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[2018] ZAWCHC 77
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Amandla GCF Construction CC and Another v Municipality Manager of Saldanha Bay Municipalityand Others (3563/2018) [2018] ZAWCHC 77; 2018 (6) SA 63 (WCC) (22 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 3563/2018
In
the matter between:
AMANDLA
GCF CONSTRUCTION
CC
First
Applicant
(Registration
Number: 2007/037534/23)
KHUBEKA
CONSTRUCTION
CC
Second
Applicant
(Registration
Number: 2001/079162/23)
and
MUNICIPALITY
MANAGER OF
SALDANHA
BAY
MUNICIPALITY
First
Respondent
MARTIN
AND EAST (PTY)
LTD
Second
Respondent
(Registration
Number: 1950/037428/07)
THE
EXECUTIVE MAYOR OF THE
SALDANHA
BAY
MUNICIPALITY
Third
Respondent
THE
SALDANHA BAY
MUNICIPALITY
Fourth
Respondent
Delivered:
22 June 2018
JUDGMENT
BOQWANA,
J
Introduction
[1]
This is a review of a decision by the
third respondent (“the Mayor”) in terms of which he, on
appeal, awarded a tender
to the second respondent. This, in an
instance where the applicants had, prior to the decision on appeal,
been successful
bidders.
Background
[2]
On 31 August 2017 the fourth respondent
(“the Municipality”) advertised a tender under contract
number SBM 03/17/18,
for the construction of a class B landfill cell
at Vredenburg landfill and associated infrastructure (“the
tender”),
with the closing date being 13 October 2017. It
received nine bids, including that of the applicants and the second
respondent.
[3]
The Municipality appointed Aurecon South
Africa (Pty) Ltd (“Aurecon”) as consultants to give it
guidance through the
process of drawing up specifications for the
“scope of work” and the appointment of the suitable main
contractor to
construct the landfill.
[4]
After the evaluation process, the
Aurecon report recommended as follows:
“
In
our view it is essential that the successful contractor be required
to comply with the above. We therefore, are of the opinion
that the
tender be awarded to the tender with the highest Tender Evaluation
Point, Amandla/Khubeka JV with a tender offer of R
45,758,388
provided that they agree to comply with the requirements of Addendum
4, and appoint an independent Leak Location subcontractor
with no
change to the amount of their Tender Offer.
Should
Amandla/Khubeka not agree to this, then the tender should be awarded
to the next highest tenderer, Martin & East. It
is noted,
however, that the Preliminary and General items tendered by Martin &
East are considered to be high which could have
a considerable impact
on the cost should any extensions of time be granted. It is
recommended that prior to any award to Martin
& East, the
Preliminary and General rates be re-negotiated.”
[5]
The bids served before the Bid
Evaluation Committee (“BEC”), after scrutiny by
departmental officials of the Municipality.
Its recommendations
were sent to the Bid Adjudication Committee (“BAC”) which
recommended that the procurement
and bid processes were fair,
equitable, transparent, competitive and cost effective; that the
tender be awarded to the applicants
for the amount of R
45 758 387.94; that the final award be made by the first
respondent (“the Municipal Manager”)
and that the bid
conforms to all requirements set out in the bidding documents and the
bidder scored the highest preference points.
[6]
The Municipal Manager approved the bid
on 21 December 2017 and made the award subject to the following:
“
·
The notification of successful and
unsuccessful tenderers with a 21 day appeal period in terms of
Section 62 of the Municipal Systems
Act, Act 32 of 2000 from the day
of notification of the decision;
·
The award of this tender must be
registered on i-tender within 21 days after the contract has been
signed in order to comply with
CIDB Regulations.”
[7]
The decision of the Municipal Manager
was conveyed to all the bidders, including the applicants. The
expiry date for the submission
of the appeals was 11 January 2018,
which is 21 calendar days after the notification of the Municipal
Manager’s decision
was given.
[8]
On 4 January 2018, the Municipality sent
out further messages to several bidders seeking confirmation that
they had received the
letters advising them of the tender award. On
9 January 2018, one of the unsuccessful bidders, JVZ Construction
(“JVZ’)
indicated that it had been closed for “builder’s
break” at the time the notification was sent, it only re-opened
on 09 January 2018 and it was only then that it received the
Municipality’s notification. It sent another letter on
11
January 2018 stating that it effectively had two days to go through
the documentation and respond. It requested that the
appeal
period be extended. The builder’s break apparently refers
to a general shut down of the construction industry
between
mid-December and mid-January every year, when workers go on leave and
companies close offices.
