Rapivest 12 (Pty) Ltd v Airports Company South Africa SOC Ltd and Others; Airports Company South Africa SOC Ltd v Rapivest 12 (Pty) Ltd and Another (17274/2017; 17946/2017) [2018] ZAWCHC 16 (1 February 2018)

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[2018] ZAWCHC 16
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Rapivest 12 (Pty) Ltd v Airports Company South Africa SOC Ltd and Others; Airports Company South Africa SOC Ltd v Rapivest 12 (Pty) Ltd and Another (17274/2017; 17946/2017) [2018] ZAWCHC 16 (1 February 2018)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No.:
17274/2017
In
the matter between:
RAPIVEST
12 (PTY)
LTD
Applicant
and
THE
AIRPORTS COMPANY SOUTH AFRICA SOC LTD
First
Respondent
BROWNS
AIRSIDE
CC
Second
Respondent
TOURVEST
HOLDINGS (PTY)
LTD
Third
Respondent
AND
Case No.:
17946/2017
In
the matter between:
THE
AIRPORTS COMPANY SOUTH AFRICA SOC
LTD
Applicant
and
RAPIVEST
12 (PTY)
LTD
First
Respondent
BROWNS
AIRSIDE
CC
Second
Respondent
JUDGMENT:  01 FEBRUARY 2018
INTRODUCTION
1.
On 13 July 2014, the Airports Company South Africa Soc. Ltd
(“ACSA”)
advertised a request for bids in respect of a jewelry concession to
be operated at shop DFS 13 at Cape Town International Airport
(“DFS
13”)
.
2.
Both Rapivest 12 (Pty) (Ltd)
(“Shimansky”)
and Browns Airside CC
(“Browns”)
submitted a bid in response to the
request for bids advertised on 13 July 2014.
3.
On 23 February 2015, the National Bid Adjudication Committee
(“the
BAC”)
of ACSA determined that
Browns should be awarded the jewelry concession.  Pursuant
thereto, and on 21 August 2017, ACSA and
Browns concluded a lease
agreement in terms whereof Browns would operate DFS13.
4.
Before me is an application brought in accordance with the provisions
of the Promotion of Administrative Justice Act, Act 3 of
2000
(“PAJA”)
wherein Shimansky seeks to review and set aside ACSA’s granting
of the award to Browns.  Furthermore, Shimanksy seeks
an order
declaring that the lease agreement concluded between ACSA and Browns
on 21 August 2017 is invalid.
5.
Shimansky also seeks an order in terms of section 9(2) of PAJA,
extending the period of 180 days set out in section 7(1) thereof.
6.
Prior to the hearing of the matter, Browns instituted a counter
application wherein it sought the eviction of Shimanksy from
DFS13,
who is currently in occupation thereof.
7. Before addressing the merits of the
applications before me, I set out a timeline of events.
TIMELINE
8.
On 13 July 2014, ACSA advertises a request for bids to operate the
jewelry concession at DFS13.
9.
On 15 August 2015, Shimansky submits its response to the request for
bids.
10.
On 18 and 22 August 2014, ACSA extends the dates for submissions to
its request for bids.
11.
On 10 September 2014, ACSA sends out an addendum to the request for
bids and the closing date for submissions is extended to
13 October
2014.
12.
On 15 December 2014, ACSA’s Bid Evaluation Committee
(“BEC”)
recommends that the jewelry concession be awarded to Browns.
13.
On 23 February 2015, ACSA’s Bid Adjudication Committee
(“BAC”)
awards the jewelry concession to
Browns.
14.
On 19 March 2015, Shimansky is informed that that its bid was
unsuccessful and that the operation of the jewelry concession
at
DFS13 was awarded to Browns.
15.
On 23 March 2015, Shimansky requests a debriefing session from ACSA
following the rejection of its bid.
16.
On 24 March 2015, ACSA responds to Shimansky advising that a
debriefing session would take place, if required.
17.
On 25 March 2015, Shimansky’s attorneys directs correspondence
to ACSA advising of their suspicion of irregularities in
the tender
process and places ACSA on notice not to conclude a lease with the
successful bidder.
18.
On 31 March 2015, Shimansky sends further, more detailed
correspondence to ACSA.  In this correspondence Shimansy,
inter
alia,
sets out why it contends that the
objective criteria applied to the bids were bad.  Furthermore,
Shimansky requests that it
be furnished with ACSA’s written
reasons for granting the tender to the successful bidder and for
rejecting its bid.
These reasons were requested in terms of
section 5 of PAJA.
19. On 10 April 2015, ACSA, via its
attorneys, responds to Shimansky’s correspondence and provides
an undertaking that no
