EE-News

News and announcements from EE Publishers

Issue 314, September 2015

Legal opinion

When do contracts awarded unlawfully qualify for judicial review?

by Michael Jones, Hayes Incorporated

Editor's note: A Constitutional Court decision referred to in this article may be relevant to a challenge (currently before the courts) by Westinghouse of a contract awarded by Eskom to Areva for steam generators at the Koeberg nuclear power station; as well as a pending court challenge by Siemens of a contract awarded by Eskom to ABB for the control and instrumentation (C & I) at Kusile power station, after Eskom cancelled the previous C & I contract on Alstom.

As contractors experienced in bidding for government tender awards will know, the decision to apply for judicial review of an award which appears unlawful and which the bidder believes should have been awarded to them is a difficult one.

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Apart from the expenses incurred in doing so, the court may simply refer the decision back to the relevant organ of state even if an aggrieved bidder can prove unlawfulness and the award is set aside, thereby depriving the bidder of any tangible relief.

This is because the decision of a court to substitute the decision of an administrative authority with its own is regarded as exceptional and only appropriate where the end result is a foregone conclusion and it would be a waste of time to remit the matter to the administrator, or where the decision-maker has shown bias or incompetence.

Those involved in bidding for government tenders, and those organs of state who award them should therefore take note of the recent decision of the Constitutional Court in Trencon Construction (Pty) Ltd versus Industrial Development Corporation of South Africa Ltd and another. The decision provides much-needed clarity on when a substitution order would be appropriate. It also clarifies the circumstances under which an aggrieved bidder is likely to succeed in having the tender awarded to them by a court in an application for judicial review.

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Industry news

Awards for South African energy leaders, innovators and projects

by Roger Lilley, EE Publishers

Energy sector professionals gathered on 17 September 2015 at the Maslow Hotel in Sandton, Johannesburg, for the 2015 SANEA / SANEDI Energy Awards banquet to recognise energy sector leaders, innovators and projects in South Africa.

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Eleven awards were made, nine by SANEA (South African National Energy Association) and two by SANEDI (South African National Energy Development Institute).

Brian Day, the project manager for implementation at the IPP office, and former managing director of SANEA, was the master of ceremonies for the evening's activities. The awards were presented by Brian Statham, the chairman of SANEA, and Kevin Nassiep, the CEO of SANEDI.

The SANEA Energy Award went to Sipho Nkosi, the CEO of Exxaro Resources, in recognition of his significant contribution to South Africa's energy sector, as well as his leadership, innovation, initiative and vision which has led him to become an outstanding role model.

The SANEA Honourary Life Membership Award went to Thulani Gcabashe, the chair of Standard Bank and former CEO of Eskom for seven years (2001 - 2007) for his dedication and commitment to the energy sector and his support of SANEA, which he served as a director for many years.

Three SANEA Energy Project Awards went to: Sean Thomas of Bio2Watt for a successful industrial scale waste to energy biogas plant; Mashudu Ramano of Mitochondria Energy for installing the country's first commercial fuel cell; and Andre Treurnich of Stellenbosch Municipality for the roll out of a subsidised solar energy solution to the community of Enkanini.

Two SANEA Energy Education Awards went to: Liz Hart in recognition of the work done by the Africa Energy Indaba (AEI); and Richard Drummond, editor of the Journal of Energy in Southern Africa (JESA).

Two SANEA Energy Journalism Awards went to: Terence Creamer of Creamer Media; and Richard Drummond of JESA.

The SANEDI RECORD (Renewable Energy Centre of Research and Development) and RERE (Renewable Energy Research Excellence) Award went to Mott MacDonald PDNA.

The SANEDI RECORD RERE Young Researcher Award went to Johan Stander, a PhD candidate at Stellenbosch University, for his work on the design of a slip-synchronous permanent magnet generator for wind turbines, and for his contributions to research in the field of rotary aerofoil designs.

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