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[2023] ZAKZPHC 151
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Makhathini Medical Waste (Pty) Ltd and Another v MEC for Health, KwaZulu-Natal and Others (8721/21P) [2023] ZAKZPHC 151 (3 August 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 8721/21P
In
the matter between:
MAKHATHINI
MEDICAL
WASTE
(PTY) LTD
FIRST APPLICANT
BUHLE
WASTE (PTY) LTD
SECOND APPLICANT
and
THE
MEC FOR HEALTH,
KWAZULU-NATAL
FIRST RESPONDENT
COMPASS
MEDICAL WASTE
SERVICES
(PTY) LTD
SECOND RESPONDENT
THE
CHAIRMAN, BID APPEALS
TRIBUNAL,
KWAZULU-NATAL
THIRD RESPONDENT
MEC
FOR FINANCE,
KWAZULU-NATAL
FOURTH RESPONDENT
ORDER
The
following order is granted:
1.
The review application by the second applicant is dismissed with
costs, save
that no costs shall be recoverable by the first
respondent.
2.
The second applicant is ordered to pay the first applicant’s
and the first
respondent’s costs in the intervention
application.
3.
The review application by the first applicant is dismissed with costs
save that
no costs shall be recoverable by the first respondent.
JUDGMENT
Delivered
on: 03 August 23
Poyo
Dlwati JP
[1]
Makhathini Medical Waste (Pty) Ltd (Makhathini), the first applicant,
launched an
application to review and set aside the decision of the
Member of the Executive Council for Health, KwaZulu-Natal (the first
respondent),
the Chairman, Bid Appeals Tribunal, KwaZulu-Natal (the
Tribunal), the third respondent, and the Member of the Executive
Council
for Finance, KwaZulu- Natal (the fourth respondent) awarding
the tender for the provision of health care risk waste management
services to Compass Medical Waste Services (Pty) Ltd (Compass), the
second respondent.
[2]
The background leading to this application is that the Department of
Health (the Department)
invited tenders for the rendering of health
care risk waste management services for three years in three
different areas being:
(a)
Area 1: eThekwini and Ilembe Districts (region 1);
(b)
Area 2: Umgungundlovu, Harry Gwala and Ugu Districts (region 2); and
(c)
Area 3: Umkhanyakude, King Cetshwayo and Zululand Districts (region
3); and Amajuba,
Umzinyathi and Uthukela Districts (region 4).
On
7 May 2021, the Department made the award as follows: Makhathini was
the successful tenderer for Area 1, Compass for Area 2 and
Ecocyle
Waste Solutions JV Vikela Africa Waste for Area 3.
[3]
The tender document stated that even though tenderers were permitted
to submit tenders
for all three areas, no bidder would be awarded a
tender for more than one area, except where clause 1.2.2.2
(d)
applied.
[1]
Makhathini appealed
the decision to award Area 2 to Compass to the Tribunal. On 21 August
2021, the Tribunal dismissed Makhathini’s
appeal. In dismissing
the appeal, the Tribunal held that the provisions in clause 1.2.2
[2]
of the tender document, namely, that in order to broaden
participation in the market, the Department would award the tender to
a bidder that did not obtain the highest points, were objective
criteria for the purposes of s 2(1)
(f)
of the
Preferential Procurement Policy Framework Act 5 of 2000 (the PPPFA).
It found that as tenderers were aware of this term in
the tender
document, they should have raised this as a basis to challenge the
tender document. It further held that the condition
that was implicit
in the award, was agreed to by Compass within a reasonable time,
which signified that it agreed to meet Makhathini’s
price.
[4]
According to Makhathini, Compass was not the successful bidder for
Area 2 at a rate
of R47.69 per kilogram, as Makhathini tendered at a
lowest price of R47.67 per kilogram. Makhathini contended that
Compass was
not the tenderer with the most points at 99.96, as it
(Makhathini) scored 100 points for Area 1 and it should follow that
it had
scored 100 points for Area 2 as well. According to Makhathini,
the tender document did not provide any framework which would guide
the Department in exercising its discretion to apply the
aforementioned criteria, such that the market application of each of
the tenderers would be measurable and quantifiable as objective
criteria. I identified this as the first flaw in the tender document.
