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[2022] ZAGPJHC 327
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Toots Coaches Bus Hire and Others v MEC for Gauteng Education and Others (11209/2022) [2022] ZAGPJHC 327 (8 April 2022)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 2022/11209
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES : NO
REVISED
Date 08 April 2022
In
the matter between:
TOOTS
COACHES BUS HIRE

First Applicant
MAMSI
TOURS (PTY) LTD

Second Applicant
MNOTHO
TOURS

Third
Applicant
K.A
NTULI BUS SERVICE
Fourth
Applicant
AUPA
PHADI BUS SERVICE
Fifth Applicant
THANDINHLELA
COACHES
Sixth
Applicant
BONGINDLELA
COACHES
Seventh
Applicant
BAKUBUNG
TOURS

Eighth Applicant
and
MEC
FOR EDUCATION, GAUTENG
First Respondent
MEC
FOR FINANCE AND
E-GOVERNMENT,
GAUTENG
Second Respondent
ZAMAR TEQ-PHAKATHI
TRANSPORT JV
Third
Respondent
BIDDERS UNDER
RFP
NO. GT/GDE/007/2021
(LISTED
IN ANNEXURE “A”)
Fourth to Six Hundred and Forty Seventh Respondents.
Summary:
Urgent application. Test for urgent application restated. Primary
requirements and secondary requirements of urgency restated. Issuing

a tender after the extension period had expired amount to acting
outside authority as envisaged in PAJA. Decision reviewable on
the
ground of lack of authority.
JUDGMENT
Molahlehi
J
Introduction
[1]
The purpose of this judgment is to provide the
reasons for the order made in favour of the applicants on 4 April
2022. The order
provided for the following:
1.
The forms and service provided for in the Uniform Rules of Court are
disposed of, and this application
is treated as one of urgency in
terms of rule s6 (12) of the Uniform Rules of Court.
2.
Leave is granted to Gauteng Small Bus Operators Council
(GASBOC) to intervene in the application.
3.
It is declared that the award of the tender under RFP
No.GT/GDE/007/2021 by the Gauteng Department
of Education,
alternatively by the Gauteng Provincial Treasury, to the third
respondent and to any other successful bidders that
are not known to
the applicants (the award) is unlawful and invalid and, is hereby set
aside.
4.
The first and second respondents to initiate a fresh tender for
scholar transport services to and
from schools in Gauteng.
5.
Pending the completion of the tender process contemplated in
paragraph 4, above, the parties and
all current service providers
under the contract, G T/GDE075/2017, shall continue to render school
transport services to and from
schools in Gauteng in accordance with
the existing service level agreements, as if those agreements have
been extended to the date
upon which the above tender process is
completed.
6.
The first and second respondents are directed to pay the costs of
this application with costs shall
include the costs of two counsel.
[2]
The Gauteng Small Bus Operators Council
(GASBOC) which was granted leave to intervene, is a chapter of the
South African National
Small Business Council established by the
national Department of Transport, which is independent and run by its
members
[3]
The order was made following the urgent
application launched by the applicants and the intervening party,
GASBOC. The application
relates to the tender, which had been awarded
by the respondents to the third respondent and unknown others. The
applicants sought
to review, to declare as invalid and set aside a
tender under RFP number, GT/GDC/007/2021 issued by the respondents.
They also
prayed to have the provisions of the scholar transport
services made under the same tender issued to them to continue until
the
new contracts and a lawful tender was issued.
Background
facts
[4]
The applicants have been providing the service
of scholar transport to the schools, in the Gauteng Province on
behalf of the first
respondents for a number of years. They provided
the service after they were awarded the tender by the first
respondent. The tender,
which was for three years was awarded in 2017
and was extended on various occasions.
[5]
The applicants responded to the 2021 tender,
which closed on 5 March 2021. The respondent's bid documents indicate
that each bid
would be kept open for hundred twenty days.
[6]
It was further indicated in the bid documents
that bidders, who did not receive a response for from the respondents
after hundred
and twenty days of the closing date of the bid should
regard the application as being unsuccessful. The respondents also
indicated
that the first respondent would conduct site visits in
respect of the shortlisted bidders.
[7]
On 11 January 2022 the applicants were before
the start of the school term, advised by the first respondent in a
text message that
they would continue to provide the services on a
month-to-month basis. The message advised them that a confirmatory
letter would
be sent to them in that regard.
[8]
On 24 January 2020 the applicants’
attorneys of record addressed a letter to the first respondent,
complaining, amongst others
that although they met the requirements
of the bid they had not received any response from the respondents.
[9]
On 8 February 2022 the first respondent issued
a letter to the South African National Small Bus Operators (SANSBOC),
indicating
that the 2021 tender process has not been finalized.
[10]
On 9 February 2020 the applicant's attorneys
addressed a letter to the first respondent inquiring as to whether
site visits were
still to be conducted. In response to the letter,
the first respondent indicated that "the process is not yet
finalised,"
It was therefore not in a position to respond to the
query raised by the applicants.
[11]
On 14 February 2022 the first respondent
addressed a letter to the applicants wherein it indicated that the
2017 tender had been
extended on a month-to-month basis effective
from 1 January 2022 to 31 March 2022.
[12]
On 22 February 2020 the applicant's attorneys
addressed the letter to the first respondent wherein the following
issues were raised:
“
40.1.
It was noted that the
department had advised us that the 2021 tender adjudication
process
had not been finalized and that no further information had been
forthcoming.
40.2.
Despite this it has come to our attention that certain service

