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[2024] ZAKZPHC 100
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Maximum Profit Recovery (Pty) Ltd v Umlalazi Municipality and Others (17686/23P) [2024] ZAKZPHC 100 (11 November 2024)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Reportable/Not
Reportable
Case
No: 17686/23P
In
the matter between:
MAXIMUM
PROFIT RECOVERY (PTY) LTD

APPLICANT
(Registration
No: 2001/005576/07)
and
UMLALAZI
MUNICIPALITY

FIRST RESPONDENT
NN
SHANDU

SECOND RESPONDENT
BONAKUDE
CONSULTING (PTY) LTD

THIRD RESPONDENT
(Registration
No: 2002/021160/07)
DYNAMIC
DASHING SOLUTIONS (PTY) LTD

FOURTH RESPONDENT
(Registration
No: 2015/303045/07)
MORAR
INC

FIFTH RESPONDENT
(Registration
No: 2000/008551/21)
NTSHIDI
AND ASSOCIATES CC

SIXTH RESPONDENT
(Registration
No: 2007/188775/23)
PK
FINANCIAL CONSULTANTS CC

SEVENTH RESPONDENT
(Registration
No: 2001/037349/23)
PROMILEZI
(PTY) LTD

EIGHTH
RESPONDENT
(Registration
No: 2017/391751/070
UMNOTHO
BUSINESS CONSULTING-1 CC

NINTH RESPONDENT
(Registration
No: 2006/126745/23)
MNTAMBO
FINANCIAL CONUSLTING CC

TENTH RESPONDENT
(Registration
No: 2008/252513/23)
ORDER
1.
That the decision of the first respondent to issue and publish Tender
KZN ULM 05/23/24 for
the appointment of a panel for the provision of
quality assurance on accounting services for the period of three (3)
years (“the
Tender”) is declared constitutionally
invalid.
2.
That the decision to award the Tender to the third to tenth
respondents, declared constitutionally
invalid.
3.
That it is declared that the further tender process followed by the
first respondent subsequent
to the tender award referred to in
paragraph 2 above, is declared constitutionally invalid.
4.
That the decision of the first respondent to appoint the sixth
respondent, for review and
recovery of value added tax for a period
of twelve (12) months at a percentage of 9.2% in terms of the letter
of award dated 14
November 2023 is declared constitutionally invalid.
5.
That any agreement concluded between the first respondent and the
third to tenth respondents,
pursuant to the awarding of the Tender,
is set aside.
6.
The first and second respondents are ordered to pay the costs jointly
and severally, the
one paying the other to be absolved, such costs to
include the costs of two counsel, on scale C.
7.
The sixth respondent is ordered to pay the applicant’s costs
insofar as they relate
to the reply to the sixth respondent’s
answering affidavit.
JUDGMENT
Marion
AJ
Introduction
[1]
This is a semi-urgent application launched by the applicant in
November 2023. The applicant sought
the following relief in its
amended notice of motion:
‘
1.
That this application be heard as an urgent application in terms the
provisions of Rule 6(12) of the Uniform Rules of Court
and that the
necessary condonation be granted to the applicant in respect of the
non-compliances with the prescribed time limits,
forms and service;
2.
That the decision of the first respondent to issue and publish Tender
KZN ULM 05/23/24 for
the appointment of a panel for the provision of
quality assurance on accounting services for the period of three (3)
years (“the
Tender”) be declared constitutionally
invalid, reviewed and set aside;
3.
That the decision to award the Tender to the third to tenth
respondents, be declared constitutionally
invalid, reviewed and set
aside;
4.
That it be declared that the further tender process followed by the
first respondent subsequent
to the tender award referred to in
paragraph 3 above, be declared constitutionally invalid, reviewed and
set aside;
5.
That the decision of the first respondent to appoint the sixth
respondent, for review and
recovery of value added tax for a period
of twelve (12) months at a percentage of 9.2% in terms of the letter
of award dated 14
November 2023 be declared constitutionally invalid,
reviewed and set aside;
6.
That any agreement concluded between the first respondent and the
third to tenth respondents,
pursuant to the awarding of the Tender,
be set aside;
7.
That the applicant be exempted, insofar as it might be necessary,
from any obligation of
first exhausting any internal remedy as
contemplated in section 7(2)(c) of the
Promotion of Administrative
Justice Act, 3 of 2000
;
8.
That the first and second respondents, jointly and severally, be
ordered to pay the applicant’s
costs, alternatively, and only
in the event that the application is also opposed by any of the other
respondents, that the first
and second respondents, jointly and
severally together with such other respondents, be ordered to pay the
costs of the application’.
[2]
The applicant, Maximum Profit Recovery (Pty) Ltd, is a company duly
registered and incorporated
in terms of the company laws of South
Africa. The first respondent is the uMlalazi Municipality, a
municipality established in
terms of
section 12
of the
Local
Government: Municipal Structures Act 117 of 1998
. The second
respondent was cited in his capacity as the first respondent’s
municipal manager and accounting officer. The
third to tenth
respondents submitted tenders in response to the invitation to
tender. Arguments in this matter were heard on 22
July 2024 and 29
July 2024.
[3]
The sixth and ninth respondents filed a notice to abide the court’s
decision. The sixth
respondent also filed an affidavit to which the
applicant filed a replying affidavit.
The
gist of the applicant’s argument in their reply was that the
sixth respondent made averments to oppose the relief sought
by the
applicant whilst at the same time submitting that they will abide by
the court’s decision. I agree with the applicant’s

argument that this was not ‘merely an explanatory affidavit,
but an answering affidavit actively opposing the relief sought
by the
applicant.’
[1]
The sixth
respondent’s answering affidavit
[2]
contains contradictory views and in all fairness to the parties, I
will not attach any weight thereto. A supplementary affidavit
was
filed by the sixth respondent on 29 July 2024 with the consent of the
applicant. The sixth respondent’s representative
was present in
court at the first hearing of arguments on 22 July 2024 and sought to
file this affidavit to assist the court. The
sixth respondent
initially assumed that their ‘acceptance of the original tender
award, being the awards made to the panel
of successful tenderers on
23 September 2023 was common cause.’
[3]
The sixth respondent filed annexure “ZM1” as proof of
their acceptance to the panel. The supplementary affidavit is

accepted by the court as prima facie evidence of the sixth
respondent’s acceptance of the offer. The seventh respondent
withdrew their notice of intention to oppose this application.
[4]
The application is accordingly opposed by the first and second
respondents only. The first and second respondents will be referred