[5]
The second flaw identified by Makhathini was that the same criteria,
namely: price,
BBBEE, and market involvement were taken into account
twice. The first time was in the points phase, resulting in the
ranking of
the tenderers, and the second time in deciding whether
there were objective criteria to justify the award of the contract to
a
tenderer with lower points. According to Makhathini, even if price
could constitute an objective criterion, Compass’s price
was
higher than Makhathini’s and at the time of the award, Compass
had not agreed to match Makhathini’s price of R47.67
per
kilogram.
[6]
According to Makhathini, even though Compass’s counsel informed
the Tribunal
that it was willing to match Makhathini’s price,
this election was too late as the award made on 7 May 2021 could not
be
justified. In Makhathini’s contention, neither the Tribunal
nor the fourth respondent had the power to alter the award. It
was
contended that the fourth respondent erred and acted unlawfully in
accepting the Tribunal’s recommendation and adding
a further
condition to the decision. The Department delayed in filing the
record as required in terms of rule 53 of the Uniform
Rules. As a
result, various applications were launched by other parties during
the period between the launching of this application
and its hearing.
The one that is of greatest relevance in this matter is the one that
was launched by Buhle Waste (Pty) Ltd (Buhle).
Buhle, through an
intervention application, became the second applicant in these
proceedings.
[3]
I will revert to
its application later on in this judgment.
[7]
Ultimately, the Department filed the record in October 2022. After
the record was
filed, Makhathini filed its supplementary affidavit.
It complained that the record was defective in various respects. One
of the
complaints was that the Department failed to provide proof
that it sent extension notices to the tenderers for extending the
validity
periods of the bids to 9 December 2020, a further extension
to 10 April 2021 and later to 9 August 2021. Also, no proof of
acceptance
of such requests were attached to the record. It did not
accept the Department’s explanation that the computer which
kept
that information had crashed. Makhathini requested the
Department to make the computer available to its experts so that the
information
could be retrieved but this was not acceded to by the
Department. The further complaint was that Compass’s tender was
not
compliant as it failed to provide prices in annexure D for
extraordinary items.
[8]
Buhle, pursuant to its application to intervene in these proceedings,
was granted
leave to intervene in this application and was joined as
the second applicant. Buhle sought similar relief to Makhathini. It
is
important to note that at that time, Buhle was the current service
provider to the Department prior to and after the award of the
tenders. It did so in terms of a piggy-back arrangement through a
contract with the Mpumalanga Health Department. This contract
was on
a month-to-month basis from April 2019 but expired on 30 November
2022. Buhle only launched its application on 8 February
2022. It
contended that it had instructed its attorneys to deliver a notice to
the Department on 7 May 2021 to lodge its appeal,
and also requested
reasons for the award. It turned out that this notice was only sent
to the Department on 17 May 2021, outside
the five-day period allowed
for the lodging of an appeal.
[9]
According to Buhle, it never received any response to its notice of
appeal nor did
it receive reasons for the award. The notice of appeal
lapsed on 15 June 2021. Even though Buhle in its intervention
application
sought to challenge the awarding of the tenders for all
the areas, it was granted leave to intervene in respect of Area 2,
being
the same area that was challenged by Makhathini. I must mention
that to the extent that Buhle’s intervention application would
be limited to Area 2, same was not opposed by Makhathini.
[10]
In its challenge in the review, Buhle made common cause with
Makhathini about the extension of
the validity period of the bid. It
contended that not all the tenderers, including itself, consented to
the extension of the validity
period beyond 10 April 2021. For that
reason, the tenders had lapsed. Buhle further contended that
Compass’s tender had lapsed
as it was only awarded the tender
after the fourth respondent approved the Tribunal’s
recommendation with a condition that
Compass matches Makhathini’s
price. According to Buhle, Compass relied on the 21 May 2021 award
and it only purported to
match Makhathini’s price at the
hearing of the appeal on 11 August 2021. According to Buhle, this was
beyond 9 August 2021,
the last day to which the validity of the
tenders was extended to.
