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[2019] ZAFSHC 45
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Cell C Service Provider (Pty) Ltd v MEC: Free State Provincial Government: Department of Treasury (2812/2018) [2019] ZAFSHC 45; [2019] 3 All SA 80 (FB) (16 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2812/2018
In
the matter between:
CELL
C SERVICE PROVIDER (PTY) LTD
APPLICANT
and
MEC:
FREE STATE PROVINCIAL
RESPONDENT
GOVERNMENT:
DEPARTMENT
OF
TREASURY
CORAM:
RAMPAI, ADJP
HEARD
ON:
14 FEBRUARY 2019
DELIVERED
ON:
16 MAY 2019
RAMPAI, ADJP
[1]
The matter came to this court on 22 June 2018 by way of motion
proceedings. The applicant
initially approached the court on an
urgent basis for an order compelling the respondent to provide the
applicant with full and
written reasons for its ostensible decision
purportedly taken either during or about August 2017 or April 2018.
The respondent
was called up to do so within five days of the order
sought. Leaving aside the subsidiary frills, essentially that was the
gist
of the relief sought.
[2]
The prerequisite of urgency was argued before me. On that initial
occasion, 20 July 2018,
I declined to entertain the matter since I
was not persuaded that the applicant had made out a case for the
urgent entertainment
of its application. For that reason, I struck
the application off the roll with costs. The matter was subsequently
placed on the
ordinary roll of opposed applications. Therefore, on
this second occasion, 14 February 2019, one would expect that I
need
not concern myself with the question of urgency any longer. But
lo and behold! The prerequisite of urgency still keeps rearing its
head time after time even on this second occasion although it was
supposed to be dead and buried. It is by no means water under
the
bridge.
[3]
Between 22 June 2018 and 14 February 2019 there have been
many developments.
On 11 September 2018 the applicant filed an
amended notice of motion. I deem it necessary to quote paragraph 1
thereof which explains
the order sought:
“
The time period
cast in section 5 of
Promotion of Administrative Justice Act, 3 of
2000
for the provision of the reasons and documents sought below is
reduced in accordance with the provisions of prayer 2, and in
accordance
with
section 9
of this Act”
[4]
At paragraph 2 of the notice of motion the applicant specified
documents with a bearing
on the reasons for the above ostensible
decision. The required documents had to cover the following
information:
“
2.1
Full particulars in underscoring documents of the decision taken;
2.2.
The minutes of any meetings held whereby this decision and option was
discussed and decided;
2.3.
Any and all documents that served before the decision-makers and
functionaries that inform this decision,
whether internally generated
or externally sourced;
2.4.
Full and complete reasons as to why this decision was taken and more
specifically why the respondent had
decided to hop onto the National
Treasury’s Transversal Contract”
[5]
On 20 June 2018, about eleven weeks before the original notice of
motion was amended, the
applicant, on its own accord, filed the third
party notices on the respondent’s attorney. The following
Members of the Executive
Council: Free State Provincial Government,
were cited as the targeted third parties who were, in a sense,
regarded as co-respondents.
5.1.
Department of Social Development - first third party;
5.2.
Department of Sports, Parts, Culture and Recreation - second third
party;
5.3.
Department of Cooperative Government and Traditional Affairs - third
third party;
5.4.
Department of Human Settlements – fourth third party.
[6]
The first three paragraphs of the ‘third party notice’
read as follows:
“
TAKE NOTE that
the above-mentioned applicant has commenced proceedings against the
above named respondent for the relief set forth
in the notice of
motion and founding affidavit ( together with annexures thereto) , a
copy of which is herewith served upon you.
TAKE NOTE THAT the
above named respondent has indicated by means of an opposing
affidavit that it had not taken a decision (either
in or about August
2017 and/or April 2018) to participate in the National Government
Treasury Bid and Contract Styled - RT15/2016:
Supply and Delivery of
Mobile Communication Service Transversal Contract. A copy of the
opposing affidavit is served upon you.
In essence, the respondent
contends that each of the third parties had taken their own decision,
that no uniform decision was taken
across the board for the entire
Free State Provincial Government and thus that it – i.e. the
respondent - cannot provide
the reasons and documents the applicant
seeks.
TAKE NOTE THAT if you
dispute the grounds the respondent has raised - particularly that you
had not taken a decision to so henceforth
participate in the National
Treasury Bid - or if you dispute the applicant’s claim against
the respondent as to its entitlement
to reasons for the decision(s)
and underscoring documents, you must give notice of your intention to
defend this proceeding within
five days for delivery of this
notification upon you.”
[7]
On 27 June 2018 the respondent informed the appellant that the
applicant had taken an irregular
step by filing such third party
notices, after the close of pleadings, without the leave of the court
first sought and obtained.
The respondent further complained that the
applicant had wrongfully called upon the above provincial departments
to file their
answering affidavit within five days of service of such
notices. The respondent contended that since the matter was no longer
urgent,
the applicant was not entitled to have the normal timelines
pertaining to service or exchange of pleadings truncated. Thereupon,
the respondent called upon the applicant, in terms of
rule 30
, to
remove the cause(s) of its complaint.
The
applicant ignored the respondent’s complaints.
[8]
On 11 September 2018 the applicant served and filed its amended
notice of motion. The respondent
was called upon to signal its
intention to oppose the amended application, by no later than 25
September 2018 and to file the opposing
affidavit by no later than 16
October 2018.
[9]
On 26 September 2018 the respondent informed the applicant that the
applicant had taken
an irregular step by serving and filing an
amended notice of motion. The respondent complained that such notice
failed to comply
with
rule 6(3)
read with
rule 6(5)
(b) and
rule 1.
The
respondent contended that the applicant had infringed its procedural
right as envisaged in
rule 6(13).
The rule requires that, in the case
of any application against an organ of state, the respective formal
and ordinary periods referred
to in
rule 6(5)(b)
shall not be less
than 15 days after the service of the notice of motion unless the
court has specifically authorized a shorter
period. On the
computation of any timeline expressed in days, only court days and
not calendar days shall be taken into account
- see
rule 1.
That was
the respondent’s first complaint which was levelled against the
amended notice of motion.
[10]
The respondent also informed the applicant that the applicant had
taken another irregular step by serving,
on the State Attorney, on 11
September 2018 the amended notice of motion which were meant for “The
Third Parties”;
that the applicant did so without identifying
or citing the alleged “third parties” either in the
notice of motion
or in an amended application and that the applicant
did so in contravention of
rule 13(3).
Moreover, the respondent
further complained that the court had neither granted leave to the
applicant to serve and file such “third
party notices”
after the close of pleadings nor condoned the truncated timelines for
the filing of such processes.
The
applicant ignored the respondent’s complaints levelled against
the amended notice of motion.
[11]
On 29 August 2018 the applicant served and filed a notice of set-down
for the hearing of the main application
on 20 September 2018.
[12]
On 7 September 2018 the respondent informed the applicant, in terms
of
rule 30
, that the applicant had taken an irregular step by
delivering such a notice of set-down. The ground of the complaint was
that the
applicant had failed to rectify its defective amended notice
of motion. The respondent also called upon the applicant, in terms
of
rule 30A
, to remove the cause of the complaint - violation of
rule
6(5)(b)
and form 2(a).
