About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2018
>>
[2018] ZAKZPHC 63
|
|
Tupac Business Enterprises CC v Chairperson: KwaZulu-Natal Gaming and Betting Board and Others (6153/2018P) [2018] ZAKZPHC 63 (9 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 6153/2018P
In
the matter between:
TUPAC
BUSINESS ENTERPRISES
CC
Applicant
and
THE
CHAIRPERSON KWAZULU-NATAL
GAMING
AND BETTING BOARD
First
Respondent
THE
CHAIRPERSON KWAZULU-NATAL
GAMING
AND BETTING BOARD APPEAL
COMMITTEE
Second Respondent
THE
CHAIRPERSON BID ADJUDICATION
COMMITTEE
KWAZULU-NATAL GAMING
AND
BETTING
BOARD
Third Respondent
THE
KWAZULU-NATAL GAMING
AND
BETTING BOARD
Fourth
Respondent
KIBE
PROPERTY (PTY)
LTD
Fifth Respondent
JUDGMENT
Vahed
J
:
[1]
The
fourth respondent required office space to conduct its activities
and, in Pietermaritzburg, resolved to procure suitable office
space
through the Department of Public Works. That process became delayed
and was ultimately terminated. During March 2016 the
fourth
respondent embarked upon a tender process calling for prospective
lessors to put in bids for premises potentially suitable
for the
fourth respondent’s activities in Pietermaritzburg. Ultimately
that process too did not result in the fourth respondent
acquiring
premises. None of that is relevant for present purposes, but that
brief background picture suggests why the fourth respondent
embarked
upon the process dealt with below.
[2]
During
July 2017 the fourth respondent identified two properties in
Pietermaritzburg which appeared to be potentially suitable for
its
purposes and invited the fifth respondent and the applicant to put up
bids for the leasing of those premises. Insofar as the
applicant was
concerned the invitation concerned premises at 165 Pietermaritz
Street, Pietermaritzburg and it appears that those
premises were
identified consequent upon the earlier advice given to the fourth
respondent by the applicant, through its manager,
one Ashraf Dawood
Mohammed, that the premises were available should the fourth
respondent be interested.
[3]
The
fact that the fourth respondent did not embark upon an open tender
process but instead opted to invite just two respondents
in a closed
bidding session is what this case in concerned with. It was referred
to as the deviated tender process.
[4]
Ultimately
the applicant’s bid was rejected, the fifth respondent’s
bid was accepted, and it appears that the fourth
respondent has
entered into a leasing arrangement with the fifth respondent.
[5]
The
applicant commenced these review proceedings initially contending
that the rejection of its bid was unlawful and also taking
issue with
the deviated tender process and other aspects concerning the award of
the leasing contract to the fifth respondent.
[6]
Ultimately,
when the matter came to be argued before me, the applicant no longer
challenged the rejection of its bid and no longer
sought to review
its rejection.
[7]
It
was common cause that the invitation to bid contained the following
special requirement:-
“
5.1
Bidders must own the property which they intend refurbishing or have
a valid mandate from the owner.
Proof
of such must be submitted with the bid
.
(
Emphasis
in the original
)
Where an agent intends to submit a bid on behalf of the legal owner
of a property, such agent must attach a certified copy of
the mandate
given by the legal owner of such property to the agent. The agent
must ensure that all information required to be provided
in terms of
the bid documents relates to the legal owner of the property and not
the agent (i.e. tax clearance certificates, B-BBEE
certificates,
company docs etc. to be those of the owner and not the agent).
If the property offered is a pending purchase
and sale or an intended
purchase and sale, confirmation of this must be furnished the build
will not be considered if the purchase
and sale of the property is
still required to be subject to a financial agreement, re-zoning
and/or incorrect title deed. Landlords
must indicate to their
shareholding and should attach shareholding certificate copies as
well as copies of the title deed of the
premises which is being
offered in this bid at the time of the closing of the bid.”
[8]
The
requirements set out in paragraph 5.1 of the invitation (as quoted
above) are abundantly clear and they require no discussion
as to what
was required of a person responding to the bid invitation.
