About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2018
>>
[2018] ZAKZDHC 15
|
|
Aqua Transport and Plant Hire (Pty) Ltd v Chief Executive Officer of Dube Tradeport Corporation N.O. and Others (7456/2017) [2018] ZAKZDHC 15 (21 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case
No. 7456/2017
In
the matter between:
Aqua
Transport & Plant Hire (Pty)
Ltd
Applicant
and
The
Chief Executive Officer of Dube
Tradeport
Corporation N.O.
First
Respondent
Dube
Tradeport Corporation
Second
Respondent
Rokwil
(Pty)
Ltd
Third Respondent
Judgment
Lopes
J:
[1]
On Wednesday the 3
rd
July 2017 the applicant, Aqua
Transport & Plant Hire (Pty) Ltd (‘Aqua’) sought
urgent relief from this court in
two parts;
(a)
Interim relief, interdicting the second respondent, Dube Tradeport
Corporation (‘Dube’),
from concluding a contract with the
third respondent Rokwil (Pty) Ltd (‘Rokwil’), pursuant to
the award of a tender
for the construction of bulk earthworks at
Tradezone Two, located at the Dube Tradeport; and
(b)
Permanent relief, setting aside the award of the tender to Rokwill.
[2]
The works are described as a very large public construction project,
scheduled to take approximately 18 months’ to complete,
with a
contract value of about R500 million. Dube is a state entity. Aqua
operates within the construction and transport industry
in
KwaZulu-Natal, and its activities cover the general scope of civil
engineering. Rokwil was the successful tenderer, and
Aqua, an
unsuccessful tenderer. The issue of interim relief was settled
between the parties and, pursuant to an order granted on
the 5
th
July 2017, the parties delivered answering, replying and further
affidavits. The relief now sought by Aqua is:
(a)
to set aside the award of bid number DTP/RFP/32/IFR/02/2013
‘
Construction of bulk earthworks at Tradezone Two located at
Dube Tradeport’
to Rokwill;
(b)
to direct that Aqua’s bid be scored in accordance with the
original assessment of
the Bid Evaluation Committee (‘BEC’)
of the 23
rd
October 2016; and
(c)
to direct the Bid Adjudication Committee (‘BAC’) to
reconsider all bids
submitted in respect of the tender within a
period of four weeks’ from the date of the order, alternatively
any equitable
remedy that may be granted under the circumstances.
[3]
The bids were to be assessed in three phases:
(a)
Phase one, where bids were assessed for compliance with the
qualifications of the bidders,
the provision of relevant certificates
and the proper completion of tender documents. Non-compliant
bids were excluded.
Both Aqua and Rokwil were successful
in passing phase one.
(b)
Phase two, where bids were evaluated for functionality, in terms of
which each bidder was
assessed by the BEC against various criteria
and scored out of 100. Functionality was divided into two
parts:
(i)
(aa) access to bulk earthmoving equipment
required;
(bb)
previous earthworks experience, requiring the hauling of 100 000 m³
of material or more; and
(cc)
a site agent, engineer or technologist with experience in mass
earthworks or similar
projects, with more than 15 years’
experience.
(ii)
An assessment of bidders on their environmental management plan,
safety management
plan, quality control practices, the experience of
key personnel, relevant tenderers experience, the programme and
method statement,
and the location of the main bidder.
Only
bids which scored a minimum of 70 percent in part one, were
considered in part two. Any bid which scored less than 70 percent
in
part two was eliminated from further consideration. Both Aqua and
Rokwil were initially successful in phase two.
(c)
Phase three, where bids were evaluated on price and preference in
accordance with
the 90/10 principle set out in the Preferential
Procurement Policy Framework Act, 2000 (‘the PPPFA’).
[4]
A summary of Aqua’s complaints of the bidding process is:
(a)
The BEC members were briefed on the scoring guidelines for the bids
on the 24
th
May 2016. They evaluated the bids, and
on the 19
th
September 2016 found that four of them
(including an alternative bid) were acceptable. On the 20
th
October 2016, after a Technical Evaluation Report (commissioned by
Dube from an independent engineering firm, Delta), had been
considered by the BEC, the BEC awarded Aqua a score of 94 percent in
respect of part one of functionality, and 71.1 percent in
respect of
part two. All four bidders had passed the minimum threshold of
70 for both requirements, and progressed to the
third phase.
(b)
On the 24
th
October 2016, the BEC determined that Aqua had
scored the highest points in respect of pricing, and recommended that
it be awarded
the tender. The next day the BEC report was
submitted to the BAC.
