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[2010] ZAGPPHC 128
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Mpumalanga Steam and Boiler Works CC v Minister of Public Works and Others (22023/08) [2010] ZAGPPHC 128 (30 September 2010)
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT,
PRETORIA)
CASE NO: 22023/08
DATE:
30/09/2010
In
the matter between:
MPUMALANGA
STEAM AND BOILER WORKS CC
..............................
Applicant
and
THE
MINISTER OF PUBLIC
WORKS
.........................................
First
Respondent
THE
CHAIRPERSON OF THE COMMITTEE THAT
ADJUDICATED
UPON TENDER PTO 08/012
.......................
Second
Respondent
THE
MINISTER OF CORRECTIONAL SERVICE
......................
Third
Respondent
TOKOLOGO
TECHNICAL ASSIGNMENTS CC
......................
Fourth
Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
MURPHY J
1. The applicant has made application
in terms of rule 53 seeking an order reviewing and setting aside the
decision of the second
respondent to award a tender to the fourth
respondent as well as the contract entered into between the first
respondent and the
fourth respondent flowing from the decision to
award the tender. It seeks a further order that the tender be
awarded to the applicant
and that the first respondent be ordered to
enter into a contract with the applicant for the execution of the
tender.
2. The applicant trades as a supplier
of mechanical infrastructure and the maintenance thereof. It has
considerable experience
working within the public sector and was the
previous supplier to the first respondent of the services forming the
subject of the
tender and contract presently in dispute. The first
respondent is the Minister of Public Works, the second respondent is
the Chairperson
of the committee that adjudicated the tender (“the
chairperson”), the third respondent is the Minister of
Correctional
Service and the fourth respondent is Tokologo Technical
Assignment CC (“Tokologo”) the successful bidder for the
tender.
3. The tender in question PTO/08012 is
in respect of repair and maintenance of electrical and mechanical
installations at Zonderwater
Prison. The previous tender which the
Minister of Public Works had awarded to the applicant expired in
January 2008. At that
time the department obtained quotations from
various contractors to continue the work at the prison pending the
award of a new
tender. The applicant’s quotation was accepted
and the applicant continued to provide the services until 12 May
2008.
4. During February 2008, the Minister
issued the tender in question. At closing six tenders were received.
A Bid Evaluation Committee
was established comprising several
members with varying appropriate expertise in engineering,
procurement and project management.
The bids were evaluated in
accordance with the preferential procurement policy framework and the
relevant procurement strategy.
Tokologo scored 97 points while the
applicant scored 87,20 points in accordance with the points system
and for that reason the
decision was taken to award the contract to
Tokologo.
5. The main grounds of review raised
by the applicant allege irrationality and unfairness by the Committee
in the allocation of
the points and thus the decision to award the
tender. It points to various alleged inconsistencies in the awarding
of points in
respect of previous similar project experience,
resources, the method statement and execution plan, the project
structure and statutory
compliance. The applicant places much
emphasis on the fact that its tender price was the lowest of all the
bids and was R1,6 million
lower than that of Tokologo. The
applicant’s price was R41 231 493, while Tokologo’s was
R42 872 051. The respondents
argue that price is not the sole
criterion and point out that the applicant scored less points for
functionality and in respect
of historically disadvantaged preference
points. For reasons that will become immediately apparent it is no
longer necessary to
determine the issues of rationality and fairness.
The dispute between the parties now stands to be decided on a
different and narrower
basis.
6. It is necessary first to briefly
outline the history of the litigation. Shortly after the tender was
awarded the applicant applied
on an urgent basis for an order
preserving the
status quo
.
Bertelsmann J handed down an order on 16 May 2008 interdicting the
other respondents, pending adjudication of the review application,
from handing over the site to Tokologo or allowing it to execute the
contract flowing from the award of the tender, and ordering
the
respondents to preserve the
status
quo
as it was on 24 April
2008. Thereafter there were a number of delays in filing papers with
the main application being postponed
on two prior occasions. The
matter was eventually set down and enrolled for hearing before me on
25 August 2010.
7. The issue upon which the matter is
to be resolved relates to Tokologo’s Tax Clearance Certificate.