lease agreement would be concluded with the
successful bidder, alternatively implemented, or further implemented
as the case may
be, until:
(i) Shimansky
received the written reasons and information and records requested in
its letter of 31 March 2015, and had a reasonable
opportunity to
respond thereto; or
(ii) in the event
that ACSA determines that it is not obliged to provide the requested
reasons and information and records, Shimansky
would be furnished
with written notification of such determination and afforded a
reasonable opportunity to respond thereto.
20.
On 13 April 2015, the BEC recommends that the award by the BAC on 23
February 2015 to Browns be rescinded and cancelled and
that the bid
be awarded to Shimansky.
21.
On 1 September 2015, Tourvest Holdings (Pty) Ltd
(“Tourvest”)
,
which was also an unsuccessful bidder for the operation of DFS13,
launches an application reviewing the award of the tender to
Browns
in the Gauteng Division, Pretoria of the High Court of South Africa
(“the Pretoria proceedings”)
.
22.
The original notice of motion instituting the Pretoria proceedings
did not cite Shimansky as a party thereto.  Tourvest
duly
amended its notice of motion to cite and join Shimasky to the
Pretoria proceedings.  This amended notice of motion was
served
on Shimansky on 26 February 2016.
23.
On 13 April 2016, ACSA concedes the merits of the Pretoria
proceedings.
24.
On 11 July 2017, Shimansky receives notice that the hearing of the
Pretoria proceedings had been set down for 24 August 2017.
25.
On 14 July 2017, Shimansky receives copies of both ACSA and Browns’
answering affidavits in the Pretoria proceedings.
26.
On 27 July 2017, the ACSA board approves the conclusion of a
settlement agreement with Tourvest.
27.
On 3 August 2017, Shimansy is informed that the ACSA board resolved
to conclude a settlement agreement with Tourvest.
28.
On 4 August 2017, Tourvest’s attorneys advise Shimansky’s
attorneys that it is unaware of any settlement and that
it would
revert on 7 August 2017.
29.
On 7 August 2017, Shimansky’s attorneys advises ACSA that it
would be opposing the Pretoria proceedings.
30.
On 7 August 2017, ACSA delivers a notice of termination of its lease
with Shimansky in respect of its current occupation of
DFS13.
31. On 10 August 2017, ACSA concludes
the settlement agreement with Tourvest following the ACSA’s
board’s resolution
of 27 July 2017.
32.
On 11 August 2017, Shimansky files an answering affidavit in the
Pretoria proceedings and seeks condonation for the late filing
of its
Rule 35 notice.
33.
On 16 August 2017, the attorneys for Tourvest request that the matter
be removed from the roll of 24 August 2017.
34.
On 21 August 2017, ACSA concludes a lease agreement with Browns in
respect of DFS13.
35.
On 24 August 2017, Shimansky launches a counter application in the
Pretoria proceedings.
36.
On 25 August 2017, Shimansky launches an urgent interdict application
pertaining to the conclusion of the lease agreement between
Browns
and ACSA in the Western Cape High Court.
37.
On 1 September 2017, the urgent application is heard before Mr.
Acting Justice Sher (as he then was)
(“Sher”)
.
38.
On 8 September 2017, the urgent application is dismissed by Sher.
39.
On 18 September 2017, Browns is scheduled to take beneficial
occupation of DFS13 in terms of the lease it concluded with ACSA.
40.
On 22 September 2017, Shimansky launches these proceedings in the
Western Cape High Court.
41.
On 4 October 2017, ACSA launches eviction proceedings against
Shimansky pertaining to its continued occupation of DFS13.
42.
On 20 November 2017, ACSA concedes the merits of the review
application launched in the Western Cape High Court and withdraws
the
eviction application.
43. On the same day (20 November 2017)
Browns launches a counter application to evict Shimansky from DFS13.
THE REVIEW APPLICATION
44. Section 7(1) of PAJA reads as
follows:
“
(1) Any
proceedings for judicial review in terms of section 6(1) must be
instituted without unreasonable delay and not later than
180 days
after the date-
(a)
…
(b)
where no such remedies exist, on
which the person concerned was informed of the administrative action,
became aware of the action
and the reasons for it or might reasonably
