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[2019] ZANCHC 58
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Exilaclox (Pty) Ltd v MEC, Provincial Department of Roads & Public Works, Northern Cape Province and Another (1615/2019) [2019] ZANCHC 58 (22 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Reportable:
YES /
NO
Circulate
to Judges:
YES /
NO
Circulate
to Magistrates:
YES
/ NO
Circulate
to Regional Magistrates:
YES
/ NO
Case No:
1615/2019
Date Heard:
18 / 10 / 2019
Date delivered:
22 / 11 / 2019
In
the matter between:
EXILACLOX
(PTY) LTD
Applicant
and
MEC,
PROVINCIAL DEPARTMENT OF ROADS & PUBLIC
WORKS,
NORTHERN CAPE PROVINCE
First
Respondent
MEC,
PROVINCIAL DEPARTMENT OF TREASURY,
NORTHERN
CAPE PROVINCE
Second
Respondent
Coram:
Dauds, AJ
JUDGMENT
DAUDS,
AJ
[1]
This matter involves an application brought by the Applicant on 25
July 2019 wherein it sought
an order in the following terms:
(a)
That
the 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 limits, forms
and service;
(b)
That
the first respondent be ordered to immediately proceed with the
implementation of the Tender that was awarded to the applicant
in
terms of the Court order dated 21 July 2017;
(c)
That
the first respondent be interdicted from re-advertising the Tender;
(d)
That
it is declared that the respondent has failed to comply with
paragraph 4 of the Court order dated 21 July 2017 in that the
respondent failed to negotiate with the applicant the requirements
and finishes to which the building must comply with in strict
compliance with the terms of reference and the building
specifications;
(e)
That
the respondent be ordered to pay the costs of the application on an
attorney and client scale
A brief factual
background
[2]
The 2
nd
Respondent required office space. It was the 1
st
Respondent’s function to fulfil the 2
nd
Respondent’s
needs. As a result, the 1
st
Respondent advertised a tender
on 29 July 2016 for the provision of office accommodation for a
period of 5 years and also provided
details of the specifications in
the tender documents. Interested parties were invited to submit bids.
A number of parties submitted
bids and one party, Alkara 79 CC was,
upon evaluation of all the bids, awarded the tender. Dissatisfied
with this decision, the
Applicant took it on review. On 18 November
2016
the parties – the Applicant
and the 1
st
Respondent – took an order by agreement.
In terms of the order, the 1
st
Respondent was required to
reverse its decision to award the tender to Alkara 79 CC and to
re-evaluate all the bids, including
the Applicant’s bid.
[3]
Upon a second evaluation of the bids, Alkara 79 CC was once again
awarded the tender. The Applicant,
together with another bidder by
the name of Ocean Echo Properties 333 CC, took this decision on
review. After hearing argument
on the matter, the review Court made
an order on 21 July 2017:
(i)
setting
aside the 1
st
Respondent’s decision to award the tender to Alkara 79 CC;
(ii)
declaring
the Applicant the preferred bidder in respect of the tender
advertised by the 1
st
Respondent on 29 July 2016;
(iii)
compelling
the 1
st
Respondent to negotiate with the Applicant, such negotiations to
involve the requirements and finishes the office building sought
by
the 1
st
Respondent must comply with.
[4]
Litigation in respect of the tender continued after the review
Court’s decision of 21 July
2017. Alkara 79 CC, the bidder to
whom the tender was awarded twice by the 1
st
Respondent,
brought an application on 23 August 2017 for rescission
of the review Court’s order. The rescission
application was
heard on 12 December 2017 and on 29 August 2018 judgment was
delivered dismissing the application. Alkara 79 CC
then applied for
leave to appeal. The application was dismissed. Alkara 79 then
petitioned the Supreme Court of Appeal for leave
to appeal. The
petition was dismissed on 28 March 2019.
