(1) REPORTABLE: NO REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
16 May2025 1
Case No: 2024-031868
In the matter between:
INDEPENDENT DEVELOPMENT TRUST (IDT)
(Registration No. IT669/91)
TEBOGO MALAKA N.O
ZIMBINI HILL N.O
THIMOTHY SUKAZI N.O
DR MICHAEL SUTCLIFFE N.O
PROF. RAYMOND NKADO N.O
KARABO SIYILA N.O First Applicant
Second Applicant
Third Applicant
Fourth Applicant
Fifth Applicant
Sixth Applicant
Seventh Applicant
2
LERATO KUMALO N.O Eighth Applicant
PRUDENCE MKHWANAZI N.O Ninth Applicant
MPILO MBAMBISA N.O Tenth Applicant
KRISHEN SUKOEV N.O Eleventh Applicant
ADV LUFUNO NEVONDWE N.O Twelfth Applicant
REHANA PARKER N.O Thirteenth Applicant
And
MOEPATHUTSE PROPERTY INVESTMENTS (PTY) LTD Respondent
(Registration No. 2015/114982/07)
JUDGMENT
MYBURGH, AJ
INTRODUCTION:
3
[1] The Applicant s are the Independent Development Trust, registered as such, being
a Schedule 2 state -owned entity and programme implementation agency as
prescribed by the Public Finance Management Act 1 of 1999 (PFMA) , represented
herein by its current trustees, the second to thirteenth applicants. In this judgment
I will refer to the Applicants jointly as “the IDT” .
[2] The IDT launched an application seeking an order that the IDT’s decision , taken
on 04 November 2022, to award the bid to the respondent to provide suitable office
space at 48 Sovereign Drive, Building B, Route 21 Corporate Park, Irene, Pretoria
to the IDT for a period of sixty (60) months is declared constitutionally invalid,
reviewed, and set aside .
[3] The IDT further sought an order declaring that a ny contract and/or lease
agreement and/or service level agreement concluded between the IDT and
respondent pursuant to the decision to award the bid to the respondent , is declared
null and void ab initio .
THE CONSTITUTIONAL AND LEGISLATIVE FRAMEWORK :
[4] At the onset of the hearing it was common cause that the review being sought was
a legality review . As again stated by Ponnan JA in Altech Radio Holdings (Pty)
Ltd and Others v City of Tshwane Metropolitan Municipality 2021 (3) SA 25
(SCA ) at para 71, ‘[t]he objective of state self -review should be to promote open,
responsive and accountable government. ” The relief being sought should be
considered against the prescripts of the applicable constitutional and legislative
framework, being s ection 217 read with section 172(1)(b) of the Constitution , the
Preferential Procurement Policy Framework Act 5 of 2000 ( “PPPFA ”’) and the
Public Finance Management Act 1 of 1999 (“PFMA”) .
[5] In addition, the IDT relied of its own Supply Chain Management Policy (“SCM
policy” ), which was drafted to give effect to its Constitutional and legislatively
4
imposed procurement duties. Regulation 16A3.1 and 16A3.2(a) of the Treasury
Regulations issued pursuant to section 76 of the P FMA require the development
and implementation of an effective and efficient supply chain management system
for the acquisition of goods and services that must be fair, equitable, transparent,
comp etitive and cost -effective. Such system should therefore echo section 217 of
the Constitution.
[6] Section 217 of the Constitution lays down the threshold requirements for a valid
procurement process, being a process which is “ fair, equitable, transparent,
competitive and cost effective ”. See in this regard Buffalo City Metropolitan
Municipality v Asla Construction (Pty) Limited 2019 (4) SA 331 (CC) at para
89.
[7] As referenced with approval by Theron J in Buffalo City , the SCA commented on
these Constitut ional requirements in Premier of the Free State Provincial
Government and Others v Firechem Free State (Pty) Ltd 2000 (4) SA 413
(SCA), at para 30, as follows:
“One of the requirements of such a procedure is that the body adjudging tenders be
presented with comparable offers in order that its members should be able to compare.
Another is that a tender should speak for itself. Its real import may not be tucked away,
apart from its terms. Yet another requirement is that competitors should be treated equall y,
in the sense that they should all be entitled to tender for the same thing. Competiveness
is not served by only one or some of the tenderers knowing what is the true subject of
tender.”