have been expected to have become aware of the action and the
reasons.”
45.
Shimanksy was informed on 19 March 2015 that its bid to operate the
jewelry concession at DFS13 was rejected.
46.
On 31 March 2015, Shimansky requested written reasons for this
rejection in terms of section 5 of PAJA.
47. Section 5 of PAJA reads as
follows:
“
(1) Any
person whose rights have been materially and adversely affected by
administrative action and who has not been given reasons
for the
action may, within 90 days after the date on which that person became
aware of the action or might reasonably have been
expected to have
become aware of the action, request that the administrator concerned
furnish written reasons for the action.
(2) The
administrator to whom the request is made must, within 90 days after
receiving the request, give that person adequate reasons
in writing
for the administrative action.
(3) If an
administrator fails to furnish adequate reasons for an administrative
action, it must, subject to subsection (4) and in
the absence of
proof to the contrary, be presumed in any proceedings for judicial
review that the administrative action was taken
without good reason.”
48.
In accordance with the provisions of section 9 of PAJA, the 180-day
time period provided for in section 7 and the 90-day period
provided
for in section 5 may be extended for a fixed period between the
parties or, failing such agreement, by a court or tribunal
on
application by the person or administrator concerned.  A court
or tribunal may grant an application to extend the time
period
referred to in section 5 or where the interests of justice so
require.
49.
It does not appear that the parties agreed to either extend the
90-day period within which ACSA had to furnish Shimansky with
written
reasons or the 180 days within which the review application had to
have been brought.
50.
Therefore, taking into account the time period set out in section 5
for the request and furnishing of written reasons, Shimansky
had to
bring the review application before the end of December 2015 if it
were to bring it within the 180-day period prescribed
in section 7(1)
of PAJA.
51.
It failed to do so.
52.
Given that ACSA has conceded the merits of the review application and
withdrawn the eviction application, there is no longer
any dispute
between ACSA and Shimansky.  Generally, this would have brought
an end to the matter.  However, Browns opposition
to the review
application remains, as does its eviction application against
Shimansky.
53.
I turn now to the question whether it would be in the interests of
justice to grant the application for the extension of the
180-day
period as I may only consider the review application should I grant
the application for the extension.
[1]
54.
Expeditious and diligent compliance with constitutional obligations
are enshrined in section 237 of the Constitution and are
based on
sound judicial policy that takes cognizance of the strong public
interest in both legal certainty and finality.
[2]
55.
It has also been recognized that courts should be slow to allow
procedural obstacles to hinder it from considering a challenge
to the
lawfulness of an exercise of public power.
[3]
56.
In determining whether it would be in the interests of justice to
consider a challenge to the lawfulness of an exercise of public
power
notwithstanding that the review application is brought outside the
180-day period regard would have to be had to the facts
and
circumstances of each case.
[4]
57. These facts and circumstances
would,
inter alia,
include
:
(i) whether a full
and adequate explanation for the delay is furnished;
(ii) to what
extent, if any, the impugned decision has been give effect to;
(iii) whether and
to what extent the delay has caused prejudice to those affected by
the decision;
(iv) the impact of
the delay on the public interest considerations of certainty and
finality; and
(v) a consideration of the merits of
the review application.
THE REASONS FOR THE DELAY IN
INSTITUTING THE REVIEW APPLICATION
58.
Twelve days after it was notified that its bid was refused, Shimansky
requested written reasons for this refusal.
[5]
59.
Just over three weeks after being advised that its bid was
unsuccessful, Shimansky received an undertaking from ACSA that it

