SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 447/2018
In the matter between:

CTP LIMITED

FIRST APPELLANT

BONGANI RAINMAKER
LOGISTICS (PTY) LTD

SECOND APPELLANT

NDABASE PRINTING
SOLUTIONS CC

THIRD APPELLANT
and

THE DIRECTOR-GENERAL
DEPARTMENT OF BASIC
EDUCATION

FIRST RESPONDENT

THE MINISTER
OF BASIC EDUCATION

SECOND RESPONDENT

LEBONE LITHO PRINTERS
(PTY) LTD

THIRD RESPONDENT

NOVUS HOLDINGS LIMITED

FOURTH RESPONDENT

UTI SA (PTY) LTD

FIFTH RESPONDENT

THE MINISTER OF FINANCE

SIXTH RESPONDENT

NATIONAL TREASURY
TRANSVERSAL CONTRACTING
OFFICE

SEVENTH RESPONDENT

Neutral citation: CTP JV and another v The Director-General
Department
of
Basic
Education
and
another
(447/2018) [2018] ZASCA 156 (20 November 2018)

Coram:
Shongwe ADP, Willis, Zondi, Mathopo JJA, and
Mokgohloa AJA
Heard:

14 September 2018
Delivered:
20 November 2018

Summary:
Procurement process – Irregularities – Failure to treat
bidders equally – Implementation of consensus seeking approach
unreasonable – Differential treatment of bidders tainted process and
rendered evaluation procedurally unfair

___________________________________________________________
ORDER
____________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Murphy J
sitting as court of first instance):
1. The appeal succeeds with costs, including costs of two counsel.
2. The order of the court a quo is set aside and replaced with the
following order:
‘(a) The decision of the first respondent to award the tender to
Lebone Consortium to provide the printing, packaging and
distribution of workbooks to public schools from 1 April 2017 to
31 March 2020 with the option of a further two year extension, is
constitutionally invalid.
(b) The operation of the invalidity order is suspended until 31
March 2020 pending the award of a lawful tender by the first
respondent.
(c) The first to fifth respondents are ordered jointly and severally
to pay the applicants’ costs, including costs of two counsel.’
3. CTP JV’s and Lebone Consortium’s bids should be re-evaluated in
terms of the functionality stage by the newly constituted BEC and
BAC.

___
JUDGMENT

___
Mokgohloa AJA (Shongwe ADP, Willis; Zondi and Mathopo JJA
concurring):

Introduction
[1] This is an appeal against the judgment and order of the Gauteng
Division of the High Court, Pretoria dismissing the application by the
appellants (CTP JV) for an order reviewing and setting aside a decision of
the first respondent, the Director-General Department of Basic Education
(DBE), awarding a tender to the third to fifth respondent (Lebone
Consortium). The tender was for the printing, packaging and distribution
of workbooks to school learners across the country for three years with
the possibility of a two year extension.

Background
[2] Lebone Consortium has been the effective incumbent in respect of
the provision of workbooks since November 2011. On 13 November
2015, National Treasury invited bids for the tendered work for the period
1 April 2006 to 31 March 2019. This would cover the provision of the
workbooks for 2017, 2018 and 2019 school years with a possibility of a
further two-year extension. The closing date for bids was 14 December
2015.

[3] The tender documents included special conditions of contracts
which indicated that bids would be assessed in a four phase process: first,
bidders would be measured for compliance against several mandatory bid
requirements; second, the functionality of bidders would be assessed

against a pre-determined set of criteria and sub-criteria, measuring a
bidder’s ability to perform the tendered work; third, bidders which met
the functionality threshold would be allocated a score based on their price
and empowerment credentials; and fourth, a recommendation and award
would be made.

[4] Clause 2.2 of the special conditions of the contract provided for the
evaluation of bids against four weighted functionality criteria: capacity
(70%); operation strategy (15%); risk management strategy (10%); and
local economic development strategy (5%). Capacity was to be assessed
against five sub – criteria: (a) proven experience in printing, binding,
packaging and delivery of large volumes of materials; (b) printing
capacity; (c) labour capacity; (d) fleet availability; and (e) warehousing
equipment. Each criterion and sub–criterion was allocated a weight set
out in a table, based on its relative importance (the weighting table).
Bidders had to attain a minimum score of 80% for functionality to qualify
for further consideration. The unusually high level of the threshold was in
recognition of the functional complexity of the tender.