[13]
On 11 September 2018 the applicant, seemingly in an implicit response
to the respondent’s complaint,
removed the matter from the roll
of 20 September 2018.
[14]
On 17 October 2018 the respondent called upon the applicant, in terms
of
rule 35(12)
, to produce specified documents for inspection and to
allow the respondent to make photocopies thereof. Among others, the
required
documents included the alleged existing contracts between
the applicant and each of the specific provincial departments which
were
referred to in the applicant’s founding affidavit.
Notwithstanding the respondent’s request, the applicant never
produced
any of the alleged existing contract.
This
completes a history of the early procedural skirmishes between the
parties.
[15]
A brief background of the dispute is necessary. The origin of the
dispute emanated from an agreement
termed Free State Provincial
Transversal Contract. It was a two-year contract. The respondent
called for public tenders. The applicant
tendered for the supply and
delivery of voice and data solutions to the provincial departments of
the Free State Government for
two years. The applicant submitted its
tender on or about 12 November 2013 pursuant to the respondent’s
invitation to bid.
Its bid was successful.
[16]
A service level agreement was subsequently concluded on 4 August 2014
– see “anx O3”
a document with the heading - the
contract form - rendering of services. There were four provincial
departments that were interested
in the services offered by the
applicant. The respondent acted as a facilitator between such
departments and the applicant. The
four departments that participated
in the provincial transversal contract were referred to as service
users.
[17]
Clause 6.5 of the service level agreement provided that the four
participating departments were precluded
from signing similar
agreements with any other service provider and that the service level
agreement was subject to the provisions
of the
Public Finance
Management Act 1 of 1999
as well as Treasury Regulations and Notices
published in terms of the particular legislation. It was specifically
agreed between
the parties that the service level agreement would
endure until 3 August 2016. These aspects were again confirmed in the
acceptance
letter. The provincial transversal contract was terminated
by effluxion of time on 30 August 2017 – vide “anx 04”
read with “anx 05” whereby the provincial transversal
contract was converted into a month-to-month agreement which
was
finally extended to 13 October 2017.
[18]
During or about March 2016 the National Treasury invited public
tenders for the supply and delivery
of mobile communication services
to the national government departments and the provincial government
departments as from 15 September
2016 to 31 August 2020. The
applicant was not only aware of such public tenders but actually
submitted a tender bid, albeit belatedly.
[19]
The applicant knew, all too well, as early as 4 August 2014 that the
framework contract whereby it
rendered cellular services to the four
provincial departments of the Free State Government was valid for 24
months only; that such
contract would terminate on 3 August 2016 and
that at that particular point in time all contractual obligations of
the respondent
towards the applicant would be extinguished
ipso
iure
.
[20]
As from 4 August 2016 the framework contract was extended from
month-to-month at a time. Obviously
the series of monthly extensions
was done in contemplation of the expected migration of the four
departments from the provincial
domain to the national domain of
participation in mobile communication services. The final monthly
extension was made known to
the applicant on 28 February 2018 –
see “anx O4.” The respondent’s contractual
obligations towards the
applicant by virtue of periodic extensions
ultimately ended on 31 March 2018, almost 20 months since the expiry
of the original
contract period of 24 months. On that day the
short-term periodic component of the framework contract also finally
ceased.
[21]
Throughout that entire period of almost two years, the applicant took
no steps at all to safeguard
its interests in a practically
meaningful way. Bearing the above history in mind, the obviously
passive stance of the applicant
was not surprising to me. The
applicant took its time to assert its alleged rights. Such inordinate
delay tends to strengthen the
respondent’s contention that the
applicant knew all along that it had no rights protectable by law.
[22]
Prior to the end of the periodic month-to-month contract, the
respondent delivered, per
brevi manu
, notice of cessation,
“anx 015,” on 29 September 2017 to the applicant. The
previous notice of cessation, “anx
O4,” was thereby
expressly retracted. The new date of cessation was then given as 13
October 2017.
[23]
In its founding affidavit, the applicant merely stated that the
import of the letter, “anx O4,”
dated 30 August 2017 was
not implemented. As to what the real significance of
non-implementation was, the appellant did not venture
to say. What
was significant was the fact that no effort at all was made by or on
behalf of the applicant to deal with the hard
fact that the
respondent advised the applicant that the short term component of the
provincial transversal contract would finally
cease on 30 September
2017 and that the applicant did not immediately take any decisive
steps to protect the rights it lays claim
to. The respondent’s
deponent, Mr MNG Mahlatsi, the head of the department, wrote:
“
NOTICE OF
CESSATION OF THE VOICE AND DATA SOLUTIONS TRANSVERSAL CONTRACT:
FSPT003/13/14
The above-mentioned
bears reference
Kindly take note of
the termination of the voice and data solutions transversal contract:
FSPT003/13/14 one 30 September 2017.
The current provincial
Transversal Contract for the voice and data had to expire on 3 August
2016 and was extended on a month-to-month
basis until 30 September
2017. No extension will be made beyond 30 September 20 17.
Please be informed
that as from 1 October 2017 the Free State Government Departments
will be participating on the National Treasury
RT15-2016: Supply and
Delivery of Mobile Communication Services Transversal Contract which
was allocated to Vodacom. Kindly provide
Vodacom with necessary
cooperation.
Free State Provincial
Treasury would like to thank Cell C for the astonishing services
provided to the Free State Government Departments
during the tenure
of the contract.”
[24]
The applicant did not know when the second notice of cessation was
given. It will be recalled that
through the second notice the first
notice of cessation was withdrawn. Moreover, the appellant did not
know that at the end of
the next deadline a further month-long
extension would be granted by the respondent. I gained the
impression, which was strengthened
by the applicant’s passive
attitude over a long period of time, that the regular process of
extensions was solely driven
by the respondent on its own accord. If
it is accepted, and I believe it should, that the extension was a
matter entirely in the
discretion of the respondent, then it follows
that the applicant had virtually no right whatsoever to demand any
extension. If
I am correct, then the applicant would not have been
entitled to be given reasons for the termination of a fixed term
contract.
[25]
The applicant stated in the founding affidavit that the matter was
urgent; that the respondent refused
to provide reasons for its
decision; that the unfair administrative decision was taken during or
about August 2017 or alternatively
during or about April 2018; that
the primary aim of this application was to obtain reasons which
prompted the respondent to decide
that the entire Free State
Provincial Government would participate in the national transversal
contract; that it sought such reasons
in order to give effect to its
constitutional rights to a fair administrative action; that the
applicant, out of abundance of caution,
also seeks to have its
non-compliance with Sec 5
Promotion of Administrative Justice Act 3
of 2000
condoned by the court; that it has done business with the
Free State Government for a number of years; that it has lucrative
extant
contracts with four departments in the province; that National
Treasury awarded national transversal contract to Vodacom (Pty)
Limited for the supply and delivery of mobile communication service
to national government departments along with all provincial
government departments; that notwithstanding such a national
framework contract no government entity was obliged to migrate
from provincial transversal contract in order to make use of the
national transversal contract and that on 30 August 2017 the
respondent notified the applicant that the provincial departments of
the Free State Government would be participating in the
national transversal contract as from 1 October 2017.
