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[2022] ZAKZPHC 82
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Makhathini Medical Waste (Pty) Ltd v MEC for Health, Kwazulu-Natal and Others (8721/2021) [2022] ZAKZPHC 82 (7 December 2022)
FLYNOTES:
TENDERS AND LEAVE TO INTERVENE
Civil
procedure – Leave to intervene – Review of tender
award – Unsuccessful bidder seeking to review award
for all
three areas of services – Seeking to join review application
of another bidder seeking to challenge award relating
to only one
area – Contended that ventilating objections to all three
areas would prejudice other bidder – Granted
leave to
intervene in respect of award for one area.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 8721/2021
REPORTABLE
In
the matter between:
BUHLE
WASTE (PTY) LTD
INTERVENING PARTY
In
re:
MAKHATHINI
MEDICAL WASTE (PTY) Ltd
APPLICANT
and
THE
MEC FOR HEALTH, KWAZULU-NATAL
FIRST RESPONDENT
COMPASS
MEDICAL WASTE SERVICES (PTY) LTD SECOND
RESPONDENT
THE
CHAIRMAN, BID APPEALS TRIBUNAL THIRD
RESPONDENT
KWAZULU-
NATAL
MEC
FOR FINANCE, KWAZULU-NATAL FOURTH
RESPONDENT
ORDER
The
following order is granted:
1.
The
intervening party, Buhle Waste (Pty) Ltd, is granted leave to
intervene and is joined as second applicant in the review application
under case number 8721/21P in respect of the decision to award the
contract for Area 2: Umgungundlovu, Harry Gwala and Ugu Districts
(Region 2) in terms of Tender number ZNB5296/2020-H to the second
respondent, Compass Medical Waste Services (Pty) Ltd.
2.
The intervening party, Buhle Waste (Pty) Ltd is directed to file its
founding
affidavit on or before 14 December 2022.
3.
The first respondent, the MEC for Health, and the second respondent,
Compass
Medical Waste Services (Pty) Ltd are directed to file their
answering affidavits on or before 22 December 2022.
4.
The intervening party is directed to file its replying affidavit on
or before
4 January 2023.
5.
The applicant, Makhathini Medical Waste (Pty) Ltd is directed to file
any further
affidavits it may wish to file on or before 6 January
2023.
6.
The costs of the intervention application are reserved for decision
by the court
hearing the review.
JUDGMENT
BEZUIDENHOUT
AJ
Introduction
[2]
Buhle Waste
(Pty) Ltd (Buhle) seeks leave to intervene and to be joined as a
second applicant in an application brought by Makhathini
Medical
Waste (Pty) Ltd (Makhathini) under case no 8721/21 which was launched
on 4 October 2021. In terms of that application,
Makhathini inter
alia seeks to review and set aside the decisions of the Bid
Evaluation Committee and the Bid Adjudication Committee
of the
KwaZulu-Natal Department of Health, as well as the decisions of the
Bid Appeals Tribunal and the MEC for Finance, KwaZulu-Natal.
It
relates to an award made in respect of tender number ZNB5296/2020-H
(the tender), which was published on 7 May 2021.
Background
[3]
This matter is
the third application out of four which I have heard in recent weeks,
pending the finalization of the review application,
which has been
set down for hearing on the opposed roll on 20 January 2023. Both
Makhathini and the KwaZulu-Natal Department of
Health oppose the
application.
[4]
Both Buhle and
Makhathini applied in separate applications for orders interdicting
the KwaZulu-Natal Department of Health from implementing
the decision
to award the tenders to the successful bidders or to conclude any
contracts pursuant to the award of the tender. I
heard both these
applications on 14 October 2022 and subsequently issued orders on 20
October 2022, dismissing both Makhathini’s
and Buhle’s
applications for interdictory relief, with the reasons to follow.
[5]
It is common
cause that the KwaZulu-Natal Department of Health (the Department) on
17 July 2020 published a tender under Bid Document
number
ZNB5296/2020-H, inviting tenders for the provision of health care
risk waste management services (the services) for a period
of three
years in three different regions or areas.
[6]
Makhathini was
awarded the tender for Area 1. Compass Medical Waste Services (Pty)
Ltd (Compass), the second respondent in the review
application, was
awarded the tender for Area 2. Ecocycle Waste Solutions (Pty) Ltd
(Ecocycle) and Vikela Africa Waste Care CC (Vikela)
as a joint
venture, were awarded the tender for Area 3.
[7]
Makhathini
seeks to review only the decision to award the tender to Compass in
respect of Area 2 in its review application. Ecocycle
and Vikela are
accordingly not cited in the review application as they have no
interest in the matter.
[8]
Buhle
submitted bids in respect of all 3 areas but was unsuccessful. It now
seeks to review the award in respect of all three areas,
in other
words, in addition to the award to Compass, also the award to
Makhathini in respect of Area 1 and the award to the Ecocycle
Vikela
Joint Venture in respect of Area 3.
[9]
Buhle
is the current service provider to the Department and has been doing
so in terms of a so-called piggyback arrangement through
a Mpumalanga
Health Department contract approved in terms of Treasury Regulation
16A6.6
[1]
around April 2019.
Buhle was initially appointed for 6 months, which appointment was
subsequently extended on a month-to-month
basis to 30 June 2021 and
then to 31 December 2021 and thereafter. The Mpumalanga contract
expired on 30 November 2022 and Buhle’s
provision of services
in terms of that contract terminated on that date.
[10]
It
is perhaps worth mentioning that Buhle was also providing similar
services to the Free State Department of Health, where it chose
to
participate in a piggyback contract concluded between the Department
of Health of Limpopo and Buhle. The contract between Buhle
and the
Free State Department of Health was declared unlawful and set aside
by the Free State Division of the High Court in
Compass
Medical Waste Services (Pty) Ltd v MEC Department of Health, Free
State and others
.
[2]
Buhle’s
case
[11]
It is Buhle’s
case that it instructed its attorneys on 7 May 2021 to deliver a
notice of appeal to the Department, on the
day that the tender was
awarded to Makhathini, Compass and the Ecocycle Vikela Joint Venture.
A notice of appeal which also incorporated
a request for reasons was
subsequently sent to the Department on 17 May 2021, in accordance
with Item 19(2) of the KwaZulu-Natal
Supply Chain Management Policy
Framework (the Supply Chain Policy).
[12]
Item 18 of the
Supply Chain Policy deals with the establishment of the Bid Appeals
Tribunal by the MEC for Finance and Economic
Development.
[13]
Item 19 sets
out the appeal procedure. The relevant portions read as follows:
‘
(1)
The following entities aggrieved by a decision of a departmental Bid
Adjudication Committee or a delegate of an accounting officer,
may
appeal to the Bid Appeals Tribunal in the prescribed manner –
(a)
a department;
(b)
a bidder.
