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[2021] ZAGPPHC 452
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South African Arms and Ammunition Dealers Association v Minister of Police and Others (41415/18) [2021] ZAGPPHC 452; [2021] 4 All SA 538 (GP) (9 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 41415/18
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
09/07/2021
Electronically
delivered
In
the matter between:-
THE
SOUTH AFRICAN ARMS AND
AMMUNITION APPLICANT
DEALERS
ASSOCIATION
THE
MINISTER OF
POLICE FIRST
RESPONDENT
THE
NATIONAL COMMISSIONER OF THE SECOND
RESPONDENT
SOUTH
AFRICAN POLICE SERVICES
GENERAL
K J SITHOLE
(In
his capacity as Registrar of Firearms)
MR
ABRAHAM MONGWE
N.O THIRD
RESPONDENT
CHAIRMAN
OF THE APPEAL BOARD
(AS
CONTEMPLATED BY
SECTION 128
OF THE
FIREARMS
CONTROL ACT 60 OF 2000
)
THE
FIREARMS APPEAL BOARD FOURTH
RESPONDENT
THE
PRESIDENT OF THE REPUBLIC OF FIFTH
RESPONDENT
SOUTH
AFRICA
STATE
INFORMATION TECHNOLOGY AGENCY SIXTH
RESPONDENT
(SOC)
LTD
Registration
number 1999/001899/30
DATE
OF HEARING: 10 JUNE 2021.
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. The date of hand-down
is
deemed to be 09 JULY 2021.
JUDGMENT
1.
Introduction
1.1.
This
Application is brought on an urgent basis by the South African Arms
and Ammunition Dealers Association, the Applicant, against
the 1
st
and 2
nd
Respondents, seeking orders in the following
terms:
(a)
Setting
aside the call for the bid with Specification No. RFB 2421
–
2020 entitled
“Solutions Design, Migration and Software Development Services”
for Firearm control solution for the South
African Police Service.
(b)
Setting
aside the bid Specification No. RFB 2421 – 2020 entitled
“Solutions Design, Migration and Software Development
Services”
for Firearm control solution for the South African Police Service.
(c)
Ordering
the Respondents to comply with paragraph 3.3 of the Court Order dated
5 August 2019 and to consult with the Applicant prior
to the issue of
any subsequent Bid Specification and call for Bids to be submitted;
(d)
That
the consultation with at least the Applicant’s representatives
must commence no later than 10(ten) days from the date
of this order.
(e)
That
the Respondents be ordered to comply with clauses 3.1 and 3.3 of the
court order dated 5 August 2019 by no later than 31 August
2021.
(f)
For
an order that clause 3.2 of the said court order be amended and
implemented by no later than 31 July 2023.
(g)
For
an order that the Respondents pay the costs of this application
jointly and severally on an attorney and client scale.
2.
Factual
Background
2.1
On
19 August 2019 in a dispute between the Applicant and all the cited
Respondents whereupon the Applicant, an Association of the
South
African Arms and Ammunition Dealers was seeking, inter alia, as a
principal relief, compliance by the Respondents with s
39 (6) as read
with
Regulations 38
,
39
,
40
of the
Firearms Control Act 60 of 2000
(”the Act”) and to generally institute
electronic-connectivity as contemplated by the Act, this Honourable
Court per
Basson J issued an order in the following terms:
1.
The 1
st
and 2
nd
Respondent
must establish electronic connectivity with all holders of a Dealers’
License to the Central Dealers Database
as contemplated by
section 40
and
125
and as foreseen in the provisions of
s 39
(6) of the
Firearms
Control Act of 60
of 2000 (“the Act”) as read with
Regulations 38
,
39
and
40
promulgated in terms of the Act, in order
to link the registers to be kept by the dealers and referred to in
s
39
(3) in the prescribed manner, within a period of 38 months from
date of granting of this order.
2.
