Receiver of
Revenue, Lichtenburg and Others
1958 (3) SA 343
(A) to hold
that a public authority that dictated the tender conditions was thus
undoubtedly
‘“
acting
from a position of superiority or authority by virtue of its being a
public authority” in specifying those terms.’
51
An authority is therefore burdened
with its public duties of fairness in exercising the powers it
derives from the terms of a
contract. In endorsing Shreiner JA’s
minority opinion in
Mustapha
Cameron JA quoted:
‘
(T)he
Minister acts as a State official and not as a private owner, who
need listen to no representations and is entitled to act
as
arbitrarily as he pleases, so long as he breaks no contract….
the Minister has no ….free hand. He receives his
powers
directly or indirectly from the statute alone and can only act within
its limitations, express or implied. If the exercise
of his powers
under the subsection is challenged the Courts must interpret the
provision, including its implications and any lawfully
made
regulations, in order to decide whether the powers have been duly
exercised. . .’
52
If eThekwini’s officials had
reflected on this ratio, they would have reminded themselves that it
was a public authority
and as such it could not conduct its affairs
as a private enterprise. It is accountable to the public.
For authority that the tender
specifications were permissive and discretionary rather than
mandatory, eThekwini relied on
Total Computer Services (Pty) Ltd
v Municipal Manager Potchefstroom Local Municipality and Others
[2007] ZAGPHC 239
;
2008
(4) SA 346
TPD (per Murphy J). In that case, the municipality had a
discretion to accept an unsigned tender because to reject it would
have
been ‘unduly formalistic’. Omitting to sign a
tender is manifestly a formal defect. It hardly compares with
tendering
for a contract in excess of R800m, founded on invalid
regulations, based on a tender notice that signalled that price
would count
for 70 instead of 90 points and one that yielded an
award evaluated on criteria different to those advertised in the
tender notice.
Furthermore, the tender specifications in
Total
Computer Services
appear to have allowed a discretion in
relation to formal defects. However, as discussed above, the
Constitution and the legislation
pertaining to procurement are
emphatically prescriptive. But correcting a formal defect was not
the main thrust of that judgment.
The main thrust of Murphy J’s
judgment that eThekwini omits to mention was to declare the awards
in
Total Computer Services
to be unlawful and unfair and to
review and set them aside because the municipality miscalculated
points, based its decision on
irrelevant considerations, contravened
the PPPFA by awarding a contract to a tenderer without the highest
score, and made a decision
that bore no rational connection to the
facts on which it was based. He further directed the municipality to
reconsider two of
the competing tenders
in
‘accordance with all laws, including s 217 of the
Constitution.’
53
EThekwini referred to
Metro
Projects CC and Another v Klerksdorp Local Municipality and Others
2004 (1) SA 16
(SCA) to ward off criticism that it sought clarity
from Esorfranki-Cycad and not from the unsuccessful tenderers. In
that judgment
Conradie JA remarked generally that fairness of a
tender procedure must be decided in the circumstances of each case.
In certain
circumstances it may be fair to ask a tenderer to explain
an ambiguity, to correct an obvious mistake, to clarify information,

without losing the attributes of fairness, transparency,
competitiveness and cost-effectiveness. The learned judge observed
further :
‘
There
are degrees of compliance with any standard and it is notoriously
difficult to assess whether less than perfect compliance
falls on one
side or the other of the validity divide. Whether or not there can in
any particular case be said to have been compliance…
may not
be an easy question to answer. In the present case there is no
difficulty.’
In that case the tender was tainted
by deception.
54
This case should also have presented
eThekwini with no difficulty because the tender was based on invalid
regulations.
EThekwini could not have missed the
import of two of the above cases on which it relied because they
relate specifically to local
government legislation. In
Metro
Projects CC
Conradie JA
summarised the legal prescripts then applicable to local government
procurement law.
55
He also pointed to
Logbro
‘
where
the leading cases are collected’,
56
and concluded that primarily, the
Local Government Transition Act, 1993
then applicable required a
local authority to be fair. Similarly, in
Total
Computer Services
Murphy J
delved extensively into ss 217, 195 (1) and 33 of the Constitution,
s 3 (2) (a) and 6 (2) (b) of PAJA and s 168 of the
MFMA.
In the circumstances, eThekwini could
not have missed the essential message of these binding authorities.
If it looked nowhere
else but to
Sizabonke,
as it claims it
did, it would have applied procurement law properly if it was
impartial and objective. Quite simply,
Sizabonke
drew
attention to the inconsistency between the very regulations that
eThekwini applied and the PPPFA, declared them invalid
and ordered
that the process start afresh. EThekwini could therefore not, in
good faith, have misunderstood the import of
Sizabonke.
Mr Marnewick SC for eThekwini sought to distinguish
Sizabonke
from this case on the facts. The
material facts are not distinguishable; besides, it is the principle
of legality that counts.
If eThekwini’s officials had
undertaken an objective and frank assessment of their own list of
authorities, they would have
come to no other conclusion but that
the process was invalid and had to be restarted. Instead, once the
BEC and BAC decided to
award the tender to Esorfranki-Cycad, the
appeals authority set about finding a legal basis to defend their
decision. That is
not the purpose of any appellate authority. At the
risk of over-simplification, the purpose of an appeal is to ensure
that the
initial decision is lawful and, if not, to correct it.
Although a measure of institutional
bias is predictable when an official of an institution has to
adjudicate a matter in which
the institution is a party, such bias
exceeds the bounds of tolerance when officials fail to apply their
minds professionally,
competently and, most of all,
constitutionally. EThekwini’s disregard for the constitution
and all the authorities including
its own citations is
breathtakingly brazen. Not only does its selection imply bias on the
part of the appeals authority but by
providing seriously misleading
reasons for its decision the appeals authority opens itself to a
charge of
mala fides
.
57
As the invalidity of the tender
notice was so obvious, eThekwini could have restarted the process
afresh without even approaching
the court.The CC has held that it is
always open to an authority to admit without qualification that an
administrative decision
had been wrong or wrongly taken and
consequently to expressly disavow that decision altogether.