(c)
On the 25
th
October 2016 the BAC raised concerns about the
BEC report, and referred it back to the BEC for reconsideration.
(d)
The concerns raised by the BAC included whether Aqua’s
construction programme was
realistic, whether it had the relevant
experience, and they questioned Aqua’s methodology with regard
to a shorter works
programme.
(e)
The BEC then decided that all the successful bids would have to be
re-assessed. The original
scores and comments of the BEC members were
checked against the valuation criteria as stated in the tender
document, to ensure
consistency in the scoring of the bids.
(f)
On the 27
th
October 2016, the BEC reconsidered the bids
and reduced Aqua’s scores for part two of functionality from
71.1 to 58.1, and
disqualified Aqua from proceeding to the third
phase.
(g)
The BAC eventually awarded the tender to Rokwil (at the third phase
the BAC determined that
the tender was to be awarded to another
bidder, Sisonke Joint Venture, but this was subsequently altered).
[5]
On the 5
th
April 2017, Aqua lodged an appeal against its disqualification. On
the 28
th
April 2017, a bid award announcement was published in the Mercury
Newspaper recording that Rokwil had been awarded the tender.
Aqua
addressed correspondence to the CEO of Dube, recording that the
information sought by Aqua in order to enable it to process
its
appeal had not been provided by Dube, and that any award of the
tender to Rokwil would be unlawful.
[6]
The CEO of Dube responded, confirming that the final award of the
contract would only be made after the conclusion of the appeal
process. Correspondence was exchanged between the parties and
their legal representatives. On the 10
th
May 2017, Aqua submitted its formal notice of appeal against the
decision of the BEC to reduce Aqua’s overall functionality
score, and the decision of the BAC to award the tender to Rokwil.
[7]
A decision dismissing the appeal was communicated by the CEO of Dube
to Aqua on the 25
th
May 2017. Aqua complains that the CEO did not follow the
requirements of the internal appeals procedures of Dube, because
Aqua
did not receive the reasons for the award of the bid in accordance
with clause 1.1.2 of the internal appeals procedure, and
there was no
compliance with clause 1.1.6, which requires the CEO of Dube to
notify other bidders of the appeal.
[8]
Lastly, Aqua complains that the CEO of Dube sat as both judge and
jury in their own cause. His committee had made the
original
decision, and he was the only one who evaluated the appeal against
that decision. The rationale for dismissing the appeal
was that the
referral by the BAC back to the BEC was rational, with merit and
within the powers of the BAC. The reduction
of Aqua’s
functionality score by the BEC could not be revisited, and the CEO
could find no fault with the reasons advanced
by the BEC for so
doing.
[9]
The next step was taken by Aqua on the 31
st
May 2017, when it lodged a Notice of Intention to Appeal with the
KwaZulu-Natal Provincial Bid Appeals Tribunal. On the 23
rd
June 2017 the Provincial Bid Appeals Tribunal notified Aqua that its
appeal was out of time, because it should have been lodged
within 5
days’ of the notification of the award. No grant of
condonation was possible.
[10]
This review was initially brought on an urgent basis because it was
alleged that construction and fencing had commenced on
the site
around the 28
th
June 2017. This has been denied by Dube.
[11]
In its founding affidavit, Aqua records that it seeks to review and
set aside three decisions:
(a)
The decision of the BEC to reduce Aqua’s part two functionality
score from 71.1 to
58.1, thus resulting in the disqualification of
Aqua’s bid;
(b)
The decision of the BEC to award the contract to Rokwil; and
(c)
The decision of the CEO of Dube not to uphold Aqua’s appeal
against those two
decisions.
[12]
The initial grounds of review were the following:
(a)
The referral for reconsideration by the BAC was unlawful and made on
the basis of the unwarranted
dictates of a third person;
(b)
The reconsideration itself was unlawful; and
(c)
The reconsideration was irrational.
[13]
In Aqua’s founding affidavits various allegations are made
regarding improprieties having been committed during the evaluation
process. This was raised at the outset of the argument, when Mr
Kemp
SC, who appeared for the applicant together with Ms
Pudifin-Jones
recorded that the applicant apologises to ‘the party involved’
and stated that the papers do not make out a case that
the third
respondent was involved in any impropriety. He persisted,
however, that impropriety was, in part, revealed in the
deliberate
frustration of the relevant procurement laws. Mr
Kemp
stated
that he would only argue impropriety in so far as the facts
demonstrate conduct which was
in
fraudem legis
.