THE EVIDENCE CONSIDERED:
HEARSAY EVIDENCE:
[8] At the onset of the matter, I was requested to rule on the admissibility of the
hearsay evidence proffered by the IDT. The Founding Affidavit identified such
5
hearsay evidence as the evidence that related to one Mr Meyer, who refused to
depose to a confirmatory affidavit.
[9] In its Replying Affidavit t he IDT however sought the admission of the hearsay
evidence both related to Meyer as well as Ms Moloi , albeit that the hearsay
evidence of Ms M oloi was limited to the hearsay evidence of impropriety of her
then boss, Mr Mathikhi .
[10] In argument of the ruling it was pointed out to the representatives of the IDT that ,
notwithstanding the Founding Affidavit referenc ing confirmatory affidavits of both
Ms Moloi (referred to as Annexure “FA3” ) and Mr Makhura, the Acting General
Manager of the SCM in the IDT at the time (referred to as Annexure “FA28” ), no
such affidavits were attached. Thus , any reference to the evidence of Ms Moloi
and Mr Makhura would constitute hearsay evidence.
[11] The IDT then applied, in terms of Section 3( 1)(c) of the Law of Evidence
Amendment Act 1988 for the admission of the hearsay evidence , which reads as
follows:
(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted
as evidence at criminal or civil proceedings, unless -
(c) the court, having regard to -
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might
entail; and
6
(vii) any other factor which should in the opinion of the court be taken
into account,
is of the opinion that such evidence should be admitted in the interests of
justice.’
[12] Some of the hearsay evidence involve d a first -hand account of a past event . This
was limited to the evidence of Moloi and Meyer confirming a visit to a property of
the Respondent by representatives of the IDT on 9 M arch 2022 , at which meeting
Mr Mathikhi , a representative of the IDT, arrived in the same vehicle as one Mr
Mathebula , who was a director of a company that performed property management
services for the Respondent. On a reading of the application these facts were
common cause.
[13] The hearsay evidence of Mr Makhura was limited to a general confirmation of non-
compliance with the SCM Policy , applicable legislation, and processes. His
evidence, if allowed, would constitute an attempt to usurp the functions of this
Court. There was in any event no explanation why a confirmatory affidavit by
Makhura , which was referenced in the Founding Affidavit, was not attached.
[14] In paragraph 25 of the Founding Affidavit the deponent states that the arrival of
Mathikhi accompanied by Mathebula , at the property on 9 March 2022 , “caused
grave concern” . The deponent was not present and such concern is not attributed
to any person. Similarly, and in paragraph 26 of the Founding Affidavit, mention is
made of specific statements made by Mathebula to Mathikhi during such visit.
Again, this is not attributed to any person who might have overheard it and is
denied by the Respondent . The deponent was not at such visit. This hearsay
evidence was oblique and depended on speculation and inference. See in this
regard S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) para 44. As the
deponent failed to identify the source, such hearsay evidence also conflicts the
requirements set out in Galp v Tansley NO & Another 1966 (4) SA 555 (C) at
559G .
7
[15] I further considered the proba tive value of the disputed hearsay evidence. I find
the probative value to be minimal. The Court has been provided with a detailed
and complete record of decision , which contains all relevant minutes of meetings
and documents related to the award of the tender to the Respondent. I further
considered the prescripts of the matter Plascon -Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd 1984 3 SA 623 (A) at 634.
[16] It was evident that the application in terms of section 3(1) (c) was, at least in part,
necessitated by the IDT’s failure to ensure that confirmatory affidavits , which were
available , were attached to its Founding Affidavit .
[17] There is similarities between the present matter and the matter of Swifambo Rail
Leasing (Pty) Limited v Passenger Rail Agency of South Africa 2020 (1) SA
76 (SCA) , where Lewis JA stated, in paragraph 19 that ‘ …while hearsay evidence
is generally not permitted in affidavits, where there is no reason to doubt the
reliability of the allegations made, they are uncontested, and the deponent says he
believes them to be true, they will be admissible .” In that matter , also a self-review
application, the Court a quo , correctly, allowed hearsay evidence . One of t he
distinguishing factor s between that matter and the present is however that the
documentary evidence in Swifambo supported the hearsay evidence, where in
the present matter it did not.
[18] Taking all factors into account I ruled that the hearsay evidence of Meyer, Moloi
and Mak hura was not admissible save insofar as such evidence was common
cause . I was not convinced that the interests of justice demanded such inclusion .