[5] The high monetary value of the tender required a 90/10 preference
point system in the third phase, with 10 for Broad-Based Black Economic
Empowerment (BBBEE).

[6] A briefing session was held on 2 December 2015. Thereafter on
8 December 2015, National Treasury distributed a functionality score
card which was intended to be used in conjunction with the weighting
table to determine if bidders met the 80% functionality threshold.

[7] In accordance with Regulation 16A6.2 of the Treasury
Regulations1 and the DBE’s Supply Chain Management Policy (SCMP),
the process had to first serve before a Bid Evaluation Committee (BEC).
The BEC would make a recommendation to the Bid Adjudication
Committee (BAC). The BAC in turn would make a recommendation to
the Director General (DG) to make the final award.

[8] Out of 11 bids received, only Lebone Consortium and CTP JV met
the mandatory requirements. The BEC proceeded to evaluate the
functionality of these two bids. Using the weighting table and the score
card, the BEC awarded Lebone Consortium a score of 93.2% and CTP JV
a score of 62.67%. It excluded further consideration of CTP JV’s bid for
price and preference and recommended the award of the tender to Lebone
Consortium. The BAC did not accept the recommendation and it was
suggested that the tender process should recommence. Subsequently, the
tender was cancelled on 12 April 2016.

[9] On 29 April 2016, CTP JV launched an application challenging the
lawfulness of the decision to cancel the tender.  The Rule 53 record and
reasons revealed that the BEC had concluded that of the eleven bids, only
Lebone Consortium and  CTP JV had met the minimum requirements, but
CTP JV failed to pass the functionality threshold and has thus been
excluded. Upon receiving this information, CTP JV withdrew its
application.

[10] In the meantime, Lebone Consortium had filed a counter
application challenging the cancellation decision. This counter
application was opposed by the DBE and CTP JV. The DBE accepted

1 Treasury Regulation, GN R225, GG 27388 of 15 March 2005.

that the tender ought to have been cancelled on the grounds, inter alia,
that the application of the scorecard had caused some confusion to the
prejudice of CTP JV.

[11] Whilst the decision to cancel the tender and the ensuing litigation
proceeding, an ad hoc arrangement was concluded between Lebone
Consortium and the DBE to ensure that workbooks would be provided in
the 2017 school year.

[12] Lebone Consortium’s application was ultimately settled when the
parties reached an agreement which was made an order of court on
2 February 2017. The relevant parts of the order read as follows:

‘i) The cancellation decisions were set aside.

ii) The tender validity period was extended until 30 April 2017, and the bids by
Lebone Consortium and CTP JV were also extended to this time and could be
supplemented only to the extent that this was “strictly necessary to demonstrate that
any agreements and/ or undertakings which may have expired and/or lapsed due to the
effluxion of time arising from the delay occasioned by this litigation, have been
extended and/or replaced on a like for like basis, that in anyway adds to or remove
from the bids originally submitted in December 2015.

iii) The bids would be remitted to a new BEC appointed by the DG, comprising
people who had “not been previously involved in any aspect of the tender (including
in the compilation of the terms of reference for the tendered work; or participating in
the committees which previously evaluated the bids submitted in response to the
tender invitation)”.

iv) The DG was required to appoint independent advisors with expertise in state
procurement to assist the BEC in an advisory role only, including an attorney and an
auditor, as well as an independent senior counsel who had not been instructed or
otherwise involved in the earlier review proceedings.

v) The BEC would consider the matter on the basis that [Lebone] Consortium and the
CTP JV had met the minimum mandatory requirements (Phase 1). It would thus
commence with a functionality assessment, based solely on the weighting table - and
excluding the scorecard. The 80% functionality threshold remained in place.

vi)The new BEC had to finish its task by 1 March 2017. Thereafter the
recommendation would proceed to a new BAC, which would make a recommendation
to the DG by 6 March 2017.

vii) The final decision regarding the award of the tender would be made by the DG by
13 March 2017.’