[14]
Mr
Broster
SC, together with Mr Suleman, who appeared for Rokwil submitted that
it was not a matter of apology, but the withdrawal of the
allegations
of impropriety. Mr
Kemp
then replied that the applicant withdrew the statements in paragraphs
82-85 of Aqua’s founding affidavit. He referred
to
paragraph 75 of Aqua’s replying affidavit where it records that
it does not rely on any fraud implicating Rokwil, but
on procedural
and substantive unfairness. Mr
Kemp
also withdrew the allegations in paragraph 88 of his heads of
argument referring to a two-stage ‘manipulation’ of the
tender process, and the tender process amounting to nothing more than
‘a charade’.
The referral for
reconsideration by the BAC:
[15]
Aqua complains that the BEC had initially determined that it met part
two of the functionality threshold in stage two.
The BEC had
been looking at functionality for approximately a month, and on the
19
th
September 2016 they reduced the number of bidders to four. The report
was then sent to the BAC with the recommendation that the
contract be
awarded to Aqua. On the 26
th
October 2016, a mere two days’ later, the BAC raised concerns
about the BEC report and referred it back to the BEC for
reconsideration.
Aqua does not accept that there had been a
re-evaluation and re-assessment of the functionality for all of the
bidders. Mr
Kemp
submits that the only bidder to have been affected was Aqua. He
submitted that the probabilities were strongly against errors
having
been committed by the members of the BEC in the initial scoring of
Aqua, but no errors with regard to the other bidders.
Mr
Kemp
referred to the steps taken by the BEC as set out in the
documentation, which omitted to mention any meeting on the 26
th
or 27
th
days of October, 2016.
[16]
Mr
Kemp
submitted that if the criteria for functionality had
changed after the initial BEC decision, then all the parties should
have been
advised of that fact. Fairness demanded that everyone
should have been able to see how the bids were scored. He
submitted
that Dube, as the state organ, has to justify why it has
not complied with the process of fairness. ‘He said that
“something
odd took place” when the decision was taken to
eliminate Aqua and award the contract to Rokwil.
[17]
The allegations of Aqua are denied in the answering affidavits, and
Dube has made it clear that the scores of all the surviving
bidders
in phase two were examined by the BEC. They found it necessary
only to amend the scores allocated to Aqua.
This amendment
effectively lowered the score of Aqua for part two by thirteen
percent.
[18]
Mr
Madonsela
SC
,
who
appeared for the CEO of Dube and Dube together with Mr
Khuzwayo,
submitted that any documents which were omitted in the initial
provision of the record by Dube, were omitted in error because of
the
sheer volume of the documentation, and the haste with which documents
were prepared because the application was an urgent one.
He
submitted that the documents are now present and have been dealt with
in the affidavits, and there can accordingly be no prejudice
to any
of the parties. Indeed, no prejudice was alleged in the sense
that any of the parties required an adjournment in order
to deal with
matters in the affidavits.
[19]
To counter to the allegations made about the meeting of the BAC on
the 25
th
October 2016, Mr
Madonsela
referred to the
record of that meeting. A number of concerns were raised by members
of the BAC, based upon those highlighted in
the Delta report, which
had been obtained at the stage that the BEC was considering the
bids. In the Delta report under ‘Technical
Risk Review
and Assessment’ it records:
‘
Based
on the tender documentation and information submitted by the bidders
and the subsequent disqualification of seven of the bidders
according
to the tender rules, a detail [sic] combined technical and
engineering review and analysis was conducted by Delta BEC
on the top
seven tenders received. Please note that any possible
disqualifications due to the Part 2 compliance were not considered
in
this evaluation as the Part 2 compliance confirmation would be done
by DTPC.
This
analysis was done to evaluate the complete and successful
implementation and execution of the project, as well as any possible
risks involved on the project based on the tender information
available. The following major risks were considered and
evaluated
with each of the top seven bidders:
§
Impact of possible changes
in any major quantities,
such
as cut to fill, rock, environmental and erosion protection measures.
§
Impact on P & G s on a
possible extension of time on
the
contract,
§
Impact of an
experienced contractor and management team
.
’
[20]
The report then goes on to record that the only concern or major risk
is indicated in the case of Aqua. The concerns
raised in
respect of Aqua were:
(a)
The fact that the availability of plant and equipment to Aqua was
seen as a risk because
Aqua’s core business is transport and
plant hire. Using Aqua’s stock of plant and machinery for
this project
would place Aqua’s core business and cash flow
under pressure.