Such ruling also excluded the hearsay evidence of which the source was not
identified.
THE IDT’S SUPPLY CHAIN MANAGEMENT POLICY :
[19] Central to the IDT’s arguments advanced was their own Supply Chain
Management Policy (“SCM policy”) . A SCM policy was incorporated into the Rule
8
53 record filed and was also attached to the Founding Affidavit as Annexure
“FA27” . Although its attachment and reliance elicited no specific dispute from the
Respondent, such SCM policy, as placed before Court, only took effect on 26 June
2023 . There was no evidence or argument as to the exact policy applicable during
the period March 2022 to 10 November 2022 , the latter being the date on which
the tender was awarded to the Respondent.
[20] The deponent to the Founding Affidavit makes specific mention of the SCM policy
in paragraphs 58 to 60 of the Founding affid avit, quoting from clause 13 of such
policy. The Respondents took no issue with the quoted passage, save to dispute
any breach thereof.
[21] I therefore proceed with the judgment on the basis that the SCM policy in effect
during the period 9 March 2022 to 10 November 2022 was, at least insofar as the
IDT referred to or relied on specific clauses thereof which the Respondent did not
dispute , similar to the policy attached.
CHRONOLOGY OF EVENTS:
[22] On 23 February the Board of the IDT resolved to sell office its offices at Glenwood
Office Park. As such the IDT was in need of alternative offices.
[23] On 09 Mar ch 2022 certain representatives of the IDT visited buildings, including
one of the Respondent's propert ies, desc ribed as 48 Sovereign Drive, Building B,
Route 21 Corporate Park, Irene, Pretoria . The representatives were Ms Moloi, Mr
Meyer and Mr Mothikhi. Their visit to this property was not pre -arranged.
[24] On 22 Apr il 2022 there was a meeting of the IDT’s Bid Specification Committee
(“BSC ”), which resulted in the publication of the Bid. This meeting was attended by
Sam Mathikhi, Theuns Booysens, Melvil -Eugene Moroka, Bongek ile Goqo and
Sam Makhura.
9
[25] On 16 May 2022 Mr Sam Mathikhi was appointed as the Chairperson of Bid
Evaluation Committee (“BEC”) . On 17 May 2022 Ms Mahali Moloi and Mr Pikkie
Meyer were also appointed as member s of BEC.
[26] On 19 May 2022 the BEC met.
[27] At some point after 19 May 2022 the bid was cancelled. According to the IDT this
was done due to the insistence of the Minister of Publick Works, who is the
Executive Authority of the IDT, that the specification should include norms and
standards.
[28] On 1 Aug ust 2022 the Acting CEO of the IDT appoint ed the members of the B SC
to redraft the specification and terms of reference . Mr Sam Mathikhi was appointed
as Chairperson of the BSC.
[29] On 8 Aug ust 2022 the BSC met and approve d the specification s and terms of
reference , and on 12 Aug 2022 the second Bid was advertised.
[30] On 19 Aug ust 2022 a compulsory briefing session took place, and on 2 Sep tember
2022 the bid closed.
[31] On 13 Oct ober 2022 the BEC met to consider and decide on the tenders received .
In total, six tenders were received . It was decided to award the tender to the
Respondent. On 21 October 2022 the IDT’s Management Bid Adjudication
Committee (MBAC) met and, after considering the BEC decision, did not award
the bid to the respondent . Certain concerns were raised , being the preferential
point system used ( 80/20 and not 90/10 ), inclusion of preferential points for the
recommended bidder , signing of the COC for the recommended bidder and a
calculation error.
[32] On 2 November 2022 the BEC resubmitted its finding to the MBAC, addressing
the concerns raised , and on 4 November 2022 the MBAC approved the award ing
of the tender to the Respondent.
10
[33] On 2 Dec ember 2022 a Lease Agreement was concluded betwe en the IDT and
the Respondent, which commenced on 1 January 2023.
[34] On 16 January 2023 a Proposed Floor Plan was submitted by the IDT to the
Respondent , follo wed, on 27 Jan uary 2023 , by an amended Proposed Floor Plan .
On 20 Feb ruary 2023 the IDT sen t the approved Floor Plan to the Respondent .
During April 2023 the b uilding was ready for occupation by the IDT . The IDT's
board of trustees inspect ed the building and f ound no faults or "snags" .
