About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 136
|
|
De Sols Trading CC and Another v Government of South Africa and Others (13762/10) [2010] ZAGPPHC 136 (5 October 2010)
NOT
REPORTABLE
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
NORTH
GAUTENG
DIVISION,
PRETORIA
CASE
NUMBER: 13762/10
DATE:
5 October 2010
DE
SOLS TRADING CC (REG NO 2007/045376/23)
...........................
1
st
APPLICANT
ANITHA
DUBARAM
SINGH
.....................................................................
2
nd
APPLICANT
v
THE
GOVERNMENT OF SOUTH
AFRICA
..........................................
1
st
RESPONDENT
THE
MINISTER OF
DEFENCE
...............................................................
2
nd
RESPONDENT
THE
MINISTER OF
FINANCE
................................................................
3
rd
RESPONDENT
THE
CHAIR PERSON OF STATE TENDER BOARD
........................
4
th
RESPONDENT
THE
STATE TENDER
BOARD
..............................................................
5
th
RESPONDENT
THE
CHIEF DIRECTOR CONTRACT MANAGEMENT
.....................
6
th
RESPONDENT
NATIONAL
TREASURY
RSA
.................................................................
7
lh
RESPONDENT
Judgment:
MabuseJ
JUDGMENT
MABUSE
J
:
1.
The applicants sought confirmation of an interim order that had been
granted to them on 16 March 2010. On the said date, the
applicants
had sought, and were granted, the following interim order:
"1.1
Declaring that the First and Second Applicants are not listed on the
National Treasury's database as companies or persons
prohibited from
doing business with the Government
of
the Republic
of
South Africa and/or the public sector, alternatively on any
blacklists utilized within the system
of
the First to Sixth Respondents in prohibiting companies and/ or
persons from doing business with the Government
of
the Republic
of
South Africa;
1.2
In
the alternative to subparagraph 1 above
,
and
if
it is found that the First and/or Second Applicants is/are listed as
companies or persons prohibited from doing business with the
Government
of
the
Republic
of
South Africa, removing the names
of
the First and Second Applicants from such a list;
1.3
Declaring
that a certain contract bearing contract number B/ RAT/2/07/ 08 for
the supply
of
perishables in the Gauteng area, entered into by and between the
First Applicant and the Second Respondent has not been lawfully
cancelled by Second Respondent;
1.4
Declaring
that the First Applicant is entitled to specific performance in terms
of
the said contract;
1.5
Directing
the Second Respondent to reinstate the said contract with the First
Applicant with immediate
effect;
1.6
Directing
the Second and Third Respondents and such further Respondents as that
may oppose this application, to pay the
costs
of
this application on a scale as between attorney and client;
1.7
Reserving the costs
of
the urgent applicant for adjudication by the Trial Court at the
hearing
of
this matter."
In
prayer 1 the applicants had obtained the following order:
"That
a Rule Nisi do hereby issue returnable on 4 May 2010 when all the
interested parties must show cause as to why the order
I have read
about should not be made final."
This
application is opposed by the respondents.
2.
THE
PARTIES
2.1
The First Applicant is a close corporation, duly registered in terms
of the provisions of the Close Corporation statutes of
the Republic
of South Africa, and not in terms of the Company Laws of the Republic
of South Africa as alleged in the founding affidavit.
It conducts its
business at 206 Outeniqua Street, Unit 58 Val de Sol, Waterkloof Park
here in Pretoria. It is represented herein
by Anitha Dubaram Singh,
who has been duly authorised by a resolution dated 3 March 2010 to
proceed with an urgent application
against the respondents and in
addition to sign any affidavits in support of such application.
2.2
The Second Applicant is an adult business woman who resides currently
at 206 Outeniqua Street, Unit 58 Val de Sol, Waterkloof
Park,
Pretoria. According to the membership records in the companies office
of the application, the Second Applicant is the sole
member of the
First Applicant. It is also clear that the two applicants use one and
the same physical address for business, in
respect of the First
Applicant and for residential, in respect of the Second Applicant,
purposes.
3.
THE
RESPONDENTS
3.1
The Fourth Respondent is now defunct.
3.2
The Fifth Respondent is a juristic person established in terms of the
provisions of section 2 of the State Tender Board Act
No 68 of 1968
with its principal place of business located at Department of Finance
in Vermeulen Street, Pretoria.
