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[2021] ZAGPJHC 494
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Siemens (Pty) Ltd v Eskom Holdings (SOC) Ltd and Another (29841/2019) [2021] ZAGPJHC 494 (5 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE:
5 October 2021
Case No: 29841 / 2019
In
the matter between:
SIEMENS
(PTY)
LTD
Applicant
and
ESKOM
HOLDINGS (SOC)
LTD
First Respondent
SENTA
SQUARE (PTY)
LTD
Second Respondent
JUDGMENT
ON REMEDY
WILSON
AJ
:
1
On 16 August 2021, I declared
unlawful a decision taken by the first respondent (“Eskom”)
to disqualify the applicant
(“Siemens”) from a tender
bidding process for maintenance work at Camden Power Station, and to
award the work to the
second respondent (“Senta Square”).
Because it was not clear to me what the practical effect of the
declaration would
be on Eskom’s capacity to generate power, I
suspended that order pending further submissions on the just and
equitable remedy
to follow on the declaration of unlawfulness.
2
The parties subsequently came to an
agreement on the remedy to be granted, and I intend to make an order
substantially in terms
of the agreement reached. It was accordingly
not necessary to convene a further hearing on remedy, which I had
originally set down
for 13 September 2021.
3
I should record, however, that the
agreement reached reflects the uncontested fact that to set the
tender awarded to Senta Square
aside at this stage may well
debilitate Camden Power Station’s generation capacity, and
result in significant load-shedding.
Unlawful though the award of the
tender to Senta Square was, the parties have – quite properly –
agreed that the public
interest in continued power generation at
Camden Power Station outweighs the need to grant immediately
effective relief for the
unlawfulness of Eskom’s conduct.
4
The effect of the relief agreed
between the parties, and which I shall grant, is that the declaration
of unlawfulness will remain
suspended until Senta Square’s
contract runs its course. That contract will not be renewed, and a
new tender process will
be run to determine how the maintenance
services originally put out to tender will be provided after the end
of the contract. If,
and only if, there are truly exigent and
unforeseen circumstances that necessitate further suspending the
declaration of unlawfulness,
Eskom may apply for such an extension in
advance, and that extension may be granted on good cause shown.
5
The agreed relief leaves the costs
order I granted on 16 August 2021 intact, but provides for each party
to pay its own costs between
then and now.
6
For all these reasons, I make the
following order –
1.
Paragraph 1 of the order handed down on
16
August 2021
declaring the award of the
contract for
the provision of control and
instrumentation maintenance services at Camden Power Station (“the
services”)
to the second respondent
to be unlawful, is suspended until 1 March 2022.
2.
Subject to paragraph 3 below, the second
respondent is directed to cease rendering the services at Camden
Power Station on 28 February
2022.
3.
In the event that unforeseen circumstances
beyond the reasonable control of the first respondent cause a delay
in the tender process
for the award of a new contract to provide the
services, and provided that the first respondent shall first obtain
the prior approval
of this court on good cause shown through written
submissions furnished to the court and copied to the applicant, not
later than
18 February 2022, the second respondent may continue to
render the services on and after 1 March 2022, pending the
appointment
of the new service provider, if the court so directs.
4.
Each party shall pay its own costs arising
between 17 August 2021 and 5 October 2021
.
S
D J WILSON
Acting
Judge of the High Court
This
judgment was prepared and authored by Acting Judge Wilson. 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. The date for hand-down
is deemed to
be 5 October 2021.
DECIDED
ON: 5 October
2021
For
the Applicant:
J Wasserman SC
Instructed by Pinsent
Masons Inc
For
the Respondent:
T Govender
Instructed by FY Renqe
Inc