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2021
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[2021] ZALMPPHC 26
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Roadmac Surfacing (Pty) Ltd v Road Agency Limpopo SOC Ltd and Others (2245/2021, 2246/2021 2247/2021, 2248/2021, 2249/2021, 2250/2021) [2021] ZALMPPHC 26 (5 May 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 2245/2021, 2246/2021
2247/2021,
2248/2021,
2249/2021,
2250/2021
In
the matter between:
ROADMAC
SURFACING (PTY) LTD
APPLICANT
and
ROAD
AGENCY LIMPOPO SOC LTD
RESPONDENTS
AND
OTHERS
JUDGMENT
MAKGOBA
JP
[1]
In this urgent application before me there are 6 (six) similar
applications
which are dealt with as one application by agreement
between the parties.
[2]
The six applications were launched in terms whereof:
2.1.
The First Respondent, Road Agency Limpopo SOC Ltd (“RAL”)
is requested to provide
the Applicant with written reasons in terms
of Section 5 of the Promotion of Administrative Justice Act 3 of 2000
(“PAJA”)
for its decision to award various tenders to the
successful tenderers referred to in the applications.
2.2.
An interim interdict is sought pending finalization of a review
application in terms of
which:
(a)
The First Respondent be ordered not to give any further instructions
to
the successful tenderers to perform work under the various tenders
pending a review application to be instituted by the Applicant;
(b)
The successful tenderers are interdicted from commencing with work
under
the tenders referred to in the 6 (six) applications.
[3]
The identified documentation and reasons requested by the Applicant
in
the six applications have since been submitted or furnished to the
Applicant on 21 April 2021 and 26 April 2021 respectively. In
the
result the prayer in 2.1 above falls away.
[4]
This matter came before Muller J in the Urgent Motion Court on 20
April
2021 and by agreement the matter was postponed to 30 April 2021
to allow the First Respondent to furnish the requested reasons and
file its opposing papers.
Factual
matrix
[5] The
Applicant and various tenderers, including the six successful
tenderers in
the present application reacted and submitted road
construction and maintenance bids on an invitation by the First
Respondent (RAL)
under various tender numbers. All bids submitted
were to be evaluated in terms of the “Evaluation Methodology”
set
out in the tender documents and were subject to a five stage
evaluation process.
All
the completed tender documents submitted by the various tenderers
were captured on the Applicant's internal "One Note"
system.
[6] The
Applicant allege that in all the bids submitted and referred to in
these six applications, its bids were lower in price than the
successful tenderers.
On
the 29 March 2021 the Applicant obtained knowledge that the various
bids were awarded to the various successful tenderers referred
to in
the six applications.
[7]
The Applicant contends that it had a legitimate expectation to be
awarded
the tender especially considering that:
7.1.
The Applicant was a compliant tenderer and should have progressed to
the final stage in the evaluation
process;
7.2.
The Applicant should have scored higher than the successful tenderers
on 80/20 preferential
point system, namely lower in price and the
highest B-BBEE rating.
[8]
The First Respondent (RAL) oppose the six applications and based its
opposition
on the following facts:
8.1.
The Applicant’s bids were rejected during the first phase,
namely the “compliance phase” in particular
the
Applicant’s failure to complete the prescribed “Certificate
of Authority” contained in Form T2.IA;
8.2.
The non-compliance with the prescribed requirements does not concern
“substance” but “form”
requirements, and RAL
applied the compliance rules strictly in accordance with the letter
of the rule.
8.3.
The Applicant failed to establish any grounds of review, and failed
to establish a
prima facie
right.
8.4.
The balance of convenience does not favour the granting of the
interlocutory relief sought.
[9]
The Applicant’s main contention is that its
prima facie
right to approach this Court for an order sought is premised from
the facts that the Applicant was obviously the successful tenderer,
and no objective criteria existed to justify RAL’s decision to
exclude the Applicant and to award the tenders referred to
in the six
applications to the successful tenderers.
[10]
On the other hand the First Respondent (RAL) contends that the
Applicant has no
prima facie
right worth of protection by an
interlocutory interdict and that on the merits the Applicant’s
review application has no prospects
of success anyway.
lnterdictory
relief
[11]
Interlocutory
interdicts are normally granted
pendent
lite,
and
it is aimed at ensuring, as far as it is reasonably possible,
that the party who is ultimately successful will receive
adequate and
effective relief
[1]
.
For
more than a century our law has authoritatively required an applicant
seeking a final interdict to:
(1)
demonstrate a "clear right";
(2)
show an injury in the form of irreparable harm actually committed or
reasonably apprehended and
(3)
the absence of an alternative remedy.
