An appeal application by the Western Cape Provincial Government relating to security services to various sites in the province has been dismissed by the Supreme Court of Appeal as the matter to be ruled on was moot.
The application, deemed dead in the water, was due to the previous tender having reached its lifespan by the time the matter was heard by the SCA; a new tender process is already under way for security services at various sites.
The new tender bidding process is expected to be concluded by June 2025.
The matter came after the provincial Health Department (DoH) challenged the interdict applications by private security companies that were aggrieved at not being selected for the renewal of tenders at 258 hospitals.
SCA judge Yvonne Mbatha said that the previous agreement already provided a structure for the provincial legislature’s cooperation across various sectors or departments but is no longer in effect.
Mbatha said the issue of mootness loomed at an early stage as the contractual period of the previous agreement, had concluded on June 30, 2023.
“I do not intend to delve into the merits of the appeal, despite the provincial government’s attempt to draw us into them. I can only emphasise that the lifespan of the tender is over, no acquired rights were lost when the tender was reviewed and set aside, all the issues raised are academic and will have no practical effect, there are no conflicting judgments raised in the provincial government papers, and no discrete legal issues were raised.
“The appeal was purely brought for advice and clarification of the erstwhile framework transversal agreement. As this Court pertinently pointed out …‘[c]ourts of appeal often have to deal with congested court rolls. They do not give advice gratuitously. They decide real disputes and do not speculate or theorise’. For the aforementioned reasons, I find that there is no basis for this court to exercise the discretion to hear the appeal despite its mootness,” said Mbatha.
The local government, however, forged forward with their application.
Mbatha said: “...Though conceding the mootness of the appeal, it maintained that the transversal agreements remained of considerable interest to the provincial government for use in the future. Against this backdrop, counsel for the provincial government persisted with the argument that issues raised in the appeal remained relevant and important to the provincial government.”
Inquiries to the Western Cape Government had not been answered by deadline.
Attorney for the security companies, Mark Hess, said: “Sechaba Security Services has from the outset taken issue with the (Health Department’s) call-off process. We launched review proceedings on behalf of Sechaba in 2019 and the tender was subsequently set aside.
“It was always our client’s contention that the appeal was moot. Prior to the hearing of the appeal, the DoH implemented a new tender last year. However, on instructions from Sechaba Security, Helios Security, Star Security, and All 4 Security, the tender was reviewed and set aside.
“The main grounds for the review was that the department’s decision to award 258 hospitals to only three companies was irrational and posed a safety concern to the public and the department’s infrastructure. The healthcare facilities were previously serviced by 36 companies in terms of the preceding tender.”