IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DELETE WHICHEVER IS NO! APPLICABLE
(1) REPORTABLE: NO
(2) OFINTERESTTO S U0 ES• NO
{3) REVISED ~
~?r.-1~~(11 ............ . ................. .
In the matter between:
DATACENTRIX (PTY) LTD
and
SOUTH AFRICAN NATIONAL PARKS
GIJIMA HOLDINGS (PTY) LTD
REIKEMETSE PROJECTS CC
WIRE SPEED SYSTEMS (PTY) LTD
NEC XON SYSTEMS (PTY) LTD
TYR LIL BYTES -THEMOJOLO JV CASE NO: 041563/2024
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
SIXTH RESPONDENT
1
BUSINESS CONNEXION (PTY) LTD SEVENTH RESPONDENT
JUDGMENT
MOTHA, J:
Introduction
(1) Before this court is a titanic battle for the South African National Parks
(SAN Parks) tender, worth just about one billion rand. Blissfully unaware of this
existential threat are the lions, leopards, elephants , rhinoceros and cheetahs,
to name but a few affected animals. I am convinced that if these animals had a
say in the matter, no one would be before this court.
(2) On 18 September 2024, a judgment ("the first judgment") was handed down
dismissing the applicant's application for condonation concerning prayer 2 of
the notice of motion, which prayer sought to review and set aside the request
for bids relating to the tender GNP 005-23 for the appointment of a service
provider for the outsourcing of information and communication technology
services, a single services service aggregator including network services
construction for 1 O years. Amongst a plethora of grounds for review that the
applicant raised is the question of the effect of the first judgment on prayer 3 of
the notice of motion, which prayer sought to review and set aside the decision
to award the second respondent the tender.
(3) The main dramatis personae are the applicant, first and second respondents .
Unless stated otherwise, the respondents refer to the first and second
respondents .
The parties are:
(4) The applicant is Datacentrix (Pty) Ltd, a company with limited liability
incorporated and registered in accordance with the company laws of the
Republic of South Africa.
2
(5) The first respondent is The South African National Parks, a public entity
established in terms of the repealed National Parks Act 57 of 1976 and
continues to exist in terms of section 54 of the National Environmental
Management Protection Areas Act 57 of 2003.
(6) The second respondent is Gijima Holdings (Pty) Ltd, a company with limited
liability incorporated and registered in accordance with the company laws of the
Republic of South Africa.
(7) The third respondent is Reikemetse Projects CC, a close corporation registered
in accordance with the laws of the Republic of South Africa.
(8) The fourth respondent is Wire Speed Systems (Pty) Ltd, a company with limited
liability incorporated and registered in accordance with the laws of the Republic
of South Africa.
(9) The fifth respondent is NEC XON Systems (Pty) Ltd, a company with limited
liability incorporated and registered in accordance with the laws of the Republic
of South Africa.
(10) The sixth respondent is Try Lil Bytes-Themolo JV, a joint venture
between Try LIL Bytes (Pty) Ltd, a company with limited liability incorporated
and registered in accordance with the laws of the Republic of South Africa; and
Themolo Telecoms (Pty) Ltd, a company with limited liability incorporated and
registered in accordance with the laws of the Republic of South Africa.
(11) The seventh respondent is Business Connexion (Pty) Ltd, a company
with limited liability incorporated and registered in accordance with the laws of
the Republic of South Africa.
3
The factual background
(12) This matter emanates from the tender number GNP-005 -23 for the
outsourcing of SANParks Information and Communication Technology (ITC)
services, including its network services, telephony services, Internet, cloud and
cyber security services, and the underlying infrastructure that is integral to its
business operations , which involves conservation efforts tourism business and
its ability to provide a secure environment for people and animals within the
twenty-two (22) national parks under SANParks ' management and control.
(13) The tender, which was advertised on 4 September 2023 with a closing
date of 31 October 2023, is governed by the Constitution and subsidiary
legislations which, in the main, are:
• The Constitution of the Republic of South Africa, in particular s 217,
which reads:
"Procurement
(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."
• The Public Finance Management Act (PFMA) and the Treasury
Regulations published in GN R225 in GG 27388 of 15 March 2005, as
amended, and Treasury Instruction Notes published by National
Treasury in terms of section 76 of the PFMA;
• The Preferential Procurement Policy Framework Act 5 of 2000 and the
Preferential Procurement Regulation published in GN 2721 in GG 47452
of 4 November 2022
4
• SANParks ' Supply Chain Management Policy.1
(14) The terms of the Request for Bids (RFB) relevant to the tender
evaluation process were the following:
Part A-Invitation to bid required all bidders to deliver their bid response
document in the box at 64 Leyds Street, Muckleneuk , Pretoria by 31 October
2023.
Part-B Terms and Conditions of Bid included the following instructions to
bidders: "Bids must be delivered by the stipulated time to the correct address,
late bids will not be accepted for consideration ... "
(15) The bid evaluation process contained three phases, namely:
• Phase 1 -Mandatory evaluation phase
• Phase 2 -Technical/functionality evaluation phase
• phase 3 -Price and preference evaluation phase.2
(16) It is of paramount importance to note that the RFB uses categorical
words when stating the following: "To move to the next phase of evaluation , the
previous phase of evaluation must have been fully complied with. No leniency
for non-submitted documents/ proof or late submission will be allowed. If your
response is incomplete the bid will be disqualified and will not progress to the
next phase."
