Case at a glance
Parties: Special Investigating Unit (SIU) and Minister of Public Works & Infrastructure vs Kroucamp Plumbers (Pty) Ltd and its director, JJ Kroucamp.
Contracts: Two exclusive tenders (2015 and 2018) for emergency sewer‐pumping services in the Western Cape. In both instances, the municipality bypassed competitive bidding entirely and failed to verify essential compliance criteria before awarding the contract exclusively to Kroucamp Plumbers.
Allegations: The SIU alleged a web of corrupt conduct. A fraudulent B-BBEE certificate was submitted to improve the bidder’s score, critical functional specifications in the bid documents had been falsified, and personal relationships between the bidder and members of the Bid Evaluation Committee were kept hidden. Further, the tribunal found that illicit payments had been made to certain committee members to secure favourable evaluations.
Outcome: Despite a significant delay — nearly nine years after the first tender — the Tribunal granted condonation for the SIU’s late application, accepting that pandemic disruptions and resource constraints justified an extension of time. On the merits, it declared both tender awards void ab initio, pierced the corporate veil to hold the individuals behind Kroucamp Plumbers accountable, and ordered the disgorgement of all profits obtained through the fraudulent schemes.
Core legal principles
1. Review jurisdiction under the SIU Act and Constitution
The SIU invoked section 4(1)(c) of the SIU Act, authorising “just and equitable relief” including the disgorgement of ill-gotten gains and, alternatively, section 172(1)(b) of the Constitution to review and set aside unlawful state action. This dual footing underscores that specialised statutory mechanisms and constitutional review can operate in tandem to eject corruption from public procurement.
2. Procurement fairness and corruption controls
Section 217 of the Constitution, read with the PFMA’s section 38 and National Treasury Regulations, demands that tenders be “fair, equitable, transparent, competitive and cost‐effective”. Here, Kroucamp Plumbers flouted these norms by:
- Submitting incomplete and misleading bid documents;
- Exploiting personal relationships on the Bid Evaluation Committee without disclosure or recusal; and
- Manipulating the PPPFA scoring system and relying on a fraudulent B-BBEE certificate.
The Tribunal’s ultimately voided the awards as “unlawful, invalid, unconstitutional and void ab initio”, reinforcing that procedural irregularities coupled with corrupt practices leave contracts unsalvageable.
3. Delay and condonation
Despite a nine-year gap from the first tender’s completion, the Tribunal granted condonation after weighing the SIU’s operational challenges (Covid-19 disruption, resource constraints at the State Attorney’s Office, and proclamation delays) against the public interest in recovering misappropriated funds. This confirms that, particularly in corruption matters, courts retain a broad “interest-of-justice” discretion to overlook delay (even excessive ones) when strong merits and significant state loss are at stake.
4. Piercing the corporate veil
Under section 20(9) of the Companies Act, the Tribunal held that Kroucamp Plumbers’ juristic personality was abused to conceal corrupt conduct and funnel illicit payments to individuals, including evaluators and public servants. By declaring the company “not a juristic person” for liability purposes, the judgment signals a robust willingness to lift the veil wherever “unconscionable abuse” is shown.
Practical implications
For litigators:
- Layer your pleadings: In this case, the SIU did so by combining the SIU-Act remedies with constitutional review to maximise the relief available, resulting in the disgorgement of profits and voiding of contracts.
- Document corruption thoroughly: Preserve all evidence of forged documents, undisclosed conflicts and payment trails to support both review and veil-piercing applications.
- Prepare condonation arguments: When cases are delayed, compile a clear chronology of external disruptions such as pandemic impacts or proclamation delays to persuade courts to overlook lapse.
For public procurement officials:
- Enforce conflict declarations: Mandate written conflict-of-interest disclosures for every Bid Evaluation Committee member and enforce immediate recusal where personal ties exist.
- Strengthen vetting processes: Verify B-BBEE certificates with the DTI’s SANAS database, audit functional-compliance sections rigorously, and question incomplete submissions before convening an evaluation panel.
- Rotate committees regularly: Avoid entrenched relationships by rotating evaluation members and offering ongoing ethics training.
For bidders and contractors:
- Prioritise transparency: Ensure all credentials, especially B-BBEE certificates, are accurate and verifiable. Take proactive steps to separate yourself from evaluators or officials to avoid conflicts.
- Conduct counterparty due diligence: Investigate the integrity of procurement officials and committees; early identification of red flags can prevent costly or reputationally damaging entanglements.
Conclusion
SIU v Kroucamp Plumbers sends a powerful message: South African tribunals will employ every tool (statutory and constitutional) to root out procurement corruption, uphold fair competition and recover public funds. For litigators, the judgment provides a roadmap for combining multiple legal avenues to secure decisive relief. For procurement professionals and bidders alike, it underscores that adherence to transparency, rigorous vetting and ethical conduct is not optional but fundamental.