[35] On 18 Apr il 2023 the respondent place d the IDT in mora through a written letter of
demand . On 4 Sep tember 2023 the Respondent institute d action against the IDT .
[36] On 8 Feb ruary 2024 the Respondent cancel led the Lease Agreement .
[37] On 26 Mar ch 2024 this r eview Application was launched.
[38] At no time did the IDT take occupation of the leased premises.
OVERVIEW OF THE TENDER EVALUATION PROCESS:
[39] A total is six tenders were received and considered by the IDT’s BEC. During the
administrative compliance stage four tenders were rejected, for the reasons as
evidenced in the table below :
11
[40] The outcome of the technical evaluation scoring on the two remaining tenders were
as follows:
[41] Both tenders therefore reached the minimum threshold of 70 points, whereafter
the BEC proceeded with consideration of price and BBBEE. The outcome of such
is reflected in the table below.
• Name of Contractor Bid price (Inclusive I Outcomes I ofVATI
Submitted a letter from the building
architect instead of a SAPOA RATING
CENTURION VISION R 69 009 495,42 CERTIFICATE
DEVELOPMENT Eliminated from further evaluation
All mandatory documentation submitted I SKGAFRICA R 59 549 686,32 are fully compliant
Recommended for further evaluation v- Submitted an Area Certificate instead of
RIVERWALK OFFICE R 88 993 316,50 a SAPOA RATING CERTIFICATE
I PARK Eliminated from further evaluation
Did not submit SAPOA RATING -
MOWANA PROPERTIES R 79 905 488, 76 CERTIFICATE
Eliminated from further evaluation -·-
I MOEPATHUTSE
PROPERTY R 45 240 273,07 All mandatory documentation submitted
are fully compliant
INVESTMENT Recommended for further evaluation
DELTA PROPERTY Did not submit SAPOA RATING
FUND R 65 771 296, 10 CERTIFICATE
Eliminated from further evaluation
WANDILE PHASHA .
AVERAGE I OUTCOM E CHRIS
SCORE
I SKGAFRiCA 64 63 ·-' 88 85 I Recommended for
further evaluation.
MOEPHATHUTSE 96 98 97 97 Recommended for
PROPERTY further evaluation .
INVESTMENT ---
12
[42] I interpose to state that once the minimum threshold in points was reached , and i n
terms of section 2(1)(f) of the PPPFA the tender had to be awarded to the highest -
scoring tenderer, u nless objective criteria justifie d the awarding of the tender to
another. The Respondent was the highest scoring.
GROUNDS OF REVIEW:
[43] In the Heads of Argument submitted on behalf of the IDT, six grounds for review
was identified and elaborated on. However, and at the onset of the hearing of this
matter, Mothepe SC, on behalf of IDT, indicated that they were only persisting with
four of the six grounds. The second and third grounds for review, as set out in the
IDT’s Heads of Argument were not persisted with, and as such will not b e further
discussed in this judgment.
[44] In the first ground of review the IDT submits that the exercise of power by the IDT
and its officials must be consistent with the law, including section 217(1) of the
Constitution. It was further required to comp ly with the PPPFA and its own SCM
policy.
[45] It is submitted that the IDT failed to comply with section 217(1) of the Constitution,
thus resulting in a decision to appoint the Respondent which is unreasonable
B-BBEE Status Level of PRICE POINTS (80) Contributor
GRAND
NAME OF Total Total TOTAL NO. TENDERER B-BBEE Tendered Price (G1J BBBEE Stetus Level Points (20) Price/Financial Points ,.
of Contributor Offer (Vat Include) (80)
A B GT=A-tB
M0EPATHUTSE
1 PROPERTY 1 20 R45,240,273.07 80.00 100
INVESlMENT
2 SKGAFRICA 2 18 R59,549,686.32 54.70 72.70 '
13
and/or unlawful and/or irrational and/or pr ocedurally irrational that no reasonable
person could have so exercised the IDT’s power or performed the IDT’s function.
[46] The fourth ground of review advanced by the IDT is that the exercise of power by
the IDT and its officials must be consistent with the law, including clause 12.3 of
the SCM policy. According to the IDT the decision to appoint the Respondent to
provide suitable office accommodation did not comply with the said clause.