Regulation 16 of the
Regulations made in terms of
section 5
of the
Preferential Procurement Policy Framework Act 5 of 2000
provides:
“
No contract may be
awarded to a person who has failed to submit an original Tax
Clearance Certificate from the South African Revenue
Service (“SARS”)
certifying the taxes of that person to be in order or that suitable
arrangements have been made with
SARS.”
It has accordingly become practice for
invitations to tender emanating from the public sector to require
tenderers to submit such
certificates. The certificate included in
the papers in this matter and forming part of the tender
documentation of the applicant
is under a SARS letterhead and is
headed: “Tax Clearance Certificate-Tender” and confirms
compliance with the relevant
tax legislation. The certificate is
stated to be valid for a period of one year and provides:
“Verification of this certificate
can be done at any SARS
Revenue office nationwide”.
8. In paragraph 53 of the applicant’s
supplementary affidavit filed in terms of
rule 53(4)
, Mr Nkosinathi
Nkwanyana, the chairman of the board of the group of companies of
which the applicant is a member, and the holder
of a 50 percent
members interest in the applicant, made the following averment
“
After reasons had
been furnished Mr Arnold Retief of Applicant phoned the toll free
number which appears on Fourth Respondent’s
certificate …
He spoke to a female employer at SARS who informed him that the
certificate is not genuine as the tax clearance
certificate number
does not appear on their system. According to her an investigation
is in progress according to a note in their
system. SARS was not
willing to provide an affidavit but Second and Fourth Respondent are
invited to prove the contrary.”
Tokologo’s Tax Clearance
Certificate is at page 2 of its tender documentation forming part of
Bundle B, being the record of
decision filed by the Committee in
these proceedings. It is identical in all
pro
forma
respects to the one
filed by the applicant and bears the Tax Clearance Certificate Number
0083/1/2007/0000079845. The approval
date is recorded as 30 November
2007 and the expiry date is recorded as 29 November 2008.
10. The Committee’s reasons are
dated 19 May 2008 and the applicant’s supplementary affidavit
was deposed to on 29 August
2008. Accordingly, the phone call made
by Mr Retief (confirmed in a confirmatory affidavit) would have been
made at some time
during that period, being within the validity
period recorded on the certificate.
11. Tokologo has not filed any
answering papers in the application. The other respondents only
filed an answering affidavit more
than a year after the applicant
filed its supplementary affidavit. Because a notice of opposition
had been filed, the matter was
originally set down on the opposed
roll, despite no apparent opposition, for the week commencing 4 May
2009. On Thursday 30 April
2009, one court day before the set down
date, Tokologo served a notice of withdrawal of its intention to
oppose, without any accompanying
explanation, and indicating that it
would abide the decision of the court. On 8 May 2009 Potterill AJ
(as she then was) granted
the first and second respondents’
application for a postponement and awarded punitive costs.
12. The answering affidavit filed in
the name of the first and second respondents is deposed to by Mr
Brian Ndanganeni, the second
respondent. He deals with the averment
regarding the alleged false Tax Clearance Certificate in paragraph 91
of his affidavit,
as follows:
“
I do not have
knowledge of the contents of this paragraph. I therefore cannot
admit or deny same.”
The answer is somewhat disconcerting
in the light of the requirements of
Regulation 16.
0i
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13. In paragraph 30 of the replying
affidavit deposed to on 26 October 2009 the applicant took issue with
the attitude of the second
respondent, pointing out that no bidder’s
bid may be accepted if it does not submit a valid Tax Clearance
Certificate and
that the bid documentation quite evidently regards
the requirement as paramount. It contended that the respondents
should have
verified the validity (or not) of the bidders’
certificates, more specifically and importantly at least the one
submitted
by the preferred bidder before the tender is finally
awarded. It added that the respondents had more than sufficient time
to verify
the validity of the certificate and challenged the
respondents to verify the validity of the certificate before the
matter was
heard. It reserved the right to file a supplementary
affidavit dealing further with the issue.
