THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1233/2023
In the matter between:

AVENTINO ECOTROOPERS JOINT VENTURE FIRST APPELLANT

ALL AFRIKA GROUP (PTY) LTD SECOND APPELLANT

ECOTROOPERS CONSTRUCTION (PTY) LTD THIRD APPELLANT

and

THE MEC FOR THE DEPARTMENT OF ROADS
AND TRANSPORT, GAUTENG PROVINCE FIRST RESPONDENT

VEA ROAD MAINTENANCE AND
CIVILS (PTY) LTD SECOND RESPONDENT

LUBOCON CIVILS CC THIRD RESPONDENT

Neutral citation: Aventino Ecotroopers Joint Venture and Others v The MEC for
the Department of Roads and Transport, Gauteng Province and
Others (1233/2023) [2025] ZASCA 32 (31 March 2025)
Coram: NICHOLLS, MBATHA and UNTERHALTER JJA and MUSI and
MOLITSOANE AJJA
Heard: 25 February 2025
Delivered: 31 March 2025

Summary: Tender – tender validity period – extensions of the period – s 38 of the
Public Finance Management Act 1 of 1999 – supply chain management policy –
extensions of bids – lapse of the tender – misrepresentations in a prior tender –
listing on the Treasury restricted list – exclusion of bids from consideration.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Makhoba J, sitting
as a court of first instance):
The appeal is dismissed with costs, including the costs of two counsel, where so
employed.

JUDGMENT

Unterhalter JA (Nicholls and Mbatha JJA and Musi and Molitsoane AJJA
concurring):

Introduction
[1] The first appellant, Aventino Ecotroopers Joint Venture (Aventino), is an
unincorporated joint venture. The second and third appellants (the partners) are
partners in this joint venture. I refer to the joint venture as Aventino, and in other
contexts, I refer to Aventino to denote the three appellants. In May 2021, the first
respondent, in May 2021, as the Department of Roads and Transport (the
Department), published DRT1 9/07/2019 (Tender 19) and RT21/07/2019 (Tender
21) for the management and execution of routine road maintenance on selected
provincial roads (the tenders). Aven tino submitted bids for the tenders. The Bid
Evaluation Committee (BEC) awarded Aventino the highest score in its assessment
of the rival bids for the tenders. In August 2022, the Head of the Department, Dr
Barclay, disqualified the bids of Aventino. He did so because, at the time of its
disqualification, Aventino was to be listed as a restricted supplier and serious
allegations of fraud were made against it. Tender 19 was awarded to the third
respondent, Lubocon Civils CC (Lubocon) and Tender 21 was awarded to the
second respondent, Vea Road Maintenance and Civils (Pty) Ltd (Vea).

[2] In November 2022, Aventino and the partners brought proceedings in the
Gauteng Division of the High Court, Pretoria (the high court) to review the award
of the tenders. They sought the following relief: to review and set aside the awards
to Lubocon and Vea; to set aside any service level agreements entered into with
Lubocon and Vea; and to award the tenders to Aventino. Aventino relied , in
essence, upon two grounds of review. First, it alleged that the extension of the
validity period of the tenders had not lawfully taken place, and hence the tender
validity period had expired. Second, the Department had unlawfully failed to award
the tenders to Aventino and disqualified it on unfounded allegations, even though it
was the highest scoring bidder.

[3] The review came before Makhoba J in the high court. He dismissed the
review, with costs. He found that Aventino and the partners had failed to show that
the tenders had lapsed. As to the disqualification of Aventino, he held that Aventino
was required to r eview and set aside the administrative decisions upon which its
disqualification rested. This Aventino had not done, and hence , these decisions
stood, and so too did the disqualification of Aventino from bidding on the tenders.
Aventino and the partners sought leave to appeal. This application was refused. But
on petition, this Court granted leave to appeal.

[4] Three issues arise for determination in this appeal. First, did the tenders
lapse? Second, if they did not, was Aventino unlawfully disqualified from bidding
on the tenders? Third, if so, what remedy should issue? Although Vea and Lubocon
challenged the st anding of Aventino and the partners, they do not persist in this
challenge before us.

Did the tenders lapse?
[5] It is common ground that the closing date for the tenders was 30 July 2021.
The tender validity period was 120 days. The tenders would thus have expired on

29 November 2021, absent lawful extension. Five extensions were sought. In
August 2022, Aventino was disqualified, and the tenders were awarded to Vea and
Lubocon. If the tender validity period was not lawfully extended, then the tender
lapsed, and, so Aventino contended, the award of the tenders could not have been
validly made.