[9]
On 11 January 2018 the Municipality’s
Supply Chain Manager, Ms H Meeding, recommended that the appeal
period be extended to
18 January 2018 on the basis that “[
s
]
ound
supply chain processes are built on fairness (one of the five
pillars). The Builder Holiday is a known variable that should
have
been taken into consideration when the duration of the appeal period
was decided upon”.
This
recommendation was approved by the Municipal Manager on the same day.
The bidders were informed on behalf of the Municipal
Manager
that day that:
“
the
appeal period in terms of Section 62 of the Systems Act, Act 32 of
2000, has been extended to Thursday 18 January 2018.
Please
informed that Tender SMB 03/17/18 has been awarded to Amandla Khubeka
Joint Venture for the amount of R 48 758 387.94
(including
14% VAT and 10% Contingencies);
Rights
will only accrue after the appeal period has lapsed and appeals if
any were dealt with by the appeal authority.”
[10]
On 15 January 2018 the second respondent
lodged an appeal against the decision of the Municipal Manager to
award the tender to the
applicants. The basis of the appeal
was, firstly, that the applicants had not complied with Addendum 4
issued on 9 October
2017 to all tenderers which stated, inter alia,
that: “
To ensure proper 3rd
party quality control, the lining contractor and leak location
contractor cannot be the same entity
”.
The second respondent also noted that using two different
subcontractors had a financial implication in that some
subcontractors
would normally offer the leak detection service at no
cost if they were engaged to perform the lining installation, but not
if
they were engaged to perform leak detection. They
effectively submitted that the applicants should not have been
awarded
points for a leak detection subcontractor. The second
issue was that an 80/20 formula should have been applied in these
circumstances,
as all responsive tenders fell within R50 million, as
opposed to the 90/10 formula that was used in this case. It
sought
re-evaluation of the functionality scoring with zero points
awarded to the applicants for the leak detection subcontractor;
recalculation
of the tender ranking using the 80/20 point system as
per Preferential Procurement Regulations of 2017, and the subsequent
award
to the highest point scoring tenderer.
[11]
A memorandum dated 13 February 2018 and
signed by the Supply Chain Manager, the Chief Financial Officer and
the Municipal Manager,
was sent to the Mayor attaching a legal
opinion from attorneys, Van der Spuy & Partners.
[12]
On 19 February 2018, the Mayor upheld
the second respondent’s appeal on the basis that the
applicants’ tender was non-responsive,
and appointed the second
respondent as a preferred bidder. The salient reasons appearing
from the decision are the following:
“
Addendum
4 was an important part of the requirements for the tender that had
to be adhered to.
This
important requirement was not contained in the report of the
evaluation of the tenders, nor was it made a requirement by the
Adjudication Committee, or the recommendation of the Adjudication
Committee to the Municipality. As a result the Municipal
Manager awarded the tender to Amandla without addressing this very
important defect in the tender.
To
allow tenderers in principle to amend their tender after tender
closure in order to conform to the requirements of the tender,
is not
allowed, unless it can fall under the ambit of clause 24 of the
Supply Chain Management Policy of Saldanha, which states
that
negotiations can be held with preferred bidders.
I
am of the opinion that this cannot be to conform to material
requirements as set out in the tender document, but ancillary
matters.
I am of the opinion that in order to be a preferred
bidder, the tenderer must at least conform to be requirements of the
tender.
I
am thus of the opinion that the failure of Amandla to conform to
Addendum 4 is indeed a fatal flaw in their tender, which cannot
be
rectified thereafter, and that their tender was thus nonresponsive.”
[13]
The Mayor’s decision was conveyed
to the applicants on 19 February 2018. On 23 February 2018 the
applicants requested
that no further action be taken and requested
further documentation.
[14]
On 01 March 2018 the applicants lodged
an urgent application for an order interdicting and restraining the
first and second respondents
from taking any steps to implement the
tender, including, but not limited to, implementing any agreement in
respect of the tender
or commencing or continuing with any
construction in terms thereof. The order would also interdict
and restrain the first
respondent from handing over control of the
site, on which construction was to commence in terms of the award of
the aforesaid
tender, to the second respondent or any other party.
The applicant also indicated that it would apply for a review, as
part
B of its application, on a date to be allocated by the Judge
President.
