THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 678/12
Reportable

In the matter between:

ALLPAY CONSOLIDATED INVESTMENT
HOLDINGS (PTY) LTD
First Appellant
ALLPAY FREE STATE (PTY) LTD
Second Appellant
ALLPAY WESTERN CAPE (PTY) LTD
Third Appellant
ALLPAY GAUTENG (PTY) LTD
Fourth Appellant
ALLPAY EASTERN CAPE (PTY) LTD
Fifth Appellant
ALLPAY KWAZULU-NATAL (PTY) LTD
Sixth Appellant
ALLPAY MPUMALANGA (PTY) LTD
Seventh Appellant
ALLPAY LIMPOPO (PTY) LTD
Eighth Appellant
ALLPAY NORTH WEST (PTY) LTD
Ninth Appellant
ALLPAY NORTHERN CAPE (PTY) LTD
Tenth Appellant
MICAWBER 851 (PTY) LTD
Eleventh Appellant
MICAWBER 852 (PTY) LTD
Twelfth Appellant
MICAWBER 853 (PTY) LTD
Thirteenth Appellant
MICAWBER 854 (PTY) LTD
Fourteenth Appellant

and

THE CHIEF EXECUTIVE OFFICER OF THE
SOUTH AFRICAN SOCIAL SECURITY
AGENCY
First Respondent
THE SOUTH AFRICAN SOCIAL SECURITY
AGENCY
Second Respondent

CASH PAYMASTER SERVICES (PTY) LTD
Third Respondent
EZIBLUBHEDU INVESTMENT HOLDINGS
(PTY) LTD
Fourth Respondent
FLASH SAVINGS AND CREDIT
COOPERATIVE
Fifth Respondent
ENLIGHTENED SECURITY FORCE
(PTY) LTD
Sixth Respondent
MOBA COMM (PTY) LTD
Seventh Respondent
EMPILWENI PAYOUT SERVICES
(PTY) LTD
Eighth Respondent
PENSION MANAGEMENT (PTY) LTD
Ninth Respondent
MASINGITA FINANCIAL SERVICES
(PTY) LTD
Tenth Respondent
THE SOUTH AFRICAN POST OFFICE
Eleventh Respondent
ROMAN PROTECTION SOLUTIONS CC
Twelfth Respondent
UBANK LIMITED
Thirteenth Respondent
AFRICAN RENAISSANCE INVESTMENT
MANAGEMENT (PTY) LTD
Fourteenth Respondent
STANDARD BANK GROUP LIMITED
Fifteenth Respondent
NEW SOLUTIONS (PTY) LTD
Sixteenth Respondent
ITHALA LIMITED
Seventeenth Respondent
KTS TECHNOLOGY SOLUTIONS
CONSORTIUM
Eighteenth Respondent

Neutral citation: AllPay Consolidated Investment Holdings & others v
The Chief Executive Officer of the South African
Social Security Agency & others (678/12) [2013]
ZASCA 29 (27 March 2013)
Coram:
NUGENT, PONNAN, THERON, PETSE JJA and
SOUTHWOOD AJA
Heard:
15 FEBRUARY 2013
Delivered:
27 MARCH 2013
Summary:
Public tender – whether irregularities invalidating
contract – whether remedy to be granted if
contract had been invalid.

___________________________________________________________

ORDER
___________________________________________________________

On appeal from North Gauteng High Court (Matojane J sitting as court of
first instance).

1.
The appeal is dismissed with costs.
2.
The cross-appeal is upheld with costs. The orders of the court
below are set aside and substituted with an order dismissing the
application with costs.
3.
Both in this court and in the court below the costs are to include the
costs of three counsel where three counsel were employed.

___________________________________________________________

JUDGMENT
___________________________________________________________

NUGENT JA (PONNAN, THERON, PETSE JJA and SOUTHWOOD
AJA CONCURRING)

[1] This is yet another case concerning a public tender. On this
occasion the tender was for the payment of social grants. The body that
invited the tenders was the South African Social Security Agency
(SASSA) established under Act 9 of 2004. SASSA and its chief executive
officer are the second and first respondents respectively. The contract was
awarded to Cash Paymaster Services (Pty) Ltd (CPS) – the third
respondent. AllPay Consolidated Investment Holdings (Pty) Ltd – the
first appellant – also tendered but was unsuccessful.

[2] Aggrieved at the award of the contract AllPay and various
associated companies1 – I will refer to them collectively as AllPay –
applied to the North Gauteng High Court for orders setting aside the
decision to appoint CPS and the contract that followed upon that decision.
The relief sought was amended in the course of the hearing before the
court below and I deal with that later in this judgment. For the moment it
is sufficient to say that the court below (Matojane J) declared ‘the tender
process [to be] illegal and invalid’ but also ordered that ‘the award of the
tender to [CPS] is not set aside’. AllPay now appeals the latter order and
CPS cross-appeals the former order, in both cases with the leave of that
court.

[3] It is as well at the outset to clear the atmosphere in which this case
has been conducted so as to have certainty on what is before us.

[4] Whatever place mere suspicion of malfeasance or moral turpitude
might have in other discourse it has no place in the courts – neither in the
evidence nor in the atmosphere in which cases are conducted. It is unfair
if not improper to impute malfeasance or moral turpitude by innuendo
and suggestion. A litigant who alleges such conduct must do so openly
and forthrightly so as to allow the person accused a fair opportunity to
respond. It is also prejudicial to the judicial process if cases are
adjudicated with innuendo and suggestion hovering in the air without the
allegations being clearly articulated. Confidence in the process is built on
transparency and that calls for the grounds upon which cases are argued
and decided to be openly ventilated.

1Who are the remaining appellants.

[5] The affidavits of AllPay evoke suspicion of corruption and
dishonesty by innuendo and suggestion but without ever making the
accusation directly and to a degree that has carried over to the heads of
argument filed on its behalf. To clarify the position AllPay’s counsel was
asked at the outset of the hearing whether corruption or dishonesty was
any part of its case, and that was unequivocally disavowed. It confined its
case to what were said to have been fatal irregularities and it was on that
basis that the appeal proceeded.

[6] But there have been many twists and turns in the case and there
was to be another twist even after the appeal had been heard. Some three
weeks after the hearing there arrived, unannounced, an application on
behalf of AllPay to introduce further evidence into the appeal. AllPay
said that the evidence establishes that the tenders were evaluated
dishonestly. Its explanation for its earlier disavowal was that the evidence
came to hand in admissible form only after the appeal had been heard.

[7] It is the practice of this court that parties may not file new material
after the hearing of an appeal without the leave of the court. There must
be finality in litigation and finality comes for the litigants once the appeal
has been heard. That was conveyed to the attorneys of all the parties and
they were directed to refrain from doing so. The response from AllPay’s
attorneys was to ask our leave to file the application formally. After
reading the application we refused the request because even on its face,
without hearing the other parties, there is no possibility that the
application could succeed. I give the reasons for that briefly.

