IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION, CAPE TOWN]
Case nos. 2501/23 & 2502/23
In the matter between:
PROSEC GUARDS CC Applicant
and
THE DEPARTMENT OF PUBLIC WORKS &
INFRASTRUCTURE First respondent
THE DIRECTOR-GENERAL: DEPARTMENT OF
PUBLIC WORKS & INFRASTRUCTURE Second respondent
THE REGIONAL BID ADJUDICATION COMMITTEE:
DEPARTMENT OF PUBLIC WORKS & INFRASTRUCTURE Third respondent
KRA SECURITY & PROJECT Fourth respondent
TRUST ONE GUARD SECURITY SERVICES (PTY) LTD Fifth respondent
KUZINCA PROTECTION SERVICES (PTY) LTD Sixth respondent
MMAPULA SECURITY SERVICES & PROJECTS CC Seventh respondent
SNIPER SECURITY (PTY) LTD Eighth respondent
KWANDI SECURITY SERVICES (PTY) LTD Ninth respondent
SENIOR QUALITY PROTECTION & PROJECTS (PTY) LTD Tenth respondent
And:
In the matter between:
PROSEC GUARDS CC Applicant
and
2
THE DEPARTMENT OF PUBLIC WORKS &
INFRASTRUCTURE First respondent
THE DIRECTOR-GENERAL: DEPARTMENT OF
PUBLIC WORKS & INFRASTRUCTURE Second respondent
THE REGIONAL BID ADJUDICATION COMMITTEE:
DEPARTMENT OF PUBLIC WORKS & INFRASTRUCTURE Third respondent
KRA SECURITY & PROJECT Fourth respondent
TRUST ONE GUARD SECURITY SERVICES (PTY) LTD Fifth respondent
MVELAMASWAZI TRADING (PTY) LTD Sixth respondent
MMAPULA SECURITY SERVICES & PROJECTS CC Seventh respondent
SNIPER SECURITY (PTY) LTD Eighth respondent
BLUE FALCON (PTY) LTD Ninth respondent
S ISMAIL t/a ALCATRAZ Tenth respondent
SIX COMBINED CORPORATIONS CC Eleventh respondent
JUDGMENT DELIVERED (VIA EMAIL) ON 24 MAY 2024
___________________________________________________________________
SHER, J:
1. The applicant is a security service s provider. It seeks to review and set aside
decisions which were taken by bid evaluation and adjudication committees of
the Department of Public Works and Infrastructure , whereby it was
disqualified as a bidder from tenders which were advertised for the provision
of safeguarding and protection services (tender CPT 9/22) and tactical
services (tender CPT 10/22), to State properties in the Western Cape.
2. In tender CPT 9/22 , which was advertised on 24 October 2022 , the applicant
was disqualified on 16 November 2022 on the basis that it had scored less
than the requisite 50% minimum required for ‘functionality’. In tender CPT
10/22, which was advertised on 11 November 2022, the applicant was
disqualified on 12 November 2022 on the basis that its bid was non -
3
responsive as it had failed to submit a copy of a valid registration certificate
issued by the National Bargaining Council for the Private Security Sector (‘the
NBC’), together with its bid.
The facts
3. The matters before Court are two of six applications which were launched by
unsuccessful bidders to challenge the award of the 2 tenders, which were set
down to be heard on the same day. Four of these matters were removed
shortly before they were to be heard, on the basis that they had either settled
or were to be postponed. In the two matters for adjudication the 1 st to 3 rd
respondents are the relevant State functionaries wh o were responsible for the
tenders, and the remaining respondents are the bidders to whom the tenders
were awar ded. None of the se bidders sought to participate in the
proceedings. In the circumstances where reference is made to ‘the
respondents’ it is to be understood as a reference to the 1st to 3 rd
respondents.
(i) The tender documentation
4. The tender documentation in both matters is virtually identical. It consists of a
Notice and Invitation to Bid (‘Part A’) and the terms and conditions which are
applicable ( ‘Part B’), including so -called ‘terms of reference’ and ‘special
conditions’, together with the relevant forms which bidders were required to
complete and submit.
5. On the first page of the Notice and Invitation to Bid bidders were informed, at
the outset, that only those who were ‘responsive’ to certain criteria which were
stipulated would be eligible for consideration . In this regard amongst the
‘responsiveness’ criteria listed were requirements pertaining to the lodging
and submission of a host of documents , including so -called ‘compulsory
returnable’ documents to be set out on form DPW -09, and copies of several
valid registration certificates , inter alia from the N BC and the PSIRA ( the
Private Security Industry Regulatory Authority).
6. In addition, the Notice and Invitation to Bid informed bidders that the y were to
comply with a range of ‘pre-qualification’ criteria which pertained to their B -
BBEE status and their ‘functionality’ , which would be used to establish
‘minimum qualifying ’ requirements, whereafter the bids they had submitted
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would be evaluated on the basis of price and preference in accordance with
the 80/20 formula applicable (as the tender value was below R 50 million).
7. ‘Functionality’ was to be scored out of a total of 100 points, and to qualify on
this aspect bidders would have to obtain 50% thereof i.e. 50 points. The
points break-down were as follows: 60 points were allocated to A) company
experience on security guarding projects ; 20 points were allocated to B)
‘infrastructure requirements ’ in relation to having an administrative office in
SA; and the remaining 20 points were allocated to C) ’infrastructure
requirements’ in relation to response vehicles.
8. The bid requirements pertaining to each of these criteria were set out in detail.
Thus, as far as company experience was concerned what was required was
experience of completed security projects to a minimum value (of R300 000 in
respect of tender 9/22 and R500 000 for tender 10/22) which had been
undertaken ‘accumulatively’ (sic) in the preceding 5 years between 2017 and
2022. The ‘means of proving’ this experience was ‘subject to the attachment
of appointment letters/contracts/SLA’s/purchase orders’ from employers ‘with
reference letters clearly stating the contract value, name of employer, duration
of the contract and contract details’.
9. Only projects that had been completed prior to the closing date of each tender
qualified for consideration and had to be recorded on the DPW -09 form, and
the Department reserved the right to verify them. A failure to provide
information on the DPW -09 regarding a bidder’s previous experience would
lead to ‘no scoring’ of points for this criterion. To claim the full complement of
60 points for experience bidders would not be able to rely only on a single
completed project. The y were only eligible for a full score if th ey had
completed 3 projects or more, in which event they would qualify for 5 out of 5
points, whereas if t hey had only completed 2 projects they would score 3
points, and if they had only completed a single project, they would only get a
single point. Thus, to qualify for a full 60 points i.e. a 5 out of 5 score on this
aspect of the functionality criterion bidders would have to have completed 3
projects or more.
