About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2019
>>
[2019] ZAECELLC 11
|
|
Venture v Buffalo City Metrpolitan Municipality and Others (EL783/2018) [2019] ZAECELLC 11 (2 April 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, EAST LONDON)
Case
No: EL 783/2018
In
the matter
between:
CERIMELE-UKHOZI
JOINT VENTURE
Applicant
And
BUFFALO
CITY METROPOLITAN MUNICIPALITY
First Respondent
RANDCIVILS
(PTY) LTD
Second Respondent
THE
MINISTER OF WATER AFFAIRS & FORESTRY
Third
Respondent
JUDGMENT
BESHE
J:
[1]
The merits of the dispute
between the parties in this matter has been settled in the sense
that
applicant abandoned the application for the substantive relief it was
seeking. The issues that remains for determination is:
Between the
applicant and first respondent which party should bear the costs of
the application until its abandonment?
[2]
For the claim to entitlement to
costs, applicant contends that the application was both
warranted and
necessary and it was substantially successful. First respondent on
the other hand asserts that they are entitled
to costs based on the
following reasons: Applicant failed to exhaust internal remedies, the
application was not urgent, it was
improperly premised in that the
provisions of PAIA should have been used and not PAJA and the notice
of intended proceedings was
improperly served.
[3]
The following facts appear to be
common cause:
Applicant
launched the application in question on 2 July 2018 seeking
inter
alia
orders:
that
the application be heard on an urgent basis;
that
the first respondent be directed to provide written reasons for
awarding the tender in question to second respondent and not
to the
applicant;
directing
the first respondent to provide documents to support the said
reasons.
[4]
It is also common cause that
first respondent’s decision was communicated to the
applicant
on the 6 June 2018 by the Acting General Manager
N Mxo
.
[5]
Applicant asserts that in the
aforementioned communique it was advised to direct communications
“about the tender” to
Ms du Plessis
. Further that
after receiving the communique, they enquired from
Ms du Plessis
about the identity of the successful bidder. No response was
received. On the 15 June 2018 reasons for awarding the tender to
second respondent were sought from
Ms du Plessis
together with
supporting documents.
Ms du Plessis
responded that the request
has been referred to the General Manager. In the General Manager’s
response, it was indicated that
that the matter has been referred to
the first respondent’s legal department.
[6]
Attempts by applicant to get
second respondent to suspend operations in implementation
of its
obligation in terms of the contract concluded with the applicant
failed.
[7]
According to the applicant, it
was after not getting any joy from first respondent after
these
endeavours that resort was had to launching the urgent application in
question.
[8]
It would appear that applicant
abandoned the application after reasons for not awarding
the tender
to it became apparent from paragraph 27 of the first respondent’s
Municipal Manager. Paragraph 27 of the answering
affidavit records:
“
I
admit only that applicant submitted the tender. I specifically deny
that the tender complied with all the conditions, as alleged.
I state
however that the applicant’s tender was non-responsive as it
did not comply with the local content requirement as
specified in the
addendum and it was disqualified for that purpose.”
Applicant
contends that had the first respondent provided reasons timeously,
the necessity for the application would have been obviated.
[9]
I have already stated the basis upon which first respondent asserts
it is entitled
to costs. I do not propose to repeat them. In his
affidavit, the Municipal Manager makes the point that no request for
reasons
was directed to him. He further states that he is the only
functionary empowered by first respondent’s council to deal
with
litigation and potential litigious matters.
[10]
For options open to it in respect of internal remedies, applicant did
not need to go any further
than the note appearing on the foot of the
latter advising that its bid for the tender was unsuccessful. The
note reads as follows:
“
Note: In terms of
Clause 49 of the BCMM Supply Chain Management Policy, you may lodge a
written objection or complaint against the
decision within fourteen
(14) days of such decision having been taken. Alternatively, in terms
of Section 62 of the Municipal Systems
Act, you may appeal against
the decision within twenty-one (21) days of notification of the
decision.”
There
is no evidence that these options were pursued by the applicant.
[11]
Comments made by
Alkema
J
IN
Evaluations
Enhanced Property Appraisals (Pty) Ltd v The Buffalo City
Metropolitan Municipality NO
[1]
were drawn to my attention by first respondent. I find these remarks
apposite as regards the correct approach to follow when requesting
reasons. As well as to the previous point of failure to exhaust
internal remedies for purposes of the Promotion of Administrative
Justice Act (PAJA) as well as the person whom the request for
information should be directed.