[47] IDT therefore argues that the decision to appoint the Respond ent to provide
suitable office accommodation was not fair, equitable, and transparent. It contends
that it was so unreasonable and/or unlawful and/or irrational and/or procedurally
irrational that no reasonable person could have so exercised the IDT’s pow er or
perform the IDT’s function.
[48] The fifth ground of review is that, the exercise of power by the IDT and its officials
must be consistent with the law, including clause 13.1 of the SCM policy, which
clause was not complied with in appointing the Res pondent, which failure made
the decision to appoint the Respondent so unreasonable and/or unlawful and/or
irrational and/or procedurally irrational that no reasonable person could have so
exercised the IDT’s power or perform the IDT’s function.
[49] The si xth ground of review advanced by the IDT is similar to the fifth ground, save
that the sixth ground specifically refers to a contravention of clause 13.1.3(c) of the
SCM policy. Again, according to the IDT, such failure results in the appointment
of the R espondent as being so unreasonable and/or unlawful and/or irrational
and/or procedurally irrational that no person could have so exercised the IDT’s
power or perform the IDT’s function.
[50] In this judgment I will firstly deal with the fourth, fifth and sixth grounds of review,
as all three grounds related to the alleged non -compliance with the SCM policy of
the IDT. Following that, I will deal with the alleged non -compliance with section
217 of the Constitution.
14
REVIEW DUE TO NON -COMPLIANCE WITH THE SCM POLICY :
[51] Prior to dealing with the specific clauses of the SCM policy, relied upon by the
Applicant, it would be appropriate to consider which factual allegations, made by
the Applicant, has been established and should be considered in determining the
legality of t he tender awarded. I have already set out a brief chronology as well as
an overview of the tender evaluation process. All of the facts stated therein has
been established. I have further already dealt with the hearing on the admissibility
of hearsay evi dence supra . It is common cause that officials of the IDT, and on
9 March 2022, visited more than one building. It is common cause that the officials
also visited the building of the Respondent, which visit was not prearranged but
was done on the request of the officials of the IDT after they saw that the building
was available. It is further common cause that various calls were made, as a
consequence of which Mr Mathikhi, a representative of the IDT, arrived at the
building in the same vehicle as Mr Mat hebula, a representative of the
Respondent’s managing agent. Mr Mathebula concedes that, during the visit, he
might have made some positive remarks regarding the availability of the building
for occupation by the IDT.
[52] The IDT submits that an inferenc e of impropriety should be made flowing from the
arrival of these two gentlemen in the same vehicle.
[53] In support of this inference the IDT refers to the inclusion of a cafeteria into the
specific building requirements and specifications which was incor porated into the
subsequent tender. In the founding affidavit the IDT contends that office buildings
do not generally include a cafeteria, and that the cafeteria was included into the
requirements to advantage the Respondent at the expense of other potent ial
bidders by excluding them. It is common cause that the cafeteria carried a weight
of one point during the bid evaluation process, and became irrelevant once the
minimum threshold was reached.
15
[54] The IDT’s contention regarding the cafeteria and its i nclusion into the requirements
is however devoid of any factual basis. There is no evidence before Court
indicating that other bidders were unable to provide such facility. There is no
factual evidence to show that inclusion of the cafeteria into the bui lding
requirements actually constituted some improper advantage to the Respondent.
[55] In the IDT’s founding affidavit it is further stated that, at the meeting of the BSC on
22 April 2022, Mr Mathikhi listed the specific building requirements to form part of
the specifications, including, amongst other things, a canteen or cafeteria, shower s
and a bicycle shed. There is however no mention of showers, or a bicycle shed in
the minutes of such meeting nor in the subsequently published building
requirements. The minutes of the meeting also do not support the statement that
Mr Mathikhi listed t he requirement of a cafeteria. The minutes simply record the
building requirements agreed upon by all members of the BSC.
[56] In its answering affidavit the Respondent vehemently denies any improper
communication between Mathikhi and Mathebula. The answ ering affidavit, to
which was attached a confirmatory affidavit by Mathebula, states that Mathebula
had not had any contact with Mathikhi for at least 15 years. On the day of the visit
the Respondent’s senior property manager, and deponent to the answerin g
affidavit, received a telephone call from the Respondent’s commercial leasing
agent, Bosman, who informed him that people from the IDT apparently drove past
the building, saw the advertisement sign and contacted her. The agent called him
to ask whether it was possible for him to take the building’s keys to the building to
enable the representatives of the IDT to inspect the property. This he did.