[5]
On 10 April 2019 the 1
st
Respondent’s attorneys
wrote to the Applicant’s attorneys inviting the Applicant to
negotiations in compliance with
the review Court’s order of 21
July 2017. In accordance with the Court’s order, the
negotiations were to focus on the
requirements and finishes, which
the office building offered by the Applicant, had to comply with,
such negotiations to be, as
the order read, in strict compliance with
the terms of reference of the tender documents and the building
specifications. Negotiations
between the parties deadlocked, and in a
letter dated 02 July 2019 the 1
st
Respondent informed the
Applicant that it was cancelling the tender which the 1
st
Respondent said it planned to then re-advertise. The letter went on
to state that the Applicant would be afforded an equal opportunity
to
submit a bid once the tender was re-advertised. The Applicant then
brought this application.
The Issue of Urgency
[6]
When the matter was before the Court on 16 August 2019, the Court was
not persuaded that the matter
was so urgent that it had to be heard
on that day. The Court struck it from the roll and ordered the issue
of costs to stand over.
[7]
The matter was then set down for hearing on 18 October 2019.
According to Mr Cilliers, who appeared
for the Applicant and was
assisted by Mr Els, this was followed by a preferentially allocated
hearing date. Mr Van Aswegen appeared
for the 1
st
Respondent. The 2
nd
Respondent filed a Notice wherein it
made it clear that it abides the Court’s decision.
[8]
The Applicant justified the urgency of the matter on the ground that,
having been declared the
preferred bidder by the review Court, it
feared imminent harm as a result of the 1
st
Respondent’s
cancellation of the tender and its proposed re-advertisement. The
Applicant contended that the only way it could
protect its interests
in the face of the 1
st
Respondent’s notice that it
planned to re-advertise the tender, was by way of an interdict.
[9]
In defence of its interests, the Applicant wrote the following in
paragraph 65 of its founding
affidavit:
“
It
is of this
[sic]
utmost
importance that the first respondent does not proceed with the
threatened publication of a new invitation to tender. If the
respondent fails to provide an undertaking that it will not do so
pending the final determination of this application, the applicant
will launch a separate interlocutory application for interim
relief
”
[10]
The Applicant launched the present application on 25 July 2019. Upon
receipt of the Applicant’s papers,
the 1
st
Respondent gave the undertaking sought by the Applicant. The
undertaking was communicated to the Applicant’s attorneys by
the 1
st
Respondent’s attorneys by way of a letter
dated 29 July 2019. Paragraph 3 of the letter reads as follows:
“
With
reference to the urgency of the matter we have noted that it hinges
on the interdictory relief sought in respect of the re-advertisement
of the tender. Our instructions are to provide your client with an
undertaking (which is hereby done) that the tender will not
be
re-advertised pending finalisation of the current litigation
”
[11]
One would have thought that, to all intents and purposes, the 1
st
Respondent’s written undertaking disposed of the urgency of the
matter, thus no longer rendering the matter urgent. Not so.
The
Applicant persisted with the issue of urgency. In an email
communication dated 01 August 2019 in reply to the 1
st
Respondent’s written undertaking of 29 July 2019, the Applicant
appeared to accept that the undertaking not to re-advertise
the
tender pending finalisation of the matter no longer renders the
application urgent. However, in what seemed to be an attempt
to keep
the issue of urgency alive, the Applicant’s attorneys wrote in
their email of 01 August 2019 that the date of occupation
of the
office building by the 2
nd
Respondent (the Provincial
Department of Treasury) nevertheless rendered the matter urgent. The
Applicant suggested that any delay
in the occupation of the office
building by the 2
nd
Respondent would prejudice the 2
nd
Respondent. Ordinarily, if what the Applicant sought was an interim
interdict, it would have to show imminent and irreparable harm
to
itself (harm to its own interests) – and not harm to the
interests of some other party such as the 2
nd
Respondent.
The 2
nd
Respondent did not file any papers in the matter.
