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[2020] ZAWCHC 194
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TMT Services and Supplies (Pty) Ltd v The MEC: Department of Transport, KZN and Others (18339/18) [2020] ZAWCHC 194 (6 March 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE
NO: 18339/18
In
the matter between:
TMT
SERVICES
AND SUPPLIES
(PTY)
LTD
Applicant
and
THE
MEC: DEPARTMENT OF TRANSPORT, KZN
First Respondent
THE
PREMIER OF
KZN
Second Respondent
THE
MEC: DEPARTMENT OF TREASURY, KZN
Third Respondent
THE
HOD: DEPARTMENT
OF TRANSPORT, KZN
Fourth Respondent
MTM
KZN TRAFFIX (PTY)
LTD
Fifth Respondent
Delivered:
06 March 2020
JUDGMENT
NDITA;
J
INTRODUCTION
[1]
This is an application to review and set aside the decision of the
Fourth
Respondent to award a tender for traffic contravention
management to the Fifth Respondent. The Applicant was an unsuccessful
bidder.
More specifically, the relief sought by the Applicant in the
Notice of Motion is couched in the following terms:
'1. Reviewing and setting
aside the decision by the Fourth Respondent ("the Department")
to award tender
ZNB1366/17T: Supply of Integrated Traffic
Contravention Management Systems to Road Traffic Inspectorate
("the
tender"), to the Fifth Respondent, as well as any contracts
concluded pursuant to such award.
2.
Remitting the tender for adjudication afresh on the same bid
documents, with
the following time table:
2.1
the Fourth Respondent's Bid Evaluation Committees ("BEC"),
along
with any Bid Specification Committee ("BSC”) or any
other relevant technical committee, to consider the bids and make
recommendations to the Fourth Respondent's Bid Adjudication Committee
("BAC") on the appointment of a new bidder within
30
(thirty) days of the date of this order.
2.2
The Fourth Respondent's BAC to consider the recommendations of the
BEC
referred to in paragraph 2.1 above and to take a final decision,
along with whoever at the time is acting In their official capacity
as the Fourth Respondent's Head of Department, regarding the
appointment of a new bidder within (15) days of receipt of the BEC's
recommendations.
3.
In the alternative to paragraphs 1 and 2 above, that the award of the
tender
to the Fifth Respondent by the Fourth Respondent, and any
contract concluded pursuant thereto, be reviewed and set aside, and
that
the Fourth Respondent call for bids afresh within 30 (thirty)
days of the date of this order.'
In
an amended Notice of Motion, the Applicant seel<s that the award
[the tender] to the Fifth Respondent, as well as any contracts
concluded pursuant to such award be given to it.
THE PARTIES
[2]
The Applicant is TMT SeNices and Supplies (PTY) LTD t/a Traffic
Management
Technologies ("TMT” or "the Applicant"),
a company duly incorporated under the laws of the .Republic of South
Africa with registration number 2000/0222850/07 and with its
registered office, as well its principal place of business at Ground
Floor, Building D, Plattekloof, Cape Town, The pleadings reflect that
the Applicant is in the business of providing traffic management
services to state entities such as municipalities and provincial
governments. The business consists of four divisions, namely,
Road
Safety Enforcement Public Transport Management, and Tolling.
[3]
The First Respondent is the MEC: Department of Transport, Province of
KwaZulu-Natal ("the Department"), with its principal place
of business being 172 Burger Street, Pietermaritzburg, KwaZulu-Natal
Province. The Second Respondent is the Premier of the KwaZulu-Natal,
in his official capacity and cited as Head of the Provincial
Government of the Government of the Province of KwaZulu-Natal, with
its principal place of business also at 172 Burger Street,
Pietermaritzburg. The Third Respondent is the MEC: Department of
Treasury , Province of Kwa-Zulu-Natal, with its head office at
14
Chief Albert Luthuli Street, Pietermaritzburg. The Fourth Respondent
is the Head of the Department: Department of Transport,
KwaZulu-Natal
Province with his principal offices at 172 Burger Street,
Pietermaritzburg.
[4]
The Fifth Respondent is MTM KZN Traffix (PTY) LTD ("MTM"),
a
company duly incorporated under the laws of the Republic of South
Africa, with registration number 2014/165478/07
Ua
Mikros
Traffic Monitoring with its registered office as well as principal
place of business is at 116 Fascia Road, Silvertondale,
Pretoria. For
its Kwa-Zulu Natal operations, the physical address is Unit 14 - 17,
Davlen Park, 11 Halsted Road, Mkondeni, Pieterrnaritzburg.