[13] On 1 March 2017 the new BEC forwarded a report to the BAC
which recommended that the tendered work be awarded to Lebone
Consortium. The BAC met on 1 March 2017 and 3 March 2017, and
similarly recommended the appointment of Lebone Consortium. Based
on these recommendations, the DG awarded the tender to Lebone
Consortium on 12 March 2017. On 13 March 2017, the DG advised
CTP JV that its tender was unsuccessful.

[14] On 7 June 2017, CTP JV instituted proceedings in the high court
seeking to review and set aside the DG’s decision to award the tender to
Lebone Consortium. The high court dismissed each of CTP JV’s review
grounds. With leave of the high court, CTP JV now appeals against that
decision.

[15] CTP JV’s grounds of appeal are four-fold: (a) material irregularities
in the scoring process; (b) failure to consider senior counsel’s opinion; (c)
failure to have an independent senior counsel appointed and available to
assist the BEC; and (d) improper involvement of Mr Subban. Each of
these grounds will be considered later.

The Law
[16] The starting point for an evaluation of the proper approach to an
assessment of the constitutional validity of outcomes under the state
procurement process is s 217 of the Constitution which provides that:
‘217 Procurement
(1)
When an organ of state in the national, provincial or local sphere of
government, or any other institution identified in national legislation, contracts
for goods or services, it must do so in accordance with a system which is fair,
equitable, transparent, competitive and cost effective.
(2)
Subsection (1) does not prevent the organs of state or institutions referred to in
that subsection from implementing a procurement policy providing for –
(a)
categories of preference in the allocation of contracts; and
(b)
the protection or advancement of persons, or categories of persons,
disadvantaged by unfair discrimination.
(3)
National legislation must prescribe a framework within which the policy
referred to in subsection (2) must be implemented.’

[17] The framework within which the policy must be implemented is
prescribed in the Preferential Procurement Policy Framework Act 5 of
2000 (the Procurement Act) and the Public Finance Management Act 1 0f
1999 (the PFMA).

[18] The proper approach to tender reviews was established in Allpay
Consolidated Investment Holdings (Pty) Ltd & others v Chief Executive
Officer of the South African Social Security Agency & others2 as follows:
‘The proper approach is to establish, factually, whether an irregularity occurred.  Then
the irregularity must be legally evaluated to determine whether it amounts to a ground
of review under PAJA. This legal evaluation must, where appropriate, take into
account the materiality of any deviance from legal requirements, by linking the

2 Allpay Consolidated Investment Holdings (Pty) Ltd & others v Chief Executive Officer of the South
African Social Security Agency & others [2013] ZACC 42; 2014 (1) SA 604 (CC) (ALLPAY 1) para 28
– 29.

question of compliance to the purpose of the provision, before concluding that a
review ground under PAJA has been established.
Once that is done, the potential practical difficulties that may flow from declaring the
administrative action constitutionally invalid must be dealt with under the just and
equitable remedies provided for by the Constitution and PAJA.  Indeed, it may often
be inequitable to require the re-running of the flawed tender process if it can be
confidently predicted that the result will be the same.’

The consideration of the bids by the new BEC
[19] The newly constituted BEC was chaired by Dr Whittle who was
the Deputy DG of the DBE. He was assisted by five high-ranking
officials, two from the DBE and three from other national departments.
The BEC met on four occasions (on 20 February 2017, 22 February 2017,
24 February 2017, and 28 February 2017). Dr Whittle at the first meeting
noted that the BEC was comprised of very experienced supply chain
management people. He noted further that this indicated the seriousness
with which the DG and the Minister were approaching this matter and
that auditors and attorneys were present to ensure a transparent and fair
process.3

[20] In accordance with the court order, the BEC’s evaluation process
had to commence with scoring the functionality of the competing bids,
(i.e. Lebone Consortium and CTP JV). The court order also retained the
80% functionality threshold.

