RMR Commodity Enterprise CC t/a Krass Blankets v The Chairman of the Bid Adjudication Committee and Others

In October 2006 the National Treasury invited tenders for the supply of over 183 000 blankets to the Department of Correctional Services and the South African Police Service. RMR Commodity Enterprise CC and Africhoice Tenders CC both submitted bids. RMR tendered at a lower price and scored the highest preference points under the Preferential Procurement Policy Framework Act 5 of 2000. Despite this, the Bid Evaluation Committee recommended, and the Bid Adjudication Committee approved, the award of the tender to Africhoice, relying on the statutory discretion to award a tender on reasonable and justifiable grounds even where the highest points were not scored. The contract was awarded for the period 1 August 2007 to 31 March 2008. RMR launched an urgent review application in the Durban High Court seeking to set aside the award and to interdict performance pending review. An interim interdict was granted, but the review application was ultimately dismissed. RMR appealed to the Supreme Court of Appeal. By the time the appeal was heard, the contract period had already expired.

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

The case affirms the principle that South African appellate courts will not decide appeals that are moot and have no practical effect, unless exceptional circumstances exist. It reinforces the application of section 21A of the Supreme Court Act and illustrates the reluctance of courts to pronounce on fact-specific administrative law disputes of purely academic interest, particularly in the context of expired tender contracts.