to jointly as ‘the respondents’, unless the context
requires otherwise.
[4]
The matter was first heard on 30 January 2024 when this court granted
an order regulating the
exchange of further affidavits. The issue of
urgency was accordingly dispensed with. Due to the late filing of a
supplementary
record by the first respondent, it became necessary for
the applicant to file a supplementary affidavit. On 12 February 2024,
a
day before the first respondent’s answering affidavit was
due, the first respondent discovered further documents. This once

again necessitated the filing of a second supplementary affidavit by
the applicant.
[5]
At the outset, I would like to thank counsel for their assistance
with the filing of comprehensive
heads of arguments and oral
submissions in this matter. In this regard, Mr Els SC and Mr Louw
appeared for the applicant and Ms
Nicholson for the first and second
respondents. The papers in this matter are voluminous.
Background
[6]
On 31 July 2023 the first respondent published an invitation to
tender for the ‘appointment
of a panel for the provision of
quality assurance on accounting services for the period of three (3)
years’ under tender
reference KZNULM 05/2023/25 (the tender).
The tender contemplated the appointment of a panel to render the
following services:
general accounting; VAT recovery; actuarial; and
internal auditing.
[7]
The tender contained one set of functionality criteria that applied
to all the different disciplines
and the tender did not require
tenderers to tender on price. The minimum threshold score that had to
be achieved by any participating
tenderer to pass the functionality
assessment was 75 out of 100 points. The applicant scored 68/100
points in respect of the functionality
assessment.
[8]
Pursuant to the evaluation of the tenders, the respondents appointed
the third to tenth respondents
as the panel. The fourth, fifth,
sixth,
[5]
seventh and tenth
respondents formally accepted the appointment as part of the panel.
After the appointment to the panel, the respondents
requested three
of the members to submit quotations. (fifth, sixth and seventh
respondents) However, only the sixth and seventh
respondents
submitted quotations. On 14 November 2023, the respondents appointed
the sixth respondent to render VAT review services
for a period of 12
months at a rate of 9.2% per month.
Issues
to be determined
[9]
Apart from the review application, with the specific issues set out
hereunder, the respondents
raised two points
in limine
, where
the respondents state that the applicant failed to exhaust two
alternative (or internal) remedies; namely,
(a)
an appeal in terms of section 62 of the Local Government: Municipal
Systems Act 32 of 2000 (MSA),
and
(b)
an appeal to the Municipal Bid Appeals Tribunal as provided in clause
50A of the first respondent’s
Supply Chain Management Policy
(SCMP).
If
the respondents are successful on any or both points
in limine
,
that will put an end to this application.
[10]
However, if the respondents are not successful, the following issues
in this application are to be decided:
(a)
whether the functionality criteria in the tender document were
irrational.
(b)
whether it was irregular to include four separate disciplines in one
tender.
(c)
whether it was irregular that the tender document made no provision
for any preference point scoring.
(d)
whether it was irregular for the first respondent to request certain
members of the panel to submit
quotations for individual appointments
after the tender process came to an end.
(e)
whether the tender process offends the constitutional imperatives of
section 217 of the Constitution.
(f)
whether the irregularities in the tender process constitute valid
grounds of review in terms
of the Promotion of Administration to
Justice Act 3 of 2000 (PAJA).
(g)
whether the appropriate remedy in this matter is to finally set aside
the tender award made in
favour of sixth respondent.
Did
the applicant exhaust their internal remedies?
[11]
The first issue that requires determination is the respondents’
argument that the applicant should
not have brought this application
without first exhausting the internal remedies available to them. In
terms of section 7(2)
(a)
of PAJA:
‘
No
court or tribunal shall review an administrative action in terms of
this Act unless any internal remedy provided for in any other
law has
first been exhausted’.
Section
(7)(2)
(c)
of PAJA states that a:
‘
court
or tribunal may, in exceptional circumstances and on application by
the person concerned, exempt such person from the obligation
to
exhaust any internal remedy if the court or tribunal deems it in the
interest of justice.’
[12]
The court in
DDP
Valuers (Pty) Ltd v Madibeng Local Municipality
[6]
stated:
‘
Generally,
the duty to exhaust internal remedies is not in and of itself
absolute nor is it automatic. That much is clear from the
latitude
given to courts in s 7(2)(c) of the PAJA, to exempt applicants, in
exceptional circumstances and upon application made
by the person
concerned, from exhausting internal remedies if deemed by the court
to be in the interest of justice. Furthermore,
“a court will
condone a failure to pursue an available remedy where the remedy is
illusory or inadequate, or because it is
tainted by the alleged
illegality”. Under the common law, the two “paramount
considerations” are (a) whether
the domestic remedies are
capable of providing effective redress, and (b) whether the alleged
unlawfulness undermines the internal
remedies themselves.’
(footnotes omitted)
[13]
The respondents submitted that the applicant had two alternative
internal remedies available to it namely,
(a) an appeal in terms of
section 62 of the MSA which must be exercised within 21 days of
notification of the decision and (b)
an appeal to the Municipal Bid
Appeals Tribunal as provided for in terms of clause 50(A) of the
first respondent’s Supply
Chain Management Policy (‘SCMP’).
[7]
The respondents raised the applicant’s failure to exhaust these
internal remedies as two separate points
in
limine
.
The respondents argued that
[8]
‘
The
applicant wrote correspondence to the first respondent notifying them
of the applicant’s objections to the functionality
criteria in
August 2023. However, once the notice of intention to award was
published and when the applicant become aware of the
award, it took
no steps to launch either internal remedy.’
First
point in limine: The remedy in terms of section 62 of the MSA
[14]
The respondents submitted that the appeal process in terms of section
62 of the MSA was recorded in the tender
document and is applicable
in this matter.
[9]
Section 62 of
the MSA reads as follows:
‘
(1)
A person whose rights are affected by a decision taken by a political
structure, political office bearer, councillor or staff
member of a
municipality in terms of a power or duty delegated or sub-delegated
by a delegating authority to the political structure,
political
office bearer, councillor or staff member, may appeal against that
decision by giving written notice of the appeal and
reasons to the
municipal manager within 21 days of the date of the notification of
the decision.
(2)
The municipal manager must promptly submit the appeal to the
appropriate appeal authority mentioned
in subsection (4).
(3)
The appeal authority must consider the appeal, and confirm, vary or
revoke the decision, but no
such variation or revocation of a
decision may detract from any rights that may have accrued as a
result of the decision.
(4)
When the appeal is against a decision taken by-
(a)
a staff member other than the municipal manager, the municipal
manager is the appeal authority;
(b)
the municipal manager, the executive committee or executive mayor is
the appeal authority, or, if
the municipality does not have an
executive committee or executive mayor, the council of the
municipality is the appeal authority;
or
(c)
a political structure or political office bearer, or a councillor-
(i)
the municipal council is the appeal authority where the council
comprises less than 15 councillors;
or
(ii)
a committee of councillors who were not involved in the decision and
appointed by the municipal
council for this purpose is the appeal
authority where the council comprises more than 14 councillors.
(5)
An appeal authority must commence with an appeal within six weeks and
decide the appeal within
a reasonable period.
(6)
The provisions of this section do not detract from any appropriate
appeal procedure provided for
in any other applicable law.’
[15]
A decision taken regarding terms or conditions of a tender have been
held to constitute administrative action
that may be legally
challenged under review in terms of PAJA. What administrative action
entails, in terms of PAJA, was summarised
in
Airports
Company South Africa SOC Ltd v Imperial Group Ltd
as follows:
[10]
‘
The
definition of “administrative action” in s 1 of PAJA has
seven components: (a) there must be a decision of an administrative