[9]
It is
common cause that the applicant was not the owner of the property in
respect of the bid it put up and that it did not comply
with the
other requirements of special requirement 5.1 in circumstances where
the bid was being put up by someone who was not the
owner of the
property.
[10]
It
was consequently abundantly clear as to why, when the matter came to
be argued before me, the applicant sought no longer to challenge
the
fact that its bid had been disqualified. Instead the review was
centred around other aspects of the process, particularly the
fact
that the fourth respondent embarked upon the deviated tender process
instead of putting the bid out to full open tender.
[11]
In
its replying affidavit the applicant made its position abundantly
clear. In paragraph 40 of the replying affidavit it said that
its
case stood or fell on the assertion that it was a bidder in its own
name with the consent of the owner of the property (the
Ashwood
Trust); and that it was not its case that the bid was submitted as
agent for that trust.
[12]
Because
the applicant no longer attacks the rejection of its own bid the
respondents now challenge the applicants standing in the
review.
[13]
The
parties were accordingly agreed that I should deal with this issue
first.
[14]
The
respondents challenge the applicant’s
locus
standi
because
they say that the applicant’s interest in the outcome of the
review is purely academic because it no longer retains
an interest in
the bid itself. It rendered a non-responsive bid. It was common cause
that on its bid the applicant could not have
been awarded the leasing
contract and that the setting aside of the bid process would not
result in the applicant’s bid being
accepted or in the
applicant’s bid being one that could be considered in any
subsequent process. For a subsequent process
to be beneficial to the
applicant it would have to submit a bid that differed materially from
the current bid because it would
have to cure that very fundamental
objection i.e. its compliance with the special requirement 5.1.
[15]
In
Giant
Concerts CC v Ronaldo Investments (Pty) Ltd
2013 (3) BCLR 251
(CC), Cameron J, speaking for the court, said the
following (footnotes omitted):-
“
[30]
The Supreme Court of Appeal has rightly suggested that “adversely
affects” in the definition of administrative
action was
probably intended to convey that administrative action is action that
has the capacity to affect legal rights, and that
impacts directly
and immediately on individuals. The effect of this is that Giant, as
an own-interest litigant, had to show that
the decisions it seeks to
attack had the capacity to affect its own legal rights or its
interests.
[31]
In seeking to assert this right, Giant has never claimed to be acting
on behalf of someone else who was incapacitated, or as
a member of,
or in the interest of, a group or class of persons, or in the public
interest, or in the interest of the members of
an association. The
sole interest it claims to assert is its own, which during argument
its Counsel correctly described as commercial.
It is that interest we
must examine to see whether it affords Giant title to challenge the
transaction.
[32]
And in determining Giant’s standing, we must assume that its
complaints about the lawfulness of the transaction are correct.
This
is because in determining a litigant’s standing, a court must,
as a matter of logic, assume that the challenge the litigant
seeks to
bring is justified. As Hoexter explains:
“
The
issue of standing is divorced from the substance of the case. It is
therefore a question to be decided
in
limine
[at
the outset], before the merits are considered.”
[33]
The separation of the merits from the question of standing has two
implications for the own-interest litigant. First, it signals
that
the nature of the interest that confers standing on the own-interest
litigant is insulated from the merits of the challenge
he or she
seeks to bring. An own-interest litigant does not acquire standing
from the invalidity of the challenged decision or
law, but from the
effect it will have on his or her interests or potential interests.
He or she has standing to bring the challenge
even if the decision or
law is in fact valid. But the interests that confer standing to bring
the challenge, and the impact the
decision or law has on them, must
be demonstrated.
[34]
Second, it means that an own-interest litigant may be denied standing
even though the result could be that an unlawful decision
stands.
This is not illogical. As the Supreme Court of Appeal pointed out,
standing determines solely whether
this
particular
litigant is entitled to mount the challenge: a successful challenge
to a public decision can be brought only if “the
right remedy
is sought by the right person in the right proceedings”. To
this observation one must add that the interests
of justice under the
Constitution may require courts to be hesitant to dispose of cases on
standing alone where broader concerns
of accountability and
responsiveness may require investigation and determination of the
merits. By corollary, there may be cases
where the interests of
justice or the public interest might compel a court to scrutinise
action even if the applicant’s standing
is questionable. When
the public interest cries out for relief, an applicant should not
fail merely for acting in his or her own
interest.
