IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case Number: 2024 -142404
REPORT ABLE

In the matter between

RAALEBORG ENVIRONMENTAL (PTY) LTD APPLICANT

and

CAPE WINELANDS DISTRICT MUNICIPALITY FIRST RESPONDENT

CITY MANAGER OF
CAPE WINELANDS DISTRICT MUNICIPALITY SECOND RESPONDENT


JUDGMENT


Date of hearing: 18 February 2025, 17 March 2025
Date of judgment: 5 May 2025

BHOOPCHAND AJ:

1. The Court hear d the application and a counterapplication . The parties moved
the urgent Court on 18 February 2025 to hear the matter. The applications did not

meet the threshold for urgency, but the hearing was expedited to 17 March 2025.
The facts that inform the applications are largely common cause.

2. On 29 November 2024, Raalenborg Environmental (Pty) Ltd (‘the Applicant ’)
issued an urgent application to , among others, review and set aside the Cape
Wineland’s District Municipality’s (“the Municipality”) repudiation and withdrawal of
the award of a tender (T2023/23) to the Applicant . The Applicant tendered for the
operation and man agement of the Municipality’s regional waste disposal facility at
Worcester for approximately R270 million over ten years .

3. The Municipality advertised the tender on 28 July 2023 . The Applicant
submitted its bid on 6 October 2023 . The Municipality received seven bids in total.
The Municipality requested extensions of the bid validity period on three occasions:
26 February 2024 until 30 April 2024, 25 April 2024 until 30 June 2024, and 25 June
2024 until 30 August 2024. The bidders a greed to the extensions .

4. On 26 August 2024 , the Applicant was informed by the Municipality’s Supply
Chain Management Practitioner (‘SCM practitioner’) , Ms Niemand (‘Niemand’),
writing for the Municipal Manager, that the Municipality had conditionally awarded the
tender to the Applicant.1 The unsuccessful bidders were notified simultaneously of
the decision. The letter states , "Letters of notification were sent to all unsuccessful
bidders during the week following the approval of this bid by the Bid Adjudication
Committee ” (‘BAC’) . The award of the tender was subject to a 14-day objection
period as per the Supply Chain Management (‘SCM’) Regulation 49 , as well as to 21
days for appeals as per section 62 of the Municipal Systems Act 32 of 2000 (‘MS
Act’) against the decision made. The Applicant was informed that they would be
officially notified as the successful bidder after the expiry of the relevant periods .

5. On 17 September 2024 , Niemand, writing for the Municipal Manager,
informed the applicant that the Municipality had awarded the tender to the Applicant.
The award was further conditional on the Applicant complying with the conditions,
requirements, and specifications as set out in the tender document (the contract) . By

1 This is how the letters written by Niemand were signed off, i.e., “For Municipal Manager”
signing the form of offer and acceptance, the Applicant agreed to perform all the
obligations and liabilities under the contract and comply with all the terms and
conditions of the contract . A fully completed copy of the contract was attached to the
letter. The Applicant signed the contract on 18 September 2024.

6. Nine days later, on 27 September 2024, Niemand sent an email addressed to
Leon Grobbelaar (‘Grobbelaar’) , the Applicant's director , regretting that the award
letter had been withdrawn due to an administrative error. At the Applicant’s request
for an explanation, Siphokazi Manel (‘Manel’) , the Senior Manager of Acquisitions
and a member of the BAC , responded on 30 September 2024. The email was copied
to Ronel Leo, the Deputy Director of Supply Chain Management and sent to
Grobbelaar and Niemand . The Municipal Manager was not copied on this email.
Manel explained that the award letter was sent out prematurely and incorrectly due
to an administrative error. Manel explained that t he BAC considered and
recommended the tender , but the Municipality’s Accounting Officer did not award it .
The validity period of the tender had lapsed on 30 August 2024. In terms of the
applicable legislation, the Municipality could not legally proceed with making the
award , as it would be unlawful and constitute irregular expenditure. Manel advised
the Applicant that the Municipality was taking immediate steps to rectify the situation.
The tender w ould be cance lled and readvertised as soon as possible. They were
conducting a review to ensure that the correct procedures were followed.

7. On 1 October 2024, Grobbelaar wrote to the Municipal Manager. He
emphasised that the correspondence of 26 August 2024 and 18 September 2024
emanated from the Municipal Manager, who is the Municipality’s Accounting Officer.
The contract was signed on behalf of the Municipality on 26 August 2024.
Grobbelaar informed the Municipal Manager that the Applicant considered the letter s
a repudiation . The Applicant intended to accept the repudiation and recover
damages of R 61 778 838. The damages were calculated as 25% of the contract
price. The Applicant invited the Municipality to reconsider its position by 4 October
2024 and suggest ed how the matter could be resolved. The Applicant preferred that
the contract , signed on 1 6 August 2024, by F van Eck, the Municipality's Executive
Director of Technical Services, before the expiry of the validation period , remain.

8. On 10 October 2024 , the Municipal Manager, H enry Frederick Prins (‘Prins’),
responded to the Applicant and a letter sent to the Municipality by the Applicant’s
lawyers . Prins explained that the tender's validity period was 180 days.2 The validity
period is when the bidders' offers remain open for acceptance. Prins re ferred to
case law that spoke of the validity period as one of the fundamental rules of
tendering , the period within which the process should be finalised.3 He stated that by
the time the tender's validity period had expired , the Accounting Officer had made no
decision , and the validity period had not been extended f or a second time.4 The
Accounting Officer could no longer make an award as the tender process was
complete , and resuscitating it was impossible . A new bid process had to be initiated
to ensure that all interested parties were provided a further opportunity to tender.

9. Prins referred to further caselaw , which dealt with the legal consequences of a
public body's failure to accept a tender within the stipulated validity period .5 He
reproduced the four interrelated propositions the Supreme Court of Appeal referred
to favourably in another case considered before deciding the issue.6 The decision to
award a tender is an administrative action , and the Promotion of Administrative
Justice Act 3 of 2000 (‘PAJA’) applies . Once a contract has been entered into
following the award of the tender, the law of contract applies. A contract entered into
contrary to prescribed tender processes is invalid . Even if no contract is concluded ,
all steps taken following a process which does not comply with the tender processes
are also invalid.7

10. Prins referred to section 29(1) (b)(i) of the Supply Chain Management
Regulations .8 He stated that a BAC must , depending on its obligations, m ake a final
award or a recommendation to the Accounting Officer, who then make s a final

2 Part B: General Conditions and Information of the tender document
3 Tactical Security Service s CC v eThekwini Municipality 2017 JDR 1558 (KZD) , Defensor
Electronic Security (Pty) Ltd v Centlec SOC Ltd and Another (3372/2021) [2021] ZAFSHC 315
(3 December 2021)
4 Prins is incorrect , as the tender validity period was extended thrice . He seemed to distinguish
the Municipal Manager from the Accounting Officer in his letter.
5 City of Ekurhuleni Metropolitan Municipality v Takubiza Trading & Pr ojects CC and Others
(846/2021) [2022] ZASCA 82; 2023 (1) SA 44 (SCA) (3 June 2022) (‘Takubiza Trading’ )
6 Telkom SA v Merid Training (Pty) Ltd and others ; Bihati Solutions (Pty) Ltd v Telkom SA and
others (Telkom SA ) [2011] ZAGPPHC 1
7 Takubiza Tradin g supra at para 9
8 General Notice 868, GG 27636 , 30 May 2005
award. In terms of section 5(2) (a) of the Supply Chain Management Regulations , an
Accounting Officer may not subdelegate the power to make a final award above
R10 million (VAT included). A tender falling into that category serve s in the BAC only
for recommendation purposes .

11. Prins then explained that , unfortunately , partly due to a n administrative
oversight , it was mistakenly assumed that the BAC awarded the tender . The award
letters were erroneously sent to the Applicant , and the subsequent agreement was
signed. At the time , the Accounting Officer considered the recommendation by t he
BAC to make an award, the validity period had already expired, and the Accounting
Officer was no longer entitled to make any award. Relying on Takubiza Trading ,
Prins informed the Applicant that the agreement entered into was invalid . The
contract between the Municipality and the Applicant was contrary to the prescribed
tender processes .

