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[2021] ZAGPJHC 671
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Maopeng Electrical (Pty) Ltd v Joburg Market (SOC) Ltd and Another (21/22210) [2021] ZAGPJHC 671 (20 August 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNEBSURG
Case number: 21/22210
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
DATE:
20 AUGUST 2021
In the matter between:
MAOPENG
ELECTRICAL (PTY) LTD
Applicant
and
JOBURG
MARKET (SOC)
LTD
First
Respondent
BASH
ELECTRICAL
CC
Second
Respondent
JUDGMENT
SLON AJ
1.
The first respondent is an entity wholly
owned by the Johannesburg Metropolitan Municipality, and was formerly
known as the Johannesburg
Fresh Produce Market. It operates in City
Deep. It is (or is part of) an ‘organ of state’ in the
local sphere of government
and is subject to the ‘Procurement’
provisions of section 217 of the Constitution and the national
legislation promulgated
under section 217(3) thereof, such as the
Municipal Finance Management Act No 56 of 2003 and the Preferential
Procurement Policy
Framework Act No 5 of 2005, and the regulations in
turn published thereunder. Its decisions comprise administrative
action as defined
under the Promotion of Administrative Justice Act
No 3 of 2000 (‘PAJA’).
2.
The vendors who trade at the market in City
Deep do so from individual stalls which are serviced with
electricity. The applicant
and the second respondent are in the
business of supplying and installing electricity meters. They are
competitors in that market.
3.
On 18 March 2021, the second respondent was
appointed as a service provider to the first respondent pursuant to
its submission of
a successful bid in response to a tender invitation
for the supply, installation and commissioning of smart electricity
meters.
These would be installed in each vendor’s stall at the
market who would then be charged for their use of electricity
accordingly.
The service level agreement in regard thereto was signed
by respondents on 28 April 2021. It is stated to have become on 1
April
2021 and to have a currency of 27 months; the total service fee
provided for therein is R44 258 309.53, including VAT (‘the
SLA’).
4.
As will appear shortly below, the tender
invitation in response to which the second respondent successfully
bid, referred to above,
was one which succeeded an earlier tender
invitation from the first respondent for exactly the same services,
in which the applicant
participated but failed. I will refer to this
tender invitation as ‘the first tender’ and to the tender
invitation
in which the second respondent was successful as ‘the
second tender’, although the second tender was in fact merely
a
repeat or reissuing of the first.
5.
Before me, the applicant seeks an interim
interdict under Part A of the relief claimed in its notice of motion
against the award
and implementation of the tender, and the
conclusion or performance of any agreement pursuant thereto, pending
a review under rule
53 and the provisions of PAJA by way of Part B of
the relief to be heard at a later stage. I see from the documents
filed of record
and understand from Mr Hollander, who appeared for
the applicant, that the papers and record for purpose of Part B are
at an advanced
stage, and that an expedited date for hearing has been
or will be applied for in that regard. Save in one instance as will
appear
further below, I have not had regard to the papers relevant to
Part B of the relief.
6.
The application is dated 4 May 2021. The
applicant initially enrolled the Part A relief for hearing as a
matter of urgency, but
the matter was struck off the roll for lack of
urgency. At that stage, the applicant avers that it did not know of
the fact that
the SLA had been concluded; the relief stated in Part A
of the notice of motion is therefore of wider import than can now be
granted.
7.
Save in one respect, the facts pertaining
to the first tender are largely common cause and may be briefly
summarized as follows.
8.
The first tender was advertised by the
first respondent on 15 September 2020 and specified a closing date of
15 October 2020.
9.
The applicant, in the person of Mr Sam
Moerane, who is also the deponent to the applicant’s papers,
submitted its bid which
was then evaluated with 18 other such bids,
eventually making its way to the first respondent’s Bid
Evaluation Committee
(‘BEC’) and then its Bid
Adjudication Committee (‘BAC’), both of whose reports are
put up by the applicant
in its papers.
10.
The BAC report shows that:
10.1.
