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[2022] ZANCHC 31
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Masicebise Business Solutions v MEC: Cooperative Governance Human Settlement and Traditional Affairs NC Province and Another (992/2022) [2022] ZANCHC 31 (31 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
992/2022
Heard:
27/05/2022
Date
available:
31/05/2022
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
Regional Magistrates: YES/NO
In
the matter between:
MASICEBISE
BUSINESS SOLUTIONS
Applicant
and
THE
MEC: COOPERATIVE GOVERNANCE HUMAN SETTLEMENT
&
TRADITIONAL AFFAIRS NC PROVINCE
1
st
Respondent
DEFENSOR
ELECTRONIC SECURITY (PTY) LTD
2
nd
Respondent
JUDGMENT
Mamosebo
J
[1] On 16 April 2021, the
department of Cooperative Governance Human Settlement and Traditional
Affairs, Northern Cape Province,
(COGHSTA) published an invitation to
tender for the appointment of a service provider rendering security
services to the Department
over a three-year period. The closing date
for submissions was 07 May 2021. It is common cause that the tender
was subsequently
awarded to the applicant, Masicebise Business
Solutions (Pty) Ltd (Masicebise). The second respondent,
Defensor Electronic
Security (Pty) Ltd (Defensor), challenged the
awarding of the tender to the applicant by lodging an urgent review
application.
The applicant and the Member of the Executive
Council: Cooperative Governance Human Settlement & Traditional
Affairs NC Province
(MEC) were served with the founding papers for
the review application and only the MEC opposed the application.
[2] On 15 November 2021,
Nxumalo J and Erasmus AJ, sitting in the review court, granted an
order in favour of Defensor to this effect:
“
1.
This application is heard as an urgent application in terms of the
provisions of Rule 6(12) of the Uniform Rules of Court and
that the
necessary condonation is granted to the applicant in respect of the
non-compliance with the prescribed time limits, forms
and service.
2. The decision of the
first respondent to disqualify the applicant in respect of Tender
NC/06/2021: Appointment of a service provider
to render security
services for the Department COGHSTA in the Northern Cape Province
(“the Tender”) is declared constitutionally
invalid,
reviewed and set aside.
3. The decision of the
first respondent to award the tender to the second respondent is
declared constitutionally invalid, reviewed
and set aside.
4. The applicant’s
bid is hereby remitted to the respondent to be evaluated on price.
5. The first
respondent is hereby ordered to pay the costs of applicant which
should include costs consequent upon employment of
two counsel.”
[3] Notwithstanding the
aforementioned order, the applicant continued to render security
services to COGHSTA. Defensor launched
a further urgent application,
which was aborted because the MEC addressed a letter dated 26 April
2022 to the applicant informing
the applicant that its last day on
site would be 31 May 2022. Ms Nxumalo, who appeared for the MEC
in these proceedings,
submitted that pursuant to the review court’s
order, the department reconsidered the bid and awarded the tender to
Defensor.
[4] The applicant
approached this Court on an urgent basis seeking
interim
interdictory relief in Part A pending the finalisation and
adjudication of the review in Part B of the application. Part
A
seeks to stop or prohibit the impugned appointment of Defensor meant
to take effect on 01 June 2022. The MEC and Defensor
oppose the
application on the grounds that it is neither urgent nor meets the
requirements for the granting of an interim interdict.
[5] There are both
procedural and substantive questions for determination. The
procedural questions are whether the application
for interim relief
is urgent, should the court find that it is, whether the relief
sought in terms of paragraph 2 of the notice
of motion in which the
applicant is seeking interim relief should be granted. The
substantive question pertains to the interpretation
of the order
granted by the review court on 15 November 2021.
[6] On the aspect of
urgency, Mr Korf, appearing for the applicant, made the submission
that the applicant only became aware that
the tender was awarded to
Defensor during an informal discussion with a representative of the
Department on Tuesday 10 May 2022.
The applicant immediately
contacted its legal representatives to seek legal advice and a
consultation was arranged with its attorney
and counsel on Friday 13
May 2022. Following the consultation and still on 13 May 2022,
the applicant sought an undertaking
from the MEC and Defensor before
14:00 on Monday 16 May 2022 that:
6.1
pending final determination of a review application for the setting
aside of the award, to be instituted within
30 days, the decision
will not be implemented;
6.2 no
further contracts pertaining to this matter will be concluded; and
6.3 no
contracts already concluded will be implemented.
The
MEC and Defensor did not furnish the requested undertakings.
