Constitutional Court dismisses applications for leave to appeal Supreme Court of Appeal judgment and finds in Caxton’s favour

18 February 2019|In Competition Briefs eBriefs Nortons Inc News NortonsInc

In this matter, which has a long and protracted history, Nortons represented a joint venture comprising CTP Limited, Bongani Rainmaker Logistics (Pty) Ltd and Ndabase Printing Solutions CC (“the CTP JV”) in an application for the review and setting aside of the award of a multi-billion Rand tender by the Department of Basic Education (“DBE”) for the printing, packaging and distribution of 60 million school workbooks over a period of three years.  The tender had been awarded to another consortium comprising Lebone Litho Printers (Pty) Ltd, Novus Holdings Limited and UTI SA (Pty) Ltd (“the Lebone Consortium”).

The High Court originally dismissed the CTP JV’s application for review and the CTP JV appealed to the Supreme Court of Appeal (“SCA”).  The SCA unanimously overturned the High Court’s ruling and held, inter alia, that the contract should be set aside on the basis that the decision to award the tender to the Lebone Consortium was unlawful in terms of section 6(2)(i) of the Promotion of Administrative Justice Act (“PAJA”) and was constitutionally invalid, as it violated the requirements of equity, transparency and objectivity under section 217 of the Constitution.  The SCA also held that the approach of the High Court was at odds with and compromised the “no difference principle” rejected by the Constitutional Court in the case of Allpay Consolidated Investment Holdings (Pty) Ltd & others v Chief Executive Officer of the South African Social Security Agency & others, in which the Constitutional Court set out the proper approach to tender reviews.  The SCA further held that the remedy must be aimed at correcting or reversing the consequences of the decision taken by the Department of Basic Education.  Therefore, in order to protect the needs of the learners, the SCA suspended the declaration of invalidity of the tender until March 2020, pending the award of a lawful tender by the Director-General.

In December 2018, the Lebone Consortium and the DBE sought leave to appeal the decision of the SCA to the Constitutional Court.

On 4 February 2019, the Constitutional Court dismissed, with costs, both the applications for leave to appeal lodged by the Lebone Consortium and the DBE on the grounds that the applications were not in the interest of justice and that they bore no reasonable prospect of success.

Nortons Inc. represented the CTP JV consisting of CTP Limited, Bongani Rainmaker Logistics (Pty) Ltd and Ndabase Printing Solutions CC.