15 bidders failed to comply with certain
minimum requirements, amongst whose number, incidentally, was the
second respondent for
lack of a warranty;
10.2.
the applicant was the highest scoring
bidder at 100 points and a price of R41 658 750.00;
10.3.
an entity called Volt Consulting Engineers
(‘Volt’) appears to come in second, also with 100 points,
at a price of R45
896 436.75;
10.4.
a recommendation was made to the CEO of the
first respondent, Ms Leanne Williams ‘to consider awarding the
bid’ to the
applicant.
11.
I understand from the papers before me that
the process described above was the usual one in terms of which the
relevant committee,
having evaluated all the bids, then makes a
recommendation to the CEO to appoint the bidder which best complies
with all the relevant
requirements. As will be seen, I need not
venture into any but one of these.
12.
Ms Williams did not accept the
recommendation of BAC allegedly for the sole reason mentioned below,
and rejected the applicant’s
bid.
13.
No award was made pursuant to the first
tender. It was decided instead to readvertise the tender in the form
of the second tender
on 9 December 2020, with a closing date of 22
December 2020. The second respondent was successful therein and was
later engaged
by way of the SLA referred to above.
14.
The answering affidavit of the first
respondent is surprisingly terse as regards all of these matters. The
facts pertaining to them
are peculiarly within its own knowledge and
ought to have been fully canvassed.
15.
The chief omission is that there is no
affidavit from Ms Williams to explain her conduct in declining to
endorse the recommendation
of BAC. There is also no elucidation as to
why such explanation from her could not be furnished. The first
respondent’s deponent,
Mr Boy Ngubo, states that he was
appointed the acting CEO after Ms Williams was suspended from her
duties on 5 May 2021. Despite
that, she remains to date employed by
the first respondent. There is nothing on the papers to suggest that
she was not available
to give evidence on affidavit, or that she
could not be compelled to do so by her employer. The reasons for her
suspension, and
the circumstances surrounding it, are not stated
either. The two letters under her hand which are attached to the
applicant’s
papers are of little, if any, assistance to the
first respondent.
16.
Nor, as Mr Hollander correctly pointed out,
is there any affidavit from any member of BEC or BAC whose evidence
for the first respondent
may also have assisted the Court, not to
mention its own case. Similarly, there is no suggestion that any of
these members is not
available or could not be compelled, and there
is no explanation for their absence.
17.
An
inference adverse to the first respondent may, in my view, reasonably
be drawn in regard to these significant failings.
[1]
For an organ of state dutybound to act fairly, rationally and
transparently, this conduct is, to put it charitably, regrettable.
18.
The first respondent’s defence on
these facts rests on what appears to be hearsay from Ngubo (he does
not say that he himself
witnessed, or participated in, these events)
that, after Williams received recommendation of BAC:
18.1.
she requested sight of the tender documents
submitted by the applicant which she then studied;
18.2.
two days later she requested a meeting with
BEC and BAC, which was held on 1 December 2020, at which she raised a
‘non-compliance
issue’ with the applicant’s tender;
18.3.
that issue was that the applicant had not
submitted as part of its bid a public liability insurance certificate
or letter of intent
of at least R5 million, as was required, and was
immediately therefore disqualified.
19.
The applicant, continues Mr Ngubo, had
submitted the wrong certificate, one of professional (not public)
liability insurance; and
both BEC and BAC had therefore acted in
error. He attaches a document which he says is the latter
certificate.
20.
In reply, the applicant states that the
document so attached could not have been part of its bid since it
bears a stamp from the
Dawn Park Police Station dated 16 December
2020, whereas its bid was timeously submitted before the closing date
of 15 October
2020.
21.
It attaches for that purpose what it claims
is a copy its entire tender submission prior to 15 October 2020, the
very last document
of which is a public liability insurance document
issued by Auto & General on 18 September and date stamped by the
SAPS on
13 October 2020. The certificate attached by the first
respondent, the applicant says, is not the same certificate as that
attached
to its bid; it was the wrong certificate (
viz
for professional (not public) liability
insurance) in error submitted by the applicant later in response to
the second tender.
22.