(17) The RFB recorded that the Bid Evaluation Committee (BEC) would make
that recommendation to the Bid Adjudication Committee (BAC) for
recommendation of the award to the Board of SAN Parks for the final approval,
and the eventual signing of the Service Level Agreement.
1 Founding affidavit para14
2 Supplementary affidavit 51
5
(18) The were seven bidders, namely: Reikemetse Projects CC, Datacentrix
(Pty)Ltd, Wire Speed System (Pty) Ltd, Gijima Holdings (Pty)Ltd, NEC XON
Systems (Pty) Ltd, Try Lil Bytes-Themolo JVand Business Connexion (Pty) Ltd.
On 13 February 2024, the tender was awarded to Gijima Holdings (Pty) Ltd, the
second respondent. 3
(19) I pause to mention that the applicant was the incumbent following its
successful bid in the previous tender GNP-008-18 , in February 2019. In terms
of that tender, the applicant was appointed to take over the operation and
management of SAN Parks' ICT for five years. On 7 March 2024, at a meeting
with SANParks , the applicant was informed that Gijima was the successfu l
bidder. Following several correspondences with the first respondent and a PAIA
request, the applicant instituted a review application, on 17 April 2024.
Issues
(20) In prayers 2 and 3 of the notice of motion, the applicant sought to review
and set aside the first respondent's request for bids relating to the tender GNP
005-23 and its decision to award the tender GNP-005-23 to the second
respondent.
(21) Pursuant to the Rule 53 application, the applicant and Gijima's legal
teams were provided with a confidential record of some 7300 pages, on 11 June
20244. The applicant amended its notice of motion by including prayer 6, which
prayed for the tender GNP-005-23 to be awarded to the applicant alternatively
that the applicant be directed to continue to render the services at the
applicant's usual rates for a period of 24 months, pending the outcome of a new
tender process; and prayer 7, which stated that in the event that the first
respondent was directed to commence with a new tender process, the second
3 Supra para 85
4 Supplementary affidavit para 36
6
respondent should be disqualified from participating in that process.
Accompanying the amended notice of motion was a supplementary affidavit.
(22) On 5 August 2024, the applicant amended its notice of motion for the
second time, and this time without any affidavit accompanying it. When the
matter appeared before the court on 26 August 2024, the respondents raised,
as a point in limine, that the applicant had not complied with s 7(1) of the
Promotion of Administrative of Justice Act 3 of 2000 (PAJA).
(23) However, this point, as stated in the first judgment under paragraph 35,5
was not dispositive of the entire case because the attack on prayer 3 was made
well within 180 days. Therefore, it was the attack on the request for bids (RFB)
that was outside the 180 days~ as contemplated in s 7 of PAJA, i.e. prayer 2.
(24) To me, it would have been cost-efficient, timesaving and avoided the
possibility of conflicting judgments had one court dealt with this entire matter.
Be that as it may, it is fascinating , and perhaps revealing, that the applicant
submitted that: "the question of condonation in relation to the first leg of the
review, if necessary , would be addressed during the argument. The reason
argued by the Applicant was because the point in limine concerning
condonation was bound up with the merits. When the court considers the
condonation application it would be bound up with the facts and how meritorious
or lacking in merit the application was. Therefore, condonation would be
addressed as part and parcel of the debate on the merits."6
(25) The applicant's submission "prompted an urgent objection from the
Respondents who raised a point in limine and argued against such presentation
5 "Dismissing the review in its entirety in my view will be flawed regard being had
to the date when the Applicant received the decision that the Second
Respondent was awarded the tender GNP-005-23 which was on the 7th March
2024.Subsequent to that the review was filed around the 17th of April 2024.The
review regarding the decision to appoint the Second Respondent was brought
well within the 180 days period as prescribed by the PAJA. It would therefore be
improbable to dismiss the entire review."
6 Judgment para 5.
7
regard being had to condonation ."7 Furthermore , the court in the first judgment
said: 'This was supported with an SCA decision which clearly delineates that
condonation issues need to be decided outright before the court can decide on
the merits of the issues that are before it. "8
(26) It is trite that in reviews, whether under s1 (c) of the Constitution or PAJA,
merits play a role in deciding the issue of condonation , as stated in Buffalo City
Metropolitan Municipality v Asia Construction (Pty) Limited, 9where the
constitutional court said:
"It also relied on Opposition to Urban Tolling Alliance where it was decided that
a court is compelled to deal with the question of condonation before examining
the merits of the review application , because, in the absence of an extension,
the Court had no authority to entertain the review application. It was on this
basis that the Supreme Court of Appeal concluded that "[i]t was thus
impermissible for the [High Court] to have entered into and decided the merits
of the review application without having first decided the merits of the
condonation application ". This conclusion is not in accordance with the
jurisprudence of this Court."10
(27) Accordingly, the applicant was correct when it argued that: "In this regard
the Applicant's view was it can argue condonation bound up with the merits as
part of good cause is to show strong merits which it believed it has."11
(28) Before this court the roles have reversed. The applicant submitted that
the first judgment did not dispose of the merits of the case, while the
respondents submitted that it dealt with the merits of the RFB. When the parties
7 Supra para 6.
e ibid
9 (CCT91/17) (2019] ZACC 15; 2019 (6) BCLR 661 (CC); 2019 (4) SA 331 (CC) (16 April 2019)