nature; (b) by an organ of state or a natural or juristic person;
(c)
exercising a public power or performing a public function; (d) in
terms of any legislation or empowering provision; (e) if that

decision adversely affects the rights of any person; (f) or has a
direct, external legal effect; and (g) does not fall under any
of the
exclusions listed in that section.’ (footnotes omitted)
[16]
The applicant submits that the first administrative decision taken by
the respondents was to publish the
tender. They argued that the
‘purpose of the inclusion of functionality criteria in a tender
is to establish whether or not
a tenderer will be able to perform in
terms of the work or services contemplated in the tender.’
[11]
They went on to argue ‘that the functionality criteria should
be rationally connected to the specific services required.’
[12]
The applicant submitted that the pre-qualification criteria in the
tender that related to the directors of the tendering company
being
chartered accountants (with specific reference to services for VAT
and actuarial work) and requesting for the experience
of the ‘leading
partner’ of the tendering company, was erratic and irregular.
The applicant argued that it was this
administrative decision that it
sought to set aside.
[17]
The applicant submitted that the ‘first respondent had
deliberately failed to timeously advise the
applicant of the outcome
of the tender.’
[13]
The
applicant became aware of the ‘Intention to Award Notice’
around the 7 November 2023. By that time the notice had
already been
published for 6 weeks and the period to lodge an appeal had already
expired. The respondents argued that they had
no obligation to inform
the applicant that they were unsuccessful, as this was published on
their website.
[14]
In
Chairman
of the State Tender Board v Digital Voice Processing (Pty) Ltd;
Chairman of the State Tender Board v Sneller Digital (Pty)
Ltd
the court held:
[15]
‘
Generally
speaking, whether an administrative action is ripe for challenge
depends on its impact and not on whether the decision-maker
has
formalistically notified the affected party of the decision or even
on whether the decision is a preliminary one or the ultimate
decision
in a layered process   Ultimately, whether a decision is
ripe for challenge is a question of fact, not one of
dogma.’
In
terms of the tender documents, the respondent placed the notice to
award the tender on their website on 26 September 2023. In
terms of
the internal remedy provided in section 62 of the MSA, the applicant
would have 21 days from the date when the notice
of intention to
award was published, to launch this internal remedy. The respondents
did not need to formally notify the applicant
that they were
unsuccessful. The applicant did not elect to utilise this remedy
within the required time frame. In any event, the
applicant submitted
that to first exhaust an internal remedy would have severely
prejudiced the applicant who sought an appropriate
remedy in terms of
section 172(1)
(b)
of the Constitution.
[18]
The respondents argued that in terms of section 7 of PAJA that ‘an
internal remedy must be exhausted
prior to judicial review, unless
the appellant can show exceptional circumstances to exempt him from
this requirement.’
[16]
Koyabe v
Minister for Home Affairs
specifically states that
[17]
‘…
unless exceptional
circumstances are found to exist by a court on application by the
affected person, PAJA, which has a broad scope
and applies to a wide
range of administrative actions, requires that available internal
remedies be exhausted prior to judicial
review of an administrative
action.’ (footnote omitted)
[19]
The court expanded its explanation of exceptional circumstances
further in
Koyabe
and stated that:
[18]
‘
What
constitutes exceptional circumstances depends on the facts and
circumstances of the case and the nature of the administrative
action
at issue. Thus, where an internal remedy would not be effective and
or where its pursuit would be futile, a court may permit
a litigant
to approach the court directly. So too where an internal appellate
tribunal has developed a rigid policy which renders
exhaustion
futile.’ (footnote omitted)
[20]
The respondents were adamant that the applicant had failed to
identify any exceptional circumstances to justify
being exempt from
exhausting its internal remedies. The respondents argued that the
internal remedy available to the applicant
was provided for in terms
of section 62 of the MSA and if the applicant had elected to go this
route, a decision by the Municipal
Bid Appeals Tribunal would both
have been effective and adequate. They went on to argue that due to
the lapse of time this remedy
was no longer available to the
applicant, however, this should not be a justification for the
applicant not having timeously pursued
it. The applicant argued that
the failure of the respondents to notify them timeously that they
were unsuccessful as well as the
prejudice to have to first exhaust
an internal remedy, were exceptional circumstances as contemplated in
section 7(2)
(c).
Mr Els
contended that one cannot get condonation for the 21 days as the
period lapses. He referred the court to the case of
Amandla
GCF Construction CC v Municipal Manager, Saldanha Bay
Municipality
[19]
where the court stated the following:
‘
There
is no general power afforded to the Municipality (acting through its
officials or office bearers) to extend a statutory time
period,
except if that power is conferred on it, as allowed in that
particular section of the statute. In the end, it comes down
to the
interpretation of that particular statute. Therefore, if the
legislature intended a statute to operate as an absolute bar,
the
“general power”, if there was any, could not trump that
intention.’
[21]
The respondents argued that the decision to appoint the third to
tenth respondents to the panel was made
by the first respondent’s
Bid Adjudication Committee (BAC) at its meeting on 20 September 2023
and not by the municipal manager.
[20]
This decision was made in terms of delegated and/or sub-delegated
power or duty.
[21]
Mr Els
argued that the BAC makes the recommendation but the decision to
award is made by the second respondent. He stated further
that the
second respondent exercised an original power as opposed to a
delegated power when appointing the panel. The court was
referred to
the matter of
Maximum
Profit Recovery (Pty) Ltd v Inxubu Yethemba Local Municipality
where Bloem J analyses these issues as follows:
[22]
'
‘
[16] . . . In
terms of section 60
(a)
of the Local Government: Municipal
Finance Management Act (Municipal Finance Management Act) the
municipal manager of a municipality
is the accounting officer of the
municipality for purposes of the Municipal Finance Management Act,
and, as accounting officer,
must exercise the functions and powers
assigned to an accounting officer in terms of that Act. In terms of
section 1 of the Municipal
Finance Management Act that Act includes
the regulations made in terms of section 168 or 175 thereof. The
Minister of Finance made
regulations in terms of section 168 of the
Municipal Finance Management Act.
[17]    In
terms of
regulation 29(1)
(a)
(ii)
of the
Municipal Supply Chain Management Regulations a
bid
adjudication committee must, depending on its delegations, make a
final award “
or
a recommendation to the accounting officer to make the final award”.
From the above regulation it is, in my view, clear that the power of
a municipal manager to award a tender to a successful tenderer
is an
original power, which is regulated by the Municipal Finance
Management Act and the regulations made in terms thereof.’
[23]
(footnotes omitted)
[22]
Mr Els argued that the present matter is far worse than
Inxuba
Yethemba
as it involved, not only a publication of the invitation
to tender but, also an award of the tender. I agree with Bloem J’s

