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2020
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[2020] ZALMPPHC 96
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Mabotwane Security Services CC v Sekhukhune District Municipality and Others (2425/2020) [2020] ZALMPPHC 96 (8 September 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
NO
/YES
(2)
OF
INTEREST TO OTHER JUDGES:
NO/
YES
(3)
REVISED.
CASE
NO: 2425/2020
In
the matter between:
MABOTWANE
SECURITY SERVICES CC
APPLICANT
AND
THE
SEKHUKHUNE DISTRICT
MUNICIPALITY
FIRST RESPONDENT
MOGOLA
SECURITY & CLEANING
SECOND RESPONDENT
TUBATSE
SECURITY SERVICE
(PTY)
LIMITED
THIRD RESPONDENT
SESANE
PROJECTS CC
FOURTH RESPONDENT
THE
FETAKGOMO TUBATSE LOCAL
MUNICIPALITY
FIFTH RESPONDENT
Summary:
Civil procedure – urgent application – applicant required
to set forth explicitly facts and reasons for urgency
and reasons why
substantial redress could not be available at a hearing in due course
– rule 6 (12) (b) uniform rules –
Insertion of these
requirements by law giver not an intended surplusage – a mere
subjective perception by applicant for own
convenience that matter is
urgent, not reason to elevate it as urgent – more is required
to meet Rule 6 (12) threshold -
in every case, court required
to evaluate whether explanation proferred for delay is
reasonable – eg. An attempt to
settle dispute a classic example
– held,
in casu,
delay was not only unreasonable, but
self-manufactured – held further – application struck off
roll with costs.
JUDGMENT
MG
PHATUDI J
[1]
This matter found its way to this court by way of urgent review
application. The applicant seeks an
order to review and set
aside the decision of the first respondent to award Tender no:
SK08/3/1-04/2019/ 2020 (“the Tender”)
to the third
respondent.
1.1 The
tender is in essence the rendering of security services to Cluster 1,
being Fetakgomo local Municipality.
1.2
Full prayers as contained in the notice of motion are set out as
follows:-
“
1.2.1 That this
application be 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 be granted to the applicant in respect of the
non-compliance with the prescribed time
periods, forms and service;
1.2.2 That the decision
of the first respondent to award Tender SK08/3/1-04/2019/2020 in
respect of Cluster 1 (Fetakgomo Tubatse
Local Municipality) (“the
Tender”) to the third respondent be declared constitutionally
invalid and set aside;
1.2.3 That any agreement
between the first respondent and the third respondent pursuant to the
awarding of the Tender, be set aside;
1.2.4 That the tender be
awarded to the applicant;
1.2.5 That the first
respondent be ordered to pay the applicant’s costs,
alternatively, and only in the event that the application
is opposed
by the third respondent, that the first and third respondents jointly
and severally, the one paying the other to be
absolved, be ordered to
pay the applicant’s costs.
1.3
The first, third and fifth respondents are opposing the urgency of
the application. The matter
was, of course, heard as a
special urgent motion pursuant to Makgoba JP’s directives,
after the hearing of preliminary arguments
on 26 May 2020.
[2]
This matter was then enrolled for hearing on 03 June 2020 before me
as a special urgent motion since
from the 26 May 2020, (initial
urgent court roll) it never lost its space on the urgent court roll.
FACTUAL BACKGROUND:
[3]
The first respondent on 06 October 2019 issued an invitation to the
public to make an offer to participate
in the tender for provision of
physical security for a period of three (3) years, under Bid No:
SK-8/3/1 – 04/2019/2020 for
duration of 3 years.
3.1
This tender it appears, was for the provision of security services in
respect of four (4) Clusters located
within Sekhukhune District
Municipality, (“SDM”) the first respondent herein.
The Clusters were in terms of the
tender document the following:-
3.1.1 Cluster 1:
Fetakgomo – Tubatse Local Municipality;
3.1.2
Cluster 2: Elias Motsoaledi Local Municipality;
3.2.3
Cluster 3: Makhuduthamaga Local Municipality;
3.1.4Cluster
4: Sekhukhune District Municipality.
3.2
It appears further from the bid document that even thou the “bid
called for proposals in respect of
all four Clusters, “
no
successful bidder shall be considered or awarded a contract for more
than one cluster”
[1]
3.3
It is common cause that the applicant like other business entities
participated in the bids, in particular,
in respect of all Clusters.
If successful, the award could only be made in respect of one cluster
as stipulated
ex facie
the tender document. Despite
participating in bidding in respect of all clusters, the applicant’s
bidding was unsuccessful.
The tenders were awarded to the
second to fourth respondents.
3.4
The applicant, notably, takes issue against the decision by the first
respondent (“SDM”) to have
awarded the security tender in
respect of Clusters 1 and 3, respectfully, to the third respondent.
[4]
It was this decision, which the applicant contended that it offended
the provisions of Clauses or paragraphs
6.2 and 6.3 of the Security
Tender document. The relevant clauses or paragraphs stipulated
as follows:-
“
6.2.
Respondents are advised that this tender will be
awarded
to four (4) preferred security services providers as per the
clusters.
