Lerostyle (Pty) Ltd v MEC: Free State Provincial Government: Department of Education and Others (4699/2020) [2022] ZAFSHC 45 (4 March 2022)

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[2022] ZAFSHC 45
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Lerostyle (Pty) Ltd v MEC: Free State Provincial Government: Department of Education and Others (4699/2020) [2022] ZAFSHC 45 (4 March 2022)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review number:
4699/2020
In the matter
between:
LEROSTYLE (PTY)
LTD
Applicant
and
THE MEC: FREE
STATE PROVINCIAL
GOVERNMENT:
DEPARTMENT OF
EDUCATION
1
st
Respondent
THE HOD: FREE
STATE PROVINCIAL
GOVERNMENT:
DEPARTMENT OF
EDUCATION
2
nd
Respondent
LEBONE LITHO
PRINTERS (PTY)
LTD
3
rd
Respondent
ALTRON TMT (PTY)
LTD
4
th
Respondent
DSV SOLUTIONS
(PTY)
LTD
5
th
Respondent
HEARD
ON:
29
NOVEMBER 2021
CORAM:
MATHEBULA, J
et
DE
KOCK, AJ
JUDGEMENT
BY:
MATHEBULA, J
DELIVERED
ON:
The judgment was handed down electronically by
circulation to the parties’ legal representatives by email and
release to SAFLII
on 04 March 2022. The date and time for hand-down
is deemed to be 04 March 2022 at 11H30.
[1]
Before us are two (2) applications that are linked to each other. In
the main application,
the applicant seeks an order brought ostensibly
under Uniform Rule 53 to set aside a contract entered into by and
between the respondents.
In the interlocutory application brought in
terms of Uniform Rule 6(11), the applicant seeks an order to compel
the first and second
respondents to file the Record of the Decision
impugned in a pending review application. Both these applications are
opposed. Before
us appears Mr S Grobler SC for the applicant, Mr M
Hellens SC for the first and second respondents and Mr I Hussain SC
for the third
to fifth respondents. I will henceforth refer to the
third to fifth respondents as the consortium.
[2]
The approach of the parties is diametrically opposed to each other.
The view of the applicant is
that it is entitled to the Record of the
Decision and its case will be severely hamstrung if it is not made
available. The argument
advanced is that the interlocutory
application must be adjudicated first before the main application.
This is evident in the heads
of argument filed and oral submissions
made by counsel for the applicant which were silent on the main
application.
[3]
The respondents adopted the view that the interlocutory application
cannot be argued
independently of the review application. In fact,
they raised numerous points
in limine
which
they assert are dispositive of the review application. On their
strength, they argued, it will be unnecessary to adjudicate
the
merits of the review application.
[4]
It is apposite to set out the background facts which culminated in
both applications.
The consortium was awarded a tender to print and
distribute examination papers by the Gauteng Department of Education
(“GDE”).
This was after a bidding process conducted in accordance
with the law. No dispute arises between the parties on this aspect.
The
agreed term of the contract was from 1 April 2018 to 31 March
2021. It is common cause that at the time this matter served before
us, the contract had expired by effluxion of time.
[5]
The Free State Department of Education (“FSDoE”) represented by
the first and second
respondents sought and were granted permission
to participate in the GDE contract. The parties were acting in terms
of Treasury Regulation
16A6.6. The contract between the respondents
is the same as the one between the GDE and the consortium. The
respondents duly signed
a service level agreement which remained
valid from 12 August 2019 to 27 March 2021.
[6]
It is self-evident that when the first and second respondents
embarked on procurement
using Treasury Regulations, no competitive
tender processes took place. The applicant was not an unsuccessful
tenderer. It is against
these circumstances that the first and second
respondents assert that they are unable to produce the record of the
decision which
led to the entering of the contract between the
consortium and GDE.
[7]
The applicant only presented a case for the interlocutory application
and the crux of
its contention is that the matter is not ripe for
hearing until the first and second respondents have produced the
record of the
decision. The applicant contends that the decision and
process followed by the first and second respondents in concluding
the contract
with the consortium, as it did, was unlawful. Therefore,
without the record of the decision, the matter cannot be properly
ventilated
before the court. The nub of the contention is that such
refusal to file the record of the decision is against the provisions
of
Uniform Rule 53. The argument is that the applicant is denied this
right for unjustifiable reasons.
[8]
Counsel for the applicant argued that if the first and second
respondents are excused
from filing the record, not all evidential
material would be placed before the court. That being the case, the
court will be restricted
from exercising its constitutionally
entrenched function in matters of this nature. The point made is that
there are no rights entitling
the first and second respondents to
refuse to act in accordance with the Uniform Rules thus prejudicing
the applicant.
[9]
In sharp response, counsel for all the respondents raised the same
points of contention
with slight variations here and there. It is
apposite to repeat their formidable arguments in joint opposition of
both the interlocutory
and main application. Their point of departure
is that the interlocutory application does not have a life of its
own. It is linked
to the main application. The issues raised as
points
in limine
are
lack of
locus standi
,
the application has been brought beyond the limits set by section 7
of the Promotion of Administrative Justice Act 3 of 2000 (hereinafter
“PAJA”), non-joinder and mootness.
[10]
The respondents vehemently deny the authority of the deponent of the
founding affidavit. They base this
on the fact that the applicant has
not attached or filed a resolution authorising him to institute these
proceedings. In support
of their assertions, heavy reliance is placed
on the decision of Chesiwe J (with Naidoo J concurring) in
K2011148986
South African (Pty) Ltd v SITA SOC Ltd and Others
.
[1]
In that matter, the applicant had not attached a resolution
authorising the deponent to institute the proceedings. The court held
that the deponent of the founding affidavit lacks the necessary
locus
standi
despite stating that he is the director of the applicant and
conversant with its business activities.
[11]
There is an overlap between the two issues. Counsel set out the
pertinent dates of the tender between
GDE culminating in a contract
between the respondents. Briefly as clarity permits they can be
summarised as follows. On 27 October
2017, GDE invited tenders for
contract GDE 159. The consortium was chosen as a successful tenderer