[15]
An interim interdict was taken by
agreement between the parties on 19 March 2018 and the matter
postponed for the review application
to 30 April 2018.
[16]
In the application before me, the
applicants seek an order:
“
1.
Reviewing and setting aside:
1.1
First respondent’s
decision to extend the period within
which any appeal
in terms of section 62 of the Local Government:
Municipal Systems Act 32 of 2000 (the Systems Act) had to be filed in
respect of
the award of TENDER SBM 03/17/18 CONSTRUCTION OF A CLASS B
LANDFILL CELL AT VREDENBURG LANDFILL AND ASSOCIATED INFRASTRUCTURE
(“the
tender”) to the Applicants;
1.2
Third respondent’s decision to award the tender to the Second
Respondent;
2.
Declaring invalid any agreement concluded between Second Respondent
and Fourth Respondent in respect of the implementation of
the tender;
[17]
The second respondent, who had filed an
affidavit, did not present argument in Court. For convenience, I
refer to the first, third
and fourth respondents collectively as “the
respondents”, and when such reference is made it does not
include the second
respondent.
Issues
to be determined
[18]
The applicants’ grounds for review
are as follows:
1.
The Municipal Manager was not authorised
to extend the 21-day appeal period stipulated in section 62 (1) of
Local Government: Municipal
Systems Act 32 of 2000 (“the
Systems Act”);
2.
The second respondent’s appeal in
terms of section 62 (1) was filed outside the mandatory time period
and should not have
been considered;
3.
The appeal was decided in a procedurally
unfair manner, as the applicants were not afforded an opportunity to
respond to the allegations
concerning them, in the appeal lodged by
the second respondent;
4.
The Mayor’s decision finding the
applicants’ bids non-responsive, is reviewable;
5.
The second respondent’s bid was
non-responsive and;
6.
In the alternative to the above grounds,
no appeal in terms of section 62 (1) of the Systems Act was available
to the second respondent,
or any other aggrieved bidder because,
firstly, the Municipal Manager did not act in terms of delegated
powers when he awarded
the tender to the applicants; and/ or the
Mayor being a councillor does not have the powers to consider appeals
in procurement
matters in terms of section 62 (1) of the Systems Act.
[19]
The applicants contend that if one of
these points is good, the Court need not go any further.
Was
the Municipal Manager permitted to extend the 21-day appeal period?
[20]
The first question is whether the 21 day period in which to
lodge an appeal in term of section 62 (1) of the Systems Act is
capable
of being extended by the Municipality. If it is, the
next question is whether the Municipal Manager was empowered to do
so,
in these circumstances, or would it have been only the appeal
authority (in this case the Mayor who considered the appeal) who was
empowered to extend the period. If I find that the 21 day
period cannot be extended, I need not deal with the second question.
[21]
Section 62 of the Systems Act provides as follows:
“
(1) A person whose
rights are affected by a decision taken by a political structure,
political office bearer, councillor or staff
member of a municipality
in terms of a
power or duty delegated
or sub-delegated by a
delegating authority to the political structure, political office
bearer, councillor or staff member,
may appeal
against that
decision
by giving written notice of the appeal and reasons to the
municipal manager within 21 days of the date of the notification of
the
decision.
(2)
The municipal
manager must promptly submit the appeal to the appropriate appeal
authority
mentioned in subsection (4).
(3) The appeal authority
must consider the appeal, and confirm, vary or revoke the decision,
but no such variation or revocation
of a decision may detract from
any rights that may have accrued as a result of the decision.
(4)
When the appeal is
against a decision taken by
–
(a)
a staff member other than the municipal manager, the municipal
manager is the appeal authority;
(b)
the municipal manager
, the executive committee or
executive
mayor is the appeal authority
, or, if the municipality does not
have an executive committee or executive mayor, the council of the
municipality is the appeal
authority; or
(c)
a political structure or political office bearer, or a councillor –
(i) the municipal council
is the appeal authority where the council comprises less than 15
councillors; or
(ii) a committee of
councillors who were not involved in the decision and appointed by
the municipal council for this purpose is
the appeal authority where
the council comprises more than 14 councillors.
(5)
An appeal
authority must commence with an appeal within six weeks and decide
the appeal within a reasonable period
.
(6) The provisions of
this section do not detract from any appropriate appeal procedure
provided for in any other applicable law.”
