THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 1094/2023
In the matter between:

TEKOA CONSULTING ENGINEERS (PTY) LTD APPELLANT

and

ALFRED NZO DISTRICT MUNICIPALITY FIRST RESPONDENT
THE ACTING MUNICIPAL MANAGER:
ALFRED NZO DISTRICT MUNICIPALITY SECOND RESPONDENT
ZIINZAME CONSULTING ENGINEERS / CYCLE
PROJECTS / UBUNTU BAM JV THIRD RESPONDENT
EMLANJENI JV FOURTH RESPONDENT
OLON CONSULTING ENGINEERS JV
IPM PLANT HIRE FIFTH RESPONDENT
BM INFRASTRUCTURE JV MAGNACORP SIXTH RESPONDENT

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Neutral c itation: Tekoa Consulting Engineers (Pty) Ltd v Alfred N zo District
Municipality and Others (1094/2023) [2025] ZASCA 180 (28
November 2025)
Coram: HUGHES, UNTERHALTER, BAARTMAN, COPPIN JJA AND TOLMAY AJA
Heard: 23 May 2025
Delivered: 28 November 2025
Summary: Municipal law – tender – mootness – no practical effect – discrete legal
issue of public importance – Review – standing – lateness - vagueness of tender.

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___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Eastern Cape Division of the High Court, Makhanda
(Makaula ADJP, Norman J, and Cengani-Mbakaza AJ sitting as the full court):

1. Condonation is granted, and the appeal is reinstated.
2. The appeal is upheld . The first respondent is to pay the costs, including the
costs consequent to the employment of two counsel.
3. The order of the full court is set aside and replaced with the following order:
‘The appeal is dismissed with costs, including the costs of two counsel where so
employed.’
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Hughes JA (Unterhalter, Baartman and Coppin JJA and Tolmay AJA
concurring):
[1] This is an appeal from the judgment of the full court of the Eastern Cape Division
of the High Court, Makhanda (the full court), issued on 20 June 2023. On 5 October
2023, this Court granted the appellant, Tekoa Consulting Engineers (Pty) Ltd (Tekoa),
special leave to appeal. In this Court, Tekoa failed to prosecute the appeal within the
prescribed time and subsequently sought condonation and reinstatement. These were
granted, along with an order directing Tekoa to pay the costs.

Background
[2] The appeal relates to the invitation to tender issued by the first respondent,
Alfred Nzo District Municipality (the Municipality), under reference number
ANDM/IDMS-WSA/148/04/05/20. The tender was issued to establish a panel of
service providers , including consulting engineers and contractors, for the planning,
design, and construction of projects funded by WSIG. This refers to a panel responsible

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for planning, designing, and constructing Waste Services Infrastructure Grant projects
within the Municipality over a three-year period . This would be executed using a
turnkey approach. The project’s duration was from 1 July 2020 to 30 June 2023. The
purpose of the tender was to support the implementation of an intervention programme
by Water Services Authorities (WSAs) to address water service backlogs and provide
interim relief in hotspot areas within the WSA’s jurisdiction.

[3] The tender in this case pertains to a turnkey project. A turnkey contract usually
refers to a construction agreement where a contractor is hired to plan, design, and
build a project or infrastructure, undertaking any other necessary development to make
it fully functional or ‘ready to use’ by a set deadline and at an agreed price . Turnkey
contracts usually involve a joint venture, bringing together different areas of expertise.
The tender document anticipated this cooperation by defining what constitutes a joint
venture or consortium: ‘Joint venture or Consortium means an association of persons
for the purpose of combining their expertise, property, capital, efforts, skill and
knowledge in an activity for the execution of a contract’.

[4] The services required from successful bidders included preparing technical
reports, business plans, and designs; constructing and supervising projects; and
preparing close-out and compliance reports. Tekoa is a consulting engineering firm.
Tekoa submitted its bid by the stipulated closing date. However, the Municipality’s Bid
Evaluation Committee (BEC) disqualified Tekoa’s bid because it failed to provide proof
of registration with the Construction Industry Development Board (CIDB) and the
required grading, as specified in the tender documents. The BEC subsequently
recommended the appointment of the third to sixth respondents, to whom the tender
was ultimately awarded.