[11]
The third ground of review by Buhle was that the Department awarded
Compass the tender on the
basis of comparative prices, which were
only relevant for the purposes of a comparison of the tendered rates
for each year. This,
according to Buhle, was not the actual tendered
price but the cost average price. For all these reasons, Buhle
believed that the
tender process was riddled with irregularities and
fell to be set aside.
[12]
The Department and Compass opposed the application. I will start with
the opposition by Compass.
It contended that Makhathini’s
reasoning on the absence of an objective criterion was flawed as the
criterion that no bidder/service
provider would be awarded more than
one area, in order to broaden market participation, was objective and
did not depend on any
subjective assessment or value judgment. It
bore a rational connection to the purpose of procurement and
therefore the tender.
This broadening participation also had the
benefit of increasing competition between service providers, and
greater participation
in the health care risk waste management
services. Furthermore, the State would not pay more, as there was a
condition of price
match in place.
[13]
With regard to Makhathini’s contention that Compass’s
election to match Makhathini’s
price was late, Compass averred
that there was no time stated in the tender document or in the award
for the acceptance of the
condition. It was only required of it to
accept the condition within a reasonable time. In any event, the
award was in fact conditional.
Furthermore, the publication of the
results of the tender was separate from the administrative decision
to award. This was so because
the publication did not incorporate all
the terms and conditions of the tender. This much was evident from
the minutes of the various
committees that evaluated and recommended
the award of the tender to Compass.
[14]
With regard to the complaint that Compass’s tender was
non-compliant as it failed to provide
a price for extraordinary
items, Compass’s response was that the price per kilogram was
provided for all the items, regardless
of whether they were
extraordinary items or not. That price was applicable to all the
items and was reflected on page 13 of the
indexed extract of the
record. As those prices were provided, Compass contended that the Bid
Evaluation Committee (BEC) and the
Bid Adjudication Committee (BAC)
of the Department must have used them to evaluate the bid. Therefore,
the contention went, the
pricing list for extraordinary items was not
separate and distinct from what would have appeared in annexure D of
the tender document.
In any event, Compass would have had to match
Makhathini’s price as per the award.
[15]
Furthermore, according to Compass, the amount of R47.69 per kilogram
was a total comparative
price tendered but was never the price at
which Compass was tendering to render the service. This in any event,
according to Compass,
was what was called for in the bid document,
namely having prices calculated using the weighted prices of the
individual waste
streams so that the Department could accurately
compare all the bidders. This would be the same scenario with
Makhathini’s
price of R40.18 per kilogram. Also, according to
Compass, the issue of the extension of the validity period would
affect those
bidders that did not extend their offers as these would
no longer be open for acceptance. Compass contended that it extended
the
validity period of its tender until 9 August 2021. The Tribunal
merely confirmed that award subsequent to the appeal, hence the
administrative decision was lawful at the time that it was made and
could not be impugned.
[16]
Compass further contended that as the decision to award the tender
was an administrative one,
Buhle ought to have brought its review in
terms of the Promotion of Administrative Justice Act 3 of 2000
(PAJA). Buhle, however,
was circumventing the provisions of PAJA as
it did not comply with it and was trying to create a separate cause
of action outside
PAJA. It also failed to prosecute its appeal before
the Tribunal, and therefore failed to exhaust the internal remedies
as provided
for in s 7(2)
(a)
of
PAJA. It also failed to launch its review within the 180 day period
prescribed in PAJA
[4]
and the
delay was unreasonable. Buhle also failed to apply for condonation as
required in PAJA.
[17]
According to Compass, Buhle’s bid scored the second lowest
number of points as reflected
in the Department’s BEC’s
minutes. It was R80 per kilogram more in comparison to Makhathini’s
and Compass’s
bids. It also failed to provide a copy of its
tender document in these proceedings and an adverse inference ought
to be drawn therefrom.