[8] The evidence sought to be introduced was an affidavit of a certain
Mr Kay. He related a clandestine meeting with Mr Tsalamandris – an

employee of SASSA who had provided administrative assistance when
the tenders were evaluated – at a restaurant a year ago. In preparation for
the meeting Mr Kay purchased a device with which he recorded their
conversation.

[9] On the same day, after the conversation, Mr Kay wrote to the
attorneys for AllPay. He told them in broad terms what Mr Tsalamandris
had said and that he had a recording of the conversation. About a month
later an anonymous account of the conversation was published in a
Sunday newspaper.

[10] AllPay’s attorneys listened to the recording shortly before its final
affidavit was filed. They said ‘they understood the position to be that Mr
Kay was, at least at that stage, not willing for the content of the recording
to be made public or placed before the court’ and for that reason the
recording was not tendered in evidence. What was tendered instead was
the newspaper article reporting the conversation, which was in due course
struck out on the grounds that it was hearsay.

[11] There the matter rested until after the hearing of the appeal, when
Mr Kay was asked, for the first time, to depose to an affidavit, which he
readily agreed to do. I will not attempt to decipher the opaque reasons
given for why Mr Kay was asked for an affidavit after the appeal had
been heard.

[12] I am not aware of any case in which this court has admitted new
evidence after an appeal has been heard. Be that as it may, even if the
application had been brought before the appeal was heard we would
certainly have refused it.

[13] It has been said many times that new evidence will be admitted on
appeal only where the circumstances are exceptional. There would need
at least to be an acceptable explanation for why the evidence was not
placed before the court below. In this case we would also need an
acceptable explanation for why the application was not brought before the
hearing of the appeal. So far as that is concerned, at no time before the
appeal was heard did AllPay even ask Mr Kay to depose to an affidavit.
An explanation is given for why it did not do so when filing its affidavits
in the court below, but AllPay gives no clear and forthright explanation
for not having asked him before the appeal. On that ground alone the
application would have failed.

[14] But that is the least of the difficulties. It is also trite that the
evidence would need to be ‘weighty and material’.2  In S v N3 Corbett JA
pointed out that in the vast majority of cases new evidence has not been
allowed, and where it has been allowed the evidence has related to a
single critical issue. In this case if the evidence were to be admitted the
parties might just as well start the case over again. What is now sought to
be introduced is a case entirely at odds with the case that was presented.
What is more, far from being weighty, the evidence carries no weight at
all, and would not be admissible even if it had been deposed to by Mr
Tsalamandris himself.4

[15] The transcript discloses no admissible evidence of dishonesty.
Some facts alleged by Mr Tsalamandris were not within his personal
knowledge – he said that they were told to him by someone whose

2Dormell Properties 282 CC v Renasa Insurance Co Ltd 2011(1) SA 70 (SCA) para 21.
31988 (3) SA 450 (A) 458I-459A.
4 Mr Tsalamandris did not depose to an affidavit.

identity is not disclosed. Those allegations are hearsay that would not be
admitted into evidence on any ground.` The remaining facts he disclosed
were largely disclosures of what occurred in the process of evaluating the
tenders, which are now disclosed in the voluminous record. For the rest
the allegations of dishonesty made by Mr Tsalamandris were all
inferences he drew from those facts. Inferences drawn by a lay witness
are no more than expressions of his or her opinion that are not admissible
in a court. It is for the court and not a lay witness to decide what
inferences should properly be drawn from established facts.

[16] It needs to be borne in mind that the conversation took place a year
ago before the record of the evaluation process was produced in this case.
What occurred at the meeting is that Mr Tsalamandris related to Mr Kay
some of the events that had occurred, made allegations of dishonesty by
inference from the facts he disclosed, and invited Mr Kay to seek out
evidence to establish those facts. The tenor of the conversation is
captured by his statement that ‘if you put all these little pieces together
you’ll see’. Most of those ‘little pieces’ are now a matter of record, some
will be in the knowledge of AllPay if the events occurred, but have not
been advanced, and others were capable of being established over the
year the allegations have been known to AllPay. It is extraordinary that
AllPay should disavow dishonesty and then think to place inferences
before us through the mouth of Mr Tsalamandris.

[17] But in any event AllPay’s advisers seem to overlook that the
proceedings before us were brought on application. Final orders are
granted in application proceedings only on undisputed facts.5  I think it

5Subject to the qualification in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA
623 (A) 635B-C.

can be safely assumed that the inferences of dishonesty drawn by Mr
Tsalamandris will be denied by the other parties – anything else would fly
in the face of everything they have said in this case – in which event they
would be irrelevant to the adjudication of the case.

[18] I do not think it is necessary to set out further reasons why the
application could not possibly succeed. If proper evidence of corruption
or dishonesty were ever to emerge I am sure AllPay’s advisers are
capable of advising it on remedies it might have. For the present I think
we should put aside the diversion and continue to decide the case that was
presented, in which dishonesty was disavowed.

[19] A criticism levelled by AllPay against SASSA highlights how a
case of this kind ought not to be approached. In the heads of argument
filed on its behalf AllPay took SASSA to task for what was said to be its
‘unseemly and spirited defence of CPS as its preferred candidate’. In the
affidavits filed on its behalf it referred to SASSA’s ‘partisan stance’.
Those criticisms cast the case as a squabble between competitors as to
who should have the bone, from which SASSA should keep out.  Nothing
could be further from the truth. Public procurement is not a mere
showering of public largesse on commercial enterprises. It is the
acquisition of goods and services for the benefit of the public. What is
under attack in this case is SASSA’s performance of that duty on behalf
of the public. The interests of SASSA and those of the public are as
material to this case as those of AllPay and CPS. When making any value
judgments that might be required in this case those interests must also be
brought to account.

[20] The procurement of goods and services by the state and other
public entities is subject to various legal constraints. Section 217(1) of the
Constitution requires all organs of state, when they contract for goods or
services, to do so ‘in accordance with a system which is fair, equitable,
transparent, competitive and cost effective’. That is taken up in the Public
Finance Management Act 1 of 1999, which provides in s 51(1)(a)(iii) that
the accounting authority of a public entity (which includes SASSA) ‘must
ensure that the public entity … has and maintains an appropriate
procurement and provisioning system which is fair, equitable,
transparent, competitive and cost effective’. It has also been held that
public procurement constitutes ‘administrative action’ as contemplated by
the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and must
comply with the provisions of that Act.