[35]
Hence, where a litigant acts solely in his or her own interest, there
is no broad or unqualified capacity to litigate against
illegalities.
Something more must be shown.
[36]
How much more was the issue in
Ferreira
. There this Court
considered own-interest constitutional standing under the interim
Constitution, whose provision here was materially
similar to section
38 of the Constitution. The applicants were obliged to answer
questions at an inquiry under a statute
providing that their answers,
even if incriminating, could later be used in evidence against them.
They sought to challenge the
constitutional validity of the
provision. But they had not yet been charged, nor was there an actual
prosecution, or even one threatened,
where their answers would be
used against them. This Court split on whether this gave them
standing to challenge the provision
on fair-trial grounds. A majority
found that it did. Chaskalson P held that, even where own-interest
standing is at issue, this
Court should adopt a “broad
approach”:
“
This
would be consistent with the mandate given to this Court to uphold
the Constitution and would serve to ensure that constitutional
rights
enjoy the full measure of protection to which they are entitled.”
[37]
The object of the standing requirement, the Court held, was that
courts “should not be required to deal with abstract
or
hypothetical issues, and should devote its scarce resources to issues
that are properly before it”. The Court held that
own-interest
standing does not require that a litigant must be the person whose
constitutional right has been infringed or threatened:
“What
the section requires is that the person concerned should make the
challenge in his or her own interest.” That
was plainly the
case with the applicants. The core of their complaint was that they
were required to answer questions that might
incriminate them, and
which might later be used in evidence against them. This meant that
the provision directly affected their
interests. Even though the
“direct” interest lay in the potential impact of the
challenged provision on their interests
– since no prosecution
was impending or threatened – their wish to secure a ruling on
the provision was not hypothetical
or academic, but raised a real and
substantial issue. They therefore had sufficient interest in having
it resolved.
[38]
Similarly, in
Eisenberg
, the question was whether the
Minister could issue regulations without following a statutory
consultative process involving a public
notice and comment procedure.
This Court held that a law firm practising mainly in immigration law
had own-interest standing to
challenge regulations that the Minister
issued without following that process. The Court pointed out that the
law firm would have
had a right to comment on the draft regulations,
had the process been applicable to them. The law firm therefore “had
an
interest as a member of the public in asserting the right that it
claimed to have and had standing to raise that issue in its own
interests.”
[39]
And in
Kruger v President of Republic of South Africa and
others
an attorney was held to have personal standing to
challenge presidential proclamations that were of “direct and
central importance”
to the field in which he practised. The
attorney had established that significant legal uncertainty existed
about the proclamations,
with adverse effects on the administration
of justice. This had negatively affected his ability to understand
and engage with the
legislative scheme on which his clients relied
for compensation, making him less able to manage his clients’
affairs. This
Court held that even though the Bill of Rights standing
provision was not directly applicable, since the proclamations were
challenged
on rationality and rule of law grounds, a generous
approach to standing was nonetheless necessary. This was to
“facilitate
the protection of the Constitution” because:
“
constitutional
litigation is of particular importance in our country where we have a
large number of people who have had scant educational
opportunities
and who may not be aware of their rights”
[40]
The Court nevertheless cautioned that legal practitioners asserting
personal standing to challenge legislative acts have to
show that
bringing the challenge is in the interest of the administration of
justice (for instance, a “need for legal certainty”).
Relying “purely on financial self-interest” is not
enough.
[41]
These cases make it plain that constitutional own-interest standing
is broader than the traditional common law standing, but
that a
litigant must nevertheless show that his or her rights or interests
are directly affected by the challenged law or conduct.
The
authorities show:
(a)
To establish own-interest standing under the Constitution a litigant
need not show the same “sufficient, personal and
direct
interest” that the common law requires, but must still show
that a contested law or decision directly affects his
or her rights
or interests, or potential rights or interests.
