OUDTSHOORN – The Council welcomes the Judgement of the Supreme Court of Appeal on Friday, in the matter between CShell 271 (Pty) Ltd and the Oudtshoorn Municipality, dismissing the CShell appeal with costs.
This Judgement upholds the earlier ruling of the Western Cape High Court, albeit on different grounds.
The dispute arose when the Oudtshoorn Municipality awarded a tender to develop Erf 5366 to Newco, a company to be incorporated and with a specified black empowerment constituent profile of natural persons, and was later replaced by the appellant, CShell 271 (Pty) Ltd, who sought to enforce the tender.
The percentage shareholding of CShell was belatedly revealed after some 2 ½ years and did not meet the Broad Based Black Economic Empowerment (BBBEE) criteria.
The SCA found that “CShell quite clearly did not possess locus standi to seek a review of the municipality’s decision to cancel ‘the award’ of the tender… as CShell acquired no rights in the contract concluded as a result of the award of the tender.”
The Municipality cancelled the tender on the grounds of the CShell BBBEE percentage profile, but Acting Judge of Appeal KGB Swain found that CShell’s lack of standing made it unnecessary to decide whether this BBBEE related municipal decision should have been made an order by the Western Cape High Court.
“The Council has in the recent past been castigated for unnecessary law suits and this Judgement confirms that decisions to go to court are not taken lightly and are made after due application of minds and in the interests of tax payers and residents,” concluded the Aldm Gordon April, the Executive Mayor in his response to the judgement.