[7] The applicant makes a
submission that it will not receive substantial or adequate redress
should this application be heard in
the normal course of motion
proceedings. The applicant contends that should interdictory
relief not be granted, it stands
to suffer immense financial
prejudice and its employees would lose their employment.
[8] The MEC contended
that the applicant brought this application in a situation of
self-created urgency. In substantiation
of this contention, the
MEC stated that the department notified the applicant by letter dated
26 April 2022 that its last day on
site would be 31 May 2022.
Although the applicant was in a position to institute these
proceedings from 26 April 2022, a
period of almost three weeks lapsed
before the applicant decided to launch the present application
seeking to interdict the MEC
from implementing the award in favour of
Defensor.
[9] Defensor argued that
the grounds of urgency are contrived. Its counsel intimated that
since the tender that was awarded to the
applicant was set aside by
the review court on 15 November 2021, the applicant forfeited its
right to be on site effective from
the date of the order. Therefore,
it was not the letter that the applicant received on 26 April 2022
that terminated the
applicant’s rights, but the order of Court
on 15 November 2021, so the argument went. Defensor ought to have
instituted proceedings
earlier.
[10]
Mr Els submitted that had the applicant opposed the urgent review
application it would have been entitled to seek leave to
appeal the
order, which would have the effect of suspending the order. Now
that it did not oppose the application despite
having been served
with the papers, it is seeking to achieve the same result by
launching the current application for interdictory
relief. This,
argued counsel, is clearly abuse of the court process. Mr Els
argued further, that while the applicant
is seeking to challenge the
decision by the MEC to appoint Defensor after it evaluated its tender
on price as directed by the review
court, the applicant has not
listed a single ground for review in terms of the Promotion of Access
to Justice Act (PAJA)
[1]
.
[11]
Rule 6(12)(b) of the Uniform Rules of Court provides:
“
In
every affidavit or petition filed in support of any application under
para (a) of this subrule, the applicant shall set forth
explicitly
the circumstance which he avers render the matter urgent and the
reasons why he claims that he could not be afforded
substantial
redress at a hearing in due course”.
[12]
In
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s
Furniture Manufacturers)
[2]
,
Coetzee J held the following with reference to Rule 6(12)(b):
‘
Mere
lip service to the requirements of Rule 6(12)(b) will not do and
an applicant must make
out a case in the founding affidavit to justify
the particular extent
of the departure from the norm, which is involved in the time and day
for which the matter be set down.’
[13]
The principle on urgency was developed further in
Mogalakwena
Local Municipality v The Provincial Executive Council, Limpopo and
Others
[3]
where
the Court held
:
“
It
seems to me that when urgency is an issue the primary investigation
should be to determine whether the applicant will be afforded
substantial redress at a hearing in due course. If the applicant
cannot establish prejudice in this sense, the application cannot
be
urgent. Once such prejudice is established, the other factors come
into consideration. These factors include (but are not limited
to):
Whether the respondents can adequately present their cases in the
time available between the notice of the application to
them and the
actual hearing, other prejudice to the respondent’s and
administration of justice, the strength of the case
made by the
applicant and any delay by the applicant in asserting its rights. The
last factor is often called, usually by counsel
acting for the
respondents, self-created urgency.”
See
also
Luna
Meubel Vervaardigers (Edms) Bpk v Makin’s (t/a Makin’s
Furniture Manufacturers)
[4]
.
[14] The applicant has
missed, in my view, opportunity when it presented, to challenge the
matter. I have not discerned its
reasons for not opposing
Defensor’s urgent review application and stating its version in
that regard. It is inexplicable
why it would only learn about
the appointment on 10 May 2022 when, not only was it served with the
letter dated 26 April 2022,
but was already served with the review
papers and ought to have followed up on the outcome. Because
the MEC’s letter
gave the applicant a deadline of 31 May 2022
to vacate the site, I will treat the matter as urgent, though the
urgency was self-created.
I now proceed to consider whether the
applicant has met the necessary requirements for an interim
interdict.
[15]
The Constitutional Court in
National
Gambling Board v Premier, Kwazulu-Natal and Others
[5]
remarked:
“
[49]
An interim interdict is by definition
‘
a
court order preserving or restoring the status quo pending the final
determination of the rights of the parties. It does not involve
a
final determination of these rights and does not affect their final
determination.’
The dispute in an
application for an interim interdict is therefore not the same as
that in the main application to which the interim
interdict relates.
In an application for an interim interdict the dispute is whether,
applying the relevant legal requirements,
the status quo should be
preserved or restored pending the decision of the main dispute. At
common law, a court’s jurisdiction
to entertain an application
for an interim interdict depends on whether it has jurisdiction to
preserve or restore the status quo.