On the applicant’s version, in order
to understand how it came about that the first respondent was in
possession of a professional
liability insurance certificate bearing
an SAPS stamp date of 16 December 2020, it is necessary to consider a
lengthy confession
of Mr Moerane in the founding affidavit, some of
which is disputed by the first respondent and all of which is roundly
castigated
at length by the second as evidencing criminal conduct
such as fraud, corruption and collusion. It is not necessary, in my
view,
for me to traverse all the minutiae deposed to by the parties
in this regard, much of which bristles with irrelevant disputes that
have largely served only to lengthen the papers and increase
unnecessarily the costs.
23.
In short, the matter concerns the
applicant’s conduct when it discovered that the first tender
was to be readvertised in the
form of the second, and concluded that
there was no hope of success in regard to its first bid. Instead of
launching review proceedings
at that stage, as it should have done,
with or without an application for interim relief pending such
review, the applicant, on
its own version surreptitiously engaged
with representatives of the first respondent to submit a bid in
response to the second
tender, thereby using the same documents which
it had submitted for the first, but at a time some two months after
the closing
date stipulated for the second tender.
24.
Mr Moerane alleges that, in mid-February
2021, he was advised by an employee of the first respondent, whom he
met one evening by
arrangement at a petrol station in Florida, that,
in order to submit a successful bid in response to the second tender,
he would
have to increase the applicant’s original tender price
by some R2 million, and procure that the documents therein, which
were required to be certified, be back-dated to 16 December 2020 by
the SAPS. This would have included the necessary public liability
certificate. Mr Moerane did, he sheepishly admits, as he was told,
and submitted a response to the second tender in these terms.
He was
then advised that his ‘new’ bid had been placed with the
bids of the other hopefuls, to await the first respondent’s
evaluation and decision. Unbeknown to him at the time, however, the
insurance certificate submitted with the second bid, was by
his own
error, the wrong one: it was the professional liability insurance
certificate which now bore the SAPS date stamp of 16
December 2020.
25.
He was then advised, in late March 2021,
that the applicant had failed and that second respondent had been
successful.
26.
Those, then, broadly speaking, are the
facts upon which I believe this application is to be decided.
27.
I
need not repeat the venerable requirements for interim relief.
[2]
I turn first to a consideration of whether the applicant has
established a
prima
facie
right.
28.
The respondents argue forcefully that Mr
Moerane is guilty on his own version of a host of criminal conduct.
They argue that the
applicant, through him, comes to Court with dirty
hands such that a review could never succeed, and that I should apply
some form
of the
par delictum
rule
so as to disentitle the applicant from any relief claimed.
29.
There is indeed cause for concern, if not
alarm, at his conduct. Indeed, one gets the impression that there is
a great deal more
going on underneath the surface of the allegations
and counter-allegations in the papers as regards all three of the
parties. I
doubt that am the first, or that I will be last, person
sitting on the bench to say that. There can be little question but
that
Mr Moerane’s conduct was wholly irregular and unacceptable
as regards the second tender. The fact that he now, when it suits
him
for an expedient purpose, throws up his hands and proclaims
mea
culpa
can in no way absolve him.
30.
Although Mr Bava SC sought to characterize
the misconduct of Mr Moerane as a vitiation of any
prima
facie
right the applicant may otherwise
have established, yet neither he nor Mr Baloyi, for the first
respondent, was able to point specifically
to any real or clear nexus
between the misconduct of the applicant in regard to the second
tender and the merits of its case in
relation to the first.
31.
In regard to the issue of the certificate,
Mr Bava SC referred to a ‘contents’ page pertaining to
the documents allegedly
delivered by the applicant in response to the
first tender, and which were filed by the first respondent as part of
the record
under rule 53 for purposes of the review application. The
contents page thereof states ‘professional indemnity
certificate’.
From this he extrapolates that the applicant
itself thus listed and described the certificate contained in its bid
under the first
tender – which was not the correct certificate
as required.
32.
Allied to this, Mr Bava SC presses on me
the fact that the applicant’s conduct had the effect of
corrupting (or, as I understood
him, was intended to corrupt) the
very record upon which the review is to be determined, thus rendering
it unreliable; he submitted
therefore that the applicant should not
be granted any relief.
33.