10. As far as the infrastructure requirements pertaining to an office w ere
concerned, it was stipulated that bidders were required to have an
administrative office within the borders of SA. They were to supply proof
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thereof by submitting either a copy of a title deed evidencing ownership of
such a property, or a signed lease agreement which was valid for the duration
of the contract which was to be concluded following upon the award of the
tender, which in the case of tender 09/22 was to be for a period of 24 months.
This section also made use of a 5-point scoring system: to obtain a full score
(i.e. 20 points) ‘satisfactory proof’ was to be provided of ownership or a lease
agreement and 0 points would be awarded if such proof was not supplied. In a
note in parentheses at the bottom of this section it was noted that for the
purpose of scoring on this part of the functionality assessment the Department
would accept an existing administrative office which was outside of the
Western Cape, but to be allocated work the successful bidder would be
required to open or lease an office in the province within 7 days.
11. In part C of the functionality section, bidders were required to provide proof
they had 2 response vehicles available. If they owned the vehicles proof of
ownership was to be supplied by means of a copy of an e-NATIS ‘report’ i.e. a
report drawn from the National Administration Traffic System, which showed
that the vehicles were registered under the applicant’s directors’ or company
names. I f the vehicles were leased, a signed copy of the lease agreement
was to be provided. If the vehicles were neither owned nor leased , as yet, a
letter of intent to buy or lease would suffice. In such instance, as in the case of
the infrastructure requirements pertaining to an administrative office , if
awarded the tender a successful bidder who was not yet in possession of the
vehicles would have 7 days after the conclusion of a contract pursuant to an
award, to buy or lease them.
12. In response to the invitation to bid in tender 09/22 , the applicant listed 6
projects on its DPW -09 form as having been completed in the preceding 5
years. Two of these were tenders for the City of Cape Town: 1) tender 207 of
2016/17 which was for a contract sum of R117.9 million odd and had been
carried out over the period 1 December 2018-30 April 2022 and 2) tender 80S
of 2012-2013 which was for a contract sum of R60 million odd and had been
carried out over the period 1 October 2014-30 November 2018.
13. In addition, it listed two tenders it had completed for the Department of
Agriculture, Forestry and Fisheries ( ‘DAFF’): one was for a contract sum of
R483 383 for a 5-month project between March and August 2019 and the
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other was for a contract sum of R272 587 for a n 11-day project in August
2018.
14. The remaining 2 projects listed on the DPW -09 were for work done for the
National Lotteries Commission for a contract sum of R211 581 over the period
March 2016 to December 2017 , and for Willjarro (Pty) Ltd for a contract sum
of R375 680 over a 30-month period between December 2016 and January
2018.
15. In substantiation of the 6 projects the applicant submitted a letter from a Mr T
Jackson the Head of Safety and Security Services: Facilities Management of
the City of Cape Town , dated 30 October 2018 , a purchase order dated 29
March 2019 in respect of the DAFF tender for the contract sum of R483 363,
and a letter of ‘commendation’ from a project manager at Willjarro (Pty Ltd
dated 21 February 2017.
16. Regarding the requirement to submit proof of an administrative office in South
Africa the applicant attached a copy of a lease agreement which it had
concluded for the lease of premises in Milnerton, in Cape Town, for a period of
3 years between 1 December 2018 and 30 November 2021. The agreement
provided that the lessee had an option to renew the lease for a further 3-year
period, provided it gave written notice of its intention to do so at least 3
calendar months prior to the expiry of the initial 3-year period. The applicant
did not attach any documentation evidencing an extension of the lease.
17. In relation to the requirement to provide proof of ownership or lease rights
over 2 response vehicles the applicant attached copies of registration
certificates, in the name of the Republic of South Africa, for a 2021 Toyota
Agya and a 2021 Toyota Corolla.
18. That then as far as the documents in respect of tender 09/22. As far as tender
10/22 is concerned it is not necessary to traverse the full bid documentation
that was submitted, given that the applicant was disqualified on the basis that
it failed to submit a copy of a valid certificate of its registration with the NBC.
In this regard reference need only to be made to 2 documents which were
annexed to the applicant’s bid submission. Both were on the letterhead of the
NBC. In the first of these, which was dated 5 October 2022, and which had as
its subject heading the reference ‘ Letter of Good Standing’, the General
Secretary of the NBC confirmed that the applicant ‘levied contributions in
7
accordance with the levy agreement as published and extended to non -
parties’ (and) ‘are up to date ’ (sic). In the second, which had as its subject
heading ‘ Confirmation of Registration and Paid-up Levies’ the General
Secretary provided the same confirmation as was previously given in the first
letter viz that the applicant was fully paid up as far as its levy contributions
were concerned . The letter did not expressly state or confirm that the
applicant was registered with the NBC.
(ii) The applicant’s papers
19. The founding affidavit which was filed by the applicant in case number
2501/23 (which pertains to tender 09/22) raised a single ground of review viz
that the Department had failed to evaluate the applicant’s bid, and this was
procedurally unfair, contrary to its right to lawful administrative action in terms
of the Promotion of Administrative Justice Act (‘PAJA’).1
20. After it had occasion to consider the record of the decision which was filed in
terms of rule 53 the applicant filed a supplementary founding affidavit. In that
affidavit it noted that its bid had been considered by the bid evaluation
committee (‘the BEC’) and had been disqualified on the basis that it had failed
to obtain the requisite 50% score for functionality i.e. 50 points. The applicant
had in fact received no points at all and was scored 0%. From handwritten
notes which were made on its bid documents it appeared this was because ,
according to the BEC , it had failed to submit the required reference letters.
The applicant took issue with this. It contended that, from its reading of the bid
specifications, where a bidder listed 3 projects or more on the DPW -09 it
qualified to be allocated 5 out of 5 points i.e. the full weighting of 60 points. It
contended further that, in any event, it had submitted the requisite ‘reference’
letters ‘where they were available’. In this regard, it claimed that a reference
letter for the two City of Cape Town tenders had been supplied by Mr
Jackson, the Head of Facilities and Management Services, and for the
Willjarro project a reference letter had been provided by a project manager. As
for the DAFF project s it had supplied a purchase order for the March -August
2019 project, to the value of R483 383. It averred that consequently, given the
1 Act 3 of 2000.
8
submission of these documents it qualified for the full complement of points
for this aspect of functionality i.e. 60.
