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[2016] ZAECPEHC 75
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Alfdav Construction CC v MEC for Roads and Public Works and Others (3087/2016) [2016] ZAECPEHC 75 (13 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Not
Reportable
Case
No: 3087/2016
Date
Heard: 1/12/16
Date
Delivered: 13/12/16
In
the matter between:
ALFDAV
CONSTRUCTION CC
Applicant
and
MEC
FOR ROADS AND PUBLIC WORKS
First
Respondent
HOD:
DEPARTMENT OF ROADS AND
PUBLIC
WORKS
Second
Respondent
DEPARTMENT
OF ROADS AND PUBLIC WORKS
Third
Respondent
BLUE
DISA TRADING 754 CC JOINT VENTURE
Fourth
Respondent
EDGE
TO EDGE 1275 CC
Fifth
Respondent
NEPA
PROJECTS JOINT VENTURE
Sixth
Respondent
EXPRESS
BUILDERS CC
Seventh
Respondent
GVK
SIYAZAMA BUILDING CONSTRACTORS
(EP)
(PTY)
LTD
Eighth
Respondent
REITY
TRADING ENTERPRISE JOINT VENTURE
Ninth
Respondent
BREETZKE
SMITH PAXTON CONSTRUCTION
(PTY)
LTD
Tenth
Respondent
MEC
FOR EDUCATION
Eleventh
Respondent
JUDGMENT
GQAMANA
AJ:
[1]
The sole remaining issue in this application is the issue of costs.
The application
was brought by the applicant on an urgent basis
seeking an interdict against the first to the fourth respondents from
implementing
the tender which was awarded to the fourth respondent.
In the same application, the applicant also sought an order reviewing
and setting aside the aforesaid tender. I will deal later in
this judgment with the facts giving rise to this application.
[2]
The urgent application was resolved through an agreement by the
parties
[1]
to expedite the main
review application. Such agreement was made an order of this
court on 13 October 2016. Subsequent
thereto, record in
compliance with Rule 53 of the Uniform Rules was filed. The
applicant thereafter filed supplementary affidavit
and an amended
notice seeking an order that the award of the tender to the fourth
respondent be reviewed and set aside and substituted
with an order
directing that such tender be awarded to the applicant.
[2]
Also in its supplementary affidavit, the applicant indicated that it
intends to apply for an order referring the matter for
hearing of
oral evidence and I will deal with this later in this judgment.
[3]
Opposing papers were filed by the first to third respondents and the
fourth respondent
also joined the fray and opposed the relief sought
by the applicant. However shortly before the hearing of this
application
[3]
the applicant
abandoned all of the substantive relief originally sought by it, but
persisted with its stance on the costs against
the first to the third
respondents and without even tendering the costs of the fourth
respondent.
[4]
The facts relevant to this application can be summarised as follows:
an invitation
to tender for the repairs and renovations of Bhongweni
Primary School, SCMU-15/16–0099SB was issued by the Department
of
Roads and Public Works (the third respondent). The closing
date for such tender was 14 April 2016. Number of
entities/companies
responded to such invitation, however for purposes
of this application, I will confine myself only to the applicant and
the fourth
respondent. In terms in tender invitation, parties
were required to submit their B-BBEE certificate in order to qualify
for
preference points for B-BBEE. Parties were further aware
that failure to submit the B-BBEE certificate will result in zero
points score for B-BBEE.
[5]
In terms of the standard conditions of
tender, the department
was required to open tender submissions in the
presence of tenderers’ agents and to announce at the said
meeting the total
prices and preference points for each tenderer.
At the said meeting the applicant was represented by Ms Xayi.
It is
contended in the founding affidavit by the applicant that at
this meeting preference points claimed by each tenderer were not
announced.
The respondents take issue with this contention.
In response to this allegation the fourth respondent filed the
transcript
of the mechanical recordings of what exactly occurred at
this meeting and to support its submission that preference points
were
indeed announced. The first to the third respondents also
filed an affidavit of Mr Philip Browley-Gans, an independent witness
who also confirmed that there was no B-BBEE certificate attached to
the applicant’s tender and as a result the applicant
preference
points score was noted as zero.
[6]
Fundamental point on this is that: the entire case of the applicant
hinges on the
question of the B-BBEE certificate. The first to
third respondents argued that the applicant failed to attach the
B-BBEE
certificate to its tender hence it received zero points for
the B-BBEE status. Throughout the course of this application
the applicant persisted with its stance that it had submitted the
B-BBEE certificate and accordingly it was entitled to receive
the
B-BBEE preference points.
