A security company has failed in its Supreme Court of Appeal (SCA) bid to halt a new tenderer from rendering services at Western Cape Government sites that are vulnerable to illegal occupation and vandalism.
Tyte Security Services had unlawfully been awarded a two-year contract. In the opening lines of the judgment, SCA Judge Visvanathan Ponnan said: “State tenders have become fertile ground for litigation” in which “tendering has become a verifiably ‘messy business’ and the courts are increasingly drawn into the quagmire in review proceedings.”
During 2021 Tyte Security and Seal Security were jointly awarded a security tender, but this contract was opposed by unsuccessful tender applicant Red Ant Security Relocation and Eviction Services (Pty) Ltd. This application succeeded before Judge Ashley Binns-Ward.
The Provincial Government invited fresh bids for a new two-year contract. In May 2021, the tender was awarded to Royal Security CC (Royal).
However, on June 15 last year, Seal and Tyte brought an urgent application for an order that, pending the final determination of a review application, the provincial government be interdicted from implementing or giving effect to its decision to award the tender to Royal.
Pending the outcome of the review application, Tyte and Seal continued rendering their services at the WCG sites.
Judge Ponnan said: “Seal and Tyte had the full benefit of the entire period of the first contract, notwithstanding the declaration of invalidity and the contract having been set aside. In addition, the effect of (another court order) was that Seal and Tyte simply continued to perform services in terms of the tender awarded to them jointly on 25 March 2021 …
“By the time the main order came to be delivered on 21 February 2024, Seal and Tyte had the benefit of the award for a further nine months. Thus, not only has Tyte had the benefit of a two-year contract that was set aside as having been unlawfully awarded to it, but by the time the matter came to be heard in this Court, it would have continued to reap the rewards of that contract for an additional year.
“Conversely, as things presently stand, Royal has been denied the benefit of at least one year of the second contract, which the high court has found in the review application to have been lawfully awarded to it.”
The judge further noted that Tyte, who had argued they would suffer irreparable harm, took “a narrow view of the matter”.
“It focuses on the profits that it will lose going forward, but ignores entirely the windfall that it has received from a contract that was unlawfully awarded to it. It seeks to continue to reap that windfall for an indefinite period well into the future. It does so in the face of a new contract that has been held by the high court to have been lawfully awarded to Royal.
“What is more, for as long as Tyte continues to perform in terms of the first contract that has been held to be unlawful, it does so at an inflated cost to the Provincial Government. The windfall, taken together with the inflated costs, is completely dispositive of Tyte’s argument that the harm to it is irreparable,” said Judge Ponnan.
While enquiries to the Provincial Government had not been answered by deadline, Tyte Security chief executive Brevin Pieterse said they would appeal against the decision.
“Despite our disappointment, we hold deep respect for the decision rendered by the court and remain hopeful that the principles of justice will ultimately triumph. Currently, we await the Supreme Court’s ruling on our petition for leave to appeal, seeking to overturn the review. Following this crucial judgment, we will carefully evaluate our options and decide on the way forward.”
Cape Times