Court of Appeal ends nine‑year Kgatleng water tender saga

 

The Court of Appeal has finally closed the chapter on the long running Kgatleng water tender dispute, bringing to an end a controversy that has dragged on since 2017.

Government, through the Public Procurement and Asset Disposal Board (PPADB), was dragged before the court by Black Cad Investment (Pty) Ltd following the cancellation of the tender.

In its determination of the review application, the High Court found that the decision for the termination was rational and, for that reason, dismissed the review application.

Black Cad Investment challenged this decision and launched an appeal. In its ruling, the Court of Appeal stated that the legal controversy culminating in the appeal arises from the cancellation of a tender for the provision of a water line, a reservoir, an outfall sewer line and minimal services in Morwa West, Kgatleng.

The tender had been floated by the Ministry of Land Management, Water and Sanitation Services in early August 2017.

“In the court a quo, the appellant launched judicial review proceedings challenging the cancellation of the said tender, on the common law review grounds of irrationality and illegality,' the judgement handed down by Justice Isaac Komboni Lesetedi, Court President Tebogo Tau and Lot Moroka reads.

Reading the Judgement, Justice Lesetedi stated that the cancellation challenged was a decision communicated through a letter dated 13th September 2021. He said that letter gave two reasons for the Board's decision.

“The first was that the tender evaluation process had taken a long time to complete and because of the age of the tender as well as the attendant delay, it would no longer be practicable to expect any bidder to carry out the works on the 2017 prices. The second was to uphold a decision made by the Ministerial Tender Committee (MTC) cancelling the tender upon a finding of a tender re-evaluation exercise that none of the bidders to the tender were compliant,” he said.

Black Cad Investment had appealed to the Board against the decision of the MTC. In its determination of the review application, the court a quo found that the decision for the termination was rational and, for that reason, dismissed the review application, Justice Lesetedi said, adding that the appeal is against that judgement.

Said the judge, “Since the initial evaluation of the tender, the evaluation process became a long-drawn-out four-year nightmare beset with controversy and challenges even up to litigation and back to re-evaluation, culminating in the decision taken on review.

Resultantly, the project itself has become a mirage, probably never to be realised in the foreseeable future. For the determination of this appeal, the Court fortunately does not have to traverse all the sore twists and turns of the saga in that the appeal stands to be determined on a shortened rendition.”

The Invitation to Tender (ITT) documents for the project reflect that the closing date for the bids was the 11th September 2017. The engineer's estimated cost of the project was P70 966 042.80, with the estimated completion period for the project being 12 months from the authorisation date. Several bidders responded to the ITT.

The court pointed out that on the failure of the appellant to show that the court a quo erred in dismissing the review application, “this Court finds, as did the court a quo, that the issue of substitution order and the question of directing the procuring entity to enter into contract negotiations with the appellant are rendered irrelevant.”

“The prayer for an order of substitution would in any event have failed in the light of the factual dispute hurdle the appellant faced on the issue of whether it had been compliant with the procurement requirements. There is neither a factual nor legal foundation for that remedy,” the judge said, dismissing the appeal with costs.