58
EThekwini had no powers to condone
it. On the contrary, it had a duty to correct it.
59
Advertising the tender on invalid
regulations was manifestly an error of law which did not disqualify
eThekwini from reversing
its own act. Disavowing reliance on a wrong
or unconscionable decision is not precluded by the principle of
functus officio.
60
At the very least eThekwini had to
have entertained some doubt about the validity of the tenders once
it became aware of
Sizabonke
,
in which case the proper course of action then would have been to
follow
Qaukeni
61
and
Oudekraal
62
and approach the High Court for a
declarator at its own instance.
Procedural Fairness
EThekwini’s officials are
criticised for failing to follow fair procedures and to grant a
rational tender award. Dealing
first with procedural fairness, the
criticism relates to the delay in awarding the tender, withholding
information, the appeal
process, the clarification of
Esorfranke-Cycad’s award and eThekwini’s response to the
interdict.
Delay in awarding tender
Initially the
validity of the tenders was to endure for 12 weeks from 19 February
2010. On that basis EThekwini should have announced
the awarding of
the tender by 14 May 2010. It delayed until 16 December 2010 to
notify the unsuccessful parties of the award
of the tender to
Esorfranki-Cycad. Although eThekwini has produced minutes of
meetings of its BEC, it does not adequately explain
the reason for
mis-assessing the time for evaluating and granting the tender. The
long and unexpected delay of ten months together
with the inadequate
explanation is cause for suspicion that something untoward happened.
Coupled with other defects, suspicion
predictably calcifies into
belief that e
Thekwini’s officials
were biased.
Withholding information
Exactly when eThekwini concluded the
contract with Esorfranke-Cycad is not clear. Sanyathi suggested that
it might have been when
eThekwini notified them of its acceptance of
their tender. That is, before the appeal. EThekwini
denied
that it awarded the contract to Esorfranki-Cycad simultaneously with
notifying the applicants on 16 December 2010 that
they were
unsuccessful. It alleged that on 20 December 2010 it notified
Esorfranki-Cycad that their tender was recommended subject
to the
appeal.
63
This is
born out by eThekweni’s correspondence with Esorfranki-Cycad.
It maintained that it confirmed the award to Esorfranki-Cycad
only
on 7 June 2011, after it dismissed the appeals.
The date when eThekwini concluded the
contract with Esorfranki-Cycad should be an objective fact easily
proved on the mere production
of the contract. My attention has not
been drawn to the signed contract nor have I had the opportunity in
the limited time to
trawl through the volumes of record to locate
the contract or to track the communications between eThekwini and
Esorfranki-Cycad.
This is one of the matters for further
investigation that informs the remedy I order. For now it suffices
that eThekwini does
not dispute that it signed the contract after it
was interdicted from doing so.
The appeal process
Group Five submitted that the appeal
procedure revealed that eThekwini was biased or reasonably suspected
of bias. It alleged
that eThekwini delayed or withheld information
and documents that Group Five-ICON needed to prepare their grounds
of appeal.
EThekwini imposed unreasonable and onerous deadlines on
them to submit their grounds of appeal. It also failed to disclose
important
facts and documents relating to the adjudication of the
tender. So the complaint went.
EThekwini’s notice on 16
December 2010 to Group Five-ICON and Sanyathi-Phambili that their
tenders were unsuccessful was
sent not only on a public holiday and
the start of the December builders’ holiday but at a time when
most law firms are
closed. The applicants were unnecessarily
pressured and disadvantaged. EThekwini compounded the inconvenience
by failing to attach
reasons for its decision to reject Group
Five-Cycad’s tender when it informed them that they were
unsuccessful. It gave
reasons only about a month later on 14 January
2011.
The appeal process required aggrieved
tenderers to appeal to eThekwini within 14 days from the notice of
its decision. EThekwini
should have allowed the 14 days to appeal to
run from the date it supplied reasons for rejecting their tenders.
Group Five-ICON
had to endure the indignity and anxiety of having to
plead for extensions of time to the superior and powerful authority
of eThekwini.
Despite the inconvenience, Sanyathi-Pambili and Group
Five-ICON noted their appeals against eThekwini’s decision to
award
the tender to Esorfranki on 1 March 2011 and 23 December 2010
respectively. Group Five-ICON supplemented its grounds of appeal
on
4 March 2011.
Having delayed
seven months to award the bid, having omitted to attach its reasons
for rejecting their tenders, having taken a
month to give Group
Five-ICON its reasons for rejecting their tender and having
pressured Sanyathi-Phambili and Group Five-ICON
to note their
appeals, eThekwini then delayed another three months to decide the
appeal. On 6 June 2011 Sanyathi-Phambili had
to obtain an order
before van Zyl J directing eThekwini and its BAC to deliver the
appeal decision within 14 days. By letter
dated 8 June 2011 to
Sanyathi-Phambili, eThekwini wrote that its appeal was dismissed.
64
Production of documents
On 3 January 2011 Group Five-ICON
received the revised report of the BEC on 24 January 2011. It asked
eThekwini for the unrevised
report. eThekwini replied on 26 January
2011 that it was at a loss in regard to the request for unrevised
reports and that it
had already supplied the only version of the
report on which eThekwini’s BAC based its decision. The
following day, apparently
after getting clarity of the documents
requested, eThekwini admitted that it had an original version of the
report. Whether eThekwini’s
officials were deliberately
concealing relevant information from Group Five-ICON is hard to say
on reading the papers. This is
an enquiry for the council of
eThekwini to pursue. Until then their conduct is suspect.
Clarification
EThekwini had
represented to Group Five-ICON that it had not had any
correspondence with Esorfranki-Cycad to clarify the latter’s

tender. The evidence suggests that they did communicate verbally. It
is now common cause that eThekwini had in fact sought clarification

from Esorfranki-Cycad but not from Group Five-ICON. As Conradie J
pointed out in
Metro Projects CC
above to merely seek
clarification from one tenderer and not others an authority does not
commit procedural irregularity. Whether
eThekwini’s seeking
such clarification was an irregular step depends on whether
substantively the tender needed clarification.