12. The Applicant contended that it was Prins who had extended the validity
period to 30 August 2024 . The Applicant referred to the extension letters that
Niemand signed for the Municipal Manager. The Applicant asserted that it is
unfathomable that Prins was not acquainted with the tender process and the roles
and authority of the Accounting Officer and the BAC , under sec tions 5(2)(a) and
29(1) (b)(i) of the SCM regulations . The Applicant submitted that a municipality does
not have the authority to correct its own administrative errors and acted unlawfully in
doing so , to the Applicant’s severe prejudice and detriment . The Respondents should
have initiated a legality review of their administrative oversight, incorrect procedure ,
or decision.

13. The Applicant contended that Prins had a duty of care to ensure that the
applicable procedural steps were properly taken and tha t the tender was properly
awarded by 30 August 2024, which the Applicant maintained had been done. The
Municipal Manager should have ensured proper compliance with the Municipality’s
procurement policies. The tender was properly awarded to the Applicant , and the
terms of the subsequent agreement concluded should bind the Respondents . The
Applicant submitted further that there had been substantial compliance on the
Respondents' part and that they should be bound by the subsequent agreement
concluded.

14. Prins deposed to the Respondents' answering affidavit. The content accorded
with the tenor of the correspondence between the Applicant , Niemand, Manel, and
him with a few nuances. Prins contend ed that the BAC passed a resolution
recommending that he, as Municipal Manager, award the Applicant the tender to
operate and manage the Municipality’s waste disposal facility. He contended that
Niemand’s conduct in erroneously informing the Applicant of t he BAC’s decision and
providing the Applicant with a signed contract from the Municipality was unlawful,
irrational, and ultra vires the applicable legislation governing the procurement of
goods and services in the Municipality . He state d that the validity period had expired
when the BAC’s recommendation served before him .

15. Prins contended that the Applicant had insisted on specific performance
despite the ostensible contract and the purported award being unlawful and invalid.
The Municipality did not accept that the Applicant was entitled to institute the
application as it was bad in law. The Munic ipality was determining the correct course
of action when the Applicant launched this application. The Municipality had no
option but to nullify Niemand’s actions and /or review and set aside the ostensible
tender award and all administrative acts purportedly concluded .

16. Prins explained that t he Bid Evaluation Committee (‘BEC’) convened,
considered the bids, and recommended to the BAC to consider and recommend to
the Accounting Officer that th is tender be awarded to the Applicant, subject to section
33 of the Municipal Finance Management Act (‘MFMA’). Prins acknowledged that he
is the Municipality's Accounting Officer under the MFMA and that the Applicant’s bid
offered the lowest market -related price. The BAC convened to consider the BEC’s
recommendation on 1 July 2024. The BAC directed the BEC to explain why it had
excluded Khabokedi Waste Management (Pty) Ltd , another of the bidder s, and
recommend ed the Applicant. On 26 July 2024, the BEC , after considering the BAC’s
enquiry, recommended to the BAC once again that it award the tender to the
Applicant, subject to section 33 of the MFMA and the Municipal Council adopting a
resolution in which it approve d the entire contract exactly as it was to be executed.
On 23 August 20 24, the BAC convened and recommended that the tender be
awarded to the Applicant, subject to section 33 of the MFMA.

17. On the day the BAC awarded the tender to the Applicant, it awarded five other
tenders. After the meeting, Manel , who acted as the BAC's s ecretary, went to
Niemand to inform her of the outcome of the BAC’s deliberations. Niemand sits
opposite the room where the BAC deliberates. Niemand handles most of the
Municipality’s supply chain management and administrative correspondence . Prins
reiterates that d ue to an inadvertent administrative error, Niemand misunderstood
Manel to mean that the tender be awarded to the Applicant rather than that it had to
serve before the Municipal Man ager who would award the tender. Niemand had
explained that she did not know the BAC had not awarded the tender and could not
do so as a matter of law. Prins asserted that Niemand’s error was understandable
given that the Municipality rarely awards tenders above R10 million. Niemand
obtained Van Eck ’s signature to the contract based on the same error. The
Municipality had not made the award , and there was no compliance with section 33
of the MFMA. Manel sent the BAC’s signed approvals to Niemand on 17 September
2024. Manel informed Niemand on the sam e day that the tender still had to be
approved by the Municipal Manager. Niemand confirmed that she did not see
Manel’s email advising her that the tender had to be approved by Prins. Niemand
proceeded on 18 September to inform the Applicant that the Munic ipality had finally
awarded the tender to it.

18. Prins alleged that a hard copy of the BEC and BAC recommendations was
delivered to his office on 19 September 2024 for his final consideration and award.
Prins stated he does not sit in the same building as Niemand and Manel. He is not
privy to or involved in the BEC or BAC process. He relies on and acts upon written
recommendations received from t he two committees. He realised that the bid was
only valid until 30 August 2024 when he began reading the recommendations. He
sought a legal opinion by referring the documents to the Municipality’s head of legal
services , Sarah Sanders (‘Sanders’) .

19. Sanders advised Prins on 26 September 2024 that there was no valid tender
and the process had concluded , albeit unsuccessfully. She advised him that he could
not award the tender to the Applicant. Prins states that he was advised on 30
September by Ms du Raan -Groenewald, the Chief Financial Officer , that Niemand
had erroneously sent out the award notifications to the Applicant. Manel’s email of 30
September to the applicant followed. Prins states th at his letter of 10 October 2024
was an attempt to avoid litigation and legal costs and to settle the issue with the
Applicant.

20. In its replying affidavit, Grobbelaar re iterated that on each occasion a request
for an extension was made, the requests were made by Niemand for and on behalf
of the Municipal Manager. The Applicant contended that the documents were in
template form, and although physically signed by Niemand, it was intended to be
from the Municipal Manager. F Van Eck was part of the BAC commit tee, which on 23
August 2024, resolved that the Municipal Manager was required to award the tender
to the Applicant. Grobbelaar challenged the Municipal Man ager’s contention that the
Municipality rarely handled tenders over R10 million . He referred to a te nder
awarded to Burger & Wallace Construction for constructing a landfill in Worcester.
The t ender was awarded in March 2024, six months before the Applicant received its
notification of the tender award. That letter was also signed by Niemand and not
Prins.

21. The Applicant asserted that a Supply Chain Management Practitioner
oversees, manages, and executes procurement and supply chain activities. Niemand
is expected to have a sound knowledge of all relevan t MFMA supply chain
management regulations. Prins did not take issue with the letters sent to the
unsuccessful bidders. The Applicant noted that the Municipality did not allege that
Niemand acted outside the scope of her employment terms and conditions or that
she acted ‘on a frolic of her own ’. The municipality’s case is that the tender's award
arose through an administrative error. The Applicant contended that Prins had
employed Niemand as SCM practitioner and having allowed her to act in that
manner she did and impliedly created and established the impression and made the
representation to the parties including the Applicant that when Niemand purported to
act in the way she did , her actions were the actions of the Municipal Manager . In the
alternative, N iemand acted within the course and scope of her conditions of
employment. In a further alternative, the Applicant contended that the Municipal
Manager having known the fact that the tender, a purported rarity in the Municipality
could only be awarded by him, should have been more involved in the process, and
ensured that any correspondence emanating from the Municipality in respect of the
tender were prepared and signed by him, alternatively should have contained some
disclaimer as to Niemand’s lack of authority and should have approached the
awarding of the tender with the required degree of urgency to ensure that the award
of the tender was made before the termination of the tender validity period.

22. Having allowed Niemand to have acted in the manne r that she did, the
Municipal Man ager created and established the representation that the Municipal
Manager had awarded the tender to the Applicant and that all internal processes of
the Municipality had been duly complied with, specifically regarding the tender
validity period on 30 August 2024. The representations to the knowledge of the
Municipal Man ager were false in that he at all relevant stages was aware,
alternatively should reasonably have been aware that Niemand signed the various
documents and correspondence carrying with it binding legal consequences and that
unless told otherwise, third parties such as the Applicant would assume and accept
that the documents and/or correspondence emanated from the Municipal Manager
and not from Nie mand. The representation was designed and intended to mislead
third parties such as the Applicant, alternatively had the intended or unintended
consequences of third parties being addressed by Niemand and /or addressing
correspondence to Niemand , received communications from and or were
communicating with the Municipal Manager and not Niemand.

