VIABILITY OF BIDDER REMEDIES UNDER SECTION 62 OF THE SOUTH AFRICAN MUNICIPAL SYSTEMS ACT

Abstract

This article examines the extent to which an unsuccessful bidder is afforded a viable appeal remedy under section 62 of the Local Government: Municipal Systems Act No 32 of 2000, following the decision of the High Court in Loghdey v City of Cape Town (100/09) [2010] ZAWCHC 25. Until this case held to the contrary, it was taken for granted that the section generally accorded unsuccessful bidders the right to internal appeal against the award decision of a municipality’s delegated authority. Although a later decision of the Supreme Court of Appeal in CC Groenewald v M5 Developments (Pty) Ltd [2010] ZASCA 47 para 21, held that section 62 appeal is available to unsuccessful tenderers, it seemingly did not settle the issue; as it has been suggested that the two cases are distinguishable. Besides, consistent judicial interpretation of section 62(3) has further cast doubt on the viability of bidder remedies under the section. It is argued here that the decision in Loghdey is flawed; and has been effectively overruled in CC Groenewald . Thus, section 62 definitely affords internal appeal rights to unsuccessful bidders against award decisions of municipalities’ delegated authority. Furthermore, reasons are presented to urge the court to reconsider and depart from its current interpretation of section 62(3) that limits the viability of bidder remedy under section 62.