[18]
There was nothing new raised in reply, save to state that Makhathini
reaffirmed its contentions
made in the founding affidavit and
disputed Compass’s ones where they differed with its
contentions. Makhathini emphasized
that the prices on its pricing
schedule were not applicable to the extraordinary items reflected in
Schedule D. It contended that
if Compass rejected Makhathini’s
methodology for the pricing of extraordinary items, it could not,
therefore, have agreed
to price match its tender but that this was a
clear refusal to price match. It also contended that the Department’s
failure
to provide a complete record meant that the tender expired
before it was awarded, this being the only inference to be drawn.
[19]
Buhle in its reply contended that its review application was not late
as the 180 day period commenced
only after the reasons for the award
had been disclosed. Alternatively, Buhle instituted its review
application within 180 days
from 11 August 2021, being the date upon
which Compass agreed to match Makhathini’s price. Furthermore,
Compass failed to
identify any law that alleged the prescribed
internal remedies that Buhle ought to have exhausted before lodging
the review. And,
in any event, even though the bid document entitled
the aggrieved tenderers to appeal, they were not obliged to appeal as
that
clause did not constitute “law” as envisaged in
PAJA. It reiterated that as Compass purported to agree to match
Makhathini’s
price by 11 August 2021, there was no valid tender
by then as the tenders expired on 9 August 2021.
[20]
Albeit belatedly, the Department also opposed Makhathini’s and
Buhle’s review applications.
It explained the reasons for the
delay and regretted the inconvenience caused to the court and the
parties. The Department disputed
that the record it filed was
incomplete. It explained that the only documents it could not provide
were the extension notices for
the validity of the tender to and from
the bidders. The cause of this was ascribed to a crashed computer,
and despite an information
technology technician being instructed to
retrieve the information, the data could not be retrieved. The
Department confirmed that
at least five extension notices were
received from the bidders, including Makhathini and Compass. These
had been retrieved as they
were hard copies.
[21]
The Department explained that clause 1.2.2.2
(d)
of the tender
document was intended to broaden market participation in respect to
the tender itself and to ensure an equitable
allocation in the
respective areas. It conceded that Makhathini scored more than
Compass in respect of Area 2. However, it did
stipulate the objective
criteria in the tender document in line with s 2(1)
(f)
of the
PPPFA. This was in addition to paragraphs (d) and (e) of the tender
document. According to the Department, no further measurable
or
quantifiable consideration was required after the ranking of the
various tenderers. The objective criteria were only applied
after the
evaluation of the bids. It denied that its decision to award the
tender for Area 2 to Compass was arbitrary.
[22]
The Department reiterated that Compass agreed to match Makhathini’s
price as that was the
condition of the award in the first place.
According to the Department, Makhathini elected to participate in the
tender and it
was bound by the conditions of the tender. It conceded
that reference to the total comparative price was an error but that
in any
event, the award would be based on the price of Makhathini
being matched. It averred that the absence of a price for the items
in Schedule D did not render Compass’s bid non-responsive, as
the overall price in the bid document was used. It conceded
that when
the award was published, it did not make reference to a condition but
that this would be accommodated in a service level
agreement.
[23]
According to the Department, all the bidders that we are concerned
with in this matter did extend
their bid validity periods. As a
result, there was no prejudice suffered by any of the bidders.
Phuting Medical Waste, being of
the tenderers, had been found
non-compliant, and it was not necessary to receive its April 2021
extension notice. With regard to
Buhle, the Department contended that
Buhle’s review was brought out of time in contravention of s
7(1) of PAJA. In the absence
of an application for condonation, its
application ought to fail. It repeated the same grounds of opposition
for the other grounds
of review as Compass, and those have been dealt
with when dealing with Makhathini’s review.
