REPORTABLE

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 796/2012

In the matter between:
SOUTH AFRICAN NATIONAL ROADS
AGENCY LIMITED

Appellant
and
THE TOLL COLLECT CONSORTIUM
First Respondent
TOLCON LEHUMO (PTY) LTD

Second Respondent
Neutral citation:
SANRAL
v
The
Toll
Collect
Consortium
(796/2012)[2013] ZASCA 102 (12 September 2013)
Coram:
NUGENT, BOSIELO, WALLIS and PETSE JJA and
SWAIN AJA.
Heard:
30 AUGUST 2013
Delivered: 12 SEPTEMBER 2013
Summary: Tender – review of decision to award – transparency and
objective standards – what constitutes – no need to disclose basis for
evaluating tenders.

ORDER

On appeal from: KwaZulu Natal High Court, Durban (Vahed J sitting as
court of first instance) it is ordered that:
1 The appeal is upheld with costs, such costs to include the costs
consequent upon the employment of two counsel.
2 The order of the court below is set aside and replaced with the
following order:
„The application is dismissed with costs, such costs to include those
consequent upon the employment of two counsel.

JUDGMENT

WALLIS JA (NUGENT, BOSIELO and PETSE JJA and SWAIN
AJA concurring)

[1] The appellant, SANRAL, which has responsibility for South
Africa‟s national roads, invited tenders for the operation of the N2 South
Coast Toll Plaza. Four tenderers submitted tenders, and the contract was
awarded to Tolcon Lehumo (Pty) Ltd, the second respondent. The first
respondent, a consortium of three companies operating under the name of
The Toll Collect Consortium (the Consortium), was dissatisfied at the
fact that its tender was unsuccessful and brought review proceedings in
the KwaZulu Natal High Court, Durban, challenging the award of the
tender. The review succeeded. Vahed J set aside the award and ordered
SANRAL to reconsider the tenders in the light of his judgment, subject to
the qualification that no-one involved in the original assessment of the

tenders should be involved in the fresh evaluation. This appeal is with his
leave.

[2] The tender documents provided that the assessment of tenders
would take place in two stages. First they would be assessed for quality
and given a score out of 100. Failure to receive 75 or more points would
result in the automatic disqualification of the tender irrespective of price
or other considerations such as Black Economic Empowerment (BEE).
Thereafter the remaining tenders would be assessed based on price,
contribution to BEE and other matters. The Consortium‟s tender was
disqualified at the first hurdle in that it received only 64.49 points on the
quality assessment. It accepted that unless it could successfully challenge
this assessment its tender was properly disqualified and the review could
not succeed. The primary issue in considering the appeal must
accordingly be the complaint in regard to the quality assessment.
However, it is first necessary to deal briefly with two preliminary points
raised by SANRAL

[3] The first point was that the Consortium lacked locus standi to
institute these proceedings under that name. There is no merit in this. If it
was permissible, as it undoubtedly was, for the Consortium to tender for
this contract under that name and title, as representing the three
companies making up the Consortium, it must likewise have been
permissible for the Consortium, under that name and title and still
representing the same three companies, to challenge by judicial review
the award of the tender. The second point related to the jurisdiction of the
court below. As the contract flowing from the tender fell to be performed
within its jurisdiction it clearly had jurisdiction to deal with a challenge to
the award of that contract by way of judicial review. That point was also

bad. I turn then to consider the issue in relation to the evaluation of
quality under the tender.

[4] The tender documents dealt with the quality assessment in the
following way. Item F3.11.3 in the tender data said:
'The score for quality will be based on the evaluation of the management proposals
submitted by the Tenderer in terms of returnable schedule Form D4.'
Item F3.11.3 went on to set out three broad quality criteria and the
maximum score in respect of each criterion, those being 45 points for toll
operations and maintenance; 50 points for toll systems and maintenance
and 5 points for electrical and mechanical maintenance. No further
breakdown was given of how the scores would be assessed by the
independent adjudicator appointed by SANRAL for that purpose.

