Minister of International Relations and Co-operation and Others v Simeka Group (Pty) Ltd and Others

The Department of International Relations and Co-operation (DIRCO) issued a request for proposals in March 2016 for the appointment of a development partner to design, finance, construct, operate and maintain office and residential accommodation for South African diplomatic missions in Manhattan, New York. The tender envisaged that the successful bidder would raise all capital and that the Department would merely be a lessee. Only two bids were received. One consortium was disqualified for failing to submit audited financial statements, while a joint venture between Simeka Group (Pty) Ltd and Regiments Capital (Pty) Ltd, which also failed to meet this requirement, was nevertheless recommended and awarded the tender in May 2016. After the award, the project structure fundamentally changed: DIRCO assumed responsibility for purchasing the land and funding the project, paid substantial deposits, and concluded a Project Preparation Agreement with entities created by the successful bidder. These developments were materially inconsistent with the tender requirements. National Treasury ultimately refused to grant Treasury Approval III. In 2018 DIRCO, the Minister and the Director-General instituted a legality self-review seeking to set aside the tender award and related agreements. The High Court dismissed the application solely on the basis of unreasonable delay. The government parties appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The High Court order was set aside. The late institution of the legality review was condoned. The award of the tender to the Simeka/Regiments joint venture was declared constitutionally invalid and unlawful and reviewed and set aside. The Project Management Agreement concluded pursuant to the tender award was declared of no legal force and effect and set aside. The respondents were ordered to pay the costs jointly and severally.

This case is significant for clarifying the approach to legality self-reviews in public procurement. It confirms that while organs of state are not bound by PAJA’s 180-day limit when reviewing their own decisions, they must act without unreasonable delay, assessed contextually and against constitutional values. The judgment reinforces strict compliance with procurement prescripts under s 217 of the Constitution and affirms that material post-award deviations from tender requirements will render a procurement process unlawful.