It does not depend on whether it
has the jurisdiction to decide the main dispute.”
[16]
The requirements for an interim interdict are well established. They
are (i) the existence of a prima facie right, even
though it may be
open to some doubt; (ii) a well-grounded apprehension of
irreparable harm in interim relief is not granted
and ultimate relief
is eventually granted; (iii) the balance of convenience favours the
granting of the interim interdict; and
(iv) the applicant has no
other satisfactory remedy.
[6]
These considerations are not considered individually as they
are interrelated also informed by the applicant’s prospects
of
success
[17]
The test to be applied when ascertaining the existence of a
prima
facie
right is articulated by the Constitutional Court in
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
[7]
(OUTA) as follows:
“
[44]
The common-law annotation to the Setlogelo test is that courts grant
temporary restraining orders against the exercise
of statutory power
only in exceptional cases and when a strong case for that relief has
been made out. Beyond the common law, separation
of powers is an even
more vital tenet of our constitutional democracy. This means that the
Constitution requires courts to ensure
that all branches of
government act within the law. However, courts in turn must refrain
from entering the exclusive terrain of
the executive and the
legislative branches of government unless the intrusion is mandated
by the Constitution itself.
[46]
….[W]hen a court weighs up where the balance of convenience
rests, it may not fail to consider the probable
impact of the
restraining order on the constitutional and statutory powers and
duties of the state functionary or organ of state
against which the
interim order is sought.
[47] The
balance of convenience enquiry must now carefully probe whether and
to which extent the restraining order will
probably intrude into the
exclusive terrain of another branch of government. The enquiry must,
alongside other relevant harm, have
proper regard to what may be
called separation of powers harm. A court must keep in mind
that a temporary restraint against
the exercise of statutory power
well ahead of the final adjudication of a claimant’s case may
be granted only in the clearest
of cases and after a careful
consideration of separation of powers harm. It is neither
prudent nor necessary to define ‘clearest
of cases’.
However, one important consideration would be whether the harm
apprehended by the claimants amounts to a
breach of one or more
fundamental rights warranted by the Bill of Rights. This is not such
a case.
[50] Under
the Setlogelo test the prima facie right a claimant must establish is
not merely the right to approach a
court in order to review an
administrative action. It is a right to which, if not protected
by an interdict, irreparable
harm may ensue. An interdict is
meant to prevent future conduct and not decisions already made.
Quite apart from the
right to review and to set aside impugned
decisions, the applicants should have demonstrated a prima facie
right that is threatened
by an impending or imminent irreparable
harm. The right to review the impugned decisions did not
require any preservation
pendent lite.”
[18] Taking cue from the
OUTA-judgment, a strong case would be one in which a right at issue,
although established only
prima facie,
and open to a measure
of doubt, nevertheless appears to enjoy good prospects of being
established in the main proceedings, and also
one in which the need
for the intervention of an interim interdict is clearly shown if
irreparable harm to the applicant is to
be averted. Mr Els
contended that the applicant’s bid was non-responsive and has
failed the functionality test; notwithstanding,
the applicant has
elected to be tight-lipped despite the allegations of failing to meet
mandatory requirements. Mr Els further
contended that the
review court’s pronouncement in setting aside the decision by
the MEC awarding the tender to the applicant
as constitutionally
invalid, takes away the right that the applicant would have had,
without which, there would be nothing to preserve.
More
importantly, the applicant has not raised any ground of review in its
founding affidavit upon which the MEC’s decision
is attacked.
[19] Ms Nxumalo,
appearing for the MEC, and Mr Els, contended that the balance of
convenience favours the MEC and Defensor. A
submission was made
that the MEC requires continuous security, which the Department
cannot be without. If the interim interdict
is granted, the MEC
will not be able to utilise the services of the applicant or
Defensor, so the argument went. In its answering
affidavit,
Defensor has maintained that no single security guard employed by the
applicant will lose employment when Defensor takes
over the contract.
[20]
Both Messrs Korf and Els submitted that the interpretation of the
review court’s order, quoted in full at para 2(above)
is
paramount. I am mindful of the fact that the review court has
not furnished its reasons for the order. In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[8]
Wallis
JA, writing for the majority insightfully highlighted the approach to
be adopted by the courts when interpreting documents
stating that
consideration be given to the language used in the light of the
ordinary grammar and syntax; the context in which
the provisions
appear; the apparent purpose to which it is directed and the material
known to those responsible for its production.