(2)
The department or bidder must, within five working days of receipt of
the notification of an award,
deliver written notification of an
intention to appeal.
(3)
The department or bidder may, together with the notification of
intention to appeal under paragraph
(2), deliver a request for
written reasons for the award of the said bid.
(4)
The Bid Adjudication Committee or a delegate of an accounting officer
must deliver to the appellant
the written reasons requested under
paragraph (3) within ten working days.
(5)
The appellant must, within ten working days of receipt of the written
reasons delivered under paragraph
(4), or, failing a request for
written reasons under paragraph (3), within ten working days of
giving notice under paragraph (2),
submit written representations to
the Bid Appeals Tribunal, indicating sufficiently and without
unnecessary elaboration the grounds
and basis of the appeal and the
nature of the complaint.
(6)
Upon receipt of a notice of intention to appeal, the Bid Appeals
Tribunal must notify other bidders
who may be adversely
affected by the appeal, in writing of the appeal and invite them to
respond within five working days.’
[14]
Buhle alleges
that the Department has to date not responded to its request for
reasons. It is perhaps important to note that the
so called notice of
appeal sent on Buhle’s behalf on 17 May 2021 (outside the 5 day
period) was not addressed or sent to
the Department but to the Bid
Appeals Tribunal. One would have expected Buhle to also address and
deliver its notice of appeal
and its request for reasons to the
Department but as the Department has not yet raised this issue I will
leave it at that. Buhle
also stated that the BAC (a reference to the
Bid Adjudication Committee) failed to notify it of the appeal by
Makhathini, as it
was obliged to do, which is not correct, as no such
obligation exists. It is in fact the Bid Appeals Tribunal on whom the
obligations
rests, as set out in Item 19(6).
[15]
As mentioned
above, Makhathini launched its review application on 4 October 2021.
Its review application followed upon its unsuccessful
appeal before
the Bid Appeals Tribunal. It is common cause that the Department
initially failed to file the record, as it was obliged
to do in terms
of the provisions of Uniform rule 53(1)
(b)
.
Its failure necessitated Makhathini to bring an application to compel
the Department to deliver the record, which it ignored and,
facing an
application for contempt of court, eventually filed the record on 3
October 2022. It is only since then that both Makhathini
and Compass
could consider the record and file the relevant affidavits to
complete the papers in the review application, which
is to be heard
on 20 January 2023.
[16]
Buhle contends
that it has a direct and substantial interest in the subject matter
of the dispute in the review application and
that the relief it is
seeking is dependent upon the determination of the same question of
law or fact as in the review application
albeit that two additional
awards in respect of two additional areas are also disputed. Its
grounds for review are the following:
(a)
The tender
validity period had expired before the tender was awarded. Buhle
received correspondence extending the tender validity
period to 10
April 2021. The tender was awarded on 7 May 2021 and was accordingly
invalid and stood to be set aside.
(b)
The Department
failed to provide Buhle with the reasons for the award of the tender,
as requested by Buhle during May 2021. The
Department has also failed
to dispatch the record of all the documents and electronic records
relating to the making of the decision
to award the tender. The
Department’s failure to provide reasons and its non-compliance
with Uniform rule 53, as read with
section 5(3) of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA), lead to the presumption
that the decision to award
the tender was taken without good reason
and therefore stood to be reviewed and set aside.
(c)
Lastly, Buhle
aligned itself with the grounds relied upon by Makhathini in its
review, in that the Department failed to comply with
the
Preferential
Procurement Policy Framework Act 5 of 2000
in a number of respects.
Firstly, the reasons for awarding the tender did not provide for
objective criteria to award the tender
to a lower scoring bidder.
Secondly, the same criteria were taken into account twice by the
Department in the decision to award
the tender. Thirdly, the
Department awarded the tender to Compass at a higher price than that
of Makhathini without establishing
whether Compass was willing to
match Makhathini’s price.
(d)
In its
interdict application, Buhle also made much of the fact that the
Department apparently awarded the tenders on a ‘comparative
price’ basis and not on the basis of the tenderers’
tendered rates for the three years of the contract.
I
deal with these particular grounds in the judgment of the two
interdict applications.
[17]
Buhle also set
out further issues, not raised by Makhathini, which it alleges are
the basis for its intervention:
(a)
At the tender
briefing session held on 2 December 2019, it raised various issues
pertaining to the contents of the tender document
and its
implications. These included inter alia issues relating to containers
and liners, performance security, audited financial
statements,
liquid chemical waste, functionality and the regional award of the
tender.
(b)
The Department
failed to correct these issues.
(c)
With reference
to the regional award in that a bidder may not be awarded more than
one region, despite it having the lowest price,
it was stated that
the invitation to bid on this basis was contrary to the Supply Chain
Policy Framework as only the bids with
the highest points may be
selected. Buhle has perhaps lost sight of Item 12 of the Supply Chain
Policy Framework which reads:
‘
Despite
paragraphs . . . a contract may, on reasonable and justifiable
grounds, be awarded in respect of a bid that did not score
the
highest number of points. The reasons for such an award should be
clearly documented for auditing purposes.’
[18]
Buhle contends
that it has a direct and substantial interest in ensuring that the
procurement process leading to the award of the
tender is lawful,
reasonable and procedurally fair and should the tender stand, Buhle
and the other bidders would be prejudiced
as they were not subjected
to a process that is lawful, reasonable and procedurally fair. Buhle
also makes it clear that it seeks
to have the entire tender set aside
as opposed to Makhathini, who only seeks to review the award to
Compass in respect of Area
2. Buhle contends that the tender should
be re-advertised. It alleges that the relief sought by Makhathini,
namely that Area 2
should be awarded to it or remitted back to the
Department for a reconsideration is not plausible and will be
unlawful in light
of the irregularities in the process.
Makhathini’s
and the Department’s case
[19]
As mentioned
above, both the Department and Makhathini oppose the application.
Makhathini filed its answering affidavit around 14
March 2022. The
Department only filed its answering affidavit on 25 October 2022, a
few days before the hearing of this matter
on 28 October 2022. The
Department in essence aligned itself with the grounds of opposition
raised by Makhathini and raised a few
additional issues, alleging
inter alia that Buhle’s attempt at intervention is flawed
because it seeks to challenge the entire
tender process, wanting to
set aside the awards in all three areas. It also pointed out that
Buhle has failed to join Ecocycle
(as well as Vikela, for that
matter), the successful tenderer in Area 3, and that the application
for intervention should fail
on the basis of a material non-joined. I
will return to the Department’s other grounds of opposition if
the need arises.
[20]
Makhathini’s
opposition to Buhle’s intervention application can be
summarized as follows:
(a)
Buhle has not
proved that it has
locus
standi
to
review the decision, as it has not annexed a copy of its tender to
show it submitted a compliant tender. Buhle has not indicated
what
its ranking was – such that it would be the next highest
ranking tender and entitled to any of the tenders.