Alkema
J
had
this to say:
“
the
letter of 21 August 2012 can by no stretch of imagination be
construed as either a request for reasons or a notice of appeal.
The
letter is a request for information relating to the tender process
and documentation. The right of access to information must
be
exercised in the manner prescribed by PAIA. It requires the
completion of certain formal request forms, the payment of a fee,
and
must be addressed to the Information Officer. It has nothing to do
with the right to be given written reasons for a decision,
which is
exercised under section 5 of PAJA read with section 33(2) of the
Constitution. PAIA and PAJA serve different purposes
and cater for
different rights, and are not to be conflated. It is not possible to
use PAIA for the purpose of PAJA as Applicant
seems to suggest. The
letter requesting access to information can thus not be construed as
a request for a decision under section
5 of PAJA.”
[12]
Similarly in
Nolusizo
Makhambi v MEC for Health, Eastern Cape and Another
[2]
Mbenenge
JP
stated as follows in this regard after referring to
Section
14
and
16 of
Access to Information Act
(PAIA):
“
[15] Upon a proper
reading of these sections it is the manual of a public body
contemplated in section 14 that sheds light regarding,
inter alia,
the address to which a request and where applicable, an appeal should
be sent, the functionary to whom the request
should be made and a
description of the remedies available to an aggrieved requestor
before court proceedings can be instituted.”
I
share the views expressed in these matters.
[13]
Section
3
and
4
of the Institution of Legal Proceedings Against Certain Organs of
State
[3]
deal with notices of intended legal proceedings to organs of state.
Section
4 (2) (b)
provides
that where such organ of state is the Municipality, the notice must
be served to the Municipal Manager. There is therefore
in my view
merit in the submissions that the General Manager of the SCM was not
the correct functionary to whom the letter in question
should have
been directed.
[14]
It does not assist the applicant to suggest that
the letter advising the applicant that its bid was not
successful
cited
Ms du Plessis
as the person to whom enquiries regarding
the tender should be directed. In fact the letter does not state that
enquiries regarding
the tender should be directed to her in so many
words. Her name is provided in a box at the top of the letter under
“enquiries”.
[15]
It is not difficult to phantom why the contents of
applicant’s letter was referred to the second respondent.
Paragraph 12 of the said letter records:
“
12. We require a
written undertaking by no later than
12h00 on Tuesday, 19 June
2018
that no steps of whatsoever nature will be taken to
implement any aspect of the Tender pending receipt of the documents
we have
requested and for a period of 10 (ten) days thereafter to
enable our client to consider its position. Randcivils is hereby
requested
to provide the same undertaking sought from our client in
this paragraph.”
[16]
It was argued on behalf of the first respondent
that applicant did not succeed in its application. That
as a general
rule the successful party is entitled to costs.
[17]
It is trite that costs are awarded to a successful
party in order to indemnify him for the expense to which
he has been
put through either having to initiate or defend litigation. It is
also trite that costs follow the event that the successful
party is
entitled to their costs. In my view, success in this case would
entail applicant succeeding even if partially in obtaining
an order
directing the applicant to do the things that were sought by the
applicant. For example – reasons, even if only
part of
documents required and some reasons. This did not happen. The reason
that applicant gleaned from the answering affidavit
could have been
obtained without resort to court had the applicant followed the
correct channels and procedures to obtain them.
[18]
I am not persuaded that applicant achieved any
success in relation to the application. Applicant is therefore
not
entitled to costs. This includes the costs of the postponement of the
10 July 2018 which as I understand was at the behest
of the
applicant.
[19]
In the result, the applicant is ordered to pay the
costs of the application including the costs of the postponement
of
10 July 2018.
_____________
NG BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant :
Adv: PS Bothma
Instructed
by
:
DU TOIT
McDONALD INC
C/o DRAKE FLEMMER &
ORSMOND INC.
22 St James Road
Southernwood
EAST LONDON
Ref: S Nel/MAT/34909/T92
Tel.: 043 – 722
4210
For
the 1
st
Respondent: Adv: PR
Quinn SC & Adv: SG Poswa
Instructed
by
:
ENZO
MEYERS ATTORNEYS
121 Devereaux Avenue
Vincent
EAST LONDON
Ref: E Meyers
Tel.: 046 – 721
1109
Date
Heard
:
21
February 2019
Date
Reserved :
21 February
2019
Date
Delivered :
2 April
2019
[1]
Case number EL 1554/2012 (unreported).
[2]
Mthatha case number 3262/2018 (also unreported).
[3]
Act 40 of 2002.