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[2011] ZAECPEHC 1
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Monoceros Trading 135 CC t/a Metro Security Services v Nelson Mandela Bay Municipality and Others (3900/2010) [2011] ZAECPEHC 1 (19 January 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, PORT
ELIZABETH
Case no: 3900/2010
Date Heard: 18/01/2011
Date Delivered: 19/01/2011
In the matter between:
MONOCEROS TRADING 135 CC T/A
METRO SECURITY SERVICES
….....................................
APPLICANT
Versus
NELSON MANDELA BAY MUNICIPALITY
…...........
1
ST
RESPONDENT
FIDELITY SECURITY SERVICES
(PTY) LTD
….......................................................
2
ND
RESPONDENT
SIZWE RISK CONSULTANTS CC
…........................
3
RD
RESPONDENT
NATIONWIDE SECURITY HOLDINGS
(PTY) LTD
….........................................................
4
TH
RESPONDENT
UMSIMBITHI SECURITY SERVICES
…..................
5
TH
RESPONDENT
JUDGMENT
SANDI J:
[1] In this application the
applicant seeks an order morefully set out in Part A of the notice of
motion against the Nelson Mandela
Bay Metropolitan Municipality (the
first respondent). In essence, it is an application for access to
information in the possession
of the first respondent which is
relevant to a tender for the provision of security services, access
control, patrol duties and
escort services.
[2] The application was launched and
served on the first respondent on 23 December 2010. In the notice of
motion the first respondent
was granted an opportunity until 4
January 2011 to file its notice of opposition and its answering
affidavits, if any, by the close
of business on 7 January 2011.
[3] No notice of opposition or
answering affidavits were delivered by the first respondent. Instead
Mr Buchanan SC, who appears
for the first respondent together with Mr
Nobathana, handed up from the bar a draft order which reads :
“
The
First Respondent undertakes, within five (5) court days, to deliver
the record concerning all decisions taken by the First
Respondent in
respect of contract enquiry 45/5, which was originally advertised on
8 April 2009.
The
First Respondent further undertakes to provide, within five (5)
days, reasons for all relevant decisions taken in respect
of the
aforementioned contract enquiry.
The
costs occasioned by the hearing on 18 January 2011 are reserved for
decision at the hearing of the main application herein.”
[4] Mr Quinn SC, who appears
together with Mr De Waal for the applicant, declined to accept the
undertaking and submitted that the
applicant has made out a case for
the relief sought in Part A of the notice of motion.
[5] Mr Buchanan submitted that the
applicant will not suffer any prejudice by an acceptance of the
undertaking. He submitted that
the question of costs should be
decided at a later stage when the main application is heard.
[6] I have not been referred to any
authority which enjoins the applicant to accept the undertaking
tendered by the first respondent.
[7] A brief history of this
litigation satisfies me that the stance adopted by the applicant is
appropriate in the circumstances
of this case.
[8] The tender which forms the
subject-matter of these proceedings was advertised by the first
respondent on 8 April 2009. The closing
date for the submission of
tenders was 7 May 2009. The applicant’s tender was submitted
timeously on 29 April 2009.
[9] The tender that we are concerned
with was intended to replace a previous one which was to expire on 7
September 2009.
[10] After consideration of the
applicant’s tender, it was awarded the highest score
vis a
vis
the other tenders that were considered and evaluated.
[11] First respondent’s
Directorate: Budget and Treasury recommended that the tender be
awarded to the applicant for a period
of three years and failing
capacity or proper execution, to the second, third or fourth
respondents.
[12] At a meeting held on 5 January
2010 first respondent’s security director advised the applicant
that the tender was awarded
to it.
[13] However, on 13 January 2010,
the letter of 5 January 2010 which awarded the tender to the
applicant was withdrawn by the first
respondent in writing. The
letter of withdrawal was written by T Motatsi, the Acting Director:
Supply Chain Management Unit. In
that letter Motatsi advised that as
the contract was in excess of R10 million, it had to be approved by
the Municipal Manager.
According to Motatsi that approval was
outstanding. He stated that the letter of 5 January 2010 was
despatched to the applicant
prematurely. Motsatsi advised the
applicant that he would inform it of the outcome of the award and the
approval.
[14] Thereafter nothing happened
until April 2010 when the applicant launched an application for a
mandamus.
[15] The mandamus was settled and on
6 May 2010 an Order of Court was obtained by agreement. That Order
reads as follows:
“
That
the (first) Respondent decide the tender contract 45/5 for the
provision of protection, access control and escort services,
and to
communicate its decision to the Applicant within 14 calendar days of
this Order.