(Own emphasis)
[22]
It is common cause that the appeal in this case was lodged
outside the 21 day period provided for in section 62 of the Systems
Act.
The 21 days appeal period expired on 11 January 2018.
The appeal of the second respondent was lodged four days outside the
21 day period.
[23]
According to the applicants, section 62 does not confer a
discretion to extend the 21 day period for the lodgement of the
appeal.
To strengthen this argument they rely on the decision
of
Minister of Environmental Affairs and Tourism & Others v
Pepper Bay Fishing (Pty) Ltd; Minister of Environmental Affairs and
Tourism & Others v Smith
2004 (1) SA 308
(SCA), at para 31,
wherein the Court concluded that:
“
As
a general principle an administrative authority has no inherent power
to condone failure to comply with a peremptory requirement
.
It
only has such power if it has been afforded the discretion to do so
(see,
for example,
Le
Roux and Another v Grigg-
Spall
1946
AD 244
at
252;
South
African Co-operative Citrus Exchange Ltd v Director-General: Trade
and Industry and Another
[1997] ZASCA 6
;
1997 (3) SA 236
(SCA) (
[1997] ZASCA 6
;
[1997]
2 ALL SA 321
(A)) at 241
).
The Chief Director derives all his (delegated) powers and
authority from the enactment constituted by the general notice.
If
the general notice therefore affords him no discretion, he has none.
The question whether he had a discretion is therefore
entirely
dependent on a proper construction of the general notice
.”
(Own emphasis)
[24]
According to the respondents, a statutory time period can be
extended by a court in appropriate cases and on proper interpretation
of the provision, by the same rationale, the question is whether it
would be sensible to interpret the time limit for lodging appeals
in
section 62 (1) as an absolute bar or that it implicitly includes a
power to ensure fairness (either by extending the period
in advance,
or by condoning late appeals). In this case the Municipal
Manager agreed to extend the period in which to lodge
an appeal,
having been motivated by a principle of fairness.
[25]
Mr Borgström, who appeared for the respondents, contended
that applying the time period as an absolute bar would mean that an
administrator is stripped of any power to determine a fair process in
the circumstances of a case, which would mean that section
62 of the
Systems Act would violate the Constitutional right to fair
administrative action provided for in section 33 of the Constitution,
read with the Promotion of Administrative Justice Act 3 of 2000
(“PAJA”). It would also infringe the right to
a
fair and equitable consideration of tenders stipulated in section 179
of the Constitution. That, according to the respondents,
would
amount to an unlawful interpretation of section 62 of the Systems
Act, which should be avoided in favour of the obviously
preferable
position that an administrator can, based on the dictates of fairness
in a particular case, extend the time period for
the submission of
appeal. The facts of this case, according to the respondents,
illustrate the type of unfairness that would result
from reading
section 62 to operate as an absolute bar. The appeal period
fell over the builders’ holidays, and also
included three
public holidays, being Christmas day, Day of Goodwill and New Year’s
Day.
[26]
According to the respondents the purpose of section 62 is to
ensure a fair opportunity to submit an appeal. This purpose was
protected by the approach adopted by the officials of the
Municipality. Section 62 applies in every decision made by the
Municipality’s officials and office bearers under delegated
powers. It must be understood to allow for an extension
of the
time period in deserving cases. Reading it otherwise would
cause grave injustice.
[27]
Mr Borgström referred to a number of cases dealing with
inherent powers of the Court to extend statutory time periods,
notably,
Toyota South Africa Motors (Pty) Ltd v Commissioner,
South African Revenue Service
2002 (4) SA 281
(SCA) at para 10,
where the Court found that its conclusions on interpretation were
strengthened by a separate consideration that
“
the High
Court has inherent jurisdiction to govern its own procedures and,
more particularly, the matter of access to it by litigants
who seek
no more than to exercise their rights. It has been held that
this jurisdiction pertains not only to condonation
of non-compliance
with the time limit set by a Rule but also a statutory time
limit...”.
(See also
Samancor Group Pension Fund v
Samancor Chrome and Others
2010 (4) SA 540
(SCA) at para 20.)