23. The Applicant , having laboured under the representations described above
and understanding therefrom, acted to its detriment in that, bearing in mind the
approa ching expiry tender validity period on 30 August 2024, the Applicant did not
question the correspondence of 26 August 2024 and was deprived of an opportunity
to ensure that the required steps that the Municipal Manager should have
undertaken were undertake n timeously.

24. The Applicant contend ed that the Respondents should be estopped from
denying the tender award to the Applicant on 26 August 2024. The Applicant
contend ed that the Municipal Supply Chain Management Policy of the Municipality,
specifically clause 5(2), and the purported non-compliance are of no moment and do
not constitute a material deviation from the applicable legislative processes. The
purported non-compliance did not compromise the fair, equitable, transparent and
cost-effective requirements of section 217 of the Constitution. This is so given that
the tender conditions provided that an award would be made to t he highest scoring
tenderer. As the Applicant scored the highest, the Municipal Man ager had no
discretion but award the tender to the Applicant. The Applicant contend ed that a
refusal to abide by or carry out a deviation from the recommendations of the BAC
and BEC would have resulted in a contravention of the provisions of section 217 of
the Constitution.

25. The Applicant then addressed the Respondents’ reliance on sectio n 33 of the
MFMA. There was no confirmation or resolution from the Municipal Council , nor had
there been publication before the ostensible conclusion of the contract. The
Applicant assert ed that the purported irregularities , as far as Niemand and the
confi rmation provided by her on 26 August 2024, extend only to the granting of the
award. Suppose the Court were to find that the tender was timeously awarded, i.e.,
before the expiration of the validity period. In that case, the non -compliance with
section 33 does not invalidate the awarding of the tender. The tender validity period
does not extend to the conclusion of the contract. The contract was not required to
have been concluded within the 180 days initially set and extended to 30 August
2024. The only as pect that needed to have been concluded before 30 August 2024
was the acceptance of the Applicant 's bid, i.e., the awarding of the tender. The
conclusion of the contract would have been competent at any time after granting the
tender and would still comply with, among others, section 33 of the MFMA.

26. The Applicant contend ed further that the intended contract and the terms and
conditions would have been tabled before the council for public comment before the
tender had been advertised. The Municipality wo uld have had to budget for the
expense and comply with section 33 of the MFMA before advertising the tender and
inviting tenderers. As the Municipality did not refer to the compliance with section 33
by itself during the tender process, the Applicant conte nded it was an afterthought.

27. The Applicant states that the relief claimed by the Municipality , as far as the
review is concerned, is sought without the Municipality having filed the record of
proceedings. The Applicant states that examining every meeting in which the tender
was an agenda item would be particularly interesting . The Applicant contends that
under section 172 (1) ( b) of the Constitution, the appropriate order would be to
compel the Municipality to conclude the intended and required contract with the
Applicant. Alternatively, the Applicant would be entitled to a review of the decision not
to conclude the intended contract with the Applicant. If there were no compliance
with section 33, then the Applicant would be entitled to an order compelling the
Municipality to do all such things and take all the steps required to comply with
section 33 of the MFMA and have the contract subsequently concluded.

28. The Applicant filed its amended notice of motion simultaneously with the
replying affidavit. It contended that the proposed way forward suggested by the
Municipality was untenable and unacceptable. The suggestion that a new tende r
process would be fair to all parties was risible. Nothing about the tender process
remained a secret. One of the annexures records the Applicant’s to tal bid price ,
including VAT. The competing bidders in the next round could adjust their tender
amounts t o match or even beat the Applicant’s bid. The prejudice suffered by the
Applicant is a clear and unequivocal violation of section 217 of the Constitution. An
organ of state that contracts for goods and services must follow a fair, equitable,
transparent, c ompetitive and cost -effective system . The Applicant’s tender was
scrutinised twice by the BEC and once by the BAC , after which it was recommended
to the successful bidder.

29. The Applicant asserted that a n internal administrative failure d id not
automatically invalidate the awarding of a tender and contract that was concluded
properly . It argued that there was s ubstantial compliance with the prescribed
legislation , and a procedural defect should not a void enforc ing the contract . A
municipality cannot unilaterally declare its administrative actions void. An
administrative decision , even if alleged to be defective, remains valid until set aside
by a Court. The municipality’s assertion that it could nullify Niemand’s actions without
a Court order is unlawful and constitutes impermissible self-help. If the Respondents
genuinely believed that the award was unlawful, they were duty-bound to approach
the court immediately for a legality review rather than unilaterally withdrawing the
award and attempting to invalidate a contract that had already been concluded. The
Municipality only resorted to review proceedings after the Applicant instituted its
application. The timing of the review indicates that The Respondents are pursuing a
defensive m easure, rather than a genuine concern about legality. The review
application is not a bona fide attempt to rectify an administrative mistake, but rather
an attempt to avoid compliance with an existing contract.

30. The Applicant sought multiple forms of re lief in its amended notice of motion .
The first included a declaration that the tender was duly awarded to the Applicant ,
the subsequent contract concluded between the Applicant and the Municipality is
valid and binding on the Municipality, and the latter is directed to give effect thereto.
The Applicant sought two alternatives to the declaratory order. The Respondents are
directed to concerning the intended contract, take all such steps anticipated under
section 33 of the MFMA , alternatively that the Municipality’s failure to have
considered and made a decision following the BAC’s recommendations dated 23
August 2024, before the expiry of the tender validity period is reviewed and set aside
under section 6(2)(g) of PAJA (the administrative ac tion concerned consist ed of a
failure to take a decision ). The Applicant then sought a remedy under section
8(1)(c)(ii) of PAJA for the Municipal Man ager’s failure to have acted and made a
decision of replacement and substitution with a decision awarding the tender to the
Applicant. As an alternative remedy under section 8( 1)(c)(i) of PAJA , the Applicant
sought the remittal of the tender to the Municipality for consideration and the making
of a decis ion within a period to be determined by the Court. As a further alternative,
the Applicant requested an extension of the tender validity period under section
172(b) of the Constitution.

31. In its counterapplication, t he First Respondent pursued a declaration that the
Municipality’s ostensible award of the tender to the Applicant as per the
Municipality’s letters dated 26 August 2024 and 17 September 2024 is void, invalid,
and of no effect , alternatively, reviewing and setting it aside. The Municipality also
sought a further declaration that the contract concluded on 31 August 2024 is void,
invalid, and of no effect , or to review and set it aside.

32. Prins deposed to the founding affidavit in the counterapplication . He was
advised that the Municipality could challenge the application collaterally. The
ostensible contract was concluded in breach of the procurement legislation. Prins
labelled Niemand’s a ctions as unauthorised, unlawful , and ultra vires the MFMA, and
the Municipality’s Supply Chain Management Policy , thus in breach of section 217 of
the Constitution. Niemand ’s actions were void and unlawful . The BAC had not
awarded the tender to the Applic ant as it had no power to make the award. The
conclusion of the contract was equally invalid as it followed Niemand’s unlawful and
invalid conduct relating to the tender award . There was no confirmation or resolution
from the Municipal Council, nor was there publication before the ostensible
conclusion of the contract under section 33 of the MFMA.

33. Prins explained that he never withdrew the tender or the award , as the
Applicant alleged. The award never t ook place, and the tender process ended
unsuccessfully. Prins contended that the Applicant is the incumbent service provider
and will not be prejudiced financially. It will be entitled to submit a bid for a new
tender process that the Municipality intends to commence once the matter is
finalised.

34. The Applicant contended that the Municipality cannot collaterally challenge its
own decision while simultaneously seeking judicial review. The Municipality should
not have waited for the Applicant to bring its review application, nor wait for the
Applicant to seek enforcement. The counterapplication was only initiated after the
Applicant sought specific performance , indicating it is a defensive strategy rather
than a bona f ide review. A self-review must be brought within a reasonable time , and
the Municipality failed to act promptly despite knowing of the alleged irregularities
before litigation commenced. The Municipality cannot retroactively disown its own
administrative a ctions to escape contractual obligations.

