The high court in Johannesburg on Tuesday struck off the roll an urgent application by a Canadian company, Embross North America, to interdict Airports Company SA (Acsa) from issuing a new multimillion-rand tender for an infrastructure overhaul.
Embross North America was one of the bidders for a R50m tender for the supply, installation and maintenance of common-use passenger processing systems (Cupps) and common-use self-service (Cuss) kiosks across Acsa airport networks.
Acsa cancelled the tender in June due to “material irregularities” before it was awarded.
Advocate Colin Rip, representing Embross North America, urged the court to issue an interdict to stop Acsa from advertising a new tender pending a review application challenging the cancellation of the tender. Rip said Acsa was being coy about the reasons for the cancellation of the tender.
Embross North America believes it was likely to win the tender, but Judge Bashier Vally said this was an assumption as Acsa had not disclosed the record to the court.
“We were informed of the cancellation of the tender on June 13. Then [on] June 24 we asked for the reasons, and they took a month to say there are material irregularities, [which] ... are not reasons,” Rip said. “If we do not obtain the interdict, it will render the review application we intend to bring within 14 days moot.”
Rip wants Acsa to detail to the court irregularities that led to the cancellation.
Vally said that should the interdict be issued, it would be based on speculation because Embross assumed there was unfair treatment without access to the record. He quizzed Rip on why the court should grant the interdict despite Acsa not having advertised the new tender or indicated a date on which it would advertise it.
Vally said the best remedy for the Canadian company was to initiate the review application and thereafter initiate an urgent application.
Rip argued it was common cause from court papers that Acsa admitted it would start the bid anew and that it contended the legal processes were delaying its plans to modernise the infrastructure to align SA with global aviation standards under the International Air Transport Association fast travel strategy.
The contested contract is supposed to be for 10 years and was cancelled when it was at the last stages of an award.
“Acsa has intentionally terminated the bidding process to favour certain bidders above others,” Rip argued.
Vally said Rip’s arguments were speculation because there was no record to show Embross North America was a front-runner.
Advocate Zinzile Matebese, representing Acsa, argued for the case to be struck from the roll. Matebese said the applicants were given reasons but wanted the full details for cancellations. He argued the full record would be a matter for the review court.
He argued the matter was not urgent because Rip had said that Acsa had from June indicated it would advertise the new tender, yet initiated the challenge in August.
Vally struck the matter off the roll.
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