[5] Tekoa brought an application in the Eastern Cape Division of the High Court

[5] Tekoa brought an application in the Eastern Cape Division of the High Court
(the high court) to review and set aside both the disqualification of its bid and the award
of the tender to the third to sixth respondents. The high court (per Laing J) granted an
order declaring that the tender process conducted by the Municipality was unlawful. It
further reviewed and set aside the Municipality’s decision to disqualify Tekoa’s bid and
to award the tender to the third to sixth respondents . The Municipality was granted
leave to appeal to the full court. On 20 June 2023, the full court upheld their appeal,

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set aside the high court’s order, and replaced it with an order di smissing Tekoa’s
review, with costs.

[6] This Court granted Tekoa special leave to appeal the full court’s order. In this
Court, the Municipality sought and was granted leave to file a further affidavit. The
primary purpose of the affidavit was to inform this Court that, due to the passage of
time, the situation regarding the case had changed. Any decision made by this Court
would now have no practical effect, as there is no live dispute between the parties.
This is because the work related to this tender was completed by 30 September 2023.

[7] The relief sought by Tekoa in its review application is set out in its amended
notice of motion as follows:
‘(a) An order reviewing and setting aside the Municipality’s Bid Adjudication Committee
decision rejecting Tekoa’s bid and remitting the tender to the Municipality for a new decision.
(b) Consequential relief sought as a result of the review, including the appointment of
Tekoa as a service provider and the allocation of work related to the tender.’
Notably, none of these is currently feasible to implement.

[8] The full court concluded that ‘the court a quo [the high court], erred in its finding
that the tender was not clear about the CIDB registration being a requirement’.
Consequently, Tekoa’s bid could not be regarded as non-responsive, despite not being
registered with the CIDB. Additionally, the full court determined that Tekoa did not
submit an acceptable tender. To support this conclusion, the full court cited the
following: Tekoa did not attach its CIDB certificate to its tender; Tekoa ‘was not able to
demonstrate both in its bid and in the review application that its tender was an
“acceptable tender”’; it misunderstood the tender requirements; and it would not be
able to conduct the construction work in line with the tender. Therefore, the full court
found that the high court erred in reviewing and overturning the municipality’s decision.

found that the high court erred in reviewing and overturning the municipality’s decision.

Submissions
[9] Tekoa conceded that ‘if the work has been completed, [it] acknowledge[s] that
a decision by this Court would not have a practical effect on this particular [t]ender’.
However, it argues that mootness remains a contentious issue and further contends
that the interests of justice require this Court to consider the merits of the appeal under

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s 16(2) of the Superior Courts Act 10 of 2013 (Superior Courts Act). In advancing this
assertion, it relies on the dicta of this Court in Kruger v Joint Trustee of the Insolvent
Estate of Paulos Bhekinkosi Zulu.1 Tekoa asserts that in this case , a discrete legal
issue remains that requires this Court’s pronouncement, so that certainty is attained.

[10] In its effort to emphasise that the full court’s decision has a significant impact
far beyond the confines of this case, Tekoa argued that this appeal, which concerns
procurement issues, also involves the principle of legality. It contends that s 217 of the
Constitution is implicated because tenders are subject to the principles of fairness,
equity, transparency, competitiveness, and cost-effectiveness.

[11] Tekoa contended further that the tender does not satisfy the requirements of
the Preferential Procurement Policy Framework Act 5 of 2000 (PPPFA), as it lacks
provisions for assessing pricing. Tekoa also argued that it breaches the provisions of
ss 4(f), 5(3)(c), and 5(4)(b) of the Construction Industry Development Board Act 38 of
2000 (CIDB Act), and the Construction Industry Development Regulations, specifically
Regulation 24. Tekoa contend ed that the full court’s decision ignores the CIDB's
standards for uniformity in engineering and construction contracts. Further, the full
court has endorsed a tender with vague requirements, thereby rendering the tender
process procedurally unfair . This , according to Tekoa, could result in qualified
participants being disqualified in the future due to a misinterpreta tion of the relevant
legal framework.

[12] Before this Court, the Municipality argue d that no subsisting contractual
relationship exists between it and the third to sixth respondents due to the passage of
time. Any declaration of unlawfulness issued by this Court will have no practical effect
and will not comply with s 17( 1)(b) of the Superior Courts Act. Accordingly, any order

and will not comply with s 17( 1)(b) of the Superior Courts Act. Accordingly, any order
made by this Court will lack practical effect, and the appeal should be dismissed.

[13] The Municipality contends further that there is no distinct legal issue of public
interest that will affect future matters for this Court to exercise its discretion under

1 Kruger v Joint Trustees of the Insolvent Estate of Paulos Bhekinkosi Zulu [2016] ZASCA 163; 2016
JDR 2102 (SCA); [2017] 1 All SA 1 (SCA) para 15.