3.3
The Sixth Respondent is THE CHIEF DIRECTOR: CONTRACT MANAGEMENT;
NATIONAL TREASURY; of this country whose offices are also located
at
240 Vermeulen Street, Pretoria.
The
principal legal representative of all the respondents in this
application is the State Attorney.
4.
BACKGROUND
4.1
The First Applicant was registered by the Second Applicant for the
purposes of serving as a vehicle through which the Second
Applicant
wished to conduct business. One of the purposes for establishing the
First Applicant was to successfully tender for tenders
issued by the
First Respondent.
4.2
On or about 4 July 2008 the Second Defendant invited tenders for
supply and delivery of wet rations to units of the Second Respondent
within the area of Pretoria. The estimated value of the contract
involved in the said tender was R24 505 212,80. After all the
processes had been followed, the tender was awarded to the First
Applicant on 29 January 2009. The tender document comprised, among
others, of Generally Bid Conditions, General Conditions of Contract
and Declaration of Bidders' Past Supply Chain Management Practices
which questionnaire had to be completed and submitted with
the
bid
and
which
the
Second Applicant completed and
submitted. In terms of the Declaration of the Bidders' Past Supply
Chain Management Practices, the applicants were required to
answer
the following question:
"Is
the bidder or any
of
its directors listed on the National Treasury Database as companies
or persons prohibited from doing business with the Public Sector?"
4.3
In the event that a bidder's name appeared on the aforesaid list, the
prospective bidder was required to furnish further details.
When the
Second Applicant completed the bid documents in submitting the
tender, she knowingly and wilfully failed to disclose that
she was
one of the directors and/or persons listed in the National Treasury
Database. The declaration required a certification
by the Second
Applicant that the information she had furnished therein was true and
correct and that in the event of the information
being false, the
contract entered into could be cancelled. Subsequent to the awarding
of the tender to the First Applicant, the
Second Respondent was
advised that the name of the Second Applicant being the sole member
of the First Applicant, appeared on the
register of suppliers
restricted from doing business with the public sector until 19
November 2013. On 21 July 2008 when she signed
the First Applicant's
bid documents the Second Applicant had according to the records of
the Sixth Respondent, been restricted
for a period of 10 years from
doing any business with the public sector. On 28 April 2009 the
Second Respondent directed a letter
to the Second Applicant in which
he pointed out that the Second Respondent had received written
confirmation from the Sixth Respondent
that she, as the sole member
of the First Applicant appeared on the list of service providers who
had be restricted from doing
any business with the Government Experts
of the Republic of South Africa, for the period November 2003 to
November 2013. The bid
documents and more specifically annexure SBS8
made provision for bidders to declare their past supply chain
management practices
including the blacklisting on the national
Treasury database as persons prohibited from doing business with the
public sector.
The Second Applicant had made a misinterpretation by
not divulging her status in the tender document and that in
accordance with
the Treasury Regulation 16A9 the Second Respondent's
accounting officer was obliged to terminate the contract. In the same
letter
he requested the First Applicant to submit written reasons why
the Second Respondent should not terminate the contract. It was also
pointed out that failure to furnish such reasons within (14) fourteen
days would be regarded as sufficient proof of absence of
a reasonable
explanation.
4.4
When it was brought to the notice of the Second Applicant that she
failed to make the above disclosure, her attorneys responded
by way
of a letter to the effect that the Second Applicant was never
formally informed by National Treasury that she had been blacklisted
as she had never received any notification. According to the said
letter she doubted the existence of such a fact. The said letter
urged the Second Respondent to carefully reconsider all aspects
contained in the letter itself, such as the fact that whilst being
employed as a debtor's clerk with a firm known as "Reef Meat
many years ago, she was told, after her departure from that
particular firm, by her then employer that a company registered as
Touch Tone Trading 62 (Pty) Ltd was placed on a blacklist by
the
Government and that her name was also mentioned; that she was never
employed by Touch Tone Trading 62 (Pty) Ltd but merely
assisted,
during the period in which she was attached to the said firm with the
debtors' book whilst she was employed at Reef Meat;
that Touch Tone
had launched a review application of the blacklisting and that the
Second Applicant as a co-applicant and had signed
a confirmatory
affidavit because apparently her name was on the same blacklist,
notwithstanding the fact that she had never been
employed by Touch
Tone: and that she had assumed that the said review application was
successful as she had nothing at al to do
with it. As the Second
Applicant had indicated that she was reviewing a decision of the
Second Respondent to cancel her agreement,
the Second Respondent
resolved on 30 July 2009 that the First Applicant could continue
supplying the Second Respondent for a period
of three months while
the review process was still in progress. On 7 August 2009 the Second
Respondent wrote a letter to the legal
representatives of the
Applicants and requested them to furnish them with proof of the legal
process in terms of which it was reviewing
the decision of the Second
Respondent to cancel the agreement. The response from the Applicant's
legal representative was only
received on 29 September 2009. The
Applicant's legal representative confirmed in the communication that
the litigation was proceeding
and, proved the launch of the review
application furnished by the Second Respondent with a copy of the
notice of set down which
showed that the matter had been set down for
hearing on 15 October 2009. On 15 October 2009 an order was granted
by this court
in terms of which the Applicant's review was removed
from the roll and the Applicants were ordered to pay the wasted
costs. On
29 October 2009 the Departmental Commercial Procurement
Board decided to cancel the contract between the First Applicant and
the
Second Respondent with immediate effect.