[28]
In the first instance, a Municipality (or its officials) is
not a High Court and derives no inherent jurisdiction or powers to
govern
its own procedures as a High Court does. Apart from
this, a decision that the respondents also relied on, V
lok NO and
Others v Sun International South Africa Ltd and Others
2014 (1)
SA 487
(GSJ), found (at paras 37 to 38) that the findings of the
Court in both
Toyota
and
Samancor
were seemingly
obiter
and that it was difficult to reconcile them with the (obiter) dictum
in
Mohlomi v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC), at para
17, where Didcott J said:
“…
The
wording of that looks odd. It appears to have presupposed a
power inherent in the courts to condone defaults of the kind
covered
which needed to be preserved. But courts have no such inherent
power, and none derived from any source unless and
until it is
conferred on them. That the subsection grants them the power in
the circumstances mentioned must necessarily
be implicit in its
terms, however, since they make no sense otherwise.”
[29]
Snyckers AJ, in
Vlok
, found, at para 53, that he was
free to consider the proper interpretation of section 124 (2)
(serving before him), “
untrammelled by the operation of a
power dehors such interpretation, but contending with it.
”
At para 110 he concluded by stating:
“…
despite
the power of the principles relied upon by the plaintiffs, and
despite the fact that the words of the
subsection
itself are concededly neutral and contain no express exclusion of a
power to condone
, the exclusion of a
power to condone must be implied into the subsection by way of
necessary construction.” (Own emphasis)
[30]
In the
Vlok
case, a defendant had excepted to the
particulars of claim, on the basis,
inter alia
, that the claim
was brought outside the 30 day period stipulated in s 124 (2) of the
Companies Act 71 of 2008 (“ 2008
Companies Act&rdquo
;). The
issue before the court was whether it had powers to condone the
bringing of proceedings outside that period. Counsel
for the
plaintiff had argued that the court had general powers to condone
non-compliance with a relevant time period and that the
time period
was non-prescriptive and must be read to permit a power to condone
non-compliance (see
Vlok
at para 27). In advancing their
argument on the second leg, counsel for the plaintiff submitted that
the provision must be
interpreted in a way that best promoted the
spirit, purport and object of the Bill of Rights, particularly
section 34.
This is not dissimilar to what the respondents’
counsel is arguing in this case, in relation to the promotion of the
objects of
section 33
of the Bill of Rights and PAJA, as well as
section 179.
[31]
The Court found the argument of adopting a reading that better
promotes a right to be compelling, but that it should not be taken
too far. It made the following important observations at para 65:
“
The
argument on compelling the reading that ‘better’ promotes
a right is powerful, and has been demonstrated to be of
application
in relation to the power to condone and the right of access to court.
It should not, however, be taken too far.
The principle
in question does not, in my view, require the following approach to
the interpretation of a statutory provision:
find a right in some way
implicated by the provision. Ask yourself how that right could
be ‘better’ promoted
by the provision than the provision
seems to achieve. Posit a ‘better’ provision that
achieves such better promotion.
Then say, unless the words of
the provision expressly or compellingly exclude a construction that
makes it look more like
the ‘better’ provision, the
better provision must be taken to be the proper construction of the
provision. Something
is wrong somewhere if the construction
exercise is approached thus.”
[32]
Principles that can be extracted from the case law above, in
relation to this case, is that there is no general power afforded to
the Municipality (acting through its officials or office bearers) to
extend a statutory time period, except if that power is conferred
on
it, as allowed in that particular section of the statute. In
the end, it comes down to the interpretation of that particular
statute. Therefore, if the legislature intended a statute to operate
as an absolute bar, the ‘general power’, if there
was
any, could not trump that intention.
[33]
The language used in
section 62
indicates the intention to
have appeals dealt with swiftly. Not only is the notice of the
appeal and reasons to be given
to the Municipal Manager
within 21
days
,
section 62
(2) requires the Municipal Manager to “
promptly
submit the appeal to the appropriate appeal authority…”.
Section 62
(5) requires the appeal authority to “commence
with an appeal
within six weeks
and decide the appeal
within
a reasonable period
”. Professor P Bolton, in her
article,
Municipal Tender Awards and Internal Appeals by
Unsuccessful Bidders
[2010] PER 18
, concludes at page 23/508 that
“
[t]he appeal authority has no power to…award the
tender to a bidder who did not appeal or who perhaps did appeal but
whose
appeal was out of time
.”
