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[2024] ZAKZPHC 24
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Kufanikiwa Consulting (Pty) Ltd and Others v Member of the Executive Council for the Department of Transport, KwaZulu-Natal Province and Another (15659/2023P) [2024] ZAKZPHC 24 (22 March 2024)
FLYNOTES:
ADMINISTRATIVE – Tender –
Stare
decisis
–
Three
applicants and Impande bidding on tender – Tender cancelled
and Impande successful in two earlier judgments for
interdict and
review – Department directed to award contract to Impande –
Factual and legal issues were exactly
the same – Judgments
were correct on issue that decision to cancel constituted
administrative action falling foul of
PAJA – Judgements
binding on this court according to stare decisis – This
court would anyway have found as both
those judges did on the
issues – Department directed to offer applicants the
contracts –
Promotion of Administrative Justice Act 3 of
2000
.
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case no:15659/2023P
In the matter between
KUFANIKIWA CONSULTING
(PTY) LTD
FIRST APPLICANT
IMPUMELELO CONSULTING
ENGINEERS
(PTY)
LTD
SECOND APPLICANT
TPA CONSULTING
CC
THIRD APPLICANT
And
MEMBER OF THE
EXECUTIVE COUNCIL
FOR THE DEPARTMENT OF
TRANSPORT,
KWAZULU-NATAL
PROVINCE
FIRST RESPONDENT
DEPARTMENT OF
TRANSPORT,
KWAZULU-NATAL
PROVINCE
SECOND RESPONDENT
JUDGMENT
PITMAN
AJ
Introduction
[1]
“
Stare decisis et non quieta
movere”,
is a
Latin phrase, and legal principle, literally meaning “
stand
by the thing decided and do not disturb the calm”
.
The application of this intrinsic
principle in the law of South Africa forms the backbone of this
matter as it is relied upon by
the applicants for the relief they
seek. It is sometimes called the doctrine of precedent. It is a part
of our common law and is
retained in South Africa’s
constitutional legal dispensation. In its application it means that a
legal rule or principle
determined in a previous judgement of a
higher court is binding, and not just persuasive, on an equivalent or
lower court. How
it applies in this matter will become apparent
below.
Background
[2]
The three applicants bid, together
with a number of other entities, on a tender issued by the second
respondent (“the Department”)
on 4 December 2020 (“the
2020 bid”), for the appointment of engineering service
providers for each of the departments
12 Cost Centre’s for a
period of three years. The closing date, after a couple of
extensions, was 29 January 2021. The tender
validity period, after a
couple of extensions, was 30 May 2022.
[3]
One of the other entities to bid was
Impande Consulting
Engineers (Pty) Ltd
(“Impande”).
The relevance of this will become apparent.
[4]
The applicants’ bids, like that
of Impande and a number of others irrelevant at this stage, were
determined by the Department
to be responsive, and on 2 March 2022
the
Bid Evaluation
Committee
(“BEC”)
of the Department recommended,
inter
alia
, that the
applicants and Impande be awarded contracts for specifically
identified Cost Centre’s.
[5]
However, subsequent to the
recommendations of the BEC, the Department published a Notice in a
local newspaper, dated 3-4 May 2022,
cancelling the entire tender.
The reason given was stated as “
Administrative
Non-Compliance.”
[6]
On about 3 June 2022, the Department
advertised, effectively, the tender again, for the same services,
under a new bid number (“the
2022 bid”).
[7]
Impande launched a review application
against the cancellation together with urgent interdictory relief
against any further actions
by the department in respect of the 2022
bid. That application was opposed by the first and second
respondents. The interdictory
relief in respect of the 2022 bid was
granted, after argument, by
Bezuidenhout
AJ
(as she then was
- and of this Division). Bezuidenhout AJ gave a fully reasoned
judgement finding that the decision to cancel
the 2020 bid process at
the stage it had constituted administrative action. She analysed the
judgements of
City
of Tshwane Metropolitan Municipality and Others v Nambithi
Technologies (Pty) Ltd
2016 (2) SA 494
(SCA)
(“the
Tshwane judgement”) as against
Madibeng
Local Municipality v DPP Valuers (Pty) Ltd and Another [202] ZASCA,
70 (19 June 2020)
(“the
Madibeng judgement”), and concluded that because the tender
process was well under way, all individual bids having
been already
considered, points having been allocate, and the necessary checks and
recommendations done progressing to adjudication,
the cancellation at
that stage “
constituted
administrative action under PAJA”
.
