Legal perspectives from our practice.

Tekoa Consulting Engineers: mandatory bid requirements must be expressly stipulated

The decision in Tekoa Consulting Engineers reinforces a fundamental principle of public procurement law: mandatory bid requirements cannot be inferred or imported from common procurement practice where they are not expressly stipulated in the tender documents. While documents such as CIPC registration, tax compliance status, B-BBEE credentials and Central Supplier Database (CSD) registration are commonly required in public procurement processes, their submission cannot be treated as mandatory unless the bid documentation clearly prescribes them as such. This principle promotes the constitutional values of fairness, transparency, competitiveness and legality that underpin South Africa’s public procurement framework.

Our firm possesses a comprehensive understanding of the legislative and regulatory framework governing public procurement in South Africa. We advise and represent both public and private sector clients in procurement disputes, bid evaluations, tender reviews, contract administration, and challenges relating to administrative action arising from procurement processes. Our expertise extends to ensuring compliance with section 217 of the Constitution, the Public Finance Management Act, the Municipal Finance Management Act, Supply Chain Management Regulations, the Preferential Procurement framework, the Promotion of Administrative Justice Act, and other legislation governing public sector procurement.

In addition, we specialise in the recovery of monies owed by organs of state to private entities. Through our multidisciplinary professional network, we assist clients in pursuing lawful and commercially sound recovery strategies while navigating the statutory and procedural requirements applicable to claims against the state. Our approach is informed by the Public Finance Management Act, Supply Chain Management legislation, the Institution of Legal Proceedings Against Certain Organs of State Act, the Public Service Act, and other relevant legislative and regulatory instruments, ensuring that our clients’ rights are protected while maintaining compliance with the legal obligations imposed on public institutions.

Our experience enables us to provide practical, commercially focused solutions that balance legal compliance with strategic outcomes, assisting clients to successfully engage with government procurement processes and resolve disputes efficiently and effectively.

The constitutional foundation: land reform as a matter of public interest

The constitutional framework for land restitution goes beyond simply recognising historical dispossession. Section 25(4)(a) of the Constitution expressly provides that, for purposes of the property clause, “the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources.”

This provision is particularly significant when read together with section 25(7), which recognises the right of a person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices to restitution of that property or equitable redress.

The Constitution therefore places land restitution within the broader project of land reform, equitable access and the correction of historical patterns of dispossession.

The Mandlanzini land claim provides a practical illustration of why these constitutional provisions matter beyond the settlement of a historical claim. Once land is restored, questions arise regarding its ownership, governance, development and commercial use.

This is where the legal framework governing Communal Property Associations, community trusts and other communal landholding structures becomes particularly important.

Restitution should therefore not be viewed simply as the return of land. It can also create an important platform for economic participation, investment and development. However, those opportunities must be pursued within the legal structures through which the community holds and administers its property.

For investors, developers and businesses seeking to transact on restituted or community-owned land, proper legal due diligence is essential. It is necessary to establish who owns the property, which entity represents the community, who has authority to bind that entity, what its founding documents permit, and whether any statutory or governmental approvals are required.

At Mlonzi Attorneys Incorporated, we assist communities, investors and businesses in navigating these legal structures and in ensuring that commercial arrangements involving community-owned land are appropriately structured.

Land restitution restores rights. Proper legal and commercial structuring can help ensure that those restored rights also become a foundation for sustainable economic participation.