Where a municipal tender had been withdrawn, a disappointed tenderer persuaded a high court to grant an order obliging the municipality to proceed with the tender. This order was set aside on appeal in City of Tshwane v Nambiti Technologies (Pty) Ltd because the courts should not intervene in such decisions and instruct government how to spend its money.
An order compelling an organ of State to enter into contracts or acquire goods or services will not be made by a court.
A decision as to the procurement of goods and services by an organ of State is one that lies within the heartland of the exercise of executive authority by that body. Decisions by State organs how their limited resources will be spent involve painful compromises. Money spent on one thing may have to be taken from another.
All three tiers of government are required to carry out the chosen program of government. An order compelling an organ of State to enter into contracts or acquire goods or services will not be made by a court. The courts decide what the law is but then leave it to the government to implement the law except in unusual cases. That is a basis of the doctrine of separation of powers.
In a case during the same week (Minister of Water and Environmental Affairs v Kloof Conservancy) the court said that the ordering of public resources is pre-eminently a matter that falls within the competence and remit of the executive arm of government. This is a matter of policy, implicating multiple factors and considerations of a technical nature and in the light of all the available information. These are matters best left to the executive arm of government. The courts should not assume a function that falls within the domain of the executive, unless the reasons for doing so are compelling and mandated by the Constitution.