She took the
view that that decision, not having complied with Regulation 13 of
the Preferential Procurement Regulations of 2017,
was materially
irregular. She therefore interdicted the continuation of the 2022 bid
process and adjourned the review portion of
the application.
[8]
The review portion of that
application was eventually concluded by way of the judgement of
Ncube
J,
of this
Division, delivered on 11 April 2023.
[9]
Ncube J had been called upon to
decide whether the decision taken by the Department to cancel the
whole tender, based on the reason
of “
Administrative
Non-Compliance”,
was
valid, rational and in accordance with prescripts and the law. He was
also asked, in the event of setting the cancellation of
the tender
aside, for a “
substitution
order”
,
namely an order that Impande be awarded the contract that the BEC had
already recommended it be awarded.
[10]
Ncube J concluded that the decision
to cancel the original tender was “
irrational
and unjustified”
.
He did not remit the matter back to the Department but instead
directed the Department to implement the recommendations of the
BEC
and forthwith award to Impande the contract for the Estcourt Cost
Centre.
[11]
An application for leave to appeal
was launched by the respondents (also the respondents herein) which
application was dismissed
by Ncube J on 20 September 2023. It was not
pursued further. On 4 October 23, the Department issued a letter of
appointment to
Impande for the work it had bid on, and had been
recommended for, by the BEC.
[12]
The applicants herein had sought to
be joined in those proceedings and had requested the Department to
consent to their joinder.
The Department refused to consent, and that
option was not further pursued by these applicants so as not to
interfere with the
procedural timeframes put in place in order to get
that review expeditiously to a Court for a final decision.
[13]
Five days after Impande was
appointed, and on 9 October 2023, the applicants’ attorneys
requested the Department to undertake
to implement the
recommendations of the BEC by also awarding contracts to the
applicants in respect of the Cost Centre’s
for which they had
been recommended by the BEC. This undertaking was requested on the
basis that the Department had implemented
the appointment of Impande
as a consequence of the Ncube J judgement and that there was “
no
basis for the Department to refuse to implement the BEC’s
recommendations in relation to the applicants”.
The
Department did not do so.
[14]
This application was then launched in
about 19 October 2023 as an “
urgent
application”
for
Orders directing the second respondent to implement the
recommendations of its BEC by “
forthwith
awarding”
to
the three applicants the contracts in respect of which the BEC had
recommended they be appointed. That relief was premised fundamentally
on submissions that the decision to cancel the original tender was
unlawful for the same reasons raised in the Impande application
and
that the judgement of Ncube J had decided the lawfulness of the
cancellation in terms of PAJA already, on the same facts. It
was
submitted that it was clear that had the applicants been joined in
that application they too would have been successful because
they
relied upon the same facts and submissions.
[15]
The applicants spend a number of
paragraphs of this founding affidavit dealing with the facts relating
to the cancellation of the
tender and submit that, on the basis of
those facts, the decision to cancel was justifiably set aside by
Ncube J. They submit that
the cancellation “
has
been reviewed and set aside”
by
this Division and on the basis of the
stare
decisis
principle,
this Court is obliged to follow that decision as it is not wrong, let
alone clearly wrong.
[16]
The respondents argue that
stare
decisis
is of no
application, but that if it is, the decision of Ncube J is clearly
wrong.
The
Stare
Decisis
Principle
[17]
In
Patmore
Exploration (Pty) Ltd and Others v Limpopo Development Tribunal and
Others,
2018 (4) SA 107
(SCA)
the
Supreme Court of Appeal set out the principle, its effect, and the
circumstances it may be deviated from as follows:
“
The
basic principle is stare decisis, that is, the court stands by
its previous decisions, subject to an exception where
the
earlier decision is held to be clearly wrong. A decision will be held
to have been clearly wrong where it has been arrived
at on some
fundamental departure from principle, or a manifest oversight or
misunderstanding, that is, there has been something
in the nature of
a palpable mistake. This court will only depart from its previous
decision if it is clear that the earlier court
erred or that the
reasoning upon which the decision rested was clearly erroneous. The
cases in support of these propositions are
legion. The need for
palpable error is illustrated by cases in which the court has
overruled its earlier decisions. Mere disagreement
with the earlier
decision on the basis of a differing view of the law by a court
differently constituted is not a ground for
overruling it.”
