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[2022] ZALMPPHC 37
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Kgaugelo Trading Enterprise CC and Another v Capricorn TVET College and Others (103 /2022) [2022] ZALMPPHC 37 (5 July 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
Case No:103 /2022
REPORTABLE:
NO/YES
OF INTEREST TO OTHER
JUDGES:
NO/YES
REVISED.
05/07/2022
In the matter between:
KGAUGELO TRADING
ENTERPRISE CC
FIRST APPLICANT
NOEL AND MARJORIE
BUSINESS ENTERPRISECC
SECOND
APPLICANT
And
CAPRICORN TVET
COLLEGE
FIRST RESPONDENT
GREAT LINKING
MANAGEMENT SERVICE
(PTY) LIMITED
SECOND RESPONDENT
MS2J HOLDINGS
CC
THIRD RESPONNDENT
SOMANDLA TRADING 14 CC
FOURTH RESPODENT
Delivered:
This judgment was handed down electronically by circulation to the
parties' legal representatives
by email, publication and released to
SAFLII. The date and time for hand-down are deemed to be 10H00 05
JULY 2022.
JUDGMENT
MG
PHATUDI J
BACKGROUND:
[1]
Section 237 of the Constitution
[1]
enjoins functionaries within organs of state to “perform
diligently and without delay all constitutional obligations”
assigned to them”
[2]
. Its
true objectives are aptly laid down by the Constitution/Court in
that:
“
Section
237 acknowledges the significance of timeous compliance with
Constitutional prescripts. It elevates expeditious and diligent
compliance within itself. This principle is thus a requirement of
legality….In addition, it is important to understand that
the
passage of considerable length of time may weaken the ability of a
court to assess an instance of unlawfulness on the facts.
The clarity
and accuracy of decision-makers memories are bound to decline with
time….. Thus the very purpose of a court
undertaking the
review is potentially undermined where, at the cause of a lengthy
delay, its ability to evaluate fully an allegation
of illegality is
impaired”
It is against this
background that I have with deference endeavored to be responsive to
the aforementioned passage.
THE FACTS:
[2]
In or about September/ October 2021, Capricorn TVET College (“the
college”),
the first respondent, invited tenderers to submit
their bids in response to bid number: CCTVET/2021/09/02/01- 03 (“the
bid”)
for the college to appoint an experienced service
provider to provide catering services at its Seshego, Senwabarwana
and Polokwane
cumpuses student hostels. The duration of the contract
is three years from 01 November 2021(the effective date). The
applicants
were among the tenderers that submitted their bids in
response to the invitation.
2.1 It
is important to mention this early in the judgment that Section 2 (3)
of the General Conditions of Bid”
in particular, the bid
validity period which is stipulated as 120 days from the bid closing
date, states that “if you do
not find a response or any
correspondence from the college within 120 days, please consider your
bid unsuccessful.” The closing
date of the bid was 01 November
2021.
[3]
On 05 January 2022, the applicants, heard on the grapevine that the
college had since
awarded the tender to the second, third, and fourth
respondents respectively. I shall, for considerations of convenience,
hitherto
refer to the three respondents jointly as the “the
respondents” unless the contrary otherwise indicates.
On 06 January 2022, the
applicant’s attorneys issued a letter to the College dated 06
January 2022 seeking all necessary documentation
and reasons relating
to the award of the bid, not to them, but to the respondent. The
request for information was sought on an
urgent basis no later than
10 January 2022. In response thereto, the college furnished only the
record, except the reasons for
its decision to award the tender to
the respondents.
3.1 In
the letter requesting the relevant information and the information
sought, the applicants indicated that
they harboured the belief that
the said award was not only irregular, but also unlawful. The purpose
of the information sought
was to enable the applicants to institute
judicial review proceedings in order to vindicate their rights from
an administrative
viewpoint in relation to the award. I consider it
apposite to mention at this stage, for the sake of completeness, that
the documentation
required was, among others, the record pertaining
to the decision to award the bid to the respondents, tender
specifications, the
minutes of the Bid Evaluation and Adjudication
Committees respectively, (“BEC and BAC “) the
recommendation/s made
by either of the said Committees, and letters
of award issued to the respondents.