(b)
Buhle’s
application did not satisfy the requirements of Uniform
rule 10.
(Buhle in its reply stressed that its application to intervene was
brought in terms of Uniform
rule 12
and not Uniform
rule 10.)
(c)
It is not
convenient for Buhle to pursue the causes of action it proposes to
advance by consolidating its proposed review application
with
Makhathini’s review. Neither Ecocycle nor Vikela are parties to
the review application and the non-joinder of them is
fatal to
Buhle’s application. If Buhle does join Ecocycle and Vikela, it
will give rise to additional disputes with these
parties, who are not
part of Makhathini’s review application.
(d)
If the
intervention is allowed and Ecocycle and Vikela are joined, the
Department will be required to provide the record for the
decision to
award the tender for Area 3, which is at present irrelevant to the
review application.
(e)
These disputes
and procedural issues will only serve to delay the finalization of
Makhathini’s review application. Buhle has
no entitlement to
join its review application as it would involve broader issues,
thereby complicating the matter and delaying
it’s finalization.
Buhle’s remedy is to institute its own separate review
application.
(f)
Makhathini has
not sought to review or set aside the Department’s award to
Ecocycle and Vikela in respect of Area 3 and accordingly,
Buhle’s
application will not depend upon the determination of substantially
the same question of law or fact as in the review
application. Buhle
is furthermore also seeking to set aside the award to Makhathini in
respect of Area 1, which adds an additional
cause of action which
will raise additional issues which do not involve the determination
of substantially the same question of
law or fact. Makhathini is not
a respondent in the review application and Buhle has not cited it as
a respondent in the intervention
application. Buhle is seeking leave
to intervene as a co-applicant with Makhathini. There is no provision
in the Uniform rules
for one applicant to seek relief against another
applicant.
(g)
Buhle’s
review application seeks to render Makhathini’s review moot by
seeking to impugn the whole tender. It does not
involve the joinder
of a cause of action that can suitably be decided with the issues in
the review application and therefore does
not meet the requirements
of Uniform
rule 10.
(h)
Further delays
will arise in order to obtain the record from the Department in
respect of the award of the tender for Area 1 to
Makhathini, which
record will be irrelevant to Makhathini’s review.
[21]
Makhathini
also alleged that Buhle’s application was premature or not ripe
for hearing as it has not shown that it has exhausted
its internal
remedies provided for in the Supply Chain Policy Framework and as
required by
section 7(1)
and (2)
(a)
of PAJA.
The relevant provisions of PAJA read as follows:
‘
(1)
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.
(2) (
a
) Subject
to paragraph (
c
),
no court or tribunal shall review an administrative action in terms
of this Act unless any internal remedy provided for in any
other law
has first been exhausted.’
[22]
Section
7(2)
(c)
of PAJA is also relevant. It reads as follows:
‘
A
court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the
obligation
to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.'
Buhle
has not made such an application.
[23]
The Department
also raised the issue of Buhle’s failure to exhaust its
internal remedies, adding that there has been an unreasonable
delay
in the bringing of Buhle’s review application, alleging that
the 180 day period had expired by 13 December 2021. Buhle’s
response to these issues has simply been that the Department has
failed to provide the reasons it has requested, and that the 180
day
period starts running when not only the decision but also the reasons
have been provided. Buhle did however indicate that it
had the option
available to apply for condonation, out of abundance of caution, once
allowed to intervene in the review application.
[24]
Buhle
requested reasons simultaneously with its notice of appeal on 17 May
2021. Once the ten day period had expired and the BAC
had failed to
deliver the reasons (accepting that it actually received the request
for reasons), nothing prevented Buhle
from proceeding with the
appeal by making written submissions to the Bid Appeals Tribunal and
relying on the presumption that the
BAC had taken a decision without
good reason.
[25]
It is common
cause that Buhle has failed to proceed with its appeal, which lapsed
by 15 June 2021. It appears not to have exhausted
its internal
remedies. It is however open to Buhle to apply to court for relief in
terms of section 7(2)
(c)
of PAJA to
resolve this issue, in addition to the problem it has, bearing in
mind that the 180 days to bring its review would have
expired on 13
December 2021, counting from 15 June 2021. Buhle only applied to
intervene in the review application on 8 February
2022.
[26]
As mentioned
above, the Department aligned itself with the grounds of opposition
raised by Makhathini but also raised a few additional
issues. It
stated inter alia that Buhle was found to be a responsive bidder but
that it came in at a price that was almost double
the tender price of
other bidders. It was ranked 7
th
in Area 1, 7
th
in Area 2 and 8
th
in Area 3. It is clear from the so called DBEC submission, attached
to the Department’s answering affidavit, that 8 bidders
were
considered in the final evaluation stages. Buhle in essence came
second last and last in the 3 respective Areas. The Department
alleged that Buhle’s prospects of success on review were rather
limited due to its pricing. The Department also expressed
concerns
regarding the inordinate delay all the court processes have caused.
The services that are to be provided are essential
services and there
cannot be a delay or an interruption of these services. The
Department seems to forget that it is almost entirely
to blame for
the delay in this matter coming to court.
[27]
The Department
also stated that Buhle has enjoyed ‘the benefit of the tender’
for a considerable period of time and
has been allowed to extend its
contract on a month-to-month basis due to the difficulties in finally
awarding the tender. Its tender
was also duly considered but
rejected.
Intervention
in terms of Uniform rule 12
[28]
Uniform rule
12 reads as follows:
‘
Any
person entitled to join as a plaintiff or liable to be joined as a
defendant in any action may, on notice to all parties, at
any stage
of the proceedings apply for leave to intervene as a plaintiff or a
defendant. The court may upon such application make
such order,
including any order as to costs, and give such directions as to the
further procedure in the action as to it may seem
meet.’
[29]
In
SA
Riding for the Disabled Association v Regional Land Claims
Commissioner
the Constitutional Court stated the position regarding intervention
as follows:
‘
[10]
If the applicant shows that it has some right which is affected by
the order issued, permission to intervene must be granted.
For it is
a basic principle of our law that no order should be granted against
a party without affording such party a predecision
hearing. This is
so fundamental that an order is generally taken to be binding only on
parties to the litigation.
[11]
Once the applicant for intervention shows a direct and
substantial interest in the subject-matter of the case, the court
ought to grant leave to intervene. In
Greyvenouw CC
this
principle was formulated in these terms:
“
In
addition, when, as in this matter, the applicants base their claim to
intervene on a direct and substantial interest in the subject-matter
of the dispute, the Court has no discretion: it must allow them to
intervene because it should not proceed in the absence of parties
having such legally recognised interests.”
[3]
(Footnote omitted.)