[34]
I agree with Mr Borgström that the purpose of the s 62 of
the Systems Act is to afford the bidders a fair opportunity to submit
an appeal. The existence of the 21 day period within which to
submit the notice of appeal, in and of itself, affords that
opportunity. It also further suspends the award of the bid to
the successful bidder. In fact, the notice sent out on
21
December 2017 subjected the notification of the award to the 21 day
period. Fairness, in my view, cannot be viewed only
from one
side, that of an unsuccessful bidder. It must be looked at from the
perspective of all the bidders, including the successful
bidder.
[35]
If discretion to condone or extend the time limit is
considered based on the circumstances of an unsuccessful bidder, with
the view
to promoting the spirit of the rights in terms of section 33
of the Constitution, the rights of the successful bidder must be
considered
too, whose award is held in suspension until the expiry of
21 days, or the outcome of the appeal.
[36]
I am mindful that section 62 applies generally to the
decisions made by officials and office bearers with delegated powers,
and
not only to tender decisions. This is another reason why
this section cannot be read to empower an official or office bearer
of the Municipality to condone late filing, or to extend the time
period. Deciding on which cases would be considered as
‘deserving cases’ or ‘appropriate cases’, in
the absence of any criteria built into the statute, could
present a
challenge.
[37]
It is worth referring to the remarks of the Court in
Affordable Medicines Trust and Others v Minister of Health and
Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC), at para 34, where it pointedly
observed:
“
[34]
However,
the delegation must not be so broad or vague that the authority to
whom the power is delegated is unable to determine the
nature and the
scope of the powers conferred. For this may well lead to the
arbitrary exercise of the delegated power.
Where broad
discretionary powers are conferred, there must be some constraints on
the exercise of such power so that those who
are affected by
the exercise of the broad discretionary powers will know what is
relevant to the exercise of those powers
or in what circumstances
they are entitled to seek relief from an adverse decision.
These
constraints will generally appear from the provisions of the
empowering statute as well as the policies and objectives of
the
empowering statute
.”
(Footnotes
omitted – Own emphasis)
[38]
In the similar vein, the Court in
Dawood & Another v
Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC), at para
46, remarked:
“…
There is,
however, a difference between requiring a court or tribunal in
exercising a discretion to interpret legislation in a manner
that is
consistent with the Constitution and conferring a broad discretion
upon an official, who may be quite untrained in law
and
constitutional interpretation, and expecting that official,
in the
absence of direct guidance,
to exercise the discretion in a
manner consistent with the provisions of the Bill of Rights.
Officials are often extremely
busy and have to respond quickly
and efficiently to many requests or applications. The nature of
their work does not permit
considered reflection on the scope of
constitutional rights or the circumstances in which a limitation of
such rights is justifiable.
It is true that as employees of the
State they bear a constitutional obligation to seek to promote the
Bill of Rights as
well. But it is important to interpret that
obligation within the context of the role that administrative
officials play
in the framework of government, which is different
from that played by judicial officers.” (Footnotes omitted –
Own
emphasis)
[39]
I am not sure of how far the argument can go that
Constitutional principles of fairness are offended by a statutory
provision that
contains a deadline. As was found in
Vlok
supra (at para 107) “
it is precisely the absence of fluidity
in the deadline that is critical for the achievement of the statutory
purpose
”. Same should be said of section 62.
Therefore, although the wording of the provision is neutral and
contains
no express wording to exclude or include powers to extend
the period of 21 days, interpreting the section to give the
Municipality
implicit powers to extend the time period in section 62,
in the interest of maintaining overall fairness, gives the
Municipality
wide powers to extend the deadline by whichever period
it deems fit, which period may be short, long or indefinite in
duration.
This, in my view, goes counter to what is sought to
be achieved by the statute. Similarly, condoning non-compliance
by some
applicants, who are held to be ‘deserving’ of
such condonation, whilst others were held to the time limit, may not
represent the overall fairness advocated by the respondents. All
these issues seek to highlight the problems that arise if
we start
introducing issues of fairness into the construction of the statute.
[40]
The
Pepper Bay
&
Smith
cases supra highlight
the point that “fairness” does not come to it. These
cases were heard together at the Supreme
Court of Appeal (“SCA”).
In both cases the applicants were severely affected by the rejection
of their applications
because of late payment and late submission of
application forms. They offered good reasons for the late
submissions, but
the Court was not persuaded. In the
Pepper
Bay
case, the applicant had lodged an application for fishing
rights. However, it paid the required fee by way of a
post-dated
cheque, to a date four days after the deadline (closing
date) for the submission of applications. The Chief Director
for
Environmental Affairs and Tourism concluded that the application
had been “improperly lodged” in that the required
application fee had not been paid timeously. His further view was
that he had no discretion to condone non-compliance with the
requirement of timeous payments. As a consequence, he concluded
that he had no authority to consider the application on its
merits.