This is considered
below under the substantive fairness of the tender.
The interdict
On 22 June
2011, after receiving the appeals authority’s reasons for
dismissing its appeal, Sanyathi-Phambili notified eThekwini
of its
intention to apply for an interdict to stop eThekwini and
Esorfranki-Cycad from concluding further contracts and performing

any construction arising from the tender, pending this review,
unless it received an undertaking by the following day.
65
The
undertaking eThekwini had given on 31 January 2011 not to implement
the award pending the appeals had expired. Not having
received the
further undertaking, Sanyathi-Phambili served the interdict on
eThekwini at 16h24 on Friday 24 June 2011 and obtained
a rule
nisi
unopposed
on 27 June 2011 soon after 11h00.
Notwithstanding
at least four days notice of the application for the interdict,
eThekwini proceeded with its plans to host a media
launch
publicising the signing of the contract with Esorfranki-Cycad at
14h30 that very afternoon, barely a few hours after being

interdicted from signing the contract.
66
It is
not clear whether eThekwini received the order granting the
interdict before it signed the contract.
EThekwini contends that as it had
confirmed the award to Esorfranki-Cycad on the 7 June 2011, the
media launch was merely ceremonial;
it had already committed itself
contractually. On its version, it formally accepted
Esorfranki-Cycad’s tender only on 27
June 2011.
However, it persisted in signing the
contract that day after Sanyathi and Van Zyl J’s order
notified it of the application
to review the awarding of the tender.
In granting the order to deliver reasons for the appeal decision,
the learned judge had
alerted eThekwini that the review application
might be instituted within 60 days.
Even if the
signing was ceremonial, eThekwini
had
a duty to establish what the outcome of the application was, knowing
that its planned signing of the contract might be declared
unlawful.
Unlike contracting for private enterprise, eThekwini did not have a
free hand to contract with
Esorfranki-Cycad.
In the case of an
alleged illegality, it is not a passive bystander but a public
authority that is duty-bound to represent the
public interest. In as
much as the law imposes on it a positive obligation to approach the
court to remedy an illegality, when
it fails to do so and another
party steps into the breach, eThekwini had an even greater
responsibility to heed the process and
participate in it in the
public interest.
67
As Sanyathi was challenging the
legality of a huge tender, the awarding of which eThekwini was about
to publicise, eThekwini should
have ascertained the basis of the
interdict, assessed whether it had merit and whether the court had
granted relief. As eThekwini
was aware of the illegality of its
tender notice, it should also have anticipated that the interdict
would be granted. If it
did not know what the likely outcome would
be then it had a duty to find out. To persist with the signing
ceremony was bad faith.
I
mportantly,
eThekwini misrepresented to the public and the local community to
which it is accountable, that the contract for the
provision of
water pipeline for the Western Aqueduct was proceeding when it had
been stalled by the interdict.
Findings
Although the first five complaints of
procedural unfairness do not on their own result in procedural
unfairness sufficient to
warrant the setting aside of the award,
considered cumulatively, they make a strong case of bias on the part
of eThekwini’s
officials. Their substantive reasons for their
decisions discussed below fortify Group Five’s case for bias.
Furthermore,
eThekwini reveals its intransigence in its reaction to
the interdict. It was not prepared to backtrack on its decision to
award
the tender to Esorfranki-Cycad, when, in all the circumstances
of this case, it was the most prudent course of action.
Substantive fairness
A stillborn process
Mr Marnewick submitted that the issue
is whether the tenders were assessed scores that were rationally
connected to the evidence
before eThekwini. This question does not
arise unless the evidence was adduced through a lawful procedure and
was relevant. As
pointed out above, the invalid tender notice also
contaminated the evidence it elicited. EThekwini could not breath
legal life
into a tender process that was stillborn.
Furthermore, the evidence became
irrelevant once eThekwini decided to evaluate the tenders on a basis
different from that on which
the applicants prepared their tenders.
EThekwini tucked away from the applicants the real import of the
tender, namely, that
price would in fact count for 90 points in the
evaluation of the bids. By departing from the tender specifications
it gave Esorfranki-Cycad
an unfair advantage over the other
tenderers, who relied on the tender notice for the specifications.
EThekwini’s allocation of 70
points for price in the tender notice was a material deviation from
s 2 (1) (b) of the PPPFA.
Rationally, a tender in response to a
notice in which price counts for 70 points differs materially from a
tender responding
to a notice in which price counts for 90 points.
By changing the tender specifications privately and informally so
that price
actually counted for 90 points eThekwini not only
deviated materially from the prescribed process and substantive
requirements
but also violated the constitutional imperative of
fairness, transparency and competitiveness. In short, by obtaining
tenders
through an invalid invitation to tender and thereafter
persisting in evaluating those tenders, eThekwini rendered an
irrational
and substantively unfair award to Esorfranki-Cycad. But
the substantive unfairness does not end there.
Fixed price v price adjustable
Sanyathi and Group Five further
challenged that the award to Esorfranki-Cycad was unresponsive and
unacceptable firstly because
Esorfranki-Cycad offered a fixed price
instead of an adjustable price bid. Secondly, it offered two
managers instead of three.
EThekwini submitted that clause
F.3.8.2 of the tender conferred a discretion on eThekwini to
determine whether deviations were
material. As for the fixed price
objection, on a plain reading clause F.2.10.3 of the tender entitled
tenderers to submit prices
subject to escalation as provided for in
the conditions of contract. Tenderers had the prerogative to submit
a fixed price or
a price subject to escalation bid. A fixed price
tender would nevertheless be subject to re-measurement of
quantities, not values.
As for accepting Esorfranki-Cycad’s
offer of two instead of three contract managers, eThekwini responded
that it allowed
this because the third contractor would not have
been at an additional cost to eThekwini. In any event, eThekwini
awarded zero
points to Esorfranki-Cycad for the third contract
manager. EThekwini therefore denied acting arbitrarily, capriciously
or irrationally
and being biased in favour of Esorfranki-Cycad.