[21] There will be few cases of any moment in which flaws in the
process of public procurement cannot be found, particularly where it is
scrutinised intensely with the objective of doing so. But a fair process
does not demand perfection and not every flaw is fatal. It was submitted
that the process of procurement has a value in itself, which must lead to
invalidity if the process is flawed irrespective of whether the flaw has
consequences, and extracts from various cases were cited to support that
proposition. I do not think it is helpful to extrapolate from selected
statements made in cases decided in a different context. The cases from
which the extracts were drawn did not concern the process of tendering. I
have pointed out that the public interest has a role to play in cases of this
kind. It would be gravely prejudicial to the public interest if the law was
to invalidate public contracts for inconsequential irregularities.

[22] Before turning to the course the case has taken and the issues that
arise it is convenient to outline the background against which the contract
was concluded, and the process that culminated in this contract.

[23] The state pays about 15 million social grants of one kind or another
to about 10 million recipients each month.6 At one time the task of paying
those grants was the responsibility of the various provincial authorities.
SASSA was established to bring the payment of social grants under a
single umbrella. What SASSA inherited when the responsibilities of the
provincial authorities were assigned to it was described in its affidavits as
‘disintegrated
social
security
systems,
lack
of
uniform
grant
administration processes, ineffective IT systems and interfaces, costly
administration fees, fraud and corruption, and poor management of
outsourced payment services’.

[24] At the time SASSA inherited its responsibilities most grants were
being paid in cash by contracted service providers. Transporting large
sums of cash to numerous payment points, some located deep in the rural
countryside, presents substantial security risks in itself. If the money
reaches its destination there is then the risk that payments might be
claimed by people not entitled to grants, or in the name of beneficiaries
who are no longer alive. When millions upon millions of rand are being
paid out in social grants it goes without saying that there is the potential
for enormous loss from conduct of that kind.

[25] Some risks can be reduced if payments are made electronically
through the banking system but that presents other challenges. Banking is
foreign to many recipients of social grants and their introduction to the

6Some recipients receive multiple grants on behalf of multiple beneficiaries.

banking system can be a cumbersome process. SASSA also needs to be
certain that the bank accounts to which grants are paid are authentic and
that the beneficiaries concerned are still alive. There is also a need for
proper management information; there must be a proper means of
accounting for the payments that are made; and so on.

[26] If an electronic payment system is capable of overcoming those
challenges it is the preferred method of paying grants. At the time
SASSA inherited its responsibilities about 37 per cent of grants were
being paid electronically through the banking system by arrangement
with the various banks. One of SASSA’s objectives was to encourage
cash recipients to convert to electronic payment.

[27] The invitation to tender – referred to as a Request for Proposals
(RFP) – was directed at identifying service providers who would pay
social grants on SASSA’s behalf. The RFP had no fixed specification but
instead invited solutions that would meet various stated objectives within
certain parameters. There were a number of subsidiary elements to the
service that was required – like providing adequate facilities for those
recipients who queued to receive cash payments – but it was directed
primarily at finding a payment solution that was convenient to recipients
and limited the risk of theft and fraud.

[28] The RFP identified the scope of the work to be provided with
reference to what were called ‘performance areas’ that were described as:
 ‘Enrolment of eligible Beneficiaries, Grant Recipients and Procurators;
 Issuance of Beneficiary Payment Cards;
 Payment of grants;

 Provision of management information, including reconciliation of payment
Data and the provision of adequate security during the entire payment process;
 The provision of adequate infrastructure at Pay-Points; and
 Phase-In Phase-Out Plan.’

[29] An effective means for avoiding theft and fraud in the payment
process is to match payments against beneficiaries and recipients with
reference to his or her unique biological features – referred to in the
papers as ‘biometric verification’ – typically his or her fingerprints or
voice. The RFP made it abundantly clear in various places that a solution
that embodied those features would carry considerable weight. Thus with
reference to the registration of beneficiaries it recorded that
‘the intention of SASSA is to have all the Beneficiaries, irrespective of the method
through which they receive their Grants, to be Biometrically identified’.
It went on to provide:
‘The minimum acceptable requirement during bulk and on-going enrolment is that all
ten finger prints of Beneficiaries must be captured.’
It recorded that the biometric data captured during enrolment
‘will be used for matching and authenticating during payment process. The proposed
solution must therefore allow or enable these business functions…. Biometric Data
processing must allow one to many matching during enrolment and payment
processing stages…. The enrolment Data will further be used to enable the life
certification process and will become implicit during payments.’
So far as the ‘payment solution’ being sought was concerned the RFP
provided:
‘3.3.1 Payment Services of Social Grants must be secured, preferably, Biometric
based. The Bidder’s Proposal should provide detail on the measures that the Bidder/s
will put in place to ensure that the right person is paid the correct amount.’
I return to that clause later in this judgment.

[30] The process that was employed for receiving and evaluating bids
appears from the RFP supplemented by other documents that form part of
the record.

[31] The process required sealed bids to be submitted by a specified
date. Bids were to be submitted in what was called a ‘two stage envelope
system’. That required documents setting out the ‘technical and
functional’ elements of the proposal (I will refer to that simply as the
technical proposal) to be sealed in one envelope, and the ‘financial
proposal and preferential points documents’7 to be sealed in another
envelope.

[32] Bidders were invited to submit bids for any number of provinces. If
bids were made for multiple provinces then each bid was to be submitted
separately. That was stated in the RFP as follows:
‘Bidder’s may submit Proposals in respect of one or more Provinces specified in this
RFP [all nine provinces were specified].
Each bid (per Province) must be submitted separately. For example, if Bidding for
two Provinces, submit two separate bids’.

[33] Once bids had been submitted there would be a compulsory
briefing session ‘where questions of clarification and/or queries
concerning the requirements of this RFP will be addressed’. The briefing
procedure envisaged that bidders would submit written questions by a
specified date and that ‘responses and clarity to questions received’
would be provided at the briefing session.

7A reference to points to be awarded for the advantages the proposal offered to historically
disadvantaged persons.

[34] Treasury regulations on state acquisitions required tenders to be
evaluated by a bid evaluation committee (BEC) and a bid adjudication
committee (BAC). The regulations required the state entity concerned to
have a system for constituting those committees. The system employed
by SASSA was contained in an internal circular issued by the Chief
Financial Officer that directed how the committees were to be constituted
and set out in some detail their functions and how those functions were to
be performed.

[35] Bids would first be screened for compliance with the
administrative requirements of the RFP. Those that survived would then
be
evaluated
by
the
BEC,
which
would
report
and
make
recommendations to the BAC. The BAC would in turn make
recommendations to the Chief Executive Officer, who was authorised to
conclude a contract.