14. The applicant filed a
supplementary affidavit about 10 days later on 4 November 2009. The
affidavit discloses that the applicant’s
attorney addressed a
letter to the Chief Information Officer of SARS in which it enclosed
a copy of Tokologo’s Tax Clearance
Certificate and requested
SARS to advise whether the certificate was valid or not. The Deputy
Information Officer for SARS, M
Milner, responded promptly on 28
October 2009. The second last paragraph of the letter reads:
“
Your request for
confirmation that the Tax Clearance Certificate is valid will fall
into this category of automatically available
(information to the
public) as it is clearly stated on these Certificates when issued by
SARS that “Verification of this
Certificate can be done at any
SARS Revenue Office nationwide”.
In
answer to your request it is hereby confirmed that Certificate No
0083/1/2007/0000079845 is not valid”
(my
emphasis).
On the basis of this letter, the
applicant submitted in its supplementary replying affidavit that the
second respondent had a legal
duty to verify the validity of the
certificate and that Tokologo’s bid should have been
disqualified forthwith. It submitted
accordingly that the award of
the tender should be set aside for that reason alone.
15. Remarkably, despite having had
almost a year to do so, before the matter was set down before me, the
respondents failed to file
a supplementary affidavit answering the
issues raised, or disputing the alleged invalidity.
16. In his heads of argument filed on
3 August 2010, Mr
Erasmus
,
who appeared for the applicant, argued that the fact that the
successful tenderer had submitted a false certificate ought to
dispose of the application. As he put it: “to award a tender
in those circumstances runs contrary to the whole spirit of
a free
market consisting of law abiding citizens”. Counsel for the
respondents, not entirely without legitimacy, responded
that the
letter from SARS was ambiguous. The letter from SARS does not state
whether the certificate was invalid at the date of
the closing of the
tender or at the date at which it expired. The expiry date of the
certificate is 29 November 2008 and the written
response by SARS was
written almost a year later on 28 October 2009. It was possible
therefore, according to counsel, that the
reason the SARS official
stated the certificate was invalid was because it had expired. He
also argued that the legislation did
not place a duty on the
Committee to verify a tenderer’s Tax Clearance Certificate,
which it was entitled to accept at face
value. I cannot accept that
submission. Good practice alone would require the Committee to give
effective observance to
Regulation 16
before awarding a tender,
especially in view of the certificate itself inviting interested
parties to seek verification, requiring
only that a member of the
Committee make a phone call to SARS for that purpose.
17. Having read the papers and heads
of argument, I was concerned that the respondents had not dealt
sufficiently with what in effect
amounted to an allegation of
possible fraud by Tokologo. For that reason I issued a directive to
counsel on 20 August 2010 directing
them to file supplementary heads
of argument prior to the hearing dealing with (i) whether the
hearsay evidence regarding the
status of the certificate ought to be
admitted in the interests of justice; (ii) whether adverse inferences
might be drawn from
both Tokologo’s withdrawal of opposition
and the failure of the respondents to take up the invitation to
investigate the
matter; and (iii) whether such evidence would be
sufficient for the court to conclude that a false certificate had
been fraudulently
submitted.
18. Both counsel submitted full and
well-reasoned supplementary heads of argument. The respondents also
filed a supplementary answering
affidavit deposed to by Mr Stephen
Ralekwa, Director; Legal Services of the Department of Public Works,
who is an admitted attorney.