4.5
The decision of the Second Respondent to cancel the agreement on 29
October 2009 was communicated to the First Applicant in
a letter
dated 3 November 2009 which read as follows:
"1.
Take note that this contract is cancelled with
effect
from 4 November 2009. This implies that you do not continue after
this date with any service whatsoever to any points
of
supply involved.
2.
Submit all your invoices as soon as possible for the settlement
of
your
payment through the normal DOD channel for supplies that
had
been completed.
3.
Your points
of
supply have been informed accordingly.
Yours
Faithfully Secretary
of
Defence Director General"
4.6
The parties' contract was reinstated on 5 November 2009 after the
Applicant's legal representatives had written a long letter
to the
Second Respondent, once again relying on the fact that the Second
Applicant had been blacklisted without being notified
and without
proper procedures having been followed, and stating that that kind of
decision gave rise to the consideration of the
cancellation of the
agreement. On 5 November 2009 the Respondent had taken a decision to
reinstate the agreement with immediate
effect and the Applicants were
notified in a letter dated 9 November 2009 by the Second Respondent.
The reinstatement of the agreement
between the Respondent and the
First Applicant was done pending the progress on the outcome of the
litigation regarding the blacklisting.
On 25 February 2010 it was
decided that the contract should be cancelled at the end of a period
of 3 months, reckoned from 5 November
2009. In a letter dated 26
February 2010 addressed to the First Applicant by one Colonel
Malaudzi of the Commanding Procurement
Service Centre ("the
CPSC"), which is attached to the Applicant's papers and marked
annexure C10, the First Applicant
was informed, among others, that:
"3.
It is now 3 months since the contract was reinstated and yet the
litigation between you and National Treasury has not
been finalised
or is nowhere near finalisation. In fact, we have been made aware
that you have not taken any steps to either enrol
the matter or
expedite its enrolment.
4.
You are therefore informed that the Department cannot continue to
carry this risk indefinitely and to act outside the regulatory
framework that governs the state tenders as prescribed by the
National Treasury. As such the Department, through its DCPB has
decided to cancel the contract with effect from 1 March 2010."
It
is this letter of 26 February 2010 from the Second Respondent that
triggered this application.
5.
The applicants holds the view that the cancellation of the agreement
by the Second Respondent on 26 February 2010 was unlawful
on the
basis that the Second Applicant was not informed by the Second
Respondent or any other person for that matter that she had
been
blacklisted. On the other hand the Second Respondent is adamant that
the agreement was lawfully cancelled. In my view the
battlefield
between the parties is whether in completing the bid documents of the
first application on 21 July 2008 the Second
Applicant knowingly
failed to disclose that she had been blacklisted. The question is not
whether or not she had been informed
of the blacklisting bur whether
or not she was on the blacklist, if so, whether or not she was aware
of the fact of the blacklisting.
6.
It is common cause between the parties, and I agree with the
submission made by Mr. Tokota, that the First Applicant did not,
as
at the date on which the Second Applicant completed its bid
documents, appear on the blacklist of the National Treasury. It
is
common cause that the Second Applicant has been on the black list
since 20 November 2003. This constitute the primary reason
why
counsel for the Second Respondent argued that it is incompetent for
the Applicants to seek the order set out in paragraph 1.1
of their
notice of motion. I will deal with this point later in this judgment.
7.
