In August 2010, Mopani District Municipality invited tenders for the construction of a water pipeline. The contract was initially awarded to a Joint Venture between Tlong Re Yeng CC and Base Major Construction (Pty) Ltd. Esorfranki (Pty) Ltd, an unsuccessful tenderer, brought an urgent application to interdict implementation of the award. By consent, Preller J set aside the award in January 2011 and directed re-adjudication. In February 2011, Mopani again awarded the contract to the Joint Venture. Esorfranki brought further proceedings, and Matojane J ultimately found the tender process illegal and invalid due to bias, bad faith, dishonesty and fraud on the part of Mopani, setting aside the award on 29 August 2012. On appeal, the Supreme Court of Appeal upheld the finding that the tender was vitiated by bias and deliberate dishonesty, set aside the contract as void ab initio, and ordered the Department of Water Affairs to re-advertise a tender for remedial and completion works. Esorfranki then instituted a delictual claim for damages based on loss of profit against Mopani, alleging wrongful and intentional conduct amounting to dishonesty and fraud. The high court (Makgoka J) dismissed the claim on grounds of res judicata and lack of legal causation (novus actus interveniens). Esorfranki appealed.
The appeal was dismissed with costs, such costs to include the costs consequent upon the employment of two counsel.
By majority (3:2), the Supreme Court of Appeal held: (1) An unsuccessful tenderer cannot successfully claim delictual damages for loss of profit arising from fraudulent or dishonest conduct in a tender process where the tender has been set aside by review and a fresh tender process ordered, and the tenderer participated in that fresh process but was unsuccessful. (2) While deliberate dishonesty, bias and bad faith in public procurement may establish wrongfulness and fault, public policy considerations and/or lack of legal causation may preclude delictual liability. (3) Where a review order sets aside a tender as void ab initio and orders a fresh tender process, participation in that fresh process may constitute a novus actus interveniens or, alternatively, the setting aside of the original tender extinguishes the basis for a delictual claim related to that tender. (4) The availability and exercise of administrative law remedies (review, setting aside, re-adjudication) are relevant to whether delictual damages are an appropriate remedy for administrative impropriety in procurement. The minority would have held that deliberate dishonesty and fraud in tender adjudication, established by uncontested evidence, gives rise to delictual liability where factual and legal causation are proven, and that a subsequent tender for different (remedial) works does not break the causal chain.
Goosen AJA observed that the manner of presenting evidence by affidavit, with agreement that deponents need not be called for cross-examination, is procedurally proper and results in uncontested evidence that must be accepted by the court. The learned judge emphasized that courts should not take a formalistic approach to evidence properly admitted. Goosen AJA further observed that the same facts may support different causes of action, and that it is an error to confine consideration of evidence to the "parameters" of earlier proceedings on a different cause of action. Nicholls JA observed that while the Constitution guarantees fair procurement under s 217, it does not create a right to claim damages for loss of profits, and that delictual claims for pure economic loss in procurement require careful scrutiny of policy considerations. She noted the distinction between cases of negligent administrative action (where liability is generally excluded) and deliberate dishonesty (where liability may follow), but emphasized this is not an absolute rule. Mbatha JA observed that where alternative administrative law remedies are available and effective, including review, setting aside and remittal or substitution, a case may not be "exceptional" enough to warrant an award of compensation or damages. The learned judge noted that criminal justice remedies may be more appropriate than civil damages claims where dishonest conduct by state officials is proved. All judgments noted the tension between accountability for corrupt officials and the burden on the public purse and scarce state resources.
This case represents a significant contribution to South African jurisprudence on the intersection of administrative law and delictual liability in the context of public procurement. It addresses the circumstances in which an unsuccessful tenderer may claim delictual damages for loss of profit where a tender process is vitiated by fraud, dishonesty or bad faith on the part of a state organ. The judgment explores the application of res judicata and issue estoppel where different causes of action arise from the same underlying facts. It clarifies the elements of delictual liability for pure economic loss in the public procurement context, particularly the role of wrongfulness, causation and policy considerations. The case demonstrates the tension between holding state organs accountable for corrupt conduct and protecting the public purse from claims by private entities. It engages with key precedents including Steenkamp v Provincial Tender Board, Minister of Finance v Gore, and various PAJA remedy cases. The split judgment reflects ongoing debate about the appropriate limits of delictual liability in administrative law contexts and the role of alternative remedies.
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