The first submission, in my view, is not
entirely reliable since there is no evidence before me as to the
manner in which that index
was compiled or, indeed, who compiled it.
There is obviously nothing in the affidavits before me as to that
matter. That submission
is therefore of little assistance. As to the
second submission, I do not think that it is a matter which I can
determine at this
stage, since the full record is not before me and,
for present purposes, need not be. In any event, I cannot say, on the
facts
before me, whether or not the record was corrupted to one
degree or another, and if so, whether the applicant was to blame
therefor
wholly or in part. That question is best left, in my view,
to the Court hearing the review.
34.
In his heads of argument Mr Bava SC
suggests that the applicant, in submitting a bid pursuant to the
second tender, thereby waived
any rights it may have had under the
first tender, thus rendering the entire review application a nullity.
He did not pursue this
point in argument – wisely I think,
since there is hardly sufficient evidence on the papers to show such
a waiver on the
part of the applicant, or to justify the contended
for result.
35.
Those, I believe, were the highwater marks
of the case for the respondents.
36.
I have already set out my views regarding
the unsatisfactory rendition of the conduct of Ms Williams in
relation to the BEC and
BAC reports. If indeed the wrong certificate
was attached by the applicant to the first bid, how could it be that
neither BEC nor
BAC apprehended this at a much earlier stage? Their
reports evidence a methodical and step-by-step evaluation and
exclusion process.
37.
The need to have readvertised the tender at
all has also not been explained by the first respondent. Why, one
wonders, was the second
candidate in line for the award of the first
tender, Volt, not simply promoted in the place of the applicant, had
the latter’s
bid indeed been non-compliant? There are
intimations on the applicant’s papers that there is some sort
of irregular relationship
between the respondents which would explain
some of these peculiar features. There is nothing here of sufficient
weight, however,
to have a bearing on my decision.
38.
The explanation by the applicant of the
genesis of the insurance certificate put up by the respondent,
although affected by the
circumstances in which the scenario unfolded
and misconduct of the applicant in that regard as to the second
tender, is, in my
view, yet not sufficiently tainted or improbable in
all the circumstances to be rejected at this stage of the dispute.
39.
One cannot, in my view, escape the fact
that the conduct of the first respondent in rejecting the applicant’s
bid in response
to the first tender has not been explained
sufficiently such that it may be held to rebut the relatively clear
inferences sought
to be drawn by the applicant in seeking to
establish its
prima facie
right.
40.
On
the strength of the facts averred by the applicant together with the
facts, such as they are, set out by the respondents which
are not or
cannot be disputed, on the whole it seems to me that the inherent
probabilities are such that the applicant should obtain
relief in the
main review application under one or more of the provisions of PAJA
on which it intends to rely. No serious doubt,
in my view, is thrown
upon the applicant’s case by the facts set up in contradiction
by either of the respondents.
[3]
41.
Not without some measure of discomfort at
the skullduggery admitted by the applicant as regards the second
tender, but with the
consolation that an expedited date for the
review is to be obtained, as I believe it should since this matter
concerns the expenditure
of public funds, I have concluded that, for
the purposes of interim relief, the applicant has demonstrated a
prima facie
right, even if open to some doubt.
42.
As to the other three requirements for the
interim relief, there is nothing of any material significance before
me out of the mouth
of either respondent to contradict the
applicant’s largely predictable averments that:
42.1.
it entertains a reasonable apprehension of
harm should the interdict not be granted in so far as the
continuation of the performance
of the SLA would render its position
untenable by the time that the review application is determined;
42.2.
it has no other satisfactory remedy in the
alternative to the interim relief; and
42.3.
the balance of convenience lies in its
favour in all the circumstances.
43.
In regard to these three requirements, the
respondents are extremely reserved, almost silent, such that the
applicant’s contentions
go largely undisputed, although some of
the applicant’s allegations in this regard are denied by the
first respondent –
but baldly. One accepts that the answering
affidavits were deposed to under urgent time constraints as early as
May 2021, and that
they understandably expend much energy in opposing
urgency, but there is essentially nothing therein for me to cling to
in regard
to hard fact. Neither of the respondents sought to deliver
any supplementary papers in regard to these fundamental
considerations.