Esorfranki-Cycad concurred with
eThekwini that notwithstanding clause 46.2 of the general rules of
contract which provided for
adjustment of the contract price, clause
F2.10.3 of the standard conditions of tender contemplated fixed
rates for the duration
of the contract unless a condition of the
contract read with the contract data permitted adjustment.
Esorfranki-Cycad’s
bid for a ‘F
ixed
firm price is offered. No escalation applicable.
’ was
ambiguous as it was never Esorfranki-Cycad’s intention to
offer a fixed price. It was always subject to re-measurement.
So
submitted Mr Daniels SC for Esorfranki-Cycad.
The standard conditions of tender
prescribed the test for responsiveness. That test required eThekwini
on opening and before evaluating
the bids in detail to ensure that
each tender properly received complied with the requirements of the
conditions of tender and
that it was responsive to the other
requirements of the tender document. It was to regard as responsive
a tender that conformed
to all the terms, conditions and
specifications of the tender document without material deviation or
qualification. A material
deviation or qualification was one which,
in eThekwini’s opinion, changed its or the tenderer’s
risk and responsibilities
under the contract or would affect the
position of other tenderers presenting responsive tenders if it were
to be rectified.
EThekwini had a duty to reject a non-responsive
tender and not to allow it to be subsequently made responsive by
correction or
withdrawal of the non-conforming deviation or
reservation.
Furthermore, o
nly
acceptable tenders as defined counted.
In this case, clause F.2.10.3.
stipulates that tenders ought to:
‘
provide
rates and prices that are fixed for the duration of the contract and
not subject to adjustment except as provided for in
the Conditions of
Contract identified in the Contract Data’
.
The exception is in clause 46.2 of
the Contract Data which reads:
‘
Contract
price adjustment is applicable’.
The meaning of
this clause is plain to lay persons and to experts. According to Roy
George Turner, an experienced quantity surveyor
of forty seven years
practice, this is also the industry meaning.
Clause 46.2 further prescribes that
the values of the certificates ‘
shall
’ be
adjusted in accordance with the contract price adjustment schedule
which in turn prescribes certain values for the
coefficients.
Furthermore, t
he regulations defined ‘firm
price’ which Esorfranki-Cycad offered, to mean
‘
price
that is subject to adjustments in accordance with the actual increase
or decrease resulting from the change, imposition, or
abolition of
customs or excise duty…or tax which … has an influence
on the price …
’
In short, the adjustments to price are
triggered by a customs, duties, levies and taxes.
The difference between
Esorfranki-Cycad’s fixed firm price contract and the tender
conditions is as stark to the court as
it is to experts. Mr Turner
describes the difference thus:
‘
A
fixed
price
tender is a tender in which the price is not subject to any
adjustment or increases or decreases in the cost of labour, material,

fuel, plant and other basic input costs in the construction of the
project.
The
tenderer consequently makes his own allowance for these items and
includes it in his tender thereby assuming the risk or benefit
of any
shortfall or excess in his allowance…
A
subject to escalation
contract provides for a price that is
subject to adjustment in line with price adjustments as per the
relevant indices which are
issued by authoritative bodies such as the
BER (Bureau of Economic Research) and SAFCEC (South African
Federation of Civil Engineering
Contractors) and are based upon input
costs and market conditions in the construction industry….
(As
for) (
c)ontract price
adjustment (escalation) forecasting,
various
indices and related formula exist which are used to forecast
provisions for escalation in the construction industry. Two
s
uch
indices …are the… BER Contract Price Adjustment
Provisions (CPAP) and the …SAFCEC Index.
The BER Cost Index can be used to
determine the percentage rise in building cost over a period based on
(certain) formula…
The SAFCEC Index can be used to determine
escalation factors (also) based on a formula’ that takes into
account labour, plant,
materials and fuel.
Case law too
recognises that in the field of procurement, fixed price or lump sum
bids differ materially from a bid in which price
is subject to
escalation or ‘rate and measurement’.
68
Given
the stark differences between the different pricing methods by no
stretch of any interpretive enterprise could a fixed price
be
regarded as a price subject to adjustment and
vice
versa
.
Contrary to eThekwini’s contention therefore, tenderers did
not have a choice between submitting a fixed price bid, a
price
subject to adjustment bid and a price subject to escalation bid.
Furthermore, given the peremptory statutory provisions
regarding
price, the tender documents had to be clear on the requirements for
price. Esorfranki-Cycad’s bid for ‘A
fixed
firm price. No escalation applicable’
was
unambiguously the opposite of the tender requirement. Ethekweni
understood
69
from
Esorfranki-Cycad’s tender that no escalation applied.
Although
materiality of a deviation depends on eThekwini’s opinion,
such opinion has to be rational and free of bias.
To
allow such a deviation on price that was manifestly material,
renders the award to Esorfranki-Cycad irrational and biased.
Mr Turner points out that comparing a
fixed price offer with an offer subject to adjustment for cost
changes introduces an element
of subjectivity as it is dependant
upon the assumptions of the assessor who must form a view on the
duration of the contract,
the size of the project, the likelihood of
changes and the assumed rate of progress. This subjectivity is
evident in eThekwini’s
assessment of Esorfranki-Cycad’s
bid firstly when it assumed without establishing as a fact that
Esorfranki-Cycad had ‘built
in’ some form of protection
against inflation without establishing what that protection was and
whether it was realistic
and suitable for the high risks involved in
this tender.
Secondly, eThekwini in its discretion
applied price escalation instead of contract price adjustment
prescribed in the contract
data. Given the substantial difference
between these two pricing methods, the exercise of this discretion
allowed a material
deviation from the conditions of the tender in
order to favour Esorfranki-Cycad.
Thirdly, eThekwini de-escalated
Esorfranki-Cycad’s price at the rate of 11.25% per annum which
it alleged is the average
percentage derived from the current
escalation indices from the Western Aqueduct Phase One contract. Mr
Turner contends that
the rate of de-escalation was too high and
unsupported by the authoritative indices viz, the BER index average
of 5.12% and the
SAFCEC index average of 7.74% per annum.