10 Supra para 55
11 Judgment para 7.
8
outlined the issues for determination before this court, their joint practice notes
magnified this reversal of submissions . The joint practice notes read:
"What is the effect of the judgment of Nharmuravate AJ on the main review
application? Datacentrix contends that all of its grounds of review survived the
judgment of Nharmuravate AJ, that all the grounds of review are relevant to the
relief sought in paragraph 3 of the amended notice of motion, and therefore
persists with all its grounds of review.
SANParks contends that Datacentrix is only entitled to pursue the limited
grounds of review in its supplementary founding affidavit pertaining to alleged
flaws in Gijima's bid, and Datacentrix cannot seek to relitigate or revive its
remaining grounds of review concerning alleged process irregularities . Gijima
contends that Nharmuravate AJ's judgment does not detract from its
submission that Datacentrix is precluded from pursuing prayers 3 and 4 of its
amended notice of motion to the extent that the relief sought in those prayers
is based on Datacentrix 's review grounds attacking the process followed by
SANParks in assessing the tender submissions.
Whether the bid specifications in the RFB understood within the context of the
information communicated at the bid clarification meeting and the steps taken
by SANParks after the publication of the RFB to update and/or clarify the bid
specifications , resulted in vagueness and uncertainty to an extent which
rendered the tender unlawful and unconstitutional? Both SANParks and Gijima
contend that Datacentrix is precluded from persisting with its attacks on the bid
specifications and the process-related attacks. Datacentrix disputes this."
(29) Stripped of its fancy legalities, the applicant wants this court to second-
guess and render the first judgment inconsequential. The respondents want to
elevate the first judgment's reach to cover all the grounds of review against the
RFB. It bears mentioning that this is not a court of appeal. Certainly, this is the
consequence of dealing with a matter in piecemeal. Before venturing a
pronouncement on that question, if at all necessary , first, this court will examine
what it is called to deal with, viz: the grounds of review raised under prayer 3.
9
It is common cause that the first judgment did not deal with prayer 3, which is,
in the main, founded on two grounds, which are sketched out in the joint practice
note:
"Whether the fact that Gijima did not submit audited annual financial statements
for three years was contrary to a mandatory condition of tender as a result of
which Gijima ought to have been disqualified from the tender evaluation
process. This is a review ground in which SANParks and Gijima dispute
Datacentrix's entitlement to raise further and new issues and review grounds in
the confidential replying affidavit of Lowndes. Datacentrix contends that it raised
this ground of review in the supplementary founding affidavit, as it was entitled
to do.
Whether Gijima's failure to submit a certificate from the Linux Professiona l
Institute ("LPI") was contrary to a mandatory condition of tender as a result of
which Gijima ought to have been disqualified from the tender evaluation
process."
(30) Indeed, the applicant first raised these issues in the supplementary
affidavit, as summarized under subparagraphs 15.1 and 15.3. Following the
receipt of the record, from the first respondent, in compliance with Rule 53 of
the Uniform Rules of Court, the applicant amended its notice of motion.
Referring to Rule 53, the court in Helen Suzman Foundation v Judicial Service
Commission12held:
"The purpose of rule 53 is to "facilitate and regulate applications for review".
The requirement in rule 53(1 )(b) that the decision-maker file the record of
decision is primarily intended to operate in favour of an applicant in review
proceedings. It helps ensure that review proceedings are not launched in the
dark. The record enables the applicant and the court fully and properly to
12 Helen Suzman Foundation v Judicial Service Commission (CCT289/16) [2018] ZACC 8; 2018 (4) SA 1 (CC);
2018 (7) BCLR 763 (CC) (24 April 2018)
10
assess the lawfulness of the decision-making process. It allows an applicant
to interrogate the decision and, if necessary, to amend its notice of motion and
supplement its grounds for review.
Our courts have recognised that rule 53 plays a vital role in enabling a court to
perform its constitutionally entrenched review function:
"Without the record a court cannot perform its constitutionally entrenched
review function, with the result that a litigant's right in terms of section 34 of the
Constitution to have a justiciable dispute decided in a fair public hearing before
a court with all the issues being ventilated, would be infringed."13
(31) Therefore, the applicant was well within its rights to raise the issues in
its supplementary affidavit. To recap, the two grounds are captured as follows:
• "Gijima failed to submit annual financial statements for the June 2022
financial year and only submitted audited financial statements for the two
preceding financial years (June 2021 and June 2020). Gijima ought
therefore to have been disqualified from the tender evaluation process
for failure to satisfy the minimum mandatory conditions of tender. Four
other bidders were disqualified for failing to submit audited or
independently reviewed annual financial statements for three financial
years."