[30]
Erasmus:
Superior Court Practice,
in
the commentary on Uniform rule 12, discusses the meaning of ‘entitled
to join as a plaintiff or liable, to be joined as
a defendant’
and states the following:
‘
As
in the case of joinder as of right, the applicant for leave to
intervene must show that he has a “direct and substantial
interest” in the subject matter of the action. Such an
interest is more than merely a financial interest which is only
an
indirect interest in the litigation; it is a legal interest in the
subject matter of the litigation that may be prejudicially
affected
by the judgment of the court. This means that the applicant must
show that he has a right adversely affected or likely
to be adversely
affected by the order sought.’
[4]
(Footnotes omitted.)
[31]
In
Herbstein
and Van Winsen
the following was said:
‘
On
the wording of the rule, the applicant for leave to intervene must be
a person “entitled to join as a plaintiff or liable
to be
joined as a defendant”. In other words the test to be applied
in order to decide whether a person can seek to intervene
is to ask
whether that person could have been joined as a party. As has been
explained above, joinder is competent either on the
basis of
convenience or on the basis that the party whose joinder is in
question has a direct and substantial interest in the subject-matter
of the proceedings. A person is accordingly entitled to intervene in
three sets of circumstances:
(a)
Where
the requirements of uniform rules 10(1) and 10(3) are satisfied, in
that the determination of the intervening party's matter
or dispute
depends upon substantially the same question of law or fact as arises
in the proceedings in which leave is sought to
intervene.
(b)
Where
wider considerations of convenience favour intervention.
(c)
Where
the intervening party has a direct and substantial interest (legal
interest) in the proceedings.’
[5]
(Footnotes omitted.)
[32]
The
authors in
Herbstein
and Van Winsen
[6]
also referred to
Nelson
Mandela Metropolitan Municipality v Greyvenouw CC
[7]
(relied upon in
SA
Riding for the Disabled Association
)
as authority for the proposition that once a party has established a
direct and substantial interest, the court should not proceed
in the
absence of such a party.
[33]
It
is furthermore not sufficient for a third party seeking to intervene
to merely allege an interest in the action. Such party must
give
prima facie proof of the interest and the right to intervene.
[8]
[34]
In
United
Watch & Diamond Co (Pty) Ltd and others v Disa Hotels Ltd and
another
[9]
Corbett J examined the right of a party to intervene in legal
proceedings, remarking that intervention is closely linked to
joinder,
and is ‘often treated as a particular facet of
joinder’. The court, with reference to
Brauer
v Cape Liquor Licensing Board
,
[10]
stated that:
‘
In
Brauer's
case
application was made for the setting aside of the proceedings of a
liquor licensing board on the ground that it had failed,
in
contravention of sec. 28 (1) of the Liquor Act, to keep a record of
the proceedings in public of a meeting of the board at which
the
applicant's application for the removal of his bottle liquor licence
to other premises was considered and refused. At the hearing
of the
application one Garb applied for leave to intervene as an additional
respondent in opposition to the application. Garb,
the licensee of
certain hotel premises situated in the area to which removal was
sought, had objected to the removal application
before the board
and contended that he was entitled to intervene on the ground that he
had a substantial financial interest in
the proceedings in that, if
the application was granted and the board had to reconsider the
application for removal, he would be
left in a state of uncertainty
and would have to incur expense in the protection of his
interests by having to engage counsel
to oppose the removal; and that
if the board, upon reconsideration, granted the application, he,
Garb, would be faced with business
competition. The Court refused the
application to intervene, stating (at p. 761):
“
In
the present case, Garb has no real interest in the enquiry as to
whether the Board kept a proper record; whether it did or not
is no
legal concern of his. What he is interested in doing is to prevent
the possibility of competition if the Board should,
in the event
of its being ordered to reconsider the removal application, grant it.
The interest he alleges (and of which he has
given no proof) is, at
most, in the words of HORWITZ, A.J.P., “merely a financial
interest which is only an indirect interest
in the litigation”.
That this Court might make an order in favour of the applicant in the
review proceedings might be “an
unwelcome result”, but in
my view, is not a ground entitling him to intervene.”’
[11]
Non-joinder
of Ecocycle and Vikela
[35]
Both
Makhathini and the Department referred to the fact that neither
Ecocycle nor Vikela had been joined to the present application
to
intervene. In
Erasmus
,
in the commentary on Uniform Rule 10, the issue of non-joinder is
discussed. The following is stated:
‘
.
. . the question as to whether all necessary parties had been joined
does not depend upon the nature of the subject matter of
the suit,
but upon the manner in which, and the extent to which, the court’s
order may affect the interests of third parties. The
test is
whether or not a party has a “direct and substantial interest”
in the subject matter of the action, that is,
a legal interest in the
subject matter of the litigation which may be affected prejudicially
by the judgment of the court. A mere
financial interest is an
indirect interest and may not require joinder of a person having such
interest . . . The rule is
that any person is a necessary party
and should be joined if such person has a direct and substantial
interest in any order the
court might make, or if such an order
cannot be sustained or carried into effect without prejudicing that
party, unless the
court is satisfied that he has waived his
right to be joined.’
[12]
(Footnotes omitted.)
[36]
In
Gordon
v Department of Health, KwaZulu-Natal
[13]
the court dealt with the non-joinder of a party and held inter alia
that the relief sought was relevant to determine whether a
party has
a direct and substantial interest in the subject matter of the
proceedings. The facts were briefly that the appellant,
a white male,
was turned down when he applied for a post at the Department of
Health. A black male (M) was appointed instead, notwithstanding
the
selection panel’s finding that the appellant was the most
suitable candidate. The appellant approached the Labour Court
for
relief which would amount to him receiving all the benefits he would
have received had he been appointed to the post, without
actually
being appointed. The Labour Appeal Court dismissed the appellant’s
appeal on the basis that M, as the successful
candidate, had not been
joined in the application, which finding was revised on further
appeal to the Supreme Court of Appeal.
Mlambo JA held that:
‘
The
issue in our matter, as it is in any non-joinder dispute, is whether
the party sought to be joined has a direct and substantial
interest in the matter. The test is whether a party that is alleged
to be a necessary party, has a legal interest in the subject-matter,
which may be affected prejudicially by the judgment of the court in
the proceedings concerned. In the
Amalgamated
Engineering Union
case
(supra) it was found that “the question of joinder should . . .
not depend on the nature of the subject-matter
. . . but . . . on the
manner in which, and the extent to which, the court's order may
affect the interests of third parties”.
The court formulated
the approach as, first, to consider whether the third party would
have locus standi to claim relief concerning
the same subject-matter,
and then to examine . . . This has been found to mean that if the
order or “judgment sought cannot
be sustained and carried into
effect without necessarily prejudicing the interests” of a
party or parties not joined in the
proceedings, then that party or
parties have a legal interest in the matter and must be joined.’