21. As for the requirement s in relation to proof of an administrative office it said
that due to an ‘inadvertent error’ it had only attached a copy of the lease
agreement it had concluded in 2018 , which had expired in 202 1, and had
failed to submit proof of its subsequent renew al. It conceded that in the
circumstances the BEC had correctly found that on the information supplied
the lease had lapsed and was not valid , and the applicant should be awarded
no points on this aspect. But in its supplementary affidavi t it sought to retract
the concession it made and pointed out that it was currently in possession of
premises in Cape Town, in terms of a lease agreement which had been
entered into during March 2023, which agreement was valid for the duration of
the contracts which were concluded pursuant to the award of the tenders.
22. As for the proof required in relation to its response vehicles, whilst it conceded
that the bid specifications required a copy of a ‘report’ issued by e-NATIS and
that it had instead supplied a copy of 2 registration certificates, it pointed out
that these certificates were issued by e-NATIS, and averred that they
contained the same information that would have been recorded in a report .
Consequently, it contended that it qualified for the full 20 points available in
respect of this aspect of the functionali ty requirement s as its bid was
substantially in compliance with the tender specifications.
23. Thus it contended , in summary, that it should have been scored as having
obtained a total of 80 points for functionality (60 for experience and 20 for its
response vehicles) and should accordingly not have been disqualified without
its bid being considered . Such a score rendered it more competitive as far as
functionality and price was concerned , than many of the bidders to whom the
tender had been awarded.
24. As far as tender 10/22 is concerned , in its founding affidavit the applicant
similarly relied on a single ground of procedural unfairness. It contended that
the 1 st respondent had failed to notify it of the award of the tender and the
reasons why its bid had been rejected. In its supplementary founding affidavit
it indicated it was abandoning this ground and was raising a complaint that its
bid had wrongly been rejected as being non -responsive. It contended that, by
way of the letters from the NBC dated 5 October and 2 December 2022 it had
9
supplied the requisite proof of its registration with the NBC. In this regard it
submitted that, although the letters did not expressly say that it was
registered, it was impossible to be in good standing without being registered .
In any event, it was also apparent from the heading of the letter dated 2
December 2022 that it must have been registered at the time it submitted its
bid. It contended , in the alternative , that to the extent that the confirmation
which had been provided by the NBC was ‘ambiguous’ (sic) the bid
adjudication committee (‘the BAC’) should not have rejected its bid summarily
and should have sought clarification as to its status, either from the NBC or
from the applicant itself, and its failure to do so prior to disqualify ing the
applicant for being non-responsive was procedurally unfair.
(iii) The respondent’s papers
25. In their answering affidavits the respondents pointed out that t he tender
documentation for each tender contained both responsiveness and ‘pre-
qualification’ criteria, which included criteria in relation to functionality, and it
was clearly stipulated that a failure to comply with these bid specifications
would result in disqualification without the merits of a bid being considered.
26. To be considered responsive and therefore eligible for evaluation, bidders
were required to comply with several mandatory requirements, which included
having to submit certain prescribed documentation. Amongst these were
copies of valid certificates from certain institutions or entities , including the
NBC. In addition, b idders were also required to submit a range of additional
documents. These inc luded letters of ‘good standing ’ from certain entities
(including the NBC). The invitation to bid clearly stated that if bidders failed to
submit the prescribed documents required they would be disqualified, and
their bids would not be considered.
27. Likewise, the invitation required bidders to comply with certain compulsory
‘pre-qualification’ criteria , to be considered eligible for preferential
procurement. These included having to comply with certain prescribed B -
BBEE and minimum functionality requirements.
28. The bid which was submitted by the applicant in tender 9/22 failed to comply
with the functionality criteria that were stipulated and in the case of tender
10/22 was non -responsive. In this regard, as far as experience was
concerned bidders were required to provide proof of having undertaken and
10
completed security projects to the minimum value specified, as listed by them
on form DPW-09 over the preceding 5 years, by submitting documents which
evidenced the awarding of the projects to them, such as appointment letters ,
agreements o r purchase orders , together with reference letter s which
confirmed the contract value s, names of employers, duration of the contract s
and the contract details. Thus, reference letters confirming these particulars
were mandatory.
29. If one consider ed the documents that were submitted by the applicant in
respect of this requirement in tender 9/22 , it was evident that it had failed to
do what was necessary in respect of the projects listed by it on the DPW-09.
In this regard, as far as documents evidencing the award of the projects was
concerned save for a purchase order for one of the DAFF projects not a single
primary, source document of the type specified, was provided , and not a
single proper reference letter confirming the award and completion of these
projects, as required by the pre-qualification criteria, was provided. The letter
which the applicant provided from Mr Jackson of the City of Cape Town dated
30 October 2018 simply ‘confirmed’ that the contract which was concluded in
terms of tender 80S of 2012 /13 was extended for a period of 5 months from 1
July 2018 and was terminated on 30 November 2018. It did not however
confirm the contract value or duration of the contract , or the other particulars
listed in respect of this proje ct on the DPW -09 form. The letter also made no
mention of the other city of Cape Town tender/project listed and did not
confirm it. Likewise, the letter which was provided in respect of the Willjarro
project did not confirm its contract value and duration, and no reference letters
were provided for either of the DAFF projects listed on the DPW-09.
30. In similar vein the applicant had failed to submit the necessary documentation
required in proof of compliance with the infrastructure requirements for
functionality pertaining to its office and response vehicles. As far as the office
was concerned it had provided a copy of a lease agreement which had
already expired the previous year and was no longer valid. As far as the motor
vehicles were concerned it had provided copies of vehicle registration
certificates instead of an e-NATIS report.
31. The respondents pointed out that in the compulsory briefing session which
was held for potential bidders for tender 09/22 on 27 November 2022 it was
11
made clear by the Deputy-Director: Supply Chain Management, that reference
letters were required in addition to documentation that evidenced the award of
completed projects listed on the DPW -09, and a ny lease agreement which
was to be relied upon was to be valid for the duration of the proposed contract
which was to be concluded pursuant to the award of the tender. Bidders were
also expressly warned that no registration documents would be accepted in
lieu of proving ownership or lease rights over their response vehicles, and an
e-NATIS ‘report’ was required.
32. In respect of tender 10/22 a compulsory briefing session was likewise held
with potential bidders on 23 November 2022 at which similar warnings were
given by the Deputy -Director: Supply Chain Management in relation to
mandatory pre -qualification and responsiveness requirements. in this regard
bidders were warned that the y were required to submit a valid certificate of
registration issued by the NBC, as well as a letter of good standing. If they did
not have a letter of good standing available at the time of submission of the ir
bids, they had 21 days to provide it.