• "Gijima failed to include in its bid and member of staff that possessed a
certificate from Linux Professional Institute. Gijima therefore failed to
satisfy a minimum mandatory condition of tender and ought to have been
disqualified from the tender evaluation process."
Discussion
13 Supra paras 13 and 14.
11
The financial statements
(32) The aforementioned phase 1 is mandatory and the RFB reads:
Evaluation phases
Phase 1: Mandatory eva1uation criteria
It is essential for all Bidders to note that the process of evaluation will be done in phases. In this phase
potential Bidders will be evaluated to ensure that they comply with the mandatory criteria.
Failure to comply with Mandatory Requirements will lead to the bidder being disqualified, and not
considered for further evaluation . Only Bidders who can provide acceptable documentary proof that
complies with the following mandatory criteria will be considered for the next phase of evaluation .
Please specifically cover these topics in the bid summary of your response including relevant proof or
cross references to where the proof has been included and completing the table in Annexure P .
The potential Bidder must·
(1) Be a South African licensed (ECS as well as ECNS) network services provider that
includes the build of networks as well as provisioning services on such networks. -
Copies of both licences must be provided by the bidder.
(2) Provide a copy the latest (Independen tly reviewed (or audited, where possible) Annual
Financial Statements/ Annual Report/ for each entity that forms a part of the bid. The
Annual report and the independently reviewed (or audited, where possible) Annual
Financial Statements must be for the recent three years.-Copy of the Independently
reviewed Annual Financial Statements are as per the Companies Act 71 of 2008.t;
(3) Have stDff that have the follov.;ng minimum vahd certifications in support of the bid:
• ITIL v3/v4 Practitioner,
• CoBIT 5® or later certification
• TOGAF 9 or later certrication ,
• CCIE Routing and Switching-or Equivalent Certification,
• CCSP in Network Serurity or Equivalent Certification 17
(33) Of particular importance is that the potential bidder had to provide a copy
of the latest (independently reviewed or audited, where possible) Annual
Financial Statements/ Annual Report/ for each entity that forms a part of the
bid, which must be for the recent three years. The point is abundantly made
that the bidder will only progress to phase 2 if all the mandatory criteria have
been met.
(34) Under reasons for disqualification , SANParks reserved the right to
disqualify any bidders who do not comply with one or more of the following bid
requirements , inter alia, namely:
12
"Bidder whose tax matters are not in order (Instruction Note 09 of 2017/ 2018
Tax Compliance Status will apply).
submitted incomplete information and documentation according to the
requirements of this RFB document... "
(35) Another important aspect is that the RFB stated that the copy of the
Independently reviewed Annual Financial Statements is as per the Companies
Act 71 of 2008. In this regard s 30 (1) of the Companies Act is implicated , and
reads:
"Each year, a company must prepare annual financial statements within six
months after the end of its financial year, or such shorter period as may be
appropriate to provide the required notice of an annual general meeting in terms
of section 61 (7)"
(36) The Annexure P Checklist has four columns, namely: NO, Mandatory
Requirement , Proof required and Attached (Yes/No). It is No 3 that should pique
our interest, and it reads:
"Latest Audited Annual Financial Statements or Independently reviewed
Financial Report for each entity that forms part of the bid response"
(37) Moving on to phase 2, Under Commercial and Financial soundness , the
RFB deals with Technical/ Functional evaluation criteria, and refers to the
following:
13
5 = All key financial ratios indicate a
healthy organization , operating with a
positive cash flow. annual turnover is
more than RSO0 million. Assets exceed
Commercial and Financial Liabilities, Letter of good standing from
soundness the bank, Letter from SARS indtcahng
The Financial status and financial trends of the that all Tax affair.. are in order
business of the Bidder (Legal Entity bidding) 4 = As above but annual turnover is less
must be provided Please populate the table on 10 5
Annexura O suppleme11ted by a copy of the than R500 mtfbon bu1 more than R300
most recent) INDEPENTANTLY REVIEWED OR million
AUDITED, WHERE POSSIBLE Annual 3 = As above but annual turnover is less
Financial Statements or Annual Report (recent
than R300 mitHon OR some (max 1) key three years)
measures are not satisfactory
2 = As above but annual turnover is less
than R300 m\llion OR some (max 2) key
measures are not satisfactory
(38) Once more the recent three years Independently Reviewed or Audited,
where possible Annual Financial Statements or Annual Report is required.
Annexure 0, which is a Financial Summary , provides that:
"Please duplicate and provide this information not only for the Aggregator, but
also for any major partner (value of services included represents more than
30% of the total commercial value of the bid) whose services are included in
the Proposal.
Note that first column represents the most recent available reviewed or audited
results were possible. The other columns refer to the two years preceding the
most recent financial year. The information provided to be supported by the
most recent audited financial statements of the entity(ies). "
Submissions by counsel for SANParks
(39) Counsel for SANParks submitted that when the RFB talked of "Latest"
annual financial statements, it referred to the latest one an entity had.