[21] From the onset, the members of the BEC were uncertain about how
to proceed with the scoring. This difficulty was compounded by the
exclusion of the second scorecard which had provided values to guide the
allocation of a score for any criterion or sub-criterion. The weighting

3 Minutes of meeting held on 20 February 2017.

table, standing alone, indicated the relative importance of each line item,
but gave no guidance to individual members of the BEC regarding the
allocation of a score.

[22] In order to solve this problem, the BEC resolved to first score the
bids individually, allocating ‘raw scores’, and thereafter they would
discuss their scores and have an opportunity to adjust them. This
approach was described by one member of the BEC as ‘bringing it to the
team level’.

[23] The BEC’s chosen modus operandi as reflected in the minutes of
the meeting of 24 February 2017, was as follows:
‘4.1
The Chairperson indicated that the Committee would commence by checking
the scores allocated for both bidders (CTP Limited JV and Lebone
Consortium) and see if there were huge discrepancies.
(a)
The Committee should give the total score and if there were huge
discrepancies the Committee would take a discussion on individual
marks on the score sheets.
(b)
It was suggested that the Secretariat should record the scores and give
the aggregates scores to both bidders. Based on the scores given then a
discussion would take place.
(c)
It was indicated that the Committee should first agree if they would
work on consensus or average. The Committee agreed to work on
consensus and not aggregate; the notes would form part of the
recommendation.
(d)
If there were outliers, explanation should be provided on how the
evaluator arrived at those scores. If scores are fairly closely clustered it
would be an easier discussion.
. . . .
(f)
CTP JV was scored at 80 points and Lebone Consortium was scored at
92.6 points.
(g)
There was a general consensus that Lebone Consortium was the first

bidder to score the minimum required points on functionality.
(h)
The Committee took a discussion on individual scores (per
functionality criterion) for CTP JV.’

[24] According to this methodology, the consensus seeking process
began with the five scoring members of the BEC revealing their overall
raw scores for each bidder, and an average was taken for each. It is
recorded in the BEC minutes that in the initial round of scoring and
averaging, each member of the BEC scored CTP JV as follows: 80; 84;
75; 87, and 74, with the average score of the required threshold of 80%.
Lebone Consortium was scored as follows: 92; 89; 89; 97; and 96, with
the average of 92.6%. After further discussion and moderation of CTP
JV’s bid, the BEC members changed their scores as follows: from 80 to
81, from 84 to 78, from 75 to 77, from 87 to 85, and 74 remained
unchanged. The average score of the CTP JV’s bid was thus reduced from
80% to 79%. This resulted in CTP JV failing to meet the functionality
threshold. No similar moderation was done in respect of Lebone
Consortium bid, which was considered functionality compliant on the
initial raw scoring process on account of the very high scores awarded by
all members of the BEC.

[25] Most of the debate during moderation of CTP JV’s bid related to
the fleet availability and warehousing equipment sub-criteria of capacity
requirement. Some members expressed concern that some of the motor
vehicles that would be used by CTP JV due to their age and size, were not
suited for the tender requirements. As a result CTP JV’s score on fleet
availability was brought down by almost one full point. As regards
warehousing requirement, some members of the BEC found that CTP JV
did not have the full complement of warehouse equipment and after

discussions, the scores on this criterion were reduced from 9.4 to 8.4.

[26] I now return to appellants’ grounds of appeal.

Material irregularities in the scoring process and deviation from the
implementation guide
[27] CTP JV contended that in terms of the court order, the BEC was
required to use the weighted functionality scorecard provided in the
special conditions when scoring bids for functionality with the
qualification threshold of 80%. There was therefore no need to resort to a
moderation or consensus-seeking process. Initially when the BEC
considered and scored bids, and before moderation, CTP JV had attained
an average score of 80% and Lebone Consortium received an average
score of 92.6%. Thus both bidders met the stringent 80% functionality
requirement. The BEC was thus obliged to have assessed both bids on
price and BBBEE in terms of the court order and Regulation 5(7) of the
Procurement Regulations which provides that each tender that obtained
the minimum qualifying score for functionality must be evaluated further
in terms of price and the preference point system.