[24]
The issues for determination therefore are whether:
(a)
The review application by Buhle is out of time;
(b)
The condition stipulated at para 1.2.2 of the tender document
justified the award of the
tender to Compass;
(c)
There was a failure by the Department to extend the validity period
prior to the award
being made on 21 May 2021; and
(d)
The award was flawed for any other reason and ought to be set aside.
[25]
Buhle explained in its founding affidavit that after the award was
published, it wrote to the
Department and requested reasons for the
award and for its exclusion. It also noted its intention to lodge an
appeal. The Department
never responded to its letter. What it does
not say, is that this letter was filed beyond the five day period
allowed for an aggrieved
party to register its intention to appeal.
Thereafter, Buhle did nothing until it lodged its intervention
application in February
2022, six months after the Tribunal’s
decision, and nine months after the award. It was common cause that
Buhle had been
providing the requisite services to the Department
prior to, and after the award of the tender was made. It must have
been aware
of the appeal and the subsequent litigation by Makhathini.
However, it chose not to do anything as it was benefiting from being
the service provider throughout that period.
[26]
Buhle also knew that it scored the second lowest, and that it had no
chance of being awarded
the tender. There is no doubt in my mind that
it was only after Buhle had been advised by the Department that it
would terminate
its month-to- month services that it then lodged its
intervention, and later the review application. Its review
application for
the setting aside of the tender award was beyond the
180 day period stipulated in s 7(1) of PAJA. The delayed period is
not reasonable
in my view, and has not been explained other than that
it was waiting for the reasons for the award from the Department.
There
is no application for condonation for the late filing of the
review.
[27]
Buhle argued that the 180 day period commences after the date on
which the person concerned was
informed of the decision and the
reasons for it. It argued that it received those reasons for the
first time on 24 October 2022,
when the Department filed its
answering affidavit in the intervention application. This argument is
untenable and would water down
the requirement for the 180 day period
for a review or even a reasonable period for that. Buhle had other
avenues open to it to
compel the Department to provide it with the
reasons for its decision to award the tenders. It did not do so, and
in my view, it
was for the reason that it was happy to provide the
services under the piggy-back contract it had. It was only when that
contract
was threatened that it decided to act, which in my view, was
hopelessly late.
[28]
Whilst I agree with what the Constitutional Court stated in
Cape
Town City v Aurecon SA (Pty) Ltd
[5]
that the clock starts to run with reference to the date on which the
reasons for the administrative action became known (or ought
reasonably to have become known) to an applicant, this cannot apply
to Buhle for the simple reason that it did not pursue the Department
to provide the reasons for its decision. It did not pursue the
Department for the reasons because it was aware that it scored the
second lowest and in any event, its letter requesting such reasons
was late. There was nothing before me that showed that Buhle
would
have proceeded with the review even if Makhathini had not proceeded
with the review. It was entirely opportunistic.
[29]
As was held in
Commissioner,
South African Revenue Services v Sasol Chevron Holdings Limited
,
[6]
where no application for the extension of the 180 day period in terms
of s 9(2) has been made – as in this instance –
a court
has no authority to enter into the substantive merits of a review
application brought outside the 180 day period described
in s 7(1).
In
Opposition
to Urban Tolling Alliance v South African National Roads Agency
Limited
[7]
the court held that ‘[w]hether or not the decision was unlawful
no longer matters. The decision has been “validated”
by
the delay’. This, therefore, is the end of Buhle’s review
application and it should pay the costs of this application
and those
of its intervention application.
[30]
I now turn to the second issue raised, being whether the Department
had established objective
criteria in para 1.2.2, of the tender
document namely, that ‘in an attempt to broaden participation
in the market, no bidder
will be awarded more than one area but
instead the award will be awarded to the next highest ranking bidder
on the proviso that
they match the price offered by the highest
ranking bidder’.
Makhathini’s
argument in this regard was that the aim of broadening market
participation was not an objective criterion in
terms of s 2(1)
(f)
of the PPPFA. In its view, clause 1.2.2 was nothing more than a
policy of fair distribution of work, as it lacked any sensible and
rational criteria that would be applied to determine if awarding the
tender to a bidder would broaden market participation.