Buttressing his point, he submitted that the court's interpretation of "Latest" to
mean the most recent would disqualify any party whose financial statements
had not yet been audited for the most recent financial year. He continued that
14
the whole purpose was to assess the financial viability of the entity. When the
court suggested that the latest financial statement would have been for the year
2022 since Gijima's financial year ended in June. He submitted that the fact that
an entity's latest AFS was three or five years old went to the argument of
rationality , which was not pleaded. Therefore , the submission went, "Latest" in
Annexure P meant the last an entity had, and the applicant's case was not
based on rationality , but on the checklist.
(40) When he referred to the Commercial and Financial soundness ,
mentioned supra, the court pointed out that the most recent annual financial
statements or annual Report was required, and that dovetailed with the
meaning of "Latest" in Annexure P. He submitted that Gijima submitted two
audited annual financial statements, and for the purpose of assessing the
financial soundness and trends that went to rationality , which was not the case
before the court.
(41) When he referred to s 30 of the Companies Act, the court pointed out
that the Act mentions that an entity must prepare its AFS within six (6) months
of the end of its financial year. He submitted that the Companies Act was not
for assessing financial evaluation .
(42) To prove that the most recent AFS could be three years old, he pointed
to the column in the FRB that deals with Identity and Financial Integrity, which
reads:
✓ Financial information for each entity forming part of the Bid must be
provided on Annexure 0
✓ Audited Annual Financial Statements for the most recent year that has
been finalized and audited."
(43) He continued and argued that it does not say for the most recent financial
year, and that would have been easy wording to write in there. He stated that if
we assume that the most recently finalized and audited AFS dated back five
15
years, then the problem was with the bid documentation. Then the applicants
should have attacked the bid and this was not done. He insisted that it was a
phase 1 case. Phase 2 was a rationality case.
(44) The court drew his attention to the answering affidavit of the second
respondent, which reads:
"There is some ambiguity about the need to provide audited AFS for three
years. As shown above, in Annexure P there is no such requirement. However,
in listing the mandatory requirements, the RFB refers to the need to provide
AFS for three years. This must be read with Annexure 0, which requires
financial information of the most recent three years to be supplied."14
(45) Having stated that he stood by his arguments , he submitted that he
agreed with the court and added that it was a matter of interpretation. He added
that at the end of the day, the court would make the final decision. He submitted
that that is what they say, and he was not going to run away from it.
(46) Following that engagement, the court referred him to the amended
Pricing Schedule sent by email on 29 September 2023 by SANParks, which
stated:
"Mandatory Requirements -"Annual Financial Statements/Report not older
than 6 months for each entity that forms part of the bid response"
Proof Required -Audited Annual Financial Statements/ Annual Report''.
(47) He submitted that it was a matter of interpretation . When the court
suggested to him that the document took the issue out of the realm of
speculation, as it categorically stated not older than six months and it came
14 Second respondent's Answering affidavit
16
from his client, he conceded that the document was absolute, and he was stuck
with it and could not go behind it.
Submissions of counsel for Gijima
(48) He submitted that the application should be dismissed on the take-a-
chance principle. Referring to the fact that the applicant did not ask for a
substitution relief in the first notice of motion, he maintained that the applicant
made two amendments to its notice of motion. On the take-a-chance principle,
he argued its application had to be dismissed. He submitted that the applicant's
case was at war with itself. They could not attack the RFB as being bad, and at
the same time ask to be awarded the tender, he submitted . However, this was
no longer a topical issue, as the applicant abandoned the substitution relief at
the last hearing.
(49) He further submitted that they have waived their rights to attack the RFB
since they participated in the process. They could have stopped the process,
the argument went. Expanding on the take a chance, he cited the matter of
SMEC South Africa (Pty) Ltd v City of Cape Town and Others; SMEC South
Africa (Pty) Ltd v City of Cape Town and Others15 where the court made the
following remarks:
"In principle, it seems undesirable that a bidder should be at liberty to "take a
chance" in the hope that it will be awarded the tender, keeping in reserve an
attack on the validity of the tender terms should it be unsuccessful in winning
the bid. However, in view of the conclusion I have reached on other aspects, I
need not finally decide this point."
(50) The court enquired why the take-a-chance debate was not presented to
the first court, he submitted that the court elected not to consider it.
15 (8277/2021 ;14097/2021) [2022) ZAWCHC 131 (23 June 2022)
17
(51) Focusing on the AFS, he submitted that what a party (Gijima) says or
thinks the contract means is in law inadmissible because it is an opinion in
respect of a legal opinion that the court is required to decide. Qualifying his
submission , he stated that in a contractual context where there is a dispute or
ambiguity , the court would be entitled to look at how the parties interpreted the
contract. There must be some common understanding and conduct by both
parties. When the court pointed out that it said exactly that, he argued that
before the court was not a contract. At the highest, he said, this was an offer by
SANParks to the public to put in a bid. Therefore , in that sense, it might be
analogous to two parties' offer and acceptance type of a situation, he continued.