[28] CTP JV submitted further that the moderation process in any event
did not achieve consensus because two of the five BEC members still
gave CTP JV a score over 80%. The BEC, CTP JV argued, ought
accordingly to have reverted to the original average score of 80%. Indeed,
Lebone Consortium’s original average score was the basis upon which it
was judged to be functionally compliant. This, CTP JV stated, was
unreasonable and unfair particularly in that the BEC only pursued a
moderation of raw scores allocated to CTP JV and did not do the same in
respect of Lebone Consortium bid. CTP JV maintained that its exclusion

from an assessment on price and B-BBEE was procedurally unfair and
unreasonable, and rendered the tender process unfair and uncompetitive,
contrary to the provisions of s 217 of the Constitution.

[29] Whilst reluctantly conceding that the use of the consensus
approach led to the unequal treatment of the bidders, Lebone Consortium
argued that the BEC was free to establish its own process. It followed this
approach in order to overcome the problem caused by the absence of a
scoreboard.

[30] Regarding the deviation from the implementation guide, it has to
be noted that this guide is not legislation but a policy. The objects of a
policy are to achieve reasonable and consistent decision making, to
provide a guide and a measure of certainty to the public.4 It is trite that
when the government makes a policy, its officials are not entitled to
simply ignore it, but must act in accordance with it. They can only
deviate from it if there is a reasonable basis for such deviation in which
case that basis should be clearly articulated.5

[31] The relevant parts of implementation guide are contained in
paragraphs 11, which reads:
‘11.1.4
Score sheets should be prepared and provided to panel members to evaluate
the bids.
11.1.5
The score sheet should contain all the criteria and the weight for each
criterion as well as the values to be applied for evaluation as indicated in the
bid documents.
11.1.6
Each panel member should after thorough evaluation independently award

4 Arun Property Development (Pty) Ltd v City of Cape Town 2015 (2) SA 584 (CC) para 47; [2014]
ZACC 37
5 Kaunda & others v President of the Republic of South Africa & others 2005 (4) SA 235 (CC) paras 99
and 127.

his/her own value to each individual criterion.’

In summary the implementation guide stipulates a process of evaluating
functionality in terms of which each member must assess and score the
bids independently, following which an average of the scores must be
calculated.

[32] CTP JV contended that when the BEC opted to evaluate its bid on a
consensus basis at a team level, it departed from the provisions of the
implementation guide which required the members of the BEC to score
the bids independently and to award their own scores. It maintained that
the consensus-seeking approach by the BEC was a rescoring designed to
remove CTP JV from contention and to favour Lebone Consortium. This,
the contention proceeded, was done despite a very significant price
discrepancy between the two bids bringing the competitiveness and cost-
effectiveness of Lebone Consortium bid into question. CTP JV submitted
that since the approach adopted by the BEC did not in fact reach its
desired purpose of achieving consensus, the BEC should have reverted to
the original average score of 80%.

[33] Lebone Consortium submitted that it would have been irrational to
revert to the first round scores, as this would have taken away the BEC’s
entire focus on consensus-seeking as a laudable outcome. No one was
compelled to make these changes, which were explicitly based on the
recognition that this raw score was inaccurate (either because it was too
high or too low). The fact that there were still differences of opinion did
not indicate that the consensus-seeking process was a failure, it merely
indicated that it had gone as far as was possible. It would be irrational to
ignore the fact that members had freely acknowledged that their raw

scores were wrong, or out-of-kilter with those of their colleagues.

[34] The question then is whether the BEC’s deviation from the
implementation guide was justifiable. The DBE justified the deviation on
the grounds that the court order excluded the use of the scorecard and
therefore only the weighting table could be used. It contended that in
complex tenders it is preferable to adopt a consensus rather than
averaging approach. The DBE contended further that an approach based
on unmoderated scores, and an approach based on averages rather than
consensus, is subjective. It claimed that the officials of the BEC were all
senior and experienced, this mitigated the dangers of members
influencing each other’s scores.

[35] Lebone Consortium argued that there was consensus amongst all
members of the BEC that it far exceeded the 80% functionality threshold.
Given the high score it received, there was thus no realistic possibility
that the discussion of its bid would have pushed it below 80%. Thus
scrutinizing the individual score of each members of the BEC would have
been a foregone conclusion and a waste of time.

