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[2018] ZAECMHC 59
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Eagle Ukhozi Civils (Pty) Ltd v Mnquma Local Municipality and Another (4488/2018) [2018] ZAECMHC 59 (23 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
Case No. 4488/2018
In
the matter between:
EAGLE
UKHOZI CIVILS (PTY) LTD
(Registration
No.
2012/014521/07)
Applicant
And
MNQUMA
LOCAL
MUNICIPALITY
1
st
Respondent
BOBOSHE
TRADING ENTERPRISE CC
(Registration
No.
2009/041629/23)
2
nd
Respondent
JUDGMENT
JOLWANA
J
[1]
The applicant instituted urgent court proceedings in which it sought
the following relief:
“
PART A:
2. That the First
Respondent’s action in evicting the Applicant and preventing it
from obtaining access to and possession
of the construction site,
being the Butterworth Driver’s Licence and Testing Centre in
Msobomvu Township, Butterwoth (“the
construction site”),
be declared unlawful;
3. That the First
Respondent be and is hereby ordered and directed to restore the
Applicant’s access to and possession of
the construction site;
4. That the First
Respondent, the Second Respondent and/or any third party acting for
and on behalf of the First and/or Second Respondents
be interdicted
and restrained forthwith from interfering with the Applicant’s
right of retention over the construction site;
5. That it be declared
the Applicant possesses a right of retention over the construction
site until such time as the First Respondent
has paid all that is due
to the Applicant for the construction works performed and services
rendered on the construction site;
6. That the relief in
paragraph 2 and 5 above is to operate as interim orders forthwith
pending the outcome of the action instituted
by the Applicant with
this Honourable Court against the First Respondent under Case No.
5603/2017 as well as final resolution of
all claims the Applicant has
for the improvements and other works performed at the construction
site;
7. That the First
Respondent be ordered to pay the costs of the present application on
an attorney and client scale;
8. That the Second
Respondent be ordered to pay the costs of this application jointly
and severally with the First Respondent, the
one paying the other to
be absolved, should it oppose the relief sought herein; and
9. Further and/or
alternative relief.
PART B:
10. That pending the
final determination and outcome of the main application instituted
with this Court under Case No. 3712/2018
on 8 August 2018, the First
Respondent be interdicted and restrained forthwith from:
10.1 taking any further
steps in connection with Tender No. MNQ/SCM/15/17-18 which called for
bids for the construction of the very
same Driver’s Licence and
Testing Centre for which the Applicant was appointed;
10.2 instructing,
permitting and/or allowing the Second Respondent to perform any
construction works on the construction site pursuant
to the awarding
of Tender No. MNQ/SCM/15/17-18; and
10.3 giving effect to and
implementing the awarding of Tender No. MNQ/SCM/15/17-18 to the
Second Respondent.
11. That the relief
sought in paragraphs 10.1 to 10.3 above is to operate as interim
Orders forthwith pending the final determination
and outcome of the
main application;
12. That the First
Respondent be ordered to pay the costs of the present application on
an attorney and client scale;
13. That the Second
Respondent be ordered to pay the costs of this application jointly
and severally with the First Respondent,
the one paying the other to
be absolved, should it oppose the relief sought herein; and
14. Further and/or
alternative relief.”
[2]
It is common cause that on 6 November 2014 the applicant was awarded
a tender for the construction of the Butterworth Driver’s
Licencing and Testing Centre (DLTC). The intended duration for
the completion of the project was six months.
[3]
It is further common cause that on 27 November 2014 the construction
site was handed over to the applicant. The applicant
commenced
with site establishment and construction works soon thereafter in
accordance with the scope of work, the technical data
and drawings
provided by the first respondent’s engineer.
[4]
It is also common cause that the project had not been completed on 12
September 2018, the date on which the applicant was allegedly
unlawfully evicted by the first respondent. I do not deem it
necessary to deal with all the facts and events that took place
between November 2014 and August 2018 save to the extent necessary to
deal with what happened on 12 September 2018 and thereafter.
[5]
It is the applicant’s case that on 12 September 2018 Mr Klaas
who is under the employ of the applicant as a security officer
was
chased away from the site with threats of violence. In so doing
the first respondent unlawfully evicted the applicant
from the
construction site and took possession thereof.
