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[2021] ZAECPEHC 23
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Ikhona Techni (Pty) Ltd v Sundays River Valley Municipality (2880/2020) [2021] ZAECPEHC 23 (16 March 2021)
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN CAPE
LOCAL DIVISION, PORT ELIZABETH)
Case
No
: 2880/2020
Date
Heard
: 11 December
2020
Date
Delivered
: 16 March
2021
In the matter
between:
IKHONA TECHNI
(PTY) LTD
Applicant
and
SUNDAYS RIVER
VALLEY MUNICIPALITY
First Respondent
SUNDAYS RIVER
VALLEY MUNICIPALITY
APPEAL
AUTHORITY
Second Respondent
IBHABHATHANE
TRADING CC
Third Respondent
JUDGMENT
MULLINS
AJ
[1]
This is an application brought on an urgent basis in accordance with
the Promotion of Administrative
Justice Act, 2 of 2000 (“PAJA”),
to review and set aside a decision of a municipality to award a
tender to the Third
Respondent instead of to the Applicant, which
application is opposed by the First Respondent. The First
Respondent has brought
a counter-application based on a legality
review to set aside its own decision to award the tender to the Third
Respondent, which
counter-application is opposed by the Applicant.
[2]
The Second Respondent has filed a notice to abide. The Third
Respondent has taken no part in the
proceedings.
[3]
The hearing was conducted in open court. The Applicant was
represented by Mr
Richards
and the First Respondent by Mr
Ford
. I am indebted to counsel for their assistance.
[4]
The background facts to this matter, which are either common cause or
not in dispute, may be summarized
as follows:
(a)
At the beginning of
2020 the First Respondent invited tenders for a project described as
the
Upgrading of
Roads and Stormwater in Enon and Bersheba – Phase 1
–
Contract No.
SRVLM 06/2017/EB
(“the
Tender”);
(b)
The Applicant and the
Third Respondent were two of the entities that submitted tenders,
there being eight in total;
(c)
In due course the
tender was awarded to the Third Respondent, the Applicant having been
declared non-responsive at an early stage
by the Bid Evaluation
Committee (for the reason dealt with below);
(d)
Dissatisfied with the
outcome, and of the view that it should have been awarded the tender,
on 30 September 2020 the Applicant’s
attorney sent a letter to
the First Respondent,
inter
alia
:
(i)
requesting written
reasons for the decision;
(ii)
Noting an appeal in
accordance with s62 of the Local Government: Municipal Systems
Act, 32 of 2000 (“the Systems Act”);
(iii)
Requesting certain
additional documentation in order to supplement the grounds of
appeal;
(e)
When there was no
response to the above and to follow-up requests, the Applicant
instructed its attorneys to launch an urgent application.
The
founding affidavit states that an application was launched, but this
is not the case: it was launched a few days later;
(f)
Before this could
happen, on 22 October 2020 the First Respondent’s attorneys
responded,
inter
alia
, stating that:
“
5.
We are instructed to provide you with reasons herein as follows:
5.1.
As per the advert the following compulsory documents must be
submitted with the tender:
5.1.1.1.
…
5.1.1.2.
…
5.1.1.3.
Certified
ID
copies of company directors;
5.1.1.4
…
5.1.1.5.
…
5.1.4.6
…
6.
…
7.
Your client was disqualified as not all of your directors
ID
documents
were submitted.”
(My
emphasis).
(g)
The letter goes on to
state that certified copies of the identity documents of only three
of the Applicant’s four directors
were submitted. As far
as the First Respondent’s attorneys were concerned that was the
end of the matter. As
is dealt with below the First
Respondent’s attorney misquote the tender document, the
highlighted words being added in;
(h)
Thereafter the
Applicant filed supplementary grounds of appeal which, although
running to 31 pages, can be summarized thus:
(i)
The reason given for disqualifying the Applicant’s bid was
unlawful;
(ii)
The Third Respondent’s bid should have been disqualified and
the Tender awarded to
the Applicant;
(i)
In due course the
Second Respondent dismissed the appeal on the same ground as the
original Bid Evaluation Committee had done;
(j)
Based on the outcome of
the appeal, on 23 November 2020 the Applicant launched this
application on an urgent basis.