FACTUAL
BACKGROUND
[5]
Before summarizing the facts relevant to the background of this
application, I must
mention that Counsel for the Applicant, Mr
Ackerman, sought leave to file supplementary authority on 27 February
2020, the eve
of the date on which I had undertaken to deliver the
Order in this matter. The Respondent's expressed objected but were of
the
opinion that this court may have recourse to the authority it was
being referred to because it, in any event bore no relevance to
the
points raised
in
limine,
which, in terms of an Order of
this court were to be determined before the the determination of the
merits of the review application.
I have in this judgment considered
the aforesaid authority. I now turn to outline the factual matrix.
[6]
The Applicant submitted its tender for the provisioning of
traffic management services comprising of five components, namely, an
integrated camera network, a traffic contravention management system,
common interface of the various systems, fines recovery and
a skills
transfer component. The contract was for a duration of five years.
The closing date for the bid was 12 July 2017. There
was a four-stage
bid evaluation process, involving Pre-screening, (to ensure that
bidders had submitted all relevant documents);
Technical evaluation,
Price evaluation; and a 8- BBEE evaluation. The Bid Evaluation
Criteria and Methodology were stipulated in
the bid document's
Special Conditions of Contract. Bidders had to achieve a score of 65%
for the evaluation to proceed to price
and preference evaluation.
[7]
The bids were evaluated and in the course of this process, the
Applicant was eliminated in the pre-screening phase on the basis that
it had failed to provide two copies of its bid. On 03 August 2017,
the BEC met and the Fifth Respondent obtained the highest score
of
97,5% and was awarded the bid. On 13 October 2017, the Applicant
lodged an appeal against the bid award to the Kwa-Zulu-Natal
Appeals
Tribunal. The appeal was not opposed by neither the Department, nor
the Fifth Respondent. On 05 February the Bid Appeals
Tribunal found
that the bids should be re-evaluated. After the re-evaluation process
the bid was awarded to the Fifth Respondent.
Another bidder, Magna
Medaco, who was also unsuccessful at the re- evaluation stage
launched review proceedings challenging the
bid award, but later
abandoned the process. The Applicant served the review papers on the
Respondents during October 2018.
[8]
The grounds of the review can be summarised as follows:
8.1
The Department acted
ultra vires
when awarding the tender to
MTM because it re-evaluated MTM's bid prior ti the recommendation of
the Third Respondent that the bids
be referred for re-evaluation.
8.2
The BEC and BAC did not apply their minds to the re-evaluation as the
scoring and re-evaluation
was done in a hasty manner; and
5.3 The
scoring of MTM's bid was flawed as the scores were vague and
incomprehensible.
GROUNDS OF OPPOSITION
[9]
The First and Fourth Respondents, as well as Fifth Respondent oppose
the relief sought
by the Applicant on several grounds, and have
raised four points
in limine,
some of which may be
dispositive of the application. I deem it expedient to first deal
with them.
9.1
Jusrisdiction
The Respondents allege
that this court does not have jurisdiction to adjudicate upon this
matter as it has no connection whatsoever
with the dispute because
the cause of action arises in Kwa-Zulu, Natal, not the Western Cape,
and none of the Respondents are resident
or domiciled within its
jurisdiction.
9.2
Non-joinder
The Respondents allege
that the two bidders who were unsuccessful ought to have been joined
in these proceedings seeing that a decision
awarding the bid to the
Applicant may be prejudicial to them.
9.3
Failure to exhaust internal remedies
According to the
Respondents, the Applicant did not exhaust internal remedies and has
no asked for condonation of the failure. The
Respondents aver that
the Applicant did have an internal remedy to BAT but it lodged a
defective appeal in that it lodged outside
the five-day period
prescribed for an appeal to the BAT.
9.4
Failure to comply with the 180-day period
On this point it is
alleged that the Applicant lunched the present application more than
180 days since it was served on or about
18 October 2018 and has not
applied for condonation.
[10]
According to the Respondents, the application should be dismissed on
one or more of the grounds
raised
in limine.
It is clear to me
that the point which must be considered first is that of jurisdiction
since it is dispositive of the other points.
Jurisdiction
[11]
The territorial jurisdiction of the divisions of the High Court of
South Africa is
governed by section 21 of the Superior Courts Act 10
of 2013 which provides that the high court has jurisdiction over all
persons
residing or being in, and in relation to all causes arising
and all offences triable within, its area of jurisdiction and all
other
matters of which it may according to law take cognizance of. In
the matter at hand, the Applicant relies on section 1 of PAJA to
found jurisdiction. Section 1 of PAJA defines a
'courf
as:
'(a) …
(b)
(i) a High Court or another of similar status;
(ii) within whose area of
jurisdiction the administrative action occurred or the administrator
has his or her or its principal place
of administration or the party
whose rights have been affected is domiciled or ordinarily resident
or the adverse effect of the
administrative action was, is or will be
experienced; .. .'