An assessment
(i) The law
33. The bid specifications and evaluation criteria which are set out in an invitation
to tender, together with the applicable constitutional and legislative provisions
that deal with procurement, constitute the ‘legally binding ’ framework within
which public tenders must be submitted, evaluated and awarded.2
34. As far as the constitutional provisions are concerned , s 217(1) of the
Constitution states that when an organ of state contracts for goods or services
it must do so in accordance with a system which is fair, equitable, transparent,
competitive, and cost -effective. These imperatives are reiterated in several
legislative instruments, including the Preferential Procurement Policy
Framework Act 3 (‘the PPFA’) the Public Finance Management Act, 4 the
2 Chief Executive Officer, SA Social Security Agency & Ors v Cash Paymaster Services (Pty) Ltd 2012(1) SA
216 (SCA) para 15; AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, SA Social
Security Agency 2014 (1) SA 604 (CC) para 38; Westinghouse Electric Belgium SA v Eskom Holdings (SOC)
2016 (3) SA 1 (SCA) para 43.
3 Act 5 of 2008.
4 Act 1 of 1999.
12
Local Government: Municipal Systems Act 5 and the Local Government:
Municipal Finance Management Act 6 and various regulations which have
been promulgated in terms thereof. 7 In Tetra Mobile8 the Supreme Court of
Appeal noted the importance of fairness and transparency and how these
values ‘permeate’ the entire tender process.
35. In assessing whether the award of a tender was fair the focus is on the
process and not on the result. 9 Fairness is a procedural requirement which is
aimed at ensuring even-handed treatment of bidders. As competitors, they
are required to be treated equally.10
36. Whether a tender process has been fair is a matter that must be determined
on the facts of each matter.11 They will establish whether any ‘shortfall’ in any
of the requirements listed in s 217 (1) of the Constitution amounts to
procedural unfairness, irrationality, unreasonableness, or any of the other
review grounds set out in PAJA.12
37. The applicant’s counsel emphasized the duty on organs of state in tender
matters, to act fairly , and pointed out that in Metro13 the SCA held this may
require BECs to request a bidder whose bid is not strictly compliant with
tender specifications to provide clarification or further details in respect
thereof, or to explain an ambiguity or correct an obvious mistake. He
submitted that the BECs had such an obligation in these matters, which it had
failed to discharge.
38. It is important to note that the SCA did not hold that this was a general
requirement or principle which finds application in every matter in which a
bidder’s submission is deficient. Whether such a n obligation exists in a
particular matter depends on the circumstances: whilst it may be necessary in
5 Act 32 of 2000.
6 Act 56 of 2003.
7 Including the Preferential Procurement Regulations promulgated in terms of the PPFA, the Treasury
regulations promulgated in terms of the PFMA, and the Municipal Supply Chain Management Regulations
promulgated in terms of the MFMA.
8 Tetra Mobile Radio (Pty) Ltd v MEC, Department of Works & Ors 2008 (1) SA 438 (SCA) para 10.
9 AllPay n 2 para 42.
10 Premier, Free State & Ors v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA) para 30.
11 Metro Projects CC & Ano v Klerksdorp Local Municipality & Ors 2004 (1) SA 16 (SCA) para 13.
12 AllPay n 2 para 43.
13 Note 11.
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certain instances for a tender authority to query or approach a bidder in other
instances it may not be so.
39. Applicant’s counsel further submitted that insofar as the respondent s sought
to cont end that, in terms of the PPFA 14 an acceptable bid was one which
complied ‘in all respects’ with the specifications and conditions of an invitation
to tender, in Millennium Waste 15 the SCA confirmed (with reference to its
earlier decision in JFE Sapela)16 that the phrase was not to be applied in a
literal sense and was to be construed against the background of the
procurement system envisaged by the constitutional imperatives in s 217. 17
Thus, the SCA held this did not mean that a bidder had to comply with every
condition or specification of a tender invitation and was not compelled to do so
in relation to conditions or specifications which were immaterial,
unreasonable, or unconstitutional .18 In de termining whether a bidder ’s non -
compliance made its bid ‘unacceptable’ regard was to be had to the purpose
of the condition or specification with which the re had not been exact
compliance; and the condition or specification w as not to be applied
mechanically to disqualify a bidder.19
40. In Millennium Waste the bidder had submitted a declaration of interest ( or
non-interest as it should pro bably be called) in respect of relatives, family et c
in its bid, which had been initialled but not signed at the end thereof, due to an
oversight. Jafta JA held that the non -compliance was condonable as it was
not incompatible with the public interest.20
41. Consequently, the applicant’s counsel contended that, insofar as the applicant
had failed to comply exactly or strictly with the bid specifications and
conditions, particularly those pertaining to the submission of a valid NBC
certificate and an e-NATIS report, this should be condoned as it had complied
substantially with them.
14 Section 1.
15 Millennium Waste Management v Chairperson, Tender Board 2008 (2) SA 481 (SCA).
16 Chairperson; Standing Tender Committee & Ors v JFE Sapela Electronics (Pty) Ltd [2005] 4 All SA 487
(SCA) para 14.
17 Millennium Waste paras 18 and 19.
18 Id para 19.
19 Id.
20 Id para 17.
14
42. Once again, the applicant’s reliance on a decision of the SCA is subject to
qualification. In Millennium Waste the relevant procurement regulation21 which
had been p romulgated by the MEC for Finance and which was applicable to
the evaluation of the tender , allowed the tender Board to accept bids even if
they failed to comply strictly with tender specifications. There is no averment
that any such regulation was applicable to the tenders in these matters.
43. In several subsequent decisions the SCA has deviated from the views it
expressed in Millennium Waste and has sought to qualify or distinguish it.
Thus, in Moroka 22 which was decided in 2014 , it pointed out 23 that it had
previously held in Pepper Bay24 (which was decided before Millennium Waste)
that as a general principle an administrative authority ha s no inherent power
to condone a failure to comply with a peremptory or minimum qualifying
requirement in a tender, unless it has been expressly afforded a discretion to
do so.
44. In Moroka the tender invitation required bidders to submit an original t ax
clearance certificate and stated that if they fail ed to do so this would render
their bid liable to disqualification. The applicant submitted a copy instead of
the original certificate and was duly disqualified. The applicant conceded that
there was no express provision in the applicable procurement legislation or in
the tender documentation, including the terms and conditions of tender, that
conferred a discretionary power of condonation on the organ of state but
contended (as the applicant seeks to do in this matter ), that such a power
could be implied from a clause in the terms and conditions of tender, which
provided that the organ of state was under no obligation to accept any bid or
the lowest one.
45. The SCA held25 that, on a proper interpretation this clause only applied to bids
that had been validly submitted in the prescribed manner and not to bids that
did not satisfy the prescribed minimum requirements. It held further that it was
the organ of state’s prerogative to specify what would constitute a prescribed
21 Regulation 5(c) It is not specified in the judgment which body of regulations it was part of, or when it
was promulgated.