[6] There was some disagreement before us as to precisely what Aventino had
pleaded so as to make out its challenge that the tenders had lapsed. In its heads of
argument, Aventino relied upon two grounds that, it contended, gave rise to the
lapsing of the tend er. First, if a bidder failed to respond to an invitation to extend
the validity period of the tender, the Department could not disqualify that bidder
and then proceed to consider the bids of those who agreed to the extension. I shall
refer to this as the disqualification challenge. Second, in order validly to extend the
tender validity period, all bidders must be invited to extend the period. This did not
occur, and hence the tenders lapsed. I shall refer to this as the invitation challenge.

[7] Aventino’s challenge evolved in the course of the exchange of affidavits
between the parties. In its supplementary founding affidavit, as I have observed,
Aventino’s case was that the Department sought and received extensions from what
it described as the ‘top 10 bidders’. This meant that the tender validity period was
not extended, and expired on 29 November 2021. The Department met this case as
follows: it averred that the offers were extended and referenced a supplementary
record that it had produced whi ch, it claimed, evidenced the extension. In its
replying affidavit Aventino had this to say of the supplementary record, ‘[it]
illustrates that [the Department ] did not receive timeous responses from all the
tenderers’. This passage is offered in support of the averment in the replying
affidavit that summarises the case of Aventino and states the following: ‘I made it

affidavit that summarises the case of Aventino and states the following: ‘I made it
clear in the founding affidavit that the first respondent would be required to
demonstrate in the record that each and every participating te nderer timeously
consented to the various requests for extension. In the supplementary affidavit it

was demonstrated that the first respondent failed to receive timeous responses from
all the tenderers’. This is clearly a case based on the disqualification challenge.

[8] Aventino contended in its oral argument that the position taken in the replying
affidavit must be understood with passages in the supplementary founding affidavit
that reference the extensions sought by the Department as reflected in the record
that ‘. . . effectively negates the award of the tenders . . . requests for the extension
of a validity period in a tender must be correctly and timeously transmitted to all
bidders’. Aventino did make mention in its supplementary founding affidavit of the
extensions that were sought that were included in the record. However, that
averment was offered in support of its case, as it then stood, based upon what was
claimed to be the seeking and obtaining of consent from ‘only the top ten’. It w as
also based on the record as it then stood at the time the supplementary founding
affidavit was filed.

[9] However, the Department, as we have observed, provided a supplementary
record, and claimed that this record evidenced the valid extension of the bid validity
period. Aventino’s case in its replying affidavit, with the benefit of the
supplementary record, was to complain that the record did not show that the
Department had received t imeous responses to extend the tender validity period
from all the tenderers. This then was the case upon which Aventino made its
challenge. Ordinarily, such a case cannot be made in a replying affidavit. But given
the piecemeal disclosure of the record, it is understandable that this is where its case
is to be found. But that case goes no further than the disqualification challenge, and
does not include the invitation challenge.

[10] What then of the merits of the disqualification challenge? On 17 November
2020, the Department adopted the revised policy on procurement, entitled, the

2020, the Department adopted the revised policy on procurement, entitled, the
supply chain management policy: procurement of goods and services (the SCM
policy). The SCM policy is a lengthy document. It was produced as part of the

record. It explains that it was adopted in terms of s 38 of the Public Finance
Management Act 1 of 1999 (PFMA). Section 38 (a)(iii) requires that the
Department, amongst other things, has and maintains an appropriate procurement
and provisioning system which is fair, equitable, transparent, competitive and cost-
effective. This is a statutory recognition of the constitutional obligations set out in
s 217 of the Constitution.

[11] Paragraph 4.14 of the SCM policy traverses validity periods of bids. It
provides that a Bid Evaluation Committee (BEC) shall, when the evaluation or
adjudication of a bid is envisaged to go beyond the validity date in the bid
documentation, request bidders to extend the validity of their bids. The following is
then stated: ‘[b]idders may either accept or reject the extended validity period and
those who do not wish to extend the validity period would be regarded as non -
responsive and would be excluded from further assessment’. I shall refer to this
provision as the exclusionary stipulation. The invitation to tender recorded that the
Department adheres to all relevant Acts, including the PFMA. The PFMA was of
application to the tenders. The invitation to tend er also stated that the bid validity
period is 120 days. It went on to provide: ‘However, the Department reserves the
right to request all bidders to extend such validity period should the need arise’. The
need did arise. And the basis for extension is to be found in the provisions of
paragraph 4.14 of the SCM policy.

[12] In letters from the Department to Aventino the following is recorded, ‘We
wish to inform you that we will be extending your bid by 60 days. Should these (sic)
be unacceptable, you leave us with no alternative but to cancel your bid’. Provision
is then made for a bidder to accept or decline. While cast in somewhat peremptory
language, these letters are consistent with the exclusionary stipulation.