More
importantly, context and language to be considered together where one
will not dominate the other. See also
National
African Federated Chamber of Commerce and Industry and Others v
Mkhize
[9]
[21]
As the saying goes, the review court was steeped in the atmosphere of
the proceedings. The review court is saddled with
the
responsibility to interpret the context and the language of its own
order and I cannot second-guess what its intentions were
that
informed the order as it was predicated on full argument. Mr
Korf contended that by remitting Defensor’s bid to
evaluation
on price only the only logical rationale for the remission would be
for Defensor’s bid to be evaluated against
that of the
applicant. Now this submission, in my view, leads to
speculation or conjecture, which the courts strongly discourage.
Borrowing the phrase from Ponnan JA in
Manong
& Associates (Pty) Ltd v Minister of Public Works and
Another
[10]
,
without
the reasoning of the review court where the tender arguments were
fully ventilated,
if
this were a horse race, the applicant has not made its way out of the
starting stalls.
I
say so because the applicant’s prospects of success are
dependent on the
prima
facie
right and the consequent irreparable harm if that right is not
preserved or restored.
[22]
On the question whether the applicant has established a
prima
facie
right or not the approach to be adopted is stated by Smalberger JA in
Simon
NO v Air Operations of Europe AB and Others
[11]
where
the Court held:
“
The
accepted test for a prima facie right in the context of an interim
interdict is to take the facts averred by the applicant,
together
with such facts set out by the respondent that are not or cannot be
disputed and to consider whether, having regard to
the inherent
probabilities, the applicant should on those facts obtain final
relief at the trial. The facts set up in contradiction
by the
respondent should then be considered and, if serious doubt is thrown
upon the case of the applicant, he cannot succeed.
(Gool v Minister
of Justice and Another
1955 (2) SA 682
(C) at 688B – F).”
What
stands out in this application are the allegations pertaining to the
applicant failing to meet the mandatory requirements for
the bid
namely, the rates and taxes of its property being in arrears; its
operational manager not certified with PSIRA and failing
to comply
with the functionality requirement. In addition, the failure by the
applicant to enlist grounds for review in its founding
affidavit in
terms of PAJA. It would be prudent for all parties to be
au
fait
with the reasoning of the review
court.
[23] In the circumstances
I am not persuaded that the applicant has established all the
requirements for interim relief. But,
even if I can be wrong in
this regard, I would still not incline to do so regard being had to
the outstanding reasoning of the
review court in the matter heard on
15 November 2021.
Costs
[24]
It is trite that the awarding of costs is in the discretion of the
court. Mr Els, invoking
In
re: Alluvial Creek Ltd
[12]
,
pressed
upon me that the conduct of the applicant amounted to a gross abuse
of the court processes, which must be met with the court’s
displeasure by ordering a punitive cost order in favour of Defensor.
Mr Els requested that the application be dismissed
with
costs on an attorney and client scale. Ms Nxumalo, on different
grounds, also sought the application be dismissed with
costs on an
attorney and client scale. Mr Korf submitted that the MEC is blowing
hot and cold which cannot be done. The applicant
persists with
the prayers in Part A as appearing in the Notice of motion with costs
to include costs of two counsel.
[25] I am not persuaded
by the submission on behalf of the respondents for costs on a
punitive scale. However, there is no reason
why costs should not
ordinarily follow the result.
[26]
In the result the following order is made:
The
application for an interim interdict in terms of paragraph 2 of the
Notice of Motion dated 19 May 2022 is dismissed with costs.
____________________
M.C.
MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicant:
Adv. C.A.C. Korf
Adv.
Van Schalkwyk
Instructed
by:
Duncan & Rothman
For
the 1
st
Respondent:
Adv. R.M. Nxumalo
Instructed
by:
The State Attorney
For
the 2
nd
Respondent:
Adv. A.P.J Els
Instructed
by:
Haarhoffs Inc.
[1]
3
of 2000
[2]
1977(4)
SA 135(W) at 137F
[3]
(2014) JOL 32103
(GP) at paras 64;
[2014] 4 All SA 67
(GP)
[4]
1977 (4) SA 135 (W)
[5]
[2001] ZACC 8
;
2002 (2) SA 715
(CC) para 49
[6]
Setlogelo v Setlogelo
1914 AD 221
at 227; Webster v Mitchell
1948 (1) SA 1186
(W) at 1189
[7]
2012 (6) SA 223
(CC)
[8]
2012 (4) SA 593 (SCA) para 18
[9]
[2015]
[10]
2010 (2) SA 167
(SCA) para 30
[11]
[1998] ZASCA 79
;
1999 (1) SA 217
(SCA) at 228G - H
[12]
1925 CPD 532
at 535