3.2 The
College, through the medium of their attorneys of record, penned a
response in a letter dated 10 January
2022 purporting to furnish the
reasons proffered by the College’s attorney’s briefly as
follows: -
3.2.1 The bidder (the
01
st
applicant) was evaluated and adjudicated and was
found to have quoted above 20% of estimated budget, therefore,
rendering its price
“un affordable and most expensive” as
opposed to other successful bidders, considered by the BAC, applying
a “due
process”. Similarly, the second applicant scored
55% points far less than 70% of the threshold criteria set for
adjudication
requirements and, in addition, failed to meet the
experience requirement to illustrate its competence in the industry,
and was,
therefore, deemed non-responsive by the BAC requirements.
3.2.2 Furthermore, it was
stated that as for the record sought the applicants are enjoined to
apply in terms of rule 53 (unspecified)
and not through a letter. The
applicants should have, in addition, familiarized themselves with the
college’s Supply Chain
Management Policy (“SCM”),
in particular, Clause 10.11 thereof which provides for any aggrieved
bidder to lodge either
an internal appeal or objection to the
college, as a way, so the response went, to exhaust internal remedies
at the aggrieved bidder’s
disposal.
3.3.3 The response in
conclusion intimated their client’s view that “due
process” was followed in terms of the
SCM policy, and that the
college would, proceed with the award to successful bidders”
seeing that neither an objection nor
appeal has been lodged as
envisaged in clause 10.11 of the policy.
[4]
Displeased with the college’s response, the applicants on 10
January 2022, launched
an urgent mandatory interdict (Part A) in
terms of which they sought an order compelling the college to provide
to them the documentation
and record sought described in paragraph
3.1 above, and furthermore, an injunction restraining the college
from implementation
of the tender pending the outcome of the review
application in part B of the application, and the costs attendant
thereto. Part
A of the application was heard and disposed of by
Mangena AJ on 18 Janaury 2022, in terms of which the learned Acting
Judge granted
the relief sought in Part A of the application
proceedings. Full reasons appear in the judgment he delivered in
writing in terms
of Rule 49 (1) (b) of the Uniform Rules of Court
(‘the rules”). Accordingly, I take the view, therefore
that, the proceedings
in Part A, became deminished. The applicants
persists in Part B, the review application.
[5]
Subsequent to finalization of the said urgent interim interdict
against the respondents,
the applicants on 28 January 2022 delivered
an amended notice of motion Part B, to be heard on an urgent basis,
and, furthermore
seeking an order reviewing, declaring unlawful and
setting aside the college’s decision to award the bid to the
respondents,
and additionally, nullifying any contract concluded by
and between the college and the respondents pursuant to the impugned
award
void
ab
initio.
The applicant also sought an
order directing the latter to award the bid to it, (substitution
order) alternatively, that it be
ordered to re-evaluate and
re-adjudicate all bids received by it
de novo
and make the
award (s) in line with recognized prescripts governing procurements
and in accordance with its SCM Policy. Costs were
also sought against
the College and against any party in the event of opposition.
[6]
Only the college filed papers to oppose the application. The Second
to Fourth respondents
did not participate in the proceedings.
THE PARTIE’S
SUBMISSIONS:
[7]
Counsel for the applicant, Mr Mthombeni, submitted, on the one hand
that the urgency in
the present application (part B) is underscored
by the existing interim interdict obtained in Part A since 18 Janaury
2022, and
the fact that it remains effective as against the
respondents, until Part B is disposed of. A speedy resolution of part
B would
therefore ensure that the learners in the affected campuses
are not inconvenienced nor continue to suffer any prejudice.