[7]
According to the applicant, on 12 August 2016 it heard rumours that
the tender was
awarded to the fourth respondent. But the
rumours were confirmed on 16 August 2016. On 17 August 2016, a
letter was
then addressed to the first and second respondents
requesting them to provide certain documentation relevant to the
evaluation
and adjudication of the relevant tender as well as reasons
for the decision. There being no satisfactory response to this letter
the present application was instituted. As already indicated
above the applicant’s entire case was that it had submitted
the
B-B-BBEE certificate and as such it was entitled to the preference
points.
[8]
However for some obscure reasons, during argument counsel for the
applicant advanced
submissions that had the information sought in the
applicant’s attorneys letter been provided timeously the entire
litigation
would have been avoided. In developing this
argument, it was submitted that the applicant required this
information in order
to digest its stance on the possible
irregularities that may have occurred in the evaluation and
adjudication of the relevant tender.
The upshot of these
submissions are that, even though the applicant has now abandoned the
substantial relief but, it has achieved
a substantial success hence
it should be entitled to the costs order against the first to third
respondents.
[9]
I have great difficulties to comprehend the above submissions for
various reasons.
It was never the applicant’s case as
pleaded in the founding and supplementary affidavits that, the first
to second respondents’
failure to respond to its attorney’s
aforesaid letter necessitated this application. As a matter of
fact, the applicant
made unequivocal allegation that at the opening
of the tenders meeting, preference points were not announced and, it
only became
aware in August 2016 that, no preference points were
given to it. These submissions as Mr Buchanan, counsel for the
first
to third respondents, correctly so, argued were false.
The applicant was aware as early as at the opening of tenders that,
it was not awarded the B-BBEE preference points because it had not
submitted the relevant certificate. Further no objections
were
raised in this regard by the applicant’s agent Ms Xayi at the
said meeting.
[10]
My other difficult with the applicant’s submissions is that,
even after the required information
was provided it proceeded with
the application and sought an order that the tender be awarded to
it. If the requested information
was necessary for the
applicant to digest its stance on the alleged irregularities in the
evaluation and adjudication of the relevant
tender, once the
information was supplied to it, one would have expected it to have
abandoned the relief then and possible only
proceeded with the issue
of costs. I do not accept that the applicant required the
requested information. My view is
simple that, based on the
founding and supplementary affidavits; the application had no signs
of life from the outset. It
was a still-born. The fact
that parties for convenience agreed to the interdict and an expedited
time period for the main
review, could not be viewed as a
resuscitation of a still-born application. The application was
doomed to fail from the start.
[11]
It follows therefore that the applicant’s argument that it has
achieved substantial success
is misplaced. There is no
substantial right proved
[4]
by
the applicant, to the contrary the applicant failed to demonstrate
entitlement to any of the relief sought in either the initial
notice
of motion or the amended notice of motion.
[12]
Furthermore even the argument that in exercising my discretion on the
issue of costs, I should
deprive the successful parties their costs
must also fail. There is no conduct of any of the respondents
that warrants me
to deprive them on their costs. They have not
acted unreasonable nor have they caused unnecessary litigation.
As I
have already found above that, the applicant pursued the relief
on the basis of facts which it knew to be false. At no stage
had the applicant been misled by any of the respondents.
[13]
Lastly during argument, the applicant’s counsel conceded,
correctly so, that the fourth
respondent is entitled to its costs.
Having regard to the facts and evidence before me, there is no legal
basis to depart
from the normal approach that costs follows the
result.
[14]
In the result the following order is made:
The application is
dismissed with costs.
NW
GQAMANA
Acting
Judge of the High Court
Counsel
for the Applicant:
Adv A
White
Port
Elizabeth
Instructed
by:
Cecil
Beyleveld Attorneys
Port
Elizabeth
Counsel
for the 1
st
, 2
nd
& 3
rd
Respondents:
Adv
RG Buchanan (SC)
Port
Elizabeth
Instructed
by:
State
Attorneys
Port
Elizabeth
Counsel
for the 4
th
Respondent:
Adv
JD Huisamen (SC)
Port
Elizabeth
Instructed
by:
Kwaku
Aduna Attorneys
c/o
Nash Vandayar Attorneys
Port
Elizabeth
Date
Heard:
1
December 2016
Date
Delivered:
13
December 2016
[1]
The applicant and the first to third
respondents, the fourth respondent was not involved therein.
[2]
Index: page 167
para 1 and 2.
[3]
This appears from the first time in
the applicant’s heads of argument filed on 25 November 2016
and the application was
set down on 1 December 2016.
[4]
See
Esorfranki
Pipelines (Pty) Ltd v Mopani District Municipality and Others
(2014) 2 All SA 493
(SCA).