reasoning above and in applying it to this matter, I conclude that
the second respondent exercised an original power in selecting
the
panel and awarding the VAT services to the sixth respondent.
[23]
The following from
DDP
Valuers
is important to note for this matter:
[24]
‘
In
this case, the appellant as an unsuccessful tenderer would have been
entitled to appeal under section 62. However, the Municipality
had
already awarded the contract to the second respondent and the parties
had already signed an agreement to that effect resulting
in the
rights accruing to the second respondent. It follows that the
appellant could not resort to that procedure in order to comply
with
s 7(2) of the PAJA.’
I
agree that an appeal as contemplated in section 62 is no longer
available because the contract has been awarded to the sixth
respondent who has accepted the contract and accordingly rights have
accrued to them. In light thereof the appeal envisaged in section
62
of the MSA was not available to the applicant and did not constitute
an internal remedy for the applicant as explained in section
7(2)
(a)
of PAJA.
Second
point in limine: The remedy in terms of clause 50(A) of the first
respondent’s SCMP
[24]
The respondents argued that the second internal remedy that the
applicant could have elected to utilise was
provided for in clause
50A of the first respondent’s SCMP. Clause 50A states the
following:
‘
Municipal
Bid Appeals Tribunal
(1)
The council shall establish a Municipal Bid Appeals Tribunal for its
area of jurisdiction to hear
and determine an appeal against the
award of a bid or make use of the Tribunal established by Provincial
Treasury.
(2)
The accounting officer of the municipality, in consultation with the
Provincial Treasury, shall
appoint the Chairperson, Deputy
Chairperson and Members of the Municipal Bid Appeals Tribunal.
(3)
The powers, duties and functions of the Municipal Bid Appeals
Tribunal, and matters incidental
thereto, are set out in the Rules
which must be appended to this Supply Chain Management Policy.
(4)
The administrative and secretarial work involved in the performance
of the duties and functions
of the Municipal Bid Appeals Tribunal
shall be performed by officers of the Provincial Treasury as set out
in the Rules referred
to in clause 50A.3.
(5)
There shall be no further appeal against a decision of the Municipal
Bid Appeals Tribunal.’
[25]
Regulation 50(7) of the Municipal Supply Chain Management
Regulations, 2005, GN 868, GG 27636 of 30 May 2005
(Municipal Supply
Chain Management Regulations), states that ‘[t]his regulation
must not be read as affecting a person’s
rights to approach a
court at any time.’ The ruling in
Maximum
Profit Recovery (Pty) Ltd v Bela-Bela Local Municipality
in
its discussion of regulation 50, referring to
DDP
Valuers
,
makes it clear that ‘since there is no obligation on a
disgruntled tenderer to utilise its provisions, that these procedures

do not constitute an internal remedy as is contemplated in Section 7
of PAJA’ (footnotes omitted).
[25]
The applicant cannot be faulted for approaching the court to launch a
judicial review of the tender rather than electing to lodge
an appeal
in terms of clause 50A. In as much as internal remedies may be
cost-effective and provide for expeditious results, the
applicant
ultimately elects what route to follow. Mr Els contended that the
remedy sought must be an effective one, especially
where rights have
accrued. He maintained that the court should consider the authority
in
DDP
Valuers
in respect of this point. I agree with the reasoning in
DDP
Valuers
,
as well as the arguments advanced by Mr Els. In the result, the
respondents fail with their arguments that the applicant ought
to
have lodged an appeal to the Municipal Bid Appeal Tribunal as
provided in clause 50A of the first respondents SCMP.
Was
the applicant required to exhaust its internal remedies?
[26]
To conclude the issue of whether the applicant should have exhausted
its internal remedies, I find that the
applicant cannot be faulted
for approaching the court to launch a judicial review of the tender
rather than electing to lodge an
appeal in terms of section 62 of the
MSA or clause 50A of the SCMP. The application for review was not
brought prematurely. The
above two points
in limine
are
accordingly dismissed.
Constitutional
validity of the tender
[27]
I will now deal with the applicant’s grounds to declare the
respondents’ tender constitutionally
invalid, reviewed, and set
aside. The applicant submitted that the respondents’
pre-qualification criterion for the directors
of the tenderers to be
chartered accountants (registered with SAICA)
[26]
was indicative of their obsession with having qualified chartered
accountants on the panel at the expense of excluding other general

accounting specialists (for example tax specialists or actuarial
specialists). If all the directors did not have these qualifications,

the tenderer would not be able to pass the minimum threshold and be
appointed on the panel. The applicant argued that this functionality

criteria was formulated to exclude competition and favour particular
tenderers.
[28]
On 14 August 2023, the applicant addressed a letter to the first
respondent recording its objection to the
functionality criteria of
the tender. The applicant documented the reasons for their objection
and more specifically stated that
the functionality criteria in the
tender were irrational and inconsistent with section 217 of the
Constitution.
[29]
The applicant requested an undertaking from the respondent confirming
that they would not proceed with the
evaluation of the tender or make
any award but to cancel the tender and re-advertise. The applicant
advised the first respondent
that it would proceed to obtain the
appropriate relief together with a punitive cost order, if the
requested undertaking was not
provided. The first respondent’s
attention was drawn to
Inxuba Yethemba
where on similar facts
the court held that the functionality criteria was constitutionally
invalid, reviewed and set aside. No
response was forthcoming. A
follow up letter, reiterating the above, also received no response.
The first respondent then proceeded
to award the tender to the
successful tenderers. It is not disputed that the applicant was only
awarded 68 out of 100 points and
was not appointed to the panel. This
precipitated the application before me.
[30]
Section 217 of the Constitution provides:
‘
(1)
When an organ of state in the national, provincial or local sphere of
government, or any other institution identified in national

