Fizik Investments (Pty) Ltd t/a Umkhombe Security Services v Nelson Mandela Metropolitan University

• Jurisdiction: South Africa
• Judge: Jones J
• Judgment Date: 18 November 2008
• Citation: 2009 (5) SA 441 (SE)
• Docket Number: 1210/08
• Hearing Date: 06 November 2008
• Counsel: JW Eksteen for the applicant. RG Buchanan for the respondent.
• Court: South Eastern Cape Local Division

Jones J: F

[1] The applicant is a provider of security services. Until recently it had been contracted to provide security services for the respondent, having successfully tendered for the contract in 1999. Its contract has expired. The respondent is about to embark on a process of calling for tenders for G the award of a new contract for the provision of security services. The applicant has been advised that, as a result of the implementation of a process referred to in the papers as the respondent's 'Expression of Interest System', the applicant was excluded from the group of interested persons whose tender for the new contract would be considered. It seeks H to review the decision to exclude it from tendering, to set aside the tender adjudication process, and to require the respondent to comply, in its impending process of calling for tenders for the provision of security services, with the requirements of the Constitution, the Preferential Procurement Policy Framework Act 5 of 2000 read with the regulations, I and with its own procurement and tender policy document.

[2] The precise wording of the relief in the applicant's notice of motion in the main application is for an order:

1.

Reviewing and setting aside the respondent's decision to prescribe, utilise and implement the Expression of Interest System (contained in MM4 to the applicant's founding papers), as amended on J 22 February 2008 (as per MM9 to the founding papers), on the

Jones J

ground that the system is fundamentally flawed and legally invalid, A alternatively, unlawful;

2.

reviewing and setting aside the tender adjudication process followed by the respondent and the decision not to approve the applicant's submission, as conveyed on 23 April 2008, which has the effect of precluding the applicant from the further tender process for the B provision of security services to the respondent;

3.

declaring that the tender adjudication process followed by the respondent in respect of the provision of security services at the respondent did not comply with the requirements of the Constitution, the Preferential Procurement Policy Framework Act 5 of 2000 as read with the regulations promulgated thereunder, or with C the respondent's own procurement policy document, in that the system followed was not fair, equitable, transparent, competitive and cost-effective, and was accordingly legally invalid, alternatively, unlawful;

4.

directing that any future tenders to be awarded by or on behalf of D the respondent, in respect of the provision of security services at premises of the respondent, shall be awarded only after proper compliance by the respondent with the Constitution, the Preferential Procurement Policy Framework Act 5 of 2000, and with the regulations promulgated thereunder, and with the respondent's own procurement policy document (as amended from time to time), in E accordance with a system which is fair, equitable, transparent and cost-effective.

[3] This relief does not include a prayer for costs. It turns out...