22 Dr JS Moroka Municipality & Ors v Betram (Pty) Ltd & Ano [2014] 1 All SA 545 (SCA).
23 Para 12.
24 Minister of Environmental Affairs and Tourism & Ors v Pepper Bay Fishing (Pty) Ltd; Minister of
Environmental Affairs & Ors v Smith 2004 (1) SA 308 (SCA) para 31.
25 Moroka n 22 para 15.
15
minimum requirement, not the courts , and in the matter before it one of such
requirements was the submission of a valid, original tax clearance certificate.
As the conditions and terms of tender did not confer a discretion to condone a
failure to comply with this requirement the bid therefore did not pass the
threshold requirement and was not an acceptable one in terms of the PPFA.26
46. The approach which was adopted in Moroka was endorsed by the SCA in
2018 in WDR Earthmoving,27 where a bidder only submitted 2 years of annual
financial statements instead of the 3 which had been prescribed. The SCA
reiterated that it was for organs of state to determine the prerequisite s for a
responsive tender submission not the Court, and the failure to comply with
such requirements would ordinarily result in disqualification as a non-
compliant bid would not be an acceptable one, unless, as was held in
Millennium Waste the prescribed requirements or conditions of tender which
had not been complied with were immaterial, unreasonable or
unconstitutional.28 In addition, it reiterated that an administrative tender
authority has no inherent power to condone a failure to comply with
peremptory requirements set by it, unless it has been afforded a discretion to
do so, either in terms of a legislative provision or the terms and conditions of
tender.29 Consequently, as it was peremptory in terms of both the invitation to
tender and procurement regulations for bidders to submit 3 years of annual
financial statements the bidder’s non-compliance was not trivial or minor, and
the condition which prescribed it to be a minimum qualifying requirement was
not immaterial, unreasonable or unconstitutional. 30 The SCA further
confirmed, as per its decision in Millennium Waste and as endorsed in the
subsequent decision of the CC in Allpay,31 that whether the re has been
material non-compliance with a condition or provision of an invitation to tender
is to be determined by considering the issue in the light of the purpose of the
provision or condition concerned.
26 Id para 16.
27 WDR Earthmoving Enterprises & Ano v The Joe Gqabi District Municipality & Ors [2018] ZASCA 72.
28 Id para 34.
29 Id para 30.
30 Id para 34.
31 Note 2 para 28.
16
47. In Allpay the special conditions in the tender invitation had stipulated that if
bidders wished to tender to administer social grants on behalf of SASSA (the
South African Social Security Agency) in more than one province, they were to
submit separate bids for each province. One of the bidders submitted a single,
globular bid for all 9 provinces instead of 9 separate ones and was
disqualified as a result. On appeal it contended that its failure to comply
exactly or strictly with this requirement should be overlooked, a s there had
been substantial compliance.
48. The CC pointed out 32 that whereas the materiality of non -compliance with
legal requirements or conditions in administrative law previously depended on
whether they were mandatory or peremptory, as opposed to merely directory ,
and on the basis of this distinction i n the case of the former strict compliance
was required whilst in the case of the latter substantial compliance would do,
this ‘mechanical approach’ had since been discarded and the ‘central element’
in determining whether a bidder’s response was sufficient was to link the
issue of compliance with the purpose of the provision or condition which had
not been strictly or exactly complied with . What was required essentially was
to determine whether, viewed in the light of the purpose of the condition or
provision, the bidder had done what was required.
49. The purpose of requiring separate bids for each of the provinces was to
enable SASSA to assess whether the bidder would be able to provide the
necessary services in each of the provinces for which it bid. As th is purpose
was attained in the single bid submission which had been put forward the CC
was of the view that the non-compliance was not material. However, the
bidder still ultimately lost on appeal on the basis that SASSA had failed to
properly assess and confirm whether its b id complied with empowerment and
transformation requirements.
50. In 2018 the SCA similarly endorsed the approach which had been adopted in
Moroka, in Overstrand Municipality,33 which concerned an appeal against a
decision which set aside the award of a tender (for the operation and
maintenance of a municipality’s bulk water and sewerage infrastructure ) to a
bidder who, in its bid submission, had failed to comply with certain prescribed
32 Para 30.
33 Overstrand Municipality v Water & Sanitation Services SA (Pty) Ltd [2018] 2 All SA 644 (SCA).
17
minimum staffing requirements, as prescribed by regulation.34 The
requirements were aimed at ensuring a consistent supply of the right quality
and quantity of water and the optimisation and preservation of the operations
and infrastructure used to provide it. The SCA reaffirmed that, w hilst one
should guard against invalidating tender s which suffered from minor
deviations which did not materially depart from the ‘characteristics, terms,
conditions and other requirements ’ set out in a tender invitation, where the
non-compliance was not of a trivial or minor nature and was in breach of a
peremptory term, the bid would not be an acceptable one.35
51. The most recent decision of the SCA on this aspect of the law is that in Eskom
Holdings,36 in which judgment was handed down on 29 April 2024. It
concerned an appeal by Eskom against the judgment and order of the North
Gauteng High Court, which upheld an application to review and set aside the
award of certain tenders for the provision of maintenance and ou tage services
at power stations. The dissatisfied bidder, Babcock, was disqualified for failing
to submit proof of certification in terms of ISO 3834 i.e. certification of its
capacity in terms of standards set by the International Organisation for
Standardisation. Babcock had stated in its bid submission that it was certified
but had failed to provide a copy of the certificate. It contended that the bid
requirement was phrased in ambiguous terms and did not require bidders to
necessarily submit a valid certificate but simply to address the ‘issue’ of
certification in satisfactory terms. As a certificate was not a peremptory
requirement it could therefore be provided after submission of the bid s, as it
had done. Eskom’s decision to disqualify it for failing to file an ISO certificate
was in any event unfair as Eskom knew it was in possession of such a
certificate as it had been servicing its power stations for extended periods of
time, over many years , and it had previously submitted copies of such a
certificate for that purpose.
52. Eskom contended that the purpose of requiring proof of certification was to
ensure that bidders had the requisite skills and experience necessary to carry
out the highly specialised services required , and to treat bidders fairly and
34 Regulation 2834, promulgated in terms of the Water Act 54 of 1956.
35 Id para 50.
36 Eskom Holdings SOC Ltd v Babcock Ntuthuko Engineering (Pty) Ltd [2024] ZASCA 63.
18
equally. Consequently, a mere statement that a bidder had ISO certification
could not constitute either actual or substantial compliance with the prescribed
requirement and the conditions of tender did not afford to it a power or
discretion to condone such non -compliance. It pointed out further that at a
‘clarification’ meeting bidders were pertinently told that they were required to
submit an ISO 3834 certificate , and as it was a mandatory, returnable
document, bidders who failed to do so by the deadline would be disqualified.