He explained that the file had
originally been handled in the department by a colleague, meaning
that he has only recently become
involved with the matter. Prior to
my issuing the directive and in anticipation of the hearing he had
already enquired of SARS
about the certificate. On 17 August 2010 he
received an email from Ms Wilna Turnbull, Legal Manager, Gauteng
North which reads:
“
I confirm that
SARS issued the TCC which you inquired about. I am not at liberty to
divulge information regarding the tax affairs
of the Taxpayer, but I
confirm that the Tax Clearance Certificate was issued by the SARS
office at Rustenburg. All prescribed
procedures were followed during
the issuing of the Tax Clearance Certificate.”
19. Subsequent to my issuing the
directive, Mr Ralekwa, on 23 August 2010 contacted the Rustenburg
office of SARS. He then received
an email from the Branch Manager,
Mr Daniel Modise which reads:
“
The Tax Clearance
Certificate that you have sent to me this afternoon, has expired or
currently inactive on our records (sic) -
it was issued from 30
th
of November 2007 to the 29
th
of November 2008. I have attached the new Tax Clearance Certificate
that is issued on the 10
th
of June 2010 and valid till the 10
th
of June 2011.”
20. In his supplementary heads Mr
Mojapelo
,
counsel for the respondents submitted that because at the time of the
adjudication of the bids the certificate was not placed
in issue it
was reasonable for the Committee not to have sought verification. He
conceded though that the respondents might have
acted more
conscientiously when the issue was raised in the supplementary
affidavit in August 2008. Be that as it may, the respondents’
later investigations left them satisfied that the certificate was
valid. No doubt they took some comfort from the fact that SARS
had
as recently as in June 2010 issued Tokologo with another certificate.
It was unlikely to have done that had it been aware
of any prior
fraud or irregularity. Mr
Mojapelo
submitted finally that given the conflicting versions about the
certificate, the version of the respondents had to be accepted.
21. As fate would have it, a few days
before the hearing, the Minister of Public Works, Mr Geoff Doidge,
expressed himself through
the media as being concerned about
allegations of irregularities in tendering, especially in the
Department of Correctional Services,
and gave an indication of his
intention to act swiftly and firmly against such practices. At the
hearing, I heard argument on
all the issues and reserved judgment.
During argument, taking judicial notice of what the Minister had
said, I intimated to counsel
that it was likely that the Minister, as
first respondent in this matter, might have preferred a more thorough
investigation of
the validity of the certificate at an earlier stage.
Mr
Mojapelo
readily agreed and left me with the impression that he intended to
draw the issue to the attention of senior officials in the
department. Being the conscientious counsel I know him to be, as
appears from what follows he clearly did so.
22. In his endeavours to get to the
bottom of the issue, Mr Gerhardt Ploos van Amstel, the applicant’s
attorney, continued
to engage with SARS before and after the hearing.
In two emails he received from Mr Milner of SARS on 26 and 27 August
2010 he
was informed that the certificate “does not exist on
the system” and that “all indications are that the
certificate
was not issued by SARS and that any statement made by Ms
Turnbull and Mr Letanke were based on what they were told and not
what
they personally checked”. Further discussions took place
between the attorney and Mr Mark Kingon, Group Executive of SARS
which culminated in the latter sending a letter to the attorneys for
the applicant on 27 August 2010 in which he stated:
“
The Tax Clearance
Certificate which is the subject of your request was not issued by
the South African Revenue Service.”
23. Having received this information
the applicant subsequent to the hearing filed a notice in terms of
rule 6(5)(e)
making application for an order that the further
evidence contained in the affidavit accompanying the notice be
allowed. There
is no opposition to the application and it is
accordingly granted. The affidavit details the interactions I have
just described
and the deponent requests that the court accept the
letter of Mr Kingon (Annexure SR10 to the affidavit) as the best
evidence available
or alternatively that the question be referred to
oral evidence and that the relevant official of SARS be called to
testify regarding
the validity of the certificate. In addition, it
was submitted that the approach of the respondents is indicative of
the carelessness
with which the matter was dealt with, contrary to
government policy, and that such would justify the grant of a
punitive costs
award on the scale as between attorney and client in
the event that the tender and contracts are set aside on the grounds
of contravening
Regulation 16.