(b)
This requirement must be generously and broadly interpreted to accord
with constitutional goals.
(c)
The interest must, however, be real and not hypothetical or academic.
(d)
Even under the requirements for common law standing, the interest
need not be capable of monetary valuation, but in a challenge
to
legislation purely financial self-interest may not be enough –
the interests of justice must also favour affording standing.
(e)
Standing is not a technical or strictly-defined concept. And there is
no magical formula for conferring it. It is a tool a court
employs to
determine whether a litigant is entitled to claim its time, and to
put the opposing litigant to trouble.
(f)
Each case depends on its own facts. There can be no general rule
covering all cases. In each case, an applicant must show that
he or
she has the necessary interest in an infringement or a threatened
infringement. And here a measure of pragmatism is needed.
[42]
The impact of the Constitution on own-interest standing is evident
in
Ferreira
,
Eisenberg
and
Kruger
.
However, it is in my view necessary to emphasise that in each of
those cases the own-interest litigant showed that his or her
interests or potential interests were “directly affected”
by the action sought to be challenged. It should be noted
that the
own-interest provision in section 38(a) is not isolated –
it stands alongside section 38(b)–(e).
These provisions
create scope for public interest, surrogate, representative and
associational challenges to illegality. The risk
that an unlawful
decision could stand because an own-interest litigant cannot
establish standing is diminished by the fact that
broad categories of
other litigants, not acting in their own interest, are entitled to
bring a challenge.
[43]
The own-interest litigant must, therefore, demonstrate that his or
her interests or potential interests are directly affected
by the
unlawfulness sought to be impugned.”
[16]
The
applicant in this case is undoubtedly an own interest litigant.
Indeed, during argument,
Mr
Rall
SC who appeared for the applicant did not dispute this. He however
contended that the mere fact that the applicant submitted a
bid and,
the mere fact that it was entitled to submit a bid, was sufficient to
give the applicant standing in the matter and, for
that proposition,
relied upon
Mogale
City v Fidelity Security Services
2015 (5) SA 590
(SCA) where, at paragraph 17, Wallis JA said in that
case that “[t]
he
adjudication of the tender was therefore in breach of Fidelity's
right to fair administrative action…”
[17]
In
addition Mr
Rall
contended that it was sufficient merely to have participated in the
tender process to have given the applicant standing to challenge
the
tender on the basis of what was said by Schutz JA in
Transnet
Limited v Goodman Brothers (Pty) Ltd
[2000] ZASCA 151
;
2001 (1) SA 853
(SCA):-
“
[9]
It was presumably for reasons like these that counsel for Transnet
conceded that some of its actions amount to acts of administration.
But a distinction was sought to be drawn between different kinds of
action. In this connection reliance was placed on the judgment
of the
Constitutional Court in
President
of the
Republic
of South Africa and Others v South African Rugby Football Union and
Others
2000
(1) SA 1
(CC)
(1999
(10) BCLR 1059)
at paras [140] - [141]. There it was stated that in
determining whether an act is an administrative act the emphasis
should be
on the function rather than the functionary, not on the arm
of government to which the actor belongs but on the nature of the
power
exercised. From this it followed that the exercise of some of
the powers of a member of the Executive (the President in that case)
amounted to administrative action whereas exercises of other powers
did not. This reasoning was sought to be extrapolated to the
procurement activities of Transnet. Some of its actions are
administrative. Others are not. Thus, so proceeded the argument, when
Transnet invites tenders for the supply of locomotives, it acts
administratively. But when it invites tenders for toilet paper
or, as
in this case, gold watches, it does not. I fail to see how such a
distinction is to be drawn, particularly where, as in
this case, the
purchase of watches is clearly incidental to the exercise of
Transnet's general powers. The gold watches are bought
so that they
may be used to secure the loyalty of employees, much as salaries are
paid to secure their services. For the reasons
given I am of the view
that the actions of Transnet in calling for and adjudicating tenders
constituted administrative action,
whatever contractual arrangements
may have been attendant upon it.