53. The SCA held that the High Court ’s finding that the invitation to tender (which
was in the form of a Request for Proposals) was ambiguous was not
sustainable as the wording was clear , and in any event at the clarification
meeting bidders had been expressly told that they were required to submit a
certificate and a failure to do so would result in disqualification. It also
confirmed, with reference to the principles laid out in Allpay, Millennium
Waste, WDR Earthmoving and Overstrand Municipality that whereas
instances of non -compliance of a trivial or minor nature could pass muster,
this was not so in the case of non-compliance with material terms or
requirements. ISO certificates were required to show that bidders possessed
the necessary resources and skills to supply the required services to the
appropriate standard, and it was thus essential that Eskom be supplied with a
valid and current certificate. The submission of a n ISO certificate was also
intended to ensure consistency and fairness in t he evaluation and award of
the tender. At least 2 other bidders had been disqualified for failing to submit
ISO certificate s and to allow the appellant to be treated differently simply
because it was the incumbent service provider and had previously submitted
such a certificate, would result in unfair treatment towards other bidders. The
requirement of providing an ISO certificate was a compulsory and material
term of the invitation to tender and Eskom did not have a discretion to
condone non -compliance therewith. Having regard for the purpose of the
requirement the mere statement in its bid submission that Babcock had the
necessary certification did not constitute actual or substantial compliance with
the requirement.
(ii) The law applied
54. The applicant contends that on a proper i.e. contextual and purposive reading
of the stipulated requirements for functionality pertaining to company
19
experience the documents referred to in this regard in tender 9/22 i.e. the
source documents and reference letters, were not mandatory or compulsory
and thus a failure to submit them was not intended to result in a zero score. In
support of this submission it sought to rely on the maxim expressio unius est
exclusio alterius , which roughly translated means ‘where one thing is
expressed the other is excluded’ . The maxim has found application as an
interpretative aid where there are two possible meanings for a phrase or word
in a legislative instrument or document. In this regard the applicant submitted
that because it was expressly stipulated that a failure to provide the required
information on the DPW-09 form regarding the bidder’s experience would lead
to ‘no scoring of points’ (sic) , whilst nothing was said about a failure to submit
the source documents and reference letters evidencing and confirming such
experience, it should be understood that a failure to submit the source
documents and reference l etters was excluded from a similar sanction or
scoring and that it was not compulsory to submit them . In any event, so it
submitted, the terms of reference reflected that the municipality had a
discretion to accept substantial as opposed to exact or strict compliance with
the documentary requirements.
55. It is trite that t he process of interpret ing text in a document is a unitary
exercise that involves a consideration of the language used in the light of
ordinary rules of grammar and syntax, the context in which the text appears in
the document as a whole and the apparent purpose to which it is directed.
The process is an objective one th at attempts to arrive at a sensible and
businesslike meaning which seeks to give effect to the purpose.
56. As previously pointed out functionality is defined in the invitation to bid as a
‘pre-qualification’ criterion used to establish a ‘minimum qualifying
requirement’ and only those bidders who obtained the requisite 50 points i.e.
the threshold score w ere eligible for consideration on price and preference. A
contextual and purposive reading of the detailed specifications and
requirements pertaining to functionality must result in the following
interpretation: In order to qualify for points for experience bidders were
required to prove it by submitting 1) source documents (such as letters of
appointment, service level agreements or purchase orders ) evidencing that
they had been awarded the projects of the minimum value prescribed, as
20
listed on their DPW -09 form, and 2) reference letters which confirmed this by
‘clearly stating’ the contract value, duration, employer particulars and contact
details for each such project listed. By stipulating that the ‘means of proving
experience’ was ‘subject’ to the attachment of the requisite source and
confirmatory documents i.e. the letters of reference , both of these classes of
documents became mandatory, returnable documents that had to be
submitted.
57. As far as reliance on the expressio unius maxim is concerned, as was pointed
out by De Villiers JA almost 100 years ago in SA Ests 37 it is one which ‘must
at all times be applied with great caution’ . It is not ‘strictly speaking’ a rule of
interpretation but a ‘principle of common sense’ by which a court may be
guided in arriving at the intention of the author of a document.38 Whether it is
applicable depends on the terms of the document read as a whole and ‘more
especially upon the relation in which the thing expressed stands to the thing
which is not expressed’ and ‘it by no means always follows that the mention of
one matter implies the exclusion of what may at first sight appear the
converse’.39 At best therefore, if the maxim finds application it is no more than
a prima facie ‘indicator of meaning’ and not a hard and fast rule. 40 In my view,
on a proper and contextual reading of the section pertaining to functionality in
relation to company experience the maxim does not find application. This is
not an instance where there are two possible interpretations of a phrase or
word in a text, and the ‘express mention of one of the possibilities ’ therefore
implicitly excludes the other.41 The fact that it was expressly stipulated that a
failure to record the necessary information on the DPW -09 form would lead to
a nil score and would result in disqualification does not necessarily imply that,
because this was not similarly stated , in that same portion of the text, to be
the consequence for failing to file source and confirmatory documents proving
a bidder’s experience, it was not mandatory to file such documents. The rest
of the document, particularly the first three pages of the invitation to bid, make
37 SA Ests & Finance Corporation Ltd v Commissioner for Inland Revenue 1927 A.D. 236.
38 Per De Villiers CJ in Poynton v Cran 1910 A.D. 205 at 222.
39 Id.
40 Du Plessis Statute Law & Interpretation LAWSA Vol 25: Part 1 para 360(b(ii).
41 GM Cockram Interpretation of Statutes (Juta 1975) p 80.
21
it clear that the submission of the documents was a mandatory requirement,
failure to comply with which would result in disqualification.
58. If one considers the bid documentation which the applicant submitted it is
clear that it failed to comply with what was required in regard to both the
necessary source, and the confirmatory, documents required for functionality
for points for experience. I t provided only a single source document , a
purchase order for a DAFF project , but details of the project were not
confirmed in an accompanying reference letter. In fact, not a single reference
letter within the terms required, was provided for any of the projects. The letter
from the Head: Facilities Management dated 30 October 2018 was in relation
to one of the City of Cape Town tenders (tender 80S) and simply confirmed its
extension and termination in November 2018. This does not tally with the
statement in the DPW-09 that this tender was one which endured for a period
of 4 years between 2014 and 2018 , and the letter did not confirm the tender
by reference to its contract value and duration. Likewise, the letter of
‘commendation’ from the project manager of Willjarro (Pty) Ltd did not
constitute a reference letter, in the terms required, as it also did not confirm
the contract value and duration of this project.