[5]
Paragraph 2 of the original notice of motion prayed for the following
relief:
“
2.
That the decision of the Second Respondent (the “Impugned
Decision”) to dismiss the
Applicants appeal in terms of
section
62
of the
Local Government: Municipal Systems Act (the
“Appeal”) against decisions of the First Respondent to
declare its bid for the tender “Upgrading of roads and
stormwater in Enon and Bersheba – Phase 1 – Contract No.
SRVLM 06/2017/EB” (the “Tender”) non-responsive
and
to award the Tender to the Third Respondent, be reviewed and set
aside in terms of
Section 8(1)(c)
of the
Promotion of Administrative
Justice Act
(“PAJA”) and be substituted with the decision
of this Honourable Court that the Tender be awarded to the Applicant
in terms of
section 8(1)(c)(ii)(aa)
of PAJA.”
[6]
At the commencement of the hearing the Applicant applied for an
amendment of paragraph 2 of the
notice of motion to read as follows:
“
2.
That the decisions
of the First Respondent (the “impugned decisions on appeal”)
to declare the bid of the Applicant
for the tender “Upgrading
of roads and stormwater in Enon and Bersheba – Phase 1 –
Contract No. SRVLM 06/2017/EB”
(the “Tender”)
non-responsive and to award the Tender to the Third Respondent and
the decision of the Second Respondent
(the “impugned decision”)
to dismiss the Applicants appeal in terms of
section 62
of the
Local
Government: Municipal Systems Act (the
“Appeal”)
against the impugned decisions on appeal, be reviewed and set aside
in terms of
Section 8(1)(c)
of the
Promotion of Administrative
Justice Act
(“PAJA”) and be substituted with the decision
of this Honourable Court that the Tender be awarded to the Applicant
in terms of
section 8
(1)(c)(ii)(aa) of PAJA, alternatively the
Appeal is remitted back to the Second Respondent to either award the
Tender to the Applicant
or cancel the Tender process.”
[7]
The First Respondent did not oppose the amendment and it was
accordingly granted.
[8]
It is apparent that the relief the Applicant now seeks is
substantially different. The original
relief targeted the Second
Respondent’s decision (the appeal) only. The amended relief
targets both the original decision
and the appeal. It also includes
an alternative prayer.
[9]
In the counter-application the First Respondent prays for the
following relief:
“
1.
That the decision of the First Respondent to award the Tender for the
“Upgrading of roads
and storm water in Enon and Bersheba –
Phase 1 – Contract No. SRVLM06/27/EB” to the Third
Respondent is reviewed
and set aside;
2.
That the acceptable and responsive tenders submitted in the aforesaid
tender process be referred
back to the First Respondent for
evaluation by its Bid Evaluation Committee and Bid Adjudication
Committee in order for a successful
tender to be identified and an
appropriate appointment made by the First Respondent;”
[10]
On page T1.3 of the Tender Notice the following is stated as a
requirement for a responsive tender:
“
The
following
compulsory
documents
must be submitted with the tender:
1.
…
;
2.
…
;
3.
Certified copies
of Company Directors;
4.
…
5.
…”
(My
emphasis).
[11]
It is common cause that when it submitted its bid the Applicant
included certified copies of the identity
documents of three of its
four directors. It was on the basis of the absence of the
fourth director’s identity document
that its bid was declared
non-responsive. The Applicant’s case in this regard is
dealt with below.
[12]
The First Respondent opposed the application on the merits and on a
number of procedural and technical
grounds, which are considered
below.