44.
The sum total of what the first respondent
says is that the SLA has already been concluded and that the second
respondent has commenced
with the provision of services thereunder,
but states nothing further as to any prejudice that may ensue if the
interim relief
were to be granted.
45.
The second respondent’s answering
affidavit contains a ‘disclaimer’ for not dealing with
the applicant’s
allegations
seriatim
.
While one can readily understand its frustration as an apparently
innocent victim of the first respondent’s conduct, there
is a
complete lack of any material as regards the ordinary requirements
for interim relief. Instead, it pumps great energy into
its
complaints about the applicant’s collusion regarding the second
tender, and gets side-tracked into no fewer than four
points in
limine
(not to mention an objection elsewhere based on a minor technicality
in the applicant’s a notice under rule 35(14) for the
production of the obviously relevant SLA) about matters such as the
applicant’s
locus standi
and the non-joinder of Mr Ngubo and Ms Lephadi (the alleged nocturnal
interlocutor of the Florida petrol station referred to above),
none
of which, in my view, has even the slightest merit.
46.
I accordingly find that the applicant has
satisfied the requirements for interim relief and is entitled to the
crux of what is sought
in Part A of the notice of motion.
47.
I requested Mr Hollander to upload a draft
order taking into account the matter referred to in paragraph 6
hereof with which the
applicant would be content should I grant
interim relief. The draft order so uploaded, more than a week after
the hearing, seeks
to interdict the respondents from ‘
implementing
the awarding of a tender … including the performance of any
formal agreements pertaining to the provisions of
the goods and
services contemplated by the tender and/or the provision of such
goods and services.
’
48.
In my view, however, the award of the
tender has already been implemented by reason of the conclusion of
the SLA, and so is not
open to being interdicted. I am also not
certain what is meant in law by the term ‘formal agreements’.
I have accordingly
made appropriate amendments and refinements to the
order which I grant as appears below. They affect neither the
substance of the
relief originally claimed nor that suggested in the
draft order, and do not prejudice the respondents.
49.
The order is as follows:
(1)
Pending the determination of the
review sought in Part B of the applicant’s notice of motion
dated 4 May 2021, the respondents
are interdicted from further
implementing or continuing to perform the service level agreement
concluded between them on 28 April
2021 (‘the SLA’),
pursuant to the award to the second respondent of the first
respondent’s tender with RFB number
FIN-CP-020-2020-2021 (‘the
tender’), or any other agreement between them in respect of the
provision of the goods and
services contemplated by the SLA or by the
tender;
(2)
The costs pertaining to the relief
sought in Part A of the notice of motion are reserved for
determination by the Court which determines
the relief sought in Part
B thereof.
B M SLON
Acting Judge of the High
Court
Gauteng Local Division,
Johannesburg
This
judgment was prepared and authored by Acting Judge Slon. It is handed
down electronically by circulation to the parties or
their legal
representatives by email and by uploading it to the electronic file
of this matter on Caselines.
HEARD
ON:
3 August 2021
DECIDED
ON:
19-20 August 2021
HANDED
DOWN ON:
20 August
2021
For
the Applicant:
Mr L Hollander
Instructed
by:
Faber Goertz Ellis Austin Inc
For
the First Respondent:
Mr F Baloyi
Instructed
by:
Raphela Attorneys
For
the Second Respondent: Mr A
Bava SC
Instructed
by:
ST (Sikander Tayob) Attorneys
[1]
cf
Elgin-Fireclays
Ltd v Webb
1947 (4) SA 744
(A) at 749-750
[2]
Setlogelo
v Setlogelo
1914 AD 221
at 227;
Webster
v Mitchell
1948 (1) SA 1186
(W); City of
Tshwane
Metropolitan Municipality v Afriforum & Another
2016 (6) SA 279
(CC) at para [49]
[3]
Gool
v Minister of Justice & Another
1955
(2) SA 682
(C) at 688B-F;
Simon
NO v Operations of Europe AB & Others
[1998] ZASCA 79
;
1999 (1) SA 217
(SCA) at 228G. This is the age-old test for which
authority is hardly required.