Special Investigating Unit and Another v Engineered Systems Solutions (Pty) Ltd

The Department of Correctional Services awarded a pilot tender in 2011 and a final tender in 2014 to Engineered Systems Solutions (Pty) Ltd (ESS) for the supply and operation of an electronic monitoring system for offenders. Contracts and service level agreements followed, including extensions and a five‑year SLA valued at over R300 million. In 2016 the President authorised the Special Investigating Unit (SIU) to investigate alleged procurement irregularities. The Department later cancelled the SLA, stopped payment, and arbitration ensued, resulting in awards in favour of ESS. In 2018 the SIU and the Department jointly launched a review application seeking to set aside the tender awards and contracts as unlawful, relying mainly on alleged non‑compliance with the SITA Act, the Private Security Industry Regulation Act, and alleged fronting. The review was brought several years after the impugned decisions.

The appeal was dismissed with costs, including the costs of two counsel, and the High Court’s dismissal of the review application was upheld.

The case reinforces strict requirements for explaining delay in legality reviews, particularly where organs of state seek to undo their own procurement decisions years later. It underscores the higher duty on the state to act promptly and lawfully, clarifies the limited circumstances in which courts will overlook unreasonable delay, and confirms a restrictive application of the Gijima principle obliging courts to declare invalidity despite delay.