[14]
[37]
Mlambo JA
further held that:
‘
The
successful appointee can only have a legal interest in the
proceedings where the decision to appoint him is sought to be
set aside which can lead to his removal from the post. He becomes a
necessary party to the proceedings because the order cannot
be
carried into effect without profoundly and substantially affecting
his/her interests.’
[15]
[38]
In
Bowring
NO v Vrededorp Properties CC and another
[16]
Brand JA held that the enquiry relating to non-joinder remains one of
substance rather than the form of the claim. The substantial
test is
whether the party, which is alleged to be a necessary party to the
litigation, may be affected prejudicially by the judgment
of the
court in the proceedings.
[39]
Erasmus
,
[17]
with reference to joinder of necessity and non-joinder of a party,
stated that a court could, even on appeal,
mero
motu
‘raise
the question of non-joinder to safeguard the interests of third
parties’. It further stated that ‘[t]he
fact that the two
parties before court desire the case to proceed in the absence of a
third party cannot relieve the court from
inquiring into the question
whether the order it is asked to make may affect the third
party’.
[18]
[40]
Buhle’s
answer in reply to the issue of non-joinder has simply been that it
cannot apply for the joinder of Ecocycle and Vikela
prior to being
granted leave to intervene, and that in terms of Uniform rule 12 it
is only required to give notice to the parties
to the review
application, which it has done. It is clear that Buhle gave no notice
of the intervention application to Ecocycle
and Vikela. It is also
clear from the papers that despite the issue of non-joinder being
raised by Makhathini, Buhle did not see
it fit to at least give some
notice of the application to Ecocycle and Vikela, even on an informal
basis.
[41]
There can be
no doubt that the order granting Buhle leave to intervene and the
accompanying relief it intends seeking in the review
application,
will have the effect of prejudicing Ecocycle’s and Vikela’s
interests. They clearly would have a direct
and substantial interest
in the subject matter of the litigation. If Buhle is granted leave to
intervene they are drawn into a
review application of significant
proportions. They have not been afforded an opportunity to make
submissions on the merits of
the intervention application, the
outcome of which could have a significant impact on them. I will
return to this issue should
it be necessary.
Buhle’s
submissions
[42]
All counsel
involved are thanked for their comprehensive heads of argument and
helpful submissions during the hearing.
[43]
It
was submitted on behalf of Buhle that it has a direct and substantial
interest in the relief being sought in the review application,
and as
an unsuccessful tenderer it has a right to participate in the review
application. Reliance was placed on
WDR
Earthmoving Enterprises and another v Joe Gqabi District Municipality
and others
[19]
and
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and others
[20]
for its submission that it had standing and therefore a right to
participate in the review.
[44]
In
WDR
Earthmoving
the court had to determine inter alia whether the appellants had
standing to seek the review and the setting aside of a declaration
that a party’s tender offer was responsive. The full court had
previously held that the appellants lacked standing. With
reference
to
Giant
Concerts
,
Swain JA in
WDR
Earthmoving
held as follows:
‘
[14] The
Constitutional Court added, at para 32, that in determining a
litigant's standing:
“
.
. . we must assume that its complaints about the lawfulness of the
transaction are correct. This is because in determining a litigant’s
standing, a court must, as a matter of logic, assume that the
challenge the litigant seeks to bring is justified.”
It
summarised the position at para 43, in the following terms:
“
The
own-interest litigant must, therefore, demonstrate that his or her
interests or potential interests are directly affected by
the
unlawfulness sought to be impugned.”
[15] The
standing of the appellants has to be determined by considering
whether the award of the tender to the fourth respondent
would have a
direct effect upon the interests, or potential interests of the
appellants, without regard to whether the decision
was valid or not.
It has to be assumed that the challenge the appellants wish to bring
is justified.
[16] I
agree with the submission by the appellants that a declaration that a
decision on whether the fourth respondent's tender
offer was
non-responsive, would directly affect their rights. In the event of a
decision against the fourth respondent, the tender
process would have
to be re-commenced as the only responsive tender offers were those of
the appellants and the fourth respondent.
The appellants and the
fourth respondent together with any other interested parties, would
then be entitled to compete for the
tender. The appellants therefore
have standing to seek the review and setting aside of the declaration
of the fourth respondent's
tender offer as responsive, as also the
award of the tender to the fourth respondent.’
[45]
The court
ultimately held that the full court had erred in concluding that the
standing of the appellants to challenge the award
was determined by
the finding that the appellant’s bid was non-responsive.
[46]
In
Giant
Concerts
Cameron J held that:
‘
[33]
The separation of the merits from the question of standing has two
implications for the own-interest litigant. First, it signals
that
the nature of the interest that confers standing on the own-interest
litigant is insulated from the merits of the challenge
he or she
seeks to bring. An own-interest litigant does not acquire standing
from the invalidity of the challenged decision or
law, but from the
effect it will have on his or her interests or potential interests.
He or she has standing to bring the challenge
even if the decision or
law is in fact valid. But the interests that confer standing to bring
the challenge, and the impact the
decision or law has on them, must
be demonstrated.
[34]
Second, it means that an own-interest litigant may be denied standing
even though the result could be that an unlawful decision
stands.
This is not illogical. As the Supreme Court of Appeal pointed out,
standing determines solely whether
this
particular
litigant is entitled to mount the challenge: a successful challenge
to a public decision can be brought only if “the
right remedy
is sought by the right person in the right proceedings”. To
this observation one must add that the interests
of justice under the
Constitution may require courts to be hesitant to dispose of cases on
standing alone where broader concerns
of accountability and
responsiveness may require investigation and determination of the
merits. By corollary, there may be cases
where the interests of
justice or the public interest might compel a court to scrutinise
action even if the applicant’s standing
is questionable. When
the public interest cries out for relief, an applicant should not
fail merely for acting in his or her own
interest.
[35]
Hence, where a litigant acts solely in his or her own interest, there
is no broad or unqualified capacity to litigate against
illegalities.
Something more must be shown.’ (Footnote omitted.)
[47]
Buhle
submitted that it was clearly ‘entitled to join’ in the
review proceedings, in light of the aforementioned decisions.
The
question is not only whether Buhle has standing but whether it has
made out a case that its interests will be affected, which
would
entitle it to intervene in the review application. Buhle has
furthermore chosen not to apply to join the review application
in
terms of Uniform rule 10. Buhle ultimately has to show a right which
is affected by the order sought by Makhathini.
[48]
Buhle’s
counsel, Mr J G Wasserman SC, submitted before me in argument that
before consideration is given to Buhle’s
right to intervene,
serious consideration should be given to the possible practical
implications of refusing leave to intervene.
There would be an
overlap of review applications if Buhle was compelled to institute
its own review application. It was submitted
that a situation could
arise where one court could find that the decision to award the
tender to Compass was lawful. Another court
might however find in
favor of Buhle in its own review application. Buhle’s counsel
submitted that such a situation should
not be tolerated and would be
untenable. Reliance was also placed on what was held in
Gordon
.
