Transnet SOC Ltd v Tipp-Con (Pty) Ltd and Others

Transnet SOC Ltd invited tenders in November 2018 for the manufacture, supply and installation of high-security fencing at several of its premises. Tipp-Con (Pty) Ltd submitted a tender sample that was not hot dip galvanised, as required by the Request for Proposals (RFP), but expressly disclosed this non-compliance and explained that the final product would comply. Transnet accepted the explanation, evaluated the bid as compliant, and awarded the tender to Tipp-Con in July 2019. A contract was concluded and Tipp-Con commenced installation. Disputes later arose regarding whether the installed fence complied with the tender specifications, including galvanisation and wire thickness. The dispute was referred to adjudication under the contract, and the adjudicator ruled in favour of Tipp-Con, finding the fence compliant and the deviations de minimis. After failing to timeously challenge the adjudication award, Transnet launched a self-review application in October 2020 (approximately 20 months after becoming aware of the alleged irregularities), seeking to set aside both the tender award and the contract on grounds of illegality. The High Court dismissed the review due to unreasonable delay, and Transnet appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel.

The case reinforces the strict approach South African courts take to delay in self-review proceedings by organs of state. It confirms that knowledge held by officials and tender committees is attributable to the institution itself, and that self-reviews cannot be used opportunistically to evade contractual obligations after adverse outcomes. The judgment strengthens certainty in public procurement and underscores accountability of state entities.