[13]
In the first place the First Respondent disputes urgency. After the
unsuccessful outcome of the appeal
the Applicant’s attorneys
requested an undertaking not to implement the tender pending a review
application. That was on
20 November 2020. The First Respondent’s
attorney stated that it was awaiting instructions and would revert by
23 November
2020. When there was no response the Applicant
launched the application – on the same day, the papers being
served
on the First Respondent’s attorneys at 15h50.
[14]
At first blush this appears to have been an over-hasty reaction.
However, there was nothing preventing
the First Respondent from
giving the undertaking and the matter could then have been dealt with
in the normal course, or on agreed
time limits. Furthermore, it
is evident from the First Respondent’s attorney’s letter
and the opposing papers
that no undertaking would have been
forthcoming even if it had been afforded more time.
[15]
Had the Applicant waited any longer the First Respondent would no
doubt have argued that urgency had
been lost. There is also
merit in the Applicant’s argument that it is often not possible
to “unscramble the egg”,
meaning that once the successful
tenderer commences with the project it is too late to challenge it,
and any delay would result
in the application becoming academic. In
the circumstances I am satisfied that the Applicant was justified in
bringing the
application on an urgent basis.
[16]
The First Respondent also argued that the Applicant had failed to
follow
Rule 53.
That rule provides,
inter alia
, for the
production by a respondent of the record (or records in this case) of
the decision(s) taken. Mr
Ford
argued that the
application was irregular in that not all the relevant facts were
before the Court. I was referred me to
the unreported judgment
of Goosen J in
The Windfarm Concerned Group and Sixteen Others
v Minister of Water Affairs and Others
; Case No.
2809/2012; Eastern Cape Local Division, Port Elizabeth
. I
do not understand this judgment to say that the failure to proceed by
way of
Rule 53
is fatal to an application. On the contrary, at
para [19] Goosen J states as follows:
“
[19]
In this instance the applicants did not utilise
Rule 53.
They
are of course not obliged to do so. However, in the light of
the fact that
Rule 53
was not utilized no record of the proceedings
or material considered by the first respondent was made available by
the first respondent
in accordance with the provisions of
Rule 53.
”
[17]
Mr
Richards
argued in reply that the lack of a record could
only be to the Applicant’s prejudice, not the First
Respondent. I am
not convinced that this is correct and it
certainly does not appear to have been the case in the
Windfarm
matter. Be that as it may, the
Windfarm
matter is
distinguishable in two respects: firstly, certain of the
respondents filed an application in accordance with
Rule 30
alleging
the failure to apply
Rule 53
was an irregular step; and, secondly,
there was an allegation of prejudice to those respondents, which the
Court in fact found.
In the present matter there is no such
application, nor could Mr
Ford
point to any prejudice to the
First Respondent. In the circumstances I am not prepared to
non-suit the Applicant for failing
to apply
Rule 53.
[18]
The First Respondent also argued that the correct approach would have
been to bring an urgent application
for an interim interdict pending
an application for review in due course. While this may be the
appropriate course to adopt
in certain circumstances I see no reason
why it should be the invariable approach. Ironically, on the
one hand the First
Respondent challenges urgency, whereas on the
other hand it argues that the Applicant should have first brought an
application
for an interim interdict on an urgent basis. Mr
Ford
also did not establish any prejudice to the First
Respondent as a result of the procedure adopted by the Applicant. I
am
therefore also not prepared to non-suit the Applicant on this
basis.
[19]
The next technical / procedural point involved the nature of the
relief sought by the Applicant in
paragraph 2 of the original notice
of motion – prior to the amendment thereof. It was argued
that the Applicant was
obliged to review and set aside both the
original decisions and the decision on appeal. As support for
this contention Mr
Ford
relied on
Wings Park Port
Elizabeth (Pty) Ltd v MEC, Environmental Affairs, Eastern Cape and
Others
2019 (2) SA 606
(ECG)
. In a thorough
analysis of the legal position, Plasket J (as he then was) concluded
that it all depended on the nature of
the internal appeal.