According to the Second Applicant, the cornerstone of the Applicant's
case is that: (a) she in particular, had not been advised
that she
had been blacklisted; (b) she doubted the existence of such a
blacklisting and was unwavering in her believe that because
she had
not been formally notified of her blacklisting, she could therefore
complete the First Applicant's bid documents in anyway
she wished;
(c) that she had been inappropriately placed on the blacklist; and
finally, the Second Respondent decided on the basis
of the wrong
information and in that manner arrived at a wrong decision to cancel
the contract.
8.
I hasten to make the following findings that:
1.
The National Treasury took a decision to blacklist the Second
Applicant on 20 November 2003;
2.
The decision to blacklist the Second Applicant was communicated to
her in writing in the letter dated 11 June 2004, which letter
was
addressed to Touch Tone Trading 62 (Pty) Ltd; at which point the
First Applicant had not been floated.
3.
The Second Applicant knew or should have known that she personally
had been blacklisted by the National Treasury;
4.
When she completed the First Applicant's bid documents, she knowingly
and wrongfully failed to disclose that she had been blacklisted;
5.
She was less than candidate when in her founding affidavit she found
common cause with the contents of the letter her legal
representatives had written in which they indicated that she never
was employed by Touch Tone.
I
make these findings on the following bases:
A
letter dated 11 June 2004 from the Chief Director, Contract
Management to Touch Tone Trading 62 (Pty) Ltd. at PO Box 4936,
Pretoria
states as follows:
"ATTENTION:
SHOBANA SARJOO
The
State Tender Board on 20 November 2003 ruled that your company, Touch
Tone Trading 62 (Pty) Ltd. and it's associated members
listed below
be restricted for a period
of
10 years to do business with the Government
of
South Africa;
1.
Shobana
Dubaram Sarjoo
2.
Ralph
Garth Sarjoo
3.
Anitha
Dubaram Singh"
Several
other people's names were also listed.
9.
Although this letter was not directly addressed to her, it was not
directly addressed to Shobana Dubaram Sarjoo and Ralph Garth
Sarjoo
either. These two names I have just mentioned are names, just like
the other names I have not mentioned by reason of the
fact that they
are of no use to this matter, in that list just like the Second
Applicant's name. Considering that she was in the
employ of the said
Touch Tone as I found or somehow connected with Touch Tone as she
claimed, there is in my view an inescapable
conclusion that in
whatever capacity she related to Touch Tone at the time she was
informed about her blacklisting. In her founding
affidavit, to be
specific in paragraph 18 thereof, she stated that Shobana Dubaram
Sarjoo is her sister and that her sister was
married to Ralph Garth
Sarjoo, the sole director and sole shareholder of Touch Tone Trading
62 (Pty) Ltd. In the premises, it is
highly unlikely that, having
received the said letter, neither of them would have informed her.
10.
She is adamant in her replying affidavit that she was not aware that
she had been blacklisted. The first paragraph of a letter
dated 18
December 2002 which the Second Respondent had written to the
Department of National Treasury states as follows:
"As
per previous letters faxed to you, I urgently appeal to you for
assistance concerning the name, my name being blacklisted.
I have on
several occasions called you, called your office as well but I am
always been informed that you are not available. Please
note this
matter has come as a shock to me as I was never informed by your
department that there was a problem with me and that
I was going to
be blacklisted.. As I have discussed telephonically with your
secretary most
of
the
staff
that was employed for the company concerned have also been
blacklisted and this ranges from the general cleaner to the
receptionist."
11.
Although this letter was dated 18 December 2002, in fact it has been
so confirmed, was received by the National Treasury on
18 December
2008, a little over 5 months after she deposited the First
Applicant's bid papers. She has not dealt with this letter
in her
replying affidavit, especially why the letter is dated 18 December
2002 which is obviously more than a year before the decision
to
blacklist her or stake. She does not deal with the fact that in the
said letter she was already dealing with her blacklisting
nor does
she deal with the reason why it took so many years for her letter to
reach the treasury.
12.
The Second Applicant, as
I
found
earlier, was not candid with the court. In both her founding and
replying affidavits she denied on time without number that
she was
employed by Touch Tone. She admits that she deposed to an affidavit
in which she said that she was at the relevant time
employed by Touch
Tone but denied that it was true. I wish to point out that the said
affidavit related to
another
matter with case number
33443/04,
in
which the
First
Applicant was Touch Tone and the Second Applicant in this matter was
in that other matter the Fourth Applicant. The purpose
of the said
application was to review and set aside the very blacklisting which
is now the subject matter of the current application.