[6]
The applicant seeks two reliefs being a
mandament van spolie
to be restored to the possession of the DLTC site so as to protect
its right of lien over the site for an unpaid liquidated amount
of
money. The second relief sought by the applicant is an interim
interdict
pendete lite
pending the outcome of case no.
3712/2018 instituted by the applicant on 8 August 2018.
[7]
It appears that the
mandament van spolie
is also sought on an
interim basis for the restoration of the applicant’s occupation
and thus its right of retention over
the construction site pending
the outcome of an action instituted by the applicant against the
first respondent in this court under
case no. 5603/2017. It was
argued on behalf of the first respondent that
mandament van spolie
is not available on an interim basis as it is, by its very nature, a
final remedy, and therefore the application should be dismissed
even
on this basis alone.
[8]
In this regard reliance was placed on the case of
Nienaber v
Stuckey
1946 AD 1049
at 1053 where Greenberg JA said:
“
Although a
spoliation order does not decide what, apart from possession, the
rights of the parties to the property spoliated were
before the act
of spoliation and merely orders that the status quo be restored, it
is to that extent a final order and the same
amount of proof is
required as for the granting of a final interdict and not of a
temporary interdict...”
[9]
I agree that a
mandament van spolie
is fundamentally a final
relief. This was recently pointed out by the full bench of this
Division in
King Sabata Dalindyebo Local Municipality v Thobani
Noah
case no. 3478/2016 (21 August 2018) in which Huisamen AJ
said:
“
[16]
mandament
van spolie
is available where a person has been deprived unlawfully of his or
her possession of movables or immovable property, as well as
where a
person has been deprived unlawfully of his or her quasi-possession of
other incorporeal rights.
[17] It is critical
to mention that a
mandament
van spolie
order, by its very nature, is final in effect.”
[10]These
authorities however are, in my view, no basis for the proposition
that where a litigant seeks a
mandament van spolie
on an
interim basis, as does the applicant in this case, relief should be
refused necessarily. All that the learned judge
of appeal said
in
Nienaber v Stuckey
is that the amount of proof required
will be as is required for the granting of a final interdict.
[11]
I cannot understand why a
mandament van spolie
should be
refused only on the basis that the applicant said more than he needed
to in that he indicated that he requires restoration
of possession up
to a particular date. An applicant, fully knowing that he or
she is vacating the property in six months
time for instance, is
entitled to be silent about that and merely establish the two
fundamental requirements for a spoliation order,
namely that he was
in undisturbed and peaceful possession and was wrongfully deprived of
possession.
[12]
The requirement that a party who seeks a
mandament van spolie
as a remedy must satisfy the requirements for a final interdict, is
not to say that if he or she seeks restoration for a limited
period,
he or she must be refused the spoliation order. It is to say
that if he or she fails to prove or establish the requirements
for a
final interdict he or she may not be granted a spoliation order.
Has
applicant established possession?
[13]
This requires the examination of some of the facts before and up to
the 12 September 2018. What happened before and up
to the 12
September 2018 is hugely in dispute. Mr Hobbs, counsel for the
applicant accepts this reality and correctly so.
At paragraph
82.4 of the applicant’s heads of argument the following
submission is made:
“
The nature of the
dispute of fact in the present case is on issues that are initially
exclusive, it cannot be difference of views
but rather either the
applicant or the first respondent’s deponents have lied under
oath. If their version is to be
the basis to deny applicant
relief, it would be just and expeditious to test same on the narrow
issue of possession.”
[14]
In my view it was clear from the start that there was a dispute about
rights of possession over the site. To illustrate
this point I
consider it better to refer to applicant’s own papers.
The applicant has annexed to the founding affidavit
a statement made
to the police by the project manager of the first respondent, Mr
Madubela marked annexure “A22”.
That statement was
made following the alleged theft of paving bricks from the
construction site and the arrest of certain individuals.
[15]
In that statement Mr Madubela says:
“
The property that
is alleged to be stolen belongs to Mnquma Municipality. The
complainant in this case Mpendulo Ndlazi does
not have authority nor
ownership of this property. He does not have a right to claim
the ownership of the property and his
contract for the construction
of the Msobomvu testing driving licence was terminated, after he was
fully paid for the work he had
done. The contract was
terminated because his contractor was not performing and he himself
decided to withdraw the contract.
Luthando Jojwana who is
regarded as the main suspect in this case is the director of Thalami
Civils which was appointed by Mnquma
Municipality to do a taxi rank
in Centane.