[5] Form D4, attached to the tender, set out in some detail a number of
items that had to form part of a Management Proposal by prospective
tenderers. Tenderers were required to provide a clear statement in respect
of „at least the following information‟ using the headings and sub-
headings listed in a table forming part of the form. The table was divided
into three main parts headed „toll operations‟, „toll system‟ and „electrical
and mechanical system‟ respectively. Plainly those covered the three
heads under which the quality score was to be assessed. Each head was
then broken down into a number of sub-headings. Toll operations dealt
with organisational structure, financial management, traffic management,
risk management, quality assurance, environmental management, safety
and security and „other‟. Toll system covered organisational structure,
financial standing, risk management, quality assurance, environmental
management, past performance, a detailed toll system roll out programme
and „other‟. Electrical and mechanical systems repeated five of the items

appearing under the other heads together with „other‟. There was
accordingly a substantial overlap among the three heads. This does not
appear to have disconcerted the Consortium as its tender dealt with these
items exhaustively in 67 pages, together with several hundred pages of
annexures. There is no evidence to suggest that the Consortium queried
these items or sought any additional explanation as to the manner in
which they would be taken into account in adjudicating quality.

[6] The tender evaluation was first undertaken by an independent firm
called Tolplan Operations (Pty) Ltd and then a formal tender evaluation
was undertaken under the direction of SANRAL‟s regional manager in
Pietermaritzburg. Each of the three components that were to be scored
was further broken down and the available points distributed among the
various sub-headings. Thus „toll operations‟ was separated into
organisational structure, which was allocated 20 points, and proposed
operations management, to which the remaining 25 points were allocated.
Under organisational structure 5 points each were allocated for the
proposed route organogram and the quality of key personnel and the
remaining 10 points were given for staff salaries. The first four sub-items
under proposed operations management were each allocated 5 points and
the last two 2.5 points.

[7] A similar exercise was undertaken in respect of toll systems. Each
of the sub-items identified in D4 under this head was allocated marks
totalling 20 in all. The balance of 30 marks was reserved for „toll system
technical analysis‟. This latter item was treated as the „most critical
management and control tool‟ for the project. The Consortium did not
raise any objection to this item or to the score that it was allocated under
it. The complaints it makes in respect of its score for toll systems repeat

its complaints in respect of three corresponding items under „toll
operations‟ and they can conveniently be dealt with together with those
items. Under the last heading of maintenance of technical and mechanical
systems the Consortium lost points in relation to its technical manager,
technician and non-use of a specialist sub-contractor.

[8] In relation to this scoring exercise Mr Ibrahim, who deposed to the
affidavits on its behalf, said:
„… I shall not perform an analysis of the points scored by the successful tenderer (ie
the Second Respondent). The issue is not whether the Applicant ought to have scored
more points than the Second Respondent for quality but rather whether the Applicant
should have met the threshold of 75% for quality. It may, however, in some instances
be necessary to draw a comparison between the Applicant‟s points and the Second
Respondent‟s points to indicate that the points awarded to the Applicant were
erroneous.‟
Before dealing with that contention it is necessary to address what
became in argument the primary issue raised on behalf of the Consortium.
It is an issue that logically precedes any criticism of the scoring, because
it claims that the process was deficient from the outset in consequence of
a non-disclosure to tenderers.

[9] The foundation of the contention was the fact that the more
detailed breakdown in the scoring system for quality described above in
paras 6 and 7 was not disclosed to tenderers. The heads of argument on
behalf of the Consortium expressed the complaint in the following way.
The absence of the breakdown in scoring was said to result in the tender
adjudication process being neither transparent nor objective. It was
submitted that the obligation to disclose this information flowed from
SANRAL‟s Supply Chain Management Policy and Procedure Manual.
Item 1.9.3.3 of the Manual said, in regard to assessments of functionality

(quality) such as this one, that when inviting bids an institution must
indicate the evaluation criteria for measuring functionality; the weight of
each criterion and the applicable values. Some reliance was also placed
on the requirement of the Preferential Procurement Policy Framework
Act (the PPPFA).1 The submission in the heads of argument was that the
three broad headings did not comply with these requirements, as „none of
those headings would themselves be measured at all‟. On that footing it
was submitted that the tenderers should have been furnished with the
weights and values of each sub-item in advance of submitting their
tenders.

[10] SANRAL contended that the point was not open to the Consortium
because it was not foreshadowed or developed in the affidavits delivered
on its behalf. Furthermore there was no indication that any prejudice
flowed from the non-disclosure of this detail. It rejected the contention
put forward in the heads of argument on behalf of the Consortium that
this afforded an advantage to the existing operators who tendered because
they „would have a better understanding of what criteria were regarded as
important to SANRAL, and the relative importance of them.‟ Lastly it
contended that the invitation to tender indicated with sufficient clarity
how the overall scoring for quality would be undertaken and gave clear
instructions as to the areas of concern to SANRAL so that all tenderers
were aware of the information they needed to put forward in support of
their tenders.