According to Mathebula he received a call from Mathikhi on the day in question to
say that Mathikhi wanted to view of the Respondent’s properties that his own
vehicle was unavailable. Mathikhi then asked whether Mathebula was in Pretoria
and if so if Mathebula would mind dropping him off at the property. Mathebula did
not know how Mathikhi came to know that t he property was owned by the
Respondent. According to the Respondent the IDT had leased another property
from the Respondent, in Polokwane, and thus it is possible that Mathikhi
16
recognized the Respondent’s name and knew that Mathebula’s company was the
managing agent for the Respondent. In its answering affidavit the Respondent
assumes that Mathikhi had Mathebula’s telephone number from previous dealings
regarding the property in Polokwane. The Respondent disputes any existing
relationship between Mathik hi and Mathebula. Mathebula accepts that he might
have made positive statements regarding the building itself.
[57] According to the Respondent, and at the end of the visit to the premises, they were
informed that the IDT was scanning the area for suitabl e buildings and would in
due course publish a public invitation to tender.
[58] Having considered all the evidence, and specifically the documentary evidence
recording the tender process, I find myself unable to conclude that the
Respondent’s version “cons ists of bald or uncreditworthy denials, raises fictitious
disputes of fact, is palpably implausible, far -fetched or so clearly untenable that the
court is justified in rejecting them merely on the papers ”. See in this regard
Plascon -Evans referred to supra , and National Director of Public Prosecutions
v ZumaNational Director of Public Prosecutions v Zuma 2009 (2) SA 277
(SCA) at para 26.
[59] On the contrary, a competitive bidding process resulted, in which six bids were
received. The exclusion of certain bidders from further evaluation, objectively, was
because of their failure to submit SAPOA documentation .
[60] The inclusion of the cafeteria as a requirement did not result in the exclusion of
any bidder. Two bidders, including the Respondent, reached the minimum
threshold of 70 points. The tender being awarded to the Respondent, thereafter,
was because of the Respondent’s tender being cheaper and was thus awarded in
compliance with the PPPFA.
[61] Clause 12.3 of the SCM policy reads as follows:
“Ethics and Fair Dealing
17
All staff members of the Independent Development Trust associated with procurement,
particularly those dealing directly with suppliers or potential suppliers, are required:
12.3.1 To recognize and deal with conflicts of interest o r the potential thereof;
12.3.2 To deal with suppliers even -handedly;
12.3.3 To ensure they do not compromise the standing of the state through acceptance
of gifts or hospitality;
12.3.4 To be scrupulous in their use of public property; and
12.3.5 To provide all assistance in the elimination of fraud and corruption.
[62] Therefore I find that the IDT has failed to show any conflict of interest, or the
potential thereof. There was no evidence to show or even suggest some interest
that Mathikhi might have other than his status within the IDT. The IDT has failed
to show that suppliers were not dealt with even -handedly, improper acceptance of
gifts or hospitality, that any representative of the IDT failed to act scrupulously in
their use of public property or that there was a failure to aid in the elimination of
fraud and corruption.
[63] The IDT has thus failed to show any breach of clause 12.3 of the SCM policy. The
fourth ground of review should therefore fail.
[64] I now turn to the fifth and sixth grounds of review, both relating to the alleged non -
compliance of with clause 13.1 of the SCM policy.
[65] Clause 13.1 of the SCM policy reads as follows:
13.1 Demand Planning and Management
13.1.1 Demand management is the first phase of SCM. This objective is to ensure that
the resources required to fulfil the needs identified in the strategic objectives of the
Independent Development Trust are delivered at the correct time, price and place
and that the quantity and quality will satisfy those needs. As part of this element of
SCM, a total needs assessment should be undertaken. This analysis should bs
18
included as part of the strategic planning process of the Independent Develop ment
Trust and hence will incorporate the future needs.
13.1.2 It is vital for managers to understand and utilize sound techniques to assist them
in their planning, implementation and control activities. As part of the strategic plan
of the institution, r esources required for the fulfilment of its obligations should be
dearly analysed . This includes a detailed analysis of the goods, works and services
required, such as how much can be accomplished, how quickly and with what
materials, equipment, etc.