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s 16(2)(a) of the Superior Courts Act, as it would not be in the interests of justice to do
so. The Municipality relies on Agribee Beef Fund (Pty) Ltd and Another v Eastern Cape
Development Agency and Another 2 and Western Cape Provincial Government and
Others v D C Security (Pty) Ltd .3 It submitted that the latter was a case similar to the
present one, and that this Court rejected an argument akin to Tekoa's , declining to
exercise its discretion. The Municipality argued that the full court’s findings were solely
based on the facts. No separate legal issue of public importance that could influence
future tenders has been identified, which would justify the exercise of this Court’s
discretion under s 16(2)(a) of the Superior Courts Act.

Interests of justice and mootness
[14] I begin by restating s 217(1) of the Constitution, which is clear and unambiguous
in respect of contracts for goods or services by a state organ:
‘When an organ of state in the national, provincial or local sphere of government, or any other
institution identified in national legislation, contracts for goods or services, it must do so in
accordance with a system that is fair, equitable, transparent, competitive, and cost-effective.’
This section establishes the constitutional framework relating to government tenders.
Additionally, the statutory framework governing municipal procurement , such as the
PPPFA, the Municipal Finance Management Act 56 of 20 03, and the Public Finance
Management Act 1 of 1999, among others, outlines the requirements of application to
an organ of state when procuring goods and services. An organ of state must exercise
its procurement powers within the limits of the law and as required by
s 217(1).4

[15] I reiterate that the work for this tender was completed by 30 September 2023.
Essential to these proceedings is the concession made by Tekoa in its heads of
argument that, ‘if the work has been completed, we acknowledge that a decision by

argument that, ‘if the work has been completed, we acknowledge that a decision by
this Court would not have [a] practical effect on this particular Tender’. With this
concession, Tekoa nevertheless seeks declaratory orders of unlawfulness . To which

2 Agribee Beef Fund (Pty) Ltd and Another v Eastern Cape Development Agency and Another [2023]
ZACC 6; 2023 (5) BCLR 489 (CC); 2023 (6) SA 639 (CC) para 26. Legal Aid South Africa v Magidiwana
and Others [2015] ZACC 28; 2015 (6) SA 494 (CC); 2015 (11) BCLR 1346 (CC) para 11.
3 Western Cape Provincial Government and Others v D C Security (Pty) Ltd [2025] ZASCA 35 ; 2025
JDR 1393 (SCA) paras 22-23.
4 Airports Company South Africa SOC Ltd v Imperial Group Ltd and Others [2020] ZASCA 2; [2020] 2
All SA 1 (SCA); 2020 (4) SA 17 (SCA) para 63.

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the Municipality submits that this cannot be granted without an order in terms of s
172(1)(b) of the Constitution, which ought ‘to take into account the material realities on
the ground’.5 That being said, the factual reality is that work has been completed with
respect to the tender in question.

[16] In these circumstances, it is essential to remember that the fundamental
principle is that if there is no live issue remaining between the parties, the court
generally does not entertain the appeal and does not provide advisory opinions on
abstract legal questions. It is well established that, in the interest of justice, a court has
the discretion to hear a matter even if it is moot, especially when a specific legal issue
of public interest necessitates adjudication.6 Innes CJ originated this principle above in
Geldenhuys Neethling v Beuthin: ‘. . . Courts of Law exist for the settlement of concrete
controversies and actual infringements of rights, not to pronounce upon abstract questions, or
to advise upon differing contentions, however important ’.7 This underscores the principle
that judicial authority is generally confined to resolving real disputes rather than
hypothetical or academic questions.

[17] Mootness is not a bar to deciding an appeal if it is in the interest of justice to
hear the appeal notwithstanding its mootness. In such instances, a court is at liberty to
exercise its discretion under s 16(2) (a) of the Superior Courts Act. In addition to
exercising the court’s discretion in terms of s 16(2) (a) in the interest of justice, the
Constitutional Court has indicated that several other considerations come into play,
These include, but are not limited to : whether the court's order will have a practical
impact on either the parties or others; the nature and extent of that impact; the
significance and complexity of the issue; the thoroughness of the arguments presented

significance and complexity of the issue; the thoroughness of the arguments presented

5 Section 172(1)(b): ‘When deciding a constitutional matter within its power, a court –… (b) may make
any order that is just and equitable, including – (i) an order limiting the retrospective effect of the
declaration of invalidity; and (ii) an order suspending the declaration of invalidity fo r any period and
any conditions, to allow the competent authority to correct the defect.’
6 Qoboshiyane N O and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others [2012] ZASCA
166; 2013 (3) SA 315 (SCA) paras 5-6.
7 Geldenhuys & Neethling v Beuthin 1918 AD 426 at 441. See also Public Protector of South Africa v
Chairperson of the Section 194(1) Committee and Others [2024] ZASCA 131; [2024] 4 All SA 693 (SCA);
2025 (4) SA 428 (SCA) para 32.