[26]
The applicant further stated that upon receipt of a letter dated 19
April 2018, marked “anx gm3”,
from the Department of
Sports, Arts, Culture and Recreation, it became evident that it was
required to take certain steps designed
to facilitate the porting, in
other words the migration of the contracts it had with the provincial
departments to a new service
provider, namely: Vodacom (Pty)
Limited.
[27]
On 4 May 2018 the applicant, via its attorneys, addressed a letter,
“anx gm4”, to the respondent.
The respondent was
requested to provide reasons and underscoring documents pertaining to
its alleged unfair administrative decision
to migrate from the
provincial domain where the provincial transversal contract was
operative to the national domain where the
national transversal
contract was operative.
The
respondent responded by way of a letter dated 9 May 2018 labelled
“anx gm5”. However, the respondent provided no
reasons
for its decision. Instead it confirmed that Vodacom (Pty) Limited
would, from then on, be the new and exclusive service
provider for
the entire Free State Government and asked the applicant to
co-operate in order to expedite the porting process. It
then became
apparent to the applicant that the unilateral cancellation of the
separate agreements it had with the individual provincial
departments
was entirely precipitated by the decision of the Provincial Treasury:
Free State Government, in other words the
respondent.
[28]
Notwithstanding further exchange of correspondence between 1 May 2018
and 2 June 2018 - see “anx
gm6” and “anx gm7”
- the respondent refused to provide the required reasons which had
informed its decision to
terminate the provincial transversal
contract in favour of the national transversal contract.
[29]
On 4 June 2018 the applicant launched the current application. By
then the relief sought was twofold:
provision of reasons together
with underscoring documentation as well as condonation for
non-compliance with
Section 5
Act No. 3/2000.
[30]
In its answering affidavit the respondent denied the allegations that
the matter was urgent; that the
respondent as a Provincial Treasury,
could be properly sued alone in connection with a provincial
transversal contract it had facilitated
between a service provider
and provincial departments without simultaneously joining the heads
of such departments; that the applicant
had any separate extant
agreement with each of the four provincial departments concerned;
that the respondent had taken any unfair
administrative decision or
committed any unfair administrative act against the applicant; that
the applicant was, on the merits
entitled to the relief sought and
that the applicant’s inaction or delay in launching this
application in order to protect
its alleged constitutional rights to
fair administrative action was condonable.
[31]
The respondent admitted the averments that the Provincial Treasury:
Free State Government issued an
invitation to bid for the supply and
delivery of voice and data solutions; that the applicant had tendered
to render such services
to all the provincial departments for a
period of two years; that the applicant successfully tendered as
would appear from the
letter of appointment, “anx 02”,
dated 1August 2014; that the effective date of the two year
provincial transversal
contract was 4 August 2014; that the parties
subsequently concluded a service level agreement, “anx 03”
in Bloemfontein
on 4 August 2014; that the agreed contract completion
date was 3 August 2016; that four departments were allocated to the
applicant
and that as from 4 August 2016, the provincial transversal
contract was extended on month-to-month basis.
[32] The
respondent added that the applicant knew, as far back as 4 August
2014, being the effective date of the agreement,
that the framework
agreement would be valid for 24 months only; that the applicant was
also fully aware that the extension, by
itself, did not create any
further and future contractual rights beyond any given particular
month extension; that at the end of
any given particular month such
short term agreement would automatically terminate if not further
extended; that the applicant
was aware of the national transversal
contract issued in March 2016 by the National Treasury for the period
commencing on 15 September
2016 and ending on 31 August 2020; that
the applicant showed interest in the rendering of such services; that
the applicant actually
submitted a bid; that its bid was, however,
submitted late; that after receiving the respondent’s notice of
cessation, “anx
04” on 30 August 2017, the applicant took
no practical steps to assert its alleged infringed rights and
that the applicant
was, long before April 2018, aware of the pending
migration of the four provincial departments from the provincial
transversal
contract to the national transversal contract.
[33]
In its replying affidavit, the applicant admitted that it had
requested the respondent to provide written
reasons and underscoring
documents on 4 May 2018 – see “anx gm7”; that the
respondent declined to comply with
its request; that the respondent
was adamant that
sec 5
of PAJA 3 of 2000 or any provision thereof was
applicable to the dispute and that the applicant did receive the
respondent’s
notice of cessation dated 30 August 2017.
[34] The
applicant denied the respondent’s contentions that it had no
protectable rights; that the respondent
had not administratively
infringed its rights; that the respondent was, therefore, under no
legal obligation to provide reasons
and documents to the applicant in
accordance with the applicant’s request; that the applicant was
not entitled to the relief
sought; that the respondent’s
refusal to comply with its request was justified; that the matter was
regulated by
sec 11
Promotion of Access to Information Act 2 of 2000
and not PAJA; that the application lacked the requisite element of
urgency; that
if any urgency existed, which allegation the respondent
persistently denied, it was self-created; that according to law the
provincial
departments concerned ought to have been joined from the
outset; that the applicant’s omission to do so was a fatal
irregularity;
that the decision of the respondent and all the
provincial departments to migrate from the provincial
transversal domain
to the national transversal domain did not
constitute an administrative act and that, for that reason, it was
not reviewable by
a court of law.
[35] As
earlier pointed out, the application was launched on 5 June 2018. It
was enrolled for hearing on 22 June 2018
as an urgent application. On
that day I ruled in favour of the respondent that the matter did not
deserve to be heard as an urgent
application. Now I proceed to
examine the factual allegations and to apply the principles of law.
[36]
In the first place
, I deal with the issue of non-joinder. In
this regard the crucial question which I have to determine is whether
the accounting
officers of the four provincial departments that
participated in the erstwhile provincial transversal contract which
was issued
by the Provincial Treasury : Free State Government and
awarded to the applicant, should have been joined to these motion
proceedings
as co-respondents or not
ab initio
.
[37]
On behalf of the respondent, Mr Snellenburg argued that the four
provincial departments, in respect of which
the four accounting
officers were answerable, had and still have a legal interest in the
matter. Therefore, counsel submitted that
the responsible accounting
officers should have been joined. On the strength of this submission,
counsel implored me to determine
the issue in favour of the
respondent.
[38]
On behalf of the applicant, Mr Grobler differently argued the point.
The foundation of counsel’s
argument was that the four
provincial departments that were allocated to the applicant in terms
of the provincial transversal contract
had no direct interest in the
matter. This was so, counsel argued, seeing that the provincial
transversal contract in question
was issued by the respondent and not
by the accounting officers in their representative capacities. In
developing that line of
argument further, counsel also contended that
the respondent, and apparently not any of the accounting officers,
unilaterally decided
that all the provincial departments in the Free
State Province must migrate to the national transversal domain. By
virtue of these
contentions, counsel submitted that dragging the
responsible but uninterested accounting officers into the arena of
these motion
proceedings would have constituted a classic case of
misjoinder. On the strength of these submissions, counsel urged me to
decide
the question in favour of the applicant.