would either be furnished with written reasons and information and
records and given a reasonable time to respond thereto.

Alternatively, it would be advised that ACSA determined that it was
not obliged to provide such reasons and information and records
and
would be given a reasonable time to respond to this determination.
60.
Up until August 2015, ACSA took no steps to implement the impugned
decision and the undertaking furnished to Shimansky remained
in
place.
61.
On 13 April 2016, in an affidavit deposed to in the Pretoria
proceedings, ACSA conceded the merits thereof and stated that it

would reverse the impugned decision and remit it back for
re-adjudication.
62.
Given ACSA’s position as at 13 April 2016, together with its
undertaking provided to Shimansky, there was no need to approach
the
courts to review the decision awarding DFS13 to Browns.
63.
Had Shimansky, at that stage, launched review applications it would
have been met with the charge that:
(i) ACSA had
furnished an undertaking to Shimansy; and
(ii) ACSA had
determined to reverse the impugned decision and to remit the matter
for re-adjudication.
64.
Shimansky is only informed on 3 August 2017 that the ACSA board
rejected the recommendation to reverse the decision and remit
the
matter for re-adjudication and that, instead, it resolved to conclude
a settlement agreement with Tourvest.
65.
As a result, hereof, Shimansky deems it necessary to actively
participate in the Pretoria proceedings and files an answering

affidavit.
66.
On 16 August 2017, Tourvest requests that the Pretoria proceedings be
removed from the roll of 24 August 2017 and on that day
(24 August
2017), Shimanksy launches a counter application.
67.
On 22 September 2017, Shimansky launches these proceedings.
68. In light of ACSA’S
undertaking furnished to Shimansky, together with the affidavit
deposed to on 13 April 2016 wherein
it stated that the  impugned
decision would be reversed and the matter remitted for
re-adjudication, I agree with Sher’s
sentiments that:
“
Given
these circumstances, and the various concessions which were made by
ACSA in its answering papers in the review, Shimansky
no doubt
thought that it was in a strong position and that the tender would
either be set aside and the Shop DFS 13 concession
awarded to it, or
that it would be remitted for reconsideration afresh by the
adjudication committee.  Be that as it may,
although it was
criticized by the respondents for not having taken active steps to
protect itself prior to the launch of this application
there were
cogent reasons why it adopted the approach it did.”
[6]
69. In the circumstances, I find that
a full and adequate explanation for the delay in instituting these
review proceedings has
been furnished.
TO WHAT EXTENT HAS THE IMPUGNED
DECISION BEEN GIVEN EFFECT TO?
70.
ACSA concluded the lease agreement with Browns on 21 August 2017.
In terms of this lease agreement, Browns was to take
beneficial
occupation of DFS13 on 18 September 2017.
71.
At the time of concluding the lease agreement, Shimansky had already
filed its answering papers in the Pretoria proceedings.

Consequently, both ACSA and Browns were aware that Shimansky would be
actively challenging the impugned decision, given the change
in
ACSA’s position since deposing to its affidavit on 13 April
2016.
72.
Given Shimansky’s opposition to the award to Browns it refused
to vacate DFS 13 and Browns was not able to take beneficial

occupation of DFS13 by 18 September 2017.
73.
By 20 November 2017, ACSA again changes its stance and concedes that
the lease agreement with Browns cannot stand as it attempts
to give
effect to an admittedly invalid decision.
74. Therefore, save for the conclusion
of the lease agreement with Browns that was not implemented, it
cannot be said that the impugned
decision was given effect to.
HAS THE DELAY IN INSTITUTING THE
REVIEW PROCEEDINGS CAUSED PREJUDICE TO ANY PARTY?
75.
Although Tourvest was cited in the proceedings it filed no papers.
Therefore, it is assumed that it suffered no prejudice.
76.
In its answering affidavit, Browns avers that Shimansky disregarded
the prejudice which Browns would suffer if the late launching
of the
application were to be condoned.  Furthermore, Browns avers that
it would be in the public interest in the finality
of administrative
decisions and the exercise of administrative functions that the late
launching of the application not be condoned.
[7]
77.
However, Browns does not provide any details of the prejudice that it
would suffer as a result of the late bringing of the application.
78.
Therefore, based on the papers in the review application, it can be
accepted that neither Tourvest nor Browns will suffer any
prejudice
as a result of the late bringing of the application.
79.
In its eviction application, which is brought as a counter
application, Browns sets out the prejudice it would suffer from the