1 Act 5 of 2000. SANRAL was at the time exempted from complying with that statute, but its
procurement policy indicated that it undertook procurement in accordance with the spirit of that Act.
Accepting this, it is unnecessary to consider the extent to which the Act was in law binding upon
SANRAL.

[11] In support of this final point SANRAL relied on the passage in
Minister of Environmental Affairs and Tourism & another v Scenematic
Fourteen (Pty) Ltd,2 where Scott JA said:
„A further point made by the respondent was that the applicants for fishing rights
ought to have been told in advance of the procedure to be adopted, involving as it did
the streaming of the applications into two groups and the use of a scoring system
applied to predetermined criteria. It was argued that the failure on the part of the DDG
properly to advise applicants rendered the allocation process procedurally unfair.
Section 3(2)(a) of PAJA expressly provides that what is procedurally fair depends on
the circumstances of each case. In the present case the applicants for fishing rights
were required to complete a detailed application form which indicated precisely what
information was required. It was accompanied by instructions on how to complete the
form and guidelines setting out in broad terms the considerations which the decision-
maker regarded as material for the purpose of making the allocations. An applicant
would therefore have been fully aware of the information that was required and on
which the allocations were to be made. In these circumstances, the decision-maker, in
my view, was not required to explain in advance exactly how the applications would
be processed. As Baxter Administrative Law at 548 puts it:
“The administration cannot be expected to share with the individual every phase of its final decision-
making process.”‟

[12] The Consortium‟s contentions found favour with the court below.
It held that it was incumbent on SANRAL to set out its benchmarks „up
front‟ so that a tenderer would know how to achieve the pre-determined
scoring. The learned judge summarised his conclusion as follows:
„It seems to me therefore, that if the first respondent wanted to assess and score
quality and functionality on that basis, and more especially if quality and functionality
was to serve a gatekeeper function, objectivity, rationality and functionality demanded
more clarity on how prospective tenderers could get through the gate.‟

2 Minister of Environmental Affairs and Tourism & another v Scenematic Fourteen (Pty) Ltd 2005 (6)
SA 182 (SCA) para 18.

For that reason the award of the tender was set aside and SANRAL was
ordered to reassess the tenders in the light of the judgment but without
using the same individuals to make the assessment.

[13] Two problems emerged with this order in the course of argument.
The lesser one was that there was no basis for disqualifying the persons
who had initially evaluated the tender from re-evaluating it. They were
not accused of bias or mala fides or any other conduct that would warrant
their disqualification. Accordingly that order should not have been made.
A court should not lightly disqualify officials and others who have the
responsibility for administrative tasks and acts, such as the evaluation of
tenders, from performing their duties. It emerged from counsel‟s
submissions that the order had been sought in the light of an alleged
failure by the relevant officials to co-operate in providing information,
but that problem had been resolved before the case was argued.
Continuing to seek their disqualification was accordingly an error.

[14] The major problem was that the order did not address the difficulty
the court identified in regard to the tender, namely the failure to inform
tenderers in advance of the detailed breakdown of the possible scores
under each of the headings used in the evaluation of the tenders. If there
was a problem with the failure to afford tenderers adequate insight into
the evaluation process it would not be resolved by remitting the tenders,
formulated without the benefit of that information, for re-evaluation. Only
setting aside the tender process and requiring SANRAL to undertake it
afresh on the basis of adequate information could resolve it. But that
relief was not asked for.

[15] This highlighted the fact that the point on which the review
succeeded was not raised in the application papers, notwithstanding the
fact that the applicant filed both a founding affidavit and a supplementary
founding affidavit after receiving the record. It is so, that here and there
complaints were made that the scoring process was subjective and that
SANRAL had not stipulated any objective criteria for the evaluation of
quality, but these complaints did not raise squarely the issue of the
adequacy of the information afforded to tenderers about the more detailed
scoring system to be used in the quality evaluation process. Had it been
raised then some attention might have been paid to the appropriateness of
the relief being sought.