legislation, contracts for goods or services, it must do so in
accordance with a system which is fair, equitable, transparent,

competitive and cost- effective.
(2)
Subsection (1) does not prevent the organs of state or institutions
referred to in that subsection
from implementing a procurement policy
providing for-
(a)
categories of preference in the allocation of contracts; and
(b)
the protection or advancement of persons, or categories of persons,
disadvantaged by unfair discrimination.
(3)
National legislation must prescribe a framework within which the
policy referred to in subsection
(2) must be implemented.’
[31]
In
AllPay
Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer
of the South African Social Security Agency
[27]
the Constitutional Court stated the following with regards to section
217 of the Constitution:
‘
Compliance
with the requirements for a valid tender process, issued in
accordance with the constitutional and legislative procurement

framework, is thus legally required. These requirements are not
merely internal prescripts that . . . may [be] disregard at whim.
To
hold otherwise would undermine the demands of equal treatment,
transparency and efficiency under the Constitution.’ (footnotes

omitted)
[32]
The applicant submitted that the ‘first respondent is required
to comply with the peremptory provisions
of section 217 of the
Constitution and ensure that its procurement system is fair,
equitable, transparent, competitive and cost
effective.’
[28]
The applicant further drew the court’s attention to the
relevant legislation with which the first respondent is required
to
comply with in tender matters. The respondents where ad idem that the
same legislation was applicable in this matter. The courts
attention
was drawn to the following legislation:
(a)
The Preferential Procurement Policy Framework Act 5 of 2000 (‘the
PPPFA’);
(b)
The Preferential Procurement Regulations, 2022, GN 2721,
GG
47452 of 4 November 2022 (‘the Procurement Regulations’);
(c)
The Local Government: Municipal Finance Management Act 56 of 2003
(‘the MFMA’);
(d)
The Municipal Supply Chain Management Regulations (published in terms
of section 168 of the MFMA);
(e)
The first respondent’s approved SCMP; and,
(f)
The relevant Treasury Guidelines.
[33]
The applicant argued that the first respondent contravened the
provisions of the legislation set out hereunder.
The relevant parts
of section 2 of the PPPFA read as follows:
‘
(1)
An organ of state must determine its preferential procurement policy
and implement it within the following framework:
(a)
A preference point system must be followed;
.
. .
(f)
the contract must be awarded to the tenderer who scores the highest
points, unless objective
criteria in addition to those contemplated
in paragraphs (d) and (e) justify the award to another tenderer’.
[34]
Regulations 4(4), 5(4), 6(4) and 7(4) of the Procurement Regulations
have exactly the same wording and provide
as follows:
‘
Subject
to section 2(1)
(f)
of the Act, the contract must be awarded to
the tenderer scoring the highest points.’
[35]
Regarding the formulation of the tender, regulation 27(2) of the
Municipal Supply Chain Management Regulations
provides as follows:
‘
(2)
Specifications-
(a)
must be drafted in an unbiased manner to allow all potential
suppliers to offer their goods or services;
.
. .
(c)
where possible, be described in terms of performance required rather
than in terms of descriptive
characteristics for design;
.
. .
(f)
must indicate each specific goal for which points may be awarded in
terms of the points system
set out in the supply chain management
policy of the municipality or municipal entity; and
(g)
must be approved by the accounting officer prior to publication of
the invitation for bids in terms
of regulation 22.’
[36]
Clause 11(1)
(d)
of the first respondent’s SCMP provides
as follows:
‘
(1)
The Accounting Officer must establish, through operational
procedures, an effective system of acquisition management in order
to
ensure –
.
. .
(d)
That bid documentation, evaluation and adjudication criteria, and
general conditions of a contract,
are in accordance with any
applicable legislation’.
[37]
Under the summary of the first respondent’s ‘range of
procurement’ processes in clause
12(1) of the first
respondent’s SCMP the following is stated:
‘
Bid
Evaluation Committee to evaluate tenders in terms of functionality
criteria, thereafter in terms of PPPFA and price and recommend
to Bid
Adjudication Committee.’
[38]
Clause 19(5)
(b)
(viii) of the first respondent’s SCMP
provides as follows:
‘
The
Bid Evaluation Committee (in the case of Bids, or Deviations), may
negotiate the final terms and conditions, (including price),
on
Contracts, where it is possible to appoint more than one Contractor,
from a Panel of Vendors who responded to the Request for
Bid. Such
negotiations to be with the sole aim of treating all respondents
fairly and equally, with the aim to distribute work
as evenly and
fairly as possible Such Requests for bids to specify Council’s
intention to do so at advertising stage. Minutes
of such negotiations
to be kept for record purposes.
(This
clause is to be read in conjunction with clause 24 of this Policy).’
[39]
Clause 21(3)(ii) of the first respondent’s supply chain
management policy provides as follows:
‘
(3)
Documents that have to be present at tender opening which must be
countersigned and stamped accordingly are:
…
(ii)
The price and all supporting pricing schedules’.
[40]
Clause 24(1) of the first respondent’s SCMP provides as
follows:
‘
(1)
The Accounting Officer may negotiate the final terms of a contract
with bidders identified through a competitive bidding process
as
preferred bidders, provided that such negotiation –
(a)
Does not allow any preferred bidder a second or unfair opportunity;
(b)
Is not to the detriment of any other bidder; and
(c)
Does not lead to a higher price than the bid as submitted.
(2)
Minutes of such negotiations must be kept for record purposes’.
[41]
Lastly, the bid specifications that are contained in clause 27(2) of
the first respondent’s SCMP, the
relevant part provides as
follows:
‘
(2)
Specifications –
(a)
Must be drafted by the end user on the approval of the Departmental
Director in an unbiased manner
to allow all potential suppliers to
offer their goods or services’.
[29]
[42]
Also important to note are the functionality criteria that were
listed in the tender, and these read as follows:
‘
Criteria
1 required of a tenderer (i) to be a firm of chartered
accountants;(ii) that all company directors that appear on CK
documents
to be chartered accountants; the maximum potential score
allocated was 10 points. Criterion 2 related to academic
qualification
and experience of all company directors that appear on
CK document; 15 points were allocated to a qualified chartered
accountant
with at least 15 years and more than experience; 10 points
were allocated to a chartered accountant with at least 10 years and
more experience; five points were allocated to a qualified chartered
accountant with less than 5 years’ experience; two points
were
allocated to a qualified chartered accountant with less than five
years’ experience. Criterion 3 related to the experience
of the
leading partner (that appear on CK documents) professional
affiliation with SAICA (as CA) and experience; 15 points was