[10]
Turning to the second question, the 'right' or 'interest', Transnet
relied on the unreported judgment of Heher J in
SA
Metal Machinery Co Ltd v Transnet Ltd
(WLD,
9 March 1998), in which the learned Judge held that a person in a
position such as Goodman was, was 'effectively a stranger
to the
tender process' (the passage is more fully quoted at 996H - 997A of
Blieden J's judgment) and therefore had no protectable
right or
interest entitling him to just administrative action. If that were
correct, every applicant for a permit would likewise
have no right or
interest. By contrast with the decision of Heher J in
Aquafund
Pty Ltd v Premier of the Province of the Western Cape
1997
(7) BCLR 907
(C) Traverso J identified the right (at 913I) as the
right to obtain the information which the tenderer reasonably
required in
order to enable him to determine whether his right to
lawful administrative action provided for in the interim Constitution
had
been violated. For instance, reasons given may tell a tenderer
that his goods did not comply with the specification. He, knowing
that they did comply, would then be able to take the matter further.
Without reasons he might be without remedy.”
[18]
I do
not agree. It seems to me that what was said in
Giant
Concerts
(quoted above) is a complete answer to the applicant’s question
of standing. It is inconceivable that the applicant can be
allowed to
put in a completely non-responsive tender, accept that such tender
has been rightly rejected and then thereafter be
heard to complain
about the process and a right to have the process set aside so as to
enable a fair tender process to thereafter
unfold to give it a second
bite at the cherry. The special condition made it abundantly clear
that all those “blocks”
had to be “ticked”
before the tender could be considered. A tenderer not meeting those
requirements has no interest
in the outcome of the tender because it
would never be entitled to be awarded the tender in the first place.
[19]
Mr
Rall
sought further, on the facts, to distinguish the present case from
Giant
Concerts
,
contending that while one is here concerned with a competitive bid
process the “objector” in
Giant
Concerts
was from outside the process. Admittedly the facts in
Giant
Concerts
differ from the facts of this case but, in my view, the principles
are the same. In
Giant
Concerts
the importance of the interest required was stated thus:
“
[56]
Giant’s mere participation in the notice and comment process by
lodging an objection did not confer standing on it to
challenge the
transaction. The very point of that process is to identify
objections, to afford them expression, and then to evaluate
and
consider them. It is not logical to assert that an own-interest
standing qualification arises from participation in a process
if the
objection remains hypothetical and academic.”
[20]
On
the approach I take to this case it seems to me that some direction
can also be drawn from what was said in paragraphs 40 and
41 of
Areva
NP v Eskom Holdings SOC Ltd
2017
(6) BCLR 675
(CC):-
[40]
It was said in
Giant Concerts
that the issue
of
locus standi
is separate from the merits and will
usually be dispositive of an own interest litigant's claim. This
Court went on to say that:
"an
own-interest litigant may be denied standing even though the result
could be that an unlawful decision stands. This is
not illogical. As
the Supreme Court of Appeal pointed out, standing determines solely
whether
this
particular litigant is entitled to
mount the challenge: a successful challenge to a public decision can
be brought only if 'the
right remedy is sought by the right person in
the right proceedings'."
However,
this Court immediately qualified the general principle that an
own-interest litigant's challenge of a public decision may
be
dismissed solely on the basis that the litigant lacks
locus
standi
. It said:
"To
this observation one must add that the interests of justice under the
Constitution may require Courts to be hesitant to
dispose of cases on
standing alone where broader concerns of accountability and
responsiveness may require investigation and determination
of the
merits. By corollary, there may be cases where the interests of
justice or the public interest might compel a Court to scrutinise
action even if the applicant's standing is questionable. When the
public interest cries out for relief, an applicant should not
fail
merely for acting in his or her own interest."
[41]
It seems to me that, part of what this Court held in
Giant
Concerts
was
that, where a litigant has failed to show that it has standing, the
Court should, as a general rule, dispose of the matter without
entering the merits and that it should only enter the merits in
exceptional cases or where the public interest really cries out
for
that. It does not appear to me that this is a case which cries out
for that. In saying this, I am not suggesting that on the
merits the
challenge is necessarily without merit but I do so because: (a) the
two bidders appear to have been neck and neck in
the competition for
the tender; (b) both bidders were accepted as technically capable of
doing the job properly; and (c) time is
of the essence in regard to
the installation and replacement of the steam generators and, if the
steam generators are not installed
and replaced on time, there may be
severe consequences for the country in regard to nuclear energy.
