Court dismisses appeal over cancelled hospital tender
Mpho Mokwape | Wednesday August 27, 2025 16:44
The companies under the name Nogid (Pty) Ltd/ Smidek Management International GmbH Partnership had taken legal action after the hospital withdrew the tender award, which they believed had already been granted to them.
They had claimed in their appeal papers that the cancellation caused them to lose millions of pula and also accused the hospital of acting unfairly and without giving them a chance to be heard.
But the CoA recently dismissed the appeal because the hospital acted in good faith and followed legal advice.
Justice Isaac Lesetedi found that the two companies had failed to prove any intentional wrongdoing or negligence by the hospital, as they had claimed in their appeal.
'The appellant has to prove an intentional breach or fraud. Here, no statutory breach has been demonstrated. The board was acting based on legal advice to avoid sticking to an award genuinely believed to have been unprocedurally awarded to an undeserving bidder,' said Lesetedi.
He pointed out that the board acted in good faith after a lawful, reasonable, and well-intentioned procuring of legal advice and that not even negligence, which was pleaded by the companies, had been demonstrated.
The judge explained that for that reason, the appellant had failed to demonstrate a case for an award of delictual damages; therefore, they could not claim to have lost millions of pula of the cancelled tender.
'In those circumstances, whether the minister later issued a lawful instruction to the hospital to negotiate or enter into an agreement with a third party to render the services which would have been rendered by a successful bidder in the revoked tender, is of no significance. For those reasons, the appeal must fail,' he said.
The judge also explained that, most importantly, the tender process rules do not create a right to sue for damages just because the process seemed unfair.
As a result, the companies were ordered to pay legal costs.
Meanwhile, the dispute resulted from a tender that the Ministry of Health issued.
According to court documents, the ministry and the hospital had issued a joint tender in 2019, and the partnership between the appellant companies was one of three bidders. After an evaluation, the hospital’s board agreed to award the tender to the appellant, being the partnership. However, before informing the winning bidder, the hospital received new legal advice that raised concerns about the bidding process.
The court documents state that based on that advice, the hospital cancelled the award, believing that the bid had not followed the rules properly, and later another service provider was brought in to do the work.