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2023
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[2023] ZAFSHC 53
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South Bound Van Lines CC v HOD: Free State Provincial Department of Health and Another (359/2023) [2023] ZAFSHC 53 (24 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 359/2023
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
SOUTH
BOUND VAN LINES CC
Applicant
and
THE
HOD: FREE STATE PROVINCIAL DEPARTMENT
OF
HEALTH
First Respondent
THE
MEC: FREE STATE PROVINCIAL GOVERNMENT:
DEPARTMENT
OF HEALTH
Second Respondent
HEARD
ON:
16
FEBRUARY 2023
JUDGEMENT
BY:
LOUBSER, J
DELIVERED
ON:
The judgment was handed down
electronically by circulation to the parties’ legal
representatives
by email and released to SAFLII on 24 FEBRUARY 2023.
The date and time for hand-down is deemed to be 24 FEBRUARY 2023 at
12:00
[1]
This is an application that comes before this court in the form of a
semi-urgent application
in terms of the Promotion of Administrative
Justice Act
[1]
(“PAJA”). The applicant seeks an order to compel the
Respondents to provide full and written reasons why its tender
for
the provision of distribution and courier services for the
Respondents’ department was not successful. In addition, it
seeks a number of documents relevant to the specific tender process
that was followed in substantiation of the required reasons,
and
lastly it seeks an order that all this information be provided within
5 days of the order.
[2]
Section 5 of PAJA provides that
any person whose rights have been adversely affected by
administrative action and who has not been given reasons for the
action, may within 90 days, request that the administrator concerned
furnish written reasons for the action. Section 5(2) provides that
such reasons must be furnished within 90 days after receiving
the
request.
[3]
Generally speaking, the Act leaves no doubt that the applicant has
the right to call
for reasons explaining the decision. In terms of
the Act, this is a clear right of any person whose rights have been
adversely
affected by administrative action.
[4]
It appears from the papers before me that the applicant has submitted
a formal bid
for tender DOH(FS) 04/2022/2023, which closed on 29 July
2022 at 11 am, to the Free State Department of Health for the
provision
of certain services. The applicant then became aware of
certain irregularities in the tendering opening process, and the
applicant
bemoaned this fact in a letter to the Department. On 29
November 2022 the applicant requested by letter information as to the
status
of the tender and when bidders can be informed of the outcome
of the tender. The Department failed to respond to this letter.
Another
letter by the applicant then followed in the same vein, and
again there was no response.
[5]
Eventually, on 14 December 2022, the Department responded by
informing that the applicant’s
bid was unsuccessful and that
the Department was in the process of concluding contracts with the
successful bidders, who will be
published on the tender bulletin in
early January 2023. The applicants replied that it requires full and
adequate reasons as to
whom the tender was awarded to by 16 January
2023, and also certain documents to substantiate those reasons. The
applicant mentions
in its letter that it needed the information and
the documents to consider its prospects of successfully impugning the
decision
to award the tender to another bidder. The applicant
expressly stated that failure to comply with the request timeously,
will result
in an urgent application in the High Court to compel the
Department to provide the required information and documents.
[6]
According to the applicant, the tender opening process was flawed. It
is common practice
that tenders are opened in public where the names
of bidders and the tender prices and the B-BBEE points claimed by
bidders are
revealed. This did not happen, the applicant alleged.
[7]
It is clear to this court that the applicant needs the required
information to consider
a review application for the setting aside of
the tender award. It speaks for itself that a review application
should preferable
be launched before the successful bidder assumes
his obligations, and therefore a person in the shoes of the applicant
cannot wait
indefinitely before he takes steps to have the award set
aside. There are also financial implications for an unsuccessful
bidder
in such circumstances which I need not spell out. The result
is that I am prepared to accept the notion that this application is
at least semi-urgent in nature.
[8]
The applicant points out that
the validity period for all tenders submitted was 120 days,
which
period would have expired on 27 November 2022. This is why the
applicant sent letters of enquiry to the Department after
this date.
It complained,
inter alia
, that they were not yet informed of
the outcome of the tender. In their eventual response, the Department
did not reveal the name
of the successful bidder. It later transpired
that a second component of the tender was only awarded after the
tender validity
period to an entity by the name of Safranic.