In that event the application was rejected purely on procedural
grounds.
[41]
In the
Smith
case 28 subsistence fishermen mandated a
chartered accountant, Mr Bonthuys (“Bonthuys”) to assist
them in preparing
their applications for the right to undertake the
commercial fishing of West Cost Rock Lobster. Bonthuys was
specifically
directed to ensure that the applications comply with the
necessary formalities, that the relevant application fees were
timeously
paid and that the applications were submitted before the 12
noon deadline. Bonthuys paid the application fee required in
the morning of the date of the deadline. He then went to queue
to submit the applications, but the queues were very long.
When
Bonthuys and those accompanying him, eventually got to the room where
the applications were received, they realised that they
were only in
possession of the original application forms, while the general
notice had required submission of the original form
together with two
copies. The copies had apparently been left in the vehicle
which they had been travelling in, which at
that time had already
left. The officials receiving the applications refused to take
the original without the copies, and
they also refused to allow
Bonthuys to make copies and return those the same day. Bonthuys
therefore only went back with
the applications, accompanied by the
two copies as required, the following day and that is when the
officials involved received
the documents.
[42]
The Chief Director in this instance took the view that the
applications had been submitted late; that the time periods fixed by
the general notice were peremptory; and that he had no discretion to
condone the late submission of the applications. As a
consequence he refused the applications without considering them on
their merits. Smith appealed to the Minister in terms
of
section 80 of the Marine Leaving Resources Act 18 of 1998 (“the
MLR Act”), but was unsuccessful, essentially because
the
Minister shared the views of the Chief Director in all material
respects.
[43]
Smith had contended that a certain official of the department
had extended the deadline to 12 noon of the following day and that
because his application was lodged before the extended deadline it
could not be considered late. The official denied that
he had
ever given such an extension. And moreover denied that he, or
any employee of the department, had any authority to
grant an
extension of the deadline prescribed by the Minister in the General
Notice. Brand JA found that the Chief Director
and the Minister
were correct in their conclusion that the General Notice, read as a
whole, did not confer a discretion on the
Chief Director to condone
the defects in either of the applications concerned.
[44]
As in
Pepper Bay
&
Smith
supra, it may seem
unfair as the parties were, for all intents and purposes, possessed
of compelling arguments as to why the late
filing of the applications
should be condoned. However, as Brand JA put it, as a general
principle an administrative authority
has no inherent power to
condone failure to comply with a peremptory requirement. Such a
discretion must be found in the
provisions of the statute.
[45]
For all these reasons stated above, the Municipal Manager was
not empowered to extend the 21 day period in section 62 (1) by
another
week, as he did. His decision must be reviewed and set
aside. It follows, therefore, that the decision by the Mayor
must also fall away, as it ought not to have been made, by virtue of
the notice of appeal having been filed outside the 21 day
period. It
matters not that the Municipal Manager invited bidders to do so. He
exercised a power he did not have, accordingly
such extension was
ultra vires
.
[46]
In view of my finding that the 21 day period could not be
altered, it is not necessary to deal with other grounds for review.
There
is no reason why costs should not follow the result.
[47]
I therefore make the following order:
1. The
First
Respondent’s decision to extend the period within which any
appeal in terms of section 62 of the Local Government: Municipal
Systems Act 32 of 2000 (“the Systems Act”) had to be
filed in respect of the award of TENDER SBM 03/17/18 CONSTRUCTION
OF
A CLASS B LANDFILL CELL AT VREDENBURG LANDFILL AND ASSOCIATED
INFRASTRUCTURE (“the tender”) to the Applicants, is
reviewed and set aside;
2.
The
Third Respondent’s decision to award the tender to the Second
Respondent, is reviewed and set aside;
3. The First, Third and
Fourth Respondents are ordered to pay costs of the Applicants.
______________________
N P BOQWANA
Judge of the High
Court
APPEARANCES
For
the Applicants: Adv. H J De Waal
Instructed
by: Van der Meer and Partners Inc, Cape Town
For
the First, Third and
Fourth
Respondents: Adv. D Borgström
Instructed
by: Van der Spuy & Partners, Paarl
For
the Second Respondent: No appearance