(b)
Aqua’s project experience, although complying with the tender
request, has not been
focussed on construction work, but rather on
plant and equipment provision for major contracts. Lack of
experience in large
bulk earthwork contracts as well as major
construction projects in general, increases the risks associated with
Aqua.
(c)
Aqua achieved a low score for previous project experience, in respect
of which it
scored the lowest points of the top ten bidders.
(d)
Aqua’s tender was unbalanced, with some quantities varying due
to unbalanced rates,
which could have a more severe impact on the
re-measured contract in comparison with the other bidders. According
to the procurement
rules, bidders are not permitted to alter rates
once a contract is accepted. That would be unfair to other
bidders.
(e)
Aqua’s quality plan and quality assurance scored the lowest of
the top ten bidders.
(f)
There was a qualification in Aqua’s tender relating to the use
and the availability
of water during the construction process.
(g)
There was a concern with Aqua’s programme and work schedule.
Out of the top ten bidders
Aqua scored the lowest on the combined
technical and engineering aspects and combined risk evaluation.
[21]
Mr
Madonsela
submitted
that it was relevant that at the meeting of the BAC on the 25
th
October 2016, no conclusion was reached that the matter was to revert
to the BEC for re-evaluation. However, the minutes
of the BEC
on the 26
th
October 2016 record that its recommendation report had been tabled at
the BAC the previous day, and the BAC had reviewed the report
and
referred it back to the BEC, raising concerns with the BEC report as
well as the consultant’s technical report (evidently
Delta).
It is, however, clear from the Delta report that the main concern
rested with Aqua. In my view there can be no suggestion
that the BAC
acted improperly in referring the BEC to the Delta report.
[22]
The involvement of Delta does not indicate any impropriety in the
bidding process. I say this even on the basis that
the bidders
may have had no knowledge of Delta’s involvement. It does
not appear that Delta sought to introduce new
requirements to the
bidding process. What it clearly did was evaluate what had been
placed before it, in order to establish
whether or not the bids
matched up to the requirements of the project. The fact that
Delta’s examination may have questioned
aspects not required to
be explicitly dealt with in the tender documents, does not mean that
their consideration was unfair to
the bidders. I would view the
use of the independent assessment to be a wise and considered
decision on the part of Dube,
particularly where it assisted those
having to assess the bids for Dube. Far from being the case
that this was unwarranted
interference, it was in my view prudent. It
is significant that there are no allegations whatsoever that any of
the professional
members of Delta who were involved in compiling the
report, were in any way connected to any of the bidders or had any
other motivation,
than to assist Dube in arriving at the correct
award.
[23]
In my view the allegations of impropriety which were withdrawn at the
outset of the argument played a great part in the initial
decision to
bring the review application. It was only as matters progressed
through the affidavits, that Aqua came to realise
that those
allegation were totally unfounded. They are not, however,
irrelevant, because they provided the driving force
fuelling the
application itself. Once made, those allegations provided a momentum
which was carried through to the hearing.
[24]
Aqua had based its complaints of the alleged unwarranted influence of
a third person or body, on the contents of the minutes
of the BEC
meeting dated the 24
th
October 2016, in which there is a reference to an anonymous letter
that was received by Dube. Aqua linked the reference to
that
letter to a parallel process being conducted, and arrived at the
conclusion that some unnamed person was persuading the BAC
as to how
to arrive at its decisions. The anonymous letter, however, related to
the bid document itself, and the possibility of
problems in the bill
of quantities. It had nothing to do with the evaluation of the
tenders by either the BEC or the BAC.
It accordingly provided
no basis for a ground of review, and was correctly abandoned by Aqua.
[25]
This is more particularly so where it is alleged by Aqua that the
purpose of referring the matter back to the BEC was for an
exclusive
focus on Aqua’s scores. This is denied in the answering
affidavits, and once again, no proper basis is made
out on the papers
to support this proposition. Indeed, Dube makes it clear in its
answering affidavits that the scores of
all the surviving bidders in
phase two were looked at by the BEC. However, they only found
it necessary to amend the score
of Aqua. As the most successful
bidder up to phase three, it is, perhaps, natural that the Aqua bid
would have attracted
careful scrutiny. The Delta report
records, however, that the three best tenders with the lowest
remaining tender prices
were compared with the average tender price
of all bidders, as well as the original Delta BEC project estimate.
The
alleged unlawfulness of the reconsideration:
[26]
Aqua relies on the allegation that the reconsideration was itself
unlawful, because only Aqua’s bid was re-assessed.
