IN THE IDGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
In the matter between:
Not Reportable
Case no: 21070/2024
TMT SERVICES AND SUPPLIES (PROPRIETARY) LTD
tla TRAFFIC MANAGEMENT TECHNOLOGIES
(Registration number: 2000/022850/07)
and
CITY OF MATLOSANA
SYNTELL (PROPRIETARY) LTD
Coram:
Heard :
Delivered:
Miller AJ
16 September 2025
10 December 2025
Applicant
First Respondent
Second Respondent
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ORDER
1. Declaring that the bid submitted by the second respondent in Tender
No: COM/SCM/T/09/2023/24 ("the Tender') is invalid.
2 The decision of the first respondent taken on 5 February 2024 to
award the Tender to the second respondent is reviewed and set
aside.
3. Any contract(s) concluded between the first respondent and the
second respondent pursuant to the first respondent's decision to
award the Tender to the second respondent is/are reviewed and set
aside with effect from 31 March 2026.
4. The first respondent is liable for the costs of this application, such
costs to include the costs of counsel on scale C.
JUDGMENT
Miller, AJ
Introduction
{1] This application relates to the decision of the first respondent (Uthe
Municipality") to award a public tender to the second respondent
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("Synfelf') on 5 February 2024 for the provision of traffic management
services to the Municipality.
[2] The applicant ("TMT') seeks a declarator that Syntell's bid was non
responsive and therefore invalid and an order reviewing and setting
aside the decision to award the tender to Syntell and any contract(s)
awarded under the tender.
[3] Syntell did not participate in this application. It abides this court's
decision.
[4] The Municipality opposes the application on two grounds: first, that
TMT lacks locus standi to bring this application because its bid was
non-responsive (i.e. non-compliant) and second, that the review
should fail on the merits.
[5] After setting out the material facts, which were common cause, I deal
with each of the grounds of opposition.
The facts
[6] The Municipality called for tenders for the provision of traffic
management services with a closing date of 16 November 2023.
These services relate to capturing and processing traffic violations
for speeding.
[7] The tender was governed by a document titled "Evaluation Process
and Criteria" ("the Bid Criteria Documenf').
[8] The Bid Criteria Document contained the following mandatory term:
"Bidders must initial each page of the Tender Document, including all
returnable documents submitted as part of this bid. Failure to Initials
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{sic] the Bid Document along with all the returnable documents will
lead to the immediate disqualification of the Bidder ... ".
[9] I shall call this term of the Bid Criteria Document "the mandatory
provision".
[10] The Municipality received bids from TMT, Syntell and Dunamis
Emporium Services (Pty) Ltd.
[11] TMT was told informally by the Municipality that Syntell's bid was
successful.
[12] TMT then tried to obtain written reasons from the Municipality as to
why its bid was not successful. Despite demand, the Municipality
failed to give TMT these reasons. TMT then launched an urgent
application to obtain these reasons. The Municipality initially
opposed this application, but then conceded it by providing TMT with
the BEC and BAC minutes of its decision.
[13] Dunamis Emporium Services (Pty) Ltd's bid was disqualified as it
failed to initial the majority of its bid document.
[14] TMT's bid was also disqualified. One of the reasons for such
disqualification was that TMT failed to initial 3 out of the 550 pages
comprising its bid document.
[15] The Municipality awarded the tender to Syntell and concluded a
contract with it for the provision of the traffic management services.
[16] TMT's bid price of R125.35 was the lowest. Syntell's bid price was
R174 .80.
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[17] The BAC stated in its minutes that the bids of TMT and Dunamis
Emporium Services (Pty) Ltd were fairly disqualified and that it
"applied due diligence on the bid tender document of Syntell., .and
confirmed that the bidder was compliant as per the Bid Evaluation
Reporf'.
[18J TMT noticed that certain pages from Syntell's bid were missing from
the Rule 53 record furnished to it. TMT called for these missing
pages. The Municipality subsequently supplemented the Rule 53
record with the missing pages. It was then that TMT learned that
despite what was stated in the BAC minutes, Syntell's bid contained
39 pages that were not initialled (and in some instances were not
certified).
[19] Thereafter, TMT launched the present application.
Locus standi
[20] The Municipality contends that TMT lacks locus standi to challenge
the award of the tender to Syntell because its own bid was
disqualified.
[21] Counsel for the Municipality argued that once TMT fell out of the race
it no longer had any rights that were adversely affected by the
decision to award the tender to Syntell and that there was therefore
no legally relevant administrative action for it to review.
