THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE

CASE NO:   482/2006

In the matter between

TETRA MOBILE RADIO (PTY) LIMITED                                      APPELLANT

and

THE MEMBER OF THE EXECUTIVE COUNCIL OF
THE DEPARTMENT OF WORKS                                            1ST RESPONDENT

THE CHAIRMAN OF THE CENTRAL
PROCUREMENT COMMITTEE                                             2ND RESPONDENT

INFOTRUNK (PTY) LIMITED                                                 3RD RESPONDENT

THE CHAIRMAN OF THE APPEALS TRIBUNAL              4TH RESPONDENT

THE MEMBER OF THE EXECUTIVE COUNCIL OF
THE DEPARTMENT OF FINANCE                                        5TH RESPONDENT

CORAM:
HOWIE P, MTHIYANE, LEWIS, HEHER and VAN
HEERDEN JJA

HEARD:

29 AUGUST 2007
DELIVERED:
28 SEPTEMBER 2007

Summary:
Interpretation and application of the KwaZulu Natal
Procurement Act 3 of 2001 – Access to information under
the said Act.

Neutral Citation:
This judgment may be referred to as Tetra Mobile Radio v
MEC, Department of Works [2007] SCA 128 (RSA).

MTHIYANE JA

MTHIYANE JA:

[1] This is an appeal, with the leave of this court, against the judgment
and order of Murugasen AJ sitting in the Pietermaritzburg High Court,
refusing to grant the appellant, Tetra Mobile Radio (Pty) Limited, an
order directing the respondents to make available to it certain documents
relating to a provincial tender. The appellant required the documents in
order to formulate its grounds of appeal to the Appeals Tribunal against
the decision of the Central Procurement Committee (‘the Procurement
Committee’) awarding the tender to the third respondent, Infotrunk (Pty)
Limited.

[2] The appellant was one of three tenderers who had tendered for the
award of contract ZNT 2482W: Province of KwaZulu Natal, for the
maintenance of repeater networks. The appellant had held a similar
contract for the previous four years and had anticipated that the new
contract would be awarded to it because of its track record in providing
the service. However, the Procurement Committee awarded the tender to
the third respondent. The appellant noted an appeal to the Appeals
Tribunal against the decision of the Procurement Committee in terms of
s 20 of the (now repealed) KwaZulu Natal Procurement Act 3 of 2001
(‘the Procurement Act’). The relevant provisions of the section read:
‘20(1) The following entities aggrieved by a decision of the Central Procurement
Committee . . . may appeal to the Appeals Tribunal in the prescribed manner.
(a)
. . .
(b)
a tenderer.

(2)(a) . . . [a] tenderer must, within five days of receipt of the notification under
section 5(1)(b) or 35(2) of the decision appealed against, deliver written notification
of an intention to appeal.
(b)
. . . [a] tenderer may, together with the notification of intention to appeal under
paragraph (a), deliver a request for written reasons for the tender award decision.
(c)
The Central Procurement Committee . . . must deliver to the appellant the
written reasons requested under paragraph (b) within ten days.
(d)
The appellant must, within ten days of receipt of the written reasons delivered
under paragraph (c), or, failing a request for written reasons under paragraph (b),
within the ten days referred to in paragraph (c), submit written representations to the
Appeals Tribunal indicating sufficiently and without unnecessary elaboration the
grounds and the basis of the appeal and the nature of the complaint.
(3)
Upon receipt of a notice of intention to appeal under subsection (2)(a), the
Appeals Tribunal must notify other tenderers who may be adversely affected by the
appeal in writing of the appeal and invite them to respond within five days.
(4)
No oral hearing of appeals will be allowed unless the Chairperson of the
Appeals Tribunal, in the interests of justice issues a directive indicating otherwise, in
which event the procedure to be followed will be as prescribed.
(5)
A decision of the majority of the members of the Appeals Tribunal will be the
decision of the Appeals Tribunal.’