The rate of escalation or
de-escalation should not be an issue at all as price escalation did
not apply; contract price adjustment
applied. Significantly, the
effect of applying 11.25% as opposed to 5.12% or 7.74% was to
de-escalate Esorfranki-Cycad’s
bid from R750m to R646m making
it the lowest bid. EThekwini performed another calculation in which
it escalated the price of
other tenderers at 11.25% to the contract
commencement dates of 1 December 2010 and 1 March 2011. Predictably,
Esorfranki-Cycad
scored the lowest again. Left with a situation in
which it was required to compare a fixed price tender with price
adjusted tenders,
eThekwini devised
the
escalation-descalation formula
as a way of undertaking the
comparative exercise. As
the tender documents
prescribed price adjustment only and does not contemplate escalation
and de-escalation, eThekwini’s
evaluation of
Esorfranki-Cycad’s bid
was
ultra
vires
.
Even if the purpose of the escalation
was to test whether eThekwini was receiving value for money and not
for purposes of rejecting
the applicants’ bids, the
comparative exercise informed the decision to accept
Esorfranki-Cycad’s bid. As such eThekwini
used an
ultra
vires
process to decide the award. Therefore, not only did
eThekwini fail to enquire into relevant criteria that constituted
the ‘built
in’ protection, it also considered irrelevant
criteria by escalating and de-escalating price and by using a
subjective
if not controversial rate of 11.25% per annum. By so
evaluating Esorfranki-Cycad’s fixed price tender eThekwini
disadvantaged
other tenderers who might have competed on the basis
of a fixed price tender had they known that eThekwini would deviate
from
a material term of the tender conditions.
Two managers instead of three
An offer of two managers is
materially different from an offer of three managers. It has
implications for pricing, cost, risk
and competitiveness. As
Sanyathi protested, the costs of one manager of say, R30 000 per
month affects price materially in a
long term contract. This
deviation was therefore material. More importantly, having regard to
the tender document’s requirements
for a responsive tender,
Esorfranki-Cycad’s tender was not responsive. As a tender of
three managers compared to two managers
has a demonstrably different
impact on price, risks, responsibility and competitiveness,
eThekwini’s opinion to hold otherwise
was irrational. Bias in
favour of Esorfranki-Cycad also taints its opinion. Even if
eThekwini allocated zero for this item, by
deviating from the tender
conditions privately and without notice to or consultation with
other tenderers it violated the obligation
to ensure that tenders
are transparent and competitive.
Clarification
Although I have said that seeking
clarity from one tenderer and not others is not necessarily a
procedural flaw, eThekwini’s
reasons for seeking clarity of
Esorfranki-Cycad’s bid are not justified.
In terms of F3.10 of the standard conditions of tender, eThekwini
needed to seek clarification only if a tender offer could lead
to
ambiguity in a contract. Esorfranki-Cycad tendered: ‘
A
fixed firm price is offered. No escalation applicable
’.
EThekwini sought to clarify what was meant by fixed price and why
Esorfranki-Cycad offered only 2 instead of 3 managers.

Esorfranki-Cycad’s tender is clear.
So too is the
condition of tender that contract price adjustment applies.
Above all, the regulations defined ‘firm price’.
Experienced companies such as Esorfranki-Cycad must surely know
the
difference between fixed price, fixed firm price, price subject to
escalation and contract price adjustment and be able to
say exactly
what they mean, especially when the contract is worth more than
R800m. Ethekweni therefore had no need to seek clarification.
By seeking
clarification eThekwini assisted Esorfranki-Cycad to submit an
otherwise unacceptable, unresponsive tender, in violation
not only
of all the prescripts of procurement law but also of its very own
standard conditions of tender. It was anti-competitive
to other
tenderers and potential tenderers
who did not enjoy the same
indulgence.
EThekwini
did
not reserve for itself in the tender documents any
discretion
to
waive full compliance with the substantive conditions of
tender to
allow a fixed price bid instead of a
price adjustable bid,
or two managers instead of three.
Assuming that the reservation of such discretion is permitted
notwithstanding the prescriptive
nature of procurement law,
eThekwini had to exercise such discretion impartially and fairly,
which it did not do.
Disqualification of
Sanyathi-Phambili
EThekwini’s main defence to
Sanyathi’s assertions was that Sanyathi-Phambili failed to
meet the threshold of 80% which
disqualified it. It attempted to
show that its scoring of Sanyathi-Phambili bid was rational. Unlike
in
Sizabonke
, Sanyathi-Phambili was eliminated at the initial
stage of the tender before the evaluation. Sanyathi-Phambili’s
tender
price was not the best. The Esorfranki-Cycad’s tender
was the best price because it was fixed. As the first respondent was

left with one responsive tender, it did not have to embark on a
comparative analysis to award the tender. So it was submitted
for
eThekwini.
As the authorities caution against
stepping into the shoes of the administrative authority,
70
I refrain from doing so not only
because I cannot evaluate the bids but also because I do not need to
for the purposes of this
judgment, in view of my finding that the
award to Esorfranki-Cycad was substantively unlawful on other
grounds. Besides, the
disputes of fact about Sanyathi’s
experience have to be tested through oral evidence before any
definitive findings can
emerge.
Disqualification of Group Five
–ICON
The reason eThekwini gave for
rejecting Group Five-ICON’s bid was that their covering letter
to their bid contained qualifications
regarding the proving of
services, shoring, bedding and backfilling which it considered to be
material technical divergences
from the tender specifications that
put eThekwini at risk. The Group Five-ICON tender was prefaced with
what they called ‘clarifications’
because in their
opinion the tender documents were vague.