(paragraph
[3]): and
“
The
doctrine of stare decisis is one that is fundamental to the
rule of law. The object of the doctrine is to avoid uncertainty
and
confusion, to protect vested rights and legitimate expectations as
well as to uphold the dignity of the court. It serves
to lend
certainty to the law.”
(paragraph [4]); and
“
The
principles of stare decisis required the judge to follow
that decision unless satisfied that it was clearly wrong.”
(paragraph
[7])
Analysis
of the facts in casu
[18]
The initial decision to cancel, as
published in the newspaper notice cancelling the tender, disclosed
the reason for the cancellation
as being “
administrative
non-compliance.”
[19]
The Department alleges that its
records indicate that by closing date
90
bids
had been
received. The BEC minutes of 13 December 2021, however, recorded that
92 bids
had been received initially, and
ultimately recommended specified bidders for contracts, which
recommendation included the applicants
and Impande, each at indicated
acceptable contract prices. The respondents are not clear on
precisely when, and by whom, this alleged
difference was first noted.
The deponent for the respondents says in her affidavit that the
recommendation by the BAC to cancel
the tender was due to: “
92
bids were evaluated instead of 90(showing tender irregularity), The
tender specifications were in terms of the DDM model, and
according
to specification awarding per cost centre, however, only 9 bidders
were responsive, and The BAC’s final decision
was that of
cancellation of tender.”
This
submission is not born out by the Department’s records,
however, as referred to below.
[20]
The BEC’s tender evaluation
report submission, dated 11 October, also records that
92
bids were received on 29 January 2021
.
Two were specifically identified as failing pre-qualification. That
report recommended, inter alia, the appointment of the applicants
as
follows:
a)
Applicant 1
,
the Ixopo Cost Centre at a bid price of “
R78 070 912.50
including 15% of VAT for the Period of 3 Years. This to be negotiated
to market price of R43 714 052.20.”
b)
Applicant 2
,
the Vryheid Cost Centre at a bid price of “
R54 841 503.60
including 15% of VAT for the Period of 3 Years. This to be negotiated
to market value of R36 954 212.20.”
c)
Applicant 3
,
the Metro Cost Centre, at a bid price of “
62 106 854.00
including 15% of VAT for the Period of 3 Years. This to be negotiated
to R36 954 212.20.”
[21]
In paragraph 7 of the report the
Chairperson of the BEC, signs below the following, above the date of
2 March 2022:
“
The
Technical BEC Committee is aware that the tender had to be evaluated
according to the approved specification, however, the following
items
have been highlighted for noting:
i.
Stage
3 (Mandatory Requirement), of the document requested for the copies
of the audited and certified financial statement, however
the
committee identified that some bidders highlighted that they do not
have to be audited as per the Companies’ act, this
was verified
by Provincial treasury, and they confirmed the bidders statement.
ii.
BMK was eliminated from the list because one of the Directors did not
declare
interest.
iii.
Ibhongo was regarded as non-responsive upon evaluation by the SCM,
however, BEC regarded
the reason as invalid, the document was sent
back however the Technical committee found them non-responsive on
functionality.
iv.
New horizon was regarded as non-responsive due to functionality.
v.
The Technical BEC is aware of the alignment process of the DDM model
however
the evaluation was according to the approve specifications of
awarding per cost centre, only 9 bidders were responsive. Vryheid
and
KwaDukuza had no allocation.
With the above
highlighted areas of concern, the BEC committee recommends a
cancellation of the contract.”
[22]
The minutes of the BAC dated 25 April
2022 record the reasons for the cancellation of the 2020 tender as
being “
administrative
non-compliance.”