The 1
st
and 2
nd
Respondent must also
establish such electronic connectivity with all holders of
Manufacturers Licenses Gunsmith Licenses and Importers
and Exporters
Licenses to the relevant Central Database as contemplated by
s 125
and as foreseen in provisions of
s 53
,
54
,
67
,
68
,
78
and
79
of the
Act as read with Regulations promulgated in terms of the Act and
applicable thereto, in order to link such registers to
be kept by the
Manufacturers, Gunsmith and Importers and Exporters in the prescribed
manner within the time period contemplated
in paragraph 1 above.
3.
In order to comply with paragraph 1 and 2 of this order,
the 1
st
and 2
nd
Respondent shall:
3.1
Undertake
or cause to be undertaken a bidding process to secure the services
required to give effect to the order, such bidding
process to be
concluded and a contractor appointed by no later than 31 August 2020.
3.2
The
process, design and implementation of the system required to
establish such electronic connectivity shall be completed not later
than 31 July 2022.
3.3
During
such process, design and implementation the 1
st
and
2
nd
Respondent or their delegated officials must timeously
meet with the Applicant’s representatives and such other
representatives
of the Importers, Manufacturers and Gunsmiths as they
deem meet, in order to establish and consider
the needs,
requirements and requests of the Dealers, Importers & Exporters,
Manufacturers and Gunsmiths
in respect of the system to be
implemented;”
6.3.4
Any
party to these proceedings may on notice apply to the supervising
judge for an order compelling compliance with this order or
to
interdict non-compliance or such further order or directive. (the
“Court Order”)
2.2
The
1
st
Respondent is the Minister of police cited according
to the Applicant as the nominal head of the South African Police
Services
and the 2
nd
Respondent, the National Commissioner
of the South African Police Services, General K G Sithole, as the
appointed Registrar of
Firearms in terms of s 123 of the Act
(Respondents hereafter only refers to 1
st
and 2
nd
Respondent). The 3
rd
to 5
th
Respondents, are no
longer part of the proceedings in terms of the court order and also
since the Applicant is no longer pursuing
further relief against the
5
th
Respondent. The 6
th
Respondent, that is
State Information Technology Agency (SITA) SOC LTD is only cited as
an interested party with no relief sought
against it.
2.3
Consequent
to the court order, on 24 March 2021, the 1
st
and 2
nd
Respondents, through The State Information Technology Agency (SOC)
Ltd (“SITA”), caused a tender to be advertised for
procurement of a service provider who will “supply, design,
migration, and develop services for the Firearms Control Solution
(FCS) for the South African Police Service (SAPS) to establish a FCS
within a period of thirty-six (36) months”.
2.4
The
Applicant, is opposed to the tender and has alleged that it in terms
of 6.3.4 of the Court order seeking that the tender be
set aside, for
the reason that it was not consulted for it to be able to have an
input on the specifications of the tender bid
,
and the time
lines set out on such consultations not adhered to, alleging further
that:
2.4.1
its
requirement is in compliance with paragraph 3.3 of the Court Order
dated 5 August 2019 that the Respondents to consult with
the
Applicant representatives on the bid specifications prior to the
issue of any subsequent Bid Specification and call for Bids
to be
submitted;
2.4.2
The
Respondents are required to comply with clauses 3.1 and 3.3 of the
court order dated 5 August 2019 by no later than 31 August
2021.
2.4.3
The
matter remains urgent even though the timelines for such proposals
have been extended after the launch of the application.
2.4.4
It
is common cause that the order should be amended to therefore set new
timelines to be met in order to meet the objectives of
the court
order. Both parties made proposals, but do not agree on the exact
dates.
2.5
It
is indeed common cause that the advertising was already delayed as it
was later than 30 August 2020, outside the time periods
as prescribed
in the court order of 5 August 2019.
[1]
The Respondents have already extended the time lines. It is however
also common cause that the order is actually to be amended
to set new
timelines within which the objectives of the order are to be met, the
parties could not agree on specific dates.
