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[2019] ZAECPEHC 62
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AA Solwandle Attorneys Incorporated v Nelson Mandela Bay Municipality (1093/2019) [2019] ZAECPEHC 62 (25 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
CASE
NO. 1093/2019
In
the matter between:
AA
SOLWANDLE ATTORNEYS
INCORPORATED Applicant
and
THE NELSON MANDELA BAY
MUNICIPALITY Respondent
JUDGMENT
Bloem
J.
[1]
The applicant made an application for an order “
that the
respondent be directed to resolve the applicant’s written
objection dated 25 June 2018 within two (2) weeks from
the granting
of this order
” as well as costs.
[2]
The history of this matter is that the respondent, the
Nelson Mandela
Bay Municipality, issued an invitation to tender for the provision of
corporate expert legal services by attorneys.
The applicant, a
firm of attorneys, submitted a tender. By letter dated 21 June
2018 the municipality informed the applicant
that its bid was
unsuccessful because it “
failed to submit proof of indemnity
insurance, as required
”. The municipality also
advised the applicant that “
according to section 52 of
Nelson Mandela Bay Municipality (NMBM) Supply Chain Management (SCM)
policy a person aggrieved by decisions
or actions taken in the
implementation of the supply chain management system, may lodge with
the Accounting Officer, within 14
days of the decision or action, a
written objection or complaint against the decision or action
concerned
.” The applicant responded by letter dated
25 June 2018 wherein it objected to the respondent’s decision
to render
its tender unsuccessful on the ground that the applicant
failed to submit proof of indemnity insurance. Regarding
reference
to the respondent’s supply chain management policy,
the applicant stated in paragraphs 6 and 7 of its letter that the
process
to be followed in accordance with the policy “
is
procedurally incorrect. Your internal policies must be in line with
the Local Government: Municipal System Act 34 of 2000.
Section
62(1) of this Act provides that:
“
A person whose
rights are affected by a decision taken by a political structure,
political office bearer, councilor or staff member,
may appeal
against that decision by giving written notice of the appeal and
reasons to the municipal manager within 21 days of
the date of the
notification of the decision.”
7)
Your internal policies cannot supercede a statutory provision which
directs the overall
procedures and directives according to which a
municipality is run
.”
(sic)
[1]
[3]
During April 2019 the applicant instituted the present
application
for the relief set out above. The notice of motion was prepared
as if a decision or proceedings were under review
in terms of rule 53
of the Uniform Rules of Court. For instance, reference was made
to the respondent dispatching to the
registrar “
the record
giving rise to the findings and remedial action sought to be reviewed
and set aside
,” that the record be made available to the
applicant and that the applicant, by delivery of a notice and
accompanying affidavit,
amend, add to or vary the terms of its notice
of motion and supplement the supporting affidavit. In the
affidavit the grounds
of review are set out as follows:
“
55.
The City’s SCMP prescribed that AAS lodge a written objection
against the City’s impugned decision
within fourteen (14) days
thereof. The written objection against the City’s
decision was supposed to be resolved within
(60) days thereof.
The City has failed to resolve AAS’s written objection within
this prescribed time period.
56.
The City’s failure to resolve AAS’s written objection
within the prescribed time period
should be reviewable in terms of
section 6(2)(g) read together with section 6(3)(b) of PAJA.
57.
Accordingly, I contend that in these circumstances that this
Honourable court direct the City to resolve
AAS’s written
objection within two (2) weeks.”
[4]
It was stated in the applicant’s heads of argument
that the
application was “
to compel compliance with the
Municipality‘s own policies, it is not … a review of a
final decision made by the Municipality
or its objection panel
.”
At the commencement of the hearing Mr Mullins, counsel for the
applicant who drafted neither the applicant’s
affidavits nor
heads of argument, made it clear that the applicant was not seeking
to review a decision or proceedings, but that
it sought relief in the
form of a mandatory interdict. The applicant sought an order
that the respondent be compelled to
resolve its written objection
within two weeks from the date of the granting of the order that it
sought.
[5]
The three
requirements for the granting of a final interdict are: a clear right
on the part of the applicant; an injury actually
committed or
reasonably apprehended; and the absence of any other satisfactory
remedy available to the applicant.
[2]
[6]
It was submitted on behalf of the applicant that the
right that it
sought to protect in this application was for the respondent to
resolve the applicant’s written objection.
For that
submission reliance was placed on paragraphs 49 and 50 of the
respondent’s supply chain management policy which
read as
follows:
“
49.
Objections and complaints
(1)
Persons aggrieved by decisions or actions taken in the
implementation of the Supply Chain Management system, may lodge with
the
Accounting Officer, within 14 days of the decision or action, a
written objection or complaint against the decision or action
concerned.
(2)
The successful bidder may not commence any work until the
expiry of the 14 day appeal period, or confirmation in writing before
the expiry of the 14 day appeal period that none of the affected
parties intend to appeal, or confirmation of the satisfactory
resolution of any appeals, as detailed in the SCM Procedures Manual.