35. The Applicant contended that section 33 of the MFMA did not prohibit the
contract from being awarded. It merely required additional oversight for financial
planning. Any failure to comply with section 33 is an in ternal governance issue which
does not automatically render the contract void. The Municipality should have
remedied any non -compliance through proper internal procedures rather than
attempting a unilateral withdrawal of the tender. If there was a failure in delegation or
internal approvals, it is solely the Municipality’s responsibility. The legislative
framework cannot support the Municipality’s attempt to invalidate the contract. The
award was properly concluded , and any procedural defects did not justify its
withdrawal.

36. The Applicant contended that if the Municipality had concerns about the bid
validity period, it should have extended it before disputing the award. The
Municipality’s request for declaratory relief is a reactive measure only pursued after
the Applicant had sought enforcement of the contract . The Municipality
mischaracterise d the principle of legality. It does not allow a public authority to evade
an award that was validly awarded and/or a bind ing contract concluded due to its
own internal mismanagement. A just and equitable remedy must balance the rights
of the parties . In this case , it favours upholding a legally concluded contract rather
than allowing a government entity to escape liability due to alleged errors of its own
making. The Municipality’s reliance on the principle of legality is selective. It seeks to
rely on legality to invalidate its own con tract, but it ignores legality when it attempts to
withdraw a valid administrative decision without due process unilaterally . The
Applicant alleges that the Municipality had full access to legal remedies in the normal
course. If the counterapplication were meritorious , it could have pursued it through
ordinary review proceedings. The doctrine of substantial compliance applies ,
meaning that technical noncompliance does not negate a contract that was
otherwise awarded .

37. In reply, Prins said that he could not be expected to prove that he did not
make the award. There was no merit to the Applicant’s argument that the Municipal
Manager is not a person, but an ‘office’ in that Niemand was somehow authorised to
award the tender to the Applica nt as a part of that ‘office’. The MFMA, Supply Chain
Management Regulations and the SCM Policy require that an award over R10
million , including VAT, may not be delegated and may only be made by him. Prins
commented on the Applicant’s response to his asse rtion that the Municipality r arely
awards tenders above R10 million. He explained that in the Burger & Wallace
Construction tender award to construct the landfill in Worcester, he received a
recommendation from the BAC and made the award. He attached a copy of the
award , signed by him . He gave the document to Niemand before she sent out the
notifications . Prins asserted that the Applicant’s reliance on estoppel is ill-conceived ,
as estoppel cannot be used to enforce illegality . He dismissed t he Applicant’s
reliance on substantial compliance , which he reasoned could not circumvent or
overcome conduct that was ultra vires the prevailing legislation.

38. The Court has attempted to capture the allegations made by both parties as
comprehensively as p ossible , leading regrettably to a lengthy exposition of the
application and counterapplication. The Applicant, in particular, endeavoured to
interrogate the matter extensively and repetitiously. The Court turns to evaluate the
cases of the Applicant and the Respondents.

EVALUATION

The Application

39. The same facts and the applicable law inform the application and the
counterapplication. The Applicant relies on an award and the subsequent contract
concluded for approximately R 250 million over ten years, made by the Municipality to
it. The Municipality has explained that the Supply Chai n Management Practitioner,
Niemand, made the award inadvertently and as an administrative error. The
Applicant seeks validation of the award and the contract. The withdrawal of the letter
of award occurred nine days after the contract was concluded. The Applicant
instituted this application about six weeks after the Municipal Man ager refuted any
award or contract between the Municipality and the Applicant. The Applicant knew
that the Municipality intended to review Niemand's actions when it instituted its
application.

40. The Respondents premise the ir denial of the ostensible award made and
contract concluded between the Municipality and the Applicant on four grounds.
Neither the BAC nor Niemand were authorised to award the tender or conclude the
contrac t. The Municipal Manager was the only person authorised to award the
tender . The bid validity period had expired at least three weeks before the Municipal
Manager considered the BAC’s recommendation that he award the tender , provided
the section 33 requirements of the MFMA were met. The contract could not have
been concluded without compliance with section 33 of the MFMA.

41. The material facts pertinent to the adjudication of the application are that the
Municipality’s BEC and subsequently the BAC recommended that the Applicant be
awarded the tender to administer and operate its waste landfill in Worcester for
approximately R 250 million over ten years . The recommendation made by the BAC
on 23 August 2024 was conveyed to Niem and, a Supply Chain Management
Practitioner , who then conditionally awarded the tender to the Applicant on 26 August
2024 , four days before the bid validity period for this tender expired. Niemand
informed the unsuccessful bidders that the award had been made to the Applicant
and that they had a right of appeal. Niemand facilitated the conclusion of the contract
between the Applicant and the Municipality , which van Eck signed on 26 August
2024. On 1 7 September 2024, Niemand awarded the tender to the Applicant on
behalf of the Municipality. Niemand withdrew her letter of award to the Applicant on
27 September 2024 due to an administrative error. These facts are common cause .

42. The Municipality ’s account of events that unfolded was that Manel, the Senior
Manager of Acquisitions and secretary to the BAC , informed Niemand on 23 August
2024 of the BAC’s deliberations on six tenders, which included the tender for the
administration and o peration of the landfill. The BAC had recommended that the
Municipal Manager award the latter tender in his role as Accounting Officer , subject
to compliance with the process prescribed under section 33 of the MFMA. Niemand
misunderstood Manel and conditi onally awarded the tender to the Applicant on 26
August 2024 . Niemand also procured van Eck’s signature for the contract. Manel
reminded Niemand on 17 September that the tender had to be approved by Prins.
Niemand did not see the email sent by Manel. Niemand notified the Applicant that
the Municipality had awarded the tender to it on 18 September 2024. The Applicant
denied k nowledge of the other tenders approved by the BAC . It denied the
communications and correspondence between Manel and Niemand and Niemand’s
administrative error in notifying it of the tender award and her error in securing van
Eck’s signature. The Applicant admitted that the bid validity period had expired but
denied that the tender process had been completed unsuccessfully.

43. Prins stated that he received the BAC’s recommendations on the tender from
Manel on 19 September 2024. He is not involved in the BEC or BAC deliberations.
Upon perusal of the recommendations, he noticed that the bid was only valid until 30
August 2024. He asked Bint a to send the documentation to Sanders. Sanders
informed him there was no valid tender , and he refused to award it. Groenewald
informed him on 30 September 2024 that Niemand had erroneously sent award
notifications to the Applicant. The Applicant denied these facts as they did not fall
within its knowl edge , are legally unsustainable, or are at odds with its averments in
the founding affidavit.

44. The Applicant could not genuinely dispute the facts as related by Prins , nor
could it provide any countervailing version . Niemand, Manel, Binta, and Groenewald
provided confirmatory affidavits. Niemand provided a more comprehensive
confirmatory affidavit later. If there had been any attempt to avoid awarding the
tender ex post facto to the Applicant, there would have had to be collusion between
five Municipal employees who would have sworn falsely under oath . Niemand
withdrew her letter of award on 27 September 2024, days before Prins heard from
the Municipality’s legal department and from Groenewald , the Chief Financial Officer,
who informed him of Niemand’s error. The Applicant did not request a referral to oral
evidence. There was no reason to refer any material or genuine dispute of fact to
oral argument . The Court would not have permitted the Appl icant to conduct a n
inquisition if it truly believed that a dispute was not foreseeable at the
commencement of its application .

45. The Court is also not persuaded that the circumstances required separate and
comprehensive affidavits from Niemand and Manel.9 It would not have taken their
versions as related in the answering affidavit any further. The Court notes that the
Respondents provided a more detailed confirmatory affidavit of Niemand in their
reply to the counterapplication. The Applicant attac hed the correspondence from
Niemand and Manel to its founding affidavit. Niemand’s letter of withdrawal occurred
on a Friday. Manel’s response to the Applicant’s enquiries about the meaning of
Niemand’s letter on the Friday occurred on the Monday. There was no opportunity to

9 Drift Supersand (Pty) Limited v Mogale City Local Municipality and Another (1185/2016) [2017]
ZASCA 118; [2017] 4 All SA 624 (SCA) (22 September 2017) at paras 31, 36-38
stage a conspiracy to deny the Applicant an award , had there been compliance with
the applicable legislation. The Applicant chose to proceed under Rule 6 rather than
Rule 53. The latter may have unearthed or refuted the type of evidence it seemed to
be looking for. The Applicant has not persuaded the Court that the Municipal
Manager's account of events should be rejected .

