Sekoko Mametja Incorporated Attorneys v Fetakgomo Tubatse Local Municipality

Fetakgomo Tubatse Local Municipality published a tender for the provision of debt collection services for three years. Sekoko Mametja Incorporated Attorneys (Sekoko Attorneys) submitted a bid and was awarded the tender along with four other applicants. Sekoko Attorneys collected debts owed to the municipality and issued invoices for services rendered from January 2018 to May 2018, totalling R438 260.30. In April 2018, the municipality discovered that Sekoko Attorneys had submitted a non-responsive bid in contravention of clause 43 of the Municipality's Supply Chain Management Policy, specifically failing to provide proof that their tax matters were in order with SARS (original valid Tax Certificate) and failing to provide proof of a valid CSD report. On 15 May 2018, the municipality terminated the appointment citing non-compliance with material terms of the bid. The municipality brought a legality review to set aside the tender award. Sekoko Attorneys opposed the review and counter-applied for payment of outstanding invoices for services already rendered. The municipality accepted that the work had been performed but did not oppose the counter-application, arguing the tender award was void ab initio.

• Whether the tender awarded to Sekoko Attorneys was unlawful and invalid due to non-compliance with the municipality's Supply Chain Management Policy
• Whether Sekoko Attorneys was entitled to payment for services rendered under a void tender
• Whether the court should exercise its discretion under section 172(1)(b) of the Constitution to grant a just and equitable remedy despite the invalidity of the tender
• What constitutes an appropriate remedy where a party has rendered services under a tender subsequently declared invalid

1. The appeal is upheld with no order as to costs. 2. Paragraph (iv) of the order of the court a quo is set aside and replaced with the following: '(iv) The applicant (the municipality) is ordered to pay the respondent an amount of R436 250.30 plus interest of 10.25% per annum calculated as from 26 November 2019 to date of payment. No order is made in respect of the costs of the counter-application.'

When a court declares administrative conduct (such as a tender award) invalid under section 172(1)(a) of the Constitution, it must then consider whether to grant a just and equitable remedy under section 172(1)(b). Even where a tender is void ab initio, it is just and equitable to order payment for services rendered and received where: (a) the service provider is not at fault for the invalidity; (b) the beneficiary received full value from the services; (c) the beneficiary did not dispute the quality or receipt of services; (d) the service provider incurred expenses in rendering the services; and (e) the beneficiary advanced no valid reason against payment. The remedy must fit the injury, be fair to those affected, vindicate the rights violated, and be just and equitable in light of the facts, constitutional principles, and controlling law. Payment can be ordered equivalent to what would have been due under the void contract, even though the contract itself cannot be enforced.

The court observed that the matter was straightforward and unopposed, and therefore could and should have been disposed of without oral argument under section 19(a) of the Superior Courts Act 10 of 2013. The court also noted that there was no need to brief senior counsel for such a matter. The court remarked that unlike some of the precedent cases cited, in this matter no further services had been rendered by Sekoko Attorneys since their last invoice in May 2018, thus eliminating the need for an order preserving ongoing rights under the void tender. The court emphasized that public law remedies, not private law remedies, ordinarily attach to breaches of administrative justice, with the purpose being to afford prejudiced parties administrative justice, advance efficient and effective public administration, and entrench the rule of law.

This case clarifies the proper application of section 172(1)(b) of the Constitution in tender cases where conduct is declared invalid. It establishes that South African courts must, after declaring a tender invalid under s 172(1)(a), proceed to consider whether a just and equitable remedy should be granted under s 172(1)(b). The judgment reinforces that a declaration of invalidity does not automatically preclude payment for services already rendered, particularly where: (1) the beneficiary of services received full value; (2) the service provider acted in good faith and is not at fault; (3) the service provider incurred expenses; and (4) the beneficiary provided no valid reason why payment should be withheld. This case provides important guidance on balancing the principle of legality with fairness and equity in public procurement disputes. It demonstrates the pragmatic approach of South African courts in remedying situations where strict application of the invalidity principle would lead to unjust enrichment. The judgment also illustrates the proper use of section 19(a) of the Superior Courts Act regarding disposal of appeals without oral argument and the appropriate exercise of discretion on costs in unopposed appeals.