[36] The court a quo held that the BEC was not at liberty to do as it may
wish. Although there is room for flexibility in matching an evaluation
process to the nature of a bid with regard to its value, technical
requirements and complexity, the court a quo held that a BEC is always
obliged to follow applicable legislative prescription and a process that is
aimed at achieving the constitutional objectives of a fair, equitable,
transparent, competitive and cost-effective procurement process. It
however held that the differential treatment of the two bids was rational,
fair and consistent with s 217 of the Constitution.

[37] The court a quo held further that there was no need to revisit the
issues of functionality of Lebone Consortium because, given the initial
scores awarded to it in the two evaluations, and its historical performance
of the tender, it was highly unlikely that it stood, any chance of being
disqualified on functionality. The court a quo stated:
‘I agree with the respondents that the choice of procedure for that purpose was
reasonable in the peculiar circumstances. The differential approach to the bids has a
rational basis and connection to the governmental purpose of objectively evaluating
the bids. The approach, albeit unorthodox, was not materially irregular in that the
purpose of the tender requirements in relation to the evaluation of functionality was
substantively achieved. Moreover, the process followed was fair and open. Such a
conclusion does not comprise the “no difference principle” rejected in All Pay (1).’

[38] In my view, the approach of the court a quo is at odds and
compromises the ‘no difference principle’ rejected in All Pay 1. It
conflates procedure and merit by considering that it was inconsequential
and made no difference to the outcome, by predicting that the result
would be a foregone conclusion. It committed the error identified in All
Pay 1 in that it considered that the inevitability of a certain outcome is a
factor that should be considered in determining the validity of
administrative action.

[39] As stated in AllPay 1,6 ‘[the approach] undermines the role
procedural requirements play in ensuring even treatment of all bidders. . .
. it overlooks that the purpose of a fair process which is to ensure the best
outcome’. For the court a quo to hold that it was not necessary to subject
Lebone Consortium’s bid under moderation because the result would
have been a foregone conclusion, compromised the process leading to the
bid’s success.  Absent any proper evaluation of the bids, it is difficult to

6 Fn 2 para 24.

fathom with certainty what course the process might have taken if the
process of moderation was applied to Lebone Consortium’s bid.

[40] Although there was no suggestion of corruption in the adoption of
a consensus-seeking approach adopted by the BEC, it falls short of the
standard required. It is not so much the separate incidents taken
individually that matters but the aggregate or ‘cluster’ of certain facts.
These are (i) the revisiting of the score card of the CTP JV in regard to
the ‘functionality test’; (ii) doing so after it had ‘passed’ ( albeit narrowly
and not in the estimation of all the members of the BEC); (iii) not redoing
the scoring in this regard for the Lebone Consortium ( even though all
members of the BEC were comfortable with the fact that it had easily
satisfied the necessary requirements); and (iv) thereafter disqualifying the
CTP JV on the ground that it had failed to meet the functionality
requirement. One is left with a residual sense of unease. It cannot be said
that, viewed objectively, the exclusion of CTP JV from further
consideration on the ground that it had failed the functionality test, was
fair in all the circumstances of the case. A high standard is required.
Accordingly, the decision to award the tender to Lebone Consortium
cannot pass constitutional muster in terms of s 217 of the Constitution.

Failure to consider the opinion of Senior Counsel
[41] The court order directed the DG of the DBE to appoint independent
advisors to assist the BEC in an advisory role only. One such advisor had
to be an independent senior counsel with procurement expertise.
Pursuant thereto, Ellis SC was briefed to give advice on aspects of the
process adopted by the BEC. His finding was that there had been material
irregularities in the BEC’s process and that the scoring on functionality
was irrational, unfair and inequitable. In his opinion, based on the raw

scores of both bidders, they both should have been considered for pricing
and BBBEE compliance in the next round. He then recommended that the
matter be returned to the BEC for consideration.