Moreover,
it would also save the college and the fiscus funds to be
expended as a result of procurement of services, unlawfully sourced
to
entities contrary to procurement prescripts. This is where, so the
submission went, the provisions of section 237 of the Constitution
squarely fits in.
Further delay in the
determination of the underlying dispute, would defeat adequate
substantial redress at a hearing in due course
that might be
available within the meaning of rule 6 (12) (b) of the rules.
7.2 He
also argued against the preliminary issues raised by Mr Buthelezi on
behalf of the college for, inter alia,
alleged failure by the
applicants to exhaust internal remedies. Similarly, Mr Mthombeni
vemently submitted that the issue of mootness
of the application was
wrongly relied on by college’s counsel.
7.3 It
was also submitted that the tender was not awarded in compliance with
the spirit of Section 217 of the
Constitution.
[8]
Mr Buthelezi submitted, on the other hand, among others, that the
review application
is moot on account of the agreement allegedly
reached by the parties to the dispute for the college to re-evaluate
and re-adjudicate
the tender award process. This would, according to
him, be a tedious exercise.
8.1
It was submitted further that applicants failure to exhaust internal
remedies had virtually outsted the court’s
jurisdiction to
entertain the main application. He placed reliance on the provisions
of Section 7 (2) of the Promotion of Administrative
Justice Act,
2000
[3]
(‘PAJA’) and
failure to seek the leave of court to be exempted from compliance
with the relevant Section of PAJA.
8.2
Furthermore, the existence of urgency in the matter was called into
question.
I shall now proceed to
examine the submissions made on behalf of the parties.
EVALUATION:
[9]
The need to an expeditious resolution of disputes involving tender
awards was recognized
in
Millenium
Waste Management (Pty) Ltd v Chairperson Tender Board: Limpopo
Province and Others
[4]
In the present case, the
urgency of the relief sought and the reasons thereof is now settled
by the judgment of Mangena AJ. (Part
A)
9.1 The
urgency of the matter in Part B, which the college attacked in its
opposing affidavit, is underpinned
by the fact that the impugned
tender is currently interdicted and the injunction subsits pending
the determination of the present
review proceedings.
9.2
One, therefore, has to examine nonetheless the reasons for the
urgency application, and why applicant avers
that substantial redress
could not be achieved at a hearing in due course
[5]
.
It is also the reasons and circumstances set fourth explicitly which
would ordinarily determine if the matter is sufficiently
urgent to
justify the granting of the relief sought in Part B.
9.3 In
this instance, the reasons for urgency as contended by the applicants
are that the implementation or execution
of the tender under
consideration has effectively been interdicted and restrained by the
interim court order. What exacerbates
the matter even further is that
the learners resident in the affected campuses under the college’s
governance, continue to
suffer inconvenience or untold prejudice for
not receiving catering services due to the interdict obtained against
the college
and the “successful” tenders. This alone, in
my view is sufficient reason to treat the matter as sufficiently
urgent
Accordingly,
I find no merit in the college’s attack on the urgency of the
main review application. This finding is reinforced
by the imperative
language in Section 237 of the Constitution which impels organs of
state and its functionaries to “perform
all constitutional”
obligations “diligently and without delay”. To delay this
matter further than what it has
been would have catastrophic
consequences for the innocent learners in those campuses. To that
end, the cautionary warning sounded
in the Millenium case
[6]
above, that “to set aside the decision to accept the tender,
with the effect that the contract is rendered void from the
ouset….”
with respect is, what in the instant case, is required to be
examined. I am persuaded, therefore, that the
present review
application retains its urgency, and it is accordingly treated as
such.
MOOTNESS:
[10]
I turn now to consider the Mootness of the application. Counsel for
the college contended that
the review application in Part B has
became moot. This submission, it appears, found reliance from a
letter addressed to the applicant’s
attorneys on behalf of the
college dated 03 February 2022, stated in part that:
“
2
10.1
upon consultation with our client at 17h00 on 2
nd
February 2022, we hold instructions to accede to your request/prayer
that our client re-evaluate and re-adjudicate the tender under
bid
number CCTVET/2021/09/02/01-03.