(52) He submitted that SANParks did not disqualify Gijima on the basis that
its 2022 AFS was not audited. Therefore, SAN Parks understood Gijima to have
complied with the mandatory requirements. Taking the court through the second
respondent's answering affidavit, counsel submitted that when dealing with the
mandatory requirements, Annexure P was a decisive list, but not to say it must
be cut out and read in isolation. To interpret it, one looked at aids in the column,
he submitted. Continuing , he referred to para 100.2 which said:
"Annexure P required bidders to supply their most recent audited AFS. The
closing date of the RFP was 31 October 2023. Some entities would already
have been in possession of audited AFS for 2023, and in the case of others,
such as Datacentrix, the 2022 audited AFS was the most recent. In the case of
Gijima the most recent audited AFS was from June 2021. Therefore , in
compliance with the checklist in Annexure P, Gijima provided the June 2021
AFS."
(53) In response to the court's quest for clarity regarding subparagraph 100.3,
he submitted that he differed with the deponent of his case and stated that what
the deponent thought was not admissible. Discussing the issue further with the
court, he submitted that this was a legal question, an error in law, and if, to
quote him: "I make a wrong legal submission my client is not bound by it."
18
However, the reality is that the deponent was not giving his thoughts but stating
the facts as they stood in the RFB.
(54) Reiterating that phase 1, mentioned supra, is mandatory, he referred to
s30 of the Companies Act and explained that the AFS is in the plural because
it contains a statement of assets and liabilities, income and expenditure
statements . In essence, his point was that only one audited AFS was required.
Therefore , the RFB must be interpreted to mean that an audited AFS must be
drawn from the last three years, and it could not be older than three years, the
argument went.
(55) Focusing on functionality , he correctly pointed out that it was not
mandatory . He argued that the recent three years were a summarized version
of paragraph 2 under mandatory requirements. He insisted that one AFS was
needed out of the last three years, and only the table under Annexure O was
populated with three years.
(56) Addressing the mail sent by Connie Kgoale, on 29 Septembe r 2023,
amending the Pricing Schedule which requires Annual Financial Statements/
Report not older than 6 months for each entity that forms part of the bid, he
submitted that the second respondent agreed with the applicant that this was
not a valid amendment. Furthermore , he argued that SANParks did not
adjudicate the bid based on that information .
(57) Pursuant to a discussion with the court, he submitted that the six-month
reading would have disqualified everyone since Gijima's, and the applicant's
financial years ended on 30 June. Besides, he maintained that the attached
document was Annexure 0, not Annexure P.
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Applicant counsel
(58) He submitted that the first judgment did not pronounce on the grounds
of review in the bid document , nor found that there was something in the bid
document that was relevant to the irregularities in the tender processes that
followed the ultimate decision to award the second respondent. The grounds of
review were neither debated nor decided, and more importantly the merits were
not the basis for the firstjudgment , he argued.
(59) He submitted that there were two administrative actions: first, prayer 2
was impugning the decision to put out the RFB, and second, the decision to
award the tender to the second respondent, which is before this court, prayer
3, the submission went.
(60) A large amount of time was spent on the grounds attacking the RFB,
such as the incorrect information about wide area network (WAN), including the
amendment of the tender and the question of ripeness. He submitted that after
31 October 2023, SANParks could not amend or correct any terms of the
tender, and by doing so it detracted from the constitutional values of equal
treatment and fairness.
(61) Focusing on their supplementary affidavit, he submitted that Annexure P
was clear that "Latest" must be the one required by law. Gijima failed to provide
the latest whether audited or independently reviewed AFS, he argued. The RFB
was very clear in what it required and the submission that one year of AFS was
good enough was not sound.
(62) Referring to the matter of Millennium Waste Management (Pty) Ltd. v
Chairperson of the Tender Board: Limpopo Province and Others, 16he submitted
that there are certain minimum requirements for a valid tender process. The
decision to award must follow a valid tender process. Pointing out the various
16 (31 /2007) [2007) 'ZA.SCA 165; {2007) SCA 165 (RSA); (2008] 2 All SA 145; 2008 (2) SA 481; 2008 (5) BCLR 508;
2008 (2) SA 481 (SCA) (29 November 2007) para 4
20
missteps, such as the mistake in the formula and the purported amendment of
Annexure P, he submitted that there was no valid tender process if a holistic
view was taken.
(63) Dealing with the take-a-chance principle and that the applicant should
have brought the application sooner, he maintained that it would have been
premature for them to act before a decision to award the tender. He cited the
matter of Rhino Oil and Gas Exploration SA (Pfy) Limited v Normandien Farms
(Pty) Limited and Another,17in which the court said:
"As a general rule, a challenge to the validity of an exercise of public power that
is not final in effect is premature . An application to review the action will not be
ripe, and cannot succeed on that account. Hoexter explains the concept thus:
'The idea behind the requirement of ripeness is that a complainant should not
go to court before the offending action or decision is final, or at least ripe for
adjudication. It is the opposite of the doctrine of mootness , which prevents a
court from deciding an issue when it is too late. The doctrine of ripeness holds
that there is no point in wasting the courts' time with half-formed decisions
whose shape may yet change, or indeed decisions that have not yet been
made.'"
(64) In conclusion, he submitted that Gijima has failed to comply with
Annexure P Checklist. Accordingly the court should review the decision to
award Gijima the tender.