6.3
.Respondents are allowed to bid for all the clusters if they wish to,
and if they are found
to be suitable, will only be appointed for a
single (1) cluster”.
[5]
Additionally, the tender document also impelled prospective bidders
to comply with mandatory requirements
in relation to Cluster 1 as per
paragraphs 3.1.2
of the bid document.
I point out that they are quiet
extensive.
[2]
I for that
reason consider it unnecessary for present purposes to set them in
detail herein. It suffices however to
mention, that same being
required to have been captured in a compact Disc (CD), the third
respondent allegedly failed to meet all
the mandatory requirements
referred to.
[6]
Be that as it may, it was the decision by the first respondent to
award the security contract to the
third respondent in the manner at
variance with the clauses to which reference is made, [para 4 above]
that triggered the present
urgent review application. A closer
reading of the relief sought in the application amounts, to my mind,
to applicant seeking
a final relief in respect of the declaration of
Constitutional invalidity and subsequently the setting aside of the
disputed administrative
action. The applicant in
addition, seeks final relief in setting aside “any agreement”
entered into by
and between the first and third respondent pursuant
to the awarding of the contested tender.
THE ISSUE:
[7]
In view of the fact that the application had since been allocated for
hearing as a special urgent motion,
I consider it apposite therefore
to determine the merits of its urgency.
[8]
The issue before court on 03 June 2020 when the matter was called,
was whether or not the review application
was urgent within the
meaning of rule 6 (12) (a) and (b) of the Uniform Rules of Court
(“
the rules”)
8.1
This question, I venture to suggest, may be determined upon a
consideration of the history and factual background
prior to the
launching of the application.
8.2
I have already set out the relevant background as laid to bear in the
founding papers. (para [3] and [4],
above)
[9]
The applicant‘s deponent in support of the alleged urgency of
the matter, and on own version,
stated that:
“
On
31 January 2020 the applicant was informed that it should vacate the
site to enable the third respondent to commence with its
security
services. It was only after I made certain enquiries that I
became aware of the award of the Security Tender to
the second, third
and fourth respondents.
[3]
”
[10]
My understanding of the aforegoing statement is simply that having
made “certain enquiries” the applicant
became aware of
the fact that the security bid in question had been awarded to the
second, third and fourth respondents.
Crucially, the applicant
was “informed” on 30 January 2020 to vacate the site to
which he rendered security services
to the fifth respondent for the
past six years or so before. I assume without deciding
that the information to vacate
the site was either disseminated to
applicant by the first respondent, or alternatively, by authorities
responsible for Cluster
1.
[11]
Possessed with this information as and from 30 January 2020,
applicant for some obscure reasons, opted to launch
the application
on “urgent” basis only on 20 March 2020.
11.1
The applicant, despite being informed to vacate the said site, and
later knowing that it had lost the bid to second,
third ,fourth
and fifth respondents, decided to consult its attorneys of record on
Wednesday, 08 March 2020, and somewhat in explicably
so, to consult
counsel on Friday 06 March 2020. I find the arrangement of
dates and the sequence of events here somewhat
strange and illogical.
11.2
Be that as it may, if follows that it took the applicant some five
(5) ordinary weeks from January 2020, only to consult
with chosen
counsel on Friday 06 March 2020 at which occasion, “
the
decision was taken to immediately proceed with launching of an urgent
review application.”
[12]
The five weeks period leading to prior 20 March 2020 was not in my
view, covered and is unaccounted for.
There is a
lacuna
that required a comprehensive explanation by
the applicant for the inordinate delay.
[13]
The applicant’s version in its founding affidavit
[4]
that if the application was launched in the normal course for hearing
in due course, would allow the first respondent to execute
the
Security Tender in favour of the third respondent (Cluster 1) is
something which, in my view, if the applicant seriously viewed
as a
mischief, would have promptly and without undue haste, decided to
seek an injunction against the first respondent and forthwith
also
sought a declaration of constitutional invalidity. This
regrettably, applicant delayed for five weeks before seeking
relief
as it did.
If there was any urgency
in the matter as alleged, this is but a classic example of what I may
term a
self-manufactured
urgency.
[14]
The reasons for the urgency alleged would have had substance only if
the interim urgent application was brought
much earlier and perhaps
in parts. Part A, being interim urgent interdict and in part B,
a review application and the setting
aside of the impugned decision.
[15]
As matters stand in the petition and the prayers sought therein,
clearly, the application in prayers 2,3 and 4,
seeks finality in
respect thereof. These prayers, in essence, seek so-called
“substitution orders”.
[16]
As already shown, (para: 1 (1.3)) above the second to fifth
respondents are opposing the urgency of the matter.
LEGAL FRAMEWORK:
[15]
Urgent applications in a High Court a regulated by the provisions of
rule 6 (12) of the rules of court Rule 6 (12)
(b) in particular
provides that:
Rule 6 (12):
(a)……………………
“
(b)
In
every affidavit or petition filed in support of any application under
paragraph (a) of this subrule, the applicant shall set
forth
explicitly the circumstances 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.”(own emphasis)
16.1
The insertion by the lawmakers of this procedure at the time, was, in
my view, not an intended mere surplusage.