[3] The notice of appeal was accompanied by a request for reasons in
terms of s 20(2)(b) for the decision taken by the Procurement Committee.
The deponent to the founding affidavit, a director of the appellant, stated
that the grounds of appeal were submitted without the appellant having
had sight of various documents which in his view were vital for it to
formulate a proper set of grounds of appeal and the basis of its appeal.

[4] While reasons for the decision taken by the Procurement
Committee to award the tender to the third respondent were furnished, the
appellant did not consider them adequate. The appellant’s complaint was
that they merely indicated the points allocated, the basic method of

allocating points and the fact that the third respondent had received the
highest points. It contended that it still needed further documents and
information.

[5] The information requested by the appellant was the following or
was contained in the following documents:
‘(a)
Copies of all tenders received by you in response to tender enquiry ZNT
2482W;
(b)
A Schedule setting forth the dates upon which each and every tender was
received by you;
(c)
Copies of all applications for preference points (ZNT 30) received by you
from the various tenderers;
(d)
The names of the members of the Tender Evaluation Committee which
Committee was responsible for the evaluation of the tenders received in response to
tender enquiry ZNT 2482W;
(e)
The name of the chairperson of the abovementioned Tender Evaluation
Committee;
(f)
Copies of the ratification of the appointment of the members of the Tender
Evaluation Committee by the Minister responsible for the administration of your
department;
(g)
Copies of all reports, minutes and other documentation of whatsoever nature
received in response to tender enquiries ZNT 2482W and dealt with by the Tender
Evaluation Committee;
(h)
A copy of the recommendation made by the Tender Evaluation Committee to
the Tender Award Committee in terms of the provisions of section 29(2)(3) of the said
Act;
(i)
The name of the members of the Tender Award Committee which Committee
adjudicated the tenders received under tender enquiry ZNT 2482W as provided for in
section 29(a) of the said Act and awarded the contract in question;
(j)
In the event of any persons having been co-opted as advisors to either the
Tender Evaluation Committee or the Tender Award Committee or to both said
Committees in terms of Section 38 of the said Act, the name(s) of such advisor(s);

(k)
Whether the function to consider and award the tenders received under tender
enquiry ZNT 2482W was delegated to an official in the employ of your department as
provided for in section 39 of the said Act. In the event of such a delegation having
taken place, you are requested to provide a copy of the written delegation;
(l)
Copies of all reports, minutes and other documentation of whatsoever nature
received by the Tender Award Committee under or in the process of adjudicating
tender enquiry ZNT 2482W;
(m)
Copies of the minutes of the deliberations of the Tender Award Committee;
(n)
A detailed exposition of the points awarded to each of the tenderers in
accordance with the provisions of the said Act.’

[6] The first, second, fourth and fifth respondents (‘the institutional
respondents’), through the Head of the Department of Works: Province of
KwaZulu Natal (‘HOD’), responded to the request by furnishing the
appellant’s attorneys with an ‘adjudication report’, together with what the
HOD considered to be the ‘the relevant portions of the minutes of the
Tender Evaluation Committee and the Tender Award Committee’. The
reasons furnished to the appellant were considered by the HOD to
provide an answer to the request contained in paras (g), (h), (l), (m) and
(n) above. As to the request in para (b), the HOD said all tenders were
received and opened on the date of the closing of tenders. As to paras (d),
(e) and (i), the response was that the members of the Departmental
Committee which considered the tenders, as well as the chairpersons of
these committees were named in the relevant minutes. As to para (j), the
HOD replied that the tenders were considered by the Departmental
Tender Evaluation Committee and the Tender Award Committee. The
HOD went on to say that the successful tenderer was approved by the
Procurement Committee. The HOD refused to furnish any information on
the details of the tenders ‘as it is considered to be confidential
information belonging to each tenderer.’

[7] The appellant launched an application in the court a quo seeking an
order directing the respondent to furnish it with written reasons for the
decision of the Procurement Committee and the information listed in
paragraph 5 above. As already indicated, the application was
unsuccessful in the court a quo – hence this appeal. The appellant is no
longer persisting in its request for reasons but is pressing on with its
claim for access to the documentation referred to and the respondents
persist in their refusal to furnish it.