[7]
”
“
If
your client is amenable, we propose that the application be withdrawn
and
by agreement
between the parties….. the tender under bid number
CCTVET/2021/09/02/01-03 will be re-evaluated and re-adjudicated,”
(underlying added)
10.2 In response to
the said letter, the applicant’s attorneys on 03 February 2022,
indicated they are amenable that
the relevant bid be re-evaluated and
re-adjudicated “subject to the condition that same shall be
done within a period of
3 calendar days from 16 February 2022, owing
to the urgency of the review.”
10.3 The issue that
the costs be reserved was, however, not acceptable, it being
contended that the costs of Part “A”
and Part “B”
up to the hearing of “B” of the review application,
(15.02.2022) be tendered by the college.
Additionally, that the main
application would not be “withdrawn”, but instead
“removed” from the roll.
10.4 A reading of
the proposal made by the college and the response thereto, do not
constitute, in my view, a definitive “agreement”
which
can reasonably be construed to create unanimity of the parties,
meeting of the minds. To that end, it cannot be said that
upon
non-fulfilment of the counter-proposals set out in the applicant’s
terms and conditions in their letter, render the
prayers sought in
Part B, superfluous or moot. Two main disputes had placed the parties
at variance, to each other to wit, (1)
the costs being paid by the
college, and (2) whether or not the review application be withdrawn,
with the applicants having resorted
to a “removal”
thereof instead. Quiet understandably, the withdrawal by the
applicants of the application would have
impelled them to
simultaneously tender the costs in accordance with rule 41 (1) of the
rules, a step that would be self-defeating
to their rights they
sought to protect and vindicate themselves of.
[11]
It is trite principle of our law that the doctrine of mootness
requires, among others that courts
must adjudicate upon existing
“flesh and blood” disputes that are not abstract or
purely academic.
[12]
The above mentioned observation is reinforced by the dictum laid down
in
National
Coalition for Gay and Lesbian Equality and Others V Minister of Home
Affairs
[8]
where the court stated that:-
“
[21]
A case is moot and,
therefore, not justiciable if it no longer presents an existing or
live controversy which
should exist if the Court is to avoid giving advisory opinions on
absent propositions of law, such was the
case of J. T. Publishing
(Pty) Ltd and Another v Minister of Safety and Security and Others
[1996] ZACC 23
;
1997 (3) S.A 514
(CC) …, where Didcott J said the following at
para [17]:
…
.
(T)here can hardly be a clearer instance of issues that are wholly
academic, of issues exciting no interest, but an historical
one, than
those on which our ruling is wanted have now become.”
[12]
Applying the aforementioned principles to the facts in the instant
case, I am fortified, in my
view, that the argument on the mootness
of the present application, is devoid of merit and, therefore ,falls
to fail.
DID THE APPLICANT
FAIL TO EXHAUST INTERNAL REMEDIES?
[13]
This question was also raised by Counsel for the college in
resistance to the main application.
Relying on section 7 (2) of PAJA,
he contended that they should have first exhausted internal remedies
available prior to approaching
this court with the review
application. The relevant part of section 7 (2) (a) of PAJA provides
that: -
SECTION 7 (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.
(b)
………………………..
(c)
“The court or tribunal may, in exceptional circumstances; and
on application by a 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”
[14]
It is common cause, or at least not disputed by the applicants that
they did not comply with
Section 7 (2) of PAJA, in line with Clause
10.11 of the college’s SCM Policy in order to exhaust internal
remedies. The relevant
copy the SCM Policy is for conveniences sake
attached to this judgment for easy reference.
[9]
ATTACHMENT
[15]
Cluase 10.11 relied upon entitled “
objection/Appeal
Process”
, merely provides that the Accounting Officer may
formulate an Objection Committee that will be responsible to manage
any inquiries
received or objections raised by unsuccessful bidders.
