Moseme Road Construction CC v King Civil Engineering Contractors (Pty) Ltd

The Gauteng Department of Public Transport, Roads and Works invited tenders for a major road construction project, specifying that only contractors with a CIDB classification of 8CE PE or 9CE (for contracts exceeding R100 million) could tender. King Civil Engineering Contractors (Pty) Ltd, in a joint venture, did not initially qualify under the advertised criteria. At a compulsory site meeting, departmental officials incorrectly informed tenderers that contractors with a lower classification could also tender, and an addendum to the tender documents reflected this. King tendered, scored the highest points, and was recommended during technical evaluation. At final adjudication, however, the Departmental Acquisition Council disqualified King’s tender on grounds of unfair competition and awarded the contract to Moseme Road Construction CC, reasoning that the original advertisement had not been properly amended and that other contractors may have been prejudiced. King sought review and substitution of the award in the High Court, which set aside the award to Moseme and substituted it with an award to King. Moseme and the MEC appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The High Court’s order setting aside the tender award and awarding the contract to King was set aside and replaced with an order dismissing King’s application with costs, and making no order on Moseme’s counter-application.

The case is a leading authority on judicial restraint and remedial discretion in public procurement reviews. It underscores that even where tender processes are flawed, courts must carefully consider legality, statutory procurement frameworks, and the practical consequences before substituting administrative decisions. It reinforces the principle that substitution is exceptional under PAJA and highlights the protection afforded to innocent successful tenderers and the public interest in certainty of government contracts.