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[2023] ZAKZPHC 13
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Sabelo Cele, T/A Amahle Building and Renovations v Umzumbe Local Municipality and Others (407/2023P) [2023] ZAKZPHC 13 (6 February 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
KAWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER: 407/2023P
In the matter between:
SABELO CELE, T/A
AMAHLE BUILDING
AND
RENOVATIONS
APPLICANT
And
UMZUMBE LOCAL
MUNICIPALITY
FIRST RESPONDENT
THE MUNICIPAL MANAGER,
MR T P CELE
SECOND RESPONDENT
UMZUME LOCALA
MUNICIPALITY
MANYOBO GROUP JV
LUNGAPHI (PTY) LTD
THIRD RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
Applicant has brought an application on an urgent basis seeking the
relief as set
out in the notice of motion. The matter concerns a
tender which was granted by First Respondent to Third Respondent in
respect
of the construction of the Phungula Access Road. There were
35 tenders of which Applicant was one. Applicant was however
unsuccessful
and now seeks interim relief pending a review
application which he wishes to bring.
[2]
The first issues which arose and which the order of 20 January 2023
provided could
still be argued was whether the matter was urgent and
should be dealt with as a matter of urgency. The other issue was
whether
Applicant had made out a case for interim relief. Due to time
constrains it was agreed that the parties would address me on both
these issues at the same time. The application was not opposed by
Third Respondent but only by the First and Second Respondents.
[3]
In respect of the issue of urgency it was submitted on behalf of
Applicant that it
was an application in terms of section 8 of the
Promotion of Administration of Justice Act 3 of 2000. The application
was issued
on 16 January 2023 and the matter was before court on 20
January 2023 where after it was adjourned to 25 January 2023 and to
31
January 2023. It was submitted that it became a matter of urgency
on 12 December 2022 when a letter from Applicant’s attorney
dated 12 December 2022 and wherein it is stated that it is believed
that the tender procedure was flawed, procedurally unfair and
potentially fraudulent was sent to Respondents. Respondents are
therein informed that the tender award is to be challenged. It
was
submitted that Second Respondent lied in his affidavit as on 31
January 2023 when this matter was heard four affidavits had
been
obtained from people who Second Respondent stated attended the Bid
Evaluation meeting stating that they did not do so.
[5]
In respect of the interim relief it was submitted that there was no
acceptable evidence
to support the merits by Respondents and that
they were not truthful. Applicant had a clear right, fraud was
perpetrated and First
and Second Respondents indicated that they
would respond in terms of PAJA and that the road construction would
proceed. It was
submitted that the attendance register attached to
the answering affidavit related to 14 June 2022 and did not refer to
this case.
It was submitted that Applicant had made out a case for a
temporary interdict.
[6]
It was submitted on behalf of First and Second Respondents that the
cause of the action
arose on 14 November 2022 and that there is
nothing in the founding papers of Applicant indicating that it only
arose on 12 December
2022 as alleged. After 14 November 2022 it was
not mentioned that there was any fraud committed until the
correspondence of 12
December 2022. The reply by Respondents on 15
December 2022 was justified. Applicant does not state what caused the
so called fraud.
It was only on 12 December 2022 that Applicant
threatened with an urgent application. This was responded to on 15
December 2022
but nothing happened thereafter. The papers were only
issued on 16 January 2023. Applicant’s founding affidavit was
signed
by him on 13 January 2023 which indicates that nothing was
done since December 2022.
[7]
As far as the interim relief was concerned it was submitted that
there was no fact
in the founding affidavit disclosing the basis for
such relief. Even up to the reply no such case has been made out. In
the founding
affidavit in paragraph 23 it was set out that the
challenge of the correctness of the merits of the determination of
the finding
in respect of the BEC and NBAP is presently academic in
the light of the facts of the legal basis relied upon in the judicial
review
proceedings. It was submitted that the minutes of the meeting
attached to the answering affidavit deals with the tender and
indicates
that it was held on 13 June 2022 and that one of the issues
was the construction of Phungula Access Road. The applicant fell out
in the first round and was therefore unsuccessful and was then not
considered by the Bid Adjudication Committee.
