THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

30 May 2018

STATUS

Immediate

WDR Earthmoving Enterprises & another v The Joe Gqabi District Municipality &
others (392/2017) [2018] ZASCA 72 (30 May 2018)

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

The SCA today upheld in part an appeal by a contractor who had unsuccessfully tendered
for a construction project, which was awarded by the Municipality to a competing tenderer. It
was held that both competing tenders did not comply with a peremptory requirement in the
conditions of tender and were accordingly non-responsive. The Municipality did not possess
a discretion to condone non-compliance with the peremptory requirement which could not be
regarded as trivial, or of a minor nature. In addition, the requirement could not be described
as immaterial, unreasonable or unconstitutional. In the result, the appeal by the unsuccessful
tenderer to review and set aside the decision by the municipality which declared its tender as
non-responsive was refused, but its appeal against the decision by the municipality to award
the tender to the successful tenderer was upheld. The award of the tender to the successful
tenderer was reviewed and set aside, with the consequence that the municipality would have
to recommence the tender process for the construction project.