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[2018] ZAGPPHC 775
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SSG Security Solutions (Pty) Limited v Vaal University of Technology and Another (67027/17) [2018] ZAGPPHC 775 (28 March 2018)
IN THE HIGH COURT OF SOUTH
AFRICA GAUTENG
DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
CASE
NO: 67027/17
28/3/2018
In
the matter between:
SSG
SECURITY SOLUTIONS (PTY)
LIMITED
Applicant
and
VAAL
UNIVERSITY OF
TECHNOLOGY
First
Respondent
MADUNA
PROTECTION SERVICES (PTY) LIMITED
Second
Respondent
JUDGMENT
Tuchten
J:
1
SSG
Security Solutions (Pty) Limited (SSG) and the second respondent
(Maduna), together with a number of persons whom I need not
identify
by name, responded to a tender invitation put out by the first
respondent (VUT) on 20 February 2017 to supply security
services to
VUT.
2
The
tender process involved, broadly and for present purposes, two organs
of VUT and three phases. In the first two phases, its
Bid Evaluation
Committee (SEC) evaluated the bids submitted. In the first phase
those who responded to the tender were evaluated
for compliance with
formal requirements. Those tenderers who were adjudged by the BEC not
to have complied with these requirements
were eliminated from further
consideration. This class of bidder was referred to in argument as
non-responsive bidders and I shall
similarly refer to this class as
such.
3
The
only responsive tenderers remaining, SSG and Maduna, were then
adjudicated by the BEG for functionality. Functionality evaluation
broadly involves determining as objectively as possible what the
prospects were that the tenderer would deliver on its tender
promises. SSG was awarded 95% and Maduna 93% for functionality
4
The
BEC then evaluated these two tenders for price. SSG's case is that
its tendered price was about R9 million lower than that of
Maduna
over the three year period of the tender.
5
Tenders
are further weighted at this stage for compliance with empowerment
criteria developed and made known by VUT, designed to
give an
advantage to persons considered victims of previous racial and
economic discrimination.
6
The
process then contemplated that the competing bids, as evaluated would
be considered by VUT's Bid Adjudication Committee and
the tender
awarded pursuant to that adjudication. SSG1 s case is that after some
delay, VUT decided not to award the tender but
to cancel it and
commence with a fresh tender process for the same tender.
7
Aggrieved
by this development, SSG decided to apply urgently for relief to set
aside the decision to cancel the tender, to review
and set aside the
minutes of a meeting of VUT held on 10 August 2017 , to review and
set aside the decision of VUT to publish a
new invitation to tender,
for a declaratory order the VUT had awarded the tender to SSG and for
an order directing VUT to implement
the tender so allegedly awarded.
8
SSG
implemented its decision to bring legal proceedings in a notice of
motion dated 29 September 2017, supported by a founding affidavit
sworn on the same day and date stamped by the Registrar under the
present case number on the same day. The founding affidavit was
deposed to by Gen Mashigo, a director and the chairman of the
applicant.
9
The
founding affidavit in fact reflected SSG as the applicant and VUT and
Maduna as first and second applicants respectively. The
allegations
in the founding affidavit manifestly demonstrated SSG's intention
that it, and not some other company or other person,
should feature
as the applicant in the contemplated legal proceedings.
10
Gen
Mashigo testified that SSG was the applicant and that it had
responded to the tender invitation. He concluded his affidavit
with
the customary request for an order as set out in the notice of
motion.
11
VUT
and Maduna opposed the application and delivered answering
affidavits. Their answering affidavits made it clear that they
admitted
that SSG was the applicant and that SSG had been one of the
tenderers. Neither of them suggested that any other company of person
associated with SSG had been a tenderer. VUT took the point that SSG
should have joined the non-responsive tenderers to its application
because (thus the argument) they were necessary parties. But
otherwise, VUT and Maduna opposed the application on its merits.
12
SSG
decided to amend its notice of motlon. It did so in a notice dated 2
November 2017 (the substantive amendment). In the amended
notice of
motion, SSG asked that the decision of VUT to cancel the tender be
reviewed and set aside, that the decision of VUT not
to award the
tender to SSG, alternatively VUT's failure to take the decision to
award the tender to SSG, be reviewed and set aside,
that VUT's
decision to publish a new invitation to tender be reviewed and set
aside and that
... the
tender is awarded to the applicant by means of the granting of
substitution relief, alternatively that the matter is referred
back
to [VUT] to re-evaluate the tenders of the applicant and (Maduna)
inclusive of the compliance of the respective bids with
the mandatory
requirements of the tender.
13
The main application was set down for
hearing during the week of 24 October 2017. There was no opposition
to the substantive amendment.