Importantly, the clause provides that “the colleges should,
only when
requested in writing by the bidders, provide them with the
reasons why his/her own bid was not successful.”
[16]
There is no evidence that the applicants upon a written request for
the documentation sought
in their letter dated 06 January 2022, were
ever directed to lodge their “objection or appeal,” if
any, to the so-called
“Objection Committee”, if in fact
such “objection or an appeal” were to be lodge with the
college. Conversely,
a closer reading of the said letter merely
reveals applicant’s intention to institute review application
upon receipt of
the relevant documentation.
It was only after receipt
of the college’s response not through the “objection
committee”, but through their attorneys,
that Part A of the
application was launched in order to pave way for Part B proceedings.
[17]
Furthermore, on a reading of the letter in question, nowhere is
mention made that applicants
sought to have reasons why they or the
other successful bidders were awarded the bid or not, as the case may
be. Crucially, clause
10.11 makes no reference to exhaustion of “
any
remedy provided for in any other law”
that has to first be
exhausted, whatsoever.
The “objection
committee” relied on by the college, does not meet, in my view,
the threshold set out in Section 7 (2)
(a) of PAJA.
Furthermore, it would be
futile to determine even for a moment, whether or not subsection 7
(2) (c) of PAJA finds application in
the instant case, if there is no
room for invocation of subsection 2 (a) of Section 7 in the
circumstances.
[18]
The SCM Policy’s clause 10.11 which was apparently created as a
mechanism to deal with
the college’s internal objections or
appeal, falls short of the “internal remedies” envisaged
in Section 7 (2)
(a).
[19]
In the instant case, the issue is whether clause 10.11 constitute an
internal remedy within the
ambit of Section 7 (2).
The view I take of the
issue is that the system the college created in Clause 10.11 lacks
the hall-marks of a dispute resolution
on mechanism that could
resolve internal remedies and if invoked, would speedily and
effectively resolve internal objections or
appeals against the
dispute bids before an aggrieved person can approach the courts for
intervention.
[20]
In
REED
and Others v The Master of the High Court and Others
[10]
Plasket J, (as he then was) defined the term “internal remedy”
when used in administrative law as follows:
“
[T]he
composite term ‘internal remedy’---- is used to connote
an administrative appeal- an appeal usually on the merits,
to an
official tribunal within the same administrative hierarchy as the
initial decision- maker----“
In South Africa there is
no system of administrative appeals. Instead, internal appeal
tribunals are created by statute on an ad
hoc basis”.
[21]
Consequently, the college does not have, as already shown, an
‘internal appeal tribunal”
or let alone a body created by
its SCM Policy akin to Section 7 (2) of PAJA.
[22]
It is for that reason that the court in the case of
DPP
v Valuers (Pty) Ltd v Madibeng Local Municipality & Another
[11]
stated that “Generally, the duty to exhaust internal remedies
is not in and of itself absolute, nor is it automatic.
That much is clear from
the latitude given to courts in Section 7 (2) (c) of the PAJA, to
exempt the applicants, in ‘exceptional
circumstances’ and
upon application by the person concerned, from exhausting internal
remedies, if deemed by the court to
be in the interest of justice….”
[23]
In
casu
, I find that the reasons furnished as a basis to
request for the bid documentation that directly affected the
applicant’s
in the outcome of the impugned tender were in my
opinion, in the interest of justice to be provided upon request to
the applicants.
23.1 To that end,
it would not be a travesty of justice if the court had, in its
judicial discretion, condoned failure to
pursue an available remedy
where it is illusory or incompetent, or where it is tainted with
alleged illegality.
23.2
What is salutary principle at the end is that the requirement should
not be rigidly imposed, nor should it be used by
administrators to
“frustrate the efforts of an aggrieved person” or to
“shield an administrative process from
judicial scrutiny.”