[22] Counsel for TMT contended that the Municipality's position is
contrary to the authorities referred to below.
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[231 In WDR Earthmoving Enterprises the SCA overturned the decision
of the court a quo that a non-responsive bidder lacked locus standi
to challenge the award of the tender in question. It did so on the basis
that the non-responsive bidder's rights were directly affected by the
decision to exclude that bid. This was because setting aside the
award of the tender would require the tender process to be re
commenced and the non-responsive bidder would be entitled to
compete for the tender.1
[24] In Mojojobe/a the court held that
"On the issue of legal standing, the applicant does not have to make
out a case that the bid would have been granted to it, or that it was
poised for success in respect thereof, if the tender process had run
its course but for the untimely cancellation thereof. It establishes
such standing instead in my view on the basis of its legitimate
expectation to a fair outcome in the tender process which, after the
bids were closed, left it and its co-bidders in a race to the conclusion
entailing an evaluation of the competing compliant bids in due course
and a proper adjudication thereof, even if the recommendation
flowing from such process was going to be that the tender should be
re-advertised. "2
[25] The Constitutional Court in Al/pay entertained a review at the
instance of a bidder who did not qualify for an assessment on fina nee
and preference points.3
[26] With reference to Giant Concerfs4, this division in Synte/1 (Ply) Ltd
held that because a losing bidder participated in the tender process
2
3
WDR Earthmoving Enterprises CC v Joe Gqabi District Municipality (392/2017) (2018]
SASCA (30 May 2018) at paras 12 to 17.
Mojojobela v MECfor the Rural Development and Agrarian Reform, Eastern Cape [573/2017
ZAECBHC 8 (6 October 2017) at para 26.
Al/pay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South
African Social Security Agency 2014 (1) SA 604 (CC) at para 13.
Giant Concerts CC v Rinaldo Investments (Pty) Ltd (2012] ZACC 28.
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by submitting a bid, its commercial interest is direct and real and not
hypothetical or academic.5
[27J These authorities make it clear that TMT has locus standi in this
application. This ground of the Municipality's opposition to the
application must therefore fail.
Merits
The law
[28] Section 217(1) of the Constitution requires organs of state
contracting for goods and services to do so in accordance with a
system that is fair, equitable, transparent, competitive and cost
effective.
[29] The Constitutional Court in Al/pay held that:
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"Compliance with the requirements for a valid tender process,
issued in accordance with the constitutional and legislative
procurement framework, is thus legally required. These
requirements are not merely internal prescripts that SASSA may
disregard at whim. To hold otherwise would undermine the
demands of equal treatment, transparency and efficiency under the
Constitution. Once a particular administrative process is prescribed
by law, it is subject to the norms of procedural fairness codified in
PAJA."6
Synte/1 (Pty) Ltd v Department of Community Safety, Security, and Liaison, Mpumalanga
Provincial Government and Others 11988/2024 (19 May 2025) paras 28 lo 38.
Al/pay supra at para 40.
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[30] The court in Al/pay also cited with approval that principle in
Steenkamp that tender processes require " strict and equal
compliance by all competing tenderers ... ". 7
[31] The award of a public tender is obviously administrative action that
must, in terms of section 33 of the Constitution, be lawful,
procedurally fair and reasonable. PAJA gives contents to these
requirements. I deal with the relevant provisions of PAJA in the
following section.
(32] The import of what Froneman J in Al/pay called the "proper legal
approach" to assessing irregularities in public tenders is as follows:
{33]
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B
32.1 First, the court must determine whether there has been an
irregularity in the sense that there has been a contravention
of a legal requirement of the tender process.
32.2 Second, the court must determine whether this irregularity
gives rise to a recognized ground of review under PAJA . In
determining this issue, the court should, where appropriate,
take into account the materiality of any deviance from the
legal requirements by linking the question of compliance to
the purpose of that provision.
32.3 Third, if the irregularity is material, section 172(1)(a) of the
Constitution requires the decision to be declared unlawful.8
The Preferential Procurement Policy Framework Act, 5 of 2000 ("the
PPPFA") supplements section 217 of the Constitution. It is clear from
At para 39, citing Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 (3) SA (CC)
at para 60.
Al/pay supra at paras 22 to 30.