[42] CTP JV contended that the DG failed to consider Ellis SC’s opinion.
The DG in his answering stated that he perused Ellis SC’s opinion. This
averment is not challenged by CTP JV in their replying affidavit. The fact
that the DG did not mention  the opinion of Ellis SC in his reasons for
awarding a tender to Lebone Consortium does not in itself mean that he
had not considered the opinion. Furthermore the role of Ellis SC was
merely to provide advice. The court order did not explicitly or impliedly
require that Ellis be present at the meetings of the BEC and neither was
he expressly made a member of the BEC. The appointment of advisors
was in my view, a safeguard and not a requirement.

[43] It has to be noted that the opinion of Ellis SC was undoubtedly a
relevant consideration that could not be ignored. However, that does not
mean that the opinion had to be followed as this would amount to an
administrator being dictated to by his/her legal representative. As stated
in Walele v City of Cape Town & others7 a decision maker should not
merely accept the opinion of a technical expert, but must independently
apply his mind in making a final decision and that may include not
following expert advice, which he considers wrong. In the premises I find
that the evidence does not disclose any reviewable irregularity.

7 [2008] ZACC 11; 2008 (6) SA 129 (CC) para 69.

The involvement of Mr Subban
[44] CTP JV submitted that Mr Subban, as the project manager for the
tender, should not have been allowed to give a presentation to the newly
appointed BEC. This submission is based on the fact that the court order
expressly excluded the involvement of any person who was previously
involved in any aspect of the tender to serve on the newly appointed
BEC. CTP JV submitted further that Mr Subban in his presentation,
changed the specification of the tender and created new requirements
which were not identified in the special conditions. The new requirements
are stated as identifying specific risk management strategy, elevated
delivery above other factors, and made reference to super link vehicles.

[45] It is rational for the members of the BEC to make use of the
expertise of the most senior official responsible for the workbook project
in order to understand the criteria of functionality specified in the bid. As
long as this official does not participate in the BEC’s deliberations or
decision making.  The project manager employed by DBE would not
advise them on the issues because he had also being previously involved
in the tender process. Mr Subban’s comments about risk management
related to the risk which ought to be dealt with in a risk management
strategy which is not new to any tendered work. His observation that
delivery is the most critical part of the tender, and his reference to 22-
wheel super-link trucks, is self-evident as this tender is for printing and
delivery of workbooks.  Equally important is the use of large vehicles that
will be able to transport volumes of books across the country. There is no
evidence that Mr Subban participated in the BEC’s deliberations and
decision making. I find that the involvement of Mr Subban did not affect
the integrity of the bid.

Remedy
[46] I have found that the decision to award the tender to Lebone
Consortium is in terms of s 6(2)(i) of  the Promotion of Administrative
Justice Act (PAJA)8 constitutionally invalid as it violates the
requirements of equity, transparency and objectivity under s 217 of the
Constitution. It therefore follows that that decision to award the tender to
Lebone Consortium should be declared unlawful in terms of s 172(1)(a)
of the Constitution. In AllPay 19 the Constitutional Court pointed out that
once a ground of review under PAJA has been established there is no
room to shy away from it. What falls to be considered, are the
consequences of the declaration of invalidity. This involves the
determination of a remedy under s 172(1)(b) of the Constitution and s 8
of PAJA which allows a court upon declaration of invalidity to make an
order which is just and equitable. This so because there is a clear
distinction between the constitutional invalidity of administrative action
and the just and equitable remedy that may flow from it.

[47] CTP JV, as an aggrieved party is entitled to an appropriate and
effective remedy. But that remedy must be fair to those affected by it and
yet vindicate effectively the right violated.10 The remedy must be aimed
at correcting or reversing the consequences of the decision taken by the
DBE.

[48] In AllPay 2 Froneman J stated11:
‘This corrective principle operates at different levels. First, it must be applied to
correct the wrongs that led to the declaration of invalidity in the particular case. This

8 Promotion of Administrative Justice Act 3 of 2000
9 Fn 2 para 25
10 Fn 2 para 26
11 AllPay Consolidated Investment v CEO, SA Social Security Agency 2014 (4) SA 179 (CC) para 32;
[2014] ZACC 12

must be done by having due regard to the constitutional principles governing public
procurement, as well as the more specific purposes of the Agency Act. Secondly, in
the context of public procurement matters generally priority must be given to the
public good. This means that the public interest must be assessed not only in relation
to the immediate consequence of invalidity – in this case the setting aside of the
contract between SASSA and Cash Paymaster – but also in relation to the effect of the
order on future procurement and social – security matters’.