[36] There are cases in which the value to be had from goods or services
is a compromise between their quality and their price. In such a case both
elements would be weighed against one another simultaneously to reach
the appropriate compromise. In this case bids were to be evaluated in two
distinct stages, which demonstrates that the merit of the technical solution
was foremost in SASSA’s mind. Bids were first to be evaluated on the
merit of the technical solution offered, without sight of the financial and
preference-point proposals. Only solutions that crossed a substantial
threshold – they needed to score 70 per cent – would proceed to be
evaluated on their financial and preference-points merit. The way that
was expressed in the RFP was that
‘bids will be evaluated against the solution criteria to determine whether or not these
comply with the specified solution requirements. Depending upon the level of

compliance, proposals will be accorded a scoring of 1 to 5 in line with the set criteria.
Only bids that attain a minimum score of 70% of the total technical/functionality
criteria will be considered for further evaluation for the financial and preference
Points.’

[37] That does not mean that bidders who crossed the technical
threshold would be at large so far as cost was concerned. The fee that
SASSA was willing to pay was capped at R16.50 per transaction – a little
more than half the average fee of R30 per transaction it was then paying.

[38] The RFP listed five criteria – with a number of sub-criteria in each
case – against which the proposals would be scored.  Once scored on a
scale of 1 to 5 the scores would be weighted in calculating the overall
percentage score. The weight attached to each of the criteria makes it
clear that SASSA’s primary concern was the solution offered for
enrolment and payment. The five criteria, with the weight of each
reflected in brackets, were ‘enrolment solution’ (25 per cent), ‘payment
solution’ (40 per cent), ‘security services’ (15 per cent), ‘phase-in phase-
out’ (10 per cent), and ‘risk mitigation’ (10 per cent)’. The enrolment and
payment solutions offered would thus contribute 65 per cent towards the
target score of 70 per cent.

[39] The RFP envisaged that the evaluation of the bids would not
necessarily be confined to evaluating the written documents. It provided
that
‘bidders who submit proposals in response to this RFP may be required to give an oral
presentation, which may include but is not limited to an equipment/service
demonstration of their proposed solution/s to SASSA …. Demonstrations and
presentations will be restricted to bidders that have obtained the minimum score of 70
% of the technical/functional evaluation phase …. Presentations and demonstrations

will be afforded [so as to allow] the bidders an opportunity to clarify or elaborate
upon their proposals. It should be noted that this phase should not be construed as
contractual negotiations or submissions of material not submitted with the original
proposal or be construed as an opportunity to change amend or vary the
technical/functional solution.’

[40] The implication of that process is that some proposals might be so
unmeritorious that they could be disqualified immediately. Others might
be scored provisionally at 70 per cent or more, which would be subject to
reassessment after the bidder had presented the proposal orally.

[41] Twenty one bids were received by the closing date. One was
disqualified immediately and the remainder were referred to the BEC for
evaluation. According to the report of the BEC bids were at first scored
by each member independently. The various scores were then captured on
a spreadsheet and discussed where necessary, particularly if there were
large discrepancies.

[42] The bids were evaluated over a period of seven days. Both AllPay
and CPS bid for all nine provinces. The evaluators scored the solution
that was proposed by each and applied that score across all the provinces.
After an initial evaluation over six days AllPay was given an overall
score of 70.42 per cent and CPS was ahead of it at 79.79 per cent. The
other bidders fell short and were disqualified from further evaluation.

[43] AllPay and CPS were then called to present their respective
proposals orally. After the presentations CPS’s score increased to 82.44
per cent and AllPay’s score fell to 58 per cent, disqualifying it from the

next evaluation stage. Satisfied with the CPS proposal on its financial8
and preference-points merits the BEC recommended to the BAC, in a
lengthy report, that it be awarded the contract for all nine provinces. The
BAC accepted the recommendation and conveyed that to the Chief
Executive Officer who concluded a contract for five years with CPS on 3
February 2012. The contract required CPS to commence its service on 1
April 2012.

[44] What confronts one at every turn in this case are certain undisputed
facts that are material to all the arguments that have been advanced. The
technical solution offered by CPS was considered by SASSA to be
superior to that offered by AllPay in a material respect. The CPS solution
was able to biometrically verify that every payment of a grant was made
to an authentic beneficiary, at the time it was made, irrespective of the
method of payment. The AllPay solution was not able to do that. AllPay
was able to biometrically verify cash payments, but was able to verify the
authenticity of beneficiaries paid electronically only once a year.

[45] In various parts of its affidavits SASSA described the position as
follows:
‘[T]he solution presented by AllPay did not make adequate provision for biometric
verification and the standardisation of services. This, in short, is the reason why the
tender was not awarded to AllPay …
…
The solution offered by [CPS] had the following important quality. It provided a
uniform and equal facility for all beneficiaries, a uniform smartcard for all
beneficiaries and applied to cash payments as well as electronic payments.
…

8The price offered by CPS was marginally less than the capped sum of R16.50.

Additionally and importantly, the solution provides for biometric verification at all
stages when payment is made to the beneficiary. By biometric verification is meant
finger and or voice recognition at the payment stage. AllPay’s solutions on the other
hand provide different solutions for different categories of beneficiaries ….
…
The difficulty with AllPay’s solution lies in the fact that its verification solution does
not provide for authentication of banked beneficiaries. In other words, it continues to
perpetuate the mischief [of fraud and theft] sought to be addressed in the prevailing
situation, and which was pertinently addressed by the CPS proposal. AllPay’s
fundamental difficulty is that it has no solution for proper authentication of the
banked beneficiary … Moreover, beneficiaries are treated unequally in that a cash
beneficiary has no flexibility to transfer to a banked system, and if he/she, after an
arduous process does so, does not have the comfort of security arising from AllPay’s
inadequate solutions.
…
AllPay was unsuccessful in the bid because it lacked the expertise relating to
enrolment solution and payment solution – the determinative criteria in evaluating a
system sought by [SASSA] and which contained the essential elements to address the
mischief of abuse by claimants for social grants who do not qualify’.

[46] Indeed, the undisputed evidence is that ‘the CPS solution as offered
in its bid meets every single requirement stipulated in the RFP and
addresses all the concerns raised by SASSA’ and the AllPay solution did
not, and that is why CPS was awarded the contract.

[47] It is not disputed that both bidders were treated equally throughout
the process, whatever might have been its flaws. There is also no
suggestion that that it was irrational, or unreasonable, or unlawful, for
SASSA to want the solution that was offered by CPS in preference to that
offered by AllPay. The most that AllPay was able to say was that its
alternative solution could have won the day on its financial proposals had

it proceeded to that evaluation stage. AllPay was not able to say that its
proposal would indeed have proceeded to that stage absent the alleged
irregularities that form the subject of its complaints.

[48] With that background I turn to AllPay’s complaints. Most were
upheld by the court below but its reasons for doing so did not materially
elaborate upon the submissions made on behalf of AllPay and for that
reason I do not refer to them each time.

[49] The case advanced by AllPay has shifted from time to time but
there comes a point in litigation when litigants must fix their colours to
the mast. AllPay did that in the heads of argument filed on its behalf. The
case it advanced was presented under five headings and I deal with each
in turn, in the chronological order in which the material events occurred.

