Areva NP Incorporated in France v Eskom Holdings SOC Limited and Another

Eskom issued a large public tender (approximately R5 billion) for the replacement of six steam generators at the Koeberg Nuclear Power Station. Only two entities qualified to bid: Areva NP and Westinghouse Electric Belgium Société Anonyme (WEBSA). During the final stage, WEBSA submitted its offer expressly on behalf of Westinghouse Electric Company LLC (USA). Eskom awarded the tender to Areva. WEBSA instituted review proceedings in the High Court to set aside the award and have the tender awarded to it. The High Court dismissed the review and upheld WEBSA’s standing. The Supreme Court of Appeal overturned the High Court on the merits of the tender award but accepted that WEBSA had locus standi. Areva and Eskom appealed to the Constitutional Court, challenging, inter alia, WEBSA’s locus standi.

Areva’s appeal was upheld. The orders of the Supreme Court of Appeal and the High Court were set aside. The High Court order was replaced with one dismissing WEBSA’s review application. WEBSA was ordered to pay Areva’s costs in the High Court, Supreme Court of Appeal, and Constitutional Court, including the costs of two counsel.

This case is a leading authority on locus standi in public procurement reviews in South Africa. It confirms that only a party that submitted a bid in its own right, or whose own legally protected interests are directly affected, may challenge a tender award. The judgment reinforces strict standing requirements and prevents entities from using corporate structures or agency relationships to mount procurement challenges without a direct legal interest.