providers had been appointed. Even though we were still providing
services to the department, we needed to know whether our status
as
service providers would be confirmed, either in terms of the 2021
tender or through any other authority or contract. It was
expressly
indicated that because of the nature of our
business, “we
cannot work in limbo without any certainty regarding our status.
40.3
We
therefore sought confirmation from the Department on a permanent

basis, failing which we would assume that out appointments would be
confirmed.  department as to whether we were providing
services
to the department on a permanent basis, failing which we would assume
that our appointments would be confirmed.”
[13]
The first respondent did not respond to the
letter.
[14]
The applicants addressed another letter to the
first respondent raising the various issues including seeking an
undertaking from
the first respondent that no formal appointments
would be made until proper bid evaluation and adjudication in terms
of the criteria
is done.
[15]
In response to the above, the first respondent
indicated that it
"is still in the process of evaluating
the tender in question," and thus it was
not
able to respond.
[16]
On 16 March 2022 the applicant became aware
that the respondent had awarded the tender to the third respondent
which was to come
into operation on 1 April 2022. On the same day 16
March 2022 the applicant addressed a letter to the first respondent
and requested
confirmation as to the outcome of the applicants’
tender application.
Termination
of applicant's contract.
[17]
The applicants complained that the service
level agreements were unlawfully terminated because the respondents
did not give sufficient
or reasonable notice period for the
termination of their contract. They say at the time of the
termination they were expecting
that they would be afforded permanent
contracts. The notice period according to them was unreasonable,
because it happened in the
context of having to wind up the
operations and the complexity of having to plan in terms of the
service, securing drivers and
ensuring vehicle capacity.
[18]
The respondent in the answering affidavit
contended that the process of the tender terminating the service
level agreement of the
applicants were transparent. According to them
the applicants knew about the termination of their contracts and the
reason for
the extension of the tender.
[19]
They
further contend that it was made clear that the
RFP
would
be evaluated on the preferential procurement regulations of 2017 as
envisaged in the Preferential Procurement Framework Act.
[1]
[20]
In terms of this Stage 1(c) of Site Visit
Evaluation, the site visits would be done with prior arrangements and
conducted at the
shortlisted bidders only and based on the
established criteria.
[21]
As concerning urgency, the respondents contend
that the process followed in appointing the service providers is well
known to the
applicants. One of the things known to the applicants is
that the notice of successful leaders is published in the National
Treasury
website and therefore there was no need to contact the
unsuccessful bidders. The applicant would accordingly have known
about the
awarding of the tender for some considerable time to the
point at which they decided to launch the application.
Principles
governing urgency.
[22]
The test for determining urgency in an urgent
application is set out in Rule 12 of the High Court Rules. The
primary requirements
for the test are (a) the applicant has to set
out explicitly the circumstances which is renders the matter urgent,
(b) give reasons
why the applicant could not be afforded a
substantial redress at a hearing in due course.
[23]
The
test was explained in
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd,
[2]
in
the
following terms:
"[T]he
procedure set out in rule 6(12) is not there for taking. An applicant
has to set forth explicitly the circumstances
which he avers render
the matter urgent. More importantly, the Applicant must state the
reasons why he claims that he cannot be
afforded substantial redress
at a hearing in due course. The question of whether a matter is
sufficiently urgent to be enrolled
and heard as an urgent application
is underpinned by the issue of absence of substantial redress in an
application in due course.
The rules allow the court to come to the