failure of Shimansky to vacate DFS13.  Therefore, any prejudice
experienced by Browns results from Shimansky’s failure
to
vacate DFS13 and not from any delay in bringing these review
proceedings.
80.
In this regard, it bares mentioning that Browns concluded the lease
agreement with ACSA on 21 August 2017.  At this stage,
ACSA had
already conceded the merits of the Pretoria proceedings and advised
that it would issue a fresh request for proposals
or that it would
re-adjudicate the award of the tender on 13 April 2016.
[8]
81.
Therefore, the validity of the award to Browns that led to the
conclusion of the lease agreement had been conceded at the time
the
lease agreement was concluded.
82.
Furthermore, Shimansky had filed its answering affidavit in the
proceedings on 11 August 2017 setting out its opposition to
the award
to Browns.
83.
Any prejudice experienced by Browns as a result of Shimansky failing
to vacate DFS13 must be viewed against this background.

Furthermore, Browns may have recourse against ACSA which failed to
provide it with beneficial occupancy in terms of the lease agreement

it concluded with it.
84. In the circumstances, condonation
for the late bringing of the application will not be refused as a
result of the prejudice
suffered by Browns arising from Shimansky
failing to vacate DFS13.
THE IMPACT OF THE DELAY IN BRINGING
THE REVIEW APPLICATION ON THE PUBLIC INTEREST CONSIDERATIONS OF
CERTAINTY AND FINALITY
85.
Although the decision to accept Browns’ bid was made on 23
February 2015
[9]
,
ACSA took no steps to give effect thereto until 7 August 2017, when
it gave notice of termination of its lease agreement with
Shimansky.
86.
Questions were raised about the validity of the impugned decision
within   days of it being communicated to Shimansky.
87.
As a result of these questions being raised, ACSA provided Shimansky
with the undertaking set out in paragraph 19 above.
88.
Until such time that the undertaking was fulfilled by ACSA, it cannot
be said that there was any certainty or finality in respect
of the
impugned decision.
89.
Even after ACSA filed its answering affidavit in the Pretoria
proceedings, it could not be said that there was certainty or

finality in respect of the impugned decision.  In its answering
affidavit, ACSA conceded the merits of the Pretoria proceedings
and
indicated that it would set aside the decision and remit it for a
reconsideration.  This was the position recommended
by both the
BEC and BAC of ACSA.
90.
However, the ACSA board determined not to accept these
recommendations and opted to conclude a settlement with Tourvest and

proceed with the awarding of the bid to Browns.
91.
As at 29 September 2017, ACSA’s position was that it would
oppose these review proceedings and that it would seek to evict