THE COMPLAINTS
The Alleged Failure to Submit Separate Provincial Proposals
[50] I indicated earlier that the RFP required a bidder who was bidding
for multiple provinces to submit separate bids for each province. Clearly
what SASSA had in mind was that it would not consider bids that were
open for acceptance only for multiple provinces or not at all.

[51] Both AllPay and CPS submitted bids for all nine provinces. AllPay
alleges that the CPS bids were not separated for each province in conflict
with the requirements of the RFP. It was submitted that it was unfair to
AllPay to accept the bids in that form. Why that was so was not
developed and I cannot see why that should be. No doubt the exclusion of
CPS on that basis would have benefited AllPay but that is not what we
mean by unfairness. The objection that was pressed more strongly – at

least in the heads of argument – was that irregularity in the process is
fatal for that reason alone – the general submission I referred to earlier
that process has value as an end in itself. I do not need to consider that
because there was no irregularity.

[52] It is not correct that CPS did not submit separate bids for each
province as contemplated by the RFP. Its bid documents read together
with the conditions for acceptance in the RFP make it perfectly clear that
it was open to SASSA to accept its bid for any one or more provinces,
which was the objective of the requirement. What occurred is only that
CPS submitted one copy of its technical proposal that was to be applied
to all the provinces.

[53] I do not think the RFP is to be construed as requiring a bidder who
offered the same solution for all provinces to duplicate the document nine
times. Commercial documents must be construed in a businesslike
manner and that would not be a businesslike construction. There is no
merit in this complaint.

The Composition of the Bid Evaluation Committee and the Bid
Adjudication Committee
[54] The internal circular I referred to earlier required a BEC to
comprise at least five people including a supply chain management
(SCM) practitioner. The BEC that evaluated the bids in this case
comprised only four members, none of whom was an SCM practitioner.

[55] AllPay’s complaint is that the BEC was not constituted in
accordance with the circular and for that reason its decisions were invalid.

For that contention it relied upon Schierhout v Union Government
(Minister of Justice)9 and other cases.10

[56] Counsel’s reliance upon Schierhout demonstrates why it is not
helpful to cite cases out of context. That case concerned the exercise of
statutory authority conferred upon a defined body. It goes without saying
that in such a case only the body defined by the statute may lawfully
exercise the authority. That was the same in Acting Chairperson: Judicial
Service Commission. It has no application in the present case. The BEC
was not a body constituted with statutory powers. It was merely a group
of people brought together by SASSA to perform a task on its behalf –
just as its employees do every day. Watchenuka and Ryobeza concerned
something quite different and are not material.

[57] I do not understand the submission to be that the defect in its
composition rendered its decisions unfair. Nor could such a decision have
been sustained. The composition of a BEC was a matter within the
discretion of SASSA. If the circular had required only four members
without an SCM practitioner – which was its composition in this case –
AllPay could hardly have said that was unfair.

[58] I understand the objection to be, once again, that because the
composition of the BEC was in conflict with the circular it was irregular,
and for that reason alone its decisions were invalid. I do not see how that
can be. An act is not ‘irregular’ for purposes of the law simply because
one chooses to call it that. An irregularity that leads to invalidity is one

9Schierhout v Union Government (Minister of Justice) 1919 AD 30 at 44.
10Acting Chairperson: Judicial Service Commission v Premier of the Western Cape Province 2011 (3)
SA 538 (SCA), Watchenuka v Minister of Home Affairs 2003 (1) SA 619 (C), Ryobeza v Minister of
Home Affairs 2003 (5) SA 51 (C).

that is in conflict with the law. It is because it is in conflict with the law
that it is not able to produce a legally valid result.

[59] We were referred to no law that requires a BEC to be constituted in
a particular way. We were referred only to the circular, which was not a
legal instrument. It was no more than an internal document recording
SASSA’s standard policy. Perhaps it was an internal ‘irregularity’ but it
was not an unlawful irregularity.  There is no merit in this complaint.

[60] The BAC comprised five members that included Mr Mathebula
from the National Treasury. Mr Mathebula was not at the final meeting at
which the BAC accepted the recommendations of the BEC. His absence,
so it was submitted, was fatal to the BAC’s decision.

[61] In support of that submission counsel relied again on Schierhout,
and on Yates v University of Bophuthatswana.11

[62] The second and third meetings of the BAC were held on 9 and 25
November 2011 respectively. After the earlier meeting Mr Mathebula
expressed various concerns to the chairman that he thought required
further consideration. The chairman reported to the subsequent meeting
on 25 November that he had met with Mr Mathebula and had discussed
and recorded his concerns. He told the meeting that Mr Mathebula had
been aware that the next meeting was scheduled for 25 November and
had assured the chairman he would be present. As it turned out, Mr
Mathebula was called elsewhere, and was absent from the meeting, to the
annoyance of the chairman.

11Yates v Universiy of Bophuthatswana 1994 (3) SA 815 (BG).

[63] The transcript of the meeting reflects that the remaining members
were satisfied that they could continue and they did so. The concerns that
had been raised by Mr Mathebula were placed before the meeting by the
chairman and addressed in discussion with the members of the BEC. It
seems they were satisfied with the responses and the BAC then
recommended acceptance of the BEC recommendation.

[64] Again Schierhout has no application. Nor does Yates, in which the
principle in Schierhout was applied in the context of a contract and takes
the matter no further.12 There was no law (I can leave aside a contract)
that required a BAC to be constituted in a particular way. But in this case
it goes further. It was pointed out in Schierhout that the question whether
all members of a nominated body are required to be present when a
decision is taken is a matter for the construction of the statute concerned.
Applying that to this case, not all members of the BAC were required to
be present when a decision was taken. Its terms of reference required a
quorum of only three. There was no irregularity as contemplated by law –
there was no irregularity at all – and this complaint has no merit.

The Failure to Assess the BEE Partners of CPS
[65] The bid of CPS reflected that three black empowerment companies
were to manage and execute 74.57 per cent of the contract value. AllPay
complains that the capacity of the companies to perform ought to have
been assessed before awarding the contract.

[66] Counsel advanced this complaint as if it was self-evident that the
failure of the BEC to assess the capacity of the three companies was

12The conditions of employment of Yates, which were contractually binding on the University,
provided that ‘the University may only terminate a contract of employment on the recommendation of
a committee of enquiry [appointed by the Vice-Chancellor] …’.

unlawful but it is certainly not evident to me. SASSA was not required by
law to assess the companies. There is also no basis for saying that its
failure to do so impacted unfairly on AllPay. Nor can it be said that its
failure to do so was irrational. It had reasoned grounds for its decision. It
was alive to the risk of non-performance by the three associated
companies and felt that the risk could be managed by imposing
appropriate contractual consequences upon CPS. It cannot be said that
that was not a reasoned decision. One might question the wisdom of its
decision but the evaluation of the bid was its prerogative and a court
cannot interfere only because it thinks its decision was unwise. This
complaint also has no merit.