What the 2
nd
Respondent did file was a Notice stating that
it will abide the Court’s decision.
[12]
There was a fair amount of correspondence between the parties prior
to the Applicant launching its application
on 25 July 2019. It is
apparent from a letter dated 29 April 2019 written by the 1
st
Respondent’s attorneys to the Applicant’s attorneys that
the 2
nd
Respondent (the Provincial Department of Treasury
for whom the 1
st
Respondent was acquiring the office
accommodation) considered the resolution of the parking issue to be
of importance before taking
occupation of the office building. In
paragraph 8 of the letter, the 1
st
Respondent’s
attorneys wrote as follows:
“
8
.
In
anticipation of the negotiations you are kindly requested to provide
our office with:
8.1 . . .
8.7
your client’s proposal in respect of parking which remains an
issue to the Treasury Department
[2
nd
Respondent]
on
whose behalf our client advertised the
tender”
[13]
The significance of the parking issue was repeated in another letter
dated 13 June 2019 written by the 1
st
Respondent’s
attorneys to the Applicant’s attorneys. In paragraph 11 of the
letter the 1
st
Respondent’s attorneys wrote as
follows:
“
Our
instructions are to advise that, in the event that the issue of
parking and occupation space can be resolved, full occupation
must be
given to the Treasury Department
[2
nd
Respondent]
on
1 December 2019 . . .
”
[14]
It was common cause that while the Applicant was able to offer some
of the parking onsite, i.e. within the
office building offered by the
Applicant, the Applicant could only offer the rest of the parking
offsite, i.e. in another building
apparently approximately 500 metres
from the office building. It is also common cause that the 1
st
Respondent insisted on all the parking being onsite, i.e. within in
the same building, apparently because only this situation would
meet
or suit the 2
nd
Respondent’s needs.
[15]
It was evident that, until the issue of parking (and apparently also
the one of occupation space) was resolved,
the 2
nd
Respondent, for whom the 1
st
Respondent was acquiring the
office accommodation, was not keen to take occupation of the office
building. It seemingly was in
no hurry to do so. And it so happened
that up until the matter was argued before Court on 18 October 2019,
resolution of the parking
issue remained outstanding.
[16]
It appears that what the Applicant sought to do was to inject some
form of artificiality into the issue of
urgency by seeking to invoke
some harm or prejudice to be suffered not by the Applicant itself,
but rather apparently by the 2
nd
Respondent. As at 29
April 2019 and 13 June 2019 the Applicant was aware of the fact that
resolution of the parking issue was of
importance to both the 1
st
Respondent and 2
nd
Respondent before the 2
nd
Respondent was willing to take occupation of the office building.
[17]
The Court’s decision on 16 August 2019 to strike the matter
from the roll for lack of urgency was correct.
The matter lacked
urgency on that day mainly on two grounds:
17.1 the
1
st
Respondent had provided the written undertaking sought by the
Applicant not to re-advertise the tender pending finalisation of
the
matter; and
17.2 to
qualify for protection in the form of an interim interdict, the
Applicant ordinarily
must demonstrate harm to itself if the interdict
were not granted – not harm to some other party (such as, for
instance,
the 2
nd
Respondent in this matter).
[18]
The lack of urgency persisted throughout up until and including the
day on which the matter was next heard,
namely, on 18 October 2019.
Ordinarily, costs follow the result. There is therefore no reason why
the Applicant should not be held
responsible for the 1
st
Respondent’s costs attendant upon the striking of the matter
from the roll on 16 August 2019.
Applicant’s
prayer that 1
st
Respondent be ordered to implement the
Tender
[19]
The second prayer in the Applicant’s Notice of Motion reads as
follows:
“
That the
first respondent be ordered to immediately proceed with the
implementation of the Tender that was awarded to the applicant
in
terms of the Court order dated 21 July 2017
”
[20]
Upon a reading of the review Court’s order of 21 July 2019, it
is factually incorrect that the tender
advertised by the 1
st
Respondent for the provision of office accommodation was awarded to
the Applicant. Such language was simply not used by the Court
in its
order. The relevant part of the order (paragraph 3 thereof) reads as
follows:
“
It
is declared that Exilaclox (Pty) Ltd is the preferred bidder.