Shimansky from DFS13.  By 20 November 2017, this position again
changed in that ACSA withdrew its opposition to the current
review
proceedings as well as its application to evict Shimansky from DFS13.
92. Therefore, up until 20 November
2017, it cannot be said that there was any certainty or finality
pertaining to the decision
taken.  Furthermore, it cannot be
said that this lack of certainty and finality resulted from the
delayed institution of these
review proceedings.
THE MERITS OF THE REVIEW
APPLICATION
93.
In considering the merits of the review application with a view to
determining whether or not the application to extend the
180-day
period should be granted, it suffices to state that ACSA has conceded
the merits and to the relief sought by Shimansky.
94. In the circumstances and on the
facts placed before me, I find that it would be in the interest of
justice to grant the extension
of the 180-day period within which to
bring the review application.
THE REVIEW APPLICATION
95.
Having determined to extend the 180-day period, I turn now to
determine the merits of the review application.
96.
Browns opposes the merits of the review application on four grounds.
These are:
(i) the failure to
bring the application within the 180-day period;
(ii)
lis
pendens
, which is based on the Pretoria
proceedings;
(iii) the failure
of Shimansky to make out a case for the review and setting aside of
the award to Browns; and
(iv) as a matter of
justice and equity, this court ought to order the eviction of
Shimansky from DFS13 and allow Browns to take
occupation thereof.
97.
I have already addressed the failure to bring the application within
the 180-day period when considering the application to
extend the
180-day period within which to bring the review application.
98.
Lis pendens
was not a substantial issue before me.  At the time of the
hearing of the matter, Shimansky had withdrawn its
counter-application
in the Pretoria High Court and those proceedings
were no longer alive to be determined.
99.
Consequently, there was no merit in opposing this review proceedings
on the basis of
lis pendens.
100.
Given that ACSA has conceded the merits of the review application and
agrees that its decision should be reviewed and set aside
and
remitted for a fresh determination, it can hardly be said that
Shimansky failed to make out a case for these review proceedings.
101.
On the facts before me, Browns has failed to show that it would be
just and equitable to evict Shimansky from DFS13.
102.
In its answering papers, Browns argued that it would be in the public
interest to evict Shimansky from DFS13 and to allow Browns
to take
occupation thereof as it would generate a higher rental income to
ACSA.
103.
This is not the case.
[10]
104.
In furtherance of its just and equitable argument, Browns submitted
that Shimansky currently occupies DFS13 without having
complied with
the provisions of section 217(1) of the Constitution.
Therefore, it follows that it cannot be allowed to continue
with its
illegal occupation and that it would be just and equitable to evict
it from the premises.
105.
Browns continues that, as it has a valid lease agreement, it would be
in the public interest for it to take occupation of DFS13.

However, the very validity of the lease agreement is called into
question as it originates from an invalid award.   In
light
of ACSA’s concession that the award to Browns was invalid, it
cannot be said that the lease agreement is in accordance
with a
system that is fair, equitable, competitive and cost effective.
[11]
106.
In the circumstances to evict Shimansky and to allow Browns to take
occupation of DFS13 would simply be a round a bout way
of side
stepping the review application, as it would allow Browns to take
occupation of DFS13 in terms of a lease rendered invalid
by virtue of
the fact that it originates from an admittedly invalid award.
107.
This cannot be said to be a just and equitable result.
108.
In the circumstances, I find that the award to Browns is reviewed and
set aside.
109.
Shimansky is not persisting with its prayer for substitution but now
seeks to have the matter remitted for a fresh determination.
110. In the circumstances, this court
will not substitute the decision to grant the award to Browns but
remits the matter to ACSA
for a fresh determination.
THE EVICTION APPLICATION
111.
I turn now to consider the eviction application brought by Browns as
a counter application.
112.
As this application is brought as a counter application, the
provisions of Rule 24 are applicable thereto.
113.
Consequently, the eviction application had to be brought at the time
of filing the answering papers, or failing which with
the consent of
the other parties.
114.
Should the consent of the other parties not be forthcoming, then the
late bringing of the counter-application could only be
brought with
the consent of the court.
115.
In this matter, neither the consent of the parties nor that of the
court was sought in respect of the late bringing of the

counter-application.  Therefore, the counter-application is not
properly before me.
116.
However, even had the counter-application been properly before me,
Browns would have had an even more fundamental problem with
the
bringing of the eviction application.
117.
ACSA no longer seeks the eviction of Shimanksy and is in agreement
that the lease it concluded with Browns cannot stand.
118.
Although Browns was due to take beneficial occupation of the premises
on 19 September 2017, it did not do so.  Therefore,
Browns is
not in occupation of DFS13.
119.
Only persons who are in occupation of the property or who have a real
right thereto may claim the ejection of an unlawful occupier.
[12]
120.
As Browns is not in occupation of DFS 13, it would only have the
necessary
locus
standi
to
evict Shimansky if it had a real right to the occupied property.
[13]
Browns has not demonstrated such a real right.
121.
Further, as ACSA no longer seeks the eviction of Shimansky and seems
agreeable for it to continue with its occupation of DFS13,
it has not
been shown that it Shimansky is in illegal occupation of the
property.
122.
Much has been made of the allegation that Shimansky’s
occupation of DFS13 contravenes section 217 of the Constitution.