Bidders Notice 2
[67] The RFP was announced on 15 April 2011 with 27 May 2011 the
closing date for submissions, which was later extended to 15 June 2011.
The compulsory briefing session was held on 12 May 2011.

[68] Meanwhile AllPay posed various questions to SASSA and was told
that they would be answered at the briefing session. In its founding
affidavit AllPay complained that certain of its questions were never
answered but that was not pursued before us and I need say no more
about it.

[69] It will be recalled that various provisions of the RFP reflected that
SASSA placed great store on biometric verification of payments.13 One
such provision was clause 3.3.1, which said that ‘Payment Services of
Social Grants must be secured, preferably, Biometric.’ The store that
SASSA placed on biometric verification was announced again in a notice

13Para 29 above.

that was issued to all bidders shortly before the closing date that has been
referred to as Bidders Notice 2. The notice stated its purpose to be ‘to
give final clarity on frequently asked questions’. Amongst other things,
the notice stated the following, under the heading ‘Registration
(Enrolment)’:
‘A Successful Bidder must register all Beneficiaries in a Province that has been
awarded to the Successful Bidder, regardless of the Payment Methodology. A one to
many biometric search must be conducted at the time of registration to ensure that a
Beneficiary is not added to the database more than once’.

[70]  On the day the notice was issued AllPay wrote to SASSA
motivating a request for consideration to be given to extending the
closing date for the submission of bids. The letter said nothing of that
portion of Bidders Notice 2 that I have referred to. On 14 June 2011
SASSA announced that in response to numerous requests the closing date
was extended to 27 June 2011. That meant bidders had seventeen days
from the time the notice was issued to submit their bids.

[71] I do not need to examine the language of the two provisions. It has
been accepted throughout this case that whereas clause 3.3.1 informed
bidders that a solution offering biometric verification when payments
were made, by whatever means, would be ‘preferable’, the effect of
Bidders Notice 2 was to inform them that only a solution having that
feature would do. As it was expressed in argument at times, such a
solution was ‘mandatory’ under Bidders Notice 2.

[72] There was much debate on whether Bidders Notice 2 ‘amended’
the RFP – which AllPay said it did – or whether it merely ‘clarified’ the
RFP – which SASSA said it did – but it seems to me that it is sterile to

debate its correct classification. It is more helpful to examine what effect
it had.

[73] Bidders Notice 2 did not change what had been asked for in the
RFP. It merely narrowed the range from which SASSA would choose.
Whereas bidders had been told before that a solution allowing biometric
verification of all payments would be chosen above a solution that did not
have that feature, Bidders Notice 2 now told those who had only the latter
solution that they need not bid at all because their solution would not be
chosen.

[74] Bidders Notice 2 made a difference to bidders only if they did not
have the mandatory solution and were bidding against others who also
did not have that solution. Before Bidders Notice 2 their bids would have
been considered. After Bidders Notice 2 their bids would be rejected. But
it made no difference to such a bidder who was in competition with a
bidder who did have the mandatory solution. In that competition bidders
were told by clause 3.3.1 that the mandatory solution would be chosen
above other solutions. Bidders Notice 2 placed the bidder in no worse
position. His or her solution would not have been chosen in any event.
The notice informed the bidder only that he or she need not bid at all.

[75] In this case it is not disputed that AllPay did not offer the
mandatory solution and that CPS did. On a proper application of the RFP
SASSA was bound to accept the CPS solution in preference to that of
AllPay even without Bidders Notice 2. That is what clause 3.3.1 had
announced it would do. Indeed, it seems to me that had it accepted the
AllPay solution CPS might have had good grounds to complain.

[76] There is a second problem that confronts AllPay so far as Bidders
Notice 2 is concerned. If the mandatory solution had been announced in
the RFP none of its present complaints could have been raised. Yet it
indeed bid with notice that it was mandatory. One might ask, then, in
what way it was prejudiced by the issue of the notice? Three
contradictory answers are proffered in its affidavits.

[77] At one point it said that ‘it could, had it been informed [that a
biometric solution was required], have amended its proposal to take
account of the new requirement’, implying that it was not informed. In
the following paragraph it said that ‘had it been made clear that SASSA’s
tender now required monthly authentication by way of voice recognition,
it would have been a relatively simple matter for it to adapt its offer
accordingly’. In an affidavit that was filed later AllPay proffered yet a
third explanation. It said that the ‘the eleventh hour change was
prejudicial as it now required biometric verification on payment as an
inflexible requirement, as such AllPay was not left with sufficient time to
adapt its proposal to this fundamental shift’.

[78] None of those contradictory explanations can carry any weight.
Contrary to the first explanation AllPay was indeed informed – seventeen
days before the closing date – that a biometric solution was required.  So
far as the second explanation is concerned, AllPay wrote to SASSA on
the day it received the notice, voicing various queries, with no suggestion
that the meaning of the relevant part of the notice was unclear. As for the
third explanation, AllPay said nothing to SASSA at any time, whether
before or after it submitted its bid, to suggest that it had wanted to amend
its bid but had not been allowed sufficient time to do so. Any suggestion
that it could have provided the required solution would in an event not be

credible. Clause 3.3.1 made it clear to all bidders that such a solution was
preferred. Knowing that such a solution would at least give it preference,
AllPay would hardly have held that solution back if it had had one, even
without Bidders Notice 2.

[79] The true explanation for not offering the required solution emerged
at the oral presentation of its proposal that I deal with presently. When
questioned on the failure of its proposal to meet the requirements of
Bidders Notice 2 none of the explanations now given was advanced for
why that was so. AllPay’s response was that it was not able to provide the
required solution – indeed, it said that such a solution was not capable of
being provided in South Africa.

[80] There are three essential facts in this case that create a dilemma for
AllPay that none of its submissions address. First, SASSA was entitled to
have the solution it required if that solution was available. Secondly, CPS
offered that solution. Thirdly, AllPay was not able to do so. It seems to
me in the circumstances that Bidders Notice 2 is a red herring in this case.
Whatever notice had been given, it was not able to comply.

[81] The submissions for AllPay do not confront that dilemma but
confine its case to one of process irregularity that is said to be fatal to the
contract. I deal now with those alleged irregularities so far as they
concern Bidders Notice 2.