[39]
Let me turn to the applicable principles of law. The test as to
whether a third party should or should not
be joined revolves around
the question whether such third party has direct and substantial
interest in the outcome of the subject-matter
of the litigation at
hand. In
City
of Johannesburg and others v South African
Local Authorities Pension Fund and others
[2015] JOL 32956
(SCA) in
para [9],
the court elucidated the test and explained the
undesirable repercussions of non-joinder as follows:
“
A ‘direct
and substantial interest’ is more than a financial interest in
the outcome of the litigation. A test often
employed to determine
whether a particular interest of a third party is the one or the
other, is to examine whether a situation
could arise in which,
because the third party had not been joined, any order the court
might make would not be res judicata against
that party, entitling
him or her to approach the court again concerning the same
subject-matter and possibly obtain an order irreconcilable
with the
order made in the first place…”
See also
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A)
[40] It has
been authoritatively held that if a judgment or order cannot be
sustained without necessarily prejudicing
the interests of a third
party that has not been joined, then in such a case such a third
party has a legal interest in the subject-matter
and must, therefore,
be necessarily joined–
Gordon v Department of Health,
KwaZulu- Natal
[2008] ZASCA 99
;
2008 (6) SA 522
(SCA)
[41]
Sec 36(2)(a)
Public Finance Management Act 1 of 1999
assigns or
designates the head of department (HOD) as an accounting officer of
such a department. In other words, the head of any
government
department is, ex
officio
, its accounting officer
.
[42] Among others,
regulation 16A of the National Treasury Regulations, made and issued
in terms of sec 76 Act No 1 of 1999
(Public Finance Management Act),
deals with the procurement of goods and services by the state organs.
The relevant part thereof
is sub-regulation 6. It provides that:
“
Accounting
officer or accounting authority may, on behalf of the department,
constitutional institution or public entity, participate
in any
contract arranged by means of a competitive bidding process by any
other organ of state, subject to the written approval
of such organ
of state and the relevant contractors.”
[43]
In terms of the above regulation, the appointed departmental head, in
his capacity as the accounting
officer, may opt to participate in a
provincial transversal contract facilitated by the relevant
provincial treasury. Needless
to say that a provincial treasury is
but one of the envisaged organs of the state and as such can
competently act as a facilitator
of transversal contracts. In other
words the relevant provincial treasury, in this case the respondent,
cannot lawfully coerce
an unwilling accounting officer to participate
in any transversal contract – be it provincial or national. The
decision as
to whether a provincial department should or should not
participate in such a transversal contract, resides in the
discretionary
province entrusted to an accounting officer in terms of
the above statute. A provincial treasury merely acts as a kind of an
external
financial advisor to an accounting officer. That being the
case, it follows that it cannot override a decision taken by an
accounting
officer of a provincial department. The buck stops with an
accounting officer. His or her word is final. It binds a department
he or she heads. This explains the reason why the rest of the
departments apart from the four had exercised their options
differently.
They did not participate in the provincial transversal
contract awarded to the applicant. As far as the accounting
officer
is concerned, the only binding and prohibitive aspect of the
regulation is that once an accounting officer has positively
exercised
his or her option to participate in a particular
transversal contract, (s)he may not solicit bids from other service
providers
for the supply of the same or similar goods or the
rendering of the same or similar services during the tenure of the
transversal
term contract.
[44] In view
of the above considerations, I am persuaded that each of the
departmental accounting officers in question
has and always had a
legal interest in the matter –
Gordon v Department of
Health
,
supra
; that the interest of each of them in the
ultimate outcome of this litigation is direct and substantial –
Amalgamated Engineering
,
supra
; that the matter
cannot be adjudicated without necessarily prejudicing them and that,
for these reasons, they should have
been joined right from the onset
–
Gordon
,
supra
.
[45] The
point was well taken, in my view. It is not bad in law at all as the
applicant contended. I would, therefore,
uphold the point raised in
limine by the respondent
that the applicant’s omission
to cite, to join and to serve the departmental accounting officers of
the provincial departments
concerned constituted a materially fatal
non-joinder.
On
that ground alone I would strike the application off the roll with
costs.
[46] In an
attempt to cure the above defect of the non-joinder, the applicant
caused “third-party notices”
to be issued. The respondent
objected and complained that the notices in question were issued and
served in an irregular
way and that, therefore, they did not cure the
defect occasioned by the non-joinder.
[47] The
stance of the applicant was that the “third-party notices”
were given to the provincial departments
on 20 June 2018; that they
were perfectly valid; that there was virtually nothing irregular
about them; that such notices were
really not necessary; that all the
same it merely issued and gave such notices out of abundance of
caution; that that was so because
it had concluded the provincial
transversal contract with the respondent and that the departments
concerned were not privy to such
contract.
[48] The
question which falls to be determined at this juncture is whether the
pleadings were already closed or not
at the time the applicant’s
“third party notices” were issued and served.
[49] The
respondent’s contention was that the state of
litis
contestatio
was reached upon the filing of a replying affidavit
on 20 June 2018, being the date on which the applicant’s
replying affidavit
was filed. As already indicated, the “third
party notices” were also filed on the same date.
[50] The
applicant’s contrary contention was that the state of
litis
contestatio
was reached after the filing of the “third-party
notices” which notices were filed together with the replying
affidavit
on 20 June 2018.
[51] Now I
turn to the applicable principles of law. The filing of a “third
party notice” is governed by
rule 13(3)(b) of the Uniform Rules
of Court. The rule delineates:
“
(b)
After the close of pleadings, such notice may be served only with the
leave of the court.”
[52] After the
close of pleadings, a “third party notice” may still be
served but only with the leave of the
court first sought and
obtained. The granting of such leave is not a mere formality. The
rule requires a party applying for leave
to serve such notice to
furnish a satisfactory explanation for his or her failure to serve
such notice before the close of pleadings
and to make out, on the
substantive merits, a
prima facie
case against the third party
sought to be joined –
Erasmus: Superior Court Practice:
Second Edition: Volume 2
at D1-147
.
[53] A rule
of procedure, subsidiary to the above mentioned rule, is rule 29(a)
which delineates that pleadings are
considered closed if either party
has joined issue without alleging any new matter, and without adding
any further pleading.
[54] Now, let
me turn to the facts. In this instance, the founding papers were
served on 5 June 2018. The initial date
on which the founding
affidavit is served, determines the last date on which an answering
affidavit has to be filed as well as
the last date on which a
replying affidavit has to be filed. In the present matter, the
respondent served the answering affidavit
on 14 June 2018. The
applicant then filed the replying affidavit on 20 June 2018. The
applicant alleged no new matter in the replying
affidavit and added
no further pleading whatsoever on that particular day or on any other
day afterwards. Similarly, subsequent
to the service of the replying
affidavit, the respondent has alleged no new matter or added no
further pleading on the substantive
merits of the dispute.
[55] There being no new
contentious points raised and there being no further pleadings added
on or after 20 June 2018, the parties
effectively joined issues on
that particular date. As between the parties themselves, the
pleadings were, therefore, by law considered
closed on 20 June 2018,
being the date on which they joined issues. It is not the case of the
applicant that the exchange of pleadings
was closed on any other
specified date after 20 June 2018. That being the case, it has to be
accepted that the effective date of
litis contestatio
was 20
June 2018. It has not been argued otherwise and it cannot.
[56] The
bottom line of the applicant’s case is that because the notices
in terms of rule 13(3)(a) of the Uniform
Rules of Court were served
together with the replying affidavit, such notices must be considered
to have been served before and
not after the close of pleadings.