[21]
[49]
Buhle
also addressed the issues raised by both the Department and
Makhathini regarding its failure to exhaust its internal remedies.
I
have dealt with these issues above. It was submitted by Buhle in its
argument, with reference to
Koyabe
and others v Minister for Home Affairs and others (Lawyers for Human
Rights as Amicus Curiae)
,
[22]
that Makhathini’s suggestion that it should have prosecuted its
appeal without such reasons is a ‘strange proposition’.
Buhle relied on what was held in
Koyabe
,
namely that ‘[r]easons for the finding, as in this case, are
therefore important in seeking a meaningful review’.
[23]
As mentioned before, Buhle has a right to apply for exemption from
having to exhaust internal remedies.
[50]
Buhle referred
in its argument to Makhathini’s contentions regarding the
non-joinder of Ecocycle and Vikela – calling
it ‘bizarre’,
submitting that it could not seek to join other parties when it seeks
itself to be joined to the review
application. Buhle in my view
misses the point, as it is clear that Ecocycle and Vikela would have
a direct and substantial interest
in the relief it is seeking,
especially when Buhle seeks to ultimately involve Ecocycle and Vikela
in its relief on review. It
is difficult to understand why Buhle
could not simply serve a copy of its papers on Ecocycle and Vikela.
[51]
Buhle’s
counsel also made submissions at the hearing regarding the so called
extension of the tender validity period, placing
reliance on
City
of Ekurhuleni Metropolitan Municipality v Takubiza Trading &
Projects CC and others
.
[24]
It was submitted that according to the record provided by the
Department, Compass was requested to consent to an extension, but
did
not respond. It was also submitted that neither Buhle nor Makhathini
had agreed to the extension. It is however apparent from
the
submissions and documents which form part of the papers in some of
the other matters that both Compass and Makhathini apparently
agreed
to an extension. This issue is addressed in the judgment of the
implementation application brought by Compass, which was
the fourth
application heard by me.
Submissions
by Makhathini
[52]
Counsel for
Makhathini, Mr N Singh SC, submitted that Buhle is seeking to join
Makhathini’s review as an applicant, seeking
to review
different decisions, on different grounds, against different
respondents, than Makhathini. It was submitted that there
would have
been no difficulty if Buhle was only interested in challenging the
decision to award the contract for Area 2 to Compass.
Instead Buhle
wants to join a separate cause of action to be heard with the current
cause of action in the review application.
It was submitted that this
does not ‘fit’ into what Uniform rule 12 was intended
for.
[53]
It was
submitted by Makhathini that Uniform rule 12 has not overridden or
replaced the common law approach to intervention and that
under the
common law, joinder can be sought as of right, where a party has a
direct and substantial interest in the matter or if
it is convenient
that it be joined.
[54]
As far as
joinder as of right is concerned, it was submitted that since
Makhathini is not seeking any relief in respect of the awards
relating to Areas 1 and 3, Buhle cannot say that its rights have been
affected in this regard, and it would accordingly not have
a basis
for an intervention in the review application.
[55]
It was also
submitted that as far as the award in respect of Area 2 is concerned,
Buhle has not shown that its rights have been
affected. Buhle cannot
assert a right to be awarded the tender because it was not the second
highest bidder and none of its grounds
of review are aimed at making
out a case that due to some administrative irregularity, it was not
awarded the tender for Area 2.
[56]
With
reference to Buhle’s right to just administrative action, it
was submitted that Buhle was required to exhaust its internal
remedies in terms of section 7(2)
(a)
of PAJA, and it was obliged in terms of section 7(1) of PAJA to bring
its review within 180 days after its appeal lapsed on 15
June 2021,
which period expired on 13 December 2021. It was submitted that Buhle
must bring its review in the right forum at the
right time, with
reliance being placed on
Merafong
City v Anglogold Ashanti Ltd
.
[25]
Buhle’s review is furthermore premature as its appeal is still
extant and has not been dealt with by the Bid Appeal’s
Tribunal. It was submitted that Buhle has taken no action to
prosecute its appeal. For these reasons it was submitted that Buhle
has not established that it has a basis to be joined as of right.
[57]
As far as
joinder as a matter of convenience is concerned it was inter alia
submitted that:
(a)
To allow Buhle
to intervene to ventilate its objections in relation to Areas 1 and 3
would result in grave prejudice and inconvenience
to Makhathini.
(b)
Makhathini’s
review application will be delayed until Buhle has joined Ecocycle
and Vikela and once they have been joined,
further delays will ensue
in order to obtain the record for the decisions relating to Areas 1
and 3.
(c)
It was not
convenient for Buhle to consolidate its review application and the
causes of action it proposes with Makhathini’s
review
application, especially bearing in mind that Ecocycle and Vikela are
not parties in Makhathini’s review application
and have not
been joined in the intervention application.
(d)
The records
relating to Areas 1 and 3 will be irrelevant to Makhathini’s
review application.
(e)
Buhle seeks to
intervene as a co-applicant in Makhathini’s review application
but also seeks relief against Makhathini as
it intends adding a cause
of action, reviewing the tender award to Makhathini in respect of
Area 1. Makhathini has not been joined
as an interested party who
would be entitled to oppose the application. The rules furthermore
make no provision for one applicant
to seek relief against another
applicant.
(f)
It
was submitted that Buhle’s remedy is to institute a separate
review application which can be dealt with on its own terms
and
disposed of without interfering with the procedures and timelines of
Makhathini’s review application. Reference was made
to
Premier
of KwaZulu-Natal others v KwaZulu-Natal Gaming and Betting Board and
others and a related matter
.
[26]
Olsen J held that applications to join certain suppliers had to fail
as it sought to bring three new sets of decisions under review
in the
original review application which would also have entailed the
joinder of the suppliers, who were not parties to the review
application.
[27]
It would lead
to an extension of the duration of the proceeding and the costs would
increase significantly. It would also raise
technical issues to which
the original parties would have nothing to contribute.
[58]
Mr Singh
submitted that
KwaZulu-Natal
Gaming and Betting Board
was on all fours with the present matter and that Buhle is seeking to
join different causes of action involving different decisions
and
different parties. It was also submitted that Buhle has failed to
make out a case in terms of the common law to intervene in
terms of
Uniform rule 12.
[59]
Mr Singh in
closing urged me to dismiss the application unless Buhle confined
itself to a challenge in respect of Area 2 only and
aligned itself
with Makhathini’s challenge.
The
Department’s submissions
[60]
Mr V Naidoo
SC, appearing for the Department indicated that he supported the
submissions made by Mr Singh SC on behalf of Makhathini.