[8] It was argued before us that the appellant, as unsuccessful tenderer,
had a right of appeal against the decision of the Procurement Committee
(s 20(1) of the Procurement Act set out above). Until the information
requested is furnished it is impossible, contends the appellant, for it to
formulate and prosecute an appeal pursuant to the Procurement Act.
Counsel submitted that a tender process and all the proceedings
associated with it have to be fair. Indeed the stated purpose of the
Procurement Act as it appears in the long title is to give effect to s 217 of
the Constitution and to provide for matters connected therewith. Section
217 guarantees fair, equitable, transparent, competitive and cost-effective
procurement processes. In addition, the decision awarding or refusing a
tender constitutes administrative action and therefore engages the right to
just administrative action. This requires that in considering a tender, the
decision-maker must conduct itself in a procedurally fair manner. In the
present matter, the conduct of the second respondent, the Chairperson of
the Procurement Committee, is of course not under scrutiny. The
appellant is still attempting to get to that enquiry. The appellant contends,
however, that a fair hearing before the Appeals Tribunal will be
impossible unless it is furnished with the documents it requires. It thus

argues that the only way to achieve a fair hearing is for the appellant to be
provided with the required documentation: otherwise the right of appeal
is rendered nugatory.

[9] The appeal procedure, as already indicated, is provided for in s 20
of the Procurement Act. Under this section the appellant is entitled to
reasons for the decision (subsection (2)(b)) and the Procurement
Committee is obliged to furnish reasons to the unsuccessful tenderer
(subsection (2)(c)). But s 20 says nothing about any entitlement to receive
documentation for the purposes of noting an appeal or that the
Procurement Committee or any other relevant body must act fairly
towards the unsuccessful tenderer. Counsel for the third appellant,
Infrotrunk (Pty) Ltd, asserted during argument that there was thus no
obligation on the part of the Procurement Committee to act fairly. The
argument is misplaced. First, it ignores the fact that the Procurement Act
has as its object the giving of effect to s 217 of the Constitution, to which
I have already referred. Second, fairness is inherent in the tender
procedure. Its very essence is to ensure that before Government, National
or Provincial, purchases goods or services, or enters into contracts for the
procurement thereof, a proper evaluation is done of what is available and
at what price, so as to ensure cost-effectiveness and competitiveness.
Fairness, transparency and the other facts mentioned in s 217 permeate
the procedure for awarding or refusing tenders. (See Logbro Properties
CC v Bedderson NO;1 Metro Projects CC v Klerksdorp Local
Municipality;2 Steenkamp NO v Provincial Tender Board, Eastern
Cape.3)

1 2003 (2) SA 460 (SCA).
2 2004 (1) SA 16 (SCA) paras 11 and 12.
3 2007 (3) SA 121 (CC) paras 20 and 21.

[10] Although there is no specific mention of fairness in the section, it
therefore stands to reason that the requirement has to be read in. The right
of appeal afforded by the Procurement Act is partly to give effect to the
requirement of procedural fairness.

[11] It is significant also that the appeal provided for in s 20 is in
substance a review. This is demonstrated by s 21 of the Act which sets
out the grounds of appeal. These are that interference by the Appeals
Tribunal may occur only where the Procurement Committee, a Tender
Award Committee or a member of any such committee:
‘(a)
committed misconduct in relation to their duties as members;
(b)
committed a gross irregularity;
(c)
exceeded its or their power;
(d)
awarded a tender in an improper manner; or
(e)
awarded a tender inconsistent with the objectives of this Act.’
An Appeals Tribunal cannot determine whether any of these grounds has
been established without reference to the documents that were before the
relevant committee, the record of the relevant meetings and the reasons
for the decision. In this matter the Tribunal would need sufficient
information in order to determine (inter alia) whether the third
respondent was capable of undertaking the work. This follows from the
very nature of the process and the grounds for interference. There is little
purpose served if the unsuccessful tenderer does not know what case it
must meet.4 This is a basic tenet of fairness, which in turn is a
fundamental requirement of administrative action.