[8]
Applicant contends that in paragraph 41 of the founding affidavit it
demanded that
affidavits from the Bid Adjudication Committee be
provided by Respondents and that they were not all provided and
therefore certain
people were subpoenaed to attend court to sign the
affidavits that were then handed up indicating that there is a
dispute as to
the process followed at the said meeting. Accordingly
Applicant has shown a clear right and that due to the festive season,
no
steps could be taken after 15 December 2022 and that there were
consultations on 22 December 2022 with counsel.
[9]
It would appear from the papers and the submissions made that
although the matter
was before court for the first time on 20 January
2023 it was adjourned to 25 and then 31 January 2023 for the parties
to either
file affidavits or supplement their papers and was then
heard on 31 January 2023.
[10]
It is common cause that Applicant was well aware that the tender was
not granted to it and then
appealed that decision. A copy of the
appeal decision is attached to the founding papers and it was
communicated to Applicant on
14 November 2022 that his appeal had
been dismissed. Applicant was therefore on 14 November 2022 well
aware that the internal remedies
had been completed and that his only
alternative would now be a review application. Applicant wants to
bring an application in
terms of section 8 of PAJA for the review.
What is sought at this stage is an interdict that the tender which
was awarded be stayed
and that the construction of the road by Third
Respondent does not proceed. The issue therefore, at this stage, is
whether Applicant
proceeded with sufficient urgency to obtain an
interim interdict. The provisions of the Rules of the High Court
relating to applications
are still applicable even if an application
is brought in terms of PAJA.
[11]
On the papers there is no indication that anything was done by
Applicant about this matter until
the letter from the attorney on 12
December 2022, approximately one month later. A perusal of the
founding affidavit does not indicate
when Applicant contends that it
came to his knowledge that there had been fraudulent conduct on the
part of First and Second Respondents.
There is no indication that
this only came to his knowledge during January 2023 because it in
actual fact indicates that consultations
were held during December
2022 with regard to this application.
[12]
Firstly as already stated there is no indication why nothing was done
from 14 November 2022 till
12 December 2022. In my view what is being
sought is an interdict preventing the implementation of the tender
until the review
has been finalised. Accordingly this should have
been done immediately when the appeal was dismissed. There is no
explanation why
from 12 December 2022 nothing was done until 16
January 2023 especially when consultations were held on 22 December
2022. The fact
that consultations were held on 22 December 2022 is
indicative that Applicant at that stage realised that the matter must
be dealt
with immediately. The fact that it was festive season did
not prevent Applicant from coming to court as the court operated
during
the festive period. Further there is no explanation why
nothing was done early January 2023. It was only set down for 20
January
2023 which was long after the festive season had ended and
accordingly in my view it would appear that Applicant caused the long
delay. It was due to Applicant’s failure, that it was not heard
much earlier. It was approximately 2 months after they knew
that the
appeal was dismissed that the application was brought. The urgency
was therefore of his own making and it has not been
shown on the
papers that the matter is urgent at this stage.
Order:
The matter is accordingly
struck off the roll with costs.
P C BEZUIDENHOUT J.
JUDGMENT
RESERVED:
31 JANUARY 2023
JUDGMENT HANDED
DOWN:
6 FEBRUARY 2023
COUNSEL FOR
APPLICANT:
S ALBERTS
Instructed
by:
Lister & Co
Ref: Jaun Goosen/Mat:
Amahle
Tel: 031 7657477
c/o Venns Attorneys
Pietermaritzburg
COUSNEL FOR 1
ST
& 2
ND
RESPONDENTS:
E VAN JAARSVELD
Instructed
by:
Kunene Attorneys
Pietermaritzburg
Tel: 033 345 97697
Ref: Mr Kunene