Telkom SA Limited v ZTE Mzanzi (Pty) Limited and Others

Telkom SA Limited invited tenders for the supply of telecommunications equipment through a Request for Proposals (RFP). ZTE Mzanzi (Pty) Limited submitted a tender but was disqualified at an early evaluation stage for non-compliance with specified criteria. The tender was ultimately awarded to Huawei Technologies Africa (Pty) Ltd and Alcatel-Lucent (Pty) Ltd. Aggrieved by its disqualification, Mzanzi declared a dispute in terms of clause 43 of Telkom’s Standard Terms and Conditions (incorporated by reference into the RFP) and sought an undertaking that Telkom halt the tender process pending dispute resolution. When Telkom refused, Mzanzi successfully obtained an interdict in the North Gauteng High Court restraining Telkom from proceeding with the tender process pending dispute resolution. Telkom appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the North Gauteng High Court was set aside and substituted with an order dismissing Mzanzi’s application with costs, including the costs of two counsel.

The case is significant for clarifying that bidders in public or commercial procurement processes do not acquire contractual dispute resolution rights merely by submitting tenders. It reinforces established principles that an invitation to tender does not create contractual obligations and provides important guidance on the interpretation of dispute resolution clauses incorporated into tender documents.