”
[21]
The Applicant appears to rely on that part of the order declaring it
the preferred bidder to contend that
the tender was awarded to itself
by the review Court, or to contend that the effect of the order was
to award the tender to the
Applicant.
[22]
Mr Cilliers submitted that there was nothing magical about the
Court’s use of the phrase “preferred
bidder”, and
that, having regard to the other terms of the review Court’s
order of 21 July 2017 and the full judgment
as well as the facts of
this matter, that part of the Court’s order declaring the
Applicant the preferred bidder should be
read as awarding the tender
to the Applicant, and all that was left to be done was for the 1
st
Respondent to implement the terms of the tender by ensuring that the
necessary agreement between the parties giving effect to the
Court’s
order was signed.
[23]
It goes without saying that, on the face of it, there is a difference
in meaning between the words “
the Applicant is declared the
preferred bidder
” and “
the Applicant is awarded
the tender
”. I do not believe that being declared a
preferred bidder could, without more, be translated as meaning that a
tender has
been awarded. Nor am I of the view that the review Court’s
order of 21 July 2017 could have been intended to be read, as it
were, as an award of the tender to the Applicant.
[24]
Mr Cilliers further contended that the issues in respect of which the
parties could negotiate were very limited.
As he put it, they were
“
numerus
clausus
”.
According to him, most of the issues involving the tender were fixed
—
they
had been settled and were not open to negotiation. Mr Cilliers
submitted that the only things the parties could negotiate were,
for
instance, the colour of the paint to be used on the walls, the
carpets to be laid and such other relatively insignificant issues.
Mr
Cilliers referred the Court to a part of the tender document titled
“
TERMS
OF REFERENCE AND BUILDING SPECIFICATION REQUIREMENTS FOR LEASE OF
OFFICE ACCOMMODATION ON BEHALF OF THE DEPARTMENT OF PROVINCIAL
TREASURY AT FRANCES BAARD DISTRICT, KIMBERLEY
”.
Mr Cilliers drew the Court’s attention to the items listed on
page 381 of this document. Those were the items that,
so Mr Cilliers
contended, could not be negotiated as they were already fixed
—
settled between the
parties. There were 19 items which, according to Mr Cilliers, were
non-negotiable from the Applicant’s
perspective. They included
the waiting area of the office building, the conference room, the
registry, the strong room, the boardroom,
the reception area, the
security/control room, the cleaners’ rest room, the disabled
toilet facility, the warehouse, the
training facility, the sick bay,
archive registry, registry, the kitchen, the covered parking, the
secured parking, the visitors’
parking and the full toilet
facilities.
[25]
The list of 19 items mentioned above is preceded by a heading which
reads as follows:
“
SPECIFICATION
FOR ADDITIONAL REQUIREMENTS AND FINISHES TO WHICH THE BUILDING MUST
COMPLY:
NB: The additional
required items are subjected to negotiation prior the awards
[sic]
,
preferred bidder will be required to submit detailed implementation
plan with regard to additional items
”
[26]
The next heading
—
the one immediately
following the above
—
reads
as follows:
“
COMPLIANCE
REQUIREMENTS
NB:
The compliance required items are subjected to negotiation prior the
awards
[sic]
,
preferred bidder will be required to submit detailed implementation
plan with regard to compliance items
”
[27]
The above heading is then followed by what appears to constitute a
list of the “compliance items”.