[12]
[24]
As already shown above, the response given by the college upon a
written request for documentation
was aimed to frustrate the efforts
of the aggrieved bidder by hiding behind “Rule 53 and not
through a letter” to seek
shielding information to which
applicants were entitled. This is simply that the applicants could
not have resorted to Rule 53
of the rules of the court without being
furnished with the information sort (the record of bidding process).
24.1 Furthermore,
the fact that “in our clients view due process was followed in
terms of the SCM Policy and our client
is to proceed with the award
to successful bidders as neither objection nor appeals has been
lodged…..” is a clear
indication, in my understanding of
the college’s response, that even the Rule 41A mediation route
they proposed, but could
not pursue, would not create room for
exhaustion of internal remedies.
[25]
That said, for all the reasons aforementioned, I find no merit in the
submission that the applicants
failed to pursue internal remedies, as
none was available to exhaust.
REVIEWABLE GROUNDS:
[26]
The applicants having been supplied with the record and reasons for
decision submitted further
that there are certain irregularities that
are borne from the record which are at odds with the reasons for
decision to award the
tender to the respondents (excluding the
principal)
The
reasons furnished, appear in annexure “KIM,
3
“
[13]
being
a letter issued by the college’s attorneys dated 10 Janaury
2022 addressed to the applicants attorneys. I have briefly
referred
to the contents thereof elsewhere in this judgment. (Para: 3.2.1 to
3.2.3)
[27]
After re-stating by way of analysis of the SCM Policy under
consideration, it was submitted further
on behalf of the applicants
that the score obtained by the latter at phase two of evaluation
level, and functionality criteria,
(100 points) had by far out played
the second respondent, (Great linking Management Service) which had
no points attained at all.
The same applies to the
bidder’s relevant industry experience, where the applicants
scored out of 20 points, 18 points, whereas
no point was obtained by
the second respondents in this regard.
[28]
I Interpose to mention that, I consider it unnecessary to pin-point
each and every irregularity
alleged in relation to the evaluation
process of each bidder, which appears from the record, save to say
that, from the evidence
which in any event is not countervailed,
there is a similar pattern of grave irregularities which no
reasonable decision –maker
could countenance.
28.1 The minutes of
the BEC shows an indication of disqualification of, for instance, the
third respondent (MSJ Holdings CC)
for lack of bank rating, and so
was the second respondent, but for lack of public liability cover,
and a letter of good standing
from Pest Control Body.
28.2 In addition,
the record shows that all three respondents were disqualified for
want of mandatory administrative imperatives
required by the bid
document.
DISCUSSION:
[29]
The Constitution of the Republic of South Africa provides in Section
217 (1) that:-
“
When
an organ of state in the National, Provincial or Local sphere of
government, or any other institution identified in the national
legislation, contract for goods or services, it must do so in
accordance with a system which is fair, equitable, transparent,
competitive and cost-effective,”
[14]
For purposes of
procurement sought by any organ of state, such as the first
respondent (the college) and the attendant decision
it takes in that
regard, PAJA in Section 6 (1) entitles any person or litigant to
institute proceeding to judicially review an
administrative action.
An aggrieved person or litigant may institute review action if the
administrator who took a decision repugnant
to any of the conditions
set forth in subsection 6 (2) (a) (i) (iii) and (b) to (e) (i) –
(f), and (i) (g) – (i) of
Section 6.
[30]
In the present case, the record portrays infraction by the BAC of
unfair process, (1) where it
did not follow the SCM Policy that
directs the BAC to follow the recommendations of the BEC, and absent
any irregularities (2)
to make a final decision without undue bias,
bad faith, arbitrarily, (3) or generally for a reason/s not
rationally connected to
either the purpose for which it was taken, or
(4) information before the administrator, or (5) the reasons given
for it by the
decision-maker, further that (6), the action is
otherwise unconstitutional or unlawful. It is for the above mentioned
considerations,
in particular, the unlawful decision, that the
applicants request an order to declare it unconstitutional and,
therefore, invalid,
unlawful, and to be set aside.