2.6
The
issues to be decided being therefore:
2.6.1
Whether
the Application is urgent;
2.6.2
Whether
in terms of Court order of the 5 August 2019 the First and Second
Respondents needed to consult with Applicants before the
bid was
published in order to prepare and circumscribe the scope of the bid
and bid specifications.
2.7
The
1st and 2nd Respondent oppose the Application. Firstly, they deny
that bringing the Application under Rule 6 (12) (b) of this
Honourable Court is justifiable and allege that the Applicant fails
to set forth explicitly the circumstances which is averred
render the
matter urgent and the reasons why the applicant claims that Applicant
could not be afforded substantial redress at a
hearing in due course.
2.8
The
Respondents argue that the applicant has been aware that the first
and or second respondents intended to issue the tender as
far back as
the revised implementation plan was served on it in September 2020
and did not approach the court to halt its issue.
2.9
The
1
st
an 2
nd
Respondent, following a meeting of 7
September 2020 where the Applicant raised concerns about the
publication of a tender, drafted
a memorandum to advise that the 1
st
and 2
nd
Respondent were going ahead with the advertising
of the tender and that the consultations that they seek will be
conducted after
a service provider has been appointed. A memorandum
to that effect was dispatched on 25 January 2021.
2.10
Even
then the Applicant did not approach the court to halt the advertising
of the tender.
2.11
The
Applicant in sub paragraphs 6.60 and 6.61 of its founding affidavit
confirms that the 1
st
and 2
nd
Respondent
indicated that the consultation with applicant will take place after
the service provider has been appointed.
2.12
An
urgent application indeed primarily leads to the abridgment of times
which have been prescribed by the Rules, and a departure
from
established filing and sitting times of the Court. Consequently, the
Respondents argue with reference to
Luna Meubel
case at
page 137 F, that the Applicant must set out facts in its founding
affidavit which, in its opinion, render the matter to
be urgent, and,
secondly, why it cannot get the desired remedy through an ordinary
hearing in due course which it has failed to
do.
2.13
I
have considered the question of the urgency of the Application in the
context of the issues to be decided on the merits and on
the time
lines set out in the court order to be complied with and convinced
that it is necessary that the contrasting understanding
and reading
of the court order requires resolution as a matter of urgency. The
parties have already on their own agreed at relooking
at the
timelines imposed by the order, but that on its own will not resolve
the continue delay.
3.
Interpretation
of the Order
3.1
According
to the Applicant the simple interpretation of paragraph 3.3 of the
Court Order is that consultation must take place before
the bid
specification is determined.
3.2
The
Applicant however further argues that at a meeting held between the
parties on 7 September 2020, it was agreed on behalf of
the 1
st
and 2
nd
Respondents
that the Applicant’s interpretation of the order is correct.
[2]
A
minute of the meeting that is also referred to by the Respondents in
their Answering Affidavit where the issue of consultation
as
envisaged by paragraph 3.3 of the Court Order was discussed is
attached..
3.3
from
paragraphs 48
[3]
the minutes and
discussion reads as follows:
“
48. Mr Hood:
There needs to be a discussion on how theory meets practice. I
suggest that your client talks to our clients. It does
not need to be
a meeting involving lawyers, but your client needs to meet the
industry to see what issues they are experiencing.
I am already.
Putting together a list of issues to discuss with Parliament in this
regard.
49.
Adv
Snyman: They can at least meet with the applicants.
50.
Adv
Mteto: Ok, we take your point about speaking to the applicants and
will put it to our client.
51.
Adv
Snyman: They will be able to meet with the applicants by December.
(before tender is due)
52.
Mr
Hood: This must be done before the design and implementation of the
system, not after. (gave more examples of issues Dealers
face)
53.
Adv
Mpshe:
Ok, we accept
. This explanation has made
it clear that consultation is required during the implementation and
design phase.
54.