Luthando Jojwana was
authorised by me to take the paving bricks at Msobomvu drivers
licencing and testing centre which belongs to
Mnquma Municipality.
I authorised him to take the material so that he can finish up at
Centane taxi rank.”
[16]
This statement was signed on the 10 April 2017. Three days
later a letter was addressed to the first respondent by the
applicant’s attorneys marked annexure “A21” in
which
inter alia
, the following is said:
“
We are instructed
to demand, as we hereby do, that Mnquma Local Municipality, Mr
Sakhumzi Madubela and or any of its employees must
desist from
unlawfully dispossessing or purporting to authorise unlawful
dispossession of our client’s property inclusive
of paving
bricks, site containers, or any material on site at the premises of
DLTC forthwith for the duration of our client’s
lawful
occupation of the premises.”
[17]
Both annexures “A21” and “A22” make it clear
that there is a dispute about the rights of possession
over the
construction site. In addition to that, even when one considers
what happened after the very crucial date of the
12 September 2018,
the only conclusion is that this dispute continues. At
paragraphs 10-12 of the founding affidavit the
following averment is
made by the applicant:
“
10. The main event
which necessitated the launching of the present application on an
urgent basis occurred on Wednesday, 12 September
2018. On this
date, the applicant was unlawfully dispossessed of its occupation and
thus its right of retention over a construction
site in respect of
which it was appointed to undertake certain construction related
works.
11. Immediately after the
occurrence of the unlawful dispossession, which is fully detailed
herein below, I personally made contact
with the First Respondent’s
Municipal Manager (being one Mr Mahlasela) to alert him of the
unlawfulness of the First Respondent’s
actions in view of the
Applicant’s right of retention subsisting over the construction
site:
12. My attempt to reach
out to the First Respondent was ignored. I then contacted my
current attorneys of record on Friday
14 September 2018 to arrange
for an urgent consultation. A consultation was held on Saturday
15 September 2018 and immediately
thereafter, the present papers were
drafted.”
[18]
With these facts, it was already clear that there was a huge dispute
of fact about the rights over the construction site including
its
possession and the alleged dispossession which is said to have
occurred on 12 September 2018. Despite such clear dispute,
nowhere in the founding affidavit does the applicant ask, even in the
alternative, that the disputed facts over possession be referred
for
the hearing of oral evidence.
[19]
In the answering affidavit Mr Mahlasela, the first respondent’s
depondent deals with the interaction between Mr Ndlazi
and himself
about the incident of the 12 September 2018 as follows:
“
[26] It is so that
Ndlazi contacted me on the 12 September 2018, alleging unlawful
dispossession of the DTLC from the applicant.
I denied that
there had been any act of dispossession by the first respondent. To
date I still deny this baseless contention.
That Ndlazi has
made this contention so many times does not mean the contention is
correctly made. In any event, Ndlazi was
not reaching out to
the first respondent on 12 September 2018, he was demanding that the
second respondent’s appointment
be withdrawn and that the
second respondent be forbidden from accessing the DLTC. A
demand the applicant is, in law, not
entitled to make.”
[20]
A confirmatory affidavit of Mr Mpiti, the Manager of legal services
of the first respondent is attached to the answering affidavit.
Among other things he confirms that the first respondent had taken
possession of the site. He also confirms what Mr Madubela
said
in his statement to the police on the alleged theft of the paving
bricks. He also confirms that the first respondent
did not
cause the paving bricks to be stolen but removed them to another
project following the first respondent’s take over
of the
possession of the site.
[21]
Mr Hlokoza, the Chief Security Officer of the first respondent also
signed a confirmatory affidavit. In it he confirms
that the
first respondent did take over and assume control and possession of
the DLTC long before the 12 September 2018. He
also says that
following the handover of the site to the second respondent he saw a
person putting up a sign post next to the entrance
of the DLTC in
which it was indicated that the site was under a lien of the
applicant.
[22]
There is another confirmatory affidavit by Ms Mbusi who is a Project
Manager of the first respondent. She also confirms
that it is
the first respondent and not the applicant who has been in possession
of the site since 13 September 2016.
[23]
She says that she worked with the first respondent’s engineers
to prepare a tender document in respect of Tender No.
MNQ/15/17-18.