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24. As it turns out, a referral to
oral evidence will not be necessary. In early September, counsel
approached me in chambers and
requested me to delay handing down
judgment. In view of information that had come to light the
respondents wished to reconsider
their position. On 16 September
2010 counsel for the respondents filed supplementary heads of
argument to which are annexed two
letters, being correspondence
between Mr SXA Dongwana, the Director General, Department of Public
Works and Mr Oupa Magashula,
the Commissioner of SARS. The
applicant, given the content of the correspondence, can have no
objection to the admission of the
letters as evidence and all parties
no doubt accept the content thereof to be true and correct. In his
letter dated 6 September
2010, Mr Dongwana set out the background,
the prior correspondence and the fact that the issue had been raised
in the ligitagion
and requested clarification on whether:
“
1. Tokologo
Technical Assignments CC’s Tax Clearance Certificate number
0083/1/2007/0000079845 was valid during the period
30 November 2007
to 29 November 2008;
2. The tax clearance
certificate furnished by the said entity for the purposes of the
tender was valid; and that
3. The tax affairs of
Tokologo Technical Assignment CC were in order at the time referred
to in 1 above.”
25. Mr Mgashula responded to the
letter immediately on the same day. The relevant part of the letter
reads:
“
As correctly
stated by you in your letter, conflicting statements have
unfortunately been made regarding the validity or not of
the Tax
Clearance Certificate of the above-mentioned CC.
SARS was recently
approached regarding the validity of the Tax Clearance Certificate
and it was evident that incorrect information
had been given to your
office previously regarding its validity.
SARS has no record of the
certificate being issued and it would appear on closer inspection of
the copy of the certificate in my
possession that it has various
aspects that differ from the official certificates issued by SARS.
Unfortunately due to
stringent secrecy provisions of tax legislation, I am unable to
provide further information regarding the tax
affairs of this or any
other taxpayer.
Further information can
only be made available with the consent of the taxpayer concerned or
by order of a competent court.”
26. On receipt of the letter, the
Minister of Public Works immediately accepted that his department had
been acting on apparently
incorrect information from SARS and that
the certificate submitted by Tokologo together with its tender was
not valid. As I read
Mr Magashula’s letter, the distinct
possibility exists that the false certificate was either fraudulently
obtained or a forgery.
27. Under the circumstances, the First
Respondent withdrew its opposition and consented to orders being made
in terms of prayers
2, 3 and 5 of the notice of motion, that is
orders setting aside the decision of the Second Respondent to award
the tender as well
as the contract, and to pay the costs of the
application. Nothing is said in the supplementary heads about the
position of the
second respondent. I imagine this is mere oversight,
and that he too, given the post he occupies, readily aligns himself
with
the position taken by the Minister. In terms of
section 6(2)(f)
of the
Promotion of Administrative Justice Act 3 of 2000
, a court has
the power to judicially review an administrative action which
contravenes a law (in this case
Regulation 16)
and may set it aside
on that ground in terms of
section 8(1)(c)
of that Act. It is trite
that the award of a tender is administrative action.
28. Two issues therefore remain in
dispute. Prayer 4 of the notice of motion seeks orders that the
tender be awarded to the applicant
and directing the first respondent
to enter into a contract with the applicant for the execution of the
tender. The respondents
are still opposed to this relief arguing
that the matter should be remitted to the Committee and for a fresh
tender process to
begin. The second issue is the question of costs.
The respondents have consented to costs on a party to party basis;
the applicant
seeks a punitive costs award.
29.