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by the parties; and whether, in exercising its discretion, the court's decision would
benefit the public at large and promote legal certainty.8

[18] The current matter warrants consideration despite its mootness, and I proceed
below to address some of the factors mentioned above. Determining this moot appeal
is necessary, amongst other s, because it relates to the need for organs of state,
including municipalities, to comply with the prescripts and obligations imposed by s
217 of the Constitution when dealing with public procurement policies and procedures.
Tenders should be clear and unambiguous so as not to offend public policy and the
principle of legality. Pertinently, this is not the first nor the last time that municipalities
and prospective public bidders will encounter tenders of this nature, especially
considering the scarcity of water in our country. To reiterate the purpose of the tender
and highlight its importance to the public, the municipalities, and our procurement laws:
The tender process was intended to support the implementation of an intervention
programme by WSAs to address water service backlogs and provide interim relief in
hotspot areas within the WSAs’ jurisdiction.

[19] An important consideration is that the project was of a turnkey nature, which
meant that the development involved, for an agreed sum, the contractor's obligation to
deliver a fully operational facility by a specified date. The contractor is therefore at risk
if the deadline is not met or if there are any defects in the design or construction.9 The
Municipality argued that, as the contract was ‘turnkey’, they could ‘conclude one
contract with an entity, with the latter providing both professional services and
construction works.’ They maintained that this approach avoids delays caused by the
procurement process for the consultant and subsequent contractors, especially since
the project relies on a grant and needs a quick turnaround.

the project relies on a grant and needs a quick turnaround.

[20] Tekoa clarified that the nature of the contract is where ‘one service provider
assumes total responsibility for all aspects of the project and delivers the full end

8 Normandien Farms (Pty) Limited v South African Agency for Promotion of Petroleum Exportation and
Exploitation (SOC) Limited and Others [2020] ZACC 5; 2020 (6) BCLR 748 (CC); 2020 (4) SA 409 (CC)
paras 46-50.
9 See Manong and Associates (Pty) Ltd v City of Cape Town and Another [2010] ZASCA 169; 2011 (2)
SA 90 (SCA); 2011 (5) BCLR 548 (SCA); [2011] 2 All SA 383 (SCA) para 9 where a turnkey project is
defined as ‘design, develop and deliver’.

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product/services required by the contract’. 10 It was further noted that consideration
would be given to either a consulting entity or a construction entity. This did not assist
tenderers, as it meant that, as a consultant, one could not enter into a joint venture
with a contractor, nor could a contra ctor enter into a joint venture with a consultant.
This is evident from the Municipality’s opposing affidavit, which refers to the tender
document that allows for the separate evaluation of either a consultant or a contractor
as an applicant tenderer, and is contrary to the prescripts of the CIDB. The
Municipality’s tender document and evidence misconstrued what a turnkey contract
encompassed. As such, the evaluation process for the consultant and the contractor,
viewed as separate entities, compromised the tender evaluation process.

[21] The full court misunderstood the concept of a turnkey contract, as it concluded
that it ‘involve[d] appointing a contractor through a public tender for all work related to
the completion of a project . . . that included the planning of the approved land, the
township establishment process and the design and the installation of internal
reticulation services up to the construction of houses.’ 11 This incorrect conclusion
formed the basis of the full court's decision, and therefore, and requires us to exercise
our discretion.

[22] Following up on the above, the source of funding for the Municipality's turnkey
projects was a grant, specifically the Water Services Infrastructure Grant (WSIG). The
WSA's intervention programme was designed to provide water services as prescribed
by the Water Services Act. 12 Because of water scarcity, these grants are a valuable
aid for municipalities to meet their constitutional obligation to expand access to reliable,
safe drinking water and sanitation services .13 (Outcomes Statement). Therefore, it is
reasonable to conclude that the use and interpretation of these tenders will continue,

reasonable to conclude that the use and interpretation of these tenders will continue,
and there may be misinterpretations. This underscores the need for exercising our
discretion.