[9]
The respondents oppose the
application firstly, on the basis that it is not urgent. I have
already dealt with this issue. Secondly the respondents opposed the
reduction of the 90 day period to a 5 day period within which
the
information must be provided. They rely on the 90 day period allowed
for in section 5 of PAJA. Thirdly, the respondents deny
that they
were requested reasons for their decision. They were only requested
to furnish reasons why the applicant was not selected
as the
successful bidder. Later the request was for reasons for selecting
the successful bidder. In my view, nothing turns on this
contention.
Clearly the applicant wanted information and reasons for the
Department’s decision, irrespective of how the request
was
formulated. The respondents add that should reasons for the decision
itself be requested, they will supply same within the
period
stipulated in PAJA. Lastly, the respondents contend that they are not
obliged by PAJA to produce any documents on which
their decision was
based, but only to the reasons for their decision.
[10]
As for the last-mentioned contention advanced by
the respondents, I was referred to two different decisions
of this
division of the High Court where it was held that an applicant cannot
demand documents underscoring a decision when reasons
for that
decision are sought in terms of PAJA. In the
Democratic
Alliance v The Head of the Department of Human Settlements, Free
State Province
[2]
Van Zyl, J held that an applicant cannot rely upon PAJA for the
relief sought regarding the disclosure and production of
documentation.
This is so, because there is no provision in PAJA
itself entitling the applicant to the disclosure or production of
documents.
[3]
[11]
In
Cell
C Service Provider (Pty) Ltd v MEC:
Free
State Provincial Government: Department of Treasury
[4]
Rampai, J came to the same conclusion. “
It
is rather quite vivid that the legislation … called PAJA is
exhaustively concerned with written request for written reasons
relative to an administrator’s decision or action and not an
administrator’s record or information relative to an
administrative decision on which the action was based. The
applicant’s reliance on the legislation that concerns reasons
instead of the legislation that concerns information was
fundamentally misguided,” he stated.
[5]
The legislation to which the learned Judge referred to in this
respect, was the Promotion of Access to Information Act.
[6]
[12]
I agree with the sentiments expressed in the two decisions mentioned.
It follows that the applicant
in the present application is not
entitled to the documentation it seeks in terms of PAJA.
[13]
Upon a proper and due consideration of all the
application papers before me, I come to the conclusion that
the
respondents were unreasonably reluctant to provide the applicant with
the reasons for their decision. In addition, the application
was
filed more than two weeks ago, and still the respondents did nothing
to provide the applicant with the required reasons. On
the other
hand, I am mindful of the fact that the reluctance of the respondent
probably stemmed from the misguided request for
documentation
underscoring the decision, and from the prayer in the notice of
motion requesting that the 90 day period for the
furnishing of the
information be reduced to a period of only 5 days. Since the
legislature has obviously considered the 90 day
period as a
reasonable period, I am of the view that a mere 5 day period is
unreasonable in the circumstances.
[14]
As for costs, I am guided by the fact that the applicant is only
partially successful in the
application, while the respondents were
correct in viewing the request for documentation and a reduction of
the 90 day period as
inappropriate. There was nothing, however, that
could have stopped the respondents from providing the reasons for
their decision
timeously, as they were obliged to do in terms of
PAJA. In the circumstances, it would be fair to both parties not to
make any
order of costs.
[15]
The following orders are made:
1.
The applicant’s non-compliance with the Rules of Court
relating
to time periods and service is condoned, and the application is heard
on a semi-urgent basis.
2.
The first and the second respondents are ordered to, within
20 days
after the date of this order, provide the applicant with full and
written reasons for its failure to secure Public Contract
styled
DOH(FS) 04/2022/2023: Appointment of Suitable Service Provider to
Render Distribution and Courier Services for Pharmaceutical,
Medical
Consumables, Forms and Cold Chain Items to Various Institutions
within the Free State Department of Health.
3.
No order as to costs.
P.
J. LOUBSER, J
For
the Applicant:
Adv. S. Grobler SC
Instructed
by:
Honey Attorneys, Bloemfontein
For
the Respondents:
Adv. N. Snellenburg SC
Instructed
by:
Moroka Attorneys, Bloemfontein
/roosthuizen
[1]
Act 3
of 2000
[2]
Case
no. 3101/2015 FS High Court
[3]
Page 8
of the judgement.
[4]
Case
no. 2812/2018 FS High Court
[5]
Par 104
of judgement
[6]
Act 2
of 2000