Mr
Hood: … I do not see how you can design a system without
having consulted with my client….
55.
Adv
Mpshe: Ok, going back to the consultation, I think that in our
client’s mind, because the court order stated that consultation
must occur ‘if required’, they were misled and were not
under the impression that they need to consult with your client
unless ‘necessary’ and up to this point they did not deem
it necessary. But now, given your explanation, we think it
is
necessary. – for the reasons you have just advanced.
56.
Mr
Hood: To make that easier, because there is a lot of bad feelings
amongst SAPS and my client - A conversation needs to be had
with
those designing the IT system (Rautenbach is one of them), not the
bureaucrats who is at the top because we do not want to
debate
policy. We want solutions to the issues our client face.
57.
Adv
Mpshe: We will accept that name and convey that to client and convey
to them that consultation is required.”
[emphasis
added]
3.4
Applicant
also alleges that on paragraphs 62 of the same minutes the parties,
after having discussed who should meet, Mr Hood asked
for a
timeframe. The minutes continue as follows:
“
62. Mr Hood:
Can we have a timeframe for when you will come back to us about a
meeting? Because we are left with about two months
until November
2020.
63. Adv Mpshe:
We
will discuss with our clients and see when they can do this
.”
[emphasis added]
3.5
According
to the Applicant it was abundantly clear from the minutes that the
agreement in respect of prior consultation and interpretation
of the
court order was reached with the legal representatives of first and
Second Respondents, in so far as the court order was
not clear, from
which they allege the Respondents are now reneging.
3.6
Mr
Snyman argues on behalf of the Applicant that all the above-
mentioned makes it clear that the First and Second Respondents are
bound by the agreement. He points out that the authority of the
legal
representatives to agree to prior consultation is not
challenged by the Respondents, even if the court order does not
provide
for it. The First and Second Respondents are bound thereby.
4
3.7
Finally,
that in so far as the 1
st
and 2
nd
Respondent
envisage that consultation with applicant and other industry players
will take place in phase 7 as outlined in the bid
specification under
paragraph 2.2. there are concerns regarding the efficacy of the
system that its members are going to interface
with once the 2
nd
Respondent puts it in place.
3.8
It
is the Applicant’s argument that if the bid specification is
used to submit bids and a bid is awarded before consultation
with the
Applicant, there is little possibility that the specification and
parameters of the tender will accommodate the Applicant
members’
needs and requirements as well as cover what the
Firearms Control Act
requires
.
3.9
It
is therefore critical that the proper specifications be derived
before it is used to award a tender, then the parameters of the
tender would be correct.
3.10
The
Applicants also argue that, reading the order, it provides for
consultation with the Applicants before the specifications are
determined which it argues is logical as the specifications must
cater for the needs and requirements of the members of the Applicants
in order to connect to the different databases established by the
Registrars of Firearms and vice versa. The Applicant’s
members
will be one of the main users of the system as they will inter alia
have to submit all forms and registers to the 2
nd
Respondent as Registrar.
3.11
It
alleges that its members will suffer prejudice should the process be
allowed to continue without compliance with the order as
it will
result in a system that is not compliant with the legislation or
impractical to work with.
4.
Respondent’s
Answer in relation to Court Order
4.1
The
Respondents allege that this Application works against what the
Applicant initially brought to this Honourable Court. Whilst
the
Respondents in an effort to establish an electronic-connectivity in
compliance with the court order, albeit various obstacles
being
encountered due to the fact that there are various role players in
the matter, such as SITA, have forged ahead to ensure
that there is
progress in the establishment of e-connectivity.
4.2
However,
what the Applicant has brought before this Honourable Court is an
application which will further delay the establishment
of
electronic-connectivity, which the Applicant has alleged the lack
thereof is detrimental to its activities, hence the 1
st
and 2
nd
Respondent are forging ahead to put systems in
place.