[31]
Makhathini’s argument failed to take into account that the
objective criteria were established
when the Department stipulated
that the tenderers would not be awarded more than one area so as to
broaden market participation.
It was for this reason that the tender
would instead be awarded to the second highest bidder. The ranking of
bidders was not a
criterion itself as argued by Makhathini but
instead the award of more than one area was the criterion used. This
was in addition
to the price and points allocation to the bidders. I
am, therefore, unable to differ with the Tribunal when it referred to
the
criteria as a ‘commendable and perfectly rationale
principle of broadening participation in the market place itself’.
There was therefore nothing requiring a subjective assessment when
one had to determine whether the criteria had been met or not.
[32]
The further difficulty with this challenge by Makhathini was that the
criteria were part of the
tender conditions. Even though Makhathini
contended that it tried to object to this condition at the tender
briefing session, it
did not take any legal steps to correct the
document. It waited until the ultimate conclusion and then raised it.
This in my view
cannot be fair to the Department and the other
tenderers who could have submitted bids but were discouraged because
of this condition.
There is no doubt in my mind that as a prospective
tenderer, it would have had the necessary locus standi, by virtue of
its participation
in the tender, to challenge it immediately after
the closing of the bids.
[8]
[33]
Furthermore, broadening market participation had nothing to do with
the past experience of the
bidder as Makhathini seemed to suggest. In
any event, this latter aspect would have been considered under
functionality. Awarding
the tender to three different tenderers, in
my view, satisfied the requirement of broadening market
participation, as the tender
was not limited to one tenderer. The
criteria was fair, rational and objective in my view
[9]
.
This ground of review must also fail.
[34]
However, before I leave this ground, I need to deal with the issue
whether Compass’s bid
was an acceptable tender and whether
Compass did match Makhathini’s price. It was evident from
Compass’s supplementary
answering affidavit that it did in fact
submit a price for all the items including extraordinary ones,
[10]
albeit that it did not do so separately in annexure D. In my view, as
these prices were submitted, this was enough for the tender
document
and for the Department to determine a price for what was listed.
Absence of these prices, which were already accounted
for, did not
invalidate the tender in my view nor does it make the award
reviewable. In any event, the service would have to be
done at
Makhathini’s price.
[35]
Whilst Makhathini further contended that the award to Compass was
unconditional, this cannot
be correct. Both the BEC and the BAC,
whose decisions are the basis upon which the award was made, refer to
the fact that the award
was subject to Compass matching Makhathini’s
price. This was in line with clause 1.2.2 of the tender document, as
Makhathini
was already awarded the tender for Area 1. That the award,
when published, did not make reference to the condition is not
material
in my view. As explained by the Department, Compass was
going to be engaged with prior to the implementation of the tender in
order
to ensure that Compass agreed to match Makhathini’s
price.
[36]
Furthermore, the context upon which the award was made cannot be
ignored, this being the minutes
of the BEC and BAC. Compass confirmed
before the Tribunal that it would match Makhathini’s price. In
my view, there is nothing
wrong with this as it was in line with what
was envisaged in the tender document. Such confirmation was within a
reasonable time
as the tender had not been implemented due to the
appeal. In any event, the Tribunal and the fourth respondent were
entitled to
alter or vary the award in terms of the KwaZulu-Natal
Provincial Treasury prescripts.
[11]
[37]
This leads me to the last ground of review being whether the tender
validity period expired before
the award of the tender. The onus in
this regard is on Makhathini to show that the validity period was not
extended by all the
bidders. According to Makhathini, the tender
validity period was not extended to 10 April 2021 nor to 9 August
2021. It based this
contention on the fact that the Department
explained that the proof of such extensions were on Mr Ngubane’s
computer which
had crashed. The Department failed to respond to a
notice requesting the inspection of the said computer by Makhathini’s
technician. Makhathini went to the extent of contacting Mr Ngubane,
who provided it with emails between himself and some of the
bidders,
including Compass, requesting the extensions. According to Mr
Ngubane, the request to extend the validity period was sent
to all
the bidders at all relevant times. However, some bidders agreed to
the extension of the validity period before 10 April
2021 whilst some
only sent their acceptance after 10 April 2021. This was the same
situation with the extension of the validity
period to 9 August 2021.