Referring to
Tickly v Johannes NO & Others
1963
(2) SA 588
(T)
, three types of internal appeals were identified,
namely:
(a)
An appeal in the wide sense, i.e., a complete re-hearing;
(b)
An appeal in the narrow sense, i.e., a re-hearing limited to evidence
/ information placed before
the hearing of first instance;
(c)
A review, i.e., a limited re-hearing with or without additional
evidence / information to determine,
not whether the decision was
correct, but whether the hearing of first instance was properly
conducted.
[20]
Section 62(3) of the Systems Act reads as follows:
“
62(3)
The appeal authority must consider the appeal, and confirm, vary or
revoke the decision, but no such variation or revocation
of a
decision may detract from any rights that may have accrued as a
result of the decision.”
[21]
On behalf of the Applicant Mr
Richards
argued with some vigour
that the present application was distinguishable from the
Wings
Park
matter in that the appeal process in that matter
(s43
of the
National Environmental Management Act, 107 of 1998
)
differed. In
Groenewald NO & Others v M5 Developments
(Cape) (Pty) Ltd
2010 (5) SA 82
(SCA)
at paras [23]
and [25] it was held that an appeal in terms of s62 of the Systems
Act is a wide appeal. Fortunately for the
Applicant the amended
notice of motion, which amendment was not opposed by the First
Respondent, solved this problem for the Applicant.
See also:
Sewperath v Minister of Finance & Another
[2019]
4 All SA 668
(SCA).
In the result this point
in limine
must also fail.
[22]
The First Respondent also contended that the other unsuccessful
tenderers should have been joined as
they have an interest in the
outcome, particularly as the Applicant’s main prayer is for it
to be substituted as the successful
tenderer.
[23]
The Applicant, relying on
Groenewald
, submitted that
the Second Respondent could not award the tender to a party that had
not appealed against the decision. Although
Mr
Ford
argued that
Groenewald
is distinguishable, I fail to
see how. That matter also concerned s62 of the Systems Act and,
while the facts are distinguishable,
the principle, in my view, holds
good in the present matter (see paras [23] – [25]). This
point must also fail.
[24]
Finally, it was argued that the failure to cite the municipal
manager, being the decision-maker, was
fatal to the application.
The Applicant side-steps this by arguing that the decision that is
being attacked is that of the
Second Respondent, as the appeal
authority. Of course, the amendment changed the situation.
Whatever the rationale,
I am not persuaded that failing to cite the
municipal manager is material and a ground for dismissing the
application. It
is relevant that the answering affidavit was
attested to by the First Respondent’s municipal manager, so it
can hardly be
argued that the official had no knowledge of the
matter.
[25]
I turn now to the merits.
[26]
The Applicant was declared non-responsive at the Bid Evaluation
Committee stage, its finding being
recorded as follows:
“
Out
of the 8 bid documents that were received, the following bidders were
disqualified:
·
Alex Maintenance and
Electrical – Billing clearance expired
·
Ikhona Techni
(Pty) Ltd – not all directorates
(sic)
summitted IDs
·
Mogoba Mapluti –
ID copies not certified”.
(My
emphasis).
[27]
It is not clear from the tender documents what type of entities the
eight tenderers were. Some
were companies and at least one (the
Third Respondent) was a close corporation. Others appear to be
joint ventures.
Whatever the position, apart from the Applicant
and one other (because the identity documents were not certified) all
the other
tenderers were regarded as responsive in this regard. In
other words, certified identity documents of all the relevant
individuals
were supplied.
[28]
It is the Applicant’s case that the reference to “
ID
”
or “
identity document
” cannot simply be read into
the sentence in question, or assumed. The Applicant submits
that the requirement is not
only vague, but patently non-specific to
the point that it makes no sense at all. Thus, it submits, its
disqualification
was in contravention of s6(2)(a)(i), (c), (d),
(e)(iv) and (i) of PAJA.
[29]
The Applicant also submits that the requirement that the directors’
identity documents be attached
makes no sense in that its bid in any
event contains all the necessary information which appears on an
identity document, which
documents would thus be superfluous.