and entered into contract with
GDE for the period 12 August 2019
until 27 March 2021. The first and second respondents participated in
the aforementioned contract
for the period 12 March 2019 until 27
March 2021. It is on these basis that the respondents contends that
the application was brought
way out of the 180 days stipulated by
section 7(1) of the PAJA.
[2]
This assertion dovetail with the argument of mootness. Counsel
pointed out that the contract had expired by effluxion of time on
27
March 2021.
[12]
The respondents’ assert that the application should be dismissed
for fatal non-joinder. Again this
proposition is reliant upon the
K201114896
decision.
They argue that the Free State Provincial Treasury Department and
Free State SITA played a critical role because the first
and second
respondents did not make a decision on their own.
[13]
They also allege that GDE has a substantial interest in the matter.
This submission is bereft of any
merit because the applicant takes no
issue whatsoever with the award of the tender by the Gauteng
Provincial Government. The respondents
also pointed out that FSDoE is
not cited as part of the proceedings. This submission too does not
make sense at all to me. The first
and second respondents are sued in
their capacities as political head and accounting officer of FSDoE
collectively they are the Department
of Government.
[14]
Having set out the background facts and arguments advanced on behalf
of both parties, the remaining question
is whether the applicant has
made out a case for the relief sought. In order to succeed, an
applicant must make out a case in the
founding affidavit. There the
applicant must not only state its case but also define the issues.
Right at the outset, it is my considered
viewpoint that the
interlocutory application ought to succeed. My reasons for concluding
as such are stated in the succeeding paragraphs.
[15]
The applicant quoted and relied on the decision of Le Grange J where
he said the following on paragraph
14: -
“
It is settled law
that the Rule is primarily intended to operate in favour of and to
the benefit of an applicant in review proceedings
and to avoid review
proceedings being launched in the dark. The Rule essentially confers
the benefit that – all the parties have
identical copies of the
relevant documents on which to draft their affidavits and that they
and the Court have identical papers before
them when the matter comes
to Court.”
[3]
[16]
The first and second respondents simply allege that it does not have
the record of the decision. This
cannot be true. It is expected of a
public entity to assist the court to comply with its constitutional
mandate. In the HSF decision,
the court held that an applicant should
not be deprived of the benefit of this procedural right unless there
is a clear justification
therefor. The reasons advanced by the first
and second respondents seems to justify such denial without cogent
reasons. The consortium
claim that the applicant is after their trade
secrets. There are no details set out to elevate this assertion to a
justifiable reason.
In any event, the respondents were not interested
to argue this point except that they sought an order disposing of
this matter on
other grounds without adjudication of the merits.
[17]
At the centre of the Rule is the notion of fairness. There must be a
rational basis upon which a decision
is taken. The reasons why a
particular decision was subsequently taken should be well known. This
is important to show how the first
and second respondents functioned
when the decision was taken
[4]
and that was within the bounds of the law.
[5]
Perhaps the most important one goes to the core of checks and
balances provided by the constitution of the Republic. Decision(s)
of
public bodies must be subjected to judicial scrutiny. Clearly as
counsel for the applicant correctly argued, the purpose of the
Rule
is to ensure that all evidential material is placed before court. It
is unthinkable how this can be achieved if the applicants
are allowed
to have their own way. It is part of our law that every person is
entitled to a lawful administrative action.
[18]
The point pertaining to lack of
locus standi
is repeatedly raised particularly by the
respondents in this court. In
Down-Touch
Investments (Pty) Ltd v Mangaung Metropolitan Municipality and Others
I wrote the following: -
“
In Ganes and
Another v Telecom Namibia Ltd the Supreme Court of Appeal provided
the clearest approach to this question in the modern
era.
[6]
The court unequivocally stated that it was irrelevant whether the
deponent to the affidavit was authorised to depose to it. The simple
reason is that the deponent to the affidavit need not be authorised
by the party concerned to depose to the affidavit. The key issue
is
that the institution or prosecution of the proceedings must be
authorised.”
[7]
It
is on this basis that I conclude that the submissions made by the
respondents have no merit.
[19]
The respondents raise two important issues namely non-joinder and
mootness. Any court can only adjudicate
a matter before it, based on
credible evidence contained in the papers or orally presented by
witnesses. It is unthinkable that any
court can decide on issues like
joinder when there are no records linking or not linking any entity
to the tender.
[20]
Only when the record has been filed, can anyone express an opinion on
this issue. The record of the decision
is sought from the first and
second respondents not the consortium. That is what will ultimately
be tested before court. It was argued
that the applicant is seeking
information from third parties. This submission cannot hold. The
tender process between GDE and the
consortium is not challenged at
all. Only the record of the decision that tipped the scale for the
first and second respondents to
decide to participate in that
contract is of utmost importance for any court to decide whether
there was a lawful basis for the decision.
The respondents seek an
unfair position in that this court must decide on this matter without
all information being placed before
it. The argument that the
application should be dismissed cannot be sustained on these grounds.
[21]
My view is that the two applications are linked to each other but
each has a life of its own. The interlocutory
application ought to
succeed with costs against all the respondents.
[22]
I make the following order:
22.1.
The first and second respondents are ordered to file the Record of
the Decision impugned in the pending review process
under case number
4699/2020 in this court within five (5) days after granting of this
order.
22.2.
The first and second respondents are ordered to provide such reasons
for the decision.
22.3.
The respondents are ordered, jointly and severally, the one paying
the other(s) to be absolved, to pay the costs.
­­
M.A. MATHEBULA, J
I
agree
D. DE KOCK, AJ
On
behalf of applicant:

