Canadian company Embross North America has initiated an urgent application to interdict Airports Company SA (Acsa) from continuing with a new bidding process for a multimillion-rand tender aimed at infrastructure overhaul in the country’s airports.
If the court grants the interdict, it will result in a delay in Acsa’s plans to modernise the infrastructure to align SA with global aviation standards under the International Air Transport Association’s fast travel strategy.
Embross North America was one of the bidders for the tender estimated to be worth more than R50m for the supply, installation and maintenance of common-use passenger processing systems and common-use self-service kiosks across Acsa airport networks.
Acsa cancelled the tender in June due to “material irregularities” before it was awarded.
A new bidding process was advertised on October 3.
Embross North America wants the Johannesburg high court to stop Acsa from continuing with the new bidding process for the project pending a review application into the cancelled tender.
Advocate Colin Rip, representing Embross North America, argued on Tuesday the cancellation of the initial tender was unlawful and should the new tender proceed, it would render the review application moot.
“There was an unlawful cancellation of the tender. We need this relief because otherwise our review application will be rendered moot. The new tender process was advertised on October 3 and the bid process closes on November 6,” he argued.
“It is important we stop that process in order to secure the opportunity to have our review application ventilated and not rendered moot.
It is important we stop that process in order to secure the opportunity to have our review application ventilated and not rendered moot.
— Advocate Colin Rip
“If we don’t obtain relief, my lord, it is essentially the end of that review application. That is the overarching urgency [of the application].”
He told the court that without the interdict, Acsa would argue in the review application a new tender had been awarded and would render the review moot.
The company’s previous urgent application was struck from the roll in September due to a lack of urgency because the new tender had not been advertised at the time.
Rip argued the legal team addressed concerns previously flagged by judge Bashier Vally as grounds to remove the matter from the roll. In the new application, Rip argued there were new circumstances and the applicants had met the legal grounds for the interdict to be issued.
‘Procedural posture’
Advovate Nosisa Kekana, representing Acsa, argued the application should be struck off the roll again because of its “procedural posture”.
“The applicants cannot bring the same matter on urgency. What is required is that the matter must be set down on proper notice in compliance with the rules. Rule 6 stipulates how an application is to be set down on a normal roll.
“What the applicants are doing is trying to disregard the order of [judge] Vally that was handed down on September 2, as if there was no matter that [was] struck off the roll for urgency; they are coming to court on an urgent basis a month later,” Kekana argued.
She said there was no application before the court because the applicants pinned their case on the initial application, which was removed from the roll.
“Before your lordship we have a supplementary affidavit that supplements an application that was struck off the roll. My submission … is there is no application before your lordship because [of] the applicant’s reliance on an application that was struck off [the roll].”
Kekana argued the applicants were challenging a cancellation of tender after the validity of the tender had lapsed, adding that the effect of the lapse meant the tender “does not exist”.
“The tender that was cancelled lapsed in July. We submit there is no court, even the review court, that can give an order to resuscitate or give life to a tender that does not exist. The review court cannot make an order to revive a lapsed tender.”
She said Embross North America was entitled to apply in the new bidding process.
“There is no irreparable harm the applicant will suffer if the interdict is not issued. The applicant has an opportunity to participate in the new tender, which they have done.”
In reply, Rip said that at the time of the cancellation of the tender the validity period had not lapsed and the legal technicality would be argued in the review application.
Acting judge Romeo Nthambeleni reserved judgment.
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