[49] The determination of the just and equitable remedy must be
undertaken in light of the following facts which are either common cause
or were not seriously disputed. The tender was awarded from 1 April
2017 until 2020 for printing and delivery of workbooks for the 2018,
2019 and 2020 academic years. After March 2020, it will be subject to
discretionary extension for further two years. The primary beneficiaries
of the tender are learners and teachers. Due weight must be given to them
as they are most closely associated with the benefits of the tender
contract. In my view, an order that will result in the disruption in the
teaching and learning will not be just and equitable and will be counter –
productive as it will result in hurting those who were meant to benefit
from it. An order that will result in the violation of the learners’ right to
basic education should be avoided. Provision of school workbooks should
continue without disruption as education is a constitutional imperative.

[50] The parties, recognizing the need to keep the tender contract in place
pending the correction of the invalid decision are agreed that it would be
just and equitable to suspend the declaration of invalidity for a limited
period while a new tender is undertaken to permit Lebone Consortium to
perform under the current tender contract. They, however, disagree on the
period of suspension. CTP JV contends that the declaration of invalidity
should be suspended until 31 March 2019. Lebone Consortium contends

that the declaration of invalidity should be suspended to allow it to
remain in place to provide workbooks for the 2020 school year. This
contention was advanced on the basis of the allegation that all bidders
including Lebone Consortium and CTP JV submitted their bids on the
basis that they would receive a tender award for at least three years. This
fact they took into account in the pricing of bids, the conclusion of leases
and employment contracts with their employees and other third parties to
enable them to discharge their obligation under the tender contract. The
Lebone Consortium justifies its contention also on the basis of time
required to prepare for the provision of workbooks. In this regard, it
contends that the process of design and printing and collection of data
relating to each school’s requirements for the 2020 school year has to
commence as early as November/December 2018 for the delivery of the
workbooks to take place in January 2020.

[51] In the circumstances of this matter, given the affluxion of time, the
need to protect the interests of the learners who are closely associated
with the benefits of the tender contract and that Lebone Consortium is an
innocent tenderer, an order suspending the declaration of invalidity of the
tender award until 31 March 2020 will be just and equitable. This will
ensure an uninterrupted provision of workbooks to the learners and also
afford Lebone Consortium an opportunity to rearrange its contractual
relationship it entered into with third parties pursuant to the tender
contract.

Order
1.
The appeal succeeds with costs, including costs of two counsel.
2.
The order of the court a quo is set aside and replaced with the
following order:

‘(a)
The decision of the first respondent to award the tender to
Lebone Consortium to provide the printing, packaging and
distribution of workbooks to public schools from 1 April
2017 to 31 March 2020 with the option of a further two year
extension, is constitutionally invalid.
(b)
The operation of the invalidity order is suspended until 31
March 2020 pending the award of a lawful tender by the first
respondent.
(c)      The first to the fifth respondents are ordered jointly and
severally to pay the applicants’ costs, including costs of two
counsel.’
3.
CTP JV’s and Lebone Consortium’s bids should be re-evaluated in
terms of the functionality stage by the newly constituted BEC and
BAC.

__________________
FE MOKGOHLOA
ACTING JUDGE OF
APPEAL

APPEARANCES

For the Appellants:
S
Bundlender
(with
him
A
Coutsoudis and M Mbikiwa)
Instructed by:
Nortons Inc, Sandton
McIntyre
van
der
Post,
Bloemfontein

For the First and Second Respondent: M C Erasmus SC (with him E M
Baloyi-Mere and R M Molea
Instructed by:
The State Attorney, Pretoria

The State Attorney, Bloemfontein

For the Third to Fifth Respondent:
G Cilliers SC (with him I Hussain
SC and D Borgstrom)
Instructed by:
O’Donovan Attorneys,
Johannesburg
Phatshoane Henney Inc Attorneys,
Bloemfontein