For this reasons she had to constantly visit the DLTC to verify
certain information and get correct specifications
for this tender.
During this period the applicant was not in possession of the site
after having abandoned it.
[23]
In its replying affidavit the applicant makes the following averment:
“
40. Further to
what is stated herein above the applicant stands by and reiterates
the averments made in the founding affidavit in
support of the
present application. In the premises and all things considered
it is respectfully submitted that the applicant
has made out a case
for the relief sought in the present application.”
[24]
The applicant does not directly challenge some of the allegations
made by the first respondent or put up its own version if
it denies
them or are not correctly reflected. Most significantly one
would have thought that by now it was clear to the
applicant that
there is a huge dispute of fact on the most critical issue of
possession. It however still makes no reference
to a dispute of
fact even on an alternative basis about the possession of the site in
the replying affidavit. In fact, at
paragraph 8.1 of its
replying affidavit the applicant specifically disavows the existence
of a genuine dispute of fact on its alleged
uninterrupted possession
of the site since 13 September 2016.
[25]
Only in the heads of argument was it accepted on behalf of the
applicant that there is a material dispute of fact. Even
that
acceptance appears to be with a great degree of reluctance. I
say this because in his heads of argument Mr Hobbs suggests
that what
he calls a material dispute of fact may not be fundamental. I
do not know that, that which is material, may at
the same time be not
fundamental. This is confusing because according to the
dictionaries that I have consulted these words
seem to have the same
meaning. For instance, the Shorter Oxford English Dictionary,
sixth edition describes the word “material”
as serious,
important, of consequence. It describes the word “fundamental”
as meaning, pertaining to the basis
or grand-work, going to the root
of the matter.
[26]
This is how the question of the dispute of fact is raised in the
heads of argument of the applicant:
“
16. Patently the
affidavits in these proceedings reveal a material dispute of fact as
to whether or not the applicant
was in occupation of the
project and by extension still maintained its lien – on 12
September 2018. It is submitted
that this court should adopt
the approach set out in the matter of
Ferreira
which
we refer to above. In this regard we submit that the applicant
has prospects of success in its claim for albeit that
such prospect
may be assessed by this court as being week.
17. In the
circumstances we accordingly submit that the material dispute of fact
should not preclude the granting of the interim
relief that the
applicant seeks. Alternatively, in the event of this court
funding that the material dispute of fact is so
fundamental that it
will not apply the principles set out in the
Ferreira
case then we submit and apply that the parties should be sent to oral
evidence to resolve that narrow dispute.”
[27]
I must point out that the case of
Ferreira v Levin NO and others
1995 (2) SA 813
(W) is largely in the context of interim interdicts.
As pointed out above, a
mandament van spolie
is essentially
not an interim interdict but fundamentally a final interdict.
[28]
Most importantly Harms DP, in
Law Society
,
Northern
Provinces v Mogani
2010 (1) SA 186
at 195 para 23 C-D made it
clear that only in exceptional circumstances will a court permit an
applicant to apply in the alternative
for the matter to be referred
to evidence should the main argument fail. This is what the
learned Deputy President of the
Supreme Court of Appeal said on this
issue:
“
An application for
the hearing of oral evidence must, as a rule, be made in
limine
and not once it becomes clear that the applicant is failing to
convince the court on the papers or on appeal. The
circumstances
must be exceptional before a court will permit an
applicant to apply in the alternative for the matter to be referred
to evidence
should the main argument fail.”
[29]
It was not submitted during argument that the dispute of fact was not
foreseeable and therefore could not be raised even in
the alternative
in the founding affidavit. Even worse, when the answering
affidavit was filed together with the confirmatory
affidavits it
should have become very clear to the applicant that there was a
material dispute of fact, if it initially had some
doubts.
However, even in the replying affidavit the dispute of fact is still
not raised and the applicant does not ask for
the hearing of oral
evidence, at least on the events of the 12 September 2018. Even
at the stage of the argument it is raised
not in
limine
but as
an alternative.
[30]
The exceptional circumstances that were referred to in
Law
Society, Northern Provinces v Mogani
are not and cannot be a
regurgitation of the original facts that were pleaded in the founding
affidavit. They must be such
as to enable the court to exercise
its discretion in favour of the applicant and not dismiss the
application on this ground as
the first respondent urges the court to
do.
[31]
However, in my view, the interests of justice are paramount.