Adv. S Grobler SC
Instructed
by:

Kramer
Weihmann Inc.
BLOEMFONTEIN
On
behalf of 1
st
& 2
nd
respondents:

Adv. M Hellens SC
Instructed
by:

State Attorney
BLOEMFONTEIN
On
behalf of 3
rd
, 4
th
& 5
th
respondents:

Adv. I Hussain SC
Instructed
by:

Phatsoane Henney Inc.
BLOEMFONTEIN
/TKwapa
[1]
K2011148986
(South Africa) (Pty) Ltd v State Information Technology Agency SOC
Limited and Others (3996/2019)
[2020] ZAFSHC 135
(18 August 2020).
[2]
Section
7(1) of the PAJA reads as follows: -
“
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.”
[3]
Helen
Suzman Foundation v Judicial Service Commission 2015 (2) SA 498
(WCC).
[4]
Rule
53(1) of the Uniform Rules of Court reads as follows: –
“
Save where any
law otherwise provides, all proceedings to bring under review the
decision or proceedings of any inferior court and
of any tribunal,
board or officer performing judicial, quasi-judicial or
administrative functions shall be by way of notice of
motion
directed and delivered by the party seeking to review such decision
or proceedings to the magistrate, presiding officer
or chairman of
the court, tribunal or board or to the officer, as the case may be,
and to all other parties affected –
(a) calling upon
such persons to show cause why such decision or proceedings should
not be reviewed and corrected or set aside,
and
(b) calling upon
the magistrate, presiding officer, chairman or officer, as the case
may be, to despatch, within fifteen days after
receipt of the notice
of motion, to the registrar the record of such proceedings sought to
be corrected or set aside, together
with such reasons as he is by
law required or desires to give or make, and to notify the applicant
that he has done so.”
[5]
Afrisun
Mpumalanga (Pty) Ltd v Kunene NO and Others
1999 (2) SA 599
(TPD) at
630F.
[6]
(608/2002) [2003] ZASCA 123.
[7]
Down-Touch
Investments (Pty) Ltd v Mangaung Metropolitan Municipality and
Others (230/2022) [2022] ZAFSHC (10 February) at para
10.