13.1. 3 In performing demand planning as this initial stage of SCM process, the CEO
should ensure that:
a) Future as well as current needs are understood;
b) Requirements are linked to the budget;
c) Specifications are determined;
d) The needs form part o f this strategic objective of the Independent
Development Trust;
e) An analysis of this past expenditure may assist in determining the manner
in which the Independent Development Trust fulfilled this need in the past;
f) The optimum method to satisfy the need is considered, including the
possibly of procuring goods, works or services from other institutions (e.g.
stationery, printing and related supplies from the Government Printer or
furniture from the Department of Corre ctional Services), or on transversal
or ad hoc contracts;
g) The frequency of the requirement is specified;
h) The economic order quantity is calculated;
i) Lead and delivery times are identified; and
j) An industry and commodity analysis is conducted.
19
13.1.4 Managing demand will be a cross -functional exercise that brings the supply chain
practitioner closer to the end user and ensures that value for money is achieved.
[66] On 23 February 2022, and at a board meeting of the IDT, it was resolved that the
IDT would sell or dispose of its then office building, following which the IDT’s supply
chain management unit (SCM unit) was instructed to initiate procurement
processes by inviting bidders to provide suit able office space to accommodate the
IDT’s national office employees, based in Pretoria.
[67] It is common cause that, on 9 March 2022, representatives of the IDT visited at
least two properties in the Route 21 Office Park, Pretoria. One of these properti es,
as already discussed, was the property of the Respondent.
[68] The IDT contends that the visit to buildings on 9 March 2022 was in contravention
of the IDT’s Supply Chain Management Policy, specifically clause 13 .1 thereof, in
that such a visit occurr ed before the drafting and adopting of the specifications or
terms of reference for suitable office space.
[69] Further in the affidavit, the IDT states that the BSC should have first objectively
determined the actual demand and needs of the IDT before it took steps to compile
the specifications. It stated that demand management entails procurement
planning, analysis of goods and services required, and planning to acquire the right
goods and services at the right price and right quality and right time. Ac cording to
the IDT all these processes take place before the specifications is compiled.
[70] In the fifth ground of review the IDT argues that the appointment of the Respondent
following the tender was in contravention of clause 13.1 of the SCM Policy whi ch
required that, before bids can be advertised, the IDT needed to know in clear terms
what type of goods or services it required, what is the quantity and quality, duration,
and time of delivery.
[71] The result of the initial BSC meeting on 22 April 2022 was an extensive list of
specifications and requirements that the new building to be occupied had to comply
with. Such a list is, per se, evidence of demand management and planning. Save
20
for the inclusion of the cafeteria, which I have dealt with supra , the IDT has
advanced no evidence or argument to establish that the list of requirements, as
decided upon by the BSC, was not the product of proper demand planning and
management, or that the list was insufficient and/or incomplete in any way
whatsoever .
[72] In addition, the IDT did not take this Court into its confidence by elaborating on
what it regarded as an appropriate or correct demand management or demand
planning phase .
[73] Save for the decision of the BSC on 22 April 2022 evidencing the contrary , I have
no evidence before me indicating an actual failure to comply with the requirements
of clause 13 .1 of the SCM Policy insofar as it related to demand management and
demand planning.
[72] In the sixth ground of review the IDT argues that the decision to appoint the
Respondent was not in compliance with clause 13.1.3(c) of the SCM Policy. The
IDT submits that , before bids can be advertised, it must determine the
specifications only after engaging in demand planning and management, which
was not compli ed with. Like the fifth ground of review, this ground of review suffers
from a lack of actual evidence to support it. The resolution taken by the BSC on
22 April 2022 evidence planning and elicited no criticism from the IDT . I have no
evidence before me , save for the visits to the properties, of what that planning
entailed or in what manner specifically such planning as was performed
contravened clause 13 .1.
[73] I am furthermore unable to find that the actual visit to the Respondent’s property
on 9 Marc h 2022 constituted, by itself, a breach of clause 13 .1. I was not referred
to any specific authority or rule that prohibited such visit to take place as part of
the demand planning. On the contrary, I would regard it as prudent to view
properties during p lanning. The issue of non -compliance with the provisions of the
SCM policy is a question of interpretation , which cannot be done in a vacuum, and
21
must have a factual basis underpinning it . The factual basis to support the
argument of the IDT is lacking.
[74] Therefore I find that the fifth and sixth grounds of review must fail.
REVIEW DUE TO NON -COMPLIANCE WITH SECTION 217 OF THE CONSTITUTION
[75] Section 217(1) of the Constitution constitutes t he overriding principle against which
the legality of the tender process and subsequent contract between the IDT and
the Respondent should be measured.