The Second
Applicant cannot now pretend that she did not know what that other
matter involved and that she was also affected by
the blacklisting
the review was challenging.
14.
Accordingly
i
find
that the Second Applicant's failure to disclose the fact that she had
been blacklisted had induced the Second Respondent to
enter into the
contract with the First Applicant. Had the Second Applicant made it
known to the Second Respondent that she is a
member of the First
Applicant and that she in particular had been prohibited from doing
business with the Government, the Second
Respondent would not had
entered into the contract with the First Applicant. It is for that
reason that on 1 March 2010 the Department
finally cancelled
agreement with the First Applicant because it was acting outside the
regulatory that Govern State Tenders as
prescribed by the National
Treasury.
15.
There are other grounds on the basis of which the Second Respondent
was entitled to cancel the agreement concluded between it
and the
First Applicant. For instance Regulation 16A 9.1 (f) provides as
follows:
"The
accounting
officer
or accounting authority must cancel a contract to a supplier
of
goods or services -
if)
If
the supplier committed any corrupt or fraudulent act during the
biding process or the execution
of
that contract."
16.
When the Second Applicant tendered on behalf of the Applicant, the
tender was subject to the General Bid Conditions as well
as General
Conditions of Contract. Paragraph 20(b) of the General Bid Conditions
states that:
"BIDDERS
INCORRECT
INFORMATION
:
Where
a contract has been awarded on the strength
of
information furnished by the bidder, which,
after
the conclusion
of
the relevant agreement, is proved to have been incorrect, the
Department may, in addition to any other legal remedy it may have
cancel the agreement..."
17.
Furthermore paragraph 23.1(c) of the General Conditions of Contract
provide for termination for the default and reads as follows:
"The
purchaser, without prejudice to any other remedy for breach
of
contract,
by written notice
of
default sent to the supplier, may terminate this contract in whole or
in part:
(c)
If
the supply in the judgment
of
the purchaser, has engaged in corrupt or fraudulent practice in
competing for or in executing the contract"
18.
Accordingly the Department was acting within its rights when it
cancelled the contract. See
Debtor
Colour International (Pty) Ltd v Intermarket (Pty) Ltd. 2001(2) SA
284 (SCA) F-G.
See
also
Park
Ltd v TV and Radio Guarantee Company (Pty) Ltd 1985(4) SA 805 (A) 832
CD.
19.
It will appear that the application, particularly with regard to
paragraph 1.1 of the notice of motion is fraud with problems.
The
applicants seek a declaratory order that both of them are not listed
on the National Treasury Database as companies or persons
respectively
prohibited from doing business with the Government
of the Republic of South Africa. I touched on this point earlier when
I dealt very briefly though, with Mr. Tokota's contention.
The major
problem with this declaratory order that the Applicants seek regards
the competency of this Court to grant such an order.
The competency
lies mainly in the fact that, firstly, the First Applicant is not
blacklisted and secondly it is a fact that the
Second Applicant is on
the blacklist of the Sixth Respondent. Accordingly neither of the
Applicants is interested in an existing
right because the Applicants
want confirmation of a situation that already exists.
20.
It is also not competent for this Court to grant the two Applicants
alternative relief that they seek in terms of clause 1.1
of their
notice of motion because firstly, and as I already have indicated
above, the First Applicant is not on the blacklist and
consequently
its name cannot be removed from the blacklist of the Sixth
Respondent. Secondly it is a fact that the Second Applicant
is on the
blacklist of the Sixth Respondent and she has not made out a clear
right entitling her to the removal of her name from
the Sixth
Respondent's blacklist.
21.