A
court or tribunal has, in terms of section 6(2) of PAJA the power to
review an administrative action on a number of grounds as
set out in
section 6.
[12]
The Applicant relies on section 1 read with section 6 of PAJA to
found jurisdiction
on the basis it is resident in Cape Town. The
Respondents contend that section 6 of PAJA must be interpreted in the
light of
section 21
of the
Superior Courts Act 10 of 2013
, as well as
the doctrine of effectiveness and/or convenience. According to the
Respondents, this court has no jurisdiction to determine
the merits
of the review application on the following basis:
12.1 All the
Respondents are based in Kwa-Zulu Natal;
12.2 The bid
was a bid process issued in Kwa-Zulu Natal for goods and services in
KwaZulu- Natal;
12.3 Item 12
of the Special Conditions of Contract require the service provider's
project team to be located in Pietermaritzburg;
12.4 The bid
concerned road traffic functions of KwaZulu-Natal Provincial
Administration within the exclusive jurisdiction
of the Provincial
Government
12.5 The bid
was undertaken in terms of the KwaZulu-Natal Supply Chain Management
Policy and KwaZulu-Natal Treasury
practice Notes;
12.6 The bid
was adjudicated in KwaZulu-Natal, and the final administrative
decision was taken in KwaZulu -Natal. The
bid award was subject to an
appeal before the KwaZulu-Natal Bid Appeals Tribunal;
12.7 The
bidder had to be a KwaZulu-Natal small medium or micro enterprise
(SMME) or allocate at least 30% of the bid
price to such an entity.
[13]
For all these reasons, so argued the Respondents, it cannot be
convenient that the
matter be heard in the Western Cape, and it is
desirable for sound public administration and for the principle of
convenience that
the matter be heard in KwaZulu-Natal. As can be
discerned from the aforegoing, none of the Respondents are resident
or domiciled
in the Western Cape. Moreover, this Court has no
connection whatsoever to the dispute, save that the applicant happens
to be resident
here.
[14]
Counsel for the Applicant contended that there is no discretion or
weighing of interests once
a PAJA ground of jurisdiction applies.
Stated differently, considerations of effectiveness, or common sense,
or convenience do
not apply once jurisdiction has been established in
terms of PAJA. According to the argument, the fact is TMT resides in
Cape Town,
and the bottom line is that this Western Cape High Court
has jurisdiction. The Applicant relies in the main, as authority for
this
contention on an unreported judgment of Mayosi AJ in the matter
of
B.
O.
Mahony N.
O.
Trustee
for
the
Time
Being
of
Rainbow
Nation
Property
Trust
Number
3
&
Others v The Member of the Executive Council for Health and Social
Development Eastern Cape Provincial Government
&
Others,
Case number 1444/15, an of this division as authority
for this contention
[15]
It must be stated from the outset that the reliance on
Mahony
is misplaced as firstly, the facts are clearly distinguishable
from the facts
in
casu,
and secondly, in
coming to its conclusion, the court applied the considerations of
convenience. In
Mahony,
the applicants were attempting to
compel the Eastern Cape Provincial Government to make a decision
regarding the application by
a consortium (of which the applicants
were members) for a licence to operate a 60 bed and 3 theatre
hospital in Jeffrey's Bay.
Since the Provincial Government had,
according to them, either failed or refused to make a decision, they
sought a mandamus to
compel same. The respondents had their principal
places of residence/offices in the Eastern Cape, the decision sought
to be compelled
related to medical facilities in the Eastern Cape and
the administrative action (the decision making) would take place in
the Eastern
Cape. The sole connection with the Western Cape, was - as
in the instant case - the applicants' domicile. Since the
applicability
of PAJA was not disputed, and - crucially - the
respondents conceded that the Cape High Court had jurisdiction, the
matter turned
on considerations of convenience, and it was this
factor that swayed the Court to keep the matter in the Western Cape.
It is, however,
on this same point that the argument falls apart for
the current applicants. In the
Mahony
matter, the 1
st
and 2
nd
applicants, who were integral to the successful
prosecution of the review, had severe medical conditions that would
have been exacerbated
by continuously flying to and fro the Eastern
Cape. Since the same did not apply to the respondents, convenience
clearly favoured
proceedings in the Western Cape.