[30]
The Applicant also submits that requiring company directors to submit
their identity documents is unfair
in that the same is not required
from sole proprietorships, partners, members of a close corporation
and trustees of a trust.
[31]
As to why, when it submitted its bid, the identity documents of three
of the four directors formed
part of the documentation the
Applicant’s case is that it is involved in several tender bids
every month and these identity
documents just happened to form part
of the “
standard
bundle
”, or “
pack
”,
as it was referred to in the papers, and not because it was a
requirement of the tender it submitted.
[32]
In response to the above the First Respondent ridicules the
Applicant’s explanation. It
admits the wording of the
offending sentence contained a patent and obvious error which was
“
patently
meaningless
”, but that this must
have been clear to all concerned, including the Applicant who, on its
own admission, is an experienced
tenderer, as to what was required.
It is quite clear that the reference to “
Certified copies of
Company Directors
” can only have meant certified copies of
their identity (ID) documents. It was argued that the fact that
all the other
tenderers included identity documents in their bids
(albeit one not being certified) is support for this contention.
[33]
The First Respondent also points out that the Applicant attended the
site clarification meeting and
the meaning and effect of the
offending sentence was not raised, which is again surprising given
the Applicant’s experience
in the tendering business. It
is relevant that at the meeting there was a question and answer
session and this issue
was not raised.
[34]
That certified copies of the director’s identification
documents was an immaterial requirement
is also shot down by the
First Respondent. The documents in question are a material
requirement in order to identify who
the directors are. In
support of this submission, during argument Mr
Ford
latched on
to the fact that the deponent to the Applicant’s founding and
replying affidavits was one Phil Naude, who describes
himself as a
director of the Applicant. This individual is not listed as a
director in the tender documents submitted by
the Applicant.
While opportunistic, the point is well made.
[35]
In conclusion the First Respondent submits that the Applicant’s
case is “
fanciful and disingenuous
” and that it
only has itself to blame for having omitted a certified copy of one
of its directors’ identity document.
[36]
I have to agree with the First Respondent’s submissions in this
regard. On the face of it the
requirement in question makes no sense,
but it must be read in conjunction with the introductory sentence
which refers to the
compulsory documents
which must be
submitted with the tender. What else can be required but
certified copies of directors’ identity documents.
Furthermore, if the Applicant was unsure what the requirement meant
it should – and could – have asked. It had
an
opportunity to do so and as an experienced tenderer one would have
expected the Applicant to query a vague, non-specific requirement
to
the point that it makes no sense at all (the Applicant’s
description). It was not simply entitled to ignore it.
In
addition, certified copies of three of the directors’ identity
documents were included in the Applicant’s tender.
The
date of the certification is “
30/03/2020”
, which
ties in with the date of the tender. Other documents, such as
the COR39 form issued by the CIPC, are also certified
on the same
date. Thus, the three identification documents were
specifically certified for the purposes of this tender and
not simply
because they formed part of the usual “
bundle”
or
“
pack”.
[37]
Its explanation, in my view, is lame and smacks of an afterthought.
The overwhelming probability
is that the Applicant understood what
the requirement meant, hence the inclusion of three of the directors’
identity documents,
duly certified, but that due to an oversight the
fourth director’s identity document was omitted. (How
Phil Naude fits
into the picture need not be explored at this stage).
[38]
In the circumstances I find that the failure to include a copy of the
fourth director’s certified
identity document amounted to
non-compliance with the First Respondent’s tender requirements.
[39]
That brings me to the next issue, or, as put by Mr
Richards
,
the second leg of his argument: was the omission material?
Put another way: did it justify disqualification?