[38]
Mr Ngubane did not say which of the tenderers provided their
acceptance to the extension and
which did not. What is clear is that
Makhathini and Compass did agree to the extension of the validity
period before the award
was made. In this regard, Makhathini’s
contention was that Compass’s extension letter was not dated
and it did not
form part of the record furnished by the Department,
meaning that the Department could not have received it timeously.
Compass,
however disputed this and contended that it sent its
acceptance of the extension timeously. As these are motion
proceedings, it
is undesirable to venture into probabilities.
[12]
Instead
one has to apply the
Plascon
Evans
[13]
principle and accept Compass’s version.
[39]
It must be noted that the affidavit that was obtained by Buhle from
Phuting Medical Waste states
that it did not receive the request for
the extension of the validity period to 10 April 2021.As explained by
the Department, this
was so because Phuting Medical Waste had been
considered as non-responsive at that time. As was held in
Aurecon
South Africa (Pty) Ltd v Cape Town City
,
[14]
in circumstances where tenderers, who were found to be ineligible,
were not asked to extend their tenders, it would be a waste
of time
and resources to request an extension from them.
[40]
The important factor here, and quite distinguishable from other
matters, is that Mr Ngubane stated
in his affidavit that he sent a
request to all tenderers for the extension of the validity period
prior to the expiry of the validity
period, which was three days
prior to the expiry in both instances. I must accept his version,
especially because it was tendered
by Makhathini. I must also accept,
as explained by Mr Ngubane in his affidavit, that his computer
crashed hence no further evidence
could be tendered. One has to bear
in mind the purpose of such an exercise, which is to preserve the
tendered price by the respective
bidder. Those tenderers that cared
to respond, including Makhathini and Compass responded before the
expiry of the validity.
Ekurhuleni
Metro
[15]
that I was referred to is distinguishable on the facts from this
matter and does not find application. This ground of review must
therefore fail.
[41]
In my view, there is no basis for contending that the award was
flawed on any basis. I am unable
to set it aside for any reason. The
only issue outstanding is that of costs. I do not see a reason why
the costs should not follow
the result except for two factors. The
first is that the Department, namely the first respondent, has been
dilatory throughout
these proceedings and should not be entitled to
any costs. The second issue is the costs relating to Buhle’s
intervention
application. Makhathini had indicated that it would not
oppose that intervention application if it was limited to Area 2.
However,
Buhle persisted with seeking to intervene in all three Areas
and it was not successful. It must then pay Makhathini’s and
the first respondent’s costs in the intervention application.
[42]
I therefore make the following order:
1.
The review application by the second applicant is dismissed with
costs, save
that no costs shall be recoverable by the first
respondent.
2.
The second applicant is ordered to pay the first applicant’s
and first
respondent’s costs in the intervention application.
3.
The review application by the first applicant is dismissed with costs
save that
no costs shall be recoverable by the first respondent.
Poyo
Dlwati JP
APPEARANCES
Date
of hearing:
28
February 2023
Date
of judgment:
3
August 2023
Counsel
for first applicant:
Adv
Singh SC
Instructed
by:
PR
Maharaj & Company
c/o
AK Essack Morgan Naidoo & co.
Counsel
for second applicant:
Adv
Wasserman SC
Instructed
by:
Fairbridges
Wertheim Becker
c/o
Stowell
Counsel
for first respondent:
Adv
Naidoo SC
Instructed
by:
The
State Attorney
Counsel
for second respondent:
Adv
Voormolen SC
Instructed
by:
Shepstone
& Wylie
[1]
Clause 1.2.2.2, which is found in Section K which deals with Special
Terms and Condition, reads as follows: ‘In the event
of one
bidder scoring highest points in two or all the Areas, the
Department will use the following criteria in application of
the
principle contemplated in 1.2.2 above:
.