4.3
It
is the Respondents case that the Applicant and other members of the
firearm industry/stakeholders will be consulted to ensure
compliance
with the Act and court order.
4.4
Paragraph
3.1 of the court order states that the 1
st
and 2
nd
Respondent shall undertake or cause a bidding process to be
undertaken to secure the services required to give effect to such
bidding process, be concluded and a contractor appointed by no later
than 31 August 2020.
4.5
According
to the Respondents there is no condition in the paragraph to the
effect that the bidding process can only take place after
consultation with the applicant.
4.6
The
Respondents submit that sub paragraphs 3.2 and 3.3 read together
clearly state that the applicant and other industry players
shall be
consulted during the process of design and implementation of the
system as they deem meet.
4.7
As
a result, they allege it has been expressed on several occasions that
the 1
st
and 2
nd
Respondents will consult once
the service provider is appointed. The Applicant has been aware of
this as late as 28 September 2020
and the 1
st
and 2
nd
Respondent re-affirmed their position in a memorandum sent to them in
25 January 2021.
4.8
It
is also their argument that the court order does not specify that the
Applicant and other industry players must be consulted
even during
the tender/bid specification period. The bid specification issued on
24 March 2021 only relates to the appointment
of the service provider
not the specification of the system that will be used to achieve the
ultimate e- connectivity.
4.9
Furthermore,
the Respondents submit that the Applicant’s members are
stakeholders in the firearm industry and have to comply
with the Act,
regulations and policies regarding the Central Firearms Registry.
4.10
Regulation
38(1) of the Firearms Control Regulations, 2004 stipulates that “
The
workstation of a dealer contemplated in section 39(6) of the Act,
must link to the central dealers’ database by way of
software
and an electronic network connectivity that is compatible with the
infrastructure and standards of the South African Police
Service.
”
4.11
The
Respondents allege that the Applicant’s demand to be consulted
with regard to the specification is contrary to the Regulation
that
envisages a scenario wherein the Applicant and other industry players
have to establish a workstation that is compatible with
that of the
SAPS and not the other way round.
4.12
The
Respondents therefore submit that any interpretation of Regulation
38(1) to mean that SAPS’s e-connectivity system must
adapt to
what the applicant and its members and other industry players are
using, will be absurd and not in line with the intention
of the
Firearms Control Act as
well as the Regulations thereto.
Setting aside of the
bid
4.13
In
addition, the Respondents further argue that the Applicant fails to
set the basis in law that permits it to seek an order setting
aside
an administrative action taken by the 1
st
and 2
nd
Respondent.
4.14
Section
6
of Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”)
as well as common law clearly stipulate the instances
in which an
administrative action taken by an organ of state can be taken on
review and be set aside.
4.15
The
applicant has not demonstrated the reason for its relief to have the
administrative decision of the first and second respondents
to be set
aside.
4.16
The
issue therefore to be determined is what exactly was ordered by the
court order, in order to determine whether or not the Respondents
issuing of the tender bid without the alleged consultation was non-
compliant with the terms of the court order therefore justifying
the
setting aside thereof.
5.
Legal
framework
5.1
For
a court order to be complied with, parties on whom the order applies
must know what it requires them to do. Clarity in framing
a court
order also helps the process of enforcing it: see
Eke
v Parsons
(CCT214/14)
[2015] ZACC
30
;
2015 (11) BCLR 1319
(CC);
2016 (3) SA 37
(CC) (29 September 2015
on par 59
.
If
there is no clarity, the proper court to determine the interpretation
to be placed upon a Judgment or order is the court which
made it
(albeit not the same judge). If on a proper interpretation thereof
the meaning thereof remains obscure, ambiguous or otherwise
uncertain, a court may
generally clarify its judgment or order
so as to give effect to its true intention, provided it does not
thereby alter ‘the
sense and substance of the judgment or
order.’