He handed
further argument over to his junior, Mr C Reddy who proceeded to
address me inter alia on the issue of Buhle’s
alleged
non-compliance with PAJA. It was submitted that Buhle’s tender
was the lowest ranked tender and that it was accordingly
‘not
even a horse in the race’. It was also submitted that Buhle has
not shown that it has an interest in the outcome
of the tender.
[61]
The
Department’s counsel also made submissions regarding the
non-joinder of Ecocycle and Vikela as well as Buhle’s failure
to exhaust its internal remedies. Submissions were further made
regarding Buhle’s alleged failure to take action within the
requisite period of 180 days as required by PAJA. I have dealt with
Buhle’s apparent delay above as well as the remedies
at its
disposal.
[62]
As far as
Buhle’s allegations and submissions regarding the extension of
the tender validity period is concerned, it was submitted
that the
case relied upon by Buhle is distinguishable from the facts in the
present matter. I was referred to two further judgments.
As indicated
above, I deal with this particular issue in the judgment in the
implementation application brought by Compass. It
was however
submitted that should the tender process have to start
de
novo
,
Buhle would have a foot in the door despite it being ranked amongst
the lowest in the evaluation of the bids.
[63]
The Department
submitted that it had followed a fair and compliant tender process
which was in accordance with section 217 of the
Constitution. It was
submitted that Buhle’s proposed intervention will result in the
review being ultimately delayed which
will cause irreparable harm to
the Department and to the bidders who were successful in the tender
process. It was also submitted
that the process in terms of which
Buhle was providing services to the Department on a month-to-month
basis was not in accordance
with section 217 of the Constitution.
Buhle’s
submission’s in reply
[64]
A number of
submissions were made in reply but I will only highlight the most
relevant. The Department was criticized for its continued
focus on
the period of 180 days within which Buhle ought to have brought its
review. Buhle submitted that the 180 days started
running from the
date of receipt of reasons. I have dealt with this issue above, Buhle
perhaps lost sight of the fact that section
7(2)
(a)
of PAJA, which deals with the period of 180 days after a person
became aware of the action and the reasons for it, applies to those
instances where no internal remedies exist. This is clearly not the
case in the present matter.
[65]
With reference
to
WDR
Earthmoving
,
it was submitted that even the lowest ranked bidder would be entitled
to compete and is not out of the race, and therefore Buhle
had an
interest in the review.
[66]
In response to
Makhathini’s submissions, it was submitted that its concession
that it would be different if Buhle had only
sought to intervene in
the review in respect of Area 2, was fatal to any further opposition
by Makhathini. It was however submitted
that to split the review into
two would be ‘absurd’ and would deprive Buhle of its
right to access to court.
[67]
It was also
submitted that Makhathini’s reliance on
KwaZulu-Natal
Gaming and Betting Board
was
inappropriate as it has no application to the present matter, which
deals only with one tender process. Reliance was place on
Gordon
,
as authority that it would be proper to grant the relief sought by
Buhle.
Discussion
[68]
Whilst
considering not only this application, but also the three other
applications, my primary focus has been on the one hand to
ensure
that the review, which has already been inordinately delayed, be
dealt with as expeditiously as possible, and on the other
hand, to be
sure that there is no interruption in the service delivery of what is
clearly an essential service to the Department.
[69]
Buhle’s
application to intervene, and the far-reaching relief it is seeking,
is aimed at reviewing the tenders awarded in
respect of all three
Areas, which would bring Ecocycle and Vikela into the fray as
successful bidders in respect of Area 3 and
Makhathini as the
successful bidder in Area 1.
[70]
Buhle’s
motivation is of course clear for all to see. It has been benefitting
from being the sole supplier of the services
for the entire province
of KwaZulu-Natal for a number of years. The delay in the awarding of
the tender and thereafter the delay
in the prosecution of
Makhathini’s review has allowed Buhle to continue benefitting
up until the expiration of the original
contract on 30 November 2022.
Buhle applied for the tenders but was found wanting in respect of all
three Areas. It now claims
to have a direct and substantial interest
in the relief Makhathini is seeking in its review, which is only in
respect of the award
to Compass in respect of Area 2.
[71]
Despite all
the different issues raised, in my view the only relevant question is
whether Buhle has a direct and substantial interest
in the review.
Counsel for the Department is correct when he submits that Buhle was
not even a horse in the race, due to its low
ranked tender. I am
however of the view that Buhle, even as the lowest ranked tenderer,
would have an interest in the relief being
sought by Makhathini, even
if it is on the marginal level of being allowed to compete for the
tender should it be set aside and
re-advertised, as held in
WDR
Earthmoving
.
As it is only this one award that is being challenged in the review,
it is only in respect of this award that Buhle can have an
interest
and it is the only order that can affect Buhle.
[72]
Counsel
for Makhathini made valuable and convincing submissions regarding the
practical difficulties that would ensue should the
relief, which
Buhle claims, be granted. I agree with the submissions as the
challenges that will arise are clear to see. It
was also
submitted that there would be no issue if Buhle simply aligned itself
with the review as it stands. Bearing in mind the
facts of the matter
and the principles set out above, I am of the view that the only
relief that is appropriate is that Buhle be
granted leave to
intervene in respect of the award in respect of Area 2, especially
since this is the only review before me. It
will not
close the door to Buhle’s reviews in respect of Areas 1 and 3 -
it would be free to pursue them in due course without
disrupting the
current review. Buhle’s right to access to court would
certainly not be infringed if it is allowed to intervene
in
Makhathini’s review in respect of Area 2 and it will still be
able to pursue its other reviews. I see nothing absurd in
such a
situation. It would not create a situation where another court could
potentially make a finding on the same issues as only
one court will
deal with the award in respect of Area 2. It will also give effect to
what Cameron JA referred to in
Giant
Concerts
,
namely that a successful challenge ‘can be brought only if “the
right remedy is sought by the right person in the
right
proceedings”’.
[28]
It might have been a different situation if Buhle has applied to join
in terms of Uniform rule 10 but I am not required to deal
with this
issue.
[73]
In
Caesarstone
Sdot-Yam Ltd v World of Marble and Granite
[29]
the court dealt with concerns where different courts may pronounce on
the same issue with the risk that they may reach different
conclusions. The court was dealing with a plea of
lis
pendens
.
It was held that the situation would only arise where the same
dispute between the same parties is sought to be placed before
the
same tribunal. In the absence of these elements, there was no
potential for a duplication of actions. In my view, Buhle’s
concerns that there might be an ‘overlap’ will not arise
if it pursues it review with Makhathini respect of Area 2
and the
remainder of its review in a separate review application.
[74]
In
Socratous
v Grindstone Investments
[30]
it was held that ‘[c]ourts are public institutions under severe
pressure. The last thing that already congested court rolls
require
is further congestion by an unwarranted proliferation of litigation’.