[16]
The Court in
Mahony
referred to the matter of
Estate
Agency
Board
v
Lek
1979 (3) SA 1948
(A). In
Lek,
the aggrieved
party (an estate agent) had sought to bring the Estate Agency Board,
centred in Johannesburg, to book in Cape Town,
where the estate agent
has resident, and where he had his own practice. The agent, who by
that time had been in practice as an
estate agent for many years, had
been denied a "fidelity fund certificate". As a result of
being denied such a certificate,
and due to a recent legislative
change, he could no longer legally practice as estate agent. The
Board had sought to non-suit the
agent, on the basis that their place
of business was in Johannesburg. The Court held that not only was the
agent resident in Cape
Town, but the effect of the Board's decision
would be felt in Cape Town, as the agent would no longer be able to
practice. Also,
since the Board represented all estate agents in
South Africa, they could reasonably be expected to attend Court
throughout the
Republic, as circumstances required.
The
Court in
Lek
also pointed out though that:
"...asset out
earlier in this judgment, convenience and common sense, are
inter
alia,
valid considerations in determining whether a particular
Division has jurisdiction to hear and determine the particular cause"
[17]
An examination of court decisions firmly establishes that even where
jurisdiction is founded
on PAJA, considerations of convenience and
common sense, as well as effectiveness are applicable. In
National
Arts Council and Another
v Minister of Arts and
Culture and Another
2006 (1) SA 216
(C) the Minister had
taken a decision to termination the functions of the Council. The
principal place of business of the Council
itself is, however, in
Johannesburg. The Council attempted to bring the matter before the
Cape Town High Court, on the basis that
two of the Council's members
were resident in the Cape Town. The argument was that the effect of
the decision was felt in Cape
Town, by the members resident there.
The Court held that the members of the Council were not full time
staff, but were employed
only on a part time basis, for a fixed
period, and that any allowances they received were in respect of
services rendered from
time to time.
[18]
In the instant matter, the Applicant is also not a member of
staff, or entitled to any remuneration until successfully awarded a
tender, with rights only vesting once a tender is awarded and
contracts signed.
[19]
The applicants in
National
Arts
Council
had argued further that since a meeting
regarding the proposed decision had been held in Cape Town that would
constitute a further
ground for establishing jurisdiction. The Court
held, however, that:
"It is quite clear
on basis of the record that no decision that adversely affects the
rights of anyone of the applicants having
a direct, external legal
effect was taken in Cape Town. Even if the first respondent proposed
or contemplated making a decision
at the time of the meeting held in
Cape Town, the decision was finally made in Pretoria. It is thus
clear, in my view, that the
decision by the first respondent was
taken in Pretoria and thus outside the jurisdiction of this Court. I
am not persuaded by the
proposition that because the decision taken
by the first respondent commenced or flows from a meeting held in
Cape Town constitutes
a sufficient connecting factor to establish
jurisdiction."
It
is noteworthy that in the present application no decision adversely
affecting the Applicant's rights, and having a direct, external
legal
effect, was taken in Cape Town.
[20]
The Applicant also relies on the matter of
Johnson
&
Others v Minister of Home Affairs
&
Others:
In
Re:
Delorie
&
Others
v
Minister
of
Home
Affairs
&
Another,
Case
number 10310/2014; 10452/2014 [2014] ZAWHC 101(30 June 2014).
Likewise, such reliance is, misplaced. In
Johnson,
the issue
arose as a result of a legislative amendment, to the effect that
Executive has a principal place of business both in Tshwane
and Cape
Town. In respect of one of the complainant parties, the
administrative action also took place in Cape Town (when the
complainant was declared an
"undesirable person"
upon
proceeding through passport control at Cape Town International
Airport), while in the case of the other complainant party this
happened in Johannesburg (at O.R. Tambo Airport). Since all the
complainant parties were domiciled in the Western Cape, and in
view
of the facts mentioned above, it would indeed have been more
convenient to proceed in the Cape High Court. Again, considerations
of convenience came to the fore.
[21]
In
Traffic
Management
Technologies
(Ply)
Ltd
v
Tlokwe
Municipality
and Another
6628/2015 [2015]
ZAWHCHC (28 April 2015), the applicant had attempted to prevent any
contracts from being signed as a consequence
of a tender being
awarded between the 1
st
and 2
nd
respondents.