5.2
This
is more so because the order represented the intention of the High
Court and not that of the parties, hence when interpreting
a court
order, the purpose is to ascertain the intention of the Court; see
Finishing
Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and
Others
[2012]
ZASCA 49
;
2013
(2) SA 204
(SCA)
(
Finishing
Touch 163
)
at para 13. See also
Firestone
South Africa (Pty) Ltd v Genticuro AG
1977
(4) SA 298
(A). Also once an agreement is made an order of court it
is an order of court notwithstanding that the making thereof might
have
been by agreement between the parties. The parties’
settlement being novate by operation of law.
Mv
Tirupati
:
Mv Ivory
Tirupati and Another v Badan Urusan Logistik
(
aka
Bulog
)
[2002] ZASCA 155
;
2003 (3) SA 104
(SCA). A court may not grant an
order with an obscure purpose even if it is by agreement. Parties to
litigation should therefore
seek to ensure that the wording of the
conditions of any order granted by the Court are clear and
unambiguous to avoid having to
resort to an analysis of the court’s
order where there are no reasons given.
5.3
In
Eke
,
the
Constitutional Court, with reference to
Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South
Africa Ltd and Others
[2012] ZASCA 49
;
2013 (2) SA 204
(SCA)
(
Finishing Touch 163
) at para 13 and also
Firestone South
Africa (Pty) Ltd v Genticuro AG
1977 (4) SA 298
(A), set out the
well-established test on the interpretation of court orders to be as
follows:
“
The
starting point is to determine the manifest purpose of the order. In
interpreting a judgment or order, the court’s intention
is to
be ascertained primarily from the language of the judgment or order
in accordance with the usual well-known rules relating
to the
interpretation of documents. As in the case of a document, the
judgment or order and the court’s reasons for giving
it must be
read as a whole in order to ascertain its intention.”
5.4
The
principles of interpretation to be applied having been affirmed in
Natal
Joint Municipal Pension Fund v Edumeni Municipality
2012
(4) SA
593
(SCA)
by Wallis JA to be as follows:
[18]..The
present state of the law can be expressed as follows: interpretation
is the process of attributing meaning to the words
use in a document,
be it legislation, some other statutory instrument, or contract,
having regard to the context provided by reading
the particular
provision or provisions in the light of the document as a whole and
the circumstances attendant upon its coming
into existence. Whatever
the nature of the document, consideration must be given to the
language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to
insensible or unbusinesslike
results or undermines the apparent purpose of the document. The
'inevitable point of departure is
the language of the provision
itself' read in context and having regard to the purpose of the
provision and the background to the
preparation and production of the
document.
6.
Analysis
6.1
Section
39 (3) requires an Applicant’s member, that is a dealer, to
keep such registers as may be prescribed and containing
such
information as may be prescribed at the premises specified in the
dealers’ licence. Furthermore, the dealer is then
required to
establish and maintain a workstation which links the registers
referred to in subsection 3 to the central dealers’
database in
the prescribed manner; see s 39 (3) and (6) of the Act.
6.2
In
terms of Regulation 38 (1) the dealers’ workstations are
therefore required to (must) link to the central database through
a
software and an electronic network connectivity that is compatible
with the infrastructure and standards of the SAPS.“
Making
compliance with s 39 (3) and monitoring by the SAPS easier.
6.3
The
purpose for which the order was made, being the issue that was alive
at the time, was to make sure that the Respondents makes
it possible
for the dealers to comply with s 39 (3) by establishing
electronic-network connectivity as envisaged in the provisions
of
s
39
(6) of the
Firearms Control Act of 60
of 2000 (“the Act”)
as read with Regulations 38, 39 and 40 promulgated in terms of the
Act, in order to link the registers
to be kept by the dealers as
referred to in s 39 (3) in the prescribed manner. Reference is also
made to s 40 and 125 Central Firearms
Register therefore requiring
other stakeholders, namely the Manufacturers, Exporters and Importers
Gunsmiths and Firearms Owners
to be also compliant. The Respondents
are required to do so within a period of 38 months from date of
granting of the order.