[76] In State Information Technology Agency SOC Limited v Gijima Holdings (Pty)
Limited 2018 (2) SA 23 (CC) at para 41 Madlanga J and Pretorius AJ stated the
following:
“Section 217 of the Constitution insists on a system of public procurement that complies
with certain factors. It provides that “[w]hen an organ of state . . . contracts for goods or
services, it must do so in accordance with a system which is fair , equitable, transparent,
competitive and cost -effective” .”
[77] In para 41 Madlanga J and Pretorius AJ stated the following:
“What we glean from this is that the exercise of public power which is at variance with the
principle of legality is inconsistent with the Constitution itself. In short, it is invalid. That is
a consequence of what section 2 of the Constitution stipulates . Relating all this to the
matter before us, the award of the DoD agreement was an exercise of public power. The
principle of legality may thus be a vehicle for its review. The question is: did the award
conform to legal prescripts? If it did, that is t he end of the matter . If it did not, it may be
reviewed and possibly set aside under legality review” (footnote omitted , emphasis
added).
[78] I have already dealt with the IDT’s allegations of non -compliance with the SCM
Policy. The award of the tender to the Respondent was not in contravention of
22
such policy. There was further no argument that the award contravened specific
provisions of the PFMA or of the PPPFA. On the contrary, after two bidders passed
the minimum threshold, the prescripts of the PP PFA obligated the IDT to a ward
the tender to the Respondent. This was the most cost -effective.
[79] Guided by the principles in Premier of the Free State Provincial Government
and Others v Firechem Free State (Pty) Ltd at para 30, I find that t he tender
process that was followed was competitive and transparent. There was no
evidence before the Court to indicate that the BEC deviated , during evaluation of
the submitted tenders, from the published information and requirements. There is
no evidence before the Court that any of the bidders were treated differently during
the evaluation by the BEC. There is no evidence before this Court that either the
BSC or the BEC manipulated the tender process to benefit the Respondent.
[80] I therefore find that the app ointment of the Respondent was not so unreasonable
and/or unlawful and/or irrational and/or procedurally irrational that no reasonable
person could have exercised the IDT’s power or perform the IDT’s function in this
manner, to be unfounded. The decision to appoint the Respondent was rationally
to the decision and the purpose to be achieved, being to obtain new offices. Such
a decision therefor aligned with the principles enunciated in, amongst others, Law
Society of South Africa and Others v President of the Republic of South
Africa and Others 2019 (3) SA 30 (CC).
[81] I thus find that the tender awarded to the Respondent by the IDT conformed to
legal prescripts, which finding, effectively, ends the inquiry into this review
application.
[82] I therefore need not even consider a possible remedial order and the provisions of
section 172(1)(a) of the Constitution.
23
UNDUE DELAY :
[82] Having pronounced on the merits of the grounds of review, it has become
unnece ssary to express on the delay of the IDT to institute this application, and
whether such delay was indeed undue , requiring condonation.
CONCLUSION:
[83] The IDT has failed to show that the agreement concluded between itself and the
Respondent was tainted by any illegality. I thus find myself in agreement with the
argument made by the Respondent that this application is simply an attempt by
the IDT to avoid liability in terms of the now cance lled agreement. At no stage
during these proceedings did the IDT explain why it did not take occupation of the
property .
[84] Albeit that the Respondent argued for a punitive cost order, I am not inclined to
award such. Both parties were represented by se nior and junior counsel, and as
such I am inclined to award the cost of two counsel. There is no reason why this
cost order should not follow the result of the application , nor was any reason
argued.
[85] I therefor e make the following order:
1. The application is dismissed.
2. The IDT is ordered to pay the costs of this application, such costs to include
the cost of two counsel where employed, to be taxed on Scale C.
24
SJ MYBURGH
ACTING JUDGE OF THE HIGH COURT, PRETORIA
This judgment has been delivered by uploading it to the court online digital data base of
the Gauteng Division, Pretoria and by e-mail to the attorneys of record of the parties. The
deemed date and time for the delivery is 16 May 2025.
Date of hearing: 5 May 2025
Date of judgment: 16 May 2025
APPEARANCES:
For Applicants: Adv JA Motepe SC
Adv N C Motsepe
For Responden ts: Adv AJP Eis SC
Adv JL Myburgh