Furthermore, Areva has been
working on the project for the past two
years and there is not much left before the time by when the
installation and replacement
of the generators is required to have
been completed.
[21]
The
applicant must demonstrate that it has a direct and substantial
interest in the outcome of the litigation. That direct and
substantial interest means that its existing bid must qualify to be
entitled to be considered in a subsequent bidding process, fairly
conducted, and that its consideration has fair prospects of success.
On the facts of the present case the present bid put up by
the
applicant does not meet the requirements. That much is common cause.
Therefore on the bid document as it currently stands the
applicant
cannot establish that it has a direct and substantial interest in the
outcome of this litigation. As was said in
Giant
Concerts
it does not mean that an unlawful decision remains an illogical
consequence. If the right person in the right proceedings seeks
the
right remedy the decision may well be subject to review and setting
aside. The applicant is not the right person and these
are not the
right proceedings and it does not, in these proceedings, seek the
right remedy.
[22]
These
aspects as to standing were also considered in
Mostert
and Others v Nash and Another
2018 (5) SA 409
(SCA) where, at paragraphs 20
et
seq
Wallis JA said the following:-
“
[20]
Under s 38 of the Constitution the grounds of standing in our law
have been considerably expanded and a broad approach is to
be taken
to 'own interest' standing under s 38
(a)
.
In approaching that question Mr Nash's contention that the fee
agreement is unlawful must be assumed to be correct. If it is
correct, then some amounts that have been paid to Mr Mostert as
curator may have to be disgorged and repaid to the Sable Fund. Any
resulting surplus accruing in the Sable Fund will fall to be
distributed in accordance with a scheme of apportionment of surplus
under s 15B of the PFA. As Mr Nash claims to have been a member of
the Sable Fund before the impugned transactions were undertaken
and
Midmacor was the principal employer, they would potentially at least
be entitled to benefit from such an apportionment. That
seems to me
to be more than sufficient to give them own-interest standing to
pursue these proceedings.
[21]
Mr Mostert in his capacity as curator attacks the standing of Mr Nash
and Midmacor on the footing that the former's membership
of the Sable
Fund and the latter's position as principal employer were part of the
scheme to 'unlock' the surplus in the fund.
He then characterises
their respective positions as a charade. That overlooks two things.
First, it ignores the requirement that
the allegations by the parties
claiming standing must be accepted as correct, as standing is an
issue to be determined in limine
before the merits are addressed.
Second, it requires us to enter upon and determine the merits of Mr
Mostert's contentions about
the nature of the arrangements and
determine whether they were unlawful, criminal or a charade. As noted
in [6], it is inappropriate
for us to do so. That is not the question
before us; it is before another court and it is impossible to resolve
the factual disputes
on these papers.
[22]
An approach that asked whether Mr Nash and Midmacor had a direct
and substantial interest in the outcome of the litigation
arrives at
the same result. The issue is the validity of the fee agreement
between the curator and the FSB. There are no trustees
to protect the
interests of persons such as pensioners, former members or a former
principal employer. The invalidity of the fee
agreement is directed
at recovering funds for the Sable Fund that would in turn form part
of a surplus in the fund available for
distribution in accordance
with a surplus-apportionment exercise. That provides a sufficiently
direct and substantial interest
in the outcome of the litigation to
confer standing on Mr Nash and Midmacor.
[23]
At the risk of piling Pelion upon Ossa, there is a further ground
for recognising standing on the part of Mr Nash and
Midmacor. It
lies in s 5(8) of the FI Act, which provides:
'Any
person, on good cause shown, may make application to the court to set
aside or alter any decision made, or any action taken,
by the curator
or the registrar with regard to any matter arising out of, or in
connection with, the control and management of
the business of an
institution which has been placed under curatorship.'