There
is no reference by either the BAC or the BEC to the alleged initial
bid number discrepancy as being a reason for the cancellation.
There
is no consideration at all of the possibility that the recording of
90 bids on that particular document may have been simply
a mistake.
[23]
The applicants refer in the founding affidavit, to regulation 13 of
the Preferential
Procurement Regulations of 2017.
It is common cause that it was of application in casu. It reads as
follows:
“
Cancellation
of tender.
(1)
An organ of state may, before the award of a tender, cancel a tender
invitation if-
(a) due to changed
circumstances, there is no longer a need for the goods or services
specified in the invitation;
(b) funds are no
longer available to cover the total envisaged expenditure;
(c) no acceptable
tender is received; or
(d) there is a
material irregularity in the tender process.
(2)
The decision to cancel a tender
invitation in terms of sub-regulation (1) must be published in
the
same manner in which the original tender invitation was advertised.
(3)
An organ of state may only with the
prior approval of the relevant treasury cancel a tender invitation
for the second time.”
[24]
The deponent for the respondents says, as set out above, that the
decision to cancel was made
in terms of regulation 13 because there
were “
material irregularities in the tender process”
in that 90 bids were received but 92 evaluated. She says at paragraph
18 of the answer “
In terms of regulation 13 of National
Treasury, the Respondents were obliged to cancel a tender, if…..there
was material
irregularity in the tender process.”
What is
immediately apparent is that she is wrong. The regulation is not
mandatory but permissive. Cancellation based on an incorrect
understanding that such is obligatory, rather than permissive is, in
my view, on its own, arbitrary and not rational or lawful.
[25]
Like in the Impande application, however, in addition to justifying
the cancellation in terms
of regulation 13, it was argued that the
cancellation process was not an administrative decision which could
be challenged under
PAJA. This is argued on the basis that no award
had been made because the bid process was still incomplete,
particularly by the
time the bid validity period had expired. (30 May
2022 as set out above).
[26]
Bezuidenhout AJ, as set out above, found that the decision, the same
decision being impugned
herein, constituted administrative action.
Ncube J did not state as much, but on a reading of his judgement it
must be accepted
that he also did. I am of the view that upon
consideration of the facts herein, the decision to cancel the tender
amounted to an
administrative decision. I conclude that both
Bezuidenhout AJ and Ncube J were correct in that regard.
[27]
In arriving at that conclusion, I have considered the judgement of
Wallis JA on behalf of the
SCA in the Tshwane judgement. In that
matter, the facts were different. After the initial tender was put
out, the city decided
to, for various reasons irrelevant hereto,
change the nature of the services needed. Hence, the original tender
was cancelled.
In addition, the terms of the tender permitted it. As
set out by Wallis JA in that matter,
“
In
cancelling tender CB204/2012 the City was doing no more than
exercising a right it reserved to itself not to proceed to procure
those particular services on the footing set out in that tender.”
Wallis
JA also held that in that matter the “
decision
not to procure services does not have any direct, external legal
effect.”
On
the basis of, inter alia,
Grey’s
Marine Hout Bay (Pty) Ltd & others v Minister of Public Works
&
Others,
[2005] ZASCA 43
;
2005
(6) SA 313
(SCA)
para
[21] he found that that is an essential element of an administrative
action. In casu, the same tender has been advertised and
invited
a second time after the cancellation. That is common cause. As a
result, the parties would have to tender a second
time precisely as
they had previously done, at obviously significant additional cost
and inconvenience. In my view the decision
to cancel the tender, on
the facts herein, has a direct, external legal effect as required for
it to constitute administrative
action.