46. The Applicant insisted that the tender award and contract were valid and
enforceable. It considered the withdrawal of the letter of award a repudiation and
threatened to sue the Municipality for damages. The Applicant informed the
Municipality that it should have initiated a legality rev iew of its administrative
oversight s, incorrect procedure and decision. It contended that the Municipality had
substantially complied with the legislation , and it had already begun implementing
the contract. The Applicant requested an undertaking from the Municipality that the
funds earmarked for the tender be frozen. The Applicant intended to apply to compel
specific performance on a lawfully awarded tender. The Respondents informed the
Applicant that they would not freeze the tender amount and that they were in the
process of initiating a review application.

47. The Court accepts that there are significant lacunae in the Municipal
Manager’s account regarding what transpired with this tender. He does not explain
why he did not attend to the details of this tender, like the extension of the validity
period, the coordination of the BAC recommendations that required his decision, and
compliance with the provisions of section 33 of the MFMA. There is no explanation
as to why the bid validity period for this tender was not further extended if the section
33 requirements were not met by 30 August 2024. To comply with section 33 of the
MFMA, the bid validity period would have had to be extended for at least another
sixty days. Prins doe s not explain why the BAC’s recommendation was not sent to
him before the expiry of the bid validity period. Prins denies that he is expected to
prove he did not make the award.

48. The Municipality has raised three factors influencing the lawfulness and
validity of the award and contract ostensibly made to the Applicant. The first relates
to the authority to award tenders above R10 million. Neither the BAC, Niemand, nor
van Eck was authorised to award the tender to or conclude the contract with the
Applicant. That is the law. Niemand’s actions contravened section 5(2)(a) of the
Supply Chain Management Regulations and the Municipality’s Supply Chain
Management Policy . All tenders above R10 million , including VAT, had to be awarded
by the Municipal Manager . The evidence before the Court is that Prins, the Municipal
Manager , and the Accounting Officer did not award the tender to the Applicant.

49. The second factor relates to the bid validity period. If the BAC was not
authorised to award this tender, it could not instruct Niemand to do so, nor could
Niemand on her own accord or through an error award a valid tender to or conclude
a valid contract w ith the Applicant. In effect, no award was made or contract
concluded during the bid validity period of this tender . A bid validity period ensures
bidders remain committed to their offers in public procurement for a set time,
preventing changes or withdraw als. It provides enough time for evaluation , ensuring
government entities can assess bids fairly without alterations. This maintains
fairness and transparency among all bidders. It helps in the smooth finalisation of
contracts.

50. On the authority of Takubiza Trading , the tender process ha d been completed
once a tender's validity period expire d, even if the tender was not awarded .10 The
evidence before the Court is that the bid validity period had expired without a valid
award being made or a contract concluded. The legal consequences are that the
tender lapse d. The tender award cannot be retroactively validated as the process is
not open -ended and has to conclude with certainty. T he procuring entity must
readvertise the tender and i nitiate a new bidding process. Municipalities must adhere
to the MFMA, which requires financial oversight and transparent procurement
processes. Any attempt to revive an expired tender could be considered procedurally
unfair.11 The Municipal Manager lawfully declined to make the award. Trencon does
not assist the Applicant in circumstances where an award has not been made during

10 Takubiza Trading supra
11 Telkom SA Limited v Merid Training (Pty) Ltd and Others ; Bihati Solutions (Pty) Ltd v Telkom SA
Limited and others [2011] ZAGPPHC 1 , Joubert Galpin Searle Inc and Others v Road Accident
Fund and Others [2014] ZAECPEHC 19; [2014] 2 All SA 604 (ECP); 2014 (4) SA 148 (ECP ),
SAAB Grintek Defence (Pty) Ltd v South African Police Services and Others [2015] ZAGPPHC
1; 2015 JDR 0080 (GP) ; Tactical Security Services CC v Ethekwini Municipality 2017 JDR 1558
(KZD); Secureco (Pty) Ltd v Ethekwini Municipality and Others [2016] ZAKZDHC 14 and
Ethekwini Municipality v Mantengu Investments CC and Others [2020] ZAKZDHC 11 , Defe nsor
Electronic Security (Pty) Ltd v Centlec SOC Ltd and another [2021] ZAFSHC 315 para 8
the bid validity period. An unauthorised person making an award amount to no award
being made during the bid validity period.12

51. The third reason why the ostensible award of the tender militates against its
validity is that the peremptory provisions of section 33 were not met. No contract
could be co ncluded with the Applicant until there was compliance with section 33.
Section 33 of the MFMA concerns tenders having future budgetary implications. It
imposes obligations on the Municipal Manager and the Municipal Council. The
Municipal Manager had to provide certain information to the Municipal Council sixty
days before the Council approved the contract. The Municipal Manager failed to
explain this omission , but it is immaterial to determining the issues in these
applications . Section 21A of the MSA required the Municipal Manager to publicise
the draft contract , accompanied by an information statement outlining the
Municipality’s obligations under the contract. He had to consider the representations
and comments of the local community and other interested persons . The Munic ipal
Manager had to solicit the views of the National and relevant provincial treasury , the
national department responsible for local government , and, where applicable, the
national department responsible for overseeing the effects of the tender, like
Environmental Affairs . There is no indication that the Municipal Manager performed
any of these obligations. His responses indicate that he did not.

52. Section 33 requires the Municipal Council , among other things, to consider
the projected financial obligations for each financial year covered by the contract, the
impact on municipal tariffs and revenue, and the resolution to authorise the Municipal
Manager to sign the contract on behalf of the Municipality. None of these obligation s
were met when the ostensible award was made and the contract concluded by
Niemand. Awarding a multi -million contract over a protracted period requires
meticulous attention to detail.

53. On the authority of Merifon, where the peremptory provisions of sec tion 19 of
the MFMA relating to capital projects were considered, the Supreme Court of Appeal

12 Trencon Construction (Pty) Limited v Industrial Devel opment Corporation of South Africa
Limited and Another (CCT198/14) [2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR
1199 (CC) (26 June 2015) (‘Trencon’) at paras 79 -81
determined that an agreement that did not comply with its prescripts was legally
unenforceable. There is no reason why a failure to comply with the peremptory
provisions of section 33 of the MFMA should not follow the same fate. The Municipal
Manager and the Municipal Council did not comply with their obligations under the
provisions of section 33 of t he MFMA. Given the tenor of the provisions of sections
217 and 172 of the Constitution, issuing a retroactive order for the Municipal
Manager and the Municipal Council to comply with section 33 of the MFMA is not
feasible. Nor can the Court order specific performance of the ostensible contract , as
it would offend the principle of legality.13

54. The Applicant ’s reliance on Allpay concerning the materiality of a deviation
under section 217 of the Constitution is misplaced. The Constitutional Court
specified that the correct approach is to factually establish whether an irregularity
has occurred. This irregularity must then be legally assessed to determine if it
constitutes grounds for review under PAJA. Where appropriate, this l egal
assessment should consider the materiality of any deviation from legal requirements
by connecting the issue of compliance to the purpose of the provision before
concluding that a review ground under PAJA has been established. The applicant
asserted that the process was done according to the book. The BEC and BAC made
their recommendations, and the other bidders lodged no appeals . The process was
competitive, transparent, and cost -efficient. Prins did not say that he would not have
awarded the tender . The Applicant contended that the irregularity was not material .14
The latter contention cannot be sustained . Niemand was not authorised to award the
tender or conclude the contract. The bid validity period had expired before Prins
considered the BAC’s recommendation, and even if he were disposed to award the
tender, non -compliance with the provisions of regulation 33 of the MFMA would have
been fatal to concluding the contract in circumstances where the bid validity per iod
had expired . The materiality of the dev iation was significant for the reasons already
canvassed.

55. Allpay reminded us that the strict mechanical approach to ‘pe remptory’ and
‘directive’ provisions had been discarded, and the issue was whether the Applicant

13 Merifon at para 29
14 Allpay at para 28
complied with the statutory provisions viewed in the light of their purpose. The
Applicant argued that it did what it had to do. The problem in casu was that the
Respondents did not do what they were supposed to. There i s no quarrel with that
argument except to say that the Respondents have raised their non -compliance with
the mandatory provisions as a defence to the Applicant’s case and are before the
Court to seek relief in that regard.