59. Thus, in the absence of the provision of the required source documents and
reference letters for the 6 projects listed in the DPW -09 form the applicant
was correctly scored zero, as it was not eligible to be awarded any points for
experience. It also cannot be suggested that the documents submitted
constituted substantial compliance with what was required. Put differently, in
terms of the formulation which was adopted in Allpay it cannot be said that,
given the purpose of the requi sites pertaining to compan y experience, the
applicant complied in effect, in substance and form.
60. As for the functionality requirements pertaining to an administrative office,
although the applicant conceded in its own founding affidavit that it was
correctly scored zero as it failed to submit a copy of a valid lease agreement
with its bid submission, during argument the applicant’s counsel similarly
sought to contend that the submission of such a document as part of the bid
was not a mandatory requirement, and the lease could be submitted
afterwards. In this regard the applicant sought to rely on claus e 10.7 of the
terms of reference which read as follows:
22
“Proof of Administrative Office in the Western Cape. ( This requirement will not be used to
score for functionality. It is applicable only to bidders who are residing or operating outside the
Western Cape) ‘ (my underlining).
61. On a first reading the clause appears to contradict the contents of section B of
the functionality criteria in the invitation to bid, which deals with the
requirements of having an administrative office. But once again, a proper
reading requires one to have regard for the context in which clause 10.7
appears, in the document as a whole. Clause 10.7 is part of clause 10, which
from its heading sought to deal with those ‘statutory documents required’
which had to be submitted by ‘successful bidders’ before an y work would be
allocated to them. This clearly render ed the clause applicable only to those
bidders who were compliant with the functionality requirements, by submitting
the required documents stipulated in section B of the Invitation to Bid, with
their bid, namely proof of ownership or lease rights for an administrative office
‘within the borders of South Africa’, and who had then been awarded the
tender after scoring for price and preference.
62. On a holistic reading there is no contradiction between the two texts. Section
B stated that the department would accept an existing office ‘even if it (was)
not in the Western Cape ’, however a ‘successful bidder’ would be required to
‘open or lease’ one in the Western Cape within 7 days. What clause 10.7
sought to do therefore, somewhat clumsily, was to extend the requirement for
opening an office in the Western Cape, to successful bidders who had
submitted valid bids (in accordance inter alia with the fun ctionality criteria of
having an office in SA), beyond the 7 days. Until they opened an office in the
Western Cape, successful bidders would not be allocated any work in terms
of the tender. Clause 10.7 therefore cannot be construed to excuse pre -award
bidders from complying with the functionality criteria in section B and from
submitting a copy of a valid lease agreement for their administrative office.
63. As a fallback position the respondents contended that any non -compliance
that may have been present in relation to the functionality criteria should have
been condoned by the BEC/BAC, as it had a discretion to do so, in terms of
various terms and conditions in the invitation to bid. To this end it sought to
rely on clauses 3 and 12 of the terms of reference and certain subclauses
therein.
23
64. Clause 3 deals with the panel of work providers that was to be appointed in
order to give effect to the objectives of the tender, as set out in clause 2 , and
contains a number of sub -provisions. In its opening paragraph it states that
the panel will consist of ‘all bidders who met all ’ the requirements and criteria
stipulated in the notice of invitation to bid or the terms of reference. It provided
that bidders that were appointed to the panel would be ranked from the lowest
mark-up percentage and would be allocated work in accordance with this
ranking, for rotational periods of 3 months at the time. However, ‘no allocation
of work would be done’ until bidders had fulfilled all requirements stipulated in
the tender documentation. Thus, it is evident that the clause so ught to
reiterate and emphasize that there had to be compliance with mandatory
requirements.
65. The respondents sought to rely on a sub-provision that stipulated that in the
event that a bidder failed to fulfil all the requirements, or to submit the required
documents as stipulated ‘on’ (sic) administrative criteria and/or terms of
reference, within a maximum of 21 calendar days , it would be disqualified
from participating on the panel. In the context of the clause as a whole, read
with the various other provisions of the bid specification s and functionality
criteria previously referred to, this provision can only be construed as being of
application to successful bidders, who had submitted valid bids and had been
awarded the tender, not to those who failed to qualify as responsive or failed
to qualify on functionality , because they had not submitted documents that
were mandatory.
66. As far as clause 12 is concerned , which is headed ‘ compliance’, a subclause
therein stipulated that a failure to provide ‘sufficient’ information ‘may’
disqualify a bidder. Once again, read in the context of the document as a
whole, this clause cannot be read to confer a discretionary power on the
tender authority to condone non -compliance with conditions or requirements
that were compulsory and material to the tender. At best, it could be read to
afford a discretionary power to condone trivial or minor deviations from what
was required in re lation to the submission of information. Similarly , as far as
the ‘clarification’ subclause in clause 12 is concerned, which provided that the
Department ‘may request clarification ’ or further informati on regarding any
‘critical aspect’ of the bid, this was only a clause that allowed for the tender
24
authority to approach a bidder to clarify an ambiguity or uncertainty, or an
obvious mistake. It did not afford the tender authority a discretionary power to
condone a material non -compliance and did not impose a duty on it to
approach every bidder, in the case of any and every non -compliance with the
bid specifications and functionality requirements.
67. That brings us to the requirements in respect of the response vehicles. The
applicant filed an affidavit from a retired traffic inspector, who pointed out that
the e -NATIS system has a database that stores comprehensive date
pertaining to motor vehicles that are in use in SA, which include their
registration details, ownership history and licensing information. From her
knowledge and experience a motor vehicle registration certificate issued by e -
NATIS is widely accepted as conclusive proof of the registrat ion and
ownership of a motor vehicle. She ha s never come across the document
referred to as an e -NATIS ‘report’ in the functionality criteria, and on the face
of it the document generated in this regard from the e -NATIS system is one in
response to an ‘e -NATIS 163’ system query. The information generated in an
e-NATIS ‘report’ in response to such a query is essentially the same
information as that which would be recorded in a registration certificate.