6.4
In
order to ensure compliance and cohesion, the court instructed the
parties unambiguously, of the steps that were to be taken by
the
Respondents to ensure that the electronic – network
connectivity as envisaged in s 39 (6) is established and the
Applicant
dealer compliance as set out by the law, that the dealer
software and electronic network connectivity is to be compatible with
the infrastructure and standards of the SAPS, is safeguarded. It
sanctioned a consultation, to take place between the Firearms dealers
and the Respondents on what the infrastructure and standard of the
SAPS (as the enforcers of the Act) is to be, therefore getting
clarification of what their software would have to comply with. On
the other hand for the stakeholders be able to indicate their
needs
or requirements and challenges in relation to compliance for
consideration by the Respondents.
6.5
As
the order clearly spells out that the purpose of the consultation was
to establish and consider
the needs, requirements and requests of
the Dealers, Importers & Exporters, Manufacturers and Gunsmiths
in respect of the system to be implemented, which considerations
would certainly be within the confinement of the Act and the
concomitant
Regulations. It was therefore for information gathering
purposes which would then be considered by the Respondents.
6.6
In
accomplishment of the aforementioned objective the court order,
encompassed in simple terms a two staged process, to be embarked
on
and completed by the 1
st
and 2
nd
Respondent in
two separate time frames, as follows:
3.1
Undertake
or cause to be undertaken a bidding process to secure the services
required to give effect to the order, such bidding
process to be
concluded and a contractor appointed by no later than 31 August 2020.
3.2
The
process, design and implementation of the system required to
establish such electronic connectivity shall be completed not later
than 31 July 2022.
6.7
The
requirement that there be consultations with the stakeholders is
specifically stated that it is to take place d
uring
the
process of design, manufacturing and implementation. The court has
put a proviso in clear and simple terms that:
3.3
During
such process, design and implementation the 1
st
and 2
nd
Respondent or their delegated officials must timeously meet with the
Applicants’ representatives and such other representatives
of
the Importers, Manufacturers and Gunsmiths as they deem meet, in
order to establish and consider the needs, requirements and
requests
of the Dealers, Importers & Exporters, Manufacturers and
Gunsmiths in respect of the system to be implemented;”
6.8
The
court separated compliance in respect of the bidding process and the
process, design and implementation of the system and ordered
that the
consultation with the stakeholders happen specifically during the
process of design and implementation, taking into consideration
the
importance of Applicants being informed of how the system is to be
designed and implemented and to be given an opportunity
to put
forward their needs that are to be considered in the specifications
thereof. The Respondents have undertaken to do that
prior to the
beginning of the process of design instead of during as set out in
the court order and therefore in line with what
was intended by the
court order.
6.9
It
is also logical as the service provider or contractor appointed will
still have to be briefed on the process, design and implementation
as
there would be no specifications on the design and implementation
during the bidding process.
6.10
The
issuing of the tender bid for the appointment of the contractor or
service provider without consultation was therefore in line
with the
court order.
7.
Agreement
on the interpretation of the court order
7.1
In
the alternative, the Applicant alleges that if the order did not
envisage the consultations occurring prior to the tender bid
process,
the Respondents had subsequently agreed with the Applicant’s
interpretation of the court order that the consultations
had to
happen before the tender bid. Further that, the agreement is apparent
from the minutes of the meeting that took place following
the order
on 7 September 2020.
7.2
The
Respondent deny that at the meeting it had conceded that that is what
was ordered by the court. Now reading the minutes of 7
September
2020, it becomes apparent that consultation was a point of discussion
between the parties, however as to whether there
was an agreement on
the consultation taking place prior to the bidding process, contrary
to the wording of the order, it is not
evident. On the other hand,
the discussion seems to confirm the court order that the consultation
should be before the design and
implementation of the system. A Mr
Hood on behalf of the Applicants had stated in the meeting that “
This
must be done before the design and implementation of the system, not
after. (gave more examples of issues Dealers face). Upon
which Mr
Mpshe on behalf of the Respondents had responded “
Ok,
we accept
. This explanation has made it clear that
consultation is required during the implementation and design phase
.