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section 2 of the PPP FA that it is aimed at regulating what it descrjbes
as an "acceptable tender". An "acceptable fender' is defined in
section 1 as being "any tender which, in all respects, complies with
the specifications and conditions of tender as set out ;n the tender
documenf'.
[34] The SCA in JFE Sapela Electronics held that the " ... acceptance of
a tender which is not 'acceptable' within meaning of the Preferential
Act is therefore an invalid act that falls to be set aside. In other words,
the requirement of acceptability is a threshold requiremenf'.9
[35] The SCA in Dr JS Moroka Municipality held that "... a failure to
comply with prescribed conditions will result in a tender being
disqualified as an 'acceptable tender' under ... the Procurement Act
unless those conditions are immaterial, unreasonable or
unconstitutional. •?lo
[36) In a similar vein, the SCA in Overstrand Municipality held that a
tender was " ... not an 'acceptable' one in terms of the Procurement
Act, in that it did not 'in all respects' comply with the specificatfons
and conditions set out in the RFP' .11
Applied
[37]
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10
11
I turn now to apply the abovementioned legal principles to the facts
of this application.
Chairperson, Standing Tender Committee v JFE Sapela Electronics (Pty) Ltd 2008 (2) SA
638 (SCA) at para 11 .
Dr JS Moroka Municipality v Betram (Ply) Ltd {2014) 1 All SA 545 (SCA) at para 10.
Overstrand Municipality v Water Sanitation Services South Africa (Pty) Ltd (20181 2 All SA
644 (SCA) at para 50.
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Materiality
[38] I deal first with the question of the materiality of the mandatory
provision.
[39] TMT's counsel submitted that the mandatory provision is material. In
essence, this is because it ensures the following: that the bidder
acknowledged the contents of each page; a reduced risk of the bid
document being tainted by fraud or tampering; contractual certainty;
that the bidder attests to the truth and correctness of the information
contained in the bid document; and the authenticity of the returnable
documents.
[40] For the reasons advanced by TMT's counsel, the mandatory
provision is material. The Municipality's counsel correctly conceded
in argument that this is so.
[41] For the same reasons, the mandatory provision is not immaterial,
unreasonable or unconstitutional.
Irregularity
[42] The next issue is whether there was an irregularity in Syntell's tender
or, more specifically, whether Syntell's offer complied with the
mandatory provision.
[43] The Municipality accepts that Syntell's bid contained 39 pages that
were not initialled.
[44] The Municipality attempted to escape the obvious conclusion that
Syntell's bid was irregular as a result of non-compliance with the
mandatory provision by contending that:
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44.1 On its proper construction, the mandatory provision only
applied to those i1ems or documents that appeared above it
on the Bid Criteria Document and not to those items that
appeared below it.
44.2 The pages that were not initialled formed part of the ''Product
Brochure", which appeared below the mandatory provision
on the Bid Criteria Document.
44.3 As a result, the mandatory provision did not apply to the
pages that were not initialled and Syntell's tender did not
contain any irregularity.
[45) It is settled that interpretation is a unitary exercise requiring the
consideration of text, context, and purpose.12 The approach is
objective: it entails the attribution of meaning to the words used by
the parties as they would be understood in context by a reasonable
reader.13
(46) In my view, there is no merit in the Municipality's argument. This is
for the reasons that follow.
[4 7] First, there is nothing in the plain wording of the mandatory provision
to sustain the contention that it applies only to those items that
appear above it on the Bid Criteria Document. On the contrary, the
express requirement that each tenderer was required to initial "each
page of the Tender Document, including all returnable documents
12
13
Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at para
18.
Endumeni (supra) at para 19. See, too, more recently University of Johannesburg v
Auckland Pam Theological Seminary 2021 (6) SA 1 (CC) at paras 64-66.
12
submitted as part of this bid' indicates that each page forming part of
the tender must be initialled regardless of whether they formed part
of a document that appeared above or below the mandatory
provision.
[48] Second, the mandatory provision expressly states that the failure to
initial the "Bid Document along with all the returnable documents will
lead to the immediate disqualification of the Bidder." There is no
definition of "Bid Oocumenf'. In my view, there is no basis, and none
was suggested to me in argument, to interpret this term other than to
include all the pages forming part of the tender regard less of whether
they formed part of a document that appeared above or below the
mandatory provision.