[12] The appellant argues that the fairness contemplated in the tender
procedure means that it should have been given sufficient information, by

4 Naude v Fraser 1998 (4) SA 539 (SCA) at 563F-G.

way of disclosure of documents, to enable it to know what material was
before the Tender Evaluation Committee when it concluded that the third
respondent was capable of undertaking the work, why the appellant was
unsuccessful and its reasons for coming to these conclusions. This, argues
the appellant, flows from the nature of the process and enquiry rather than
from any specific provision of the Procurement Act. The appellant argues
that it should have been ‘put in possession of such information as will
render [its] right to make representations a real and not an illusory one.’
(See Heatherdale Farms (Pty) Ltd v Deputy Minister of Agriculture.5)

[13] The argument advanced by the institutional respondents that the
appellant should have followed the procedure set out in the Promotion of
Access to Information Act 2 of 2000 (‘PAIA’) cannot be upheld. One has
only to look at the disparity between the time frames prescribed for the
request for information under the Procurement Act (s 20) and those laid
down for access to information under PAIA (s74─77) to conclude that
the latter Act is irrelevant to the appellant’s claim. Although the argument
based on PAIA was not abandoned, it is not one that counsel for the
institutional respondents pursued with any degree of conviction. What
counsel persisted in vigorously was that the institutional respondents
could not furnish the documentation because it was confidential. The
appellant, continued the argument, thus failed to prove its entitlement to
the documents in question.

[14] The appellant contended that the respondents had not made out a
case for reliance on confidentiality: if there was any apprehension on the
part of the respondent regarding any specific document, that concern
could be met by making an order similar to the one granted by

5 1980 (3) SA 476 (T) at 486F-G.

Schwartzman J in ABBM Printing & Publishing (Pty) Ltd v Transnet
Ltd,6 where the parts of the documents in respect of which disclosure
might result in breach of confidence were to be identified and marked as
confidential and the applicant’s attorney was prohibited from disclosing
such parts to any other party, including the applicant, save for the purpose
of consulting with counsel or an independent expert. In that way a fair
balance could be achieved between the appellant’s right of access to
documentation necessary for prosecuting its appeal, on the one hand, and
the third respondent’s right to confidentiality, on the other.

[15] It is true that the appeal provisions embodied in s 20 of the
Procurement Act are very terse. But they do not, in my view, prevent a
conclusion that the Appeals Tribunal must have before it the same
information that was before the Procurement Committee in order to
provide a fair hearing to the aggrieved party, in this case the appellant. By
the same token the appellant, too, must have at least that information to
enable it to formulate its grounds of appeal. It is clear that s 20 of the
Procurement Act, read with s 217 of the Constitution, contemplates a fair
system which envisages that, from the time of the award, the appellant
has the right of access to information necessary to formulate its appeal
properly. The argument by counsel for the third respondent that fairness
is not inherent in the appeal procedure provided for in s 20 would, if
adopted, lead to absurd or even unconstitutional results, by denying the
appellant access to information, a right to which is entrenched in s 32 of
the Constitution. The argument also ignores the grounds of appeal which
by their very nature embody the requirement of fairness.

6 1998 (2) SA 109 (W) at 122I – J to 123A-B.

[16] I turn to the question of costs. Counsel for the institutional
respondents argued that his clients should not be ordered to pay costs as
they had engaged in litigation simply in order to assist the court. The
respondents, so goes the argument, were caught between the competing
interests of the appellant, on the one hand, and those of the third
respondent, on the other. This argument is in my view untenable as the
institutional respondents effectively did oppose the application for access
to documents. The deponent for these respondents, Dr Kwazi Brian
Mbanjwa, even asked for the appellant’s application to be dismissed with
costs. The same approach was adopted in the heads. In its turn the third
respondent seeks to avoid costs by contending that it came on appeal to
argue a constitutional point and should for that reason not be mulcted in
costs. In my view this argument is also flawed. We are concerned here
with the interpretation and application of the Procurement Act –
legislation passed to give effect to the right of access to information under
the Constitution. We are not directly concerned with the interpretation
and application of the provisions of the Constitution. I see no valid reason
why costs should not follow the event.