. .
(d)
A bidder may be awarded more than one Area, in the event that none
of the other bidders are willing to match the price of
the
highest-ranking bidder.’
[2]
Clause 1.2.2 reads as follows:
‘
In
an attempt to broaden participation in the market as per the
Preferential Policy Framework Act section 2(1)(f), objective
criteria, the Department shall award the bid to compliant bidders as
per the following area. (a) Region 1 referred to as Area
1; (b)
Region 2 referred to as Area 2 (c) Region 3 and 4: referred to as
Area 3.’
[3]
See
Makhathini
Medical Waste (Pty) Ltd v MEC for Health, KwaZulu-Natal and others
[2022] ZAKZPHC 82.
[4]
Section 7(1) of PAJA provides that:
‘
Any
proceedings for judicial review in terms of section 6(1) must be
instituted without unreasonable delay and not later than
180 days
after the date—
(a)
subject to subsection (2)(c), on which any proceedings instituted in
terms of internal
remedies as contemplated in subsection (2)(a) have
been concluded; or
(b)
where no such remedies exist, on which the person concerned was
informed of the
administrative action, became aware of the action
and the reasons for it or might reasonably have been expected to
have become
aware of the action and the reasons.’
[5]
Cape
Town City v Aurecon SA (Pty) Ltd
[2017] ZACC 5
;
2017 (4) SA 223
(CC) para 41.
[6]
Commissioner,
South African Revenue Service v Sasol Chevron Holdings Limited
[2022] ZASCA 56.
[7]
Opposition
to Urban Tolling Alliance v South African National Roads Agency
Limited
[2013] ZASCA 148
;
[2013] 4 All SA 639
(SCA) para 26,
referred to in Buffalo City Metropolitan Municipality v Asla
Construction (Pty) Ltd [2019] ZACC15;
2019 (4) SA 331
(CC) para 49.
[8]
See
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and others
[2012] ZACC 28
;
2013 (3) BCLR 251
(CC) para 41.
[9]
See Q Civils (Pty) Ltd v Mangaung Metropolitan Municipality and
Other (A48/2016)
[2016] ZAFSHC 159
8 September 2016 para 40.
[10]
See Section M at page 12 of Compass’s tender document, at page
20 of the record extract.
[11]
The Bid Appeals Tribunal was created in terms of the KwaZulu-Natal
Supply Chain Management Policy Framework dated 3 February
2006. The
powers of the Tribunal are set out in paragraph 22:
‘
22.
Powers of the Bid Appeals Tribunal:
(1)
In respect of appeals not determined under paragraph 21 to be
frivolous, vexatious
or without merit, the Bid Appeals Tribunal –
(i)
must hear and finalize the appeal within fourteen working days of
the determination
under paragraph 21;
(ii)
must make recommendations to the MEC for Finance to confirm, vary or
set
aside the decision of a Bid Adjudication Committee, and
Accounting officer or his/her delegate; and
(iii)
may make an appropriate order as to costs, which may include the
costs to the
Province of having the appeal heard.
(2)
If the award is set aside, the Bid Appeals Tribunal must make any
order it considers
appropriate regarding the procedures to be
followed to determine the matter.’
(https://www.kzntreasury.gov.za/ResourceCenter/Guideline%20Documents/kzn-scm-policy-framework.pdf,
accessed 28 July 2023)
[12]
See
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1; 2009 (2) SA 277 (SCA).
[13]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A).
[14]
Aurecon
South Africa (Pty) Ltd v Cape Town City
[2015] ZASCA 209
;
2016 (2) SA 199
(SCA) para 23.
[15]
Ekurhuleni
Metro Municipality v Takubiza Trading & Projects CC and others
[2022] ZASCA 82
;
2023 (1) SA 44
(SCA).