This
was denied in the answering affidavits. On the basis of the dicta in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) the version of the respondents is to be
accepted, in respect of the disputes of fact in this regard. I can
conceive of no basis
for dismissing, without more, the allegations in
the affidavits of Dube. Aqua has put up no compelling evidence which
demonstrates
that it was being unfairly treated, or that the process
was unlawful.
The
alleged irrationality of the reconsiderations:
[27]
With regard to the third ground of review, Mr
Kemp
submitted
that the reconsideration was irrational. This is because the three
grounds on which Aqua’s bid was re-examined
do not rationally
connect to the reconsideration decision, and are not fair or remotely
reasonable or consistent. In fact
the areas which were
reconsidered were dealt with as follows:
(a)
the tenderer’s experience – scores reduced from an
average of 3 to 2;
(b)
the tenderer’s programme, including duration – score
reduced from an average
of 3 to 2;
(c)
the tenderer’s methodology, approach, plan, etc – score
reduced from an
average of 3 to 2.
These
reductions are fully motivated with the reasoning set out. The
effect of the reductions was to reduce the score of Aqua
by thirteen
percent, thus disqualifying it from stage three.
[28]
These were all areas which the BAC felt should be re-assessed by the
BEC. There can be no question that the BAC was obliged
to
consider the BEC’s decision, and not merely to rubber-stamp
it. In a memorandum from Delta setting out the details
of how
the bids were dealt with, it is recorded that in terms of the Codes
of Conduct for Bid Adjudication Committees issued by
National
Treasury, the BAC is required to ensure that scoring has been fair,
consistent and correctly calculated and applied. In
the event that
the BAC was of the view that the BEC’s decision was, for any
logical reason to be questioned, it was obliged
by its oversight
function to refer the matter back to the BEC, in order to have its
concerns addressed. This is exactly what
it did. Dube has
set-out in detail in its affidavits how the scores of each member of
the BEC were re-assessed and why. The
fact of the rescoring itself
(and not all the scores of all the members of the BEC were adjusted),
does not lend credence to any
suggestion of impropriety. Any such
impropriety would have to have involved all the members of the BEC
because any dissenting scores
would have been evident from the
scoring sheets. No such allegations are made. I do not agree with the
assertion that the only
reasonable conclusion is that the
reconsideration was fuelled by ‘ulterior motives’.
The
final award of the tender:
[29]
Mr
Kemp
submitted
that Aqua was entitled to challenge the award of the contract to
Rokwil. This was on the basis that at stage three,
the award
should have been made to Sisonke Joint Venture (‘Sisonke’),
but that was not done. He submitted that
a Risk Assessment
Review by a firm of Quantity Surveyors, Rubiquant Construction
Consultants (‘Rubiquant’) had been
decisive in this
regard, because it had highlighted the fact that Rokwil posed less
risk of causing reputational damage to Dube
in the event that the
contract was not able to be completed, either timeously, or at all.
Mr
Kemp
submitted that that award was unlawful because the result was
contrary to the 90/10 system and contrary to the provision of the
Constitution, the
Public Finance Management Act, 1999
, the
Promotion
of Administrative Justice Act, 2000
, the PPPFA, and the Supply Chain
Management Policy of Dube.
[30]
There were, in fact, two Rubiquant reports, one on the 2
nd
March 2017 which was rejected, and a further more detailed report.
This latter report considered:
(a)
The final construction drawings which had become available, but which
were not part of the
original tender requirements; and
(b)
A reassessment of bids to determine the capabilities of the bidders
to deal with ‘hard
rock material’.
Rokwil was ultimately
chosen as the contractor which presented the lowest risk.
[31]
Aqua complained that this effectively changed the criteria set out in
the tender document, and decided the bids according to
criteria which
was not available to the bidders. Once again, this is not a case of
additional requirements being added to the tender
document without
advising the bidders thereof, but rather a thorough examination of
the purported compliance by the bidders with
the tender requirements,
and the probability that any one of them, if successful, would fail
in completing the contract. Tenderers
were treated equally in having
their bids re-evaluated. The rules of the game were not
changed. Dube simply ensured
that the bids were properly
considered. The assessment of the bids by Rubiquant was
reasonable and rational because:
(a)
Dube sought to ensure that it appointed a tenderer who posed the
least risk of failure of
the project.
(b)
The specialist staff of Rubiquant were able to identify risk factors
and assist in assessing
them.