[82] The first submission was that SASSA was not entitled to alter the
RFP after it had been issued, for which counsel relied on Minister of

Social Development v Phoenix Cash ‘n Carry,14 and Premier, Free State
v Firechem Free State (Pty) Ltd.15 It goes without saying that once bids
have been submitted it is unfair to evaluate them against altered criteria.
As it was expressed in Firechem:
‘. . . [C]ompetitors should be treated equally, in the sense that they should all be
entitled to tender for the same thing. Competitiveness is not served by only one or
some of the tenderers knowing what is the true subject of tender. One of the results of
the adoption of a procedure such as Mr McNaught argues was followed is that one
simply cannot say what tenders may or may not have been submitted, if it had been
known generally that a fixed quantities contract for ten years for the original list of
products, and some more, was on offer.’16
That is what those cases were about.  It is not what occurred in this case.
Bidders Notice 2 was issued seventeen days before the closing date for
bids.

[83] Then it was submitted that Bidders Notice 2 had no effect because
it did not meet the formalities for amendments to the RFP provided for in
clause 14.6:
‘Any amendments of any nature made to this RFP shall be notified to all Bidder/s and
shall only be of force and effect if it is in writing, signed by the Accounting Officer or
his delegated representative and added to this RFP as an addendum.’

[84] The RFP served two functions. One was to inform bidders what
was required. The other was to bind a contracting party to its terms by
incorporating it in the contract. That was provided for in clause 4.1 of the
General Conditions of Contract, which provided as follows:
‘The goods supplied shall conform to the standards mentioned in the bidding
documents and specifications’.

14[2007] 3 All SA 115 (SCA) para 2.
152000 (4) SA 413 (SCA).
16Para 30.

[85] The purpose of clause 14.6 of the RFP was clearly to serve that
contractual function for the benefit of SASSA. It operated to protect
SASSA from claims of the contractor that the bid documents had been
informally amended. It was not intended to play any role in the
informative function of the RFP – nor could bidders ever have thought it
would. So far as Bidders Notice 2 purported to amend the RFP the
amendment for that purpose required no formality, just as answers to
questions at the compulsory briefing session required no formality.

The Scoring of the Bids
[86] Once having been scored provisionally the two bidders were
invited to make presentations. AllPay complains that it was given short
notice. It was telephoned at 19h00 on 5 Oct 2011 and told it must be in
Cape Town on the morning of 7 October. CPS was given even shorter
notice. It was telephoned at 22h15 the night before the presentations.

[87] Fairness cannot be evaluated in the abstract. Whether a person acts
fairly or unfairly depends upon the situation with which he or she is
confronted. AllPay made no complaint to the BEC that the notice given to
it was inadequate. The BEC can hardly be said to have acted unfairly if it
proceeded without having been asked not to do so.

[88] AllPay was obviously unable successfully to field questions
concerning the absence from its solution of biometric verification for all
payments because it was not able to provide it. The best it could do was
to suggest that it would be capable of doing so in the future. After the
presentation the two bids were allocated final scores. The provisional and
final scores that were given to AllPay and CPS respectively for each of

the performance areas are depicted in the following tables. In the first and
third tables the score for AllPay is in the left column and the score for
CPS is in the right column in bold. The second and fourth tables reflect
the weighted accumulated scores as a percentage. The abbreviations in
those tables are: E = enrolment, P = payment, S = security, I/O = phase
in/phase out, M = mitigation.

Before Presentations
Ramakgopa
Magasela
Earl

Nhlapo
Enrolment

3.60 3.60
3.76 3.96
2.88 3.36
2.92 3.88
Payment Solution
3.67 4.50
2.70 4.42
3.33 3.42
3.58 3.92
Security

4.10 3.95
4.00 5.00
4.00 3.80
4.00 4.05
Phase-in/out
3.83 4.50
3.67 5.00
3.50 3.17
3.67 3.67
Mitigation

4.00 5.00
4.00 4.00
4.00 4.00
4.00 4.00

E
P
S
I/O
M
TOTAL
AllPay
16.45 26.56 12.08 7.34
8.00
70.42
CPS

18.50 32.52 12.60 8.17
8.00
79.79

After Presentations
Ramakgopa
Magasela
Earl

Nhlapo
Enrolment

3.60 3.60
2.32 3.96
2.72 3.36
1.84 4.56
Payment Solution
3.42 4.50
2.58 4.42
2.83 3.42
2.25 4.33
Security

4.10 3.95
3.60 5.00
4.00 3.80
2.30 4.25
Phase-in/out
3.83 4.50
2.33 5.00
3.50 3.17
2.17 4.33
Mitigation

4.00 5.00
3.00 4.00
4.00 4.00
3.00 4.00

E
P
S
P
M
TOTAL
AllPay
13.10 22.16 10.50 5.915 7.00
58.675
CPS

19.35 33.34 12.75 8.50
8.50
82.44

[89] In its affidavits AllPay took issue with the lowering of certain of
the scores allocated by Ms Nhlapo and Mr Magasela. It was submitted
that the final scores were irrational. When pressed on the issue counsel
could offer no reason why the final scores were irrational other than that
they were substantially lower than the provisional scores. Irrationality
means the absence of reason. The fact alone that the scores were lowered,
even substantially, does not infer that they were not founded on reason.

[90] Indeed, one does not need to look far to find why the scores of
AllPay decreased. The report of the BEC recorded that the two bidders
‘provided at face value payment solutions that would meet SASSA’s
requirements’ but that the two solutions ‘were substantially different in
certain critical elements of their solution’. For that reason the BEC
‘decided that the scores of the two bidders will be accepted as preliminary
scores pending presentations that would clarify elements of the payment
solution’.  I have already observed that when tackled on elements of the
payment solution AllPay was not able to provide answers. One would
expect, then, that their scores on those issues would be decreased
materially. If there is anything remarkable in the scores it is only that
those of Ms Ramakgopa remained much the same.

[91] In reply counsel for AllPay (who was not counsel who opened its
case) pointed out that the record reflects a decision of the BEC that
Bidders Notice 2 would be left out of account when the provisional
scoring was done, and that the final scoring took account of the notice.
He submitted that to score against different criteria on each occasion was
irrational.

[92] I do not see why that should be so. The provisional scores were
perfectly rational if they were reasoned against the criteria of the RFP
alone. So were the final scores if they were reasoned against the criteria
of Bidders Notice 2. The scores in each case cannot be said to be
irrational – only that they were differently founded. The question is only
whether it was permissible to score finally against the criteria of Bidders
Notice 2, which it was.

[93] Our attention was also directed to certain sub-categories of the
performance areas in which scores unrelated to payment were reduced.
The explanations that were advanced for that were said to be astounding.
I do not think it is necessary to relate the detail of the payments and the
explanations. It is sufficient to say that we are not concerned with the
quality of the reasoning but only with whether the decision was reasoned
and not arbitrary.

[94] Finally, it was submitted that AllPay was treated unfairly because it
was not told in advance of the issues to be addressed at the presentation
and was not afforded a hearing. At precisely what point it ought to have
been afforded a hearing was not made altogether clear but I understand
the submission to be that it should have been informed that its provisional
score was to be reduced and given an opportunity to respond before that
occurred.  In support of the submission that it was entitled to be told in
advance of the issues and to have a hearing selected extracts dealing with
natural justice were quoted from numerous cases.