[13] It is common ground that Aventino did not challenge the exclusionary

[13] It is common ground that Aventino did not challenge the exclusionary
provision. Nor has it contended that the exclusionary provision is not of application

to the tender. The exclusionary provision is not free of all ambiguity. In particular,
what does it provide in circumstances where a bidder does not respond to a request
from the Department to extend the validity period? On a proper construction of the
exclusionary provision, it is clear enough that those bidders that are non-responsive
may be excluded. This is so for an obvious reason. Bidders may have good
commercial reasons not to permit their bids to remain in place. Costs may have
risen, or other relevant circumstances may render it no longer feasible for a bidder
to wish to extend their bid for a further period. The bidder may then either respond
to the Department’s invitation to extend and decline to extend its bid, or a bidder
may simply not respon d to the invitation at all. In either event, the bidder has
indicated that it no longer wishes its bid to be considered. Sensibly interpreted, what
the exclusionary provision means is that if a bidder, invited to extend its bid, either
declines to do so or simply fails to respond to the invitation, the Department may
exclude that bid from the adjudication process, and may proceed on the basis of the
bids of bidders that have accepted the extension. The language references exclusion
from ‘further assessment’ which implies that the assessment will carry on, but only
to consider the bids where the bidders have acceded to the extension and thereby
extended their bids for the purpose of tender.

[14] The disqualification challenge cannot prevail because the exclusionary
stipulation creates a regime that permitted the Department to exclude bids from
further consideration in the event that a bidder either declined to extend its bid or
failed to respond t o the Department’s invitation to extend. Aventino made no
challenge to the legality of that regime. However, Aventino relied upon a number
of cases that, it contended, supported the disqualification challenge. In Joubert,1

of cases that, it contended, supported the disqualification challenge. In Joubert,1
following Telkom SA,2 Plasket J (as he then was), affirmed two propositions. First,
once a bid validity period has expired, there is nothing to extend. Second, the

1 Joubert Gulpin Searle Inc & Others v Road Accident Fund & Others [2014] ZAECPEHC 19; [2014] 2 All SA
604 (ECP); 2014 (4) SA 148 (ECP) paras 73 and 74.
2 Telkom SA Limited v Merid Trading (Pty) Ltd and Others [2011] ZAGPPHC 1; [2011] JOL 26617 (GNP).

constitutional and legislative procurement framework determines the powers of
public bodies to procure goods and services. The power to extend a bid, within the
bid validity period, is disciplined by this framework. The decision of this Court in
Takubiza3 is to like effect.

[15] These authorities do not support the disqualification challenge. The position
of the Department in its answering affidavit is that it sought serial extensions before
the expiry of each bid validity period, and then proceeded to extend each period and
consider the bids of those bidders who responded to the invitation to extend their
bids. The disqualification challenge contends that this did not suffice to extend the
bid validity period, on each successive occasion, because all bidders invited to
extend had to agree to do so. But this is not what the exclusionary provision, forming
part of the legislative framework of application to the tenders, stipulates. Rather, as
I have explained, the exclusionary provision, permits the Department to extend the
bid validity period to consider the bids of those who have agreed to extend their
bids and may exclude those bids from further consideration where a bidder either
declines to extend its bid or fails to respond to the Department’s invitation to do so.

[16] For these reasons, the disqualification challenge must fail and I find that the
bid validity period was lawfully extended.

Was Aventino unlawfully excluded?
[17] I consider next whether Aventino’s bids for the tenders were unlawfully
excluded from consideration by the Department. The Department’s Bid
Adjudication Committee (BAC) recognised that the BEC had ranked Aventino in
first position. However, the BEC flagged for the consideration of the BAC that
Aventino Group CC (Aventino CC) was investigated by the Special Investigating
Unit (SIU) in respect of a project in Limpopo. The SIU is an independent statutory

Unit (SIU) in respect of a project in Limpopo. The SIU is an independent statutory

3 City of Ekurhuleni Metropolitan Municipality v Takubiza Trading & Projects CC and Others [2022] ZASCA 82;
2023 (1) SA 44 (SCA) para 13.

body that investigates serious allegations of corruption in terms of the Special
Investigating Units and Special Tribunals Act 74 of 1996 (the SIU Act). The SIU
found that there were irregularities in the awarding of the contract to Aventino CC
and recommended that Aventino CC be listed on the Treasury database for restricted
suppliers. It does not appear to be in issue in this appeal that Aventino CC is not
distinguishable from Aventino, the JV that bid for the tenders. The findings of the
SIU included mis representations made by Aventino to procure the contract. In
Tribunal proceedings taken against Aventino in terms of the SIU Act, Aventino
agreed to a settlement, and the Tribunal made an order setting aside the contract on
the basis that it was unlawful and void as a result of the misrepresentations made by
Aventino. Aventino also agreed to repay the monies earned by it under the contract.
The BAC considered these matters. Aventino was also given an opportunity to make
representations to the Department c oncerning the SIU findings and the settlement
before the Tribunal. The BAC took account of these representations. Ultimately, the
BAC decided that it should not recommend Aventino.

