In City of Cape Town v Aurecon South Africa (Pty) Ltd [2017] ZACC 5, the Constitutional Court considered an appeal pertaining to an application brought by the City to set aside a tender awarded to Aurecon for the decommissioning of the Athlone power station.

The City had previously appointed a JV to carry out a pre-feasibility study for the above decommissioning. The JV had comprised a subsidiary of Aurecon and another company. When the City eventually issued a tender for the decommissioning itself, only Aurecon’s bid was treated as responsive. Subsequently, the municipal council raised concerns that the tender process was tainted by irregularities, particularly as a result of Aurecon’s involvement in the pre-feasibility study. This culminated in the City’s launching an application for the review and setting aside of its decision to award the contract to Aurecon.

Under section 7(1)(b) of PAJA, a review application must be brought without unreasonable delay and within 180 days of a person’s having become aware of an administrative action and the reasons for it. The Constitutional Court held that the City became aware of the reasons when it considered the report submitted by its Bid Evaluation Committee. Accordingly, the City was well outside the 180-day period when it brought its review application. It was nearly a year late.

Such non-compliance could be condoned, but the Constitutional Court was not prepared to do so. It reiterated the principle that there is a higher duty on the state to respect the law, to fulfil procedural requirements and to tread carefully when dealing with rights. The City’s explanation for the delay was that it was caused by bureaucratic governmental processes. The Constitutional Court refused to accept this.

Furthermore, the Constitutional Court found that the irregularities that had allegedly tainted the tender process were not irregularities at all. There was no evidence of corruption, collusion or fraud.

The appeal was dismissed with costs.