[31]
On a semblance of the foregoing considerations, I am persuaded that
the decision to award the
tender to the three respondents was not
only flawed but tainted with illegality, therefore, invalid and
reviewable to be set aside.
JUST AND EQUITABLE
REMEDY:
[32]
Upon the declaration of invalidity, and the finding that the impugned
decision is unconstitutional,
this court is empowered in terms of the
provisions of Section 172 (1) (a) of the Constitution, to select “any
order that
is “just and equitable”. The decision is a
discretionary matter to be made judicially after assessing all
material
facts in this case. Section 8 (1) of PAJA, reinforce the
court’s power in fulfillment of the constitutional imperative
provided
for in Section 172 (1) of the Constitution. The remedies
available to an aggrieved person or litigant are encapsulated in
Section
8 (1) (a) (a) – (c); (i) – (iii); (aa); (bb); (d)
– (f) of PAJA.
[33]
In the present case, the relief sought by the applicant that upon the
declaration of invalidity
and the setting aside, it be granted a
substitution order in terms of Section 8 (1) (c) (iii) (aa) is, in my
view, not sufficiently
supported by the hard facts to enable the
court to lean in its favour. The court may only venture in that
direction where sufficient
material has been placed before it in
order to be in as such as a position to step into the shoes of the
administrator, and, importantly,
to be careful not to encroach in the
terrain of another arm of state.
See: Trencon Construction
Pty Ltd v IDC
2015 (5) SA 245
CC.
[34]
This court may adopt that approach only if “exceptional
circumstances exist for the substitution
order sought being a
foregone conclusion that only applicants should have been awarded the
bid.
I would, however, be
pleased to grant an alternative relief as a ‘just and
equitable’ remedy in the circumstances in
order to redress the
unfairness.
APPLICABLE LEGAL
MATRIX:
[35]
This court in the case of
Ephraim
Mogale Local Municipality v Inkokeli Projects (Pty) Ltd and
Others
[15]
stated that “…..
The correct approach on how to come to the aggrieved parties’
rescue has over the years received attention of our courts
with apex
jurisdiction. For instance, in Steen Kamp N.O v Provincial Tender
Board, Eastern Cape
[16]
the
court stated that:-
“
It
goes without saying that every improper performance of an
administrative function would implicate the Constitution and entitle
the aggrieved party to appropriate relief. In each case the remedy
must fit the injury. The remedy must be fair to those affected
by it
and yet vindicate effectively the right violated. It must be just and
equitable in the light of the facts, the implicated
Constitutional
principles, if any, and the controlling law…. The purpose of a
public law remedy is to pre-empt or correct
or reserve an improper
administrative function…….”
[36]
Furthermore, I think it is proper to sum up the position that
ultimately, the object of a public
remedy is to grant the aggrieved
party administrative justice in order to promote efficient public
administration based on constitutional
precepts and the rule of law,
it is for that reason that the rule of law must never be
relinquished, but the circumstances of each
case must be examined in
order to determine whether factual certainty requires some
amelioration, of legality and, if so, to what
extent.
[17]
In other words, in making
the determination, much will depend on a repository of all the fact
available in order to ameliorate legality
and, if so, to what extent.
[37]
The unfairness or irregularity decried by the applicants is analogous
to the principles enunciated
in the case of
Premier,
Free State v Firechem Free State (Pty) Ltd
[18]
held that:-
“
One
of the requirements …… is that the body adjudicating
tenders be presented with comparable offers in order that
its members
should be able to compare…..yet another requirement is that
competitors should be treated equally, in the sense
that they should
all be entitled to tender for the same thing. Competitiveness is not
served by one or some of the tenders, knowing
what is the true
subject of the tender…. That would deprive the public of the
benefit of an open competitive process?
