deviation from procurement processpublic procurement


In Wesley Pretorius & Associates Inc and others v Amathole District Municipality and others (1283/2019) [2020] ZAECGHC 41 (12 May 2020), the High Court dealt with an application brought by three law firms, including Clark Laing Inc. The application concerned a tender for legal services. It had been issued by the Municipality, based in East London.

In October 2016, the Municipality appointed the East London firms to a panel of legal services providers. This was for a period of three years. Some eight months later, the Municipality ignored the existing panel and appointed firms and counsel based in Somerset East and Port Elizabeth, respectively. The appointment was for the same legal services but at higher rates.

The East London firms said that the Municipality was in breach of contract. It was obligated to instruct them, rather than the other firms, for any legal services required. This formed the basis for their application.

In its papers, the Municipality argued that no proper service level agreement (SLA) had ever been concluded with the East London firms. It also alleged that sufficient grounds had existed for the Municipality to have relied on a deviation procedure in the procurement process. It had not been necessary for it to have appointed the Somerset East and Port Elizabeth firms by way of competitive bidding.

The Municipality also brought a counter-application. It sought an order for the setting aside of the decision to appoint the East London firms.


The High Court held that there were no grounds upon which the Municipality could have relied on a deviation procedure. Its appointment of the Somerset East and Port Elizabeth firms was not fair, equitable, transparent, competitive or cost-effective. Furthermore, it was not clear whose decision was sought to be set aside and why the Municipality had delayed for so long in doing so.

Rather, the High Court concluded that the new Municipal Manager had ignored the existing panel of law firms so that he could work with firms whom he personally preferred.

The application was granted with costs. The counter-application was dismissed.

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