68. From a comparison of the two documents it is however apparent that, whilst
an e-NATIS report contains substantially the same information in relation to a
registered motor vehicle, as one would find on its registration certificate, such
as its vehicle register, identification and engine numbers and its make and
model, the e -NATIS report goes further: it contains a compilation of such
particulars in respect of all vehicles which are owned by, or registered in the
name of a person or entity, including a direct or of a company or member of a
close corporation. Unlike a registration certificate it contains information
pertaining to more than one vehicle. Thus, the information which the
respondents would have obtained had they been provided with a copy of an
e-NATIS report for the applicant would have been a confirmation of whether it
owned two or more vehicles in its name, or in the name of its members or
other persons, and the particulars of such vehicles. However, even if one
were to accept that, viewed in the light of the purpose of the requirement i.e.
to apprise the City of the particulars of such vehicles and whether they were
indeed owned by and registered in the name of the applicant, it complied in
25
effect with what was required (i.e in pre-Allpay language there was substantial
compliance), this would not be sufficient to push the applicant over the 50%
threshold required for functionality, as it would only have been entitled to be
awarded 20 points.
69. That then as far as tender 09/22 is concerned. If one considers the tender
documentation in tender 10/22 in the light of the accepted principles the
following emerges. In t he first place, the submission of a valid certificate of
registration issued by the NBC was a mandatory requirement and bidders
were clearly informed on the very first page of the invitation to bid that the
failure to submit it would render them non -responsive and subject to
disqualification, even before their bids would be evaluated for preference and
price. That this was a material and compulsory requirement was emphasised
at the compulsory briefing session that was held for bidders. In contrast to
this, the additional requirement that bidders were to submit a letter of good
standing from the NBC was not prescribed as a mandatory one , failure to
comply with which would result in non -responsiveness. The terms of the bid
and its special conditions stated that bidders who had already obtained such a
letter could submit it with their bid documentation , whilst those who had not
could submit it later . The distinction between the 2 types of documents and
the consequences attendant upon a failure to submit them , is evident from a
reading of clause 9 of the terms of reference. Both documents are referred to
therein as ‘statutory’ documents which were required and had to be submitted.
The certificate of registration had to be submitted ‘with the tender document’
i.e. the bid and a failure to do so would result in ‘elimination’ (sic). The letter of
good standing was to be submitted by ‘successful bidders’ i.e. bidders who
qualified as responsive and had been awarded the tender , within 7 days
thereof, and they would not be allocated work until they did so.
70. In their answering affidavit the respondent s stated that the purpose of
requiring a valid NBC registration certificate, as opposed to only a letter of
good standing, was that a properly issued certificate serve d as conclusive
proof of a bidder’s registration at the time of the submission of their bid. In this
regard it is evident (from a copy of a registration certificate which was issued
to one of the successful bidders ) that it certifies and confirms that the holder
thereof is registered as an employer with the NBC as at the date of issue
26
thereof. Importantly, t he holder’s particulars are set out in the certificate
including, where the holder is a company or close corporation , its registered
name and CIP C registration number, the names of its directors or members
and its (registered) business address.
71. The applicant conceded that n either of the 2 letters from the NBC which it
submitted qualifie d as a certificate, either within the ordinary, linguistic
meaning commonly understood by the term, or the meaning to be ascribed to
the term in the context of the particulars that are ordinarily recorded on such a
document by the NBC. Neither of the letters expressly certified and confirm ed
that the applicant was registered with the NBC as at the date thereof. Aside
from wrongly referring to the applicant as ‘Pro sec Guards’ (it is in fact a CC),
neither of the 2 letters confirmed its registered name, registration number,
registered business address and the names of its members. Both letters
merely sought to confirm that ‘Prosec Guards’ had levied contributions to the
NBC in accordance with the levy agreement applicable to the sector , but
neither of them even set out the ‘contributor’s’ levy number, as would appear
in the case of a registration certificate.
72. In the circumstances, the information provided in the letters can hardly be
considered to constitute substantial compliance , in terms of the submission of
the requisite information which would be provided to the municipality in a
registration certificate. As to the applicant’s contention that as both letters
confirmed that it was in good standing and they therefore implicitly confirmed
it was registered at the time as an employer with the NBC, the following. In
the first place, as was pointed out in Moroka and WDR Earthmoving it is the
prerogative of the tender authority to prescribe the type and formal
requirements of documents that are to be submitted to qualify a b id as
responsive, not the courts , which should respect such prerogative in
recognition of the separation of powers. Secondly, it seems to me that the
argument is analogous to submitting that because a professional is in good
standing with their regulatory authority ( such as the L egal Practice ,
Engineering or Health Professions Council) as they have paid their
membership and other dues , they must be possession of a valid certificate of
their admission as a legal or medical practitioner , or engineer . Whilst one
would expect that this would ordinarily be the case i t is not always and
27
necessarily so. It would depend on when the certificate of registration was
issued and whether it is genuine and extant, and when the dues were to be
paid. Thus, where dues are paid annually or quarterly a professional may
have paid them and would thus be in ‘good standing’ but may have
subsequently terminated their membership of the regulatory body or may
have been otherwise removed from the roll of its members for misconduct, or
on request. Thus, it does not necessarily and inevitabl y follow that a person
who is stated to be in ‘good standing’ with a regulatory authority is in fact a
registered member of it.
73. It seems to me also that , given the distinction which is made between
certificates and letters of good standing in clause 9 of the terms of reference ,
to accept that a letter of good standing would on its own suffice as proof of
registration would be unfair vis -à-vis bidders as a group, as letters of good
standing d id not have to be submitted with bid s, unlike certificates of
registration. To adopt the interpretation advanced by the applicant would
mean that notwithstanding the peremptory requirement that bidders needed to
supply registration certificates in order to qualify as responsive, before being
awarded the tender, they could ignore this requirement and would qualify as
responsive and would be eligible to be awarded the tender , as long as they
were able to provide a letter of good standing after the tender was awarded to
them. This would potentially open the door to unregistered bidders applying
for and being awarded tenders for security services and only registering as
employers thereafter with the NBC, if at all. The interpretation would be
manifestly unfair to the general body of providers in the security service
industry. In Steenkamp 42 the CC emphasized that tender processes require
‘equal’ compliance by bidders on the closing day for submission of bids. In
tender 10/22 many bidders were disqualified for not submitting registration
certificates. To treat the applicant differently would be improper and unfair.
Conclusion
74. In the circumstances the applications must both fail. As far as costs are
concerned, although the applicant contended that on the basis of the principle
in Biowatch it should not be mulcted in costs as it sought to vindicate its
42 Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 (3) SA 121 (CC) para 60; Allpay n 2 para
39.
29
Appearances:
Applicant’s counsel: DC Joubert SC and D Lubbe
Applicant’s attorneys: D Kotze Attorneys (Bellville)
First -Third Respondents’ counsel: T Masuku, T Sarkas and L Matiso
First -Third Respondents’ attorneys: State Attorney (Cape Town)