They include the carpets
or tiles for flooring, the security doors to be fitted on all
external doors as well as the store room,
the burglar bars to be
fitted on all windows, the demarcation of the waiting room, the
air-conditioning in all offices and the
storeroom, the blinds on all
windows, the double power skirting in all offices, the accessibility
of the office building to people
with disabilities, the emergency
escapes which includes fire-fighting equipment and signage,
compliance with building regulations.
Compliance with the
specifications required by the Provincial Treasury (2
nd
Respondent) for whom the office accommodation was sought is also
expressly mentioned.
[28]
The tender documents thus made it clear that all those items that Mr
Cilliers contended were relatively insignificant
and not subject to
negotiation actually had to be negotiated and resolved between the
1
st
Respondent and a bidder before the tender could be
awarded. The language of the tender documents is clear. It was very
clear that
the parties were in disagreement in respect of at least on
2 items – the parking and the office accommodation space.
[29]
It was common cause that the parking issue remained a bone of
contention between the parties. It was apparent
that the 1
st
Respondent required a total of 199 parking bays or areas. While the
Applicant offered some of the parking within the same office
building, the Applicant was only able to make the rest of the parking
available offsite, i.e. in another building approximately
500 metres
away. The 1
st
Respondent insisted that, in accordance with
the 2
nd
Respondent’s needs, all the parking should
be made available within the same office building. Mr Cilliers
submitted that
the fact that the rest of the parking was made
available offsite was of no moment. Mr Van Aswegen who appeared for
the 1
st
Respondent maintained that the parking issue was
of importance to the 1
st
Respondent. He sought to
demonstrate the actual distance between the offsite parking and the
office building offered by the Applicant
by referring the Court to an
aerial picture showing the location of the office building and the
location of the offsite parking.
The aerial picture formed part of
the bundle of documents. It was common cause that the offsite parking
was located approximately
500 metres from the office building.
[30]
The parties could not agree on the parking issue. While the
1
st
Respondent insisted that its tender specifications for the office
accommodation require that all the parking should be in the same
building, the Applicant took the view, firstly, that its bid complied
with all the specifications of the tender. Mr Cilliers submitted
that
the parking issue did not constitute a matter so material or
substantive for the 1
st
Respondent not to, as it were,
implement the tender in the Applicant’s favour, especially in
view of the review Court’s
order which declared the Applicant
the preferred bidder. He further contended that, in any event, it was
simply not possible to
have all the parking in the same building.
That the resolution of the parking issue was a serious matter for the
1
st
Respondent is apparent from the letters dated
29 April 2019 and 13
June 2019 sent
to the Applicant’s attorneys by the 1
st
Respondent’s attorneys. In the letter of 29 April 2019, the 1
st
Respondent requested the Applicant, in anticipation of the
negotiations as directed by the Court order of 21 July 2017, for
proposals
in respect of parking which the 1
st
Respondent’s
attorneys wrote remained an issue. In paragraphs 4, 5 and 6 of a
further letter dated 13 June 2019 the 1
st
Respondent’s
attorneys wrote as follows:
“
4.
There appears to be three obstacles that our respective clients need
to overcome to enable the Department
to enter into a lease agreement
with your client.
Parking
5.
We had the opportunity to familiarize ourselves with the current
parking offered and attach hereto
a Google Map printout of the area.
Although it might be so that the parking is not ‘1 kilometre
away from the Flaxley House
[the
location of the office building]’,
it
most definitely is also not ‘literally across the street’
as alluded to by Ms Campodonico during our discussions.
6.
The unfortunate fact of the matter is that the current situation is
wholly unsuitable to our client’s
needs and unless this issue
can be resolved, this issue appears to be unsurpassable
”
[31]
The letter of 13 June 2019 proceeds as follows:
“
Occupation
Space
7.
Whilst your client offers a total rentable area of 10,477m
2
,
the Department only required a total rentable area of 7,930m
2
.
8.