[38]
Importantly, as I conclude, “it is common cause that this court
is required in terms of
Section 172 (1) (b) to find a “just and
equitable’ remedy that is justifiable in the circumstances
peculiar to the
present case. The merits of each case will depend on
a particular ‘just and equitable’ remedy which, of
course, remain
a discretionary matter.
[19]
[39]
On a compendium of all the facts in this matter, the applicant I am
satisfied has framed out
a proper case to grant the relief sought in
the notice of motion, as amended.
THE COSTS:
[40]
It is well settled principle that the costs follow the cause. The
applicants had made reasonable
efforts in order to resolve the
dispute amicably. The impasse began when the college did not
timeously furnish the record or information
requested as evinced by
the correspondence exchanged between the parties’ respective
attorneys. The college did not show
any
bona fides
in that at
some point it tactically delayed furnishing the record sought, by
impermissibly relying on Rule 53 in circumstances
where the review
application was not yet set in motion. Furthermore, while the college
correctly proposed the Rule 41A route (medication)
as an attempt to
“settle” the matter, it had for some obscure reasons,
unilaterally walked away from that process,
in which event, the
applicants had to persist in the main review application, and in the
process incurred further legal expenses
and costs.
In the circumstances, the
following order will issue:
ORDER:
[1]
The applicant’s non-compliance with the Uniform Rules of Court
with regards
to the usual forms, service and time periods is
condoned, and the application in PART B is dealt with as a matter of
urgency in
terms of Rule 6 (12) of the Uniform Rules of Court;
[2]
The first respondent (the college) is forthwith ordered to
re-evaluate and re-adjudicate
all bids received in accordance with
its applicable prescripts in procurement and make award (s) within 30
business days from date
of the granting of this order;
[3]
The first respondent (College) is ordered to pay the costs of the
application on attorney
and client scale, such costs to include the
costs occasioned by employment of counsel, where employed.
MG
PHATUDI
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the Applicant
: Adv P Mthombeni
Briefed
by
: Clearence Mangena Inc
Leswika House, Mare
Str, Polokwane
Counsel
for the First Respondent
: Adv Buthelezi
Briefed
by
: Lucky Thekiso Inc
Attorneys, Pretoria
No
appearances for second, third, Fourth Respondents
Date
Heard
: 20 April 2022
Delivered
: 05 July 2022
[1]
The
Constitution of the RSA, Act 108 of 1996, as amended.
[2]
Khumalo
and Another v MEC for Education, Kwazulu Natal
2014 (5) SA 579
(CC)
para: [46] [48]
[3]
Act
3 of 2000.
[4]
2008
(2) SA 481 (SCA)
[5]
Provisions
of rule 6 (12) (b), Uniform Rules of Court paraphrased.
[6]
Ibid
para: [23] of the Judgment
[7]
Annexure
“S1” Answering Affidavit to Part B,
[8]
2000
(2) SA.1 (CC) para: [21]
[9]
Copy
of Supply Chain Management Policy marked Annexure “A”
[10]
[2005]
2 All S.A 429
€, Para [25]
[11]
[2016]
JOL 34189
(SCA), at Para : [14]
[12]
See,
Koyane v Minister of Home Affairs (Lawyers for Human Rights as
amicus curie [2009] ZACC 23, 2010 (4) SA 327 (CC)
[13]
Updated
index, Part “B”, PP 41-43
[14]
Act
108 of 1996, as amended.
[15]
(Case
No:3298/2018) delivered 04.02.2019.
[16]
2007
(3) SA 121
(CC) para [29]
[17]
Bengwenyama
Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd
2011 (4) SA 113
(CC) para: [85] – on approach to determine a just and
equitable remedy.
[18]
2000
(4) sa 13 (SCA)
[19]
Greater
Tzaneen Local Municipality v Tshiamiso Trading 135 (Pty) Ltd (Case
No: 5267/2019) delivered on 28.01.2021) para [28] –
This
Judgment is a matter delivered in this Division.