Mr Hood then retorted “…
I do not see how you can
design a system without having consulted with my client.
Evidently,
there is no reference of a consultation before the tender bid or
bidding process but prior to the designing thereof.
7.3
It
is obvious that the consultation the Applicants were insisting on was
on the design and implementation of the system as Mr Hood
further
stated that:
A conversation needs to be had with those designing
the IT system.
7.4
The
argument therefore by Mr Snyman for the Applicant that it was
abundantly clear from the minutes that a different agreement in
respect of prior consultation and interpretation of the court order
was reached with the legal representatives of 1
st
and 2
nd
Respondents in so far as the court order was not clear, from which
they allege the Respondents are now reneging has no merit.
7.5
Mr Snyman argues further that such an agreement exists and is
binding on the First and Second Respondents. He points out that the
authority of the legal representatives to agree to prior consultation
is not challenged by the Respondents, even if the court order
does
not provide for it. However, there is no agreement to consultation
taking place prior to the tender bid, but, as it could
be made out
from the order and the minute, such was to take place prior the
design and the implementation, that is what is binding
to the
Respondents.
7.6
As
a result, the issuing by the Respondents of the tender bid for the
appointment of the contractor, without prior consultation
did not
result in the contravention of the Court Order. Consultation is
according to the court order meant to take place prior
the design and
implementation of the system. Therefore the Plaintiff has failed to
make case for the setting aside of the tender
bid as per prayer 1 and
2.
7.7
The
issue of whether or not the Applicant has used the proper procedure
to seek the setting aside of the tender bid does not arise.
However
paragraph 6.3.2 indicates the steps a party that is aggrieved by the
failure of the other party to comply with the order
may take, inter
alia, by applying for an order compelling compliance or to interdict
non- compliance or such further order or directive.
7.8
In
relation to the time periods within which compliance is to be due,
the parties are agreed that they should be extended to accommodate
the various delaying factors indicated by the parties and also the
time period that was expended on litigation. The Application
was
heard on 7 June 2021 as a result a further period of a month should
be added to the proposed date.
8.
Under
the circumstances the following order is made:
1.
The
Applicant’s Application to set aside the Respondents’
tender bid of 24 March 2021, calling for the bid with Specification
No. RFB 2421-2020 is dismissed.
2.
Clause
3.1 of the court order dated 5 August 2019 is amended and the
Respondents are ordered to comply with the order by no later
than 31
September 2021.
3.
Clause
3.2 of the said court order is hereby amended and implementation to
be by not later than 31 July 2023.
4.
Consultation
as per paragraph 3.3 of the Court order to take place as per court
order prior to the design and implementation of
the system upon which
the needs and requirements of the dealers will be established for
consideration by the Respondents.
5.
The
Applicants to pay the costs of the Application.
N
V KHUMALO
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION
For
the Applicant: Adv C Snyman SC
Instructed
by: MJ Hood and Associates Ref: M Hood/RM/S050
Email:martin@mjhood.co.za/jordanL@mjhood.co.za
For
the Respondent: Adv Mpshe M J SC
Adv N M Mteto
Instructed
by: State Attorney
Pretoria
Ref: 3539/18/Z22 N QONGQO
Email:
naqongqo@justice.gov.za
PER:
ADV.
M J MPSHE SC
HIGH
COURT CHAMBERS
PRETORIA
ADV.
N S MTETO
DUMA
NOKWE CHAMBERS
SANDTON
01
June 2021
[1]
CaseLines 002 – 1 to 002 – 8.
[2]
CaseLines 012 – 10 to 012 – 11, para 36.
[3]
CaseLines 011 – 33, para 48 to 57.