This amounts to a monthly payment of R4,006,940.40 (in respect of the
first year) towards wasted
space which will result in wasteful and
fruitless expenses to the Department. Kindly provide us with
your client’s
comments and proposed way forward on this issue”
[32]
Mr Cilliers submitted that while the 1
st
Respondent’s
office space requirements (for use by the 2
nd
Respondent)
was indeed 7,930m
2
and the Applicant did in fact offer
10,477m
2
of office space, there would be no additional
charge in respect of the excess space. Mr Van Aswegen who appeared
for the 1
st
Respondent contended that the matter was not
quite as settled as Mr Cilliers made it out to be and that it
remained an issue, at
least as far as the 1
st
Respondent
was concerned.
[33]
In view of all the outstanding issues, the question is whether,
having regard to the review Court’s
order declaring it the
preferred bidder, the Applicant’s contention or conclusion that
the review Court’s order should
be read as having awarded it
the tender was reasonable or sustainable? Having regard to the
language of the order as well as the
disagreements between the
parties, I do not believe so. The parking issue appeared to have been
a fundamental bone of contention
for the 1
st
Respondent.
In these circumstances, it would be difficult to draw the reasonable
conclusion that the 1
st
Respondent had any intention to
contract with the Applicant. In other words, it lacked the “
animus
contrahendi
.”
[34]
Ordinarily, preferred bidder status in procurement matters precedes
the actual award of a tender. At preferred
bidder stage, no final
award of the tender is usually made. A preferred bidder is the party
with whom a contract may eventually
be entered into as part of the
finalisation of the award of a tender. This is the position the
Applicant in this matter found itself
in as a preferred bidder. It
did not have the contract in hand yet, although it might still.
[35]
An award of the tender was never made to the Applicant – not by
the 1
st
Respondent, nor the review Court’s order of
21 July 2017. It is accordingly not competent for this Court to make
the order
sought by the Applicant in paragraph 2 of its Notice of
Motion wherein it prays for an order:
“
That the 1
st
Respondent immediately proceed with the implementation of the tender
that was awarded to the Applicant in terms of the Court order
dated
21 July 2019
”
[36]
Mr Cilliers relied on, among others,
Jicama 17 (Pty) Ltd v West
Coast District Municipality
2006 (1) SA 116
(C) for support of
his contention that, having regard to the circumstances of the matter
as well as the review Court’s order,
the tender advertised by
the 1
st
Respondent had been awarded to the Applicant.
However, the facts of the Jicama case are distinguishable from those
of the present
matter. In the Jicama case, the Applicant was informed
in writing on 12 July 2004 by the West Coast District Municipality
that
the Applicant’s bid for the tender had been successful.
The Applicant then sent a letter to the municipality in which it
intimated its acceptance of the municipality’s tender. In other
words, an offer was made by the municipality and it was accepted
by
the Applicant. The necessary elements of “
animus
contrahendi
” (intention to contract) were present.
However, in a letter dated 25 October 2004 the municipality informed
the Applicant
that it had decided to re-advertise the tender, thereby
cancelling the tender after acceptance thereof by the Applicant. It
was
for all the above reasons that the Court in that matter was
disposed to finding in favour of the Applicant by setting aside the
municipality’s decision to cancel the tender.
[37]
In the present case the Applicant was never informed by the 1
st
Respondent that its bid was successful, nor had the review Court made
such an order.
[38]
Mr Cilliers also relied on
CGWE Altsthom Equipments v GKN Sankey
(Pty) Ltd
1987 (1) SA (A) 81 to drive home the point that the
Applicant had been awarded, or effectively awarded, the tender and,
as such,
a binding contract came into being between itself and the
1
st
Respondent, the terms of which the 1
st
Respondent was required to implement.