That
the (first) respondent pay the Applicant’s costs including the
costs of two counsels.”
[16] On the same day, i.e 6 May
2010, the applicant came into possession of two documents. The first
document is a report by the
Executive Director: Safety and Security
to the Evaluation Committee requesting a deviation from the
Procurement Process of the
first respondent. The report stated that
on 7 December 2009 the Bid Adjudication Committee held a meeting at
which it did not approve
the contract because it required clarity on
the specifications. However, the report goes on to state that on 14
December 2009,
and once clarity had been obtained regarding the
specifications, the Bid Adjudication Committee approved the contract.
From the
above it is apparent that the tender of the applicant was
approved on 14 December 2009.
[17] In the said report it is stated
that the current contract of the fourth and fifth respondents (who
are not opposing the relief
sought in Part A) which terminated on 30
January 2010 would be extended on a month to month basis “in
order to allow sufficient
time for the completion of the …
administrative processes.” The Municipal Manager approved the
document by appending
his signature to it.
[18] The Municipal Manager
authorised the extension of the services of the fourth and fifth
respondents on a month-to-month basis
from 1 February 2010 for a
period not extending beyond 31 March 2010.
[19] It is to be noted that there is
no indication as to what the status of the contract is from 31 March
2010 to date hereof.
[20] Purporting to comply with the
Order of Court obtained on 6 May 2010, the Municipal Manager referred
the matter back to the
Bid Adjudication in spite of the fact that it
had awarded the tender to the applicant.
[21] On 2 June 2010 the applicant’s
attorney wrote to the first respondent’s attorney in the
following terms:
“
To
that end, as a matter of urgency, please furnish us with a copy of
the minutes of the meetings of the Bid Evaluation Committee
and the
Bid Adjudication Committee and all correspondence reports and
documents which go to make up the record of decision. We
are aware
that the Bid Adjudication Committee met on 7 December 2009 and it
resolved to award the tender contract to our client
at its meeting of
14 December 2009.
Since
both in terms of legislation and the provisions of your client’s
procurement policy your client is required to act with
transparency
there should be no need for us to invoke the provisions of the Access
to Information Act nor Rule 53.”
In that letter the applicant’s
attorneys queried the decision to refer the matter to the Bid
Adjudication Committee for its
reconsideration.
[22] First respondent’s
attorneys acknowledged the above letter and undertook to revert to
the applicant - which has not been
done to this day.
[23] On 3 June 2010 the first
respondent’s contracts controller, one Vanessa Balie, was
advised that the applicant’s
tender price was still valid. This
was said in response to an enquiry made by Vanessa Balie. This
enquiry must have given some
hope to the applicant that the matter
was being considered. Due to the lack of response from the first
respondent, the applicant
filed a formal application for access to
the records of the first respondent relevant to the tender on 22
November 2010. Those
records have not been furnished.
[24] During argument Mr Buchanan
conceded that there is no legal basis upon which the first respondent
can refuse to give the applicant
access to the documents and
information sought by it in Part A of the notice of motion. However,
counsel submitted that the undertaking
to furnish the applicant with
documents relevant to the tender, would have the same effect as the
Order to compel the furnishing
of documents as set out in the notice
of motion. He submitted that if the undertaking was not complied with
by the first respondent,
it was open to the applicant to return to
Court at short notice to the first respondent to ask for an
appropriate order.
[25] I understood Mr Buchanan to be
saying that the documents and information requested are available but
cannot be made available
to applicant as they in the process of being
prepared and collated.
[26] In view of the history of the
matter and the failure by the first respondent to comply with its
legal obligation, I am persuaded
that the applicant is entitled to
the relief sought in the Notice of Motion. In the absence of a Court
Order, I do not think that
the undertaking will adequately protect
the applicant’s right which is, in any event, not disputed by
the first respondent.
[27] On the evidence placed before
me the tender in question was awarded to the applicant. The
subsequent withdrawal thereof and
the extension of the contract in
favour of the fourth and fifth respondents for reasons which do not
commend themselves to me,
I am of the view that the applicant has a
lawful right to the documents set out in the notice of motion. As
stated in
Aquafund Pty Ltd v Premier of the Province of the
Western Cape
1997 (7) BCLR
907
(C) at 913 I
the applicant
“reasonably requires the information to enable it to determine
whether or not its right to lawful administrative
action… has
been violated.”