10 Clause 1.28 General Conditions of Contract vol.2 -p307.
11 Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd [2019] ZACC 15; 2019 (6) BCLR
661 (CC); 2019 (4) SA 331 (CC) para 4.
12 Water Services Act 108 of 1997.
13 Framework for Conditional Grants to Municipalities GG 43495 of 3 July 2020.

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[23] The full court concluded that because Tekoa had conceded it did not possess a
CIDB certificate, it could not assert any rights, as it did not qualify. Furthermore, as a
professional service provider and not qualified to undertake construction work, it was
not a contractor. This was another misconception, which is also linked to the
misunderstanding of what a turnkey contract entails. Consequently, we are enjoined to
exercise our discretion to prevent Tekoa from being prejudiced.

Discussion
[24] I commence with the issue of standing. Tekoa was disqualified due to a vague
tender document. As aptly stated by the Constitutional Court in Allpay Consolidated
Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African
Social Security Agency and Others:14
‘Vagueness and uncertainty are grounds for review under section 6(2)(i) of PAJA. Certainty in
legislation and administrative action has been linked to the rule of la w. . . In Affordable
Medicines, this Court explained the doctrine in the following terms:
“[L]aws must be written in a clear and accessible manner. What is required is reasonable
certainty and not perfect lucidity. The doctrine of vagueness does not require absolute
certainty of laws. The law must indicate with reasonable certainty to those who are bound by
it what is required of them so that they may regulate their conduct accordingly.”’ 15(Footnotes
omitted)

[25] In light of the above, Tekoa clearly had standing, having demonstrated its
connection to the harm caused by the vague tender document; it could therefore
pursue the review proceedings in the high court. Thus, the full court wrongly concluded
that Tekoa had no right to assert its claim.

[26] Lastly, there is the issue of the alleged lateness of Tekoa’s review application,
because it was (allegedly) brought beyond the 180-day period referred to in s 7(1) of
PAJA. The full court concluded that the high court erred in finding that Tekoa initiated

PAJA. The full court concluded that the high court erred in finding that Tekoa initiated
the review proceedings within the required 180 days. Consequently, the full court held
that, in the absence of Tekoa seeking an extension in terms of s 9(1)(b) of PAJA of the

14 Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South
African Social Security Agency and Others [2013] ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1
(CC).
15 Ibid para 87.

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180-day review period, the review was indeed out of time and should not have been
entertained. Additionally, the full court held that Tekoa had no agreement with the
Municipality regarding an extension of time to file and determined that, since Tekoa
filed its review application before receiving the reasons it had requested, ‘the clock
started ticking [for Tekoa] from 16 October 2020.’

[27] Before this Court, Tekoa contended that the above conclusion of the full court
was incorrect. It maintained that there was no evidence before the full court showing
that it became aware of the reasons for its rejection by the Municipality before the order
of 8 June 2021. Tekoa contended that in terms of s 7(1), there was no delay in
launching its review application on 5 May 2021. Notably, the Municipality did not
address the delay in launching the review in this Court.

[28] It is apt to restate what s 7(1) of PAJA requires:
‘7 Procedure for judicial review
(1) Any proceedings for judicial review in terms of section 6(1) must be instituted without
unreasonable delay and not later than 180 days after the date-
(a) subject to subsection (2) (c), on which any proceedings instituted in terms of internal
remedies as contemplated in subsection (2)(a) have been concluded; or
(b) where no such remedies exist, on which the person concerned was informed of the
administrative action, became aware of the action and the reasons for it or might reasonably
have been expected to have become aware of the action and the reasons…’

[29] It is established that Tekoa became aware that its bid was unsuccessful on 16
October 2020, and on the same day, ‘registered [its] formal objection’ and requested
reasons for the rejection of its bid and its non-appointment in terms of s 62 of the Local
Government: Municipal Systems Act 32 of 2000 . Section 62 gives an unsuccessful
bidder the right to appeal against the rejection of its bid and its non -appointment. In

bidder the right to appeal against the rejection of its bid and its non -appointment. In
this notice of 16 October 2020, Tekoa sought the Municipality's acceptance of its
notification under s 62.