As indicated above, it is pointless
trying to fathom whether eThekwini applied a rational mind to the
substantive merits of the
tenders when the evidence before it was
irrelevant to the terms on which they were to be evaluated. Group
Five-ICON should have
at the outset clarified any ambiguity in
eThekwini’s documents by ascertaining their exact meaning from
eThekwini before
submitting their tender. However, if their
qualifications or ‘clarifications’ constituted material
technical divergence,
it should have been obvious to eThekwini from
the outset that Group Five-ICON’s tender was unresponsive;
eThekwini should
have rejected it without allowing it to enter the
next phase of the evaluation. Instead, eThekwini allowed its BEC to
consider
the tender further and to report to the BEC in May and
April 2010. Only in October 2010 when it presented its final report
did
eThekwini conclude that Group Five-ICON’s bid constituted
material technical divergence and could not be considered further.
Surprisingly, eThekwini did not
advance this reason in the ruling of the appeals authority. Instead
of engaging with Group Five-ICON’s
grounds of appeal,
eThekwini blandly replied that ‘
it
is not unreasonable for the municipality to not disturb an
evaluation which has been made honestly and without obvious error’.
Couched in the double negative, it seems that Ethekweni might
itself not have been convinced of the reasonableness of its
evaluation.
For the same reasons that I do not have to evaluate the
substantive merits of Sanyathi’s bid I do not delve into the
merits
of Group Five-ICON’s bid.
Conclusion
This case typifies how not to conduct
procurement. The illegality and consequent procedural and
substantive irregularities are
precisely of the sort that the
prescriptive constitutional and statutory framework seeks to
prohibit. Even if Sanyathi and Group
Five were not the best tenders
on criteria other than price, i.e the gate-keeping criteria, which
might disqualify them again
if they tender afresh, all the
tenderers, the administration and the community deserve a fair
procedure. A fair procedure is
not only one that ensures
transparency and competitiveness but also one that is free of the
slightest whiff of corruption.
The remedy
As indicated above, having granted an
order declaring the tender process illegal and invalid and setting
aside the award of the
contract, the purpose of this judgement is to
give reasons for that order and devise an appropriate remedy.
Froneman J observed
that the generous jurisdiction of s 8 of PAJA
enables a wide range of just and equitable remedies that include
declaratory orders,
orders setting aside the administrative act,
orders directing the administration to act in an appropriate manner
and orders prohibiting
it from acting in a particular manner.
71
In choosing a just and equitable
remedy, the fundamental constitutional importance of the principle
of legality which requires
invalid administrative action to be
declared unlawful must be emphasized before a court grants any
discretionary relief.
72
Judgments call
for the courts to strike a balance between the interests of the
administrative body, the unsuccessful tenderers,
the successful
tenderer
73
and, I
add, the public.
In this case, the invalidity is so
fundamental that it is incapable of being corrected, validated or
substituted. The bids were
not tendered on the basis that price
counted for 90 points but have to be evaluated on that basis.
Consequently, the court cannot
refer the matter to the BEC to
re-evaluate some or all of the tenders as Sanyathi initially
suggested. Nor can the court substitute
its decision for that of
eThekwini.
However, my
findings show that eThekwini’s officials breached several
sub-sections of section 6 of PAJA. Topping the list
is my finding
that they were biased.
74
Their
actions were procedurally unfair
75
and not
authorised by the empowering provision. They considered irrelevant
factors and disregarded relevant factors.
76
Their
actions were not only irrational but also unconstitutional and
unlawful.
These
violations are so serious and pervasive that
the
observation that the high standards set in s 217 (1) of the
Constitution and the PPPFA seem to be honoured more in the breach

than in the observance,
77
is an understatement. The literature
is littered with exhortations to accountability, fairness, equity,
impartiality, ethicality,
transparency, competitiveness and
cost-effectiveness. This high standard of governance of public
administration at all levels
is prescribed in order to prevent
corruption. These exhortations and standards, and the plethora of
authorities from our highest
courts should have left eThekwini
officials in no doubt that it could not proceed with the tender
after
Sizabonke
.
EThekwini had to know the case law on procurement not only because
it specialises in procurement but also because all the cases
precede
the evaluation of the bids.
From the
perspective of efficient management, prudence required eThekwini to
comply with
Zizabonke
from
the outset. It was less risky and therefore less costly
then to start afresh than to continue and compound the illegality.
Whether
eThekwini’s officials even considered the management
of risk angle is doubtful because it advances not reasons for
rejecting
it.
In these circumstances, the actions
of eThekwini’s officials amount to gross negligence, sheer
incompetence or lack of capacity.
Having found that the officials
were intransigent and that they acted in bad faith, corruption
cannot be ruled out.
The impact of awarding a tender
unlawfully is that it cannot shake off the stench of corruption that
accompanies it, however well-meaning
the officials awarding it might
be. Not only the officials but the administration itself becomes
suspect and vulnerable to attack
from the community the
administration is meant to serve. Unsuccessful tenderers also want
justice.
Hence the
remedy I devise is aimed at inviting the council of eThekwini to
consider the evidence in this review and the reasons
for my findings
with a view to investigating which officials are guilty of
misconduct or poor performance or lack the capacity
for their
positions. Furthermore, in the exercise of its
right
and duty to exercise eThekwini’s executive authority in terms
of s 4 of the MSA,
the
council should consider recovering from those found guilty the costs
eThekwini incurred as a consequence of their unlawful
conduct. In
the exercise of such executive authority to conduct the
investigation eThekwini ‘
must’
respect
the rights of citizens and others protected by the Bill of Rights.
78
Locus standi
Esorfranki-Cycad and eThekweni
prefaced their opposition with an objection to the
locus standi
of Sanyathi and Group Five. Ethekweni abandoned its opposition at
the hearing.
The crux of
Esorfranki-Cycad’s challenge was that the applicants act on
their own in this review without their respective
joint venture
partners in the tender; consequently, they cannot challenge the
substantive merits of the tender nor can they claim
any relief for
themselves. In amplification of its opposition to the Group Five
application, Mr Daniels contended that the only
interest Group Five
had acting on its own was that of a construction company that
regularly participates in tenders and which
now sought an
opportunity to participate in a fresh tender. Mr Daniels
acknowledged that Sanyathi and Group Five have standing
on their own
to challenge the legality of the tender process for non-compliance
with the PPPFA. T
his
concession alone disposes of the objection. As unsuccessful
tenderers they automatically have
locus
standi
to challenge the
award of the tender,
79
notwithstanding the merits of their
own tenders because the award to Esorfranki-Cycad has the capacity
to affect legal rights.