[39]
The facts of the CGWE Altsthom case are similarly distinguishable
from those of the present matter. In that
case, the Court of first
instance and the Court of Appeal found, as was contended by GKN
Sankey, that its bid for the manufacture
and supply of steel cable
trays to be used as a support system in the installation of 20,000
electrical cables, was accepted by
CGWE Altsthom, thus bringing a
binding contract into being between the parties. In this regard, both
the Court of first instance
and the Court of Appeal relied on a
letter written by CGWE Altsthom wherein it communicated its
acceptance of GKN Sankey’s
bid, as well as the parties’
conduct and interactions subsequent to the letter which left no doubt
about the acceptance of
the bid. And, quoting the remarks of
Watermeyer ACJ in
Reid Bros (South Africa) Ltd v Fischer Bearings
Co. Ltd
1943 AD 232
at 241, namely, “
. . . a binding
contract is as a rule constituted by the acceptance of an offer
”,
the Appellate Division (as it then was) in the CGWE Altsthom case
found that GKN Sankey’s bid constituted an offer
made
animus
contrahendi
(with the intention to contract).
[40]
In the present matter the 1
st
Respondent never provided
the Applicant with any form of communication, written or otherwise,
that its bid had been accepted and
the tender accordingly awarded to
the Applicant. In fact, it is common cause that the 1
st
Respondent had twice decided to award the tender to another bidder,
namely, Alkara 79 CC, a decision which the Applicant had taken
on
review twice. The review Court had also never actually made the
decision to award the tender to the Applicant. What the Court
did do
was to declare the Applicant the preferred bidder. And while Mr
Cilliers strenuously contended that the review Court’s
declarator effectively amounted to a decision to award the tender to
the Applicant, this Court does not agree with the contention.
Interpretation of
the Review Court’s order
[41]
As correctly pointed out by Mr Cilliers in his heads, in
Firestone
South Africa (Pty) Ltd v Genticuro A.G.
1977 (4) SA 298
(A) the
Court said the following at 304D-F:
“
The basic
principles applicable to construing documents also apply to the
construction of a court’s judgment or order: the
court’s
intention is to be ascertained primarily from the language of the
judgment or order as construed according to the
usual, well-known
rules
”
[42]
The Court went on to say that:
“
Thus, as in
the case of a document, the judgment or order and the court’s
reasons for giving it must be read as a whole in
order to ascertain
its intention. If, on such reading, the meaning of the judgment or
order is clear and unambiguous, no extrinsic
fact or evidence is
admissible to contradict, vary, qualify,
or
supplement it
”
[43]
It is apparent that when pronouncing judgment in the review case, Her
Ladyship, Ms Justice Mamosebo and His
Lordship, Mr Acting Justice
Lever sitting as the review Court, were alive to the distinction in
meaning between a decision to award
a party a tender and a decision
to declare a party a preferred bidder. A copy of the review Court’s
judgment and order formed
part of the record of the proceedings. For
instance, in paragraph 9 of the judgment, the Court wrote as follows:
“
It
is common cause that the Bid was awarded to Alkara 79 CC
”
[44]
In paragraph 10 of the judgment, the Court wrote further:
“
. . . Alkara
was again found to be the most successful bidder and was awarded the
tender
”
[45]
And in paragraph 35 of the judgment, the Court wrote:
“
. . . the
decision to award the bid to Alkara stands to be reviewed and set
aside
”
[46]
It is clear that the Court understood that Alkara 79 CC was actually
previously awarded the tender, and not
merely declared a preferred
bidder, as the Applicant was by the review Court’s order.
[47]
The review Court’s language in its judgment and the order is
clear and unambiguous. Nowhere in either
the judgment or the order
can the Court’s language be read as meaning that the Court had
made a decision to award the tender
to the Applicant, or that the
effect of the order is that the tender was awarded to the Applicant.
Such an interpretation of the
order does not accord with the Court’s
clear language or intention.
Applicant’s
prayer that the 1
st
Respondent be interdicted from
re-advertising the tender
[48]
This issue has extensively been addressed under the issue of urgency.
