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[2011] ZAGPPHC 230
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Basil Read (Pty) Ltd and Others v Minister of Rural Development and Land Reform and Others (28465/11) [2011] ZAGPPHC 230 (21 July 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case No: 28465/11
DATE:21/07/2011
In
the matter between:
BASIL
READ (PTY)
LTD
..............................................................................
1st
Applicant
BOUYGUES
BATIMENT
INTERNATIONAL
...............................................
2nd
Applicant
COLLIERS
PROPERTY AND FACILITIES
MANAGEMENT
(PTY)
LTD
….....................................................................
3rd
Applicant
CROSS
ATLANTIC PROPERTIES 155 (PTY)
LTD
..................................................................................................................
4th
Applicant
INSAKI
CONCESSIONS (PTY)
LTD
...........................................................
5th
Applicant
IMALIVEST
STUDY TRUST INVESTMENT
COMPANY
(PTY)
LTD.
..................................................................................
6th
Applicant
VUYA
INVESTMENTS (PTY)
LTD
................................................................
7th
Applicant
WSP
GROUP AFRICA (PTY)
LTD
................................................................
8th
Applicant
and
THE
MINISTER OF RURAL DEVELOPMENT
AND
LAND
REFORM.
.................................................................................
1st
Respondent
THE
MINISTER OF
FINANCE
......................................................................
2nd
Respondent
TSHALA
BESE UYAVUNA
CONSORTIUM
................................................
3rd
Respondent
GROUP
FIVE CONSTRUCTION (PTY)
LTD
...............................................
4th
Respondent
GROUP
FIVE INFRASTRUCTURAL
DEVELOPMENTS
(PTY)
LTD
.....................................................................
5th
Respondent
WILSON
BAYLEY HOLMES OVCON (PTY) LTD
….................................
6th
Respondent
TOTAL
FACILITIES MANAGEMENT COMPANY
(PTY)
LTD
........................................................................................................
7th
Respondent
JUDGMENT
MNGQIBISA-THUSI,
J
[1]
The applicant has instituted urgent application for relief on the
following terms:
1.1
that, to the extent necessary, the applicants' non-compliance with
the rules of this Court in relation to service and time limits
be
condoned in terms of the provisions of Rule 6(12)(a) of the Uniform
Rules of Court and permitting this matter to be heard as
one of
urgency;
1.2
that the first and third to seventh respondents be interdicted and
restrained from implementing the tender for the design, construction,
operation maintenance and finance of a serviced working environment
for the department of Rural Development and Land Reform (the
"Department") tender number K7/3/6/3 (0023) 2008/09 ("the
Tender") including, without limitation, interdicting
and
restraining the third to seventh respondents from performing any of
their respective obligations in terms of any contracts
concluded with
the Department pursuant to the tender, pending the finalisation of
review proceedings to be brought by the applicants
regarding a
decision to award, the tender to the third respondent, such
proceedings to be initiated within fifteen days of the
taking of the
decision;
1.3
That the first respondent, any such other respondent as oppose the
application, be ordered, jointly and severally to pay the
costs of
this application.
2.
In effect what the applicant is seeking is an interim interdict in
terms of which the respondents are restrained from implementing
a
contract which might be concluded between the Department and the
third respondent if all the necessary approvals for the finalisation
of the tender process are obtained and a contract is concluded
between the first and the third respondents.
3.
This hearing is limited to the determination of two points in limine
raised by the respondents:
3.1
urgency; and
3.2
whether or not the application is premature.
4.
In the event of a finding that the application is urgent and that it
is not premature, counsel for all the parties would arrange
with the
Deputy Judge President for the enrolment of this application on the
special motion court within three weeks of this court's
determination
of the two points in limine.
5.
The second respondent is not opposing the application and will abide
by the decision made.
6.
The following facts are common cause. In July 2009 the Department
invited bids for a tender to a proposed Public Private Partnership
(PPP) project for the design, construction, operation, maintenance
and finance of a serviced working environment for the Department.