allocated if you were a SAICA member and practicing for at least 15
years; 10 points if you became a SAICA member and were practicing
for
at least 10 years; five points if you were a SAICA member and
practicing for at least 5 years; two points if you became a SAICA

member and were practicing for less than five years.’
[30]
[43]
The applicant argued that the tender provided for four separate types
of disciplines namely, services of
a general accounting nature; VAT
recovery; actuarial services and auditing services. The applicant
argued further that the tender
ought to have specified different
functionality criteria for the different types of disciplines or
services. This was premised
on the basis that different functionality
criteria would apply for each type of service. The crux of the
applicant’s argument
was that a qualification as a chartered
accountant would not be relevant for the performance of VAT recovery
services and actuarial
services. The applicant went on to argue that
the requirement for all directors of a tenderer to be chartered
accountants was ‘irrational’.
Mr Els submitted that there
was no relationship between the requirement and the purpose of the
tender. He stated that not all the
services listed in the tender were
of an accounting nature and secondly the actual services were
rendered by the key personnel
of the companies and not by the
directors themselves. The alternate argument was that a company could
have no directors who are
chartered accountants, but they may have
employed many chartered accountants who would be equipped to render
the services however
they would not meet the functionality criteria
as required in the tender. The applicant submitted that the
requirement that a tenderer’s
directors should be qualified
chartered accountants and registered with SAICA for a period of more
than fifteen years is completely
irrational.
[44]
The applicant’s case is that the functionality criteria in
respect of 1, 2 and 3 amount to the same
requirement. The applicant
argued that a tenderer who fails in respect of functionality criteria
1 will have no chance of scoring
in respect of 2 or 3. Thus, if a
tenderer fails to satisfy a single criterion it stands to lose 40
points. The minimum threshold
score in respect of functionality was
75 out of 100. The tenderer who achieved this score in respect of
functionality was appointed
on the panel. This requirement ultimately
resulted in the applicant’s disqualification as they scored 68
out of 100.
[45]
The applicant further submits that para 7(d) at page seven of the
tender provides as follows:
‘
Tenderers
will submit tender prices in accordance with the description,
requirements and sections. [No] changes of relevant section
in
connection with the tender documents will be permitted.’
The
applicant contended that the above section was vague.
[46]
The applicant further argued that the pricing schedule did not form
part of the documents which a tenderer
is required to submit as part
of its bid. Additionally, there was no provision in the tender for
point scoring which clearly shows
that the process was not
competitive. The tender document, according to the applicant, also
does not provide for any process after
the appointment of the panel,
where there would be any point scoring. Nowhere in the tender
document was there any reference made
to a two-stage bidding process.
It is common cause that certain respondents were appointed after the
first part of the process
and not in the second part. Unless the
tenderer was known as a firm of chartered accountants it will not be
eligible to apply for
the tender. It is common cause that the third
to tenth respondents were appointed to the panel. The first
respondent privately
requested three of the panellists to provide
them with quotations and only the sixth and seventh respondents
responded to this
request. Mr Els argued that it was unheard of to
request quotations after a panel has been appointed. The fact that
the respondents
gave the sixth respondent 12 months to render VAT
review services is administratively incorrect. This process was not
part of what
was contemplated in the tender and lacked transparency.
This appointment was done on 14 November 2023, without any further
public
tender process.
[47]
Mr Els argued that in
AllPay
the Constitutional Court set out
how a court should deal with alleged irregularities in a tender
process. Firstly, the alleged
irregularity should be identified.
Secondly the regularity should be legally evaluated to determine
whether the irregularity amounts
to a PAJA ground of review. Once
this has been established, a court is obliged to declare the award
invalid, as contemplated in
section 172(1)
(a)
of the
Constitution. The court has no discretion to conclude differently.
The court will thereafter have to consider an appropriate
remedy as
contemplated in section 172(1)
(b).
[48]
He referred the court to specific paragraphs in
AllPay
,
namely:
‘
[22]
This judgment holds that:
(a)
The suggestion that “inconsequential irregularities” are
of no moment conflates the test
for irregularities and their import;
hence an assessment of the fairness and lawfulness of the procurement
process must be independent
of the outcome of the tender process.
(b)
The materiality of compliance with legal requirements depends on the
extent to which the purpose
of the requirements is attained.
(c)
The constitutional and legislative procurement framework entails
supply chain management prescripts
that are legally binding.
(d)
The fairness and lawfulness of the procurement process must be
assessed in terms of the provisions
of the
Promotion of
Administrative Justice Act (PAJA
).
(e)
Black economic empowerment generally requires substantive
participation in the management and running
of any enterprise.
(f)
The remedy stage is where appropriate consideration must be given to
the public interest in
the consequences of setting the procurement
process aside.
.
. .
[43]
The legislative framework for procurement policy under s 217 of the
Constitution does not seek to give exclusive content to
that section,
nor does it grant jurisdictional competence to decide matters under
it to a specialist institution. The framework
thus provides the
context within which judicial review of state procurement decisions
under PAJA review grounds must be assessed.
The requirements of a
constitutionally fair, equitable, transparent, competitive and
cost-effective procurement system will thus
inform, enrich and give
particular content to the applicable grounds of review under PAJA in
a given case. The facts of each case
will determine what any
shortfall in the requirements of the procurement system —
unfairness, inequity, lack of transparency,
lack of competitiveness
or cost-inefficiency — may lead to: procedural unfairness,
irrationality, unreasonableness or any
other review ground under
PAJA.
.
. .
[58]
The materiality of irregularities is determined primarily by
assessing whether the purposes the tender requirements serve have