[57] The
contention of the applicant takes us back to the chicken or egg
debate that has been going on for centuries.
Which came first? The
proper and efficiently functioning of the courts would be seriously
impeded if they were required to take
into account the precise time:
our, minute and second in order to determine whether such a notice
was served before or after the
service of the replying affidavit.
Doing so would give rise to endless factual dispute as to the exact
moment in time the notice
was served and as to the exact moment in
time the replying affidavit was served. It may be very cumbersome to
determine such factual
details.
[58] The
lawmaker was mindful of such practical difficulties. The rules of
procedure were then made to obviate possible
future difficulties that
were foreseen. There are two applicable rules here, which are rule
13(3) and rule 29(1).
[59] It is
significant to appreciate that two distinct procedures are envisaged
in rule 13(3). The rule, first and foremost,
requires a joinder
applicant to serve a “third-party notice” on the targeted
third party
before
the close of pleadings. Such procedure is
implicit in sub rule 3(b). It is an ordinary procedure. It is direct,
simple and straightforward.
There are no strings attached. It is less
formal and less cumbersome. This is the first remedial rule of
procedure.
[60]
In
the second place
, the rule allows a joinder applicant who, for
some good reason, could not serve a “third party notice”
on the targeted
“third party” before the close of
pleadings, to serve such notice even though the pleadings had already
been closed.
Such a procedural right is explicit in sub rule 3(b).
However, post
litis contestatio
, such notice may only be
served with the leave of the court. This is the second remedial rule
of procedure. It follows, therefore,
that direct service of such
notice after the pleadings have been closed without the requisite
sanction of the court first sought
and obtained is
prima facie
irregular.
[61] The
evidential burden rests on the joinder applicant to satisfy the
court, hearing the belated application to serve
a third party notice
post
litis contestatio
, that sound and compelling
circumstances exist which justify the service of the notice after the
close of pleadings. As can be
readily appreciated, an extraordinary
procedure is envisaged here. It is an indirect procedure. It is not
simple and straightforward.
It is a whole lot more cumbersome and
more formalistic than the ante
litis contestatio
procedure. It
requires prior authorization by the court. There are astringent
strings attached.
[62] Those
then are the two procedural rights accorded to a joinder applicant.
The remedial right before the close of
pleadings and the remedial
right after the close of pleadings are exhaustive. There is no other
right via media. Between these
two rights, no hybrid right exists in
law. The close of pleadings is ascertained according to days and not
ours. An applicant in
terms of rule 13(3) is not accorded any further
procedural right whatsoever to simultaneously serve a notice in terms
of this rule
together with any closing pleading. In this instance the
closing pleading was the replying affidavit. The last day allowed for
its filing lapsed on 20 June 2018. Therefore, the last day on which
the notice in terms of rule 13 could have been properly served
without the required prior leave to serve was 19 June 2018. Because
that was not done, they could only have been properly served
after 20
June 2018 with the required prior leave of the court sought and
granted before they could be served. That was not done.
[63] A third
party notice in terms of rule 13 is, in our law, regarded as a
pleading completely distinct and autonomous
from the main action or
claim or any pleading in response to such main claim. See
ABSA
Bank Ltd v Boksburg Transitional Local Council (Government of the
Republic of South Africa, Third Party)
1997 (2) SA 415
(W).
In
this case, I am of the firm view that pleadings would have been
considered closed upon the filing of the replying affidavit.
Consequently, the leave of the court was necessarily required prior
to the service of such third party notices. Since the requisite
leave
to serve as envisaged in rule 13(3)(b) was not sought, the rule was
not complied with. In view of this omission, the applicant’s
service of the notices was non-responsive to the rule. Such
unauthorized service was procedurally defective. The purported
simultaneous
service was a fruitless exercise.
[64] The
respondent objected to the circumvention of the court by the
applicant. The respondent did so by delivering
notice in terms of
rule 30. Pursuant to the service of the notice, the applicant
purported to apply for condonation. However, the
applicant gave no
satisfactory explanation as to why sub-rule 3(b) was not complied
with. Instead of giving satisfactory reasons
for its failure to
comply with the rule, the applicant still maintain that the leave of
the court was not required seeing that
the notices were
simultaneously served together with the replying affidavit. I am not
inclined to condone the applicant’s
breach of the rule.
Obviously the applicant applied for condonation with a tongue in the
cheek. Moreover, the applicant has made
out no prima facie case
against any of the third parties on the substantive merits. See
Erasmus
op cit
. In a case where the explanation is poor
and the merits are also poor - the courts do not readily condone
noncompliance with its
rules. In
casu
, there is nothing to
compensate anything. The substantive merits are very poor. Worse
still, there is hardly any explanation to
talk about.
[65] The fact
that the heads of the departments, as accounting officers, made
confirmatory sworn statements, does not
assist the applicant at all.
Being witness to the respondent does not cure the non-joinder. As
deponents to those confirmatory
affidavits, the departmental heads
were mere witnesses, nothing more. The failure of the applicant to
properly join them as independent
litigants in their own right and in
their designated capacities as accounting authorities of those
departments was fatal to the
application. They were supposed to have
been cited as co-respondents from the beginning of these proceedings
or subsequently joined
by way of compliant rule 13 notices. It was
never done.
To
rub salt into the wound, the notices in question were not served on
the accounting officers. Instead the applicant abrogated
unto itself
the right to serve those notices on the respondent’s legal
representative. Such service was done without the
knowledge, let
alone the consent, of the accounting officers concerned. The hard
fact of the matter is that the accounting officers
are not before me
as they were supposed to be. The applicant’s dilemma is nothing
less than a harvest of neglect.
[66] In the
circumstances, I am inclined to decide the issue of non-joinder in
favour of the respondent. The preliminary
point was well taken. It
was good in law. The unauthorized service of the third party notices
which the applicant caused to be
improperly served have to be
regarded as
null
and
void ab initio.
[67]
In
the third place
,
the issue is whether participation of the provincial departments in
the national transversal contract constitutes an administrative
act
or not.
[68] In its
founding affidavit, the applicant alleged that it launched these
motion proceedings in order to give effect
to its constitutional
rights to fair administrative action; that it had extant contracts
with the Department of Government (
sic
) and Traditional
Affairs, Department of Human Settlement, Department of Social
Development as well as Department of Sport, Art,
Culture and
Recreation; that the extant contracts it had with the above
departments had been unfairly taken away and unfairly awarded
to its
cellular rival, Vodacom (Pty) Limited for the period 15 September
2016 to 31 August 2020; that the government entities such
as
provincial departments were not forced by the National Treasury to
participate in the national transversal contract; that contrary
to
that executive policy, the Provincial Treasury: Free State Province
took a decision whereby all the provincial department in
the province
were obliged to participate in the national transversal contract
awarded to Vodacom (Pty) Limited by the National
Treasury and
that it was, therefore, entitled to invoke the provisions of PAJA in
order to mount this challenge to such an unfair
administrative
decision and the unfair administrative action which flowed from
such a decision.
