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2023
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[2023] ZAFSHC 409
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Kir Projects v Actophambili Roads and Others (5857/2022) [2023] ZAFSHC 409 (26 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 5857/2022
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In the matter
between:
KIR PROJECTS
APPLICANT
and
ACTOPHAMBILI
ROADS
1
ST
RESPONDENT
SOUTH AFRICAN
NATIONAL ROADS AGENCY
2
ND
RESPONDENT
MANOPIX
3
RD
RESPONDENT
HEARTY OAK
4
TH
RESPONDENT
CORAM:
LOUBSER, J
et
MTHIMUNYE, AJ
HEARD
ON:
7 AUGUST
2023
JUDGMENT
BY:
MTHIMUNYE, AJ
DELIVERED ON:
26 OCTOBER 2023
[1]
This is a two-pronged application in terms of the common law and / or
section 6
of the
Promotion of Administrative Justice Act 3 of 2000
,
wherein the applicant seeks to review and set aside tenders awarded
by the first respondent to the third and fourth respondents’
joint venture. It is apposite to mention that the first respondent
was appointed by the second respondent as the main contractor
to
perform certain works. In turn, the first respondent appointed the
third and fourth respondents as its sub-contractors. It is
the first
respondent’s tenders for appointment of the sub-contractors
that is the subject of these proceedings. The
applicant is one
of the bidders that were unsuccessful.
[2]
In Part A, of the Notice of Motion the applicant seeks, on an urgent
basis to interdict, in the
interim, the first respondent from
concluding an agreement with, and handing over the construction site
for Traffic Accommodation
under Contract Numbers R.30-012-2019/1 and
R.30-010-2021/1 for the periodic maintenance of National Route R30,
Section 1
to
Section 2
Brandfort, and maintenance of National Route
R30,
Section 1
from Glen Lyon Interchange to the third and fourth
respondents. Further, to be interdicted from performing any functions
and obligations
arising from any Service Level Agreement (s), and/or
agreement (s) concluded with the third and fourth respondents,
including making
any payments to the third and fourth respondents.
[3]
In Part B, the applicant seeks the following orders: an order
declaring the first respondent’s
decision not to award the
impugned tender to the applicant unlawful, such decision to be
reviewed and set aside in accordance with
section 6
of the
Promotion
of Administrative Justice Act 3 of 2000
, or applicable common law.
Pursuant to that, any contract concluded between the first respondent
and the third and fourth respondents
joint venture in consequence of
the award of the tender to the third and fourth respondents, be
reviewed and set aside, and the
reward of the tender to the third and
fourth respondents be substituted with an order appointing the
applicant in accordance with
the provisions of section 8 of the
Promotion of Administrative Action Act 3 of 2000 or applicable common
law.
[4]
The historical timeline to this application is as follows: the
tenders were awarded by the first
respondent on 19 October 2022 and
accepted by the third and fourth respondents on 20 October 2022. The
applicant avers that only
on 20 November 2022 did it become aware of
the tender awards which is why this application was then launched on
23 November 2022.
Despite this averment by the applicant, it is
clear from the papers that the notification of tender awards was
indeed emailed
by first respondent to the applicant advising them of
the tender results, which the applicant confirms it later discovered
in it’s
spam account around 7 November 2022. The urgent relief
in Part A was set down for hearing on 5 December 2022 but on that
day, the
applicant removed the application from the roll. Thereafter
the Applicant took his time to prosecute the relief sought in Part B.
It is also important to mention that tender works were for a period
of approximately six months.
[5]
In its answering papers, the first respondent first and foremost
raised a number of points
in limine
, one being the non-joinder
of Sirobi Civils, a joint venture partner of the first respondent.
The applicant contended that
although it does not dispute this joint
venture, the issue
in casu
is not the identity of the main
contractor but rather the decision-maker whose decisions form the
subject matter of these review
proceedings. At the hearing of the
matter, these were not raised and what was placed for determination,
what whether or not this
court has the authority to entertain this
application, given the delay in the applicant’s prosecution
thereof, which delay
has resulted in the proverbial horse having
bolted.