assistance of a litigant because if the latter were to wait for the
normal course laid
down by the rules it will not obtain substantial
redress.
It
is important to note that the rules require absence of substantial
redress. This is not equivalent to the irreparable harm that
is
required before the granting of an interim relief. It is something
less. He may still obtain redress in an application in due
course but
it may not be substantial. Whether an applicant will not be able
obtain substantial redress in an application in due
course will be
determined by the facts of each case."
[24]
The secondary requirements are amongst others
the need to explain any delay in instituting the proceedings, and
enrolling a matter
on a Thursday for a hearing on the following
Tuesday.
[25]
In granting the order referred to earlier, and
upholding urgency I took into account the background facts and
circumstances within
which the application was instituted. It is not
in dispute that the applicants transport more than 14,000 scholars on
a daily basis
using 225 buses, and employ 326, employees, including
the drivers to provide the service.
[26]
It is apparent to me from the papers and the
submissions made during the hearing that the applicants will not in
the nature of the
service rendered and the nature of their business
be able to obtain a substantial redress in due course if they were to
approach
this court on the ordinary course in instituting the review
proceedings. It is also important to note that the relationship
between
the applicants and the respondents is that envisaged in
section 217 of the Constitution. It is for instance not a contractual
relationship
where the relief they may seek in the future could be
breach of contract or contractual damages.
[27]
If this was a case involving breach of contract
it could be said that the remedy would be found either in specific
performance or
a claim for a breach of contract. In the present
matter the applicants’ cause of action is based failure by the
respondent
to act within their authority as envisaged in PAJA.
[28]
Although
there is some suggestion of delay in instituting the proceedings it
is clear that the awarding of the tender came to the
attention of the
applicant on 16 March 2022. It is also clear that the applicant did
not rush to the court soon after the issue
arose, but rather sought
to resolve the issue by way of engagement with the responden
ts.
[3]
G
rounds
of review
[29]
The
applicants seek to review the decision of the respondents in terms of
section 217 of the Constitution read with the Promotion
of
Administration Justice
Act
(PAJA).
[4]
[30]
Section 217 of the Constitution provides that
where an organ of state contracts for goods and services it must be
done in accordance
with the principles of fairness, equality,
transparency, competitiveness, and cost- effectiveness.
[31]
It is not in dispute that in awarding the tender to the third
respondent the respondents
acted in terms of an administrative act as
envisaged in PAJA and thus the applicants are entitled to bring the
review application
under that Act.
[32]
The applicants contend that the awarding of the
tender by the respondents is reviewable because the validity of the
tender had lapsed
by the time it was issued to the third respondent
and thus it could not be validly awarded. The awarding of the tender
to the third
respondent, according to the applicants, was
procedurally unfair in that it did not comply with the provisions of
PAJA. The review
is brought in terms of sections 6 (2)(a) (i), 6 (2)
(b), 6 (2) (d), 6 (
2) (f) and 6 (2) (i) of PAJA.
[33]
The applicants further contend that the tender
process was not transparent, equitable or competitive as they
expected the first
respondent to follow the terms of the tender
documents either to award or not award the tender within the
validity period.
[34]
It is contended that the respondents breached
the Supply Chain Management Guide to Accounting Officer issued by
National Treasury.
in that there was never a request to the bidders
for a further extension of the period prior to the expiry of the
hundred and twenty
days. In other words, the awarding of the tender
is invalid because it was awarded outside the validity period of the
proposal.
The
awarding of the tender.
[35]
There is no dispute that the first respondent
solicited and offered a new service contract to the third respondent
and probably