The Second Respondent seems to rely heavily on, and is obsessed with
the argument raised in the heads of argument for the Respondents
in
the review application that the reason to blacklist her has not been
communicated to her and therefore did not constitute administrative
action capable of being reviewed. In the Third and Sixth Respondent's
duplicating affidavit which was deposed to by Ndleleni Willie
Mathebula ("Mathebula"), the Third and Sixth Respondents
hold the view that the Second Applicant is misleading if regard
is
had to her founding affidavit in which he had stated that, while she
was employed as debtors' clerk with the firm known as Reef
Meat many
years ago she was told by her then employer that a company registered
as Touch Tone Trading 62
(Pty)
Ltd. was placed on a blacklist by the Government and that
her name was also mentioned. It will be recalled that she denied in
the said paragraph that she was ever employed by Touch Tone
Trading
(Pty) Ltd. ("Touch Tone") and merely assisted them with
their debtors' book at a certain point in time. What
is important
however with the contents of this paragraph is that it has become
quite clear that the second applicant became aware
of the fact that
she had been blacklisted way back when she was informed by her
employer that she was on the blacklist together
with Touch Tone
Trading 62 (Pty) Ltd. which decision she became aware of before she
signed the confirmatory affidavits apply for
the review thereof in
December 2004. It is correct that the mere fact that the Second
Applicant had been informed that her name
was on the blacklist
imposed a duty on her to investigate the circumstances under which
she had been blacklisted.
22.
I found it to be disingenuous for the Second Applicant to rely on the
heads of argument for the Respondent in the review application.
It is
important to know that a party must make his case in the founding
affidavit and not in arguments. Arguments are merely intended
to
influence the Court to decide in a particular way, they are not
themselves a party's case. The Third and Sixth Respondent contend
that there are two conflicting interests in this matter involving two
separate departments. As far as the Second Respondent are
concerned
the interest therein concerned the cancellation of the contract in
which the Third and Sixth Respondents had no interest
whatsoever on
the one hand, while on the other hand the Third and Sixth Respondents
had to defend a decision which was taken in
2003 by the erstwhile
State Tender Board which fell within the ambit of the Respondents and
that had nothing to do with the Second
Respondent.
23.
I fully agree with counsel for the Second Respondent that as far as
the declarations and the order sought regarding the cancellation
and
reinstatement of the contract are concerned, the cause of the
listing of the Second Applicant's name is actually irrelevant. It is
the fact that she is listed, her knowledge of the listing
and her
failure to disclose it in her bid papers that are relevant.
Accordingly the Second, Third and Sixth Respondents found common
cause in that the Second Applicant is not a person interested in an
existing right and issue at stake with regard to her blacklisting
is
purely academic. According to the Second, Third and Sixth Respondents
there is another reason why this Court should decline
to grant the
Applicants the declaratory relief they seek. Firstly the question is
whether the Second Applicant is a person interested
in an existing
right, whether such a question can be answered in the affirmative.
Secondly the next question is whether the issue
is one with regard to
which the Court should exercise its discretionary power to make such
an order. In this regard a number of
factors come into play such as
the availability of another remedy, considerations of justice,
convenience and public policy and
whether the matter concerns events
that occurred in the past.
24.
It has already been stated that the Second Applicant together with
other Applicants had on 17 December 2004 issued review proceedings
in
which proceedings she was the Fourth Applicant in which the Fifth and
the Sixth Respondents were cited. In that application
the Applicants
(including the Second Applicant) sought an order reviewing and
setting aside the decision of the State Tender Board
to blacklist,
alternatively, restrict the Second Applicant from tendering for
contracts or otherwise doing business with the Government.
That
review application has not been finalised and according to the
information that this Court obtained from the parties, is still
pending before this Court. Although the Second Applicant has raised
the issue that such a review may be withdrawn because of the
present
application, it is still available to her to persue her remedies.
Should the Second Applicant achieve
such
with
the
review,
that
would
result
in the declaration of the decision to blacklist her nul and void and
consequently her name would have to be expunged from
the database of
the blacklisted persons in the National Treasury Register.
25.
Counsel for the Third and Sixth Respondent has argued that the Second
Applicant was at all material times aware of her placement
on the
blacklisted persons since December 2004 and notwithstanding her
knowledge of the facts of the blacklisting she has inordinately
delayed in bringing of this application to the extent that the State
Tender Board that took the decision is now defunct. In the
result the
Third and Sixth Respondents are now compelled to take responsibility
for the actions or decisions of the now defunct
State Tender Board.
It was argued that the declaratory order sought by the Applicants
concerns the events of the past. Relying
on the authority of
Naptosa
v Minister of Education, Western Cape
2001 (2) SA 112
(c) at p. 126
E-G
counsel
for the Third and Sixth Respondents argued that a lower Court have
since recognised the rule against unreasonable delay
even in matters
involving not only reviews but also relating to this declaratory
orders and interdicts. In the aforementioned authority
the Court
stated as follows:
"I
consider that the substantial delay in bringing these proceedings is
another reason for exercising our discretion against the
grant
of a declaratory order
.
