|This case dealt with a tender review of an award challenged for non-compliance with the Preferential Procurement Policy Framework Act 5 of 2000 (“PPPFA”).
On or about 11 March 2015, the Laser Transport Group (Pty) Ltd t/a Stuttaford Van Lines (the “Laser Group”) and Gin Holdings (Pty) Ltd (“Gin Holdings”) (the “Appellants”), which companies conducted business as furniture removers made a tender bid for removals (the “First Tender”) by the name of Laser Transport Group (Pty) Ltd t/a Stuttaford Van Lines and Gin Holdings Unit Venture in response to a 4 (four) year contract tender issued by the Department of International Relations and Co-operation (“DIRCO”) for removal and insurance services for household goods and vehicles belonging to DIRCO diplomats within South Africa and abroad in the amount of R117,673,286.0. Elliot Mobility (Pty) Ltd (the “First Respondent”) and Neo Thando/Elliot Mobility (Pty) Ltd (the “Second Respondent”) (the “Respondents”) also made a response to the tender bid in the amount of R215,882,882.00.
These services of removal and insurance were provided by Stuttaford Van Lines (Pty) Ltd, a division of the Laser Group, together with Gin Holdings since 2011 for a period of 4 (four) years which term expired on 31 March 2015.
On or about 06 August 2015, DIRCO directed a letter to the Appellants advising it had cancelled the First Tender and that the same would be re-advertised with revised terms of reference without reasons for cancellation. On or about 11 August 2015, a second invitation to tender was advertised (the “Second Tender”). The terms of reference were revised due to a complaint by a third party that the requirement that bidders were required to have an international membership certificates was exclusionary to previously disadvantaged movers in that they were unlikely to have the required certificates and could therefore not be able to participate in the international movers’ market.
The results of the Second Tender reflected a final scoring of 95 points and 73 points for the Appellants and the Respondents, respectively. The Second Tender was nonetheless awarded to Respondents regardless of the lower coring on the basis that the Appellants’ price was unfavourable as the lowest item in that the price was below an average price as determined by DIRCO by calculating the average prices of the other 5 (five) bidders who had responded to the invitation to tender.
The Appellants were aggrieved by the aforesaid decision by DIRCO in respect of the First Tender and Second Tender and launched a review application in the Gauteng Division, Pretoria High Court (the “court a quo”) and sought an interim relief restraining DIRCO from implementing the agreement concluded with the Respondents.
On 12 December 2015, the court a quo granted an order that the application for interim relief be struck off the roll due to lack of urgency. On 11 December 2016, the court a quo made an order which set aside the award of the Second Tender and awarding same to the Appellants on the basis of the Appellants’ reasons for challenging the award.
On appeal, the full court set aside the order setting aside the award to the Respondents and awarding it to the Appellants and ordered that same be replaced with a dismissal of the Appellants’ leave to appeal application. On appeal to the Supreme Court of Appeal (the “SCA”), the argument was the lawfulness of awarding the tender to the Respondents despite the Appellants’ lower bid price. The parties were requested to provide submissions in respect of whether any decision in the appeal would have a practical impact in terms of section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 (the “Act”) in that the 4 (four) year contract entered into with the Respondents in 2015 was due to expire within 3 (three) months from the date of hearing of the appeal (being November 2019).
Section 16(2)(a)(i) provides that:
“when at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.”
|The SCA found that the main principle is that courts of law should not make decision on matters only for purposes of academic interest without any practical impact. The SCA also held that the purpose of section 16(2)(a) of the Act is to alleviate the heavy workload of courts of appeal. Accordingly, the SCA has a discretion to deny hearing the merits of a matter where an appeal is moot or to hear an appeal although it is moot, in the case where there is a separate legal issue of public importance which would affect future matters.|
Accordingly, the SCA exercised its discretion to hear appeals which are moot where the issues involve a separate legal point of public importance that would affect matters in the future. The Appellants argued that the interpretation of section 2(1)(a) of the PPPFA involved constitutional matters that had an effect on public procurement, just administrative action, and access courts.
The SCA made reference to the case of Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others  ZASCA 166; 2013 (3) SA 315 (SCA), which case illustrated the even in matters where constitutional matters are affected, if the decision applies to a case specifically, there are no grounds for the court to exercise its discretion in favour of hearing an appeal which is moot.
|Furthermore, the SCA held that:
“Even if the assessment of objective factors under s2(1)(b)(i) of the PPPFA was incorrectly applied, or the tender process was tainted by illegality or the Full Court’s substitution of tender award was wrong, no basis was laid for a conclusion that the matter raised issues of public importance.”
The SCA found that the Respondents’ assertions in respect of the mootness when the leave to appeal was heard cannot be ignored when determining whether there were exceptional circumstances for the court to exercise its jurisdiction in terms of section 16(2)(a)(ii) of the Act. Further, the Appellants failed to seek a preferential date for the appeal to be heard and as such, the application was dismissed with costs.
The Supreme Court of Appeal has a discretion not to entertain appeals which are moot where issues arising involve a discrete legal point of public importance that would affect matters in the future.
Written by Mohau Ledwaba Checked by Omphile Boikanyo