The first respondent is the political head of the Department. The
deadline for the submission of bids was 31 December 2009. The
first
applicant submitted its bid on behalf of itself and the second to
eighth applicants. The third respondent submitted a bid
on behalf of
itself, together with the fourth to seventh respondents. In January
2010 an evaluation process of the bids took
place. During July 2010
the third respondent was selected as the preferred bidder and the
first applicant as the reserve bidder.
The Department and the third
respondent are currently involved in negotiations in order to
finalise the bidding process, which
if successful, could lead to the
signing of a PPP contract between the Department and the third
respondent. Further, other necessary
approvals for the finalisation
of the bidding process have been obtained. The only outstanding
approval is the one from the National
Treasury, the TAIII, if and
when it is obtained would lead to the signing a PPP contract between
the Department and the third
respondent for the implementation of
the PPP project. According to the submissions made on behalf of the
first respondent, the
applications for the approval of the TAIII has
not been submitted to the National Treasury yet as the negotiations
are still
ongoing. Further, it is common cause that the applicants
are not challenging the selection of the third respondent as the
preferred
bidder and its selection as the reserve bidder. What the
applicants contend is that they are challenging the decision, still
to be made, awarding the tender to the third respondent, from being
implemented pending the finalisation of review proceedings
the
applicants intends bringing should the tender be awarded to the
third respondent.
7.
It was submitted on behalf of the respondents that the application is
not urgent and that it is in fact premature. Counsel for
the first
respondent contended that at this stage, no final decision to award
the tender to the third respondent has been taken
as the parties are
still negotiating. Further that not all the necessary approvals have
been obtained. Counsel contends that until
such time that the
approval from treasury has been obtained for the conclusion of a PPP
contract with the third respondent, the
applicants have no rights to
protect. No administrative action, as defined in section 1 of the
Protection of Administrative Justice
Act 3 of 2000, adversely
affecting the rights of the applicants has been taken. Counsel
further submitted that the first respondent
has offered to inform the
applicant as soon as the negotiations between the Department and the
first respondent have been successfully
concluded and before the PPP
contract is signed. The Department through the first respondent also
offered to inform the applicants
when the necessary documents are
submitted to National Treasury for approval. Furthermore that the
applicant would be informed
when National Treasury has given its
approval and of the reasons for awarding the tender to the third
respondent, if that happens.
Further that the applicant will be given
a period of 10 days to weigh its options, from receipt of the first
respondent's reasons
to the proposed date for the signing of the
contract.
8.
It was submitted for the respondents that the applicant stands to
suffer no prejudice before the decision to award the tender
to the
third respondent is made. Counsel for the third respondent also made
submissions as to the negative effect the relief sought
would have on
the current tender processes, if it was granted before a final
decision has been made. Counsel pointed out that if
the relief is
granted, that would be the end of the process since it would be
almost impossible for the third respondent to find
people or
financial backers where it is uncertain as to when the tender would
be implemented. It was further submitted that should
the tender be
awarded the tender, the respondents will cooperate with the applicant
if he decides to bring expedited review proceedings
against the
decision taken. Further that there was still a possibility that
treasury would refuse approving the conclusion of a
contract with the
first respondent which could result in the first applicant being
considered as the preferred bidder.
9.
On behalf of the applicants it was submitted that relief was not
sought not for the purpose of preventing the TAIII approval.