The subrule not only
requires of an applicant to pertinently aver the circumstances that
he/she claims the matter is urgent, but
is also required to set
fourth explicitly the reasons why he/she avers could not be afforded
substantial redress at a hearing in
due course.
[17]
Accordingly, a mere perception by a litigant seeking to be heard on
an urgent basis and subjectively for own convenience
thinking that
the matter is sufficiently urgently, cannot in itself be reason that
the matter be elevated to urgency. More
has to be done to meet
the threshold laid down in subrule 6 (12).
[18]
The a foregoing observation is consonant with the sentiments echoed
by Notshe AJ in the case of East ROCK TRADING
7 (PTY) LTD v EAGLE
VALLEY GRANITE (PTY) LTD & ANOTHER
[5]
where the learned Acting Judge remarked in paragraph [ 9 ] that
:
“
[9]
It means that if there is
some delay in instituting the proceedings, an applicant has to
explain the reasons for the delay and why
he claims that he cannot be
afforded substantial redress at a hearing in due course. I must
also mention that the fact that
the applicant wants to have the
matter resolved urgently does not render the matter urgent. The
correct and crucial test
is whether, if the matter were to follow the
normal course as laid down by the rules, an applicant will be
afforded substantial
redress…..”
[19]
It was for that reason, in my view, that Coetzee J (as he then was)
stated emphatically that “practitioners
should carefully
analyse the facts one each case to determine, for the purpose of
setting the case down for hearing, whether a
greater or lesser degree
of the relaxation of the Rules and of the ordinary practice of the
court is required. The degree
of relaxation should not be
greater than the exigency of the case demands. It
must be commensurate therewith…….
[6]
[20]
This court in considering the circumstances and the facts which the
applicant avered render the matter urgent,
is required to evaluate
whether the explanation proffered for the delay is reasonable.
A delay might just be indicative that
the matter is simply not
urgent. Conversly, a delay may have been on account of the
Applicant’s attempts to settle
the matter amicably or collate
internal information held by the opponent or even, to first exhaust
internal remedies, as the case
may be.
[21]
In our contemporary law which is in a state of flux, it is quiet
permissible in certain circumstances to condone
the delay in
launching an urgent application if, of course, it is just and
equitable to do so. An attempt at settlement of
the dispute is
a classic example
[7]
In casu,
the
applicant did not evince such an attempt on paper.
[22]
In sum, the applicant in the main, stated in its papers that it was
informed by the first respondent to vacate
the site on which for the
past six years it had rendered security services to it. The
delay as and from that time, until
it brought the present
application, on an urgent basis on 26 March 2020, was in my opinion,
at least for that period not reasonably
accounted for. The
urgency, if any, was accordingly self-manufactured.
[23]
Furthermore, it is not clear on the papers why the applicant elected
to approach the court on an urgent basis seeking
a final declaratory
order as well as a final mandatory interdict, simultaneously in a
single once off application. This was
as if it were a foregone
conclusion that the relevant bid was to be awarded to the applicant
by hook or by crook.
[24]
The proper approach, in my view, in order to have arrested the
proverbial “bolted horse”, was for applicant
to have at
least applied for an interim interdictory relief in Part A pending
the declaration of the constitutional invalidity
of the impugned
tender in Part B in due course. In this way, applicant would
not have bemoaned the alleged lack of substantial
redress in due
course. Nothing precluded the applicant from approaching the
court by pursuing this simple, less stressful
and most convenient
procedure. It was a simple case of preservation and protection
of its perceived
prima facie
rights in this instance, if any.
[25]
For all the aforementioned reasons, I find that the applicant failed
to demonstrate reasons for urgency, and
a plausible explanation
for the delay that covers the period from January to March 2020, and
moreover, why it would not obtain
substantial redress at a
hearing in due course. For that, the application falls to be
struck off the urgent court roll.
I therefore decree the
following:
ORDER:
(a)
The
application is struck from the urgent court roll with costs.
MG
PHATUDI
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
REPRESENTATIONS:
Counsel
for the applicant :
Adv. A.P.J Els
On
brief by
: Albert Hibbert
Attorneys, Pretoria
Counsel
for First and Fifth
Respondents:
: Adv K.B Kgoroeadira
On
brief by
: ML Mateme
Attorneys, Polokwane
Date
heard (urgent roll)
: 03 June
2020
Date
handed down
:
08 September 2020
[1]
Paragraphs/ clauses 6.2 and 6.3 – Tender Document.
[2]
Index to urgent application – Vol 1, PP 13-14
[3]
Ibid. P16, para: 12 (12.1) – founding affidavit (“FA”)
[4]
Ibid P17, para 12.4 “FA”
[5]
2011 JDR 1832 (GSJ) delivered on 23.09.2011. (marked “Reportable”)
[6]
Luna Meubel Vergaardigers (EDMS) BPK v Making & Another. 1977
(4) SA 135 (W)
[7]
Nelson Mandela Metropolitan Municipality v Greyvenou
2004 (2) S.A 81
(SE) at 94 C-D. See also, Stock v Minister of Housing
2007 (2)
SA. 9
(C) 12-13A.