This
section is clearly addressed to the question of standing and not
necessarily a possible review regime distinct from PAJA, an
issue
debated in argument that we do not need to decide. It is couched in
wide language ('any person') and requires only that good
cause be
shown for challenging a decision or action by either the curator or
the Registrar. The conclusion of the fee agreement
is an action by
the curator and the FSB in connection with the control and management
of the Sable Fund. While the section might
not permit of a challenge
by someone with no connection whatsoever to a fund, that can hardly
be said of Mr Nash and Midmacor.
The claim that they lacked
locus standi to bring these proceedings must be rejected.”
[23]
As
long ago as in
Dalrymple
v Colonial Treasurer
1910 TS 372
it was observed that:-
“
The
general rule of our law is that no man can sue in respect of a
wrongful act unless it constitutes the breech of a duty owed
to him
by the wrongdoer or unless it cause him some damage in law... . And
the rule applies to wrongful acts which affect the public
as well as
to torts committed against private individuals.”
See
also generally in this regard the chapter:
Standing
,
in Hoexter,
Administrative
Law in South Africa
,
Second Ed, Juta, 2012.
[24]
Finally,
Mr
Potgieter
SC, who appeared for the fifth respondent, has referred me to a
passage in de Ville,
Judicial
Review of Administrative Action in South Africa
,
Revised First Edition, Lexis Nexis, 2005 where, at page 399, the
learned author says:-
“
One
of the preconditions to seeking review has traditionally been that
the party or parties approaching the court for relief must
have
locus
standi in iudicio
.
It concerns the question whether the specific litigant who is before
the court is the person who should be allowed to challenge
the
validity of the action in question. There are various reasons for
imposing restrictions on the specific litigant who may approach
a
court for relief. Firstly, the concern for scarce state resources
(spent on adjudicating and defending such actions) requires
the
exclusion of mere busybodies from challenging every conceivable
action of the state. Secondly, because of the doctrine of
stare
decisis
,
it is important that the courts be presented with the most capable
arguments on the specific legal issues at stake; not everyone
will be
capable of doing so. Thirdly, the court has a specific role to play
in the
trias
politica
model. Should there be no or few restrictions on standing, it would
have an effect on the role of the court
vis-a-vie
the other branches of government. One approach to these difficulties
would be to impose stringent requirements in relation to standing,
allowing only those who are personally and directly affected to
challenge the validity of administrative action. The consequence
of
such an approach, which casts the court in the role of settler of
private disputes in the public law field (the same as in private
law)
is of course that many serious legal breaches by state authorities
will go by without any person being able to challenge their
validity.”
[25]
Mr
Rall
has also suggested that its own bid aside, the applicant nevertheless
still retains the right to challenge the decision by the
fourth
respondent to employ the deviated tender process. In my view that
decision had no direct negative effect
vis-a-vis
the
applicant. Mr
Rall
also suggests that the extremely short time period within which the
applicant was given to respond (a period of some four days
was
suggested) was also something worthy of review because had a more
generous open tender process been followed the registered
owner of
the property (and here I assume he refers to the Trust) could have
entered the process and put in a properly responsive
bid. In my view
neither of these submissions have merit. What is of importance here
is the existence of the applicant’s direct
substantial interest
(or more importantly the lack thereof) in the rejection of its bid.
[26]
For
those reasons I find that the applicant lacks standing to challenge
both the process and the award to the fifth respondent and
as a
consequence the application falls to be dismissed with costs, such
costs to include those reserved on previous occasions.
Vahed J
Case information
Date of hearing
: 2 November 2018
Date of Judgment : 9
November 2018
Counsel for the Applicant
: A J Rall SC
Instructed
by
: Redfern & Findlay Attorneys
Tel:
033 347 0039
Ref:
ACF/MAT3399
Counsel for the 1
st
& 4
th
Respondent :
D P Crampton
Instructed by :
PKX Attorneys
Tel:
033 347 5354
Ref: M
Govender
Counsel for the 5
th
Respondent : A
E Potgieter SC
Instructed
by
: Mason
Incorporated
Tel:
033 345 4230
Ref:
PK Coetzee/nb/15/S053/010