The court cannot and should not say that because referral
to oral
evidence should have been raised in
limine
and was not,
therefore nothing else matters. That is why there is reference
to exceptional circumstances. The court
must still see if on
all the facts and despite the failure to plead the dispute of fact
and its concomitant referral to oral evidence
in
limine
, it
will arrive at a just decision. In this case I do not think
that there are any factors that would result in injustice
if the
court invokes the provisions of Rule 6 (5) (g) of the Uniform Rules
of Court.
[32]
This Rule in part provides thus:
“
Where an
application cannot properly be decided on affidavit the court may
dismiss the application or make such order as to it seems
meet with a
view to ensuring a just and expeditious decision.”
[33]
In my view a just and expeditious decision in this case does not
require the hearing of oral evidence but the dismissal of
the
application. The contract was for a period of six months.
There were many problems some of which could be due to
the first
respondent, like the alleged non-payment of payment certificates.
Almost two years since the contract was awarded
the applicant reached
such a state of exasperation that it wrote the letter dated 13
September 2016 in which it
inter alia
said the following:
“
We hereby tender
our withdrawal from the contract with immediate effect, it has become
impossible to complete the works due to inflation
since the time of
tender.
Our rates are for the
duration of 2014, costs have escalated enormously over the period,
the contract does not have an escalation
clause under which we may
apply for price adjustment, in the circumstances, taking into account
the regulatory framework of public
sector contracts, we are unable to
find any basis to sort price adjustment.
Background
The contract has been
severely delayed due to a litany of challenges, just for the sake of
completeness, we briefly lay a short
background.
Post award and upon
commencement of works we discovered that the ground was unsuitable
for construction at the depth of 150mm as
stipulated for in the
contract. The depth had to be approximately 600mm, filled with
rocks all of which was not in the original
stipulations. In
preparing the various order meant to mitigate the challenge, the
engineer erroneously assumed the rock material
will be available from
a local commercial source, as such in making up the price for the
variation order, the haul distance was
assumed to be 3 kilometres.
(see attached engineer’s work sheet for the variation order)
This was not to be, we
tried crushing on site but there was insufficient surface rock
meeting the required strength, we could not
blast since this requires
a permit, which is not in place. Ultimately we bought the rock
80 kilometres away, from a Bityi
quarry which was utilised by another
contractor, Haw and Inglis. We could not claim for this since
the variation order had
been approved without this haulage.
Since we were expending every effort, in good faith to complete the
contract, we completed
this task and other subsequent activities.
The delays occasioned by the processing of variation order, haulage
from new distances
all impacted upon the delivery dates, which bears
upon time. It has however become impossible to complete the
work for reasons
on paragraph 2 above hence our withdrawal from the
contract.
Proposal
The municipality may
decide to separate the contract. The building together with
associated works is 95% complete, if we complete
same to 100% the
municipality may issue a certificate of completion for the reduced
scope of works under the contract. The
benefit for this would
be that in the event of any defects to the building, the contractor
will remain liable under the standard
defects liability period (this
is essentially a warranty). Otherwise we are willing to vacate
this too, be fully discharged
forthwith and leave it to be completed
otherwise. The dilemma which may face the municipality is that
another contractor
may not have the lawful obligation or appetite to
be held liable for possible defects on a building one did not
construct.
We thank you most
sincerely for the opportunity you granted us and look forward to a
healthy relationship in future.
Hope you find the above
in order.”
[34]
It will be noted that not even indirectly does applicant alleged that
the cause of the termination or withdrawal from the contract
is the
non-payment in its letter dated 13 September 2016 affidavit. I
simply do not see how it is in the interest of justice
that the
stalemate that has been there for a very long time should be allowed
to carry on. What is in the interest of all
concerned, in my
view, is the completion of the project, if needs be, by somebody else
so that those who were intended to benefit
from the facility are not
delayed any longer.
[35]
The applicant’s demand to retain the site is so that if it
succeeds in its claim for monies owed by the first respondent
it will
have retained the project site exercising its right of retention or
builder’s lien. This, in circumstances
in which it is not
being suggested that when and if the applicant is successful in case
no. 5603/2017 the first respondent might
not be able to pay. On
the contrary this facility, when completed will be an addition to the
first respondent’s other
attachable assets. Unless it is
being suggested that by then the applicant will have dissipated its
assets including this
facility. The applicant has not made and
is unable to make such a submission because it would simply be
baseless and farfetched.