56. To the extent that the Applicant invoked estoppel , Merifon repeated the
general rule that estoppel cannot be invoked in circumstances where upholding it
would be tantamount to a court giving its imprimatur to not one but a few illegalities
that permeated the process after the BAC made its recommendation.15 The
Constitutional Court, in upholding the Supreme Court of Appeal’s decision in Merifon ,
stated the trite principle that void acts cannot be resuscitated through the Turquand
rule. The rule is a species of estoppel and therefore cannot be raised to cure an ultra
vires action , as opposed to intra vires , within one’s legal powers, but suffers from
some other defect. The doctrine of legality is applicable and decisively trumps the
Applicant’s reliance on the rule because it lacks knowledge of the internal processes
of the Municipality.16

57. The Applicant contended in a rambling argument that regulatio n 5(2) (a) which
is repeated verbatim in the clause 5(2)(a) in the Municipality’s supply chain
management policy which requires the Municipal Manager to award the tender as it
was above R10 million, cannot defeat the prescripts of section 217(1) of the
Cons titution. The argument is directed at why Merifon and RPM Bricks are not
applicable to the Applicant’s reliance on estoppel.17 The Applicant concludes this
argument by asserting that the Municipal Man ager’s ‘experience of personal attacks ’
may lead to a refusal to confirm the award of the tender in a rerun process. It is
unclear whether the Applicant referred to personal attacks on its part against the
Municipal Manager or any emanating from him. Apart from no evidence being placed

15 Merifon at para 26 , Qaukeni Local Municipality and Another v FV General Trading CC , [2009]
ZASCA 66 ; 2010(1) SA 356 (SCA)
16 Merifon (Pty) Limited v Greater Letaba Municipality and Another (CCT 159/21) [2022] ZACC 25;
2022 (9) BCLR 1090 (CC) (4 July 2022) (‘Merifon CC ’)
17 City of Tshwane Metropolitan Municipality v RPM Bricks Proprietary Ltd. (177/2006) [2007]
ZASCA 28; [2007] SCA 28 (RSA); 2008 (3) SA 1 (SCA) (27 March 2007)
before the Court of any personal attacks made by the Municipal Manager, it is
unclear how the Court can go beyond the dicta in the cited cases.

The relief sought by the Applicant

58. The Applicant sought multiple forms of relief in its amended notice of motion .
The first order it sought was a declaration that the tender was duly awarded to it , and
the subsequent contract concluded between it and the Municipality was valid and
binding on the Municipality. The Applicant prayed that the Municipality be directed to
give effect thereto. This prayer must fail as Niemand was not authorised to award the
tender or conclude the contract . The tender's award and the contract's conclusion
were unlawful, ultra vires , invalid, and void. In making this finding, the Court accepts
that the sequence of events involving Manel and Niemand from when Manel
informed Niemand of the BAC’s deliberations, the award of the tender, the
conclusion of the contract , and Niemand’s withdrawal of the award letter , as outlined
by the Responden ts, is credible. The award of the tender , which was one of six that
were determined on 23 August 2024, thereby confused Niemand as to which tenders
the BAC had the authority to award and which it did not. It is a reasonable
explanation . The Court also acce pts that the Municipal Manager did not have sight of
the tender after the BAC awarded it until a hard copy was presented to him on 19
September 2024 , when the bid validity period had expired . No other version was
placed before the Court , and t he Applicant was unable to counteract any of this
evidence with facts .

59. The second prayer is premised upon a valid award and contract emanating
from Niemand’s actions. As the Court has found that no lawful award had been
made , and the award and contract was invalid, ultra vires and void , the second
prayer , as an alternative to the first, where the Applicant requested that the
Respondents be directed to take all steps anticipated under section 33 of the MFMA
contract , has to fail.

60. The following order sought was premised upon the Applicant failing to
persuade the Court that Nieman d’s award notifications and the contract were valid.
In the alternative, it asked the Court to review and set aside the Municipal Manager’s
failure to consider and decide the BAC’s recommendation of 23 August 2024 before
the expiry of the bid validity period. The Applicant relie d upon section 6(2)(g) as
amplified by section 6(3) (a) of PAJA for this relief. The Applicant thus asserted that
the Municipal Manager had a duty to take a decision in circumstances where the
period within which the decision had to be taken is not prescrib ed by law , and he
failed to take the decision . The Applicant is thus before the Court as far as this order
is sought, for a review of the Municipal Manager’s failure to make the decision on the
grounds that there has been an unreasonable delay in making the decision.

61. The Applicant acknowledged th e Respondent’s case that the Municipal
Manager was the only person with the authority to make the final award of the
tender.18 Applicant again , relying on the Respondent’s version, asserts that the
Municipal Manager failed to consider or make any decision concerning the final
award of the tender and instead allowed for the tender validity period to expire on 30
August 2024. The Applicant contends that the Municipal Manager allowed the tender
validity period to expire. The factual basis sketched by the Applicant for the order
sought does not accord with the Respondents’ evidence. The Municipal Manager
stated in the answer ing affidavit that he received a hard copy of the BEC and BAC
recommendations from Manel on 19 September 2024 for his consideration and
award. When he began to peruse the recommendations, he noticed the bid was valid
until 30 August 2024. He asked for a legal opinion , which indicated that there was no
valid tender, and the process had been concluded. He could not award the tender
and “refused to award the tender to the Applicant.”19 The evidence in the answering
affidavit is that the Municipal Manager made a decision: he refused to award the
tender to the Applicant.20 The Applicant’s reply to the Municipal Manager’s answer
was that it did not fall within the Applicant’s personal knowledge , was at odds with
what the Applica nt stated in the founding affidavit, or was legally unsustainable. That
would have been the end of the request for judicial review , but for the content of the
Municipal Man ager’s letter of 10 October 2024 . In his letter to the Appli cant dated 1 0
October 2024, the Municipal Man ager stated that he was no longer entitled to make

18 The Applicant resorted to linguistics to escape acknowledging that the SCM regulations and
policy mandate the Municipal Manager with the exclusive task of making the final award in the
tender involved in this case. The Applicant stated that it was common cause that this is what
the Respondent contended .
19 Paras 41-44 of the Respondents’ answering affidavit
20 Para 44, answering affidavit
any award after considering the BAC’s recommendation , as the bid validity period
had expired . The evidence in the letter would suggest a contrary view, i.e., that he
did not make any decision about the t ender.

62. The Court shall proceed on the Applicant’s assumption that the Municipal
Manager failed to make a decision. The Applicant summarised the consequences of
the Municipal Manager’s alleged inaction. The costs of the tende r process , which
included the employment of Consulting Engineers , were wasted . The BEC and BAC
recommendations served no purpose. The Applicant progressed from being the
successful bidder with the unsuccessful bidders being notified, to having to compete
again in a fresh bidding process. The Municipal Man ager did not explain his failure to
act and to allow the tender validity period to expire. The Applicant cited section
62(1)(a) of the MFM A that requires the Municipal Manager to ensure that the
Municipality has and maintains a n efficient and transparent supply chain
management system. Regulation 5(2) provides that the Municipal Manager must
implement the supply chain management policy fairl y, equitably and transparently .
The Applicant provided extensive written argument as to why the Municipal Manager
should have acted before the bid validity period had expired.