80
Furthermore, s
38 a of the Constitution read with s 6 (1) of PAJA entitles any
person acting in their own interest to the right
to approach a
competent court to allege that a right in the Bill of Rights has
been infringed or threatened. Any person has merely
to allege that a
right in the Bill of Rights has been infringed or threatened to
acquire access to a court. The threshold for
access is therefore low
and consistent with the inclusive quality of our Constitution. The
Constitutional Court encourages this
broad, generous approach
81
to give
effect to the right everyone has to access to the courts. It
discourages formalism and legal objections that obstruct
access to
the court.
The right to
just administrative action and to access to the courts are powerful
rights that can hardly be lost by the mere inaction
or refusal by a
joint venture partner to participate in their enforcement.
Bamford
in the Law of Partnership and Voluntary Association in South Africa
82
clarifies
that a partner may join a co-partner as co-defendant if the
co-partner refuses to join the partner in enforcing a debt
due to
the partnership. The issue is less about standing and more about
notifying persons of the proceedings so that they can
elect to
exercise the right of access and participate in the proceedings as
plaintiffs or as defendants. This case is distinguishable
on the
facts, the law and the remedies sought from
Sandton
Civic Precinct (Pty) Ltd v City of Johannesburg & Another
in
which a party to a consortium sought declaratory relief in relation
the development of property.
83
Above all, it
is in the public interest that the circumstances of this tender be
publicly ventilated. As eThekwini failed in its
responsibility to
correct the illegality or have the court correct it, the court can
not relinquish its function as an auditor
of legality
84
now that
another interested party has taken the initiative. The applicants
have an interest
85
in their
own right and as partners to the joint venture to institute these
proceedings.
In the circumstances,
Esorfranki-Cycad’s objection to the
locus standi
of
Sanyathi and Group Five has no merit and is dismissed.
Costs
I ordered eThekwini to pay the costs
of Sanyathi and Group Five. This litigation is as a result of the
unreasonable and unconscionable
conduct of its officials who
triggered and persisted in this dispute. The council of eThekwini in
the course of its deliberations
should endeavour to recover these
costs from officials who acted unlawfully or committed misconduct so
that tax payers are not
penalised.
Order
Accordingly, I
supplement the order I granted on 30 September 2011
declaring
the tender process illegal and invalid and setting aside the award
of the contract to Esorfranki-Cycad, with eThekwini
paying the
applicants’ costs, with the following remedy:
The applicants, Sanyathi Civil
Engineering and Construction (Pty) Ltd and Group Five Construction
(Pty) Ltd shall serve a copy
of this judgment on the mayor of
eThekwini.
The mayor of EThekwini shall table
this judgment before the council of eThekwini.
The council of eThekwini shall
consider this judgment with a view to:
conducting or commissioning an
investigation into the conduct of officials involved in the
awarding of tender number WS5980
for the construction of the
Western Aqueduct Phase Two;
recovering the costs eThekwini
incurred from those officials found guilty of misconduct or acting
unlawfully.
D. Pillay J
Dated: 24 October 2011
Appearances
Case
no 7538/2011
For
the Applicant: Broster SC with Adv P. Wallis
Instructed
by: M. B Perderson & Associates
For
the 1
st
respondent: Marnewick SC with Sachs
Instructed
by: Berkowitz Cohen Wartski Attorneys
For
the 2
nd
and 3
rd
respondent: Daniels SC
Instructed
by: Du Toit Mcdonald Inc
Case
no: 9347/2011
For
the Applicant: Olsen SC with Salmon SC
Instructed
by: Norton Rose
For
the 1
st
and 4
th
Respondent: Marnewick SC with
Adv Sachs
Instructed
by: Berkowitz Cohen Wartski Attorneys
For
the 2
nd
and 3
rd
respondent: Daniels SC
Instructed
by: Du Toit Mcdonald Inc
For
the 5
th
and 6
th
respondent: Broster SC withAdv
P. Wallis
Instructed
by: M. B Perderson & Associates
For
the 7
th
respondent: No appearance
1
S
1(c) of the Constitution of the Republic of South Africa Act 108 of
1996
2
S
2 of the Constitution
3
2011
(4) SA 406
4
Sanyathi
Review 199
5
Sizabonke
para 30
6
Sanyathi
Interdict 162 para 13
7
Sanyathi
Review 363-4 para 95
8
S
2
9
Fedsure
Life Assurance Ltd and Others v Greater JHB Metropolitan Council
1998 (12) BCLR 1456
(CC) para 56-58;
Oudekraal Estates (Pty)
Ltd v City of Cape Town
2004 (6) SA 222
(SCA) para 26-38 per
Howie P et Nugent JA;
Logbro Properties CC v Bedderson NO
2003 (2) SA 460
(SCA) para 5;
Chairperson,
Standing Committee and Others v JFE Sapela Electronics (Pty) Ltd
2008 (2) SA 638
SCA para 11 (per Scott JA);
Municipal