[32]
As pointed out by Mr
Broster
, Regulation 7(1) of the
Preferential Procurement Regulations, GN R502 (GG) 34350, 8 June
2011, provides that the contract may be
awarded to a tenderer who did
not score the highest total number of points, but only in the
accordance with the provisions of s
2(1)(f),of the PPPFA which
provides:
‘
the
contract must be awarded to the tenderer who scores the highest
points, unless objective criteria in addition to those contemplated
in paragraphs (d) and (e) justify the award to another tenderer;…’
[33]
Those objective criteria are to be found in the Rubiquant report.
The decision of Dube to award the contract to Rokwil
is supported by
the fact that Sisonke appealed against the decision of Dube which was
dismissed. Sisonke have accepted that finding.
Mr
Broster
submitted that their conduct is consistent with an acceptance that
the process by which their bid was dismissed, was in accordance
with
Dube having followed the correct steps and applicable legislation.
[34]
In my view, Dube, acting on the basis of the Rubiquant report applied
objective criteria in deviating from the 90/10 principle
and making
the award to Rokwil. The aspects of the internal appeals procedure,
of which Aqua complained, have been overtaken by
time, and are no
longer relevant. They were not pressed in argument before me.
[35]
Given the conclusions at which I have arrived, there is no need to
deal with the submissions of Mr
Madonsela
with regard to the standing of Aqua to complain about the third stage
award to Rokwil. Suffice it to say that I agree with his
submission
that this matter falls within the dicta of
Cameron
J in
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd & Others
2013
(3) BCLR 251
(CC), paras 29-35, and
Areva
NP Incorporated in France v Eskom Holdings Soc Ltd & another
2017 (6) BCLR 675
(CC). In addition, it is significant that Sisonke
chose not to pursue the dismissal of their appeal. Had they viewed
the procedural
steps taken or the substantive result as unfair, they
would, no doubt, have sought to review that decision. There is
nothing
reviewable about the decision of Dube, either with regard to
the referral back to the BEC of the second stage deliberations, or
the final decision to replace Sisonke with Rokwil.
[36]
With the regard to the question of costs, there can be no doubt that
the applicant improperly made allegations of impropriety
on the part
of Rokwil and/or Dube. The affidavits and the heads of argument
are replete with nouns and adjectives designed
to impugn the
integrity of both of them in their conduct regarding the award of the
tender. That those allegations have no
merit is contained in
the withdrawal by Mr
Kemp
at the outset of the hearing. That, however, is not the end of
the matter. In my view it is both unfair and undesirable
that
reviews are brought to court on the basis of spurious allegations of
impropriety, without the facts to back them. As
set out above,
it was no doubt those initial allegations which led to the
prosecution of the application. When matters became
clearer,
and it was obvious that there was no impropriety, the applicant
continued nonetheless, despite the apparent apologies.
Papers issued
in matters such as this one, are matters of public record. The
suggestion that is conveyed in the founding
papers is that Rokwil and
an outsourced consultant were connected and they contrived with Dube
to have the contract awarded to
Rokwil. Withdrawing those allegations
at the outset of the argument does not easily undo the taint of
suspicion created by the
affidavits. If those allegations were
reported, the reputational damage to all three entities may be
enormous. Without
evidence to back up those allegations, the
entities are left in an untenable situation. They cannot defend
themselves. It is no
apology to purport to withdraw allegations of
impropriety, but then continue to suggest that Aqua will continue to
rely on improprieties
as evidenced by the conduct of the parties, as
will emerge in the debate! In those circumstances I am of the
view that the
applicant should bear the costs of the application, and
on an appropriate scale to express this court’s disapproval at
the
conduct of making such unsubstantiated allegations.
[37] In all the
circumstances I make the following order:
(a)
The application is dismissed.
(b)
The applicant is directed to pay the costs of the three respondents,
calculated on the scale
as between attorney and client, and such
costs to include those consequent upon the employment of two counsel,
and the costs reserved
on the 5
th
July 2017.
____________________
Lopes J
Dates of hearing:
16
th
March 2018.
Date of
Judgment:
21
st
May 2018.
Counsel
for the Applicant:
Mr
K J
Kemp
SC
,
with Ms
S
Pudifin-Jones
(instructed by Naicker & Naidoo Attorneys).
Counsel
for the 1
st
and 2
nd
Respondents:
Mr
T G
Madonsela
SC
, with Mr B
S
Khuzwayo
(instructed by S D Moloi & Associates).
Counsel
for the 3
rd
Respondent:
Mr
L B Broster
SC, with Mr MZF
Suleman
(instructed by M
B Pedersen & Associates).