[18] The Department followed this recommendation, and did not award the
tenders to Aventino. It did so, not on the merits of Aventino’s bids, but because it
was implicated in wrongdoing in the Limpopo housing tender. Aventino is thus
correct to submit that it w as, in this sense, excluded from consideration, without
regard to the merits of its bids.

[19] Of the reasons that led the Department to exclude Aventino, Aventino
contends the following. First, although Aventino was listed on the Treasury list of
restricted suppliers on 20 September 2022, at the time that the BAC made its
recommendation on 15 and 1 6 September 2022, the listing had not yet occurred.
Furthermore, the second appellant, All Afrika Group (Pty) Ltd, brought an urgent

Furthermore, the second appellant, All Afrika Group (Pty) Ltd, brought an urgent
review to have the listing removed. Treasury agreed to do so, as its letter makes
plain, for procedural reasons. I shall re fer to this as the listings argument. Second,
Aventino explained in its supplementary founding affidavit that it had entered into

a settlement agreement with the SIU in the proceedings before the Tribunal, but did
so without any acknowledgement that it had made fraudulent or wilful
misrepresentations. Therefore, Aventino advanced a number of grounds of review,
in essence, claiming that its exclusion was based upon irrelevant considerations and
the Department was obliged to award the tenders to Aventino as the first ranked
bidder.

[20] These contentions cannot prevail. The SIU placed evidence before the
Tribunal of serious misrepresentations that Aventino had made to secure the
Limpopo tender. In essence, Aventino had claimed in its tender to have assembled
a professional team to carry out the works, when in truth, the members of that team
had no knowledge that this was so. Aventino advanced various explanations for its
conduct in an affidavit that served before the Tribunal. The ultimate settlement of
the case before the Tribunal, on the basis that the contract was set aside and full
restitution was ordered, does not however vindicate Aventino.

[21] The evidence against Aventino of misrepresentations to secure a tender is
serious, and troubling. The terms of the order made by the Tribunal reflect that
Aventino made misrepresentations that rendered the contract unlawful. That the
Tribunal, by reason of Aventino’s willingness to have an adverse order made
against it, did not further determine Aventino’s culpability does not mean that the
Department could not decide that the evidence marshalled by the SIU sufficed to
exclude Aventino. The misrepresentations made by Aventino to secure the Limpopo
tender are clear. They are founded on evidence placed before the BAC, not least the
terms of the order made by the Tribunal, acknowledged by Aventino, that make
plain Aventino’s unlawful actions to secure a tender. The BAC was entitled to give
consideration to that evidence and conclude from it that Aventino’s past conduct
rendered it ineligible to bid for the tenders. Aventino advanced this aspect of its

rendered it ineligible to bid for the tenders. Aventino advanced this aspect of its
review on the premise that without a finding of guilt by the Tribunal, Aventino
cannot be excluded from consideration. But that is not so. Once the evidence

implicated Aventino in making material misrepresentations to secure a tender,
absent clear exculpatory evidence to the contrary, or vindication by way of an
authoritative court decision, the BAC’s recommendation was entirely reasonable.

[22] Aventino can fare no better in its reliance upon the listings argument. The
BAC did not rely upon Aventino’s listing by the Treasury, but rather that there were
well-founded efforts to secure that listing. These arose from the serious malfeasance
that implicated Aventino in the Limpopo tender. And, as it turned out, the Treasury
did list Aventino. That the Treasury then removed Aventino from the list was not
based on any acknowledgement that the listing was not substantively warranted, but
rather that the process had been procedurally flawed. In sum, the BAC was justified
to consider the prospective listing of Aventino as a relevant matter to consider and
one that conduced to its exclusion.

[23] For these reasons Aventino’s bids were lawfully excluded from consideration
by the Department.

Conclusion
[24] It follows that, since the disqualification challenge must fail and there is no
basis to review the decision of the Department to exclude Aventino’s bids from
consideration, the appeal fails. The costs must, in the usual way, follow this
outcome.

[25] In the result:
The appeal is dismissed with costs, including the costs of two counsel, where so
employed.

______________________
D N UNTERHALTER
JUDGE OF APPEAL

Appearances

For the appellant: A P J Els SC with A A Basson
Instructed by: Thomas Swanepoel Inc., Tzaneen
Symington De Kok Inc., Bloemfontein

For the first respondent: J A Motepe SC with T A Modisenyane
Instructed by: Malatji & Co Attorneys, Johannesburg
Webbers Attorneys, Bloemfontein

For the second respondent: J J Buys
Instructed by: York Attorneys, Bloemfontein

For the third respondent: R Bhima
Instructed by: Pagel Schulenburg Inc., Johannesburg
Hill, McHardy & Herbst Attorneys, Bloemfontein.