[30] To provide a brief overview of the timeline before the review was initiated . By
8 March 2021, Tekoa had not received a response from the Municipality and officially
requested a reply to its October 2020 enquiry. Despite these two requests, no response

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was received from the Municipality. On 29 March 2021, Tekoa, through its attorney,
sent further correspondence to the Municipality. In this letter, Tekoa indicated that it
intended to explore additional options, such as a review, and required certain
‘information pertaining to the adjudication and evaluation of the tender’. The
information was requested to be provided by the close of business on 8 April 2021,
and Tekoa noted that if there was no compliance it would embark on court action. On
14 April 2021, the Municipality responded to Tekoa’s attorneys, stating that their
request ‘is vague[st] and does not comply with [the] Promotion of Access to Information
Act’.

[31] On 5 May 2021, Tekoa launched an application in the high court, compelling the
Municipality to provide it with reasons. Part B covered the review application and the
declarations sought by Tekoa. This culminated in Tekoa obtaining, by agreement, a
court order on 8 June 2021 regarding specific orders in Part A.

[32] The full court records in its judgment that the review application was ‘delivered
on 25 August 2021 with an amended notice of motion’. In my view, the review—Part B
of the application —could only be sought or pursued after Tekoa had obtained the
reasons from the Municipality. Bearing in mind that the notice of motion, which included
Part A, ie the declarations, as discussed above—was issued and filed on 5 May 2021,
and that the order, by agreement, was granted on 8 June 2021. In fact, the full court
recorded that the record sought from the Municipality was supplied on 17 June 2021.
Furthermore, as stated above, Part B, amended, togethe r with a condonation
application—which the high court incidentally granted—was filed in court on 25 August
2021. In my view, the earliest the clock could have started ticking was on 17 June
2021. The full court clearly erred in its determination of that issue. On my finding there
was no unreasonable delay in launching the review application.

was no unreasonable delay in launching the review application.

[33] Tekoa’s bid was deemed non-responsive by the Municipality because it lacked
a certificate of registration from the CIDB. This decision became the central issue in
the dispute and the main reason for the respondents’ disqualification of Tekoa. Its
legality is crucial to the broader questions in this case, particularly regarding whether
the tender process adhered to the principles of fairness, transparency, and legality as
mandated by relevant procurement laws. Moreover, it is uncertain whether Tekoa

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could seek a review of the tender process due to its failure to comply with the CIDB
registration requirement, which it did not possess. Linked to the issue of standing is
whether there was compliance with s 7(1) of PAJA in initiating the review proceedings
within a reasonable timeframe, and no later than 180 days as required. Therefore, it
was necessary to determine this moot appeal, as it relates to the obligation of organs
of state, including municipalities, to comply with the obligations imposed by s 217 of
the Constitution when dealing with public procurement policies and procedures,
ensuring tenders are unambiguous to avoid offending public policy and the principle of
legality, which I discuss below.

[34] I believe a single decisive issue concerning these tender documents triggers
this Court’s discretion to entertain and rule on this appeal, as it involves a distinct legal
matter of public importance that could influence future tenders. In such instances, this
Court has generally exercised its discretion in favour of considering the issues on
appeal, even though their consideration may have no practical effect.

[35] As alluded to earlier, the tender contract required a turnkey approach. The key
issue was whether the turnkey contract was unambiguous in its structure. Tekoa
argues that the tender documents in this case were unclear and did not comply with
the CIDB requirement that procurement documents for engineering and construction
contracts should generally be presented clearly and unambiguously. 16 It also argued
that the appeal involves not only principles of legality but also ‘issues that are
fundamental to the procurement of goods and services by organs of state’.

[36] The full court dismissed Tekoa’s argument th at the tender was unclear
regarding the CIDB and resolved that it should have been aware of the requirement. It
bears mention at this stage the relevant requirements and scope of work as set out in
the tender document:
‘Scope of Work

the tender document:
‘Scope of Work

16 Standard for Uniformity in Engineering and Construction Works Contract GN 423 of 2019 GG 42622
of August 2019 at 4.2.2.1(a)(ii):
‘(a) Procurement documents for engineering and construction works contracts shall in general:
. . .
(ii) set out, in a clear and unambiguous manner, the criteria by which tenders are to be evaluated ;’

15

1.1 Water Services Infrastructure Grant is an interim to intermediate water supply intervention
programme that is implemented by Water Services Authorities (WSAs) to address water
services backlogs as well as to provide interim relief to hot spot areas within the WSA’s area
of jurisdiction. The scope of works includes:
Preparation of Technical Reports and Business Plan;
Source verification (including drilling and testing of boreholes);
Preparation of designs;
Construction of projects;
Construction supervision of projects;
Preparation of close out reports;
Preparation of compliance reports in line with funder requirements.’

