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[2023] ZAKZPHC 50
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Bhaki Trading and Suppliers CC v Ithala Development Finance Corporation Ltd (13477/2022P) [2023] ZAKZPHC 50 (10 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No
:
13477/2022P
In
the matter between
:
BHAKI
TRADING AND SUPPLIERS CC
APPLICANT
and
ITHALA
DEVELOPMENT FINANCE
CORPORATION
LTD
FIRST RESPONDENT
ORDER
1.
The
application is dismissed
.
2.
The respondent
is ordered to
pay costs of the application
.
3.
The costs
includes
costs
of two counsel where so employed.
JUDGEMENT
Delivered
on:
Mngadi
J
[1]
The
applicant
seeks
an
order
compelling
the
respondent
to
file
a
record
of
a decision
which is a subject of a review application
.
The respondent
opposes the application.
The review
application is in terms of the Promotion of Administrative Justice
Act No
.
3
of 2000 (PAJA)
[2]
The applicant
is Bhaki Trading
and Suppliers
CC t/a Bhaki
Security,
a
close corporation
duly
incorporated
and registered
in terms of the Close Corporation
Act. The
respondent is lthala Development Finance Corporation Limited, a
Schedule 3(d) provincial government business enterprise
established
in terms of the Public Finance Management.
[3]
The
applicant
in
the
review
application
seeks
to
review
and
set
aside
the decision
by the respondent
to cancel the
award of Cluster
1 to 3 of a
tender.
Further
,
it seeks
review
and set aside
the re-advertisement of a tender
to award
Clusters
1
to
3
of the tender
of the
applicant;
and
to compel the respondent to award Clusters
1 to 3 of the
tender to the applicant.
[4]
The applicant
in its founding affidavit deposed to by Bhekithemba Maphumulo its
managing
director to
the review application
states that on
is in the business of providing
security-guarding
services
.
It submitted
a bid to the
respondent
in
response to a tender for the appointment of a security provider to
render security guard services to 4 Clusters for a period
of 36
months
.
The applicant
then receives a letter dated 20 September
2021
,
which reads as
follows:
'
INTENTION
TO
AWARD
:
REP04/21
APPOINTMENT
OF A
SERVICE
PROVIDER
TO RENDER SECURITY GUARDING SERVICES AT VARIOUS ITHALA PROPERTIES IN
KWAZULU NATAL
We
refer to the above and advise that through our bid selection process
,
Bhaki
Trading and Suppliers
cc
has
been identified
as one
of the preferred
bidders
and
that it is our intention to appoint
Bhaki
Trading and Supplier cc
for
the
appointment
of a service provider to render guarding services at various lthala
properties in KwaZulu-Natal.
The
lthala SCM Policy provides for unsuccessful bidders to notify lthala
of their intention to appeal within
7
(seven)
working days if they wish to do
so
.
The
7
(seven) day
notification
period
for this bid will expire on the
29
September
2021
.
Should
lthala not receive the notice of appeal by this date
,
lthala
will proceed to issue
Bhaki
Trading
and Supplier
cc
with
a letter of award
.
The
awarding
of that
bid will be subject to
Bhaki
Trading and Supplier cc
signing
the SLA agreement.
Should
a notice to appeal be received within the prescribed
period
,
Bhaki
Trading
and Supplier cc
will
be informed accordingly and the normal Appeal Process will have
to be followed.
Whether
Bhaki
Trading and Supplier cc
will
remain the preferred bidder to be appointed for the appointment of a
service provider to render security guarding
services
at various
ltha/a
properties
in
KwaZulu-Natal
,
will
depend on the final outcome of such appeal
.
Accordingly
,
this
letter is only intended to advise
Bhaki
Trading and Supplier cc
preferred
bidder status at this stage and our intention to award
Bhaki
Trading and Supplier cc
for
appointment
of
a
service provider to render security guarding services at various
lthala properties in KwaZulu-Natal,
it
is not intended to create any rights and/or obligations
between
lthala
and
Bhaki
Trading and Supplier cc
.
The
contract will be for a period of three years based on your
performance to meet business objectives
.
Only
once
a
formal
letter of appointment is communicated to
Bhaki
Trading and Supplier
cc
and
thereafter,
a
signed
,
written
contract
is
concluded
between
Bhaki
Trading
and
Supplier
cc
and
lthala,
shall
a
contractual
relationship
arise
between
US
.
Should
Bhaki
Trading
and
Supplier
cc
require
any
further
clarification
as
to
the
process
that
will
follow
from
this
letter,
your
company
can
contact
the
writer
on
I[...]
Maphumulo
continues and states that in a letter dated 9 march 2022 the
respondent
awarded to the
applicant only Cluster 4
,
and the
respondent advised the applicant that as a results of the complaints
received it had cancelled awarding of the tenders to
the other three
Clusters
,
which
cancellation
,
the applicant
is challenging.
On 6 October
2022 the applicant launched the review application
.
[5]
In the review
application the applicant called upon the respondent in terms of
Uniform
Rule
53(1)
,
Firstly
,
to show cause
why the decision
should
not be
reviewed and set side
,
and secondly,
to despatch
within ten (10) days to the Registrar
of the court
the record of the proceedings
of the
decision and give such reasons as required.
[6]
On 21 October
2022 the respondent in a letter advised the applicant that
it
did not intend
to file a record
of the
decision
and
it was
not
obliged
to
do so,
both
under the Rule and under the requirement of PAJA.
The respondent
stated that the
review
application
was out of the 180 -day requirement prescribed in s7 (1) of PAJA and
there was no application seeking extension in terms
of s9 of PAJA.
In addition
,
the respondent
stated that
the applicant did not exhaust internal appeal remedies
.