[17] In the result the appeal is upheld. The respondents are ordered
jointly and severally to pay the appellant’s costs of appeal, including
those of the application for leave to appeal and the costs of two counsel
where so employed, the one paying the other to be absolved. The order of
the court a quo is set aside and replaced with the following:
‘1.
The first, second, fourth and fifth respondents are ordered to
furnish the applicant with the following documentation within
fourteen days of this order:
(i)
The minutes of the Central Procurement Committee meeting
at which contract ZNT 2482W was awarded;

(ii)
The complete set of tender documents submitted by the
Third Respondent and in particular;
(a)
the Tender Form “Main Contract”;
(b)
the application for preference points claim form
(ZNT30, pages 1 – 12);
(c)
the document entitled “additional particulars of the
tenderer” at pages 1 – IV;
(d)
the tax clearance certificate submitted by Third
Respondent;
(e)
the authority to sign the tender;
(f)
the declaration of interest;
(g)
the site inspection certificate relating to Third
Respondent;
(h)
the “Addendum A” form which contains the list of
proposed specialist sub-contractors;
(i)
the whole of part 6, together with product pamphlets
submitted by the Third Respondent;
(j)
the whole of part 7;
(k)
a detailed exposition of the points awarded to each of
the tenderers in accordance with the provisions of the
KwaZulu-Natal Procurement Act (No. 3 of 2001).
(iii) Letters and/or reports, if any, submitted by consultants GA
du Toit (Pty) Ltd in connection with the various tenders;
(iv)
The further documentation which was before the Central
Procurement Committee when it made its decision with
regard to the aforesaid tender and which has not been
included in the above.
2.
The respondents are ordered to pay the costs of this application
jointly and severally, the one paying the other to be absolved;

3.1
On the copy of each document referred to in para 1 above, the
respondents shall mark or record that part of the document which it
considers to be confidential.
3.2
Save for purposes of consulting with counsel or an independent
expert, the applicant’s attorney shall not disclose to any other
party, including the applicant, any part of a document in respect of
which the respondents claim confidentiality.
3.3
Should the applicant dispute any claim to confidentiality and
should the parties be unable to resolve such dispute, the applicant
shall on notice to the respondents and any person having an interest
therein, have the right to apply to a judge of the Pietermaritzburg
High Court in chambers for a ruling on the issue.
3.4
Should circumstances require, either party shall have the right to
apply to a judge of the Pietermaritzburg High Court in chambers
for an amendment to paras 3.1, 3.2 and 3.3 of this order.’

_____________________
KK MTHIYANE
JUDGE OF APPEAL

CONCUR:

HOWIE P
LEWIS JA
HEHER JA
VAN HEERDEN JA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
28 September 2007

Status:
Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.

TETRA MOBILE RADIO v MEC, DEPARTMENT OF WORKS
[2007] SCA 128 (RSA).

[1] The SCA today upheld an appeal by Tetra Mobile Radio against
the decision of the Pietermaritzburg High Court. The High Court had
dismissed Tetra Mobile’s application for an order directing the MEC of
the Department of Works of the Province of KwaZulu Natal and other
tender bodies to make available to it certain documentation required for
purposes of noting an appeal to the Appeals Tribunal against the decision
of a Central Procurement Committee.

[2] Tetra Mobile had been an unsuccessful tenderer for the award of a
contract for the maintenance of repeater networks in KwaZulu Natal. The
tender had been awarded to another company, Infotrunk (Pty) Limited.

The request for documentation was refused by the MEC of the
Department of Works and other tender bodies on the basis that the
documents were confidential. The SCA held that fairness dictated that the
documents that were before the Central Procurement Committee be made
available to Tetra Mobile, so as to enable it to prosecute a fair hearing
before the Appeals Tribunal. The order made in the High Court was
accordingly set aside and replaced with an order directing that the
required documents be made available to Tetra Mobile. To meet the
concern raised by the respondents in relation to confidentiality, the SCA
ordered that, where confidentiality is claimed the document concerned
should be marked and identified, and the reason given as to why non-
disclosure is claimed in respect thereof.