[69] In its
answering affidavit the respondent denied the allegations that the
applicant had any constitutional rights
vis-a-vis
the
respondent; that the respondent had infringed the applicant’s
rights to a fair administrative action; that the applicant
had any
extant contract with any of the provincial departments mentioned
above; that the decision of any provincial department
to participate
in the national transversal contract constituted an administrative
action; that the Provincial Treasury: FSG or
the Free State
Government itself compelled its provincial departments to participate
in the national transversal contract awarded
to Vodacom (Pty) Limited
and that the applicant was entitled to be given information in
terms of PAJA. All those allegations
the respondent denied.
[70] In its
replying affidavit the applicant failed to refute the respondent’s
averment that the applicant had
no existing contract with any of the
provincial departments. After the filing of the replying affidavit
the respondent called upon
the applicant to produce the alleged
extant contracts for inspection. Notwithstanding service of such
formal request in terms of
rule 35(12), the applicant could hardly
produce one of the alleged separate contracts. Therefore, it has to
be accepted that the
alleged extant contracts have, in truth and in
reality, never existed. If they did, the applicant would certainly
have produced
them for inspection by the respondent. Since the
respondent denied the allegation, the ball was in the applicant’s
court.
However, the applicant was not able to prove or to
substantiate its allegation. In view of the applicant’s failure
to produce
the alleged contracts, it must be accepted that the
applicant failed to refute the respondent’s averment that the
applicant
had no existing contract with any of the provincial
departments as alleged.
[71] It will
be readily appreciated that the applicant’s allegation that
separate and valid contracts were still
in existence at the time
these current motion proceedings were launched, was calculated to
make the court believe that the applicant
had a legitimate right or
interest worthy of protection by law and that such right or interest
could be adversely affected unless
the court granted the relief
sought. However, no such contracts were proven to have ever existed.
This finding is telling against
the applicant’s alleged
constitutional right to fair administrative action. Such rights would
not have existed in a vacuum.
I am still at a loss as to what the
foundation of such rights was.
[72] It did
not end there. The applicant went a step further and alleged
that the provincial transversal contracts
it had with the four
departments concerned were not only unfairly terminated, but
worst still, that such valid contracts
were then unfairly awarded to
its rival competitor. The import of the allegation was legally
untenable. If it is accepted, and
I think it must, that the applicant
has no such contracts and that the applicant never had such contracts
- then it follows, as
a matter of simple logic, that there was
virtually nothing that could have been unfairly taken from the
applicant. In pretty much
a similar vein, there was virtually nothing
that could have been unfairly awarded to the applicant’s rival
competitor.
[73] The fact
of the matter is that the applicant admittedly had a fixed term
agreement or provincial transversal contract
– call it what you
will, with the respondent. There were only four out of a number of
provincial departments which chose
to participate in that contractual
setup that had been facilitated by the respondent. None of the four
was compelled to do so.
That particular fixed term contract came to
its natural end in accordance with the terms and conditions which the
two parties had
agreed upon. In my view, the applicant never had and
still has no right to a further contract beyond the expiry date of
the original
fixed term contract. This is an abortive attempt to hold
over.
[74] I hasten
to point out that the applicant was, of course, entitled to tender
for the national transversal contract
in the same way as Vodacom
(Pty) Limited was. It was an undisputed fact that the applicant saw
nothing legally wrong with that
particular state procurement process.
Instead of mentioning any legal challenge to the process on the
grounds that it adversely
affected its constitutional right to fair
administrative action, the applicant voluntarily participated in that
state procurement
process, the very same process which he now seeks
to discredit. However, the applicant’s attempts to bid went up
in smoke
because it submitted its bid late.
[75] Now the
question must be asked as to why the applicant chose to participate
in such a constitutionally tainted
process? If the valid contracts
the applicant had with the provincial departments were unfairly
terminated, unfairly taken away
from the applicant and en bloc
unfairly awarded to another corporate enterprise in violation of the
constitutional imperative of
fair administrative action, why did the
applicant take its time before this application was launched in order
to protect its alleged
constitutional rights? I could find no
answer to the question anywhere in the applicant’s papers. The
subsequent conduct
of the applicant cannot be reconciled with its
previous conduct of silent but active collaboration. The fact of the
matter is that
the applicant did not find anything wrong with the
national transversal contract until the four provincial departments
opted to
migrate from the provincial sphere to the national sphere of
state procurement. Needless to say that this court would not be
grappling
with this matter had the applicant, and not Vodacom (Pty)
Limited, been awarded the national transversal contract.
[76]
Moreover, I have to point the obvious out. The contract, that has
caused the applicant so much grief, is in fact
a national transversal
contract facilitated by the National Treasury. The respondent, a
Provincial Treasury, had absolutely nothing
to do with the awarding
thereof to Vodacom (Pty) Limited. Not a single department of the Free
State Government was obliged to participate
in the national
transversal contract. The respondent did not make a unilateral
decision whereby all or any of the provincial departments
in the Free
State Province were or was forced to participate in the national
transversal contract. The four designated and responsible
departmental accounting officers, on their own, freely and
autonomously made such decisions on behalf of their departments. In
doing so, they used their own discretionary powers. Neither the
Provincial Treasury nor the National Treasury coerced any of them
to
do so.
[77] I need
to stress that when the various accounting officers in the Free State
Province individually and autonomously
decided that the provincial
departments they headed participate in the national transversal
contract, no valid contracts existed
between any of their departments
and the applicant. Consequently, they were under no contractual
obligations or existing legal
duty to seek the blessing of the
applicant before they could lawfully participate in the proposed
national transversal contract.
In my understanding participation was
voluntary.
[78] In the
circumstances, I have come to the conclusion that the decision of any
provincial department to participate
in the national transversal
contract does not constitute an administrative action. Any department
is at liberty to make an internal
decision to participate or not to
participate in a national transversal contract. Such an internal
decision has absolutely no external
effect. By its very domestic
nature, such a decision is not reviewable by a court of law in terms
of any statute. In short, it
is an executive decision. The principle
is clear. Public decision-makers, such as heads of government
departments, are under no
obligation to consult outsiders as to how
they should best procure goods or services they need to run their
departments. It is
trite that executive decisions are not ordinarily
reviewable by the courts.
[79] In the
light of the above considerations, the allegation of Cell C (Pty)
Limited that the Free State Government
had taken an unfair
administrative decision, pioneered by the respondent, whereby all of
its provincial departments were coerced
or obliged to participate in
the national transversal contract was not supported by the proven
facts. Therefore, any contention
or suggestion that the procurement
process whereby the national transversal contract was awarded to
Vodacom (Pty) Ltd was underpinned
by monopolistic connotations was
unfounded. The contention was yet another ploy to create an
impression that there was only one
universal decision with external
effects. The Free State Government did not commit any monopolistic
act by usurping the public
power legally entrusted to the
departmental heads in their designated capacities as accounting
officers.
[80] In the
circumstances, I am inclined to decide the issue in favour of the
respondent. For the reasons given above, I am
of the view that
participation of the four or even of all the provincial departments
in the national transversal contract did not
constitute
administrative act as envisaged in the provisions of
Promotion of
Administrative Justice Act 3 of 2000
. Therefore, I am not persuaded
otherwise by the applicant’s submissions.
[81]
In
the fourth place
, the issue is whether an option given to a
provincial department to participate in the national transversal
contract amounts to
an administrative action or not.
[82] The
procurement contract between the applicant and the respondent expired
on 3 August 2016. The respondent’s
evidence in this regard was
undisputed. After such expiry, the provincial transversal contract
was extended on a month-to-month
basis.