[7]
On 2 November
2022 the applicant filed a notice in terms of Rule 30 A indicating
that if the respondent failed to produce the record
of a decision
within ten (10) days of the notice it shall apply for an order that
the respondent be compelled to comply with Uniform
Rules 53 (1) (b)
.
Despite the
lapse of the ten days
,
no record of
the decision was filed
.
[8]
The respondent
in opposing
the
application to compel stated that the review application was launched
outside the 180-day period and it is not accompanied by
an
application seeking the extension with a full explanation of the
delay
.
As such
,
it
contends
,
the review is
still born and the applicant is not entitled to the record of the
decision
.
In addition
,
the
review
application
should not be entertained because the applicant failed to exhaust
internal remedies
.
[9]
The respondent
further claimed that the applicant agreed to the cancellation by
accepting Cluster 4 and rejecting the other three
and not lodging an
y internal appeal, and participating
in the ongoing
tender process
of cluster 1
to 3
.
[10]
The respondent states
that since the decision was taken in March 2022
,
the
entertaining of the review shall cause it real prejudice
.
[11]
The applicant
in its founding affidavit to the review application under the
heading
'Conditional Application'
,
in terms of
section 7 of PAJA states that it ought to have launched the
application within 180 days by 11 September 20222 in respect
of
decision to cancel the tender,
it sets out
detailed chronology
setting
out
its
engagement
with respondent.
It claimed
that it took proactive steps to address the
manifest
irregularities
with
the
respondent.
By
8 September
2022
,
it would
appear that
the respondent
had undertaken
its own investigation
.
It claimed
that the delay
by it is
minimal
,
it
had been occasioned by the respondent
'
s
recent
desire
to institute its own
internal
investigation
i
nto
the irregularities alleged
by
the
applicant
and
there
is no
prejudice to the respondent created by the delay
.
It concluded
that the interest of justice
favour the
granting
of
condonation
in
terms of
section 9 (1) of PAJA.
[12]
Rule
53 by
a mere
issue
of
a
notice
of
motion
of
proceedings
to bring
under review
the
decision
entitles
the
applicant
to
call
upon
the
filing
of
the
record
of
a decision
.
If there is
law regulating the period within which the review application needed
to
be
launched,
the
obligation
to
file
the
record
of
a
decision
only
ar
i
ses
in
review
application
launched
within the period so specified
.
The applicant
concedes that it launched
the review
applicat
i
on
outside
the
stipulated
180 day
period
from
the
date
of the decision.
Thereafter
,
the respondent
could but it was not obliged to file the
record
of the
decision.
It
would become obliged to do so after the applicant has been granted
extension for the filing of the review application
.
[13]
The right to
receipt of the record is not dependent on the merits of the review
application
.
The obligation
to produce the record automatically
follows upon
the launch of the proceedings
,
however
ill-founded
that review
application might turn out to be
.
Competition
Commission v Computicket (Pty) Ltd
[2014]
ZASCA 185(26 Novemberr 2014)
para20.
In
Competition
Commission of South Africa v Standard Bank of South Africa Ltd
2020
(4) BCLR 429
(CC) paras 118-21
,
it was held
that a court should order production of the
record
without
requiring a
prima
facie
case
on the merits to be made out.
,
but only once
it has been established
that it has
jurisdiction
[14]
The
applicant
'
s
so- called
'
Conditional
Application in terms of section 9 of PAJA as contained
in
the
founding
affidavit
contains
no
relief
sought
and
it
contains
no grounds for
any particular relief
.
An application
for the extension of a period within which to launch review
proceedings
can be
enrolled
for
hearing before an application
to
compel is
heard
.
Whether
the applicant was obliged to exhaust internal appeal remedies or not,
is a question, in my view, to be determined by the
court hearing the
review application
.
[15]
It
is
trite
that a delay
in challenging
administrative
action may
serve
as
a barto the
challenge
.
To
soften
the
impact
,
the
affected
party
is
granted
a
right
to
apply
for the
extension
of
the period within which to bring the review
application
.
The balance,
.
in
my
view
,
justifies
holding
the
requirement
not
to
delay
as
a
strict
requirement.
As
long
as the delay has not been excused
,
there is a bar
to the challenge which means the court has no jurisdiction to
entertain the review
.
As long as the
court has no jurisdiction to entertain the review, there is no
obligation to furnish a record of the decision
.
[16]
The applicant
has not elected to seek condonation for the delay or extensions of
the period of the launching of the review applicat
i
on
.
It results
,
in not having
prima facie
established
that the court
has jurisdiction.
In
Opposition
to
Urban
Tolling
Alliance v South
African
Road
Agency
Ltd
[2013]
4 All
SA
639
(SCA)
paras
29-30
it
was
held that a
court is only empowered to entertain the review application if the
interest of
j
ustice
dictates an extension in terms of s9 of PAJA.
Absent such an
extension
,
the
court has no authority to entertain the review application at all
[16]
In the result
,
the
application to compel is premature and it falls to be dismissed
.
[17]
It is ordered
:
1.
The
application is dismissed
.
2.
The respondent
is ordered to
pay costs of the application
.
3.
The costs
includes
costs
of two counsel where so employed
Mngadi, J
APPEARANCES
Case
Number:
13477/2022P
Applicant
represented by:
Adv
JP Brester
Instructed
by:
Garicke
&
Bousfield
Inc
.
UMHLANGA
Defendant
represented by:
Adv
lndhrasen Pillay SC
Instructed
by:
K
Gcolothela & Peter
Inc
.
DURBAN
NORTH
Date
of Hearing:
2
May 2023
Date
of Judgment:
10
May 2023