Breastplate Services (Pvt) Ltd t/a Nemchen v Delta Beverages (Pvt) Ltd and Others

The first respondent (Delta Beverages), a private company, conducted a tender process for CIP and Chemicals services for Harare and Bulawayo. The applicant (Breastplate Services) participated in the tender process but was unsuccessful, with the tender being awarded to the second respondent (Blackbox Investments). On 29 June 2020, the applicant became aware of alleged inappropriate interaction between Enita Moyo (first respondent's employee) and W.F. Mareesa (second respondent's employee) during the tender process. The applicant alleged this gave the second respondent an unfair advantage. The applicant filed a review application seeking nullification of the tender process and approached the court on an urgent basis seeking an interim interdict to prevent the first and second respondents from executing the tender award pending the review. By the time of the hearing, the first respondent had already engaged the second respondent on 1 July 2022, with services already being rendered.

• Whether the applicant has locus standi to challenge a tender process conducted by a private entity
• Whether the relief sought (interdict pending review) is competent in circumstances involving a private entity not governed by public procurement laws
• Whether a private company's tender committee decisions are reviewable under Section 26 of the High Court Act or the Administrative Justice Act
• Whether the matter was urgent
• Whether the applicant had dirty hands that would disentitle it to equitable relief

The application was dismissed with costs.

A private entity that is not governed by public procurement legislation has no legal obligation to conduct tender processes and is free to contract with any party based on the principle of freedom of contract. Participants in such tender processes have no locus standi to challenge the tender process or seek judicial review of tender decisions. The decisions of a private company's tender committee do not constitute proceedings or decisions of a "tribunal" or "administrative authority" as contemplated by Section 26 of the High Court Act or the Administrative Justice Act, and are therefore not subject to judicial review. An interdict cannot be granted to prevent execution of a contract freely entered into between private entities where the underlying decision is not reviewable by the court. The issue of locus standi is a threshold matter that must be determined before considering other issues including urgency.

The court made a non-binding observation that "there seems to be a lot going on in the first respondent's company in terms of ethical issues which is abhorrent but legally this court cannot interfere with the freedom of contract that the entity enjoys." This suggests judicial concern about the ethical conduct within the first respondent's organization, particularly regarding allegations of inappropriate interactions during the tender process and possible corrupt practices, but acknowledged these ethical concerns could not form a legal basis for intervention given the private nature of the entity and the principle of freedom of contract.

This case is significant in South African and Zimbabwean jurisprudence as it clarifies the scope and limits of judicial review of tender processes conducted by private entities. It reinforces the principle that private companies are not subject to the same procurement law obligations as public entities and state organs. The judgment emphasizes that the High Court's review jurisdiction under Section 26 of the High Court Act is limited to decisions of tribunals and administrative authorities as defined by statute, and does not extend to purely private contractual arrangements. The case underscores the importance of the principle of freedom of contract for private entities and establishes that unsuccessful bidders in private tender processes cannot invoke the court's supervisory jurisdiction absent a legal obligation on the private entity to follow prescribed procurement procedures. The judgment also demonstrates the hierarchical approach to preliminary points, establishing that locus standi must be determined before considering other issues including urgency.