<\/p>\n
The conduct of the South African National Roads Agency (Sanral) has been severely criticised in a\u00a0high court\u00a0judgment for persistent delays, failing to comply with court rules, and disrespecting the court \u2013 resulting in the roads agency receiving a punitive costs order.<\/p>\n
Judge Khashane Manamela said Sanral failed to meet the overarching constitutional requirement for organs of state to do their earnest when contracting for goods or services to ensure this is done \u201cin accordance with a system which is fair, equitable, transparent, competitive and cost-effective\u201d.<\/p>\n
Read:
Court orders do-over of three Sanral road maintenance tenders
Calls for Sanral tender awards to be independently investigated
Sanral roadworks stalled for 17 months<\/p>\n
This is one of several damning comments made about Sanral\u2019s conduct related to requests by BCB Solutions (Pty) Ltd and Botle Ba Afrika Roads (Pty) Ltd for the complete record of a tender process in the judgment handed down by Manamela.<\/p>\n
The complete record was required for\u00a0high court\u00a0applications the two companies have launched to review and set aside the tender process for routine road maintenance works across South Africa and various decisions and\/or the conduct of Sanral in the tender.<\/p>\n
Original and subsequent complaints<\/p>\n
In the review applications, the two companies claim they had been unfairly disqualified in the tender.<\/p>\n
They also complain about the award of the tender to 23 companies on the basis that the tender process and ultimate award decision was unfair and in breach of the material statutory and other legal instruments.<\/p>\n
The interlocutory applications to compel Sanral to provide the complete record of the tender are based on the roads agency being non-compliant in delivering the record for the review applications.<\/p>\n
Judge Manamela said the companies\u2019 case in both interlocutory applications are that Sanral\u2019s conduct throughout these proceedings has been marked by delay and persistent non-compliance towards the dispatch of the record within the period prescribed by uniform rules of court.<\/p>\n
\u201cThe non-compliance persisted, despite judicial case management meetings, judicial directives, and a flurry of correspondences between the legal representatives for the parties,\u201d he said in a judgment to the interlocutory applications, which was handed down last month but has only now become available.<\/p>\n
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\u2018Organ of state cannot resort to tactics to avoid compliance\u2019<\/p>\n
Manamela said when an organ of state such Sanral is challenged with regard to its procurement of services or goods, it cannot resort to tactical measures and propensities to avoid compliance in a manner which is unfair, inequitable, non-transparent, uncompetitive and cost-ineffective.<\/p>\n
He said this is not a system envisaged by the provisions of Section 217 of the Constitution.<\/p>\n
Yet Sanral \u201cdid exactly that in these applications\u201d.<\/p>\n
Read:
Sanral: Concerns around multi-billion-rand contract awarded to highest bidder
Sanral\u2019s suspension of procurement chief believed linked to R1.5bn Chinese tender award
Sanral admits R1.57bn tender award marred by irregularities<\/p>\n
\u201cIt doesn\u2019t really matter whether Sanral did not mean to prejudice its opponents or disrespect them and the court,\u201d said Manamela. \u201cThe effect of Sanral\u2019s conduct is towards those ends.<\/p>\n
\u201cThis type of conduct cannot and will not be countenanced.\u201d<\/p>\n
Sanral thwarts companies\u2019 exhaustive efforts<\/p>\n
Manamela said the two companies made out-of-court efforts aimed at avoiding this part of the litigation, including requests, undertakings, court directives, and a notice in terms of the uniform rules of court, but were rebuffed by Sanral.<\/p>\n
He said the BCB Solutions application was launched on 23 September 2025 while Botle Ba Afrika Roads launched its application on 26 September 2025.<\/p>\n
Sanral opposed both applications.<\/p>\n
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The judgment lists a litany of occasions when Sanral failed to meet commitments made to deliver the complete record by a specified date.<\/p>\n
This included commitments made to and directives issued by the\u00a0acting deputy judge president (ADJP) and other judges.<\/p>\n
Manamela said Sanral\u2019s explanation for not achieving the agreed milestone includes that there were technical challenges experienced in providing the voluminous documentation in the tender.<\/p>\n
Sanral on 15 December 2025, in an effort to comply with a directive issued by Judge Norman Davis, delivered documents it considered to constitute the record in both reviews.<\/p>\n
But Manamela said the documents furnished on that date were considered by the two companies to be \u201cdisorganised, incomplete, partially inaccessible, and materially deficient\u201d while a significant number of the documents were missing and portions of some of them were redacted without an explanation.<\/p>\n
Manamela said Sanral insisted the documents delivered on 15 December 2025 constituted the review record.<\/p>\n
Onward to 2026 \u2026<\/p>\n
The two companies informed Sanral of the identified deficiencies in mid-January 2026 and provided Sanral with an opportunity to remedy the situation by 19 January \u201cbut to no avail\u201d.<\/p>\n
This meant the agreed timetable for the hearing of the review applications in April had to be revised.<\/p>\n
Manamela said Sanral told a case management meeting presided over by ADJP Norman Davis on 12 February that it would deliver its answering affidavit in the applications by 23 February.<\/p>\n
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That day instead saw Sanral deliver further documents it considered to constitute the record.<\/p>\n
This \u201cwas obviously contrary to Sanral\u2019s own undertaking to deliver an answering affidavit\u201d given at the February case management meeting.<\/p>\n
Manamela said the companies still considered the record to be materially incomplete and Sanral was again alerted and given until 27 February to address the deficiencies or deliver an affidavit explaining the material filed and the whereabouts of the outstanding material.<\/p>\n
He said Sanral did not file an explanatory or answering affidavit on whether the delivered documents should be considered the complete record or indicate which documents are in existence and which are not.<\/p>\n
Sanral finally concedes \u2026<\/p>\n
Only in the evening of 4 March, and with the hearing of both applications scheduled for 5 March,\u00a0did Sanral deliver \u201ca document labelled \u2018explanatory affidavit\u2019\u201d.<\/p>\n
Manamela said Sanral then all but conceded the merits of the applications in this affidavit.<\/p>\n
He said the two companies urged the court to mark its disapproval of the conduct of Sanral by directing that it pays their costs at a punitive scale.<\/p>\n
\u201cIt is submitted that Sanral unfairly led the applicants [BCB Solutions and Botle Ba Afrika Roads] to incur legal costs when this could have been totally avoided and, thus, there is no valid reason why the applicants should be out of pocket.<\/p>\n
\u201cI agree,\u201d\u00a0he said, adding that \u201cSanral will be ordered to pay\u201d the costs of these applications.<\/p>\n
#Sanral #severely #criticised #high #court #judgment<\/p>\n","protected":false},"excerpt":{"rendered":"
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