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 18
|
|
Milling Techniks (Pty) Ltd and Another v Ethekwini Metropolitan Municipality and Another (D5859/2018) [2018] ZAKZDHC 18 (14 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO:
D5859/2018
14/6/2018
In the matter
between:
MILLING
TECHNIKS (PTY) LTD
FIRST APPLICANT
RAUBEX
KZN (PTY)
LTD
SECOND APPLICANT
and
THE
ETHEKWINI METROPOLITAN MUNICIPALITY
FIRST RESPONDENT
AQUATRANSPORT
AND PLANT HIRE (PTY) LTD
SECOND RESPONDENT
ORDER
The application for
the relief in Part A of the notice of motion is dismissed with costs,
including those occasioned by the employment
of two counsel.
JUDGMENT
Ploos
van Amstel J
[1]
The applicants in this matter seek an interdict, pending
the outcome of review proceedings, restraining the implementation of
the
award of a tender to the second respondent.
[2]
The first applicant is Milling Techniks (Pty) Ltd, the second
applicant Raubex KZN (Pty)
Ltd, the first respondent the eThekwini
Metropolitan Municipality and the second respondent Aqua Transport
and Plant Hire (Pty)
Ltd.
[3]
The applicants’ case, in a nutshell, is that they were
improperly disqualified from the
tender process, that their bids were
the lowest and that the two contracts in question should have been
awarded to them.
[4]
The bids were 1R – 19359 and 1R –19361 and related to
annual contracts for the rehabilitation
of various roads located
within the northern and southern regions of the municipality, for
three years.
[5]
The first applicant specialises in road rehabilitation and the second
applicant in road surfacing.
They both form part of the Raubex Group,
although each is an autonomous entity.
[6]
The municipality invited tenders for four contracts relating to the
rehabilitation of various roads
in the northern, southern, western
and central regions. The bid documents specified that no tenderer
would be awarded more than
two of the four contracts.
[7]
The first applicant tendered for two contracts and the second
applicant for the other two. Both
the bid evaluation committee and
the bid adjudication committee recommended that the two contracts in
question be awarded to the
applicants. The Manager: Supply Chain
Management Compliance Monitoring of the municipality however
questioned the independence
of their tenders as neither of them had
tendered against the other. The municipality sought legal advice,
which led to the applicants’
disqualification on the basis of
an alleged inaccuracy in the information supplied by them in one of
the bid documents.
[8]
The document in question is referred to in the papers as MBD 9. It
contains a ‘Certificate
of Independent Bid Determination’
which required the bidder to certify certain matters. It recorded
that the accompanying
bid would be disqualified if the certificate
was found not to be true and complete in every respect. Paragraph 5
of the document
records that for the purposes of the certificate and
the accompanying bid the word ‘competitor’ would include
any individual
or organisation, other than the bidder, whether or not
affiliated with the bidder, who could potentially submit a bid in
response
to the bid invitation, and provides the same goods and
services as the bidder and/or is in the same line of business as the
bidder.
[9]
Paragraph 7 of the document contains a statement that there has been
no consultation,
communication, agreement or arrangement with any
competitor regarding, inter alia, the intention or decision to submit
or not to
submit a bid.
[10]
The applicants admit in the founding papers that the approach of the
group was that the first
applicant would tender for two of the
contracts and the second applicant for the other two. The
municipality’s stance is
that this was an arrangement between
two competitors, as defined in the document, regarding the intention
to submit or not to submit
a bid. As such the failure to disclose
this had the result that the certificate was not true and complete in
every respect, and
it maintains that the applicants were correctly
disqualified.
[11]
When I asked counsel for the second respondent whether the
arrangement between the applicants
could be said to amount to bid
rigging or collusive tendering, he submitted that the arrangement
should have been disclosed to
the municipality, and that in any event
it may have been in the interests of the municipality for each of the
applicants to have
tendered for all four contracts, in the knowledge
that no tenderer could be awarded more than two.
[12]
Counsel for the applicants submitted that the definition of
‘competitor’ in the document
should be interpreted in the
context of the provisions of the
Competition Act 89 of 1998
. There is
no evidence in the papers to explain what it means to say that the
applicants are in the same group. There is no suggestion
that they
are wholly owned subsidiaries or constituent firms within a single
economic entity. Nor is there any evidence with regard
to the
identity of their shareholders or directors. On the facts they may
well be competitors in the ordinary sense of the word.
The question
however is whether they fell within the definition of ‘competitor’
in the certificate to which I have
referred. Counsel submitted that
if this is the case then the content of the certificate itself is
irrational and unconstitutional.
[13]
These matters will have to be decided by the court hearing the review
and I refer to them only
because the applicants’ prospects of
success in the review is something which I must consider in deciding
whether or not
to grant an interim interdict.
[14]
Both sides before me contended that the balance of convenience
favoured them. The applicants
say that if they are successful in the
review the second respondent will have completed a not insignificant
part of the work and
if they only take over at that stage they would
have lost a substantial amount of money. The municipality contended
that it is
undesirable for the rehabilitation of the roads to be
delayed pending the outcome of the review as it is important that the
work
be done. The second respondent contended that the applicants’
prospects of success in the review are poor, that the contracts
were
lawfully awarded to it, that it is entitled to start the work and
that it will not be in the public interest to delay the
maintenance
and rehabilitation of the work, which includes the repair of
potholes.
[15]
I have come to the conclusion that the applicants have failed to
establish a sufficient balance
of convenience in their favour, and it
does not seem to me that their prospects of success on review can
tilt the scale in their
favour in this regard. The matter may
obviously appear different when the record has been supplied and all
the papers in the review
are in.
[16]
The application for the relief in Part A of the notice of motion is
dismissed with costs, including
those occasioned by the use of two
counsel.
___________________
PLOOS
VAN AMSTEL J
Appearances:
For
the Applicants
: S Grobler
Instructed
by
: Peyper Attorneys
c/o Shepstone and
Wylie Attorneys
Durban
For
the First Respondent
: S K Xolo
Instructed
by
: Nkosi and Associates
Durban
For
the Second Respondent
:
G D Harper SC (together with) T Palmer
Instructed
by
: Larson Falconer Hassan Parsee Inc.
Durban
Date
Judgment Reserved
: 05
June 2018
Date
of Judgment
: 14 June 2018