63. The Municipal Manager’s functions include ensuring compliance with
procurement laws, overseeing the tender process, and approving tenders above
certain thresholds. He must ensure that the tender process adheres to principles of
fairness, transparency and competitiveness as outlined in section 217 of the
Constitution. The Municipal Manager contended that he was not privy to or involved
in the BEC and BAC process . He relies on and acts upon written recommen dations
received from the BAC. The Applicant does not seek a review of the Municipal
Manager’s failure to extend the bid validity period . It had made out a case that the
Municipal Manager had extended the previous bid validity periods . Still, it does not
rely on this a spect for judicial review under the order it seeks. Section 22(h)( ii) of the
Municipality’s Supply Chain Management policy requires the SCM Department to
extend the bid validity period provided the original period had not expired, a nd all
bidders are allowed to participate . Section 22 (h) (v) states that if the validity of all
bids expired without it being awarded within the bid validity period , including any
extensions allow able in terms of applicable legislation, the bid must be ca ncelled and
published in the same media in which the original bid invitation appeared. Section
53(1) and (3) states that successful and unsuccessful bidders shall be notified in
writing by the Supply Chain Manage ment once a bid has been accepted and
awarded . A supply chain management unit of a municipality operates under the
supervision of the Chief Financial Officer

64. There is no evidence before the Court that the Municipal Manager was
obliged to ensure that he obtained the BAC recommendati ons immediately after the
BAC’s deliberations. The Municipal Manager's evidence is that he obtained the
recommendations from Manel , who served as the secretary of the BAC. He received
the documents twenty days after the bid validity period expired. According to the
Municipality's supply chain management policy, the Municipal Manager is not
responsible for extending the bid validity period . There is thus no breach of any legal
duty. The Municipal Manager acted within the law when he declined to make t he
award. Furthermore, there is no evidence to suggest that the Municipal Manager did
not act when he obtained the recommendations . His actions were neither
procedurally unfair , unlawful , nor unreasonable . To the contrary, his actions were
lawful .

65. The following order sought by the Applicant is premised upon the Court
finding that the Municipal Manager failed to make a decision. The Applicant relied
upon section 8(1)(c)(ii) of PAJA for the Court to replace and substitut e the Municipal
Manager’s decision awarding the tender to the Applicant. The second part of
paragraph 5 of the notice of motion seeks orders in the alternative under section
8(1)(c)(i) of PAJA to remit the matter to the Municipal Manager to consider and make
a decision within a period to be determined by the Court. In the third alternative, the
Applicant seeks an extension of the bid validity period under section 172 (1)(b) of the
Constitution.21


21 ‘However, under section 172(1)(b) of the Constitution, a court deciding a constitutional matte r
has a wide remedial power. It is empowered to make “any order that is just and equitable”. So
wide is that power that it is bounded only by considerations of justice and equity. ’ Gijima at para
53
66. The Applicant relied on Trencon for substituted relief.22 A Court has a
discretion under s ection 8(1)(c)(ii)(aa) of PAJA to make a substitution order in
exceptional circumstances. If the Court is satisfied there are exceptional
circumstances , it must still determine whether it would be just and equitable to make
the order.23 Exceptional circumstances comprise a three-stage enquiry . The first is
whether the outcome would be a foregone conclusion , and it would be a waste of
time to order the tribunal or functionary to reconsider the matter. The latter applies
where a delay would prejudice the Applicant in circumstances where time is
valuable, and any time lost would be significant. The second consideration is
whether the tribunal or functionary has exhibited bias or incompetence to such a
degre e that it would be unfair to require the applicant to submit to the same
jurisdiction again.24 The third is whether the Court is in as good a position as the
administrator to make the decision .

67. The Court is not in as good a position as the Municipal Manager or the
Municipal Council to decide on the tender award and the contract. The final
decisions are polycentric and policy -laden . The outcome depends upon the
Municipality’s financial obligations, tariffs and revenue, and feedback from the p ublic
participation program. National and provincial interests , like budgets and
environmental issues, are invoked in the final decision -making . The remedy sought
in circumstances where the Municipal Manager has made a decision , albeit
unfavourable to the Applicant, is not competent. Even if the Court were to suppose
that the Municipal Manager did not make a decision, the outcome would not have
been a foregone conclusion , as the Municipal Manager’s decision on whether to
award the tender would have been influenced by the obligations inherent in section
33 of the MFMA. S ection 33(c) of the MFMA stipulates that the Municipal Council
must adopt a resolution in which it autho rises the Municipal Manager to sign the
contract on behalf of the Municipality.


22 Trencon Construction (Pty) Limited v Industrial Dev elopment Corporation of South Africa
Limited and Another (CCT198/14) [2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR
1199 (CC) (26 June 2015)
23 Trencon supra at paras 34 and 35
24 Trencon at para 38, Livestock and Meat Industries Control Board v G arda 1961 (1) SA 342 (A),
Johannesburg City Council v Administrator, Transvaal, and Another 1969 (2) SA 72 (T)
68. The Municipal Manager refused to award the tender to the Applicant as the
bid validity period had expired. The Applicant is the incumbent service provider
administer ing and operat ing the Municipality’s landfill site. The Applicant argue d that
it would be prejudiced if required to bid once again . Its tender price is no longer a
secret , as it is revealed in the papers, and would be exploited by other bidders . The
Applicant revealed its tender price in one of the annexures to its founding affidavit ,
and any prejudice suffered is of its own making . The Applicant has not proven that
the Respondents are biased towards it or incompetent to such a degree that it would
be unfair to submit it to the same jurisdiction again. It does benefit from work ing with
the Municipality. The Applicant has not found any fault with the evaluation and
adjudication of its bid. The Municipality has explained that it does not handle bids
over R10 million often and has explained how the error occurred . The Court accepts
that explanation.

69. The remedy sought by the Applicant in the alternative , i.e., to remit the matter
to the Municipal Manager to consider and make a decision requires the Court to go
beyond Takubiza Trading regarding the retrospective extension of the bid validity
period, Merifon relating to non -compliance of a mandatory statutory provision, and
the unlawfulness of Niemand’s actions . The relief sought by the Applicant must suffer
the same fate as its request for judicial review under section 6(2)(g) of PAJA. There
is nothing to substitute, replace, or remit in circumstances that would transgress the
law. There are no grounds for the Court to entertain the remed ies sought or the
alternative to the latter, i.e. , to extend the bid validity period under section 172 (1)(b)
of the Constitution .

70. The further orders sought by the Applicant that in the event this Court remit
the matter to the Municipal Manager, and he awards the tender to the Applicant , the
Respondents are directed to give effect to the provisions of section 33 of the MFMA
and that the purported withdrawal of the tender on 27 September 2024 is reviewed
and set aside , cannot be granted . The Court declines the invitation to direct the
Municipal ity to give effect to section 33 of the MFMA as an order of that nature ,
which risks offending the separation of powers doctrine.

The Counterapplication

71. The Respondents raise d the counterapplication to review and set aside
Niemand’s ‘series of administrative errors’ and actions because they were
unauthorised, unlawful, and ultra vires of the MFMA and Municipalities Supply Chain
Management Policy and thus breached section 217 of the Constitution. The
Respondents sought a legality review .25 The Respondents submitted that seeking
such relief as a reactive challenge to the application is appropriate .26 Niemand’s
decisions were in breach of the SCM policy and thus in breach of section s 1(c) and
217, as well as section 19527 of the Constitution. A local government may only act
within the powers lawfully conferred on it.28 The exercise of public power which is at
variance with the principle of legality is invalid.29 An organ of s tate may seek a review
of its own decision through the principle of legality.30 The provisions of the MFMA
ensure proper fiscal management of municipalities.31 The Respondents contend that
they correctly raised a reactive challenge to the Applicant’s attem pt to enforce an
otherwise unlawful contract.32 Out of an abundance of caution and given the large
and irregular expenditure of public funds, the Municipality seeks in its
counterapplication, declaratory, or review relief of Niemand’s conduct and the
contr act concluded with the Applicant. The Municipality alleges that since 30 October
2024 and 29 November 2024, it has had to decide how best to address the
administrative error, given that the state organs generally cannot proceed with the
review under PAJA.


25 State Information Technology Agency SOC Limited v Gijima Ho ldings (Pty) Limited
(CCT254/16) [2017] ZACC 40; 2018 (2) BCLR 240 (CC); 2018 (2) SA 23 (CC) (14 November
2017) (‘ Gijima ’) at para 41
26 A reactive challenge is typically invoked by a party seeking to defend itself against the
enforcement of an administra tive decision or action .
27 Steenkamp v Provincial Tender Board , Eastern Cape 2007 (3) SA 121 (CC)
28 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council [1998]
ZACC 17 ; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) ( Fedsure ) at para 58
29 Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the RSA 2000 (2)
SA 674 (CC) at para 17
30 Gijima at para 41
31 Merifon at paras 15 -22
32 Merifon at para 43 -46, Gobela Consulting CC v Makhado Municipality (910/19) [2020] ZASCA
180 (22 December 2020) at paras 17 -22, Kunene Rampala Inc v North West Province
Department of Education and Sport and Development (460/2022) [2023] ZASCA 120 (15
September 2023) at paras 21 -27
72. The Applicant pointed out that the Respondents should have sought a legality
review .33 Surprisingly, it oppose d the counterapplication. The Applicant contended
that the Municipality , as the original decision maker, cannot collaterally challenge its
decision while simultaneously seeking a legality review.34 The Municipality should
have applied for a legality review and not waited for the Applicant to seek
enforcement. The Applicant contended that the counterapplicati on was only initiated
after the Applicant sought specific performance , indicating that it is a defensive
strategy rather than a bona fide review application . The Municipality failed to act
promptly despite knowing of the alleged irregularities before litig ation commenced.
The Municipality c ould not disown its own administrative actions to escape
contractual obligations.