50.
Resolution of disputes, objections, complaints and queries
(1)
The Accounting Officer must appoint an independent and impartial
person, not directly involved
in the Supply Chain Management
processes –
(a)
to assist in the resolution of disputes between the NMBM and other
persons regarding –
(i)
any decisions or actions taken in the implementation of the Supply
Chain Management system; or
(ii) any
matter arising from a contract awarded in the course of the Supply
Chain Management system; or
(b)
to deal with objections, complaints or queries regarding any such
decisions or actions or any matters arising
from such contract.
(2)
The Accounting Officer or another official delegated by the
Accounting Officer is responsible
for assisting the appointed person
in performing his or her functions effectively.
(3)
The person appointed must -
(a)
strive to resolve promptly all disputes, objections, complaints or
queries received; and
(b)
submit monthly reports to the Accounting Officer on all disputes,
objections, complaints or queries received,
attended to or resolved.
(4)
A dispute, objection, complaint or query may be referred to the
Eastern Cape Provincial Treasury
if –
(a)
the dispute, objection, complaint or query is not resolved
within 60 days of being lodged; or
(b)
no response is forthcoming within 60 days of the lodgement of
the dispute, objection, complaint or query.
(5)
If the Eastern Cape Provincial Treasury does not or cannot resolve
the matter, the dispute, objection,
complaint or query concerned may
be referred to the National Treasury for resolution.
(6)
This paragraph must not be read as affecting a person’s rights
to approach a competent court
for such order as may be just and
necessary in the circumstances at any time.”
[7]
The applicant’s reliance on paragraphs 49 and 50
of the
respondent’s supply chain management policy is misplaced.
Those paragraphs do not give the applicant a right
to claim that the
respondent should resolve its written objection, as the relief sought
suggests. Those paragraphs also do
not give the respondent’s
accounting officer or the independent and impartial person the power
to resolve an objection, complaint
or query referred to the
accounting officer in terms of paragraph 49(1). The power of
the independent and impartial person
is limited to striving towards
or assisting the parties to resolve an objection, complaint or query
or dealing with such objection,
complaint or query. The
independent and impartial person does not have the power to confirm,
substitute or vary the respondent’s
decision to declare or find
the applicant’s bid unsuccessful.
[8]
In
Esda
Properties (Pty) Ltd v Amathole District Municipality and others
[3]
the independent and impartial person was described by Plasket J in a
similar supply chain management policy of the Amathole District
Municipality as “
a
person with no decision-making powers … appointed to assist
the parties to resolve their dispute, acting, it would appear,
as a
mediator or conciliator
.”
The applicant has failed to demonstrate that it has a right to claim
that the respondent should be directed to resolve
its written
objection. It means that the applicant has failed to prove one
of the three requisites for the grant of a final
interdict. The
application must therefore be dismissed.
[9]
If I am wrong in having found that the applicant has
failed to
demonstrate that it has a clear right which should be protected,
there is another reason for the dismissal of the application.
The applicant has at least one alternative satisfactory remedy
available. It could and should have instituted an application
for an order that the respondent’s decision to declare or find
its bid unsuccessful be reviewed and set aside.
[10]
In the circumstances, the respondent successfully opposed the
application.
It is entitled to its costs.
[11]
In the result, it is ordered that the application be and is hereby
dismissed
with costs.
_________________________
G
H BLOEM
Judge
of the High Court
For
the applicant: Adv N
Mullins SC, instructed by AA Solwandle Attorneys, Sandton and
T M
Pitana Attorneys, Port Elizabeth.
For
the respondent: Adv N L Ntsepe,
instructed by Joubert Galpin Searle Inc, Port Elizabeth.
Date
heard: 19
September 2019
Date
of judgment: 25 September
2019
[1]
The correct citation of the relevant Act is the Local Government:
Municipal Systems Act, 2000 (Act No 32 of 2000). Furthermore,
section 62(1) was not properly quoted. That subsection reads
as follows:
“
A
person whose rights are affected by a decision taken by a political
structure, political office bearer, councillor or staff
member of a
municipality in terms of a power or duty delegated or sub-delegated
by a delegating authority to the political structure,
political
office bearer, councillor or staff member, may appeal against that
decision by giving written notice of the appeal
and reasons to the
municipal manager within 21 days of the date of the notification of
the decision
.”
[2]
Setlogelo
v Setlogelo
1914 AD 221
at 227 and
Hotz
and others v University of Cape Town
2017 (2) SA 485
(SCA) at 496H.
[3]
Esda
Properties (Pty) Ltd v Amathole District Municipality and others
(2635/2014)
[2014] ZAECGHC 76 (18 September 2014) at para 11, which was referred
to with approval in
DDP
Valuers (Pty) Ltd v Madibeng Local Municipality
(233/2015)
[2015] ZASCA 146
(1 October 2015) at para 21.