The law
(65) Outlining the legal structure of a tender, the constitutional court in Al/pay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive
Officer of the South African Social Security Agency and Others18held:
"(c) Procurement framework legality
17 (100/2018) [2019) ZASCA 88; 2019 (6) SA 400 (SCA) (31 May 2019)
18 (CCT 48/13) [2013) ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1 (CC) (29 November 2013)
21
In Steenkamp , Moseneke DCJ stated:
"Section 217 of the Constitution is the source of the powers and function of a
government tender board. It lays down that an organ of State in any of the three
spheres of government , if authorised by law may contract for goods and services on
behalf of government. However, the tendering system it devises must be fair,
equitable, transparent , competitive and cost-effective. This requirement must be
understood together with the constitutional precepts on administrative justice in
section 33 and the basic values governing public administration in section 195(1 )."
In Millennium Waste the Supreme Court of Appeal (per Jafta JA) elaborated :
"The Constitution lays down minimum requirements for a valid tender process
and contracts entered into following an award of tender to a successful tenderer
(section 217). The section requires that the tender process, preceding the
conclusion of contracts for the supply of goods and services, must be 'fair,
equitable , transparent , competitive and cost-effective '. Finally, as the decision
to award a tender constitutes administrative action, it follows that that the
provisions of [PAJA] apply to the process."
The starting point for an evaluation of the proper approach to an assessment
of the constitutional validity of outcomes under the state procurement process
is thus section 217 of the Constitution :
"(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
22
(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 ."
The national legislation pr.escribing the framework within which procurement
policy must be implemented is the Preferential Procurement Policy Framework
Act (Procurement Act). The Public Finance Management Act is also relevant.
An "acceptable tender" under the Procurement Act is any "tender which, in all
respects, complies with the specifications and conditions of tender as set out in
the tender document". The Preferential Procurement
Regulations (Procurement Regulations) define a tender as "a written offer in a
prescribed or stipulated form in response to an invitation by an organ of state
for the provision of services, works or goods, through price quotations ,
advertised competitive tendering processes or proposals "19 (Footnotes
omitted).
Analysis
(66) When it comes to the AFS, the bone of contention seems to be the
interpretation of the word "Latest" found in Annexure P and whether one or three
AFS were required in terms of Mandatory evaluation criteria. It is trite that the
courts' tools of trade in interpretation are the triad of text, context and purpose,
as mentioned in several cases including the locus classicus Natal Joint
Municipal Pension Fund v Endumeni Municipality.2°Furthermore, it is trite that
interpretation remains "a matter of law and not of fact, and accordingly
interpretation is a matter for the court not for witnesses"21
(67) In my view, "Latest" is self-explanatory, it means the most recent date,
newest, fresh, present-day, or up-to-date AFS. The purpose is beyond question,
19 Supra 30 to 34
20 (920/2010) (2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) (16 March 2012) para18
21 KPMG Chartered Accountants (SA) v Securefin Ltd 2009 (4) SA399 (SCA) at para 39
23
it is to assess the financial viability of an entity that would deal with twenty-two
national parks. The Companies Act is the loadstar as to how one determines
the issue of "Latest". It provides that "Each Year a company must prepare
annual financial statements within six months after the end of its financial year,
or such shorter period as may be appropriate ... "
(68) The AFS must be for the recent three years, the RFB states that much
under paragraph 2. Indeed, Annexure P does not mention three years,
therefore, the respondents concluded that only a single audited AFS was
required, I disagree. Annexure P, which is a checklist, cannot be viewed in
isolation nor divorced from the entire RFB. When viewed in toto, including
Annexure 0, it is patent that three audited or independently reviewed AFS were
required, otherwise, how would a trend be established? Both the respondents
agreed that 2019 AFS would have been outside the recent three-year
requirement yet refused to accept that recent meant the year 2022, at worst, or
the year 2023, at best.
(69) To me, Gijima fell short of the checklist and ought not to have proceeded
to phase 2. It would be an unnatural reading of the document to conclude that
the RFB did not require three years Independent ly Reviewed or Audited, where
possible, Annual Financial Statements or Annual Report. The words speak for
themselves without any need for verbal gymnastics . It is insensible and most
unbusinesslike to assess the financial soundness of any prospective service
provider, bidding to assume the responsibility involving close to a billion rand
and 22 national parks, by looking at a single Independently Reviewed or
Audited, where possible, Annual Financial Statements or Annual Report, worst
still, an old AFS, dating back to 2021. Gijima did not comply with the three years,
did not comply with the audited or independently reviewed requirement and
certainly did not comply with recent requirements .
(70) In casu, the coup de grace is that other bidders were disqualified by
SANParks for the same infraction. At paragraph 83 of SANParks answering
affidavit, the following is recorded:
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"The SEC report noted the following:
83.1 Seven bids were received, of which four were disqualified during the
mandatory phase for failure to meet mandatory requirements"
(71) When one examines the mandatory shortcomings of the four other bids
which led to their disqualifications at phase 1 (mandatory phase), at paragraphs
68 of the answering affidavit the following is written:
"Reikemetse, Wirespeed , Try Lil Bytes and BCX were thus disqualified at the
mandatory evaluation phase for failure to comply with mandatory requirements
as follows [RoD 04-7463]:
68.1 Reikemetse failed to show that it was a South African licensed ECNS
network provider, failed to provide three years audited all independently
reviewed annual financial statements ..