[16] In addition had the point been raised it would have compelled the
Consortium to indicate in what way it was prejudiced by this failure.
Counsel candidly accepted that there was not a word in the affidavits
explaining how the disclosure of these details would have affected the
Consortium‟s tender. We were asked to infer prejudice from a
hypothetical example drawn from the allocation of points in respect of the
experience of some key personnel. However, in the absence of evidence
that the Consortium would have looked to employ different key people
had it been aware of this allocation, the point remained hypothetical. It
did not establish that the Consortium suffered prejudice or that the tender
process was flawed in a manner calculated to cause it prejudice. Absent
special circumstances, prejudice is necessary in order for the applicant to
demonstrate their interest in remedying by way of judicial review a fault
in a tender process. Otherwise the court is being asked to deal with an
academic issue. 3 As this court said in Allpay: 4 „It would be gravely

3 Rajah & Rajah (Pty) Ltd & others v Ventersdorp Municipality & others 1961 (4) SA 402 (A) at
407H-408B.

prejudicial to the public interest if the law was to invalidate public
contracts for inconsequential irregularities.‟

[17] Leaving these problems aside and turning to consider the merits of
the argument, the premise underpinning it is flawed. That premise
amounted to this. In order for the tender process to be fair to all tenderers,
SANRAL needed to disclose in advance, in the tender documents, full
details of every element of the tender evaluation process that would be
undertaken once tenders were submitted, including details of the
breakdown in the allocation of the points for quality under the three heads
set out in the tender documents. 5 The submission was that this was
necessary in order for the process to be transparent and for the evaluation
of the competing tenders to be objective. Neither contention can be
sustained.

[18] Transparency in a tender process requires that the tender take place
in an environment where it is subject to public scrutiny. In other words
the tender must be advertised publicly and its terms be available for
public inspection. Those terms must set out clearly what must be
submitted by those competing for the award of the contract. The
adjudication of the tender must take place in an impartial manner and the
results made publicly available. If there is a challenge to the outcome of
the tender there must be a record that discloses how the process of
adjudication was conducted. In that way the tender process is transparent

4 Allpay Consolidated Investment Holdings (Pty) Ltd & others v Chief Executive Officer, South African
Social Security Agency & others 2013 (4) SA 557 (SCA) para 21.
5 For the purposes of this judgment I accept that the detailed breakdown of points in respect of the
different sub-headings was known to SANRAL when the tender documents were issued, although it is
unclear from the evidence whether this was in fact the case.

and the public can see that it was conducted fairly. 6  When the
Constitution, in s 217, requires that the procurement of goods and
services by organs of state shall be transparent, its purpose is to ensure
that the tender process is not abused to favour those who have influence
within the institutions of the state or those whose interests the relevant
officials and office bearers in organs of state wish to advance. It requires
that public procurement take place in public view and not by way of back
door deals, the peddling of influence or other forms of corruption. But,
once a tender is issued and evaluated and a contract awarded in an open
and public fashion, that discharges the constitutional requirement of
transparency. It is not there to be used by a disappointed tenderer to find
some ground for reversing the outcome or commencing the process anew,
by claiming that there should have been greater disclosure of the
methodology to be adopted in evaluating the tenders.

[19] An attempt was made to draw a parallel between a student writing
an examination and needing to know how many marks are to be allocated
to each answer and the position of the tenderer needing to know where to
concentrate in furnishing the information required by the party issuing the
tender. But the two are not parallel situations. An examinee is subject to
the pressures of time and must complete a prescribed number of questions
within a limited period. Part of the skill in writing exams is therefore to
know what must be included and what can safely be omitted in answering

6 The UNCITRAL Model Law on the Procurement of Goods, Construction and Services (1994) was
adopted by the Commission (the United Nations Commission on International Trade Law) in 1994. It
has been influential in the establishment of public procurement regimes in many countries and it
requires transparency in public procurement. The principle of transparency is satisfied if the law
relating to public procurement is available; if tenders are publicly advertised; if the qualification
requirements for tenderers, the subject matter of the procurement and the criteria for evaluation are
specified; if information on any modifications of the tender is available; if details of the tender awards
are published; if there is a right to be present when tenders are opened; if there is a record of the tender
process and reasons are given for the acceptance and rejection of tenders. S P de la Harpe Public
Procurement Law: A Comparative Analysis (unpublished LLD thesis in the University of South Africa,
2009) at 96-114; 424-438 and 583.

a particular question. Tenders are not prepared under time constraints and
the tenderer is free to put every possible scrap of potentially useful
information into the tender. The tender can be as detailed as the tenderer
wishes to make it. If there is a parallel to the academic situation it is
rather with an essay or dissertation where the subject matter is identified
in advance and the broad parameters outlined, but the examinee is free to
respond as they see fit and in as much or as little detail as they choose.