Section 8(1)(c)
of the
Promotion
of Administrative Justice Act 3 of 2000
governs the remedies in
proceedings for judicial review when the court sets aside
administrative action. The provision provides
that the court in
proceedings for judicial review may grant any order that is just and
equitable including orders setting aside
the administrative action
and -
“
(i) remitting the
matter for reconsideration by the administrator with or without
directions; or
(ii) in exceptional cases
-
(aa) substituting or
varying the administrative action or correcting a defect resulting
from the administrative action; or
(bb) directing the
administrator or any other party to the proceedings to pay
compensation.”
30. The substitution by the court of
its decision for that of the administrator can only occur in
exceptional cases, understood
typically to be the case when the
administrator has exhibited bias or gross incompetence; when remittal
will lead to a foregone
conclusion; where further delay is
unjustifiable and where the court is in as good a position as the
administrator to make a decision.
31. I have considered the various
submissions by the parties and in the final analysis I am not
persuaded that this is an exceptional
case justifying substitution.
Too much time has lapsed since the original tender invitation,
affecting questions of pricing and
the budgeting process in the
department. Moreover, there is now less than 6 months to run on the
tender, and it would be inappropriate
for the court to bind the
department to a tender for 3-4 years into the future and thereby
limit its options in the organisation
of its affairs. I am also not
persuaded on the limited evidence before me that had Tokologo been
excluded at the outset, for submitting
a false tax certificate, such
would automatically have resulted in the tender being awarded to the
applicant. In so far as there
may be indications of irregularity in
the evaluation and comparisons of the bids submitted by the applicant
and Tokologo, and I
make no finding in that regard, they appear to me
insufficient to infer bias or gross incompetence. Moreover, the
court is possessed
of insufficient information, in relation to all
the bids submitted and the ongoing execution of the works while this
review was
pending, to make an informed decision about the public
interest in awarding the tender. Justice will be done in this case
by simply
setting the tender aside and by giving a direction that
should another invitation to tender in respect of repair and
maintenance
of electrical and mechanical installations of Zonderwater
Prison be made, that it should be evaluated and adjudicated by
committees
comprised of persons other than those who were members of
the committees involved in the evaluation, adjudication and award of
tender PTO 08/012 which has been the subject of this application.
32. The only remaining question is the
question of costs. I agree with the applicants that the respondents
could and should have
acted when the applicant raised the possibility
of a false Tax Clearance Certificate in the supplementary affidavit
served upon
them in late August 2008. One can only commend the
actions of the Director General, Mr Dongwana and the Commissioner, Mr
Magashula
for the haste with which they acted to get the truthful
position before the court as soon as they were brought into the
picture.
But the Chairperson of the Committee and the officials in
the department should have acted with equal speed in August 2008.
Had
they done so, much of the litigation would have been avoided and
the contractual arrangement been resolved much earlier with less
wasted time and effort for all concerned.
33. The stance taken earlier by the
respondents that they were under no duty to investigate is worrying
and has no place in a constitutional
order that places a premium on
transparency, accountability and effective service delivery.
Regulation 15 of the Preferential
Procurement Regulation published
pursuant to section 5 of the Act provides:
“
(1) An organ of
state must, upon detecting that a preference in terms of the Act and
these Regulations has been obtained on a fraudulent
basis, or any
specified goals are not attained in the performance of the contract,
act against the person awarded the contract.
(2) An organ of state
may, in addition to any other remedy it may have against the person
contemplated in subregulation (1) -
(a) recover all costs,
losses or damages it has incurred or suffered as a result of that
person’s conduct;
(b) cancel the contract
and claim any damages which it has suffered as a result of having to
make less favourable arrangements due
to such cancellation;
(c) impose a financial
penalty more severe than the theoretical financial preference
associated with the claim which was made in
the tender; and
(d) restrict the
contractor, its shareholders and directors from obtaining business
from any organ of state for a period not exceeding
10 years.”