73. The Municipality asserted that it was entitled to raise a reactive challenge to
the application. The law relating to reactive and collateral challenges is settled .35 The
facts of each case determine whether a reactive challenge should be available
where justice requires it to be.36 The Respondents raised their reactive challenge as
a defence to the appli cation to validate a patently unlawful award and contract , as a
precaution against an invalid award and contract remaining valid .37 The
Respondents complied by initiating the counterapplication as due process.38 The
evidence does not support the Applicant’s assertion that the Respondents reacted as
a defensive strategy. The Applicant also suggested that the Municipality did not
institute the self -review within a reasonable time. The Applicant’s reliance on Gijima
to support the delay that ensued before the Municipal Manager considered the
BAC’s recommendations is misconceived. The court in Gijima had to deal with a
lengthy delay when ‘the ability to evaluate an allegation of illegality fully is

33 The Applicant’s attorney suggested this in a l etter to the Municipal Manager on 22 October
2024
34 Collateral challenges allow a party to argue the invalidity of an administrative action without
formally applying for its review
35 Merafong City Local Municipality v AngloGold Ashanti Limited (CCT106/15) [2016] ZACC 35;
2017 (2) BCLR 182 (CC); 2017 (2) SA 211 (CC) (24 October 2016) , Gobela Consulting CC v
Makhado Munic ipality (910/19) [2020] ZASCA 180 (22 December 2020) , , Department of
Transport and Others v Tasima (Pty) Limited [2016] ZACC 39 ; 2017 (1) BCLR 1 (CC); 2017 (2)
SA 622 (CC) para 140
36 Merafong at paras 43 -45
37 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA)
38 Gijima at para 50, MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd t/a Eye and
Lazer Institute [2014] ZACC 6 ; 2014 (3) SA 481 (CC); 2014 (5) BCLR 547 (CC) ( Kirland )
impaired’.39 That i s not the case in this matter. On 28 October 2024, the
Respondents informed the Applicant that they were initiating a ‘judicial’ review .

74. The Applicant accuse d the Municipality of selectively relying on the applicable
legislation to justify an unlawful attempt to undo a valid and binding tender award .
Section 33 d id not prohibit the award of a contract , as it merely require d additional
oversight for financial plannin g. Any failure to comply with section 33 was an internal
governance issue which d id not automatically render the contract void. The
Municipality should have remedied any non -compliance through proper internal
procedures rather than attempting a unilateral withdrawal of the tender. The
Municipality alleged a breach of section 217 of the Constitution but failed to explain
how the procurement process was unfair, inequitable or non -transparent. A mere
procedural lapse d id not equate to a constitutional violatio n. It should have been
corrected internally without seeking to nullify a validly concluded contract. The rule of
law d id not permit the Municipality to evade its obligations under the guise of
financial concerns or administrative errors.

75. Again, the submissions made by the Applicant do not reflect the evidence.
Both the BEC and BAC recommended the Applicant as the successful tenderer ,
subject to the process under section 33 of the MFMA. The award of the contract
remained in abeyance until the Muni cipal Man ager and the Municipal Council
discharged their obligations under section 33 of the MFMA. The Municipal Council
could have only resolved to pass the contract on completion of the process , as the
BEC specifically reminded it to approve the contract as it is to be executed.40
Without compliance with section 33 , there was and is no valid contract.

76. The Applicant argued ‘substantial compliance’ with the applicable legislation to
avoid the cancellation of the ostensible award and the contract. A tender process
tainted by unlawful ness and lack of authority is invalid and not compliant with section
217 of the Constitution .41 Niemand's ostensible award of the tender and the contract
by Niemand and van Eck were unauthorised, unlawful, ultra vires , void and invalid .

39 Gijima at para 43
40 See the deliberations of the BEC at 009 -93
41 Gobela supra, Quaken i supra
The Court has no hesitation in making the declaratory orders sought by the
Respondents.

Miscellaneous Matters

77. The application and counterapplication were enrolled as urge nt applications
and proceeded under Rule 6 (12) of the Uniform Rules of Court . The Court rejected
the submissions that the application and the counterapplication were urgent, but
agreed to hear them expeditiously . Neither party sought the record under Rule 53 but
criticised the other for failing to do so. The Applicant sought amendments to its notice
of motion twice. The Respondents objected to the amendments. The Court has
allowed the Applicant’s second set of amen dments as Respondents’ Counsel
acknowledged he had prepared to argue the matter based on the second set of
amendments. This is not to say that the Court accept ed the Applicant’s explanation
for the late notice of intention to amend or was oblivious that th e Applicant had
materially changed its case from that initially formulated . The Respondent s were
justified in objecting to the amendments , and as the outcome is in their favour, they
will be entitled to the costs of their objection.

78. As for the costs, the re is no reason why they should not follow the result. The
order that follows will reflect this.

CONCLUSIONS

79. The Applica nt tendered to administer and operate the First Respondent’s
regional waste disposal facility . The First Respondent’s BEC and BAC recommended
the Applicant as the favoured bidder , subject to the award being made by the Second
Respondent following the section 33 process prescribed by the MFMA. The
Municipal Manager was the only authorised person who could have made the award.

80. The BEC and BAC recommendations were submitted to the Second
Respondent beyond the bid validity period. However, in the interim between the
BAC’s recommendation and before the bid validity period expired, the First
Respondent’s Supply Chain Management Pr actitioner awarded the tender
conditionally to the Applicant. The practitioner subsequently confirmed the award
after notifying the unsuccessful tenderers and securing the signature of the First
Respondent’s Executive Director of Technical Services and BAC member to
conclude the contract on behalf of the First Respondent. Neither the practitioner nor
the director was authorised to perform any of these administrative actions. The
practitioner withdrew the letter of notification of the award once she realised her
error.

81. The Second Respondent referred the tender for legal opinion once he realised
that the tender’s b id validity period had expired. In the correspondence that ensued
after the Supply Chain Management practitioner withdrew her letter of notification of
the award , the Applicant insisted that the award and contract were validly made and
demanded specific performance of the contract . The Respondents explained that the
award and contract were erroneously made as the practitioner and Director were not
authorised to do as they did , and that the tender process was completed
unsuccessfully once the bid validity period had expired. The Applicant threatened
litigation to enforce the contract . The Respondents informed the Applicant that they
intended to review the tender's a ward and the contract's conclusion to set them
aside.

82. The Court has considered and declined the relief pursued by the Applicant but
has granted that sought by the Respondents with costs.

ORDER

In the premises, the order is as follows:

1. The Application is dismissed.

2. The Counterapplication:

2.1 It is declared that the First Respondent’s ostensible award of the
tender T2023/023 for the operation and management of the regional
waste disposal facility to the Applicant as per the First Respondent’s
letters dated 26 August 2024 and 17 September 2024 is void, invalid,
and of no effect.

2.2 It is declared that the ostensible contract concluded on 31
August 2024 between the Applicant and the First Respondent is void,
invalid , and of no effect .

3. The Applicant shall pay the Respondents' taxed or agreed party and party
costs and Counsel’s taxed or agreed fees on scale C for the application
and counterapplicatio n.

4. The parties shall bear their own costs for the hearing scheduled for 18
February 2025.


________________________
Bhoopchand AJ
Acting Judge
High Court
Western Cape Division


Judgment was handed down and delivered to the parties by e -mail on 5 May 2025

Applicant’s Counsel: S Aucamp
Instructed by : Jacques Classen Inc .
Respondent’s Counsel: L W Acker mann / DM Lubbe
Instructed by Rufus Dercksen Inc.