been substantively achieved.’
.
. .
[49]
Mr Els further stated that to have a set of functionality criteria
that sets the bar too high, will result
in a tender process that is
not truly competitive and, consequently, will offend the
constitutional imperative of competitiveness.
He went on to argue,
that an irrational set of functionality criteria will not achieve the
purpose of establishing whether tenderers
can, in fact, render the
required services. The applicant submitted that
section 240
of the
Tax Administration Act 28 of 2011
is a statutory requirement that
requires persons who render VAT review or recovery services, to be
duly registered tax practitioners.
Nowhere in the tender was there a
requirement for a single employee to be registered as a tax
practitioner.
[50]
The respondents denied that the functionality criteria were
irrational or formulated to exclude competition
and favour particular
tenderers. The respondents argued that the criteria were rational,
regular and in accordance with the provisions
of
section 2
of the
PPPFA, read with the provisions of regulation 3 of the Procurement
Regulations. Ms Nicholson argued that ‘it was for
the
municipality [i.e. the first respondent], and not the court, to
decide what should be a prerequisite for a valid tender.’
[31]
She went on to state that the decision on what to include as criteria
is an administrative decision,
[32]
which falls within the prerogative of the first respondent. The first
respondent chose to request a tender for a wide scope of
services,
which included different disciplines within the accounting field.
[51]
The respondents’ further argument was that the applicant has no
grounds to set aside the tender as
a two-stage bidding process was
adopted. Ms Nicholson referred the court to
Maximum
Profit Recovery (Pty) Ltd v Naledi Local Municipality
[33]
where a two-stage bidding process was adopted, and the applicant was
appointed onto the tender. In that matter the applicant took
no issue
with the two-stage bidding process but merely sought to set aside the
award to one of the panellists. The respondents
argued that a
two-stage process is not per se irregular.
[52]
The two-stage bidding process is provided for in the Municipal Supply
Chain Regulations. Regulation 25 of
Municipal Supply Chain
Regulations provides as follows:
‘
Two-stage
bidding process
(6)
A supply chain management policy may allow a two-stage bidding
process for-
(a)
large complex projects;
(b)
projects where it may be undesirable to prepare complete detailed
technical specifications; or
(c)
long term projects with a duration period exceeding three years.
(7)
In the first stage technical proposals on conceptual design or
performance specifications should
be invited, subject to technical as
well as commercial clarifications and adjustments.
(8)
In the second stage final technical proposals and priced bids should
be invited.’
[53]
The respondents stated that the applicant could not fault the second
stage of the bidding process for an
awardee of VAT recovery and
review services. The respondents averred that there was nothing
irregular about the appointment of
the sixth respondent. In fact,
three of the panellists were invited to quote, and this process was
transparent. Tenders, they submitted
are evaluated not only on price,
but also on BBBEE
[34]
scores.
[54]
The applicant contended that the second stage of the process was
‘behind closed door’ which excluded
the public and
therefore lacked transparency.
[55]
The respondents argued that the purpose for requesting the
prerequisite to the tender was ‘to ensure
that qualified and
reliable firms were placed on the panel to whom the specific services
could be farmed out in the second competitive
bidding process.’
[35]
Ms Nicholson argued that the first respondent was seeking a panel of
professionals to ensure the highest standard of quality assurance.

The request for a chartered accountant at the helm of the company was
for purposes of an oversight role. She went on to state that
the
first respondent’s tender was neither irrational, nor
constitutionally invalid. The purpose of the functionality criteria

was to ensure the strictest standards of financial accountability for
the first respondent.
[56]
In
Pharmaceutical
Manufacturers Association of SA: In re ex parte President of the
Republic of South Africa
[36]
the Constitutional Court held the following in relation to the
exercise of public power by an organ of state:
‘
It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this requirement.
If it does not, it falls short of the standards
demanded by our
Constitution for such action.’ (footnote omitted)
[57]
The Constitutional Court in
Democratic
Alliance v President of South Africa
[37]
sets out the meaning of rationality and reasonableness:
‘
[29]
It must be emphasised that it is useful to keep the reasonableness
test and that of rationality conceptually distinct. Reasonableness
is
generally concerned with the decision itself. In the constitutional
era reasonableness in the administrative law context has
been
authoritatively stated in
Bato Star
:
“
In determining the
proper meaning of s 6(2)(h) of PAJA in the light of the overall
constitutional obligation upon administrative
decision-makers to act
reasonably, the approach of Lord Cooke provides sound guidance. Even
if it maybe thought that the language
of s 6(2)(h), if taken
literally, might set a standard such that a decision would rarely if
ever be found unreasonable, that is
not the proper constitutional
meaning which should be attached to the subsection. The subsection
must be construed consistently
with the Constitution and in
particular section 33 which requires administrative action to be
reasonable. Section 6(2)
(h)
should then be understood to
require a simple test, namely that an administrative decision will be
reviewable if, in Lord Cooke's
words, it is one that a reasonable
decision-maker could not reach.”
[30]
While there may be some overlap between the reasonableness and
rationality evaluations, these tools are best understood as
being
conceptually different. As was said in
Albutt:
“
The Executive has
a wide discretion in selecting the means to achieve its
constitutionally permissible objectives. Courts may not
interfere
with the means selected simply because they do not like them, or
because there are other more appropriate means that
could have been
selected. But, where the decision is challenged on the grounds of
rationality, courts are obliged to examine the
means selected to
determine whether they are rationally related to the objective sought
to be achieved. What must be stressed is
that the purpose of the
enquiry is to determine not whether there are other means that could
have been used, but whether the means
selected are rationally related
to the objective sought to be achieved. And if, objectively speaking,
they are not, they fall short
of the standard demanded by the
Constitution”’
(footnotes
omitted)
[58]
In
AllPay
the Constitutional Court stated the following in
respect of review applications:
‘
In
challenging the validity of administrative action an aggrieved party
may rely on any number of alleged irregularities in the