[37] The full court , having considered the above as part of th e record before it ,
concluded that although the contract was on a turnkey basis, Tekoa , a consultancy
firm of engineers, would not have been able to demonstrate all the required
competencies for such a contract, because it was not involved in construction and as
such was not registered with the CIDB in terms of s 18 of the CID B Act.17 Section 18
of the CIDB Act requires a contractor to be registered with the CIDB to undertake or
complete construction work for public sector contracts awarded through competitive
tender or quotation. Failure to comply can result in sanctions such as fines or removal
from the register. This is particularly relevant given that the scope of work entailed
construction.

[38] As we are aware, Tekoa’s bid was disqualified because it failed to submit proof
of registration with the CIDB. Notably, the requirement for the compulsory submission
of a CIDB registration certificate is not reflected in the tender document. The items on
the checklist are the following:

17 Section 18 of the Construction Industry Development Board (CIDB) Act states:
‘(1) A contractor may not undertake, carry out or complete any construction works or portion thereof for
public sector contracts, awarded in terms of competitive tender or quotation, unless he or she is

registered with the Board and holds a valid registration certificate issued by the Board.
(2) Any contractor who carries out or attempts to carry out any construction works or portion thereof
under a public sector contract and who is not a registered contractor of the Board in terms of this Act, is
guilty of an offence and liable, on conviction , to a fine not exceeding ten per cent of the value of the
contract so carried out.
(3) A contractor referred to in subsection (2) must, upon receipt of a written notice by the Board served
on him or her in the prescribed manner, cease to continue any public sector construction work.
(4) A contractor who receives a notice referred to in subsection (3), during the currency of a contract,
may be permitted to complete the construction works or portion thereof, as determined by the Board.’

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‘1. Authority to sign a bid;
2.Tax Clearance Certificate;
3.Declaration of Interest;
4.Preference Points Claim Form;
5.Declaration of Past Supply Chain Practice;
6.Certificate of Independent Bid Determination;
7.Certificate of Payment of Municipal Accounts;
8.Experience of Tenderer;
9.Scope of Works/Terms of Reference;
10.Functionality Test;
11.Assessment Forms;
12.Form of offer;
13.Central Supplier Database.’

[39] The items do not include proof of registration with the CIDB. However,
elsewhere in the tender document it is stated that the company’s profile should include
proof of registration with professional bodies, ‘if applicable’. One example of such a
body was the CIDB. The relevant portion reads as follows:
‘COMPANY PROFILE
Bidders are required to submit a company profile that records evidence of previous work to
substantiate their ability to undertake specific tasks.
The company profile must include the following:
. . .
Proof of registration with professional bodies (e.g. CIDB, LGSETA) – if applicable.’

Furthermore, although the checklist included with the tender invitation, under the
section 'documents to be submitted', clearly specifies the mandatory documents that
ought to be submitted, and that a failure to submit them would disqualify a bidder's
tender, it does not include the CIDB certificate.

[40] The Municipality argues that it is a matter of interpretation and that Tekoa has
misunderstood the tender document. According to the Municipality, the tender
requirements clearly stated that registration with the CIDB was mandatory.
Furthermore, the municipality argues that Tekoa was aware that the services required
the involvement of consulting engineers and constructors , for the construction of

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works, which could only be performed by those holding a CIDB certificate issued under
the CIDB Act.

[41] The Municipality maintained that it is not the role of the courts to determine what
constitutes a valid tender, but rather the Municipality's decision. Tekoa conceded this,
but emphasised that the requirements ought to be clearly set out and unambiguous. I
agree with Tekoa : failing to do so in a public tender process would not eliminate
uncertainty and could result in an unfair assessment.

[42] The tender document outlined explicitly what was required. It states as follows:
‘Proposals are hereby invited from suitabl y qualified and experienced professional
service providers to be included in the panel of consort ium services providers
(Professional and Consult ing entity and contractors ) for the planning , design and
construction of WSIG funded projects in the Alfred Nzo Municipality for a period of
three (3) years.’ It is only in the minute of the BEC, where the required grading is stated.
The minute states : ‘Proposals for the panel of service providers (Professional and
Consulting Entity and Contractors) for the planning, design, and construction of WISG
(using a turnkey strategy) … CIDB Grading: a minimum of 5CEPE or 6CE or higher’.