[83] The
concept “administrative action” is defined in
section 1
Act No 3 of 2000 (PAJA) as follows:
“…
any
decision taken, or any failure to take a decision, by—(a) an
organ of state, when—… (b) a natural or juristic
person,
other than an organ of state, when exercising a public power or
performing a public function in terms of an empowering
provision,
which adversely affects the rights of any person and which has a
direct, external legal effect, but does not include—…”
[84] The
application is primarily and clearly premised on the erroneous
foundation that certain valid contracts existed
between the applicant
and the four provincial departments in the Free State Province. I
have already found that no such separate
contracts ever existed at
any given time. The respondent contended that such contracts, even if
they ever existed, were irrelevant
for the purpose of adjudicating
the present application. I am inclined to agree with the contention.
[85] Barring
such contracts, the only decision conceivably relevant would be the
decision to embark on a procurement
process. It is hard to think of
any rights or even mere legitimate expectation that actually exists,
in fact or in law, which could
possibly have been adversely affected
by the decision to procure data and mobile communication services by
way of a national transversal
contract.
[86] Since
the decision to embark on a procurement process does not adversely
affect any rights of the applicant, it
cannot be said to have direct,
external and legal impact on the applicant. The decision does not
fall within the defining ambit
of the words administrative action.
Consequently, the decision by a state organ to embark on a national
procurement process in
order to acquire services or goods was not by
and in itself an administrative action as contemplated in section 1
Act No
3 of 2000. It was incumbent upon the applicant to show
that such a decision had adverse external repercussions in law. The
applicant
failed the test.
[87] As I see
it, the optional decision to participate in the national transversal
contract did not constitute administrative
action seeing that it
lacked the elementary ingredient termed adverse external effect on
any person - natural or corporate. Differently
put, the optional
decision to participate in the national transversal contract did not
affect any vested rights of any individual.
And that includes Cell C
(Pty) Limited, a corporate enterprise whose previous contractual
right in terms of the provincial transversal
contract had virtually
come to an end long before the option to participate in the national
transversal contract was exercised
by the accounting officers of the
provincial departments in question.
[88] It
stands to reason, therefore, that neither the applicant nor other
previous service providers could lawfully
demand or legitimately
expect to be appointed again and to be awarded a fresh contract where
no further agreement exists to support
such demand or to underpin
such expectation. It has to be borne in mind that the applicant, who
now feels aggrieved by the award
of the public tender to Vodacom
(Pty) Limited, was given a fair and equal opportunity of bidding just
like Vodacom (Pty) Limited.
However, the applicant fluffed it all. It
was now too late. The applicant missed the train. For that the
applicant only has itself
to blame.
[89] The
statutory qualification of what act or decision constitutes
administrative action, particularly when seen in
conjunction with the
requirement that a decision by an organ of state must have a direct
and external legal effect was an attribute
designed to convey the
understanding that to qualify as an administrative action, a decision
or an action, taken by an organ of
state, has to have the capacity to
affect legal rights. The two qualifications in tandem serve to
emphasise that an administrative
action impacts directly and
immediately on individuals –
Greys’ Marine Hout bay
(Pty) Ltd and Others v Minister of Public Works and Others
[2005] ZASCA 43
;
2005 (6)
SA 313
(SCA)
. At par [23] the court, per Nugent JA said:
“…
The
qualification, particularly when seen in conjunction with the
requirement that it must have a 'direct and external legal effect',
was probably intended rather to convey that administrative action is
action that has F the capacity to affect legal
rights, the two qualifications in tandem serving to emphasise that
administrative action impacts directly and immediately on
individuals.”
[90] On
appeal against the decision of North Gauteng High Court, the Supreme
Court of Appeal held that a decision for
the procurement of goods and
services by an organ of state lies within the heartland of the
exercise of executive authority; that
the executive decisions as to
how limited resources are to be spent inevitably entails painful
compromises; that some people might
reckon that an executive decision
to spend money on computer technology support systems at schools
unwisely diverts those much-needed
resources from more deserving
projects such as the construction of roads or garbage removal systems
in residential neighbourhoods;
that we must constantly remind
ourselves that the constitution of our land entrusts those
painfully hard to make executive
decisions to elected bodies at all
three tiers of government; that at every such sphere of government,
the elected representative
select executive functionaries whose
duty it is to carry out the chosen program of government and that it
is an extremely
serious matter for a court to judicially interfere
with the exercise of such executive decisions -
Tshwane City and
Others v Nambiti Technologies (Pty) Ltd
2016 (2) SA 494
(SCA)
[91] At para
[43], the court went on to sound a word of caution:
“…
But for
it to do so by compelling the organ of state to enter into contracts
and acquire goods and services that it has determined
not to acquire,
or at least not to acquire on the terms of a specific tender, is
something that, if open to a court to do at all,
should only be
done in extreme circumstances. These issues are among those
comprehended by the broad doctrine of the separation
of powers.”
[92] I am in
respectful agreement with the views expressed in the previous two
paragraphs. Through the above decision,
the court authoritatively
reminds us that an executive organ of state should not be lightly
compelled by a court to enter into
contracts in order to acquire
goods or services that it has determined not to acquire or, at least,
determined not to acquire on
the terms of a specific tender. As
judges we have, therefore, been cautioned. But for a court to
intervene by compelling an executive
organ to do so is something
that, if at all open to a court to do, should only be done in
extremely rare circumstances. By any
stretch of imagination, this
case does not fall in that category. The courts have to be
mindful that issues of this kind
are among those contemplated by the
broad and important doctrine of separation of state powers –
Greys’ Marine
,
supra.
[93] The
phrase “direct and external legal effect” was imported
into our law from the German Federal Law.
The allusion to the words
“direct legal effects” refers to administrative decisions
that are final. The allusion to
the words “external legal
effects” refers to these administrative decisions that affect,
not only the executive decision
maker but also other parties. The
allusion to the words “legal effects” overlaps with the
requirement that rights must
be adversely affected by the
administrative decision complained of -
State Information
Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
2017 (2) SA 63
(SCA).
[94] Let me
elucidate the principle. Coming nearer home illuminates the point
better. The requirements of the concept
- external legal effect -
are: firstly, the decision complained of must be final. Secondly, it
must have the potential capacity
to have an adverse impact on the
applicant’s right and the respondent’s right. In this
instance, the applicant dismally
failed to demonstrate a right that
could potentially be adversely affected by the voluntary
participation of the provincial departments
concerned in the national
transversal contract.
[95] Given all the
above considerations, I have reached the conclusion that the option
to participate in the national transversal
contract does not
constitute administrative decision. This is so because such an
optional decision has no direct and external legal
effects on any of
the applicant’s rights. The decision of the organs of state as
to how to acquire services through participation
in the national
transversal contract constitutes no administrative action as
envisaged in the relevant enabling legislation. This
completes my
analysis of the facts and the law in respect of the fourth issue.
[96]
In
the fifth place
, the issue is whether the applicant is legally
entitled to the record of the administrative decision, apart from the
reasons, under
the provisions of PAJA.