See
Setlogelo v Setlogelo
1914 AD 221
227
Where
an interim relief is sought, like in the present case, a further
requirement for the interdict is that a balance of convenience
is in
favour of the granting of the interim relief.
[12]
In the present case in order for the Applicant to succeed in an
application for an interlocutory
interdict, the Applicant must
establish:
12.1.
A
prima facie
right;
12.2.
. A well-grounded apprehension of irreparable harm if the interim
relief is not granted
and the ultimate relief is eventually granted;
12.3.
A balance of convenience in favour of the granting of
the interim relief; and
12.4.
The
absence of any other satisfactory remedy
[2]
.
[13]
In
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
[3]
it
was held that:
“
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 decision. It is
a
right
to which, if not protected by an interdict, irreparable harm
would
ensue
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 pendente
lite
[4]
.”
[14]
RAL’s reasons for disqualifying the Applicant's bids are set
out in the letter RAL’s
attorneys addressed to the Applicant's
attorneys on 26 April 2021. In the said letter it was emphasized that
the tender documents
upon which the Applicant responded to the bids
contained unambiguous and mandatory terms and conditions and
evaluation methodology.
[15]
The crisp reason for disqualifying the Applicant’s six bids is
failure to complete
the “
Certificateof Authority”,
as
stipulated in the tender documents. The issue in respect of each of
the Applicant’s six bids is that item T2.IA, namely
the
"Certificate of Authority",
were not completed as
prescribed.
Bidders
were required to complete all the forms and returnable documents,
including item T2.IA in black ink. This the Applicant
did not do. The
Applicant rather left blank each item T2.IA. The certification was
not completed by the Applicant’s chairperson
of its board of
directors as required. The chairperson did not confirm that the
attached resolutions authorised a person to sign
the documents and
did not contain witness signatures next to that of the Chairperson or
the date.
[16]
For the better understanding of the requirements for the completion
of the “
Certificate of Authority”,
that is item
T2.IA, attachments “A” to this judgment illustrates the
blank item T2.IA which the Applicant was supposed
to have completed
and attached its board of directors’ resolutions. On the other
hand attachment “B” to this
judgment illustrates what
purports to be the Applicant's completion of the “
Certificate
of Authority”.
Even
a bird’s eye view of attachments “A” and “B”
shows clearly that the Applicant did not complete
item T2.IA
(attachment “A”) but went astray to redesign its own
“
Certificate of Authority”
(attachment “B”).
[17]
RAL’s tender documents published mandatory terms and conditions
for compliance by
all prospective tenderers. The terms and conditions
clearly state that
“
all
bids must be submitted on the official forms provided (not to be
retyped) or in the manner prescribed in the bid document and
in the
manner prescribed
in
the bid documents or complete all forms.”
The
tender documents further state that
“
all
forms, certificates and
schedules shall be
completed……Failure to comply
will be
a
disqualification”.
Importantly,
the terms and conditions also state that
“
non-compliance
with
any
of
the
requirements will
render
the
tender
non
responsive and it will not be carried forward
to the next stage.”
[18]
Counsel for the Applicant submitted that the Certificate of Authority
attached to Form
T2.IA is compliant, alternatively substantially
compliant with the requirements set out in Form T2.IA, and as a
result thereof
the Applicant should have passed the first phase to
the evaluation criteria.
I
disagree. My reasons therefor are apparent from the illustrations
given as per attachments “A and B” above.
[19]
In my view RAL was obligated to disqualify the Applicant for two
reasons. The first reason
is that the Applicant’s tender
documents were not “acceptable tenders” within the
meaning of the Preferential
Procurement Policy Framework Act No 5 of
2000. This was clearly stated in the reasons furnished by RAL’s
attorneys to the
Applicant’s attorneys on 25 April 2021:
The
Preferential Procurement Policy Framework Act requires the
implementation of a procurement policy by following a preferential
point system in respect of any “
acceptable tender”.
An
“
acceptable tender
” is being defined in Section 1
of the Act as being
“
any
tender which in
all
respects complies with the
specifications
and
conditions
of
tender as set out in the tender document”
See
Millennium
Waste
Management
(Pty)
Ltd
v
Chairperson
Tender
Board:
Limpopo
Province and Others
[5]
;
and
Chairperson,
Standing
Tender Committee v JFE Sapela Electronics (Pty) Ltd
[6]
[20]
The second reason is that RAL did not have the discretion to condone
the Applicant’s
non-compliance with peremptory or mandatory
terms and conditions of the tender, hence the Applicant’s
submission that it
has substantially complied with the tender
requirements cannot take the matter any further.