At page 915 I - 916 A of the above
judgment the following was stated:
“
If
the applicant is entitled to lawful administrative action, it must,
in my view, follow that it will be entitled to all such information
as may be reasonably required by it to establish whether or not its
right to lawful administrative action has been violated. The
applicant will reasonably require this information to make an
informed decision on the future conduct of the matter. If it is shown
that the tenders were properly considered, the applicant can abandon
any proposed application for a review of the decision. If
not, the
information will enable the applicant to properly formulate the
grounds of review.”
At 916 D it is stated that “(t)he
right which the applicant is seeking to protect is
not
the
right to have the decision of the board reviewed with a view to
eventually being awarded the contract.”
[28] In the present matter, the
applicant is seeking to protect its right to lawful administrative
action by having access to the
information in the possession of the
first respondent to enable it to determine whether or not its right
to lawful administrative
action has be violated.
[29] By its nature the application
is urgent. In any event, the applicant has placed sufficient evidence
before me in support of
urgency.
[30] On the question of costs I am
satisfied that an order awarding the costs of two counsels is
warranted. No argument was advanced
by the first respondent’s
counsel as to why such an order should not be made. The only argument
advanced by the first respondent’s
counsel is that the costs be
reserved for determination in the application.
[31] On 17 January 2011 the first
respondent’s attorney was requested in writing to apply her
mind to the matter and to consent
to the order sought by the
applicant. On the same day applicant’s heads of argument were
telefaxed to the first respondent’s
attorney. This was an
attempt by applicant’s attorney to avoid the incurring of
unnecessary costs. There was no response
from the respondent’s
attorney.
[32] In the circumstances the
following Order is made:
The first respondent is directed to
provide the applicant, within five days after the date of this
Order, with all documentation
regarding decisions taken in respect
of contract enquiry 45/5: Protection/ Access/ Control/ Escort
Services which was advertised
on 8 April 2009, including :
All minutes (being a brief summary
of events or transactions especially the record of proceedings
whether in writing or audio)
of the Bid Evaluation Committee and
the Bid Adjudication Committee including all reports, memoranda and
documents submitted
to the said committee by municipal officials,
directorates and departments, concerning contract enquiry 45/5:
Protection/ Access/
Control/ Escort Services, particularly the
minutes of the Bid Evaluation Committee and the Bid Adjudication
Committee of 7
December 2009 and the minutes of the Bid
Adjudication Committee of 14 December 2009..
All written reports and
recommendations of the Bid Evaluation Committee including supporting
documents, to the Bid Adjudication
Committee concerning contract
enquiry 45/5: Protection/ Access/ Control/ Escort Services.
All written reports and
recommendations of the Bid Adjudication Committee including
supporting documents, to the Accounting
Officer and / or the Acting
Municipal Manager concerning contract enquiry 45/5: Protection/
Access/ Control/ Escort Services.
The written decisions of the
Accounting Officer and / or the Acting Municipal Manager on the
reports and / or recommendations
of the Bid Evaluation Committee and
/ or the Bid Adjudication Committee in terms of which it was decided
to deviate, ratify or
reject the recommendations of the said
Committees and / or refer the decisions of the said Committees back
to either of the Committees
for reconsideration in respect of
contract enquiry 45/5: Protection/ Access Control / Escort Services.
The written reasons for the
Accounting Manager and / or the Acting Municipal Manager of 5 May
2010 for the decision to refer
the recommendations of the Bid
Evaluation Committee and / or the Bid Adjudication Committee for
its reconsideration
The decision of the Bid
Adjudication Committee on the referral mentioned in paragraph 1.5
above.
All documents relating to the
extension of the tender contracts and / or documents relating to
the month by month appointment
of Nationwide Security and
Umsimbithi Security Services in relation to the provision of
security services of Nelson Mandela
Bay Metropolitan Municipality
during the period 1 September 2009 to 31 December 2010.
All municipal council minutes
and / or minutes of the Executive Committee and / or the Mayoral
Committee and the record
of decisions in respect of contract
enquiry 45/5: Protection/ Access Control/ Escort Services
including decisions to
abandon contract enquiry 45/5 and / or
re-advertise for bids/tenders to perform Protection/ Access
Control/ Escort Services
for Nelson Mandela Bay Metropolitan
Municipality.
That the first respondent pay
the costs of this application including the costs of two
Counsel.
Sandi J,
Judge of the High Court
Eastern Cape, Port Elizabeth
Appearances
:
Counsel for the Applicant : MR QUINN
SC ( with him MR DE WAAL)
Attorneys for the Applicant : Carol
Geswint
Attorney for the Respondents : MR
BUCHANAN SC (with him MR NOBATHANA
Attorneys for the Respondents :
Lulama Prince and
Associates