The 1
st
Respondent did, through its attorneys, give the
written undertaking sought by the Applicant not to re-advertise the
tender pending
finalisation of the matter. The Applicant nevertheless
persisted with the application on an urgent basis and with this
prayer.
Applicant’s
prayer for a declarator that 1
st
Respondent had failed to
negotiate in compliance with the review Court’s order
[49]
It is common cause that another bidder, Ocean Echo Properties 333 CC,
brought an application to have the
review Court’s order of 21
July 2017 rescinded. The application was dismissed. Ocean Echo
Properties then applied for leave
to appeal. The application was
denied. Ocean Echo Properties then petitioned the Supreme Court of
Appeal for leave to appeal. This
petition was denied on 28 March
2019. It was only after this date that any negotiations between the
1
st
Respondent and the Applicant in compliance with the
review Court’s order could commence.
[50]
It is also common cause that the 1
st
Respondent’s
attorneys sent the Applicant’s attorneys a letter dated 10
April 2019 wherein the Applicant was invited
to negotiations with the
1
st
Respondent in compliance with the review Court’s
order. The 1
st
Respondent’s attorneys proposed two
dates to meet and asked the Applicant to confirm its availability.
The parties met on
17 April 2019. Correspondence between the parties
followed after this first meeting. The first letter after the meeting
was dated
23 April 2019, written by the Applicant’s attorneys
to the 1
st
Respondent’s attorneys. The 1
st
Respondent’s attorneys replied by way of a letter dated 29
April 2019. In paragraph 8.7 of that letter the 1
st
Respondent’s attorneys wrote that the parking as required in
accordance with the tender documents remained an issue for their
client (i.e. 1
st
Respondent) and the Applicant was invited
to make proposals in this regard. The Applicant quoted the letter of
29 April 2019 in
full in paragraph 36 of its founding affidavit.
[51]
Further letters followed between the parties during May 2019 –
on 09 May 2019 and 22 May 2019. The
parties met again on 23 May 2019.
More letters were exchanged between the parties after the second
meeting. These letters are dated
23 May 2019 (sent right after the
meeting), 04 June 2019, 13 June 2019 and 25 June 2019. In their
letter of 13 June 2019 the 1
st
Respondent’s
attorneys repeated the issue involving parking (and other issues such
as the occupation space and occupation
date). On the issue of
parking, the 1
st
Respondent’s attorneys wrote that
their client was not happy with the offsite parking offered by the
Applicant. The attorneys
wrote that the parking situation was wholly
unsustainable to their client’s needs and unless the issue was
resolved, it remained
a stumbling block.
[52]
On 16 July 2019 the 1
st
Respondent’s attorneys wrote
the Applicant’s attorneys a letter wherein they referred to the
negotiations between the
parties and the issues that remained
outstanding, namely, that the 2
nd
Respondent (Provincial
Department of Treasury) required all of its parking to be onsite
(i.e. within the same building) and that
the resolution proposed by
the Applicant in this regard (the offer of onsite and offsite
parking) was not acceptable to the 2
nd
Respondent. The
Applicant was then informed in the letter that the 1
st
Respondent was cancelling the tender with immediate effect. The
letter went on to say that the tender would be re-advertised and
that
the Applicant was afforded an equal opportunity to submit a bid in
respect of the re-advertised tender.
[53]
It is apparent from the above facts that it cannot be said that the
1
st
Respondent failed to negotiate with the Applicant in
compliance with the review Court’s order of 21 July 2017. The
factual
position is that the parties did negotiate, but negotiations
broke down.
In the circumstances,
the following order is made:
THE APPLICATION IS
DISMISSED WITH COSTS, INCLUDING THE COSTS OF 16 AUGUST 2019.
CI DAUDS
ACTING JUDGE
Obo Applicant:
Adv.
P.G. Cilliers SC; asst by Adv. APJEIs (oio
Waldick Jansen van Rensburg Attorneys,
Centurion c/a Duncan & Rothman, Kimberly)