It
is well established law that
undue
delay may be taken into account in exercising a discretion as to
whether to grant an interdict or a mandamus, or to grant
relief in
review proceedings
.
The declaratory order, being as flexible as it is, can be used to
obtain much the same relief as would be vouchsafed by an interdict
or
a mandamus. Where it is not necessary that a record
of
proceedings
be
put
before the Court, a declaratory order could serve as a review
.
Prejudice
features large in deciding what is just or convenient. In
the
present case there is to my mind considerable prejudice to the
Department.
Most
of
the educators in the Department, through their representative unions,
accepted at the retrenchment discussions, albeit reluctantly,
the way
out
of
what was, for the Department and for them, an enormous dilemma. The
fixed-term contracts
of
the educators were for three months.
If
an application for the relief now sought had been brought within a
matter
of
weeks, the Department would have realised that the settlement was
being challenged and might have declined to renew the contracts
of
those who were dissatisfied with the absence
of
benefits. It might have terminated the contracts
of
all fixed-term educators. Having regard to the gravity
of
the situation, it might even have requested and obtained an amendment
of
the subordinate legislation promulgated by the Minister. Fifteen
months later, when the applicants launched their application,
the
time for remedial steps had passed. The Department found itself
exposed to an expenditure for which it had not budgeted and
which it
could not afford without seriously compromising educational funding
for the years 1999 and 2000. I do not say that any
one
of
the above considerations by itself would have been decisive. Taken
together, they constitute in my opinion a formidable hurdle
in the
way
of
the exercise
of
a discretion favourable to the applicants."
26.
See also the case of
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC) at p. 129 H to 130 A-B
paragraph 11
in
which the Court stated as follows:
"Rules
that limit the time during which litigation may be launched are
common in our legal system as well as many others. Inordinate
delays
in litigating damage the interests
of
justice. They protract the disputes over the rights and obligations
sought to be enforced, prolonging the uncertainty
of
all concerned about their affairs. Nor in the end is it always
possible to adjudicate satisfactory on cases that have gone stale.
By
then witnesses may no longer be available to testify. The memories
of
ones whose testimony can still be
obtained
may have faded and become unreliable. Documentary evidence may have
disappeared. Such rules prevent procrastination and
those harmful
consequences
of
it. They thus serve a purpose to which no exception in principle can
cogently be taken."
27.
Accordingly the counsel for the Third and Sixth Respondents submitted
that this Court should not exercise its discretion to
get a
declaratory order in favour of the Applicants where the Applicants
had an alternative remedy. He holds the view that the
Second
Applicant must be restricted to the review proceedings that she has
instituted and which are still pending in this Court.
I therefore
agree with the argument presented by the Third and Sixth Respondents
that the relief sought by the Applicant may not
be granted in the
absence of a review for the setting aside of the decision that was
taken by the now defunct State Tender Board.
That decision still
stands unless it is successfully challenged, this Court is not
competent to set it aside simply by way of a
declaratory order.
"Until
the administrator's approval (and thus also the consequence
of
the approval) is set aside by Court in provisions
of
judicial review it exists in fact and it has legal consequences that
cannot simply be overlooked."
See
Oudekraal
Estates (Pty) Ltd v City of Cape Town 2004(6) SA 222 (SCA) at p. 242
paragraph 26.
28.
It is for the above reasons that on 10 September 2010 I granted the
following order:
1)
The interim order granted by this Court in favour of the Applicants
on 16 March 2010 is discharged.
2)
The application is dismissed with costs.
3)
Costs shall include the costs of 16 March 2010, wasted costs of 7
September 2010 and the costs of two counsel.
4)
The costs of 4 May 2010 shall be costs in the cause.
P
M MABUSE
JUDGE
OF THE HIGH COURT
Appearances
:
Applicant's
Attorneys:
Vezi
& De Beer Inc. Attorneys
Applicant's
Counsel:
Adv.
CJ Van Coller
2nd,
3rd
&
6th
Respondent's
Attorneys: The State Attorney
2
nd
Respondent's Counsel:
Adv.
JH Dreyer (SC)
3
rd
&
6
th
Respondent's Counsel:
Adv.
BR
Tokota (SC)
Date
Heard:
8
September 2010
Date
of
Judgment:
5
October 2010