Manager: Qaukeni Local Municipality v FV General Trading CC
2010
(1) SA 356
(SCA) para 15-16;
Premier, Free State v Firechem Free
State (Pty) Ltd
2000 (4) SA 430
SCA para 30 (per Schutz JA);
Total Computer Services (Pty) Ltd v Municipal Manager
Potchefstroom Local Municipality and Others
[2007] ZAGPHC 239
;
2008 (4) SA 346
TPD
(per Murphy J) para 20-33; 55;
Minister of Social Development v
Phoenix Cash & Carry-PMB CC
[2007] 3 All SA 115
(SCA) para
1-2 (Heher JA);
Gauteng Gambling Board v
Silver Star Development
Ltd
2005 (4)
SA 67
SCA at para 28;
Bengwenyama Minerals (Pty) Ltd v
Genorah Resources(Pty) Ltd
2011 (4) SA 113
(CC) para 79; (per
Froneman J) ;
Giant Concerts CC v Minister of Local Government,
Housing and Traditional Affairs, KwaZulu-Natal and Others
2011
(4) SA 164
(KZP) para 20-22 para 62;
Sizabonke
para 22; Cora
Hoexter, Administrative Law in South Africa, Juta 2007 p225-6; Cora
Hoexter
The New Constitutional and Administrative Law
Vol 2
p83-84; JR de Ville
Judicial Review of Administrative Action in
SA
p 16, 152; 263
10
Qaukeni
above para 23 and cases cited there;
Oudekraal
above para 39
per Howie P et Nugent JA
11
Qaukeni
above para 23;
Pepcore Retirement Fund and Another v Financial
Services Board and Another
2003 (6) SA 38
SCA
Rajah and Rajah
(Pty) Ltd and Others v Ventersdop Municiplaity and Others
1961
(4) SA 402
(A) at 407 d-e;
Transair (Pty) Ltd v National
Transport Commissioner and Another
1977 (3) SA 784
(A) at 792 h
– 793 g
12
Firechem
para 36-37
13
Oudekraal
para 31;
JFE
Sapela Electronics
para 28
14
Bengwenyama
Minerals
para 82
15
Millennium
Waste Management (PTY) Ltd v Chairperson, Tender Board: Limpopo
Province and Others
2008 (2) SA 481
SCA per Jafta at para 22 and 23
16
Bengwenyama
Minerals
para 85
17
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 45. cf
Bel Porto School
Governing Body v Premier,Western Cape
[2002] ZACC 2
;
2002 (3) SA 265
(CC) para
88
18
Sizabonke
para 11
19
Sizabonke
para 23
20
Oudekraal
para 39
21
Logbro
para 9 - 12
22
Oudekraal
para 37
23
Sapela
Electronics
para 20 – 29
24
Gauteng
Gambling Board
para 28, 29. 39, 41
25
Submission
from the Bar
26
S10
(1) (a) and (c) of MFMA
27
S112
(2) of the MFMA
28
S119
of the MFMA
29
S4
(2) (a) and (b) of MSA
30
S
6 (2) (b) and (c) of the MSA
31
S
83 (1) (a), (b) and (d) of the MSA
32
Transnet
Limited v Goodman Brothers (Pty) Limited
[2000] ZASCA 151
;
2001 (1) SA 853
(SCA)
para 4, 6, 9, 10, 11, 39-42;
Logbro
para 5;
Sapela
Electronics
para 19;
Mhonko’s Estate and Security
Services CC and Others v Transnet Ltd
Case NO. 9137/2006 CPD
(unreported) (per Wagley J para 2-3)
33
Logbro
para 5
34
Sanyathi
Review 52 clause F.1.1.
35
Sanyathi
Review 52 clause F.2.10.3
36
Minister
of Environmental Affairs and Toursim and another v Pepper Bay
Fishing (Pty) Ltd
[2003} 4 All SA 1
(SCA)
para
32
37
Qaukeni
para 11
38
Qaukeni
para 16
39
Pepper
Bay Fishing
para 31
40
Qaukeni
para 13
41
Phoenix
Cash & Carry
para 1
42
Pepper
Bay Fishing
para 37-38
43
Phoenix
Cash & Carry
para 2
44
S
83 (3) of the MSA
45
Firechem
para 30
46
Mhonko’s
Estate
para 25
47
S119
of the MFMA
48
Steenkamp
NO para 11
49
Logbro
para 17
50
Logbro
para 26
51
Logbro
para 11
52
Logbro
para 12
53
Total
Computer Services
para 76
54
Metro
Projects CC
para 10 – 13 and 15
55
Metro
Projects CC
para 10 – 13
56
Metro
Projects CC
para 13;
Logbro
para 5
57
Phoenix
Cash & Carry
para 23
58
Cora
Hoexter,
Administrative Law in South Africa
, Juta 2007
247-251;
Njongi v MEC Department of Welfare Eastern Cape
2008(4) SA 273 (CC) para 56;
MEC for Education, KZN v Khumalo
2011 (1) BCLR 94
(LC) para 36
59
Khumalo
para 36
60
Cora
Hoexter,
Administrative Law in South Africa
, Juta 2007 247
61
Qaukeni
para 23
62
Oudekraal
para 37
63
Sanyathi
Review 463
64
Sanyathi
Interdict 154. There appears to be
a typographical error as
the minutes of the appeals authority records that it sat on 6 June
2011 and not on 16 June 2011 as reflected
in the rejection letter.
65
Sanyathi
Interdict 19
66
Sanyathi
Interdict 21
67
Qaukeni
para 23
68
Group
Five Building Ltd v Minister of Community
Development
[1993] ZASCA 75
;
1993 (3) SA 629
at 645G-H
69
Group
Five Review 405
70
Bato
Star
para 45-46
71
Bengwenyama
Minerals
para 83
72
Bengwenyama
Minerals
para 84
73
Millennium
Waste Management
para 22 and 23
74
S
6 (
2) (a) (iii) of PAJA
75
2
c of PAJA
76
2
e of PAJA
77
Phoenix
Cash & Carry
para 1
78
S3
of MSA
79
Goodman
Brothers (Pty) Limited
[2000] ZASCA 151
;
2001 (1) SA 853
(SCA) para 42, (per
Olivier JA, 10 -12 per Schutz JA
80
Grey’s
Marine Hout Bay (Pty) Limited v Minister of Public Works
[2005] ZASCA 43
;
2005
(6) SA 313
(SCA) para 23.
81
Ferreira
v Levin NO and Others, Vryenhoek v Powel NO and Others
1996 (1) SA 1
(CC) para 167-8
82
Third
edition p 69 and the authorities referred to in footnote 61 and 62
83
2009
(1) SA 317 (SCA)
84
Tom
Bingham
The Rule of
Law
p 61
85
Ferreira
para 167-8