[40]
The Applicant submits that the requirement is immaterial and lacks a
lawful purpose. Mr
Richards
relied on
Allpay
Consolidated Investment Holdings (Pty) Ltd & Others v Chief
Executive Officer, South African Social Security Agency &
Others
2014 (1) SA 604
(CC)
at paras [28] – [30], in which
Froneman J (writing for the Court) held:
“
[28]
Under the Constitution there is no reason to conflate procedure and
merit. The proper approach is to establish,
factually, whether
an irregularity occurred. Then the irregularity must be legally
evaluated to determine whether it amounts
to a ground of review under
PAJA. This legal evaluation must, where appropriate, take into
account the materiality of any
deviance from legal requirements, by
linking the question of compliance to the purpose of the provision,
before concluding that
a review ground under PAJA has been
established.
[29]
Once that is done, the potential practical difficulties that may flow
from declaring the administrative
action constitutionally invalid
must be dealt with under the just and equitable remedies provided for
by the Constitution and PAJA.
Indeed, it may often be
inequitable to require the rerunning of the flawed tender process if
it can be confidently predicted that
the result will be the same.
[30]
Assessing the materiality of compliance with legal requirements in
our administrative law is, fortunately,
an exercise unencumbered by
excessive formality. It was not always so. Formal
distinctions were drawn between ‘mandatory’
or
‘peremptory’ provisions on the one hand and ‘directory’
ones on the other, the former needing strict
compliance on pain of
non-validity, and the latter only substantial compliance or even
non-compliance. That strict mechanical
approach has been
discarded. Although a number of factors need to be considered
in this kind of enquiry, the central element
is to link the question
of compliance to the purpose of the provision. In this court
O’Regan J succinctly put the question
in ACDP v Electoral
Commission as being ‘whether what the applicant did constituted
compliance with the statutory provisions
viewed in the light of their
purpose’. This is not the same as asking whether
compliance with the provisions will lead
to a different result.”
[41]
On the other hand Mr
Ford
relied upon the decision of
Dr
JS Moroka Municipality and Others v The Chairperson of the Tender
Evaluation Committee of the JS Moroka Municipality & Others
[2014] 1 All SA 545
(SCA)
where Leach JA (in a unanimous
judgment) stated at para [10]:
“
[10]
… Essentially it was for the municipality, and not the
court, to decide what should be a prerequisite
for a valid tender,
and a failure to comply with prescribed conditions will result in a
tender being disqualified as an ‘acceptable
tender’ under
the Procurement Act unless those conditions are immaterial,
unreasonable or unconstitutional.”
[42]
The distinction between
Allpay
and
Dr JS Moroka
is that the first matter dealt with a failure to comply with
legislative requirements and whether, on the basis of a just and
equitable remedy the failure could be overlooked, whereas the second
dealt with a municipality’s compulsory tender requirement,
which is the case in the present matter. In my view
Allpay
does not apply.
[43]
So, is the condition that certified copies of directors’
identity documents, however badly worded,
“
immaterial,
unreasonable or unconstitutional
”? I do not believe
so. The production of ones’ ID book is standard practise
and part and parcel of every
South African’s daily life.
It is frequently the starting point for a business transaction.
The argument that
the requisite information appears elsewhere in the
tender document does not suffice: the purpose of requiring a
certified
copy is no doubt to ensure independent verification of the
truth and accuracy of the information. For this reason another
tenderer,
who attached uncertified copies of the directors’
identification documents was excluded.
[44]
In the circumstances I find that the Applicant has not made out a
case for the review of the First
and Second Respondents’
decisions to declare the Applicant non-responsive and to disqualify
its bid. Given this finding
it is not necessary to consider the
relief the Applicant sought.
[45]
Which brings me to the counter-application.
[46]
The First Respondent concedes
ex post facto
that the award of
the tender to the Third Respondent stands to be reviewed and set
aside. It submits that the matter should
be remitted back in
order for all qualifying bids to be reconsidered, re-evaluated and
scored and an appropriate tender awarded.
[47]
It is evident from the above that the First Respondent is of the view
that the Applicant’s bid,
having been legitimately
disqualified, does not qualify for reconsideration and re-evaluation.