[97] In a
letter from Honey Attorneys to the Provincial Treasury: Free State
Province dated 4 May 2018, the grievance
request of the applicant was
ventilated. The respondent was requested to furnish the applicant
with certain documents and minutes
of meetings underscoring the
decision complained of. All that information was requested in
addition to the reasons for such a decision.
What we had there were
two distinct and separate requests embodied in one letter. The
applicant supposed that the common denominator
of the two requests
was one and the same legislative foundation.
[98] In
response to the above request, the respondent intimated to the
applicant’s attorneys that the applicant’s
request
relative to documentary information was subject to the provisions of
the Promotion of Access to Information Act, colloquially
known as
PAIA.
[99] The
objects of PAIA are chiefly the following:
a) to give effect
to the constitutional right of access to
any information
held by the state and
b)
to give effect to that right subject to
justifiable limitations.
See sec 1 Act No 2 of
2000.
[100]
Section 11(1) Act No 2 of 2000 provides that a requester must be
given a record of a public body if
– that requester complies
with all the procedural requirements of this legislation relating to
a request for access to that
record.
[100]
The above legislation was enacted to give effect to the
constitutional right of access to information,
regardless of whether
such information is in the hands of a public entity or a private
person. It has been authoritatively held,
in accordance with the
principle of constitutional subsidiarity, that claims for enforcing
the right of access to information must
be based on the statute,
Promotion of Access to Information Act, PAIA-
Mazibuko and Others
v City of Johannesburg and Others
2010 (4) SA 1
(CC)
. I pause to
point out that the applicant did not go down that avenue. Which route
then did the applicant follow?
[101]
Let me turn to another piece of legislation. Section
1 Act 3
of 2000
(PAJA) delineates that everyone whose rights have been materially and
adversely affected by administrative action and who
has not been
given reasons for the action may, within 90 days after the date on
which that person became aware of the action or
might reasonably be
expected to have become aware of the action, request that the
administrator concerned furnish written reasons
for the action. See
section 5(1)
Promotion of Administrative Justice Act 3 of 2000
.
[102]
Administrative reasons as envisaged in the section are not truly
genuine reasons until and unless
they are adequately informative. An
administrator’s reasons must explain why the action was taken
or not taken. Unless they
do, they are otherwise better described as
findings or some other information.
Hoexter: Administrative Law in
SA, 2
nd
ed
p461. An administrator’s
reasons have to explain why certain administrative decisions, on
which the action was based, were
taken. They are supposed to
ventilate the considerations that informed the action or inaction.
Anything other than that constitutes
information and falls outside
the legislative framework of this particular statute.
[103]
Among others, the applicant requires the respondent to give full
particulars of the decisions, to
give full underscoring documents
thereof, to give full minutes of any meeting, and to produce all
documents that were tabled before
the decision-maker and to produce
all documents that were tabled before any other functionary. This
then is the wide scope of the
applicant’s request. Such
request was irregular seeing that the applicant erroneously relied on
PAJA instead of PAIA
in its attempt to seek information from the
respondent. Consequently the request was not in line with the
principle as laid down
in
Mazibuko,
supra
.
[104]
In my view, none of the above segments of the applicant’s
request has anything to do with the
reasons for the administrator’s
decision or action. Each one of those multiple segments has
everything to do with information
pertaining to the administrator’s
decision and action. There is no provision made for such mode of
disclosure in the legislation
invoked in support of the applicant’s
request. It is rather quite vivid that the legislation colloquially
called PAJA is
exhaustively concerned with written request for
written reasons relative to and administrator’s decision or
action and not
an administrator’s record or information
relative to an administrative decision on which the action was
based. The
applicant’s reliance on the legislation that
concerns reasons instead of the legislation that concerns information
was fundamentally
misguided. The applicant was obliged to have
accordingly dichotomised its dual request.
[105]
An inherent flaw in the applicant’s request, apart from the
incorrect avenue or mode of disclosure
followed, is that it is
addressed to the respondent about a subject matter that substantially
concerns the departmental heads in
their official designation as
accounting authorities of the four departments concerned. Those
public officials are entirely independent
of the respondent. They
could not be simply disregarded on the ground that the framework
agreement was facilitated and signed by
the respondent alone.
[106]
I am persuaded that there was substance in the response of the
respondent to the applicant’s
request. The response properly
construes the true nature of the request. The request was
characterized by ambivalence. Although
the ambivalent character of
the request was correctly brought to the attention of the applicant,
the applicant neglected to break
it down into two small pieces and to
send one piece, a request for reasons, to respondent through PAJA and
to send the other piece,
a request for information, to the respondent
through PAIA. Those two legislations are the empowering instruments
of law. The applicant
ignored the fundamental distinction between
them at its own peril. The respondent’s objection prompted by
the applicant’s
reliance on PAJA in support of its two
fundamentally different requests was not a mere cosmetic
technicality. The objection
was informed by the decision in
Mazibuko,
supra.
[107]
I still firmly hold the view that the option to participate in the
national transversal contract
constitutes no administrative action.
When that point coupled with the nature of the applicant’s
request are cumulatively
considered together, then I am even more
convinced that the applicant was procedurally obliged to seek
recourse through PAIA as
opposed to PAJA for information concerning
the administrator’s action. It was never done. The applicant
certainly conflated
issues. In view of that conflation, the
respondent was justified to disregard the fatally irregular request –
Mzibuko,
supra
.
Also see
Hoexter, op
cit.
[108]
On the strength of all those considerations, I would determine the
issue relative to the applicable
legislation governing the request
for information in favour of the respondent. The
point in limine
was good in law. Therefore, it was well taken. The applicant’s
request for access to information under the purview of PAJA
was
procedurally irregular. The irregularity effectively vitiated the
validity of the request and practically rendered it null
and
void
.
[109]
I have dealt with the preliminary points as well as the substantive
merits of the application.
On both fronts the respondent has emerged
victorious. Although l painstakingly tried to exhaustively deal with
all the issues and
points raised, especially during the course of the
procedural skirmishes, I have to acknowledge that I have not achieved
that ambitious
objective. I have not traversed certain issues at
length, as I would have wanted to. Nonetheless, l have considered all
the issues
even though l have not pertinently addressed them all. As
far as all such issues are concerned, my ruling as an empire is
simply
the consistent call – advantage the respondent.
[110]
In the premises the application fails. The respondent has been
victorious. Therefore, the general rule of
costs applies. The costs
must follow success.
[111]
On behalf of the respondent it was contended that the application of
Cell C Service Provider
(Pty) Ltd was stillborn; that it would
be appropriate to award costs in favour of the respondent on the
punitive scale and
further that such costs should include those
occasioned by the employment of two counsels.
[112] I
am persuaded that the application was unmeritorious; that the
employment of two counsels was justified
and that the peculiar
circumstances of this particular case warrant a punitive order of
costs.
[113] I
accordingly make the following order:
113.1 The application is
dismissed;
113.2 The applicant is
directed to pay the costs on the scale as between attorney and
client;
111.3 The costs shall
include those occasioned by the employment of two counsels.
MH
RAMPAI, ADJP.
On
behalf of applicant: Adv S Grobler
Instructed
by:
Honey Attorneys
Bloemfontein
On
behalf of respondent: Adv N Snellenburg SC
With
him:
Adv
PT Masihleho
Instructed
by:
The State Attorney
Bloemfontein