For reasons not made known to me, the
case was then further postponed.
14
The
matter served before me in the urgent court during the week of 1
February 2017. When the matter was called, counsel for SSG
applied
orally (if my memory serves me) for an amendment to the heading to
the notice of motion (the heading amendment). The heading
to the
notice of motion dated 29 September 2017 as originally submitted and
the notice to amend dated 2 November 2017 had not reflected
SSG as
the applicant. Instead it reflected SSG Security Solutions (Pty)
Limited (Security Solutions) as the applicant. The reference
to
Security Solutions included a reference to a company registration
number. There had existed a company called Security Solutions.
But
the registration number given was that of a different company. And
Security Solutions had been deregistered some time before
the
institution of the present proceedings.
15
The
heading amendment was opposed by Maduna but not at that
stage by VUT. Maduna's counsel had picked up the
reference to Security Solutions while preparing for the hearing
before me
and had taken the points in heads of argument dated 15
December 2017 that Gen Mashigo was not authorised to represent
Security
Solutions and that relief was being sought by Security
Solutions and not SSG. But SSG's attorney had only read Maduna's
counsel
's heads of argument about a week before the hearings during
week of 1 February 2017 and SSG's lawyers considered an oral request
for the heading amendment would be adequate. In the face of
opposition, however, SSG's lawyers reconsidered and submitted a
substantive
application for the heading amendment. This remained
opposed by Maduna and the matter was accordingly postponed by
special
arrangement with the DJP to be heard on 26 March 2018 before
me.
16
At the resumed hearing, the heading
amendment was opposed by both VUT and Maduna. A the request of all
counsel, I heard argument
on the heading amendment and the
non-joinder point taken by VUT. After argument I reserved judgment on
both issues. This meant,
regrettably, that an adjudication on the
merits of the dispute had once again to be delayed. I gave counsel
permission once again
to approach the DJP for a special date for the
resumed hearing.
17
I
shall deal first with the heading amendment. It will be recalled that
the heading to the founding affidavit contained what SSG
contends is
the correct heading. This proposition is supported by the facts that
the founding affidavit itself identifies the applicant
which the
deponent. as well as SSG, intended to feature as the applicant in the
case. This could hardly have been otherwise: SSG
responded to the
tender invitation and Security Solutions did not. Nor did the other
associated company which bears the registration
number in the
headings to the notice of motion and the notice of substantive
amendment.
18
I
would have regarded this evidence, in the absence of countervailing
facts, to be decisive. But pursuant to the challenge presented
by
Maduna, SSG presented additional facts, attested to by its attorney,
Mr Breed.
19
Mr
Breed briefed both junior and senior counsel to draft the
application. Junior counsel prepared a draft notice of motion and
founding affidavit in which the parties identified in the headings to
both the notice of motion and the founding affidavit reflected
SSG,
with its correct registration number, as the applicant. The draft
founding affidavit prepared by junior counsel of course
identified
SSG by name as the applicant. Junior counsel put his drafts up to his
leader. Senior counsel then settled the drafts.
By this I mean that
senior counsel considered and changed language in the notice of
motion and the founding affidavit drafted by
junior counsel.
20
But
in the chambers of senior counsel, the name of the applicant
reflected in the notice of motion was altered to that of Security
Services and the registration number of a third company was
attributed to Security Services. Senior counsel did not alter the
reference to and the description of SSG in the founding affidavit as
the applicant. How this alteration happened, neither senior
counsel
or SSG's attorney were unable to say.
21
When
the notice of application for the substantive amendment was prepared,
the heading to the original notice of motion was simply
perpetuated.
22
SSG
and its attorney Mr Breed had always wanted to institute proceedings
in the name of SSG. This was because SSG was the tenderer.
An
application to remedy the supposed deficiencies in the tender process
by Security Services or the other company would simply
never have got
off the ground. Mr Breed justly characterises the reference to
Security Services in the heading to the notice of motion
as a
mistake. So it manifestly was. To conclude that senior counsel
seriously and deliberately chose to have Security Services
cited as
the applicant would have meant that senior counsel had decided to
sabotage his own client's case but then sabotaged his
own attempts at
sabotage by leaving the heading to and the wording of the founding
affidavit as it had been drafted by junior counsel.
23
The
whole notion is preposterous and I deplore the fact that the
arguments advanced by counsel for the both VUT (which had decided
at
the hearing on 26 March 2018 to oppose the heading amendment) and
Maduna required me to write this considered judgment.
24
The
arguments of counsel for the respondents were replete with learning
but as I see it rather lacking in wisdom. They