administrative process. These alleged irregularities are presented as
evidence to establish that any one or more of the grounds
of review
under PAJA may exist. The judicial task is to assess whether this
evidence justifies the conclusion that any one or more
of the review
grounds do in fact exist.’
[38]
[59]
In assessing the evidence before me I am of the view that the
functionality criteria in the tender document
was irrational in
respect of the actuarial and VAT recovery services. Although the
disciplines in the tender related to accounting
services it was clear
that there were four separate disciplines in one tender. The tender
made no provision for equity because
the preferential point scoring
system was not used. The prequalification in the tender for chartered
accountants as directors deliberately
excluded tenderers like the
applicant. The process lacked transparency as the second stage of
requesting quotations from three
members of the panel was not made
public. I agree with the applicant’s argument that the
appointment of the sixth respondent
for a period of 12 months could
never be described as cost effective since there was no true
competition amongst members of the
public. The appointment of the
sixth respondent for that period is clearly contrary to regulations
25(1)(a) and 25(1)(c) of the
Municipal Supply Chain Regulations.
Accordingly, a tender process that culminates in the appointment of a
panel, without any pricing,
conflicts with the constitutional
imperatives in section 217 of the Constitution. Furthermore, the
‘two- stage process’
adopted by the respondents was not
advertised in the original tender.
[60]
The respondents have deviated materially from the prescribed tender
process more specifically in respect
of the irrational formulation of
the functionality criteria. I agree with the applicant that the
respondents have failed to make
out a case that justifies the
irrational functional criteria, more specifically in testing the
ability of a tenderer to render
VAT review services. Nowhere in the
tender document was there any reference to a two-stage bidding
process. Considering the above,
the appointment of the sixth
respondent is found to be irregular. The applicant has met the
threshold for reviewing the tender
and setting it aside which the
court finds is just and equitable in the circumstances to do.
Costs
[61]
The applicant has succeeded in its review application and there is no
reason why the costs should not follow
the result.
Order
[62]
In the result, the applicant has made out a case for the relief
sought and I grant an order as follows:
1.
That the decision of the first respondent to issue and publish Tender
KZN ULM 05/23/24 for
the appointment of a panel for the provision of
quality assurance on accounting services for the period of three (3)
years (“the
Tender”) is declared constitutionally
invalid.
2.
That the decision to award the Tender to the third to tenth
respondents, is declared constitutionally
invalid.
3.
That it be declared that the further tender process followed by the
first respondent subsequent
to the tender award referred to in
paragraph 2 above, is declared constitutionally invalid.
4.
That the decision of the first respondent to appoint the sixth
respondent, for review and
recovery of value added tax for a period
of twelve (12) months at a percentage of 9.2% in terms of the letter
of award dated 14
November 2023 is declared constitutionally invalid.
5.
That any agreement concluded between the first respondent and the
third to tenth respondents,
pursuant to the awarding of the Tender,
is set aside.
6.
The first and second respondents are ordered to pay the costs jointly
and severally, the
one paying the other to be absolved and such costs
will include the costs of two counsel, on scale C.
7.
The sixth respondent is ordered to pay the applicant’s costs in
so far as they relate
to the reply to the sixth respondent’s
answering affidavit.
MARION
AJ
APPEARANCES
For the applicant:
Mr APJ Els SC with
Mr NG Louw
Instructed by:
Albert Hibbert
Attorneys
Care of:
Matthew Francis Inc
Pietermaritzburg
For the first and
second respondents:
Ms J Nicholson
Instructed by:
Shepstone &
Wylie Attorneys
Pietermaritzburg
For the Sixth
Respondent:
Instructed by:
Mosery and
Associates
Care of:
Mbili Attorneys
110 Oribi Road
Bisley
Pietermaritzburg
[1]
The papers, vol 6 at 527 para 5.
[2]
The papers, vol 6 at 481-488.
[3]
Sixth respondent’s supplementary affidavit para 4.
[4]
The papers, Notices Bundle at 113-119.
[5]
Annexure “ZN1” of the sixth respondent’s
supplementary affidavit.
[6]
DDP
Valuers (Pty) Ltd v Madibeng Local Municipality
[2015] ZASCA 146
(
DDP
Valuers
)
para 14.
[7]
See the papers at 274, regarding the Supply Chain Management Policy
(‘SCMP’).
[8]
First and second respondents’ heads of argument para 6 at 3.
[9]
The papers at 81.
[10]
Airports
Company South Africa SOC Ltd v Imperial Group Ltd and others
[2020] ZASCA 2
;
[2020] 2 All SA 1
(SCA) (ACSA) para 16.
[11]
Applicant’s heads of arguments at 8 para 2.5.
[12]
Ibid.
[13]
The papers at 42 para 15.11
[14]
First and second respondents’ heads of argument at 3 para 5.1,
specifically footnote 7.
[15]
Chairman,
State Tender Board v Digital Voice Processing (Pty) Ltd; Chairman,
State Tender Board v Sneller Digital (Pty) Ltd and
others
[2011] ZASCA 202
;
2012 (2) SA 16
(SCA) para 20.
[16]
See the first and second respondents’ heads of argument para 7
at 3. The respondents referred to
Koyabe
and others v Minister for Home Affairs and others (Lawyers for Human
Rights as amicus curiae)
[2009] ZACC 23
;
2010 (4) SA 327
(CC);
2009 (12) BCLR 1192
(CC)
(Koyabe)
para 34.
[17]
Koyabe
para 34.
[18]
Koyabe
para 39.
[19]
Amandla
GCF Construction CC and another v Municipal Manager, Saldanha Bay
Municipality and others
2018 (6) SA 63
(WCC) para 32.
[20]
See the supplementary record at 49 for the Minutes of the Meeting of
the Bid Adjudication Committee (BAC) held on 20 September
2023.
[21]
Section 62
of the
Local Government: Municipal Systems Act 32 of
2000
.
[22]
Maximum
Profit Recovery (Pty) Ltd v Inxubu Yethemba Local Municipality and
others
[2021] ZAECGHC 11
(Inxubu
Yethemba).
[23]
Inxubu
Yethemba
para 17.
[24]
DDP
Valuers
para 25.
[25]
Maximum
Profit Recovery (Pty) Ltd v Bela-Bela Local Municipality and others
[2023] ZALMPPHC 41 para 30, see DDP Valuers paras 22 and 23.
[26]
SAICA refers to the South African Institute of Chartered
Accountants.
[27]
AllPay
Consolidated Investment Holdings (Pty) Ltd and others v Chief
Executive Officer of the South African Social Security Agency
and
others
[2013] ZACC 42
;
2014 (1) SA 604
(CC);
2014 (1) BCLR 1
(CC) (
AllPay
)
para 40.
[28]
Applicant’s founding affidavit at 20 para 11.2.
[29]
The papers at 21-24 para 11.6 - 11.15 of the applicant’s
founding affidavit.
[30]
The papers at para 2.6 of the applicant’s heads of argument.
[31]
Dr JS
Moroka Municipality and others v Betram (Pty) Ltd and another
[2013] ZASCA 186
;
[2014] 1 All SA 545
(SCA) para 10.
[32]
ACSA.
[33]
Maximum
Profit Recovery (Pty) Ltd v Naledi Local Municipality
[2023] ZANWHC 167.
[34]
BBBEE means broad-based black economic empowerment.
[35]
First and second respondent’s head of argument para 22.
[36]
Pharmaceutical
Manufacturers Association of SA and another: In re ex parte
President of the Republic of South Africa and others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) para 85.
[37]
Democratic
Alliance v President of the Republic of South Africa and others
[2012] ZACC 24; 2013 (1) SA 248 (CC); 2012 (12) BCLR 1297 (CC).
[38]
AllPay
para 44.