Nor do
the applicants seek to review a decision which had not been taken
yet. What they are seeking is to forestall or delay
the
implementation of that decision once it has been taken. It was
contended that the relief was sought as the applicants had
a
reasonable anticipation and a well grounded apprehension that the
TAIII will be given and once given, a contract will be signed
between the Department and the third respondent, implementation
would take place immediately, thereby denying the applicants
from
exercising their right to access to courts and to administrative
justice. It was contended that the courts are loathe to
setting
aside a tender once implementation has taken place. It was argued on
behalf of the applicant that the probabilities were
that the tender
would be awarded to the third respondent hence the anticipation of
that eventuality by seeking to suspend the
implementation of such a
decision pending the bringing of a review application. It is the
applicants' contention that the first
step to the implementation of
the contract is the signing of the contract. Counsel for the
applicants argued that once the contract
is signed a court would be
reluctant to intervene in order to prevent any prejudice to the
tenderer who was not successful.
10.
From the papers filed and from submissions made by counsel for the
applicants, it appears that the reason the applicant claims
this
matter to be urgent is that once a decision has been made to award
the tender to the third respondent, the implementation
of the
contract would be immediate thereby denying the applicant the
opportunity to come to court to challenge the decision of
the first
respondent. I am, however, not convinced by this argument. In the
first place, no final decision has been taken to award
the tender,
and in particular to award it to the third respondent. As explained
by both counsel for the first and third respondents,
the first
respondent is still negotiating with the third respondent as the
preferred bidder. These negotiations were at the time
of the hearing
of this application, not yet concluded. Further no recommendation has
yet been made to National Treasury that the
PPP contract should be
signed with the third respondent.
11.
I am of the view that this application is not urgent in that the
applicants are seeking an interim interdict to protect rights
which
have not and could possibly not vest in them if National Treasury
decides not to approve the signing of a contract with the
third
respondent. As a result, I am also of the view that this application
is premature until a final decision has been taken to
award the
tender to the third respondent. The applicant should have waited
until a final decision was made to award the tender
to the third
respondent. What the applicant is seeking is for this court to
determine what may or may not happen. It is not a certainty
that the
first and third respondent will successfully conclude their
negotiations and if they did that National Treasury will give
its
approval. Until a final decision has been taken and National Treasury
has given its approval, the applicants cannot seek relief
in order to
protect rights it does have. Further in as much as the applicants do
not allege any impropriety in the process thus
far, it cannot seek to
challenge a decision which may or may not adversely affect their
rights, firstly before such a decision
has been taken, and, secondly
without knowing the reasons for the award of the tender to the third
respondent, if in fact it is
awarded to it.
12.
I am also not convinced that once the final decision has been taken
that the applicant would not be in a position to bring an
urgent
application, if necessary, to suspend the implementation of the
contract. More so in view of the undertakings given by the
first
respondent to keep the applicant abreast of the progress made in the
tender process, including informing the applicant once
agreement with
the third respondent has been concluded, when submission is made to
National Treasury for approval of the conclusion
and signing of a PPP
contract with the third respondent. The respondents have further
given an undertaking that after the conclusion
of the negotiations;
the first respondent would not sign the contract for a period of 10
days after the notification has been given
to the applicants in order
for it to consider what steps, if any, they should take. Furthermore,
the first respondent also undertakes
not to sign the contract for a
period of 10 days from the time that the reasons (if reasons are
requested) for the decision have
been given to the applicant. The
period offered affords the applicants sufficient time to bring an
urgent application on the same
terms and on the same papers,
supplemented, where necessary, in view of the reasons given.
Furthermore the respondents from their
submissions appear amenable
that, if the decision is taken to award the tender to the third
respondent, to give the applicant the
opportunity of bringing an
expedited reviews application against such a decision. This clearly
answers the question whether the
applicant cannot obtain substantial
relief in due course. As matters stand now there is no certainty as
to whether the applicants,
once given the reasons for the decision,
will find grounds for review.
13.
In the premises I am of the view that the application is not urgent
and also that it is premature.
14.
Accordingly the following order is made:
14.1
The two points in limine are upheld;
14.2
The application is dismissed for lack of urgency and for prematurity;
and
14.3
The applicants to pay the costs of this application, including the
costs of two counsels of the first and the third respondents.
NP
MNGQIBISA-THUSI
Judge
of the North Gauteng high Court