other contractors. The service contract is based on the
tender process that was initiated by the first respondent in 2021,
which
as indicated above closed on 5 March 2021. It was however
extended for a period of hundred and twenty days and this lapsed on
10
July 2021.
[36]
In Telkom SA Limited v
Merid Training (Pty) Ltd and Others; Bihati Solutions (Pty) Ltd v
Telkom SA Limited and Others,
[5]
t
he
court in dealing with a similar situation held that:
“
[14]
The question
to be decided is whether the procedure followed by the
applicant and
the six respondents after 12 April 2008 (when the validity period of
the proposals expired) was in compliance with
section 217 of the
Constitution. In my view it was not. As soon as the validity period
of the proposals had expired without the
applicant awarding a tender
the tender process was complete – albeit unsuccessfully –
and the applicant was no longer
free to negotiate with the
respondents as if they were simply attempting to enter into a
contract. The process was no longer transparent,
equitable or
competitive. All the tenderers were entitled to expect the applicant
to apply its own procedure and either award or
not award a tender
within the validity period of the proposals. If it failed to award a
tender within the validity period of the
proposals it received it had
to offer all interested parties a further opportunity to tender.
Negotiations with some tenderers
to extend the period of validity
lacked transparency and was not equitable or competitive. In my view
the first and fifth respondent’s
reliance only on rules of
contract is misplaced.”
[37]
In my view, what this means is that at the time
the third respondent was appointed the hundred and twenty days’
extension
period had expired. In the circumstances the respondents
could not, therefore, lawfully award the tender to the third
respondent.
Put differently, the respondents were not authorised in
awarding the tender after the expiry of the hundred and twenty days.
The
procedure adopted by the respondents was, accordingly,
procedurally unfair. It is for this reason that I found that the
tender
was unlawfully awarded to the third respondent.
[38]
In the circumstances and ensuring fairness, the
respondent ought not to have awarded the expired tender to the third
respondent
and others, but rather to have either initiated a new
tender process or abandoned the tender process.
[39]
Accordingly, a just and equitable remedy is to
allow the applicants to continue rendering the services which they
have been doing,
pending the issuing and finalization of the new
tender.
Terminating
of the service level agreement.
[40]
As indicated earlier, the first respondent
informed the applicant on 14 February 2022 that the service level
agreement that had
been awarded to them under the 2017 tender would
be extended on a month-to-month basis. Attempts by the applicant to
obtain clarity
as to the meaning of "the month-to-month"
notice was unsuccessful as there was no response from the
respondents. This
is despite the applicant having informed the
respondent about the implication to the amount of planning that had
to go in with
the provision of the service, including ensuring that
there are sufficient buses and drivers available.
[41]
I agree with the applicants that having regard
to the length of the contract
which has been in place for
several years, the number of employees involved and the number of
buses, the notice was unreasonable.
[42]
It was fo
r the above reasons that the above
order was made.
E
Molahlehi
Judge
of the High Court
Gauteng
Local Division,
Johannesburg.
Representation:
For
the Applicants:

N A Cassim SC with O Ben-Zeev
Briefed
by:                                                    Dev

Mharaj and Associates Inc. Attorneys.
For
the Intervening Party:                            Q

M Dzimba
Briefed
by:                                                    Mothobi
For
the Respondents:                                    L

M Montsho- Moloisane SC with J Maisela
Brieved
by the:                                              State

Attorney.
Date
of hearing:

31 March 2022
Date
judgment delivered:

08 April 2022.
[1]
Act number
5
of 2000.
[2]
[2011]
ZAGPJHC 196.
[3]
South African informal traders for him and others v City of
Johannesburg and Others, 2014 [4] SA371 at paragraph 3.
[4]
Act number 3 of 2000
[5]
(27974/2010,25945/2010) [2011] ZAGPPHC 1 (7 January 2011) at
paragraph 14.