[43] However, given what has been said above about a turnkey contract, I view the
tender as neither clear nor unambiguous. In reaching this conclusion , that the tender
was vague, I take cognisance of the fact that the B EC had to insert the following to
award the tender: ‘[t]he committee decided to disqualify Bidders that have not entered
into joint venture agreement as it impose[s] high risk to the employer and does not
reflect trace of agreement between the consultant and the contractor, even though this
was not specified in the TORs’. (Emphasis added.)

[44] Further, the tender made no provision for a specific design licence as would be
required for water projects. Consequently, and arbitrarily, the BEC ‘decided to allocate

required for water projects. Consequently, and arbitrarily, the BEC ‘decided to allocate
maximum points for any design licence proof attached that relates to civil works
(PROKON, ALLCAD, CIVIL DESIGN, AUTO DESK, AUTO PADD S, EPANET and
AUTOCAD)’. Even though this was not requested or specified in the tender document,
Bidders who did not attach a tax invoice listing a design package for any of those
mentioned by the BEC were to be penalised.

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[45] In my view, it was not unreasonable for Tekoa, as it did in this instance, to
conclude that, given how the Tender document was structured, the absence of a
mandatory requirement for CIDB, and the placement of ‘NB.!! All Bidders must be
registered with CIDB with a minimum of 5CEPE or 6CE OR higher’ under the
construction section —implying that it does not apply to consulting engineers like
Tekoa, but to construction companies —left questions unanswered. From the Tender
document, one is led to ask: is the CIDB required ‘if applicable’, or must it be submitted
by all bidders in the construction industry, or, as the Municipality wishes this Court to
conclude, should it have been inferred from the tender document?

[46] What I also find notable, as discussed in detail above, is the BEC meeting on 5
August 2020. The concerns were clearly evident from the minutes of that meeting. It is
important to note that this BEC outlined the CIDB grading requirements. Furthermore,
they emphasised that bidders were either contractors or consultants, not both, and
aimed to disqualify those not part of a joint venture. However, this was not a
requirement of the tender. Additionally, the need to hold a specific design licence was
mentioned, but the BEC omitted that requirement from the tender document.

[47] In summary, the disqualification of Tekoa for failing to submit a CIDB certificate,
as outlined above in relation to a vague tender document, warranted this Court's
consideration, as the method of disqualification will impact other parties in future
tenders of this kind. An additional consideration is that the full court has upheld the
Municipalities' conduct in the disqualification decision.

Remedy
[48] What remains for consideration is the question of appropriate relief or remedy.
It is well established that the order of the full court is the subject of appeal, and
therefore, if the appeal is successful, the order made by Laing J would remain in place.

therefore, if the appeal is successful, the order made by Laing J would remain in place.
However, since the Municipality had already entered into contracts with the successful
tenderers and the work had already been completed, enforcing parts of the order could
lead to ‘catastrophic consequences’ for innocent tenderers who were successful and
for the public. In my opinion, after considering the competing interests, it is evident that
the entire order of the high court cannot be upheld and should be modified to prevent
these consequences.

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[49] Significantly, in this case, the high court did not refuse to grant the sought
declaratory orders, given that it is the court of first instance. Furthermore, Tekoa, the
party seeking the declaratory relief, has an interest in the grant of the declarations
sought, as implementing an intervention programme by WSA s to address water
backlog issues and provide interim relief in hotspot areas within the WSAs’ jurisdiction
is a project that would clearly take place in the future within that municipal area. Hence,
the presence of a discrete legal issue that required adjudication by this Court despite
mootness.

[50] In respect of costs, Tekoa has been substantially successful in the full court and
this Court. Therefore, costs are to follow the result.

[51] Consequently, I make the following order:

1. Condonation is granted, and the appeal is reinstated.
2. The appeal is upheld. The first respondent is to pay the costs, including the
costs consequent to the employment of two counsel.
3. The order of the full court is set aside and replaced with the following order:
‘The appeal is dismissed with costs, including the costs of two counsel where so
employed.’



___________________
W HUGHES
JUDGE OF APPEAL

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Appearances

For the Appellant: S Khumalo SC with N Stein and X Nyangiwe
Instructed by: Glynnis Cohen Attorneys
Webbers Attorneys, Bloemfontein

For the first and second Respondents: S Maliwa with L Mhambi
Instructed by: Christelis Artemides Attorneys, Johannesburg
Maduba Attorneys, Bloemfontein.