34. It is not possible to determine on
the evidence before me whether Tokologo obtained a preference in
terms of the Act on a fraudulent
basis or not. If it has done, then
the Minister will be able to recover all costs incurred as a result
of its conduct. The Minister
and the relevant officials will need to
investigate whether it is feasible to act in terms of Regulation
15(2). But for present
purposes I must conclude that the Minister
and officials should have acted to investigate the possibility of a
false certificate
and non-compliance with Regulation 16 as soon as it
was raised in the supplementary affidavit. In
Hidro-Tech
Systems (Pty) Ltd v City of Cape Town and others
2010
(1) SA 483
(C) at para 65-66, it was held that the use of the
participle “detecting” in Regulation 15 was intended to
cast a wide
net “precisely so as to ensure that an organ of
state be proactive in responding to the reasonable possibility that a
preference
has been fraudulently [obtained], or that a specific goal
of its preferential policy, in terms of which the contract was
awarded,
is not being pursued”. The duty to act on an
allegation of fraud does not require conclusive proof on the
conclusion of
an investigation. On appeal in
Viking
Pony Africa Pumps (Pty) Ltd t/a Tricom Africa and Another v
Hidro-Tech Systems (Pty) Ltd
[2010]
4 All SA 80
(SCA) at para 31, Heher JA held that the duty to act
arises on the fraudulent preference being “detected” and
elaborated
on the meaning of the term as follows:
“…
. because
“detect” connotes the discovery or awareness of a certain
state of affairs not previously known to the person
who so detects,
it would strain the meaning unduly to limit it to a conclusion
reached at the end of a process of investigation
or confirmation; in
everyday speech “detect” bears the sense of a provisional
or unilateral opinion as to the given
state (as in “I detect
hesitation in your voice”) which is open to contradiction
rather than carrying the force of
a final judgment on the matter.”
35. While the applicant was
principally motivated by its own interests, its conduct of this
litigation has been in the public good
and for the public benefit.
It would be unfair for it to be placed substantially out of pocket
because the state failed to act
earlier when it had a duty to do so.
A punitive costs award is accordingly justified.
36. The matter should not rest there.
As indicated, if there has indeed been fraud, the state may be
entitled to recover its costs,
and should do so. For that reason I
propose to refer this judgment to the Director of Public Prosecutions
with a request that
he institute an investigation into the
possibility of any crime having been committed with a view to
instituting a prosecution.
37. In the result, the following
orders are made:
i) The decision of the second
respondent to award tender contract PTO 08/012 to the fourth
respondent, Tekologo Technical Assignments
CC, is reviewed and set
aside.
ii) The contract entered into between
the first respondent flowing from the decision referred to in
paragraph (i) of this order
is set aside.
In the event that the first
respondent or the Department of Public Works invites tenders in
respect of repairs and maintenance
of the electrical and mechanical
installations of Zonderwater Prison in the future, it is ordered
that such be evaluated, adjudicated
and awarded by committees
comprised of persons other than those who were members of the
committees involved in the process resulting
in the award of the
tender contract to Tokologo Technical Assignments CC on 16 April
2008.
The
first respondent is ordered to pay the applicant's costs on the
scale as between attorney and client.
The
Registrar of this court is directed to serve a copy of this judgment
on:
a)
Mr Oupa Magashula, the Commissioner SARS;
b)
Mr SXA Dongwana, Director-General, Department of Public Works; and
c)
The Director of Public Prosecutions.
The
Director of Public Prosecutions is requested to investigate whether
any conduct on the part of the members and/or the employees
of
Tokologo Technical Assignments CC in relation to the submission,
evaluation and adjudication of its tender application in
respect of
contract PTO 08/012 constitutes criminal conduct warranting
prosecution.
JR
MURPHY
JUDGE
OF THE HIGH COURT
Date Heard: 25 August
2010
For the Applicant: Adv FJ
Erasmus
Instructed By: Van der
Merwe Du Toit Inc., Pretoria
For the Respondents: Adv
MM Mojapelo and Adv TR Masevhe
Instructed By: The State
Attorney, Pretoria