[6]
This court then sought an explanation from the applicant why, when
Part A fell through in December
2022, it did not follow through with
Part B whilst the construction was still proceeding, albeit only 20%
thereof was left. In
fact, the respondent submitted that at the time
this application for an interdict was sought, the successful bidders
had already
established itself on site and well on its way to
complete the project, with 50% of the project costs already expended.
At that
time, the applicant should have been aware of a need to
urgently prosecute the review application. The applicant’s
submission
in this regard was that its correspondent attorneys were
furnished with correspondence on 21 January 2023 requesting full
answers
from the first respondent and for the project to be halted.
The first respondent rejected the applicant’s request on 7
March
2023. It was only thereafter, that the Applicant could apply
for the date and due to impracticalities, it could not approach the
Deputy Judge President for an expedited date.
[7]
At the time this matter was heard on 7 August 2023, both tenders had
been fully executed and the
sub-contractors fully paid. In terms of
the status update filed by the first respondent, the contract was
completed on 21 April
2023 and final payments were made. The effect
hereof is that the present proceedings before this court is no more
than an academic
exercise which would have no practical effect on the
impugned decision of the first respondent. The question may then be
regarded
as moot in the circumstances. The Applicant submitted that
even if the matter is moot, the court has a discretion to exercise
based
on the interests of justice.
[8]
Section
7 of PAJA
regulates the procedure for judicial review
and it provides:
(1)
Any
proceeding for judicial review in terms of section 6(1) must be
instituted without unreasonable delay and not later than 180
days
after the date…”
[9]
This section is self-explanatory in that it sets out two requirements
for judicial review proceedings
viz. that the application must be
brought without unreasonable delay and that it must be brought within
one hundred and eighty
days. These requirements were clearly
explained by the Supreme Court of Appeal in
Opposition to Urban
Tolling Alliance v South African National Roads Agency Limited
[2013]
4 All SA 639
(SCA)
as follows:
“
At common law application of
the undue delay rule required a two-stage enquiry. First, whether
there was an unreasonable delay and,
second, if so, whether the delay
should in all the circumstances be condoned…. Up to a point, I
think Section 7(1) of PAJA
requires the same two stage approach. The
difference lies, as I see it, in the legislature’s
determination of a delay exceeding
180 days per se as unreasonable,
Before the effluxion of 180 days, the first inquiry in applying s
7(1) is still whether the delay
(if any) was unreasonable. But after
the 180-day period this issue of unreasonableness is pre-determined
by the legislature: it
is unreasonable per se. It follows that the
court is only empowered to entertain the review application if the
interest of justice
dictates an extension in terms of section 9.
Absent such extension, the court has no authority to entertain the
review application
at all”
[10]
Although Counsel for the applicant argued that this court may
adjudicate an application which is moot if
it is in the interest of
justice, it was not clear what
in casu
would be the interest
of justice to justify the court’s entertainment of this matter.
On the basis of the provisions of section
7(1) of PAJA and the
judgment cited above, this court is of the view that the applicant’s
leisurely approach in prosecuting
Part B without any zealousness has
caused an unreasonable delay, and as such the court does not have the
authority to entertain
the review application. In any event, the
matter has become moot as a result, and the orders sought by the
applicant would have
no practical effect.
[11]
Consequently, the following order is made:
1.
The application is dismissed with costs,
including the costs of the urgent application of 5 December 2022.
D.
P. MTHIMUNYE, AJ
I
concur:
P.
J. LOUBSER, J
For the Applicant:
Adv. Mokgotho
Instructed by
Moletsane PN
Attorneys Inc.
Johannesburg
For the
Respondents:
Adv. M. Louw
Instructed by:
Honey Attorneys
Bloemfontein