I am mindful of the practical implications
of yet another review but
in this matter the proverbial horse has already bolted - with no less
than four applications being heard
by myself. The alternative is
simply not appropriate in the circumstances.
[75]
In light of
what I have found above, I do not believe that it is necessary to
deal with any of the other issues. I am also mindful
of not making
any findings on certain issues as it would be for the court hearing
the review to do so.
[76]
As far as the
costs of the application are concerned, I am of the view that it
would be appropriate to leave the issue of costs
for the court
hearing the review to decide. Buhle has been successful in obtaining
leave to intervene but only to a very limited
extend. It might have
certain hurdles to overcome before its review will be considered and
therefore that court will be best placed
to decide the issue.
Order
[77]
I accordingly
make the following order;
1.
The
intervening party, Buhle Waste (Pty) Ltd, is granted leave to
intervene and is joined as second applicant in the review application
under case number 8721/21P in respect of the decision to award the
contract for Area 2: Umgungundlovu, Harry Gwala and Ugu Districts
(Region 2) in terms of Tender number ZNB5296/2020-H to the second
respondent, Compass Medical Waste Services (Pty) Ltd.
2.
The intervening party, Buhle Waste (Pty) Ltd is directed to file its
founding
affidavit on or before 14 December 2022.
3.
The first respondent, the MEC for Health, and the second respondent,
Compass
Medical Waste Services (Pty) Ltd are directed to file their
answering affidavits on or before 22 December 2022.
4.
The intervening party is directed to file its replying affidavit on
or before
4 January 2023.
5.
The applicant, Makhathini Medical Waste (Pty) Ltd is directed to file
any further
affidavits it may wish to file on or before 6 January
2023.
6.
The costs of the intervention application are reserved for decision
by the court
hearing the review.
E
BEZUIDENHOUT AJ
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. The date of hand down
is
deemed to be 7 December 2022.
Date
reserved: 28 October
2022
Date
delivered: 7 December 2022
Appearances:
For
the Intervening party:
J G Wasserman SC
S
Tsikila
Instructed
by:
Fairbridges Wertheim Becker
2
Pybus Raod
Wierda
Vally
Sandton
REF:
Mr Amish Kika
Tel:
011 2680250
Email:
amish.k@fwblaw.co.za
c/o
Stowell and Co
295
Pietermaritz Street
Pietermaritzburg
Tell:
033 845 0500
Ref: P
Firman
Email:
sumayak@stowell.co.za
;
zeldas@stowell.co.za
For
the applicant:
N Singh SC
Instructed
by:
PR Maharaj and Company
2
nd
Floor Ridge 63
8
Sinemebe Park
Douglas
Saunders Drive
La
Lucia Ridge Office Estate
Umhlanga
REF:
JJN/M1041
Tell:
031 5661696
Email:
prm@worldonline.co.za
joanne.prm@worldonline.co.za
c/o AK
Essack Morgan Naidoo and Co
311
Pietermaritz Street
Pietermaritzburg
For
the first respondent: V
Naidoo SC
C
Reddy
Instructed
by:
The State Attorney
Email:
TheNtsele@justice.gov.za
[1]
Treasury
Regulations, GN R225,
GG
27388, 15 March 2005.
[2]
Compass
Medical Waste Services (Pty) Ltd v MEC Department of Health, Free
State and others
[2021] ZAFSHC 185.
[3]
SA
Riding for the Disabled Association v Regional Land Claims
Commissioner and others
[2017] ZACC 4
;
2017 (5) SA 1
(CC) paras 10 -11.
[4]
DE
van Loggerenberg and E Bertelsmann
Erasmus:
Superior Court Practice
(RS
19, 2022) at D1 139.
[5]
AC
Cilliers et al
Herbstein
and Van Winsen: Civil Practice of the High Courts and the Supreme
Court of Appeal of South Africa
5
ed (2009) at 225-226.
[6]
Ibid
at 226.
[7]
Nelson
Mandela Metropolitan Municipality and others v Greyvenouw CC and
others
2004 (2) SA 81 (SE).
[8]
AC
Cilliers et al
Herbstein
and Van Winsen: Civil Practice of the High Courts and the Supreme
Court of Appeal of South Africa
5
ed (2009) at 227.
[9]
United
Watch & Diamond Co (Pty) Ltd and others v Disa Hotels Ltd and
another
1972 (4) SA 409 (C) at 415C.
[10]
Brauer
v Cape Liquor Licensing Board
1953 (3) SA 752 (C).
[11]
United
Watch & Diamond Co (Pty) Ltd and others v Disa Hotels Ltd and
another
1972 (4) SA 409 (C) at 416D-H.
[12]
DE
van Loggerenberg and E Bertelsmann
Erasmus:
Superior Court Practice
(RS
19, 2022) at D1-124-D1-126.
[13]
Gordon
v Department of Health, KwaZulu-Natal
[2008] ZASCA 99
;
2008 (6) SA 522
(SCA).
[14]
Ibid
para 9.
[15]
Ibid
para 10.
[16]
Bowring
NO v Vrededorp Properties CC and another
[2007] ZASCA 80
;
2007 (5) SA 391
(SCA) para 21.
[17]
DE
van Loggerenberg and E Bertelsmann
Erasmus:
Superior Court Practice
(RS
19, 2022) at D1-126B.
[18]
Ibid
at D1-127.
[19]
WDR
Earthmoving Enterprises and another v Joe Gqabi District
Municipality and others
[2018] ZASCA 72.
[20]
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and others
[2012] ZACC 28; 2013 (3) BCLR 251 (CC).
[21]
Gordon
v Department of Health, KwaZulu-Natal
[2008] ZASCA 99
;
2008 (6) SA 522
(SCA) para 9.
[22]
Koyabe
and others v Minister for Home Affairs and others (Lawyers for Human
Rights as Amicus Curiae)
[2009] ZACC 23; 2010 (4) SA 327 (CC).
[23]
Ibid
para 61.
[24]
City
of Ekurhuleni Metropolitan Municipality v Takubiza Trading &
Projects CC and others
[2022] ZASCA 82.
[25]
Merafong
City v Anglogold Ashanti Ltd
[2016] ZACC 35
;
2017 (2) SA 211
(CC) fn 63.
[26]
Premier
of KwaZulu-Natal and others v KwaZulu-Natal Gaming and Betting Board
and others and a related matter
[2019] ZAKZPHC 44; [2019] 3 All SA 916 (KZP).
[27]
Ibid
paras 37-42.
[28]
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and others
[2012]
ZACC 28
;
2013 (3) BCLR 251
(CC) para 34.
[29]
Caesarstone
Sdot-Yam Ltd v World of Marble and Granite
[2013] ZASCA 129
;
2013 (6) SA 499
(SCA) paras 2-4.
[30]
Socratous
v Grindstone Investments
[2011]
ZASCA 8
;
2011
(6) SA 325
(SCA) para 16.