This
principle was restated in the matter of
Dr
JS Moroka Municipality v Betram (Pty) Limited
[7]
wherein
the Supreme Court of Appeal held as follows:
“
[15]
This argument cannot be
accepted.
The
clause related to
bid ‘validly submitted’
and, as is indeed stated in clause
2.5.5
of the
standard
terms and conditions of
bid,
only tenders submitted 'in the
prescribed
manner may be
accepted
as valid
bids’.
That clause merely states the obvious. A bid that does not satisfy
the necessary prescribed minimum qualifying requirements
simply
cannot be viewed as a
bid
‘
validly submitted’.
Moreover, the tender process consists
of various stages first, examination of all
bids received, at which stage those which do not comply with the
prescribed minimum
standards are liable to be rejected as invalid;
second, the evaluation of all bids validly submitted
as
prescribed in clause 3; and third,
a
decision on which of the validly submitted
bids
should be
accepted. The fact
that
all
bids validly
submitted are to be taken
into
consideration
as
set
out in cause 3.1 affords no discretion to condone and
take into account bids not validly submitted
but disqualified.”
[21]
In
the light of the above stated cases, I am of the view that the
Applicant’s prospects of success in the
prospective
review
application
is non-existent. In this regard, it
is
trite
that
this Court should exercise its discretion by refusing to grant the
interdict sought by the Applicant. In
Olympic
Passenger Service (Pty) Ltd v Ramlagan
[8]
it
was put as follows:
“
It
thus appears that
where the applicant’s right is clear,
and the
other
requisites are present, no difficulty presents
itself about granting an interdict. At the other hand of the scale,
where his prospects
of ultimate success are nil, obviously the Court
will refuse an interdict.”
[22]
It was submitted on behalf of the Applicant that Applicant will
suffer severe prejudice
should the commencement of work under the
various tenders proceed pending the finalisation of the review
application which is to
be adjudicated on 28 May 2021, and as a
result thereof the balance of convenience favours the Applicant.
[23]
On the other hand it was submitted on behalf of the First Respondent
(RAL) that the balance
of convenience does not favour the granting of
the interdicts. In its answering affidavit, RAL refers to four
essential reasons
why it cannot bring an end to any of the works that
are subject to the eleven advertised and awarded tenders, including
the six
impugned tenders.
These
are the reasons:
(a)
the interests that have already invested in the community by the
continued implementation
of the projects;
The
work is not only necessary but urgent.
(b)
the work is extremely urgent from the point of view of the State
administration. If
the projects are stalled by the interdict, the
budget will be forfeited to the national fiscus; The work is not only
necessary
but urgent.
(c)
there has been a creation of employment and improvement of
livelihoods of members
of the community when the projects are
implemented;
(d)
the road maintenance work is urgent to save life and limb and
allowing for necessary commercial
activities to continue.
[24]
The Court has the task of weighing up the balance of convenience by
assessing the final and irreversible
inconvenience which one party
will be likely to have suffered if he/she should turn out to be the
successful party, and also of
assessing the final and irreversible
inconvenience which the other party will be likely to have suffered
if he should turn out
to be the successful party and considering
whether the one outweighs the other.
[25]
Given the Applicant’s poor prospects of success in the
prospective review application,
it
has to be established that the balance of convenience clearly favours
the granting of interdictory relief. In my view, the Applicant
has
failed to do so. Upon a proper consideration of the conspectus of
facts implicated in this matter, RAL and various
communities
are to suffer more prejudice than the Applicant if the interdict is
granted.
In
the matter of
WJ
Building & Civil Engineering Contractor CC v Umhlathuze
Municipality
[9]
the
Court had this to say on the balance of convenience:
“
In
such cases, upon proof of
a
well-grounded
apprehension of irreparable harm, and there being no adequate
ordinary remedy, the court may grant an interdict
-
it has
a
discretion, to be exercised judicially upon a
consideration
of all
the
facts.
Usually
this
will
resolve
itself
into
a
nice
consideration
of
the
prospects of success and the balance of convenience
-
the stronger the prospects of success, the
less need for such balance to favour the applicant: the weaker the
prospects of success
the greater the need for the balance of
convenience
to favour
him. I need hardly
add
that by balance
of
convenience
is meant
the prejudice to the applicant if the interdict be refused, weighed
against the prejudice to the respondent if it be granted...”