The applicant had, in terms of a service level agreement with the
Tlokwe Municipality, rendered traffic management
services to said
municipality. The service level argument had been a temporary
measure, for a fixed period, in order to permit
the correct
procurement processes to take place. At the end of that process, the
applicant had been informed that its bid had not
been successful. The
applicant did not expressly claim to be domiclled in the Western
Cape, a point of contradistinction with the
present matter. The Court
however, held as follows:
"Its failure to
reply to the averments, as contained, in second respondent's
answering affidavit, is for the reasons which
is outlined hereunder,
fatal to its application:
(1)
The SLA upon which the applicant relief for the relief it
seeks provides inter alia:
1.1
for services to be rendered by the applicant to the local authority
which
is defined in the SLA as the Tlokwe Municipality.
1.2
The offices of Tlokwe Municipality has its domicile and domicile
citandi
et executandi at corner of Saul 10 Plaaitjies Avenue and
Wolmarans Street, Potchefstroom,
1.3
The services to be rendered is within the area of the Tlokwe
Municipality.
(2)
The tender process for Tender 29/13, occurred under 15
auspices and the instance and request of the Tlokwe Municipality.
(3)
The performance of the applicant's contractual obligations in
terms of the SLA are territorially bound by the municipal area of the
Tlokwe Municipality. In addition, the receipt of tenders and the
adjudication of tenders as well as the allocation of the tender,
which the applicant attempts to challenge occurred in the Tlokwe
Municipality.
(4)
The service which applicant is presently obliged to render is
not only to be rendered within the Tlokwe Municipality and the
payments
which it received pursuant to the SLA, are also made by the
Tlokwe Municipality,
(5)
The applicants staff and infra structure are employed at the
offices of the Tlokwe Municipality from where it renders the service.
(6)
The alleged adverse effects which applicant complains about
relates to the fact that it would be precluded from rendering service
in the Tlokwe municipal area and to the Tlokwe Municipality beyond
30/04/2015, being the date when the SLA comes to an end.
(7)
The applicant's review proceedings i.e. the merits and
competency of which is disputed by second respondent, is confined to
the
Tlokwe Municipality and municipality area.
(8)
The applicant's reliable on an internal appeal similarly
relates to a tender process and adjudication which occurred in the
Tlokwe
Municipal area.
(9)
Second respond has its head office and principal place of
business in Centurion, Pretoria, which falls within the area of
jurisdiction
of the Guateng Provincial Division, Pretoria.
It
is therefore clear that since the respondents have not waived their
rights to raise jurisdiction as a defence and the fact that
respondents have not submitted to the jurisdiction of this Court, I
cannot find that this Court has jurisdiction to hear the application
for urgent relief or for the judicial review of the decisions by the
first respondent. See National Arts Council v Minister of
Arts and
Culture (supra). Accordingly, and in my view, the applicant has in
addiction, not succeeded in surmounting the jurisdictional
hurdle."
[22]
It is clear from the aforegoing decisions that even where
jurisdiction is based on PAJA, considerations
of convenience,
effectiveness and common sense are still relevant. The question is
whether in the instant matter, convenience and
common sense favour
hearing this matter in the Western Cape, when, as above, the issue is
territorially connected to KZN, the impugned
decision was taken in
KZN, and the current respondents (and potential further respondents
who may be joined) have their principal
places of business in KZN,
and as such would be put to great cost to litigate in Cape Town. The
following facts, as alluded to
by the Respondents militate against
this court having jurisdiction to hear and determine the review
application:
22.1 All the
Respondents are based in Kwa-Zulu Natal;
22.2 The bid
was a bid process issued in Kwa-Zulu Natal for goods and services in
KwaZulu- Natal;
22.3 Item 12
of the Special Conditions of Contract require the service provider's
project team to be located in Pietermaritzburg;
22.4 The bid
concerned road traffic functions of KwaZulu-Natal Provincial
Administration within the exclusive jurisdiction
of the Provincial
Government
22.5 The bid
was undertaken in terms of the KwaZulu-Natal Supply Chain Management
Policy and KwaZulu-Natal Treasury
practice Notes;
22.6 The bid
was adjudicated in KwaZulu-Natal, and the final administrative
decision was taken in KwaZulu -Natal. The
bid award was subject to an
appeal before the KwaZulu-Natal Bid Appeals Tribunal;
22.7 The
bidder had to be a KwaZulu-Natal small medium or micro enterprise
(SMME) or allocate at least 30% of the bid
price to such an entity.
22.8 The
service which the Applicant will render is to render is within Kwa
Zulu-Natal and the payments it will
receive from the Fourth
Respondent, the Department of Transport, Kwa-Zlu Natal. Haylie's
[23]
It therefore is my judgment that the Applicant failed to establish
that this court has jurisdiction
to hear and determine the review
application. In the result, the following order will issue:
The Application is
dismissed with costs, which shall include in the case of the First
and Fourth Respondents, costs consequent upon
the employment of two
counsel.
NDITA;
J