[95] Extracts from cases decided in a different context are not generally
helpful and that is so in this case. The rules of natural justice come into
play when rights are affected or the person affected has a legitimate

expectation that he or she will be heard. That was the case at common
law17 and it remains the case under PAJA. No rights of AllPay were
affected by the decisions that were made – bidders do not have a right to
a contract. Nor is there any basis upon which a bidder could be said to
have a legitimate expectation of being heard in the course of a tender
evaluation. If what is contended for were to be required, the evaluation of
multiple tenders would be interminable.

Conclusion
[96] When all is said and done there is no escape from the facts I
referred to earlier: SASSA was entitled to have the solution it required if
that solution was available. CPS was able to provide that solution. AllPay
could not. Absent all the alleged irregularities of which AllPay complains
SASSA was entitled to award the contract to CPS.  It seems to me that it
would be most prejudicial to the public interest if inconsequential
irregularities alone were to be capable of invalidating the contract. But I
need not base myself on that in this case. In my view there were no
unlawful irregularities. I think the court below was excessively receptive
of the submissions made on behalf of AllPay. Its order ought not to have
been made and the cross-appeal must succeed.

THE APPEAL
[97] In view of my decision on the cross-appeal it is not strictly
necessary for me to deal with the appeal, but I think I should say
something about it, if only briefly.

17Administrator, Transvaal v Traub 1989 (4) SA 731 (A).

[98] The dilemma that arises when a contract is set aside was expressed
by this court in Millenium Waste Management,18 and later in Moseme
Road Construction,19 but what was said in the former case bears
repeating: 20
‘The difficulty that is presented by invalid administrative acts, as pointed out by this
court in Oudekraal Estates, is that they often have been acted upon by the time they
are brought under review. That difficulty is particularly acute when a decision is taken
to accept a tender. A decision to accept a tender is almost always acted upon
immediately by the conclusion of a contract with the tenderer, and that is often
immediately followed by further contracts concluded by the tenderer in executing the
contract. To set aside the decision to accept the tender, with the effect that the contract
is rendered void from the outset, can have catastrophic consequences for an innocent
tenderer, and adverse consequences for the public at large in whose interests the
administrative body or official purported to act. Those interests must be carefully
weighed against those of the disappointed tenderer if an order is to be made that is just
and equitable.’

[99] We need no evidence to know the immense disruption that would
be caused, with dire consequences to millions of the elderly, children and
the poor, if this contract were to be summarily set aside. The prospect of
that occurring has prompted the Centre for Child Law to intervene as
amicus curiae in the case. We value the contribution they have made but
they had no cause for concern. It is unthinkable that that should occur.

[100] Such an order was sought by AllPay in its notice of motion but the
case has taken many turns. A new notice of motion was produced in the
court below in the course of argument in reply.  I do not intend setting out

18Millenium Waste Management (Pty) Ltd v Chairperson of the Tender Board: Limpopo Province 2008
(2) SA 481 (SCA).
19Moseme Road Construction CC v King Civil Engineering Contractors (Pty) Ltd 2010 (4) SA 359
(SCA).
20Para 23.

in full the new order that was sought. In essence AllPay asked for an
order setting aside the contract and ordering SASSA to invite tenders
again, subject to various directions as to the time by which various steps
must occur. It asked for the order setting aside the contract to be
suspended until that process was completed, the implication being that
CPS should meanwhile be required to continue paying the grants.

[101] It was said that an order along those lines was granted in Millenium
Waste but that is not correct. In that case a tender had been unlawfully
disqualified and was not evaluated. What was ordered was only that the
tender be evaluated, together with various arrangements that would
remain in place until that had been done. How those arrangements came
about does not appear from the judgment.

[102] The order asked for was produced only in the course of argument
after all the affidavits had been filed. Neither SASSA nor CPS had an
opportunity to file affidavits in response to the new claim. Counsel for
AllPay submitted that a court is constitutionally authorised, once it has
found conduct to be unlawful, to craft an order that is appropriate to the
circumstances – which is correct – and that the court below ought to have
done so. That court not having done so we were asked to craft one
ourselves.

[103] This is not a simple contract as was the case in Millenium Waste. It
is a massive contract with massive implications for fifteen million people
and for SASSA and for CPS. The idea that a court is entitled to compel
CPS to continue providing services against its will when its contract
might at any time come to an end is problematic in itself.  That the court
below should have done that – or that we should do so now – without

SASSA and CPS having had the opportunity to place facts before the
court on the implications is not tenable.

[104] But even if this court was minded to do so, as we were asked to do,
there is a fact that is decisive against it. I have pointed out that in
Millenium Waste what was called for was only the evaluation of a tender.
In this case AllPay wants the whole process to start again. If there had
indeed been fatal irregularities in the evaluation of the bids that was no
ground for SASSA to be ordered to invite new tenders. At most AllPay
might have been entitled to an order that the bids be evaluated again
without the irregularities.

[105] I think I have by now made it clear that if SASSA were to evaluate
the bids absent the alleged irregularities there could be no complaint if it
awarded the contract to CPS, for the very reasons it awarded the contract
in the first place, and no doubt it will do so.  No point would be served by
ordering it to evaluate the bids if the outcome would be the same.
Whichever way one turns in this case the facts cannot be escaped: CPS
had a solution that SASSA was entitled to have and AllPay did not.

[106] There is no merit in the appeal. The court below was correct not to
embark upon that hazardous excursion. As it turns out the order of the
court below was unnecessary and we should set it aside but that is merely
a matter of form.

[107] For those reasons

1.
The appeal is dismissed with costs.
2.
The cross-appeal is upheld with costs. The orders of the court
below are set aside and substituted with an order dismissing the
application with costs.
3.
Both in this court and in the court below the costs are to include the
costs of three counsel where three counsel were employed.

__________________
R W NUGENT
JUDGE OF APPEAL

APPEARANCES:

For appellants:
G Marcus SC

D Unterhalter SC

M du Plessis

C Steinberg

A Coutsoudis

Instructed by:

Nortons Inc, Johannesburg

McIntyre & Van der Post, Bloemfontein

For 1st & 2nd respondents:
S A Cilliers SC

N A Cassim SC

M C Erasmus SC

M Mostert

A Higgs

Instructed by:

The State Attorney, Pretoria

The State Attorney, Bloemfontein

For 3rd respondent:
T W Beckerling SC

R Strydom SC

N Ferreira

J Bleazard

Instructed by:

Smit Sewgoolam Inc, Johannesburg

Symington & De Kok, Bloemfontein

For Amicus Curiae:
T Ngcukaitobi

Z Gumede

M Bishop

Instructed by:

Legal Resources Centre, Johannesburg

Webbers, Bloemfontein