[26]
The Applicant has an alternative remedy other than being granted an
interdictory relief.
Should it turn out in the prospective review
that the Applicant was unfairly treated and/or entitled to be
appointed on these six
tenders, it can sue for damages if it can
establish the requisite elements of a delict.
[27]
I come to a conclusion that the Applicant has failed to make out a
proper case for the
relief sought and therefore the urgent
application ought to be dismissed
Wasted
Costs occasioned by the Postponement on 20 April 2021
[28]
Counsel for the Applicant argued and submitted that the First
Respondent (RAL) should pay
the Applicant’s wasted costs
occasioned as a result of the postponement of these applications on
20 April 2021. A counter-argument
was made by Counsel for the First
Respondent that such wasted costs be paid by the Applicant.
[29] The
Applicant brought the six urgent applications for interlocutory
relief pending the institution
and finalization of a review
application in each of these cases. The applications were issued out
of this Court on the 8th April
2021 and were to be heard on the 20th
April 2021.
In
the Notice of Motion the Applicant called upon the Respondent to file
a notice to oppose on or before 15h00 on Friday 9 April
2021 and
deliver opposing/answering affidavits on or before 10h00 on Tuesday
13 April 2021, that is only two Court days to deliver
opposing
affidavits.
[30]
I agree with First Respondent’s submission that it was
well-nigh impossible to deal
issuably with the six applications in
the limited time decreed in the notice of motion.
[31]
The First Respondent (RAL) sought an indulgence based on what it
considered to be cogent
and reasonable reasons for postponement in
its letter dated 16 April 2021. This was rebuffed by the Applicant in
a letter also
dated 16 April 2021.
The
First Respondent was accordingly forced to bring a formal application
for the postponement of the urgent application, for one
week.
At
the doorstep of the Court on 20 April 2021 the urgent application
were postponed to 30 April 2021 by agreement between the parties.
[32]
The issue at the time of the postponement was merely whether the
urgent applications were
ripe for hearing. It is common cause that by
then, the First Respondent had not delivered its answering affidavit,
hence the postponement
was granted.
In
my view the time periods chosen by the Applicant were irrationally
short (two to three days for delivery of an answering affidavit
in
each of the six applications). The matter ought not to have been
entertained on the roll on 20 April 2021. The refusal to allow
another week for delivery of the affidavits was completely
irrational. This was unnecessary and costly.
[33]
The Applicant caused the First Respondent to bring a formal
application for postponement
and Counsel to attend Court on 20 April
2021 only to concede to the postponement at the doorstep of the
Court.
In
the circumstances the First Respondent is entitled to the wasted
costs occasioned by the postponement of these applications on
the 20
April 2021.
[34]
In the result I grant the following order:
34.1.
The application is dismissed with costs, such cost to include the
costs of two Counsel.
34.2.
The Applicant is liable and is ordered to pay the wasted costs
occasioned by the postponement
on the 20
th
April 2021,
such costs to include the costs consequent upon the employment of two
Counsel.
EM
MAKGOBA
JUDGE
PRESIDENT OF THE
HIGH
COURT, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCE
Heard
on
:
30 April 2021
Judgment
delivered on
:
5 May 2021
For
the Applicant
:
JJ Buys
Instructed
by
:
L & V Attorneys
c/o
Corrie Nel & Kie Attorneys
Polokwane
For
First Respondent
:
PF Louw SC
NC
Motsepe
Instructed
by
:
Legodi Attorneys
Polokwane
[1]
Pikoli
v
President
of
the Republic of
South
Africa
2010 (1) SA 400
(GNP)
at
403H-404
[2]
Superior
Court
Practice,
Erasmus Second Edition,
Van
Loggerenberg, Volume 2, D6 16-D6-22
[3]
2012 (6) SA 223
(CC) at para 50
[4]
See also Down
Touch
Investments (
Pty
) Ltd v Matjhabeng Local Municipality and Others (1172/ 2016)
[2016]
ZAFSHC 131
(13 April 2016)
[5]
2008 (2) SA 481
(
SCA)
at
paras
17
- 21
[6]
2008 (2) SA 638
(
SCA)
at para [14]
[7]
[2014]
1
AIL SA 545 (SCA
[8]
1957 (2) SA 382
(D)
at 383 E-G
[9]
2013 (5) SA 461
(KZD) para 3 (replying on the matter of Olympic
Passenger Service (Pt
y)
Lt
d
v Ramalagan
1957 (2) SA 382
(D)
at 383 E-G)