68.2 Wirespeed failed to show that it was a South African licensed EC NS
network provider and failed to provide three years audited all independently
reviewed annual financial statements;
Try Lil Bytes failed to show that it was is South African licensed EC NS network
provider fail to provide three years audited or independently reviewed annual
financial statements ...
BCX failed to provide three years audited or independently reviewed annual
financial statement and failed to provide valid certifications of its staff as
required by the bid."
(72) The common denominator in all these disqualifications was the entities'
failure to comply with the requirement of three years audited or independently
reviewed annual financial statements. What is good for the goose is good for
the gander. How is it that Gijima was held to a different standard? This is nothing
short of disgraceful conduct. The fact that SAN Parks came to court and insisted
that only one audited AFS was required stinks to high heavens. This conduct is
totally at variance with the Constitutional precepts of fairness and equity.
(73) Gijima's counsel made common cause with the applicant on the email
from SANParks , dated 29 September 2023, purporting to amend the RFB and
25
the Pricing Schedule . Relying on and referring to subparagraph 15.6 of
SANParks' supplementary affidavit, counsel for Gijima submitted that:
'The purported amendment of the RFB was done without authority to do so and
without publishing an addendum to the RFB no less than ten days before bid
closing on the e-Tender portal and in other media. In the circumstances ,
SANParks purported to amend the RFB without adhering to the mandatory
provisions of National Treasure PFMA SCM Instruction 9 of 2022/2023 .
SANParks therefore failed to comply with the mandatory provisions of the
Treasure Instruction Notice."
(74) SANParks amended the Pricing Schedule after the bid closing via an
email from Ms Kgoale, on 7 November 2023. It allowed the bidders to amend
their total Bid Price because of an error in the formula. The email said: 'The
formula is supposed to calculate price for ten (10) years, but it only allowed for
five (5) years."22 Similarly to the above-mentioned purported amendment ,
SANParks did not adhere to the provisions of National Treasure PFMA SCM
Instruction 9 of 2022/2023. This was worse in that it happened after the closing
of the bid. I reject the submission that no one amended their prices, only the
formula changed. The reality is that Gijima's original price of R439 100 977. 72
(Vat inclusive) was amended to R980 037 813.77 (Vat inclusive).
(75) It would be a waste of judicial time to examine the Linux Professional
Institute and other grounds, save for stating that the second respondent's
submission on take a chance does not find application in this case.
PAJA
(76) The decision to award the tender to the second respondent was not in
keeping with the dictates of the constitution, and it would not be far off the mark
to characterize the tender process as being shambolic . Ultimately, this entire
tender process was not in accordance with a tender process that is fair,
22 Founding affidavit para 85
26
equitable, transparent and competitive. According ly, the decision to award the
tender GNP-005 to the second respondent is open to attack in terms of s 6(2)(b)
of PAJA, in that SANParks failed to adhere to the mandatory and material
conditions prescribed by the empowering legislation. Consequently , the
decision is reviewed and set aside. In terms of s 8(1) of PAJA, I am of the view
that it is just and equitable to remit the matter to SAN Parks for reconsideration
with the following direction:
• The applicant is to continue to deliver the current services to SAN Parks
for a period of twelve ( 12) months from the date of judgment on the same
terms and conditions as set out in the agreement concluded in February
2019 pursuant to the award of bid number GNP-008-18 to the applicant
mutatis mutandis ("submission ').
Costs
(77) It is trite that the issue of costs is within the purview of the court, and it
is a norm that costs follow the result. I do not intend to veer off this well-trodden
path. The first and second respondents are to pay the costs of the applicant,
including the costs of two counsel.
Order
1. The first respondent 's decision to award the tender GNP-005-23 to the second
respondent, for the appointment of a service provider for the Outsourcing of
Information and Communication Technology Services, a Single Service
Aggregator including network services and infrastructure for a period of 10
years, is reviewed and set aside.
2. The applicant is directed to continue to deliver the current services to SAN Parks
for a period of twelve (12) months from the date of judgment on the same terms
and conditions as set out in the agreement concluded in February 2019
pursuant to the award of bid number GNP-008-18 to the applicant mutatis
mutandis .
27
3. The first and second respondents are ordered to pay the costs of the applicant
joinijy and severally, the one paying the other to be absolved, including the cost
of two counsel on scale C.
Date of hearing: 3 -7 February 2025
Date of judgment: 11 April 2025
APPEARANCES:
For the Applicant:
For the First Respondent:
For the Second Respondent: JUDGE OF THE HIGH COURT, PRETORIA
Adv A. Subel SC, Adv. T. Prinsloo, Adv. L.
Peter and Adv. B. Mazibuko instructed by
Lowndes Dlamini Inc.
Adv A. E. Bham SC and Adv. L. Brighton
instructed by Cliff Dekker Hofmeyer Inc.
Adv. N. D. G. Maritz SC and Adv. A.
Friedman instructed by Nicqui Galaktiou
Inc.
28