In any event a lien cannot be
exercised where possession has been lost.
[36]
For the same reasons I simply cannot see how the applicant can suffer
irreparable harm if the interim interdict is not granted.
In
fact, the reading of paragraphs 161-163 of the founding affidavit
where the applicant deals with this requirement, I get the
distinct
impression that the applicant is simply unable to articulate the
irreparable harm it will suffer. At best it says
that the
outcome of the main application in case no. 3712/2018 will be
rendered nugatory and academic. How this will be so
is not
explained, a point I will come to later.
[37]
With this in mind the basis on which it is suggested by the applicant
that there is no alternative remedy is also difficult
to discern. The
applicant is already exercising an alternative remedy under case no.
5603/2017. If its prospects of success
are good it means its
prospects of recovering the amounts said to be owing are equality
good. They do not get any better
by means of an interdict
pendente lite
. No cogent basis has been pointed out that the
chances of recovery of the money said to be owing through either the
exercise of
the lien are improved. I therefore find that there
is an alternative remedy which has been and is being exercised
already.
Has
applicant established a
prima facie
right?
[38]
As indicated above, there is a dispute of fact about whether or not
applicant did or did not abandon the DLTC, a point applicant
belatedly concedes. At best, what appears to be a clear right
is for the applicant to be paid if it proves that it has not
been
paid monies that are due to it. It is trying to do that under
case no. 5603/2017. It cannot be denied on any logical
basis
that if it succeeds in its claim it will recover all the monies owing
through execution against first respondent’s
properties. The
right to be paid does not translate to a
prima facie
right to
retain the DLTC where it has not proved on the papers that it did not
lose it.
[39]
The applicant deals with the
prima facie
right at paragraphs
156 to 160 of the founding affidavit as follows:
“
156. The applicant
was lawfully appointed as a contractor for the construction of the
Butterworth Drivers Licencing and Testing
Centre.
157. According to
the applicant there is an existing contract between it and the first
respondent.
158. The applicant is
pursuing its remedy of specific performance in so far as the said
contract is concerned.
159. In launching the
main application the applicant is seeking to protect and preserve its
contractual rights arising from its
appointment by the First
Respondent.
160. The other rights
that are at play in the main application are set out in paragraph 149
above.”
[40]
The whole of the relief sought in Part B is difficult to understand.
For the sake of clarity and completeness I deem
it necessary, to
again quote the key prayers in Part B.
“
10. That pending
the final determination and outcome of the main application
instituted with this Court under case no. 3712/2018
on 8 August 2018,
the first respondent be interdicted and restrained from;
10.1 taking any further
steps in connection with Tender No. MNQ/SCM/15/17-18 which called for
bids for the construction of the very
same Driver’s Licence and
Testing Centre for which the applicant was appointed;
10.2 instructing,
permitting and/or allowing the second respondent to perform any
construction works on the construction site pursuant
to the awarding
of Tender No. MNQ/SCM/15/17-18; and
10.3 giving effect to and
implementing the awarding of Tender No. MNQ/SCM/15/17-18
to the second respondent.
11. That the relief
sought in paragraphs 10.1 to 10.3 above is to operate as interim
orders forthwith pending the final determination
and outcome of the
main application.”
[41]
It seems to me that the case of the applicant in this regard is an
afterthought designed to belatedly and urgently interdict
a process
that started in May 2018 when the tender was advertised. I say
this because at paragraphs 147 and 149 of its founding
affidavit it
is said:
“
147. In the main
application, I am inter alia challenging the lawfulness and
constitutionality of the decision of the
first respondent
to recall for tenders for the construction of the Butterworth
Driver’s Licensing and Testing Centre.
I am also seeking
an order declaring any award of the re-advertised tender to be
unlawful and unconstitutional, with the consequent
result that it be
set aside as a nullity.
149. In the main
application, the applicant is seeking to vindicate the
constitutionally protected right to just administrative
action.
Equally, the applicant is seeking to vindicate:
149.1 the right to
freedom of trade, occupation and profession as protected by section
22 of the Constitution;
149.2 the right to fair,
equitable, transparent, competitive and cost-effective procurement as
protected under section 217 of the
Constitution;
149.3 its contractual
remedy of specific performance regarding the unlawful cancellation of
the contract concluded between it and
the first respondent; and
149.4 the constitutional
value of the rule of law, which
inter alia
, entitles everyone
that has a dispute that can be resolved by the application of law to
a right to have such dispute decided in
a fair public hearing before
a Court.”