[48]
The Applicant’s opposition to the counter-application is based
on the following grounds:
(a)
This issue is
lis
pendens
;
(b)
No proper case is made
out;
(c)
Referral back in not
competent.
[49]
I do not follow the reasoning behind the first ground. The fact
that the award of the tender
to the Third Respondent is one of the
issues raised in the main application does not preclude the First
Respondent from bringing
an application to challenge its own
decision. The decision stands until set aside by a court. It
is also brought on
the basis of a legality review, not in accordance
with PAJA.
[50]
I am also not persuaded that the First Respondent has not set out
sufficient reason for the review
of its own decision. It says
that, on advice, the Third Respondent’s CIBD grading was
incorrect, and it failed to submit
the required financial statements
together with form MBD5. If this is so, and I do not understand
the Applicant to challenge
the allegations, sufficient grounds are
established for the First Respondent to challenge its own decision.
The Applicant
challenges the award to the Third Respondent on
very much the same grounds.
[51]
The First Respondent says it erred and provides its reasons, albeit
cryptically. In the absence
of a denial by the Applicant
supported by facts to the contrary, the First Respondent’s
version must be accepted.
[52]
Insofar as the third ground of opposition is concerned, the Applicant
again relies on
Groenewald
. At para [27] the
following is stated:
“
[27]
It was suggested during argument that if Groenewald had not been
empowered to award the contract to ASLA, the court
a quo should have
referred the matter back to the adjudication committee to enable it
to reconsider the award, and that this court
should therefore make
such an order. There seems to me to be no merit in this
suggestion. Groenewald’s power
under section 62(3) was to
“consider the appeal, and confirm, vary or revoke the
decision”. He had no power to
refer the matter back to
the adjudication committee for reconsideration. That being so,
the court a quo could not have made
an order on review that
Groenewald could not have made, and neither can this court.”
[53]
The Groenewald matter is distinguishable in that a disgruntled
tenderer brought an application to review
the decision of the
municipality. The municipality stuck to its guns and, when it
lost in the court
a quo
, took the matter on appeal.
Unlike in the present matter, the municipality concerned did not
being a legality review of its
own decision. Thus, the third
ground of opposition is also without merit. Ironically, in the
amended notice of motion
the Applicant prays in the alternative that
the matter be remitted back, but in response to the
counter-application argues that
this is not competent.
[54]
In the circumstances, the counter-application must succeed.
[55]
I see no reason why the cost of the main application should not
follow the result. Insofar as
the counter-application is
concerned, the First Respondent was obliged to bring it and would
have been saddled with the costs irrespective
of any opposition. I
accordingly intend to order each party to pay its own costs.
[56]
I make the following order:
1.
The Applicant’s
application is dismissed with costs.
2.
The First Respondent’s
counter-application succeeds and the following order shall issue:
2.1.
That the decision of
the First Respondent to award the Tender for the “
Upgrading
of roads and storm water in Enon and Bersheba – Phase 1 –
Contract No. SRVLM06/27/EB”
to
the Third Respondent is reviewed and set aside.
2.2.
That the acceptable and
responsive tenders submitted in the aforesaid tender process be
referred back to the First Respondent for
evaluation by its Bid
Evaluation Committee and Bid Adjudication Committee in order for a
successful tender to be identified and
an appropriate appointment
made by the First Respondent.
3.
The Applicant and the
First Respondent shall each pay their own costs of the
counter-application.
__________________________
N.J. MULLINS
ACTING JUDGE OF
THE HIGH COURT
Obo the
Applicant:
Adv. G. RICHARDS
Instructed
by:
JOUBERT GALPIN & SEARLE
173
Cape Road
Mill
Park
PORT
ELIZABETH
(Ref:
Warren Parker)
Obo the First
Respondent:
Adv. EAS FORD SC
Instructed
by:
PUMEZO BONO INC.
15
Annerley Terrace
Central
GQEBERHA
(Ref:
P Bono)