In October 2006, the National Treasury invited tenders for the supply of over 183,000 blankets to the Department of Correctional Services and the South African Police Service. RMR and Africhoice submitted tenders. RMR tendered R108.30 per blanket (R3.65 less than Africhoice) and obtained the highest number of preference points for equity ownership by historically disadvantaged individuals under the Preferential Procurement Policy Framework Act 5 of 2000. Despite this, the Evaluation Committee recommended awarding the contract to Africhoice, relying on an exception allowing contracts to be awarded on reasonable and justifiable grounds to bids that did not score the highest points. The Adjudication Committee endorsed this recommendation and on 12 July 2007 the contract was awarded to Africhoice for the period 1 August 2007 to 31 March 2008. RMR launched an urgent review application in the Durban High Court seeking to set aside the award and obtained an interim interdict on 17 August 2007. Hugo J dismissed the review application in November 2007. RMR appealed with leave. The contract period terminated on 31 March 2008 before the appeal was heard.
The appeal was dismissed with costs, including the costs of two counsel where employed.
An appeal will be dismissed as moot under section 21A(1) and (3) of the Supreme Court Act 59 of 1959 where the contract period that is the subject of the dispute has expired and the judgment sought would have no practical effect or result. Review grounds in tender disputes that are fact-specific and peculiar to the particular tender, such as compliance with audi alteram partem principles, interpretation of specific tender clauses, assessment of compliance with conditions, and allegations of bias based on specific conduct, do not constitute matters of law, general principle, or great public importance sufficient to warrant determination of an academic dispute. Allegations of delay by respondents and disputes over costs alone do not constitute 'exceptional circumstances' under section 21A(3) warranting the hearing of an otherwise moot appeal.
The court observed that there is no single set of principles for giving effect to the rules of natural justice, including the audi alteram partem principle, that applies to all investigations, enquiries and exercises of administrative power. Courts have recognized the need for flexibility in applying principles of fairness in different situations. The court also noted that there are degrees of compliance with any standard and it is notoriously difficult to assess whether less than perfect compliance falls on one side or the other of the validity divide, citing Metro Projects CC v Klerksdorp Local Municipality 2004 (1) SA 16 (SCA) para 15. The judgment noted that the case had 'no precedential significance' in its heading.
This case is significant for establishing that appeals concerning expired government procurement contracts will generally be dismissed as moot under section 21A(1) and (3) of the Supreme Court Act 59 of 1959, even where the appellant seeks to argue that a judgment would provide guidance for future cases. It emphasizes that review grounds in tender disputes are typically fact-specific and do not raise matters of general principle warranting determination of academic disputes. The judgment reinforces the principle that courts will not decide moot cases merely to determine costs, absent exceptional circumstances. It provides guidance on the application of the mootness doctrine in the context of administrative law and procurement disputes, particularly where contracts have fixed terms that expire during litigation.