[42]
By its own admission, the applicant saw the advertisement of Tender
No. MNQ/SCM/15/17-18 in May 2018 and decided not to bid
for it.
Secondly the applicant decided not to interdict it or the first
respondent from adjudicating the bids for the tender
after having
seen the advertisement. Thirdly, in his capacity as managing
director of the applicant, Mr Ndlazi attended the
handing over of the
DLTC to the second respondent on 06 September 2018 and decided not to
interdict the handing over of the site.
Fourthly, it became
aware that the tender had been awarded to the second respondent.
[43]
It is difficult to understand how it intended to protect the rights
listed in paragraph 149 of its founding affidavit when
it decided not
to bid for the new tender in circumstances in which according to its
own annexure “A19” it admitted
to being unable to
complete the initial job due to inflation - that its contract had no
escalation clause for it to apply for price
adjustment and that the
regulatory framework of the first respondent would not allow for
price adjustment.
[44]
One last point needs to be made. The handing over of the DLTC
happened on the 6 September 2018 in the presence of the
representative of the applicant. The applicant’s case is
that it was unlawfully evicted on 12 September 2018 when Mr
Klaas was
chased away by employees of the first respondent. The applicant
moved this application on an urgent basis only
on 19 September 2018,
a full week after the alleged eviction and two weeks after the site
was handed over to the second respondent.
No allegation is made
that, as at that date when the managing director of the applicant
deposed to the founding affidavit, the
second respondent had not
moved into the DLTC or taken it over.
[45]
On the contrary in his founding affidavit Mr Ndlazi appears to accept
the possibility of the second respondent having taken
possession of
the site as follows:
“
134. As matters
stand the applicant is unable to gain access to the construction site
in that it has been taken over by representatives
of the first
respondent,
alternatively
second respondent on the instruction of the first respondent.
Immediately after unlawfully evicting the applicant from the
construction site, the first respondent placed its own security
personal.”
[46]
In the first respondent’s answering affidavit an averment is
made that the second respondent is already rendering the
services
under contract number MNQ/SCM/15/17-18. Most significantly in
his replying affidavit deposed to on the 25 September
2018 Mr Ndlazi
confines his denial of the fact alleged by Mr Mahlasela, the
Municipality Manager of the first respondent that the
second
respondent is rendering the services in respect of the contract to
the 12 September 2018. Nothing is said about the
24 September
2018 when the answering affidavit was signed or on 25 September 2018
when Mr Ndlazi deposed to the replying affidavit.
[47]
It is accepted that after the second respondent was awarded the
contract, the site was handed over to it on 6 September 2018.
Furthermore if it is true that it has been rendering services as at
the 24 September 2018 when the answering affidavit was signed,
the
question is whether it would be justifiable to evict the second
respondent for purposes of restoration of possession to the
applicant.
[48]
This question was recently answered in the negative in this Division
by Plasket J in
Sityata v Eastern Cape Development Corporation
,
case no. CA & R14/2018 delivered on 3 July 2018 in which the
learned judge expressed himself as follows:
“
[17] It is clear
that it is not possible for the respondent to restore possession to
the applicant even though it may well have
transferred possession to
the third party with unseemly haste and with the intention of
defeating a
mandament
van spolie
.
If it purported to cancel the lease with the third party, in the
absence of one of the circumstances mentioned in clause
17 it would
act unlawfully. Unfortunately, the
mandament
van spolie
cannot be stretched to come to the aid of the appellant. This
is a case in which the application of the law does not equate
to
doing justice. The appeal cannot succeed.”
[49]
In all these circumstances the application cannot succeed.
There is no reason why costs should not follow the results.
Therefore the following order will issue.
1.
The application is dismissed;
2.
The applicant is ordered to pay costs of this application including
costs reserved on 25 September 2018.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the applicant: JL HOBBS
Instructed
by: NDUMISO VOYI INCORPORATED
MTHATHA
Counsel
for the respondent: A BODLANI
Instructed
by: NT VUBA INC.
MTHATHA
Heard
on: 02 October 2018
Delivered
on 23 October 2018