[49] Third, it would be insensible to interpret the Bid Criteria Document in
the manner contended for by the Municipality as this would mean that
important documents forming part of the tender would not need to be
initialled. If this was so, it would undermine the purpose of the
requirement that the tender documents be initialled. For example, the
''Product Brochure", which appears below the mandatory provision,
includes verification that all the equipment can perform in full
compliance with specification or better. This is clearly a critical
document in the tender. There is no reason that I can discern, and
none was suggested to me, why the remaining documents below the
mandatory provision are not similarly important and therefore should
also be initialled.
[50] For these reasons, I conclude that on its proper construction the
mandatory provision required Syntell to initial all the pages forming
part of its tender regardless of whether they formed part of a
document that appeared above or below the mandatory provision.
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[51] Syntell's failure to do so meant that Syntell's bid breached the
mandatory provision and was therefore irregular.
Grounds for review
[521 Once it is established that Syntell's bid contains an irregularity, it
follows that TMT has established the grounds to set aside the
decision to award the tender to Syntell. In essence, this is on one or
more of the following bases:
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52.1 The Municipality made a material error of fact and/or law by
failing to conclude that Syntell's bid was irregular either
because it overlooked the relevant facts or incorrectly
concluded that the failure to initial all the pages of the tender
was a legal requirement. The Municipality's decision to award
the tender to Syntell falls to be set aside in terms of sections
6(2)(e)(iii)14, 6(2)(d) and/or 6(2)(f)(i) of PAJA.
52.2 By disqualifying TMT's bid on the basis that it did not comply
with the mandatory provision and by failing to disqualify
Syntell's bid for the same non-compliance, the Municipality
failed to treat TMT and Syntell equally. Such equal treatment
is the cornerstone of procedural fairness in tenders. The
unequal treatment also rendered the Municipality's decision
arbitrary and capricious. The Municipality's decision to award
the tender to Syntell therefore falls to be set aside in terms of
section 6(2)(c) and/or section 6(2)(e)(iv) of PAJA.
52.3 Syntell's non-compliance with the mandatory provision meant
that its bid was not an "acceptable tender" in terms of the
Chairman, State Tender Board v Digital Voice Processing (Pfy) Lid 2012 (2) SA 16 (SCA) at
para 34.
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PPPFA and was thus unlawful. The Municipality's decision to
award the tender to Syntell therefore falls to be set aside in
terms of section 6(2)(i) of PAJA.
[53] Although there are other grounds upon which the Municipality's
decision falls to be set aside, it is not necessary to canvass them as
the grounds for review set out above have been clearly established.
[54] Those grounds are sufficient to sustain the applicant's cause of
action for the declaratory relief that it seeks and to set aside the
Municipality's decision to award the tender to Syntell and to conclude
a contract or contracts with it for the traffic services. As the
Constitutional Court held in Al/pay, "[o]nce a ground of review under
PAJA has been established there is no room for shying away from it.
Section 172(1)(a) of the Constitution requires the decision to be
declared unlawful."
Conclusion
[55] For these reasons, the application must succeed.
[56] As there were no other compliant bids, the question of remitting the
decision back to the Municipality or the substitution thereof does not
arise.
[57] The appropriate order is to declare that Sytnell's bid was non
compliant and to set aside the Mun icipality's decisions to accept
Syntell's tender and award any contract(s) to it for the provision of
traffic services.
[58] This means that the tender process must start afresh.
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[59] Counsel for both TMT and the Municipality accepted that it will take
the Municipality some time to complete that process and that I must
therefore allow the existing contract(s) to remain in place to
accommodate that process. In my view, allowing the Municipality
time until the end of March 2026 to complete a new tender process
is sufficient.
[60] In respect of costs, they must follow the result.
Order
[61] In the circumstances, I make the following Order:
61 .1 Declaring that the bid submitted by the second respondent in
Tender No: COM/SCM/T/09/2023/24 ("the Tender') is invalid.
61.2 The decision of the first respondent taken on 5 February 2024
to award the Tender to the second respondent is reviewed and
set aside.
61.3 Any contract(s) concluded between the first respondent and
the second respondent pursuant to the first respondent's
decision to award the Tender to the second respondent is
reviewed and set aside with effect from 31 March 2026.
61.4 The first respondent is liable for the costs of this application,
such costs to include the costs of counsel on scale C
MILLER AJ
Acting Judge of the High Court, Cape Town
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APPEARANCES
Counsel for the Applicant: Adv LW Ackerman
Instructed by: Pepler O ' Kennedy Attorneys
Counsel for the First Respondent: Adv Jaco van Rooyen
Instructed by: VA Mazabane Attorneys Inc.