[20] As to objectivity, which is an aspect of the constitutional
requirement that the public procurement process be fair, it requires that
the evaluation of the tender be undertaken by means that are explicable
and clear and by standards that do not permit individual bias and
preference to intrude. It does not, and cannot, mean that in every case the
process is purely mechanical. There will be tenders where the process is
relatively mechanical, for example, where the price tendered is the only
relevant factor and the competing prices are capable of ready comparison.
The application of the formula for adjudicating preferences under the
PPPFA may provide another example. However, the evaluation of many
tenders is a complex process involving the consideration and weighing of
a number of diverse factors. The assessment of the relative importance of
these requires skill, expertise and the exercise of judgment on the part of
the person or body undertaking the evaluation. That cannot be a
mechanical process. The evaluator must decide how to weigh each factor
and determine its significance in arriving at an appropriate decision. 7
Where that occurs it does not mean that the evaluation is not objective.
Provided the evaluator can identify the relevant criteria by which the
evaluation was undertaken and the judgment that was made on the

7 MEC for Environmental Affairs and Development Planning v Clairison’s CC [2013] ZASCA 82
paras 20-22.

relative importance and weight attached to each, the process is objective
and the procurement process is fair.

[21] Where the evaluation of a tender requires the weighing of disparate
factors it will frequently be convenient for the evaluator to allocate scores
or points to the different factors in accordance with the weight that the
evaluator attaches to those factors. But the adoption of such a system,
without its being disclosed to tenderers in advance, does not mean that
the tender process is not objective. If anything the adoption of the scoring
system enhances the objectivity of the process, because, in the event of a
challenge to the award of the tender, the basis upon which the evaluation
was undertaken emerges clearly.

[22] The prior disclosure of any such points system – assuming that it
was adopted in advance of the evaluation process and not in the course of
that process – is not ordinarily required, provided that the basic criteria
upon which tenders will be evaluated are disclosed.8  That is what this
court held in Scenematic in the passage quoted above in para 11. Provided
the tender documents make clear to participants what is required from
them their task is to submit that information for evaluation. If they do not
do so, or the information is inadequate when scrutinised, they run the risk
that on that aspect their tender will fare less well. This is what happened
in this case with two of the experienced tenderers. One of them gave no
details in respect of its toll plaza manager and was awarded no points
under this head. The other indicated that its operations manager was
relatively new to the role and received fewer points as a result. Disclosure

8 The criteria and procedures that must be disclosed to tenderers under the UNCITRAL Model Law
(Art 6(1)) relate to matters such as technical qualifications, legal capacity, solvency, good standing
with the revenue authorities, absence of criminal records and the like. De la Harpe, supra, 102 fn 36.
They do not extend to disclosure of a scoring system used in the assessment of these matters.

of any such refined process of scoring in relation to a tender evaluation
process will only be required if its non-disclosure would mislead
tenderers or leave them in the dark as to the information they should
provide in order to satisfy the requirements of the tender. There is no
evidence that this is the case here.

[23]  The position in this case is that all potential tenderers knew that
they would have to achieve 75 points for quality if their tenders were not
to be excluded at the first stage of evaluation. They knew what matters
they had to address in their tenders. The Consortium experienced no
difficulties in that regard because it did not seek clarification from
SANRAL or the independent evaluator in regard to the information that
they needed to provide. It knew that a high priority would be placed on
experience because clause F2.1 of the tender documents said that only
tenders from parties experienced in toll operations and maintenance
would be considered. As it lacked such experience, at least in relation to
the operation of tolls for SANRAL, it needed to present the strongest
possible case in that regard. None of that would have been affected by
knowing in advance that the 45 points for toll operations would be
divided as to 20 for their organisational structure and 25 for their
proposed operations management. Nor would the disclosure of the
breakdown of points in other categories or within those categories have
affected matters or altered the terms of their tender in any way.

[24] It is no surprise therefore that the Consortium did not complain in
its affidavits about not knowing the detailed breakdown in the points
allocation, within the three categories identified in the tender documents.
This complaint, raised in argument and unsupported by any factual basis,
is without merit and should have been rejected.

[25] After the evaluation report had been made available the
Consortium
delivered
a
supplementary
founding
affidavit.
In
summarising its contentions the deponent said that the adjudication report
was incorrect in the manner in which it evaluated the Consortium‟s tender
for quality and that if its tender had been properly evaluated for quality it
would have achieved the 75 points threshold and should not have been
disqualified. The deponent proceeded to highlight various elements of the
quality evaluation and criticise the points allocated to the Consortium in
respect of these items. Although disclaiming an intention to engage in an
analysis of the points or to suggest that the Consortium should have
scored better than the ultimately successful tenderer the deponent said
that he would draw some comparisons „to indicate that the points
awarded to the [Consortium] were erroneous‟.

[26] Notwithstanding this disclaimer, this was in truth an invitation to
the court to examine the evaluation exercise and determine a revised
score for the Consortium that would enable it to cross the quality
threshold. Explanations contained in the report, to the effect that the
Consortium lacked relevant toll operation experience or had not provided
information to indicate that they were capable of managing and operating
this type of contract, were roundly criticised on two grounds. First it was
claimed that the project was a small one with limited risk and ideal for the
purpose of introducing a new operator, even though they lacked
experience in toll operations in comparison with their rivals.  Second the
background and experience of the three key individuals were highlighted
and it was submitted that „it is clear that the quality of the [Consortium‟s]
personnel exceed that required for the management of the Contract‟ and
accordingly it should have been allocated a far greater number of points

under this head. Had that occurred the 75 points threshold would have
been surpassed.

[27] The invitation to re-score the Consortium‟s tender for quality must
be declined. Once again it must be stressed that this is not the function of
a court. The task of evaluating and awarding these tenders rested in the
hands of SANRAL, not the court, and its decision must be respected,
provided it was arrived at in accordance with the constitutional
requirements applicable to public procurement as set out in s 217 of the
Constitution, any applicable legislation and the terms of the tender. The
court could only interfere if the process was infected with illegality. The
court will not hesitate to interfere with the award of a tender where there
is impropriety or corruption. However, where the complaints merely go to
the result of the evaluation of the tender a court will be reluctant to
intervene and substitute its judgment for that of the evaluator. It may not
interfere merely because the tender could have been clearer or more
explicit. Nor will it interfere because it disagrees with the assessment of
the evaluator as to the relative importance of different factors and the
weight to be attached to them. The court is only concerned with the
legality of the tender process and not with its outcome.

[28] When one analyses the contentions on behalf of the Consortium
they amount to nothing more than a different view of the merits of its
tender to that taken by the independent evaluator and the evaluation
committee. In regard to the contention that this was a relatively small
project SANRAL‟s approach was that it could not afford to have a toll
road contractor that was unable to meet the standards of management and
operations that it required. It accordingly adopted the stance that the first
and foremost consideration in awarding the tender was its assessment of

the capability and capacity of the tenderer to carry out the tender
successfully. That was a different priority to the one identified by the
Consortium, but it cannot be said to be illegitimate. In regard to the skills
and experience of its key personnel one would expect the Consortium to
sing their praises. However, the evaluators took a less sanguine view of
them. That was a matter of judgment and it was one that was open to the
evaluators. The court cannot interfere with that decision. Overall
SANRAL may have adopted an overly cautious attitude, as the
Consortium contends, but that is not a ground for review of its decision.

[29]    It follows that the application for review should not have
succeeded. Accordingly the following order is made:
The appeal succeeds with costs, such costs to include those
consequent upon the employment of two counsel.
The order of the court below is set aside and replaced with the
following order:

„The application is dismissed with costs, such costs to include
those consequent upon the employment of two counsel.‟

M J D WALLIS
JUSTICE OF APPEAL

Appearances

For appellant:
B E LEECH SC (with him A J BOULLE)
Instructed by:
Werksmans Inc, Sandton
Symington & De Kok, Bloemfontein

For respondent:

P J OLSEN SC (with him V VOORMOLEN)

Instructed by:
Cox Yeats Attorneys, Durban

McIntyre & Van der Post, Bloemfontein.

Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:   The Registrar, Supreme Court of Appeal

Date:  12 September 2013

Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

Sanral v The Toll Collect Consortium
The SCA today upheld an appeal by SANRAL against a judgment reviewing
and setting aside the award of a tender for the operation and maintenance of the N2
South Coast Toll Plaza. The court stressed that judicial review is not a means of
obtaining a fresh evalation by the court of the assessment of competing tenders and
the decision to award a tender. It is a mechanism for ensuring that in the award of
tenders the obligations imposed on public bodies by the Constitution and legislation
are obserrved. In this case the challenge to the evaluation of the tenders was
essentially an invitation to the court to re-assess the respondent’s tender and this
invitation should be declined.