The Court of Appeal (CoA) finds that the High Court accepted a number of untested averments and evidence from Cul De Sac at face value and disregarded plausible averments and evidence presenting a different version

(Pic:Press Photo)

The Court of Appeal has ruled in favour of the Public Procurement and Asset Disposal Board (PPADB) for a stay of proceedings pending the outcome of an appeal against the judgment of the High Court in which Justice Michael Leburu ordered PPADB to award a P450 million tender to upgrade the Tshesebe-Mosojane-Masunga Road to Cul de Sac (Pty) Ltd.

Justice Isaac Lesetedi of the Court of Appeal ordered the matter to be heard on an expedited basis because the case goes as far back as 2016.

PPADB had earlier applied to the High Court for a stay of execution of the judgment but Justice Leburu refused and awarded the tender to Cul De Sac. PPADB then filed a fresh application before the Court of Appeal, arguing that it had prospects of success on appeal and that the balance of convenience favoured the granting of a stay pending its appeal. 

In his ruling, Justice Isaac Lesetedi of the Court of Appeal concurred with PPADB that it has prospects of success on appeal, saying there would be prejudice to PPADB if the judgment of the High Court was not stayed pending appeal. It ordered Cul de Sac (Pty) Ltd to pay PPADB’s legal costs. 

The judge observed that the project in relation to the dispute before court has been delayed for several years. “It started in 2016 when the tender for the project was awarded to the previous contractor, Justice Lesetedi noted. “That tender was subsequently terminated in 2018 and a new tender was floated to complete the project. The invitation to tender was restricted only to those entities which had tendered for the project at the initial stage. These excluded the terminated contractor who had failed to perform under the initial tender.” 

Justice Lesetedi said the court a quo (the High Court) was mindful of the authorities setting out the correct approach in this respect.  “On the facts however, it seems, in my view, that the court a quo accepted at face value a number of untested averments and evidence from Cul De Sac and disregarded plausible averments and evidence presenting a different version,” he said. “For instance, the challenge to the independent evaluation was based on an untested allegation that Landmark was not performance-competent in that it was behind in some of its projects. In making this allegation, Cul De Sac appeared to rely on data which the evaluating committee itself noted and evaluated to a contrary conclusion.”

He asserted that the interpretation of the data by Cul De Sac was not based on any analysis. For instance, the judge noted, there is nothing placed before the court by Cul De Sac to show the course of the project (relied upon by Cul De Sac to challenge Landmark's performance ability) being behind at 2 percent, whether that is attributable to Landmark, the employer, or matters beyond the control of either of them. 

In the absence of expert evidence, the High Court stepped into a technical area and drew conclusions in motion proceedings. Most importantly, Justice Lesetedi went on, Cul de Sac did not seek an order in the court a quo setting aside the tender evaluation report. 

In deciding in favour of PPADB, the Court of Appeal also granted the Attorney General and Landmark Projects (Pty) Ltd permission to have the appeals against the High Court judgment heard on an expedited basis. Cul de Sac was again ordered to pay the costs of their applications.