However, this argument fails to take into account that Shimansky’s
initial occupation of DFS13 was lawful and that its continued

occupation of DFS13 was in terms of two extensions granted to it.
Furthermore, in terms of the lease agreement concluded
between
Shimansky and ACSA, it was agreed that should the lease agreement
expire by the effluxion of time and the lessee (Shimansky)
dispute
the tender process carried out by the lessor, then it could continue
with its occupation of the premises.
[14]
123.
As Browns has failed to prove that it has
locus
standi
to bring the application or that
Shimansky is in unlawful occupation of DFS13, its eviction
application would in any event have
been unsuccessful had it been
properly before me.
124. In the circumstances, I make the
following order:
(i) the application to extend the
180-day period in terms of section 9(2) of PAJA is granted;
(ii) the award of the tender to Browns
to operate the jewelry concession at DFS13 is reviewed and set aside;
(iii) the award of the tender to
operate the jewelry concession at DFS13 is remitted back to ACSA for
fresh determination.
In such determination, the equity
preference criteria in clause 7 of the request for bids are to be
disregarded in the adjudication
process;
(iv) the lease agreement concluded
between ACSA and Browns on 21 August 2017 is declared invalid;
(v) in respect of costs:
(a) with regard to Shimansky and ACSA,
each party shall pay its own costs;
(b) with regard to Shimansky and
Browns, Browns shall pay the costs of the application on a scale as
between party and party, the
costs whereof are to include the costs
of two counsel; and
(vi) the eviction application is
dismissed with costs, which costs are to include the costs of two
counsel.
H
SLINGERS
ACTING JUDGE OF THE HIGH COURT
Counsel
for Applicants: Adv. S Rosenberg (SC)
Adv.
M O’Sullivan
Instructed
by: Fairbridges Wertheim Becker ref: A van Rensburg.
Counsel
for Respondent (1) Adv. Motepe (SC)
Adv.
Majozi
(2)
Adv. A Katz (SC)
Adv.
L Stansfield.
Instructed
by:  (1) Ilovo ref: S Dziike/MAT552
c/o
Catto Neethling WIID Attorneys
(2)
Ian Levitt Attorneys ref: I Levitt/S Samrod/MAT2249
c/o
Sohn and Wood Attorneys.
(3)
Tourvest Holdings (Pty) Ltd
c/o
Macroberts Inc ref: Mr G K Hay
Court
resumed Monday, 4 December 2017 and Thursday 1 February 2018.
Date
of Judgment:  01 February 2018.
[1]
Asla
Construction (Pty) Ltd v Buffalo City Metropolitan Municipality 2017
(6) SA 360 (SCA)
[2]
State
Information Technology Agency SOC Ltd v Gijima Holdings 2017 (2) SA
63 (SCA)
[3]
ibid at
para 47.
[4]
Aurecon
South Africa (Pty) Ltd v Cape Town City 2017 (4) CC 223 at paras
41-45
[5]
Shimansky
was notified of the decision rejecting its bid on 19 March 2015 and
on 31 March 2015 it requested written reasons for
the decision.
[6]
Paragraph 9
of Sher’s judgment, pg 571 of the review record.
[7]
Para 60 of
Browns’ answering affidavit.
[8]
Paragraph 5
of the first respondent’s answering affidavit in the
proceedings (pg 60 of the record)
[9]
The BEC
recommend the award to Browns on 15 December 2014 and the BAC
determined the award on 23 February 2015
[10]
Paragraph
120.5 to 120.8 of the replying affidavit.
[11]
Section
217(1) of the Constitution.   The rental generated from
leasing DFS 13 to Browns would be less than the rental
generated
from leasing DFS 13 to Shimansky.
[12]
Reddy v
Decro Investment CC t/a Cars for Africa and Others 2004(1)(SA 618
(D)
[13]
ibid
[14]
See clause
21.3 of the lease agreement between ACSA and Browns.  In
argument, I was advised that the lease agreement between
Shimansky
and ACSA would also contain this clause.