[28]
In the Madibeng
judgement, the Constitutional Court, at paragraph [17], said the
following:
“…
the
Municipality argued that divergent views had been expressed by this
court, on the one hand, in Head of Department, Mpumalanga
Department of Education v Valozone 268 CC and Others
[2017]
ZASCA 30
and on the other, in City of Tshwane Metropolitan
Municipality and Others v Nambiti Technologies (Pty) Ltd
[2015]
ZASCA 167
;
[2016] 1 All SA 332
(SCA); 2016 (2) SA
494 (SCA) and SAAB Grintek Defence (Pty) Ltd v South
African Police Service and Others
[2016] ZASCA 104
;
[2016]
3 All SA 669
(SCA). This is not correct. The question cannot be
determined in the abstract. In Nambiti and SAAB this
court held that the cancellation of a tender by an organ of state
prior to its adjudication does not constitute administrative
action
under PAJA. The ratio common to these judgments was that in
such circumstances, the cancellation of the tender
constitutes the
exercise of executive authority. The court reasoned that the decision
of an organ of state to procure goods or
services is an executive act
and the reversal of that decision, without more, is of the same
nature. (See Nambiti paras
25 and 31 and SAAB paras
18-21.) Both these judgments recognised, however, that the position
would be different when
a public tender is cancelled during the
tender process, as would be the case on the Municipality’s
version. On its case,
the Municipality cancelled the tender after the
award thereof had been set aside and it was ordered to reconsider the
matter. This
was also the factual position in Valozone. In such
a case ‘principles of just administrative action are of full
application’
(Nambiti para 32) or, put differently,
principles of administrative justice continue to govern the
relationship between the
organ of state and the tenderers (SAAB paras
16-18 with reference to Logbro Properties CC v Bedderson NO and
Others
[2003] 1 All SA 424
(SCA);
2003 (2) SA
460
(SCA)). Thus, a decision of an organ of state to cancel a
tender after it was awarded, would generally be reviewable under
PAJA”.
[29]
I am alive to
the fact that
in
casu
the tenders
had not been formally awarded but the process had reached such a
state of progress that that was imminent. But for the
irrational and,
as I find herein, unlawful cancellation at that late stage, the
appointments would have followed. That is not denied
by the
respondents. Distinct from the Tshwane matter, is the fact that the
stage of the tender process was therefore so advanced
as to be
practically complete. The successful bidders had been identified. The
tender evaluation process had been completed. That
is common cause,
and the respondents did not try to argue otherwise. Counsel for the
respondents argued, however, that because
the BAC had not yet signed
off on the recommendations, no reviewable administrative action had
taken place. In my view that cannot
be correct. The BAC, and then the
BEC, decided to unjustifiably cancel the tender and conveyed that by
publication as required.
During argument Counsel for the respondents
handed up a document called “Guideline for Bid Committee
Members – Practice
Note Number: SCM-03 of 2006 as being a
summary of the tender process applicable. Underlined by the
respondents is a portion of
paragraph 3.3 which deals with the BAC
and says “
The
committee should consider the reports and recommendations made by the
evaluation committee. The former committee must consider
whether the
recommendation made by the latter, sufficiently indicates that all
relevant factors have been taken into account, and
that the
recommendation made represents a logical, justifiable conclusion,
based on all relevant information at the evaluation
committee’s
disposal.”
What
that sets out, in my view, is that the BAC considers the BEC report
and determines if it appears rational based on all relevant
factors.
It is, as argued by the applicants, simply an oversight role.
In
casu
that oversight
role required a consideration by the BAC of what the BEC set out as
set out in paragraph [21] above. What is set
out in paragraph [21]
above by the BEC had no bearing on the applicants and, in my view,
provided no rational basis to cancel the
entire tender process.
[30]
Ncube J found that the reason for the cancellation based on “
material
irregularity”
was not the reason published and given and
was raised at the stage of the application only. He pointed out,
correctly, that there
is no indication on any of the documents
evidencing the BEC’s handling of the tender, (or the BAC for
that matter) that the
whole tender process should be cancelled for
reasons related to the 92 versus 90 bids issue or on the grounds of
“
material irregularity”
. He decided that the
respondents could not include a new reason and had to rely on their
original reason as published. Bezuidenhout
AJ also dealt with this
issue in some detail, noting that the Department had been anything
but co-operative in supplying evidence
of the actual reason/s for the
cancellation. Bezuidenhout AJ concluded, again correctly in my view,
that the evidence does not
establish that the BEC ever deliberated on
the alleged bid number discrepancy issue. As was pointed out, in the
matter of
Head of Department, Mpumalanga Department of Education v
Valozone 268 CC and Others,
[2017] ZASCA 30
, missing bids and
possible irregular bids did not necessarily constitute material or
serious irregularities justifying cancellation
of the entire tender
process in any event. Ncube J found that the alleged “irregularities”
relied upon by the respondents
in Impande (the same as herein) were
not so material as to vitiate the entire tender process. He,
correctly in my view, found that
a material irregularity of the type
required by regulation 13 is one which could lead to substantial
injustice and/or unfairness.
That did not happen in this bid process.
[31]
The respondents argued that the application was not urgent and should
not have been enrolled as such. I
am satisfied that it was, and
remains, urgent. The respondents delivered an answering affidavit on
31 October 2023, and had more
than enough time to supplement it, if
they wished, before the opposed hearing on 2 February 2024. No
prejudice to the respondents
was argued or is established.
[32]
The respondents raised, in the answering affidavit, an argument that
all bidders should have
been joined and that that failure constituted
a fatal non-joinder. The point was not raised in the respondents’
heads of
argument. I agree with the applicants’ argument that
the balance of the bidders have no direct interest in the applicants’
claims herein. I see no merit in that argument.
[33]
The respondents argued that the bid validity period constituted a
material dispute of fact. That, in my
view, is not so. It is common
cause that the bid validity period terminated on 30 May 2022. The
decision sought to be impugned
was made in April 2022. I see no merit
in that argument.
[34] I
therefore conclude that neither the judgment of both Bezuidenhout AJ
nor Ncube J were clearly wrong. Their
judgements decided the issues
of whether the cancellation constituted administrative action and,
having found it did, Ncube J found
it was reviewable. Those issues
are exactly the same as the issues between theses applicants and the
respondents. I conclude that
I am bound by the decisions of
Bezuidenhout AJ and Ncube J on that basis. The fact that in Ncube J’s
matter the applicant
was different makes no difference. The factual
and legal issues
vis a vis
the parties therein were exactly
the same as the issues between the parties herein. In any event, I am
of the view that both Bezuidenhout
AJ and Ncube J were right on the
issue that the decision to cancel constituted administrative action
falling foul of PAJA. I also
agree that Ncube J’s determination
that the decision is manifestly reviewable as being arbitrary,
irrational, and unjustified.
I conclude that those judgements are in
the circumstances binding on me according to the doctrine of
stare
decisis
. Even if they were not, however, I would have found as
both Bezuidenhout AJ and Ncube J did on those issues, for the reasons
set
out above.
The relief
[35]
Ncube J did not remit the matter back to the respondents after
setting aside the cancellation
of the tender. He granted an Order
effectively substituting his decision for that of the Department. He
did so in terms of the
powers given to him by section 8(1)(c)(ii)(aa)
of PAJA, finding that exceptional circumstances warranted such an
approach. In doing
so he applied the principles set out in
Mwelase
and Others v Director-General for the Department of Rural Development
and Land Reform and Another 2019(6) SA 597 (CC)
at paragraphs 46
and 47, and
Trencon Construction (Pty) Ltd v Industrial
Development Corporation of South Africa Ltd and Another
2015 950 SA
245
(CC)
.
[36]
On that basis he found that a “
substitution order is
justified...It will serve no purpose to remit the case to the
Department. Considering the fact that the BEC
has done the evaluation
and made a recommendation to award the Estcourt Cost Centre to
Impande, the decision of the Department
is a foregone conclusion…The
tender has been cancelled twice in three years affecting urgent
required service delivery to
the public. The remittal of this matter
back to the Department will cause further delays in the provision of
services to the public
and that exercise will be prejudicial to
Impande.”
[37]
The matter before me is not drafted as a review, however. It calls
for orders on the basis of
decisions already taken in respect of
which I am bound. On the evidence, the three applicants herein are in
exactly the same position
as Impande was when Ncube J made his
decision. The BEC had evaluated the numerous bids and had concluded
that the applicants should
be offered the appointments set out in
paragraph [20] above. In my view, like Ncube J, their appointments
constituted a foregone
conclusion. As set out above, the tender has
been initiated again for the same services and with the same
requirements. That is
evidence that the services are required still.
That has not changed. None of the applicants were determined as being
unsuitable
for such contract. It would, in my view, be manifestly
unfair to expect them to go through that process again in the
circumstances.
[38]
I therefore conclude that the applicants are entitled to Orders
compelling the respondents to
implement the recommendations of the
BEC of 13 December 2021, alternatively 2 March 2022.
[39]
That being said, however, it is necessary that I deal with the
following. The recommendations
of the BEC are found in the Bid
Evaluation Report dated 2 March 2022. The relevant section of that
document reads “
The Bid Evaluation Committee recommends that
the following bidders be awarded the following Cost Centre’s…”
and then repeats essentially what is set out in paragraph [20] above
in respect of each applicant. Each proposed “
appointment”
sets out the price (as tendered) but recommends a lower market
value/price or figure, down to which each tenderer must be
negotiated.
In other words, the offer to each, by the second
respondent, for each relevant contract, was to be in the lesser
amount. That is
how the applicants, in their papers, see and
understand it and it is on that basis that they seek the
appointments. I say so because
in paragraph 35 of the founding
affidavit the applicants record that the BEC recommended appointments
to them in the lesser amounts.
Counsel for the applicants, in his
heads of argument, submits the same.
[40]
The applicants are, in my view, therefore entitled to Orders,
pursuant to the review of the cancellation
of the tender, compelling
compliance with the recommendations of the BEC as they are recorded
in the Report at the lesser value
determined by the BEC and referred
to above.
[41]
Whilst the Orders I intend making were not sought in the specific
terms I set out in the Orders,
I make them under the rubric of
paragraph 6 of the Notice of Motion where I am asked to grant such
further and/or relief as may
be appropriate. It is, in my view,
necessary and appropriate to direct the price to be offered to the
applicants in relation to
the recommendation of the BEC as accepted
by them so as to result in certainty and to ensure, as far as is
possible, no further
unnecessary delays.
[42]
On the question of costs, I am of the view that the respondents, in
opposing the application,
should not be penalised with costs on an
attorney and client scale, as asked for by the applicants. I
have considered the
arguments of the applicants in relation to the
alleged dilatory and belligerent attitude of the respondents, but I
do not agree
that a punitive costs order is the inevitable result
thereof
in casu
.
[43]
In the result, I make the following Orders:
1)
The Second Respondent is directed to
implement the recommendations of the Bid Evaluation Committee of 13
December 2021, alternatively
2 March 2022 by forthwith offering the
applicants the contracts, for the relevant Cost Centre’s as bid
on by them, as follows:
a)
Applicant 1
,
the Ixopo Cost Centre for the period of 3 Years at a price of R43 714
052.20 including VAT.
b)
Applicant 2
,
the Vryheid Cost Centre for the
period of 3 Years at a price of R36 954 212.20 including
VAT.
c)
Applicant 3,
the Metro Cost Centre, for the period
of 3 Years at a price of R36 954 212.20 including VAT.
2)
The second respondent is directed to,
within 10 days of written acceptance of the offers by the applicants,
issue letters of appointment
to each relevant applicant for the
appointment and provision of professional engineering services for
the three-year period for
the relevant Cost Centre.
3)
The second respondent is directed to
conclude written Service Level Agreements with each relevant
applicant for the provision of
professional engineering services for
the three-year period for the relevant Cost Centre within 21 days of
issuing and signing
the letters of appointment referred to in (2)
above.
4)
The respondents are to pay the costs
of this application jointly and severally.
PITMAN AJ
Date
reserved:
2
February 2024
Date
delivered:
22
March 2024
For
Applicant:
Adv
Manentsa
Instructed
by:
Shandu
Attorneys Incorporated
Tel:
010 035 2142
Email:
siyabonga@shanduattorneys.co.za
lindokuhle@shanduattorneys.co.za
REF:
C00954
C/O
Venns Attorneys Incorporated
Tel:
033 355 3291
Email:
Lervashni@venns.co.za
asanda@venns.co.za
For
Respondents:
Adv
Dickson SC – Adv Mazibuko
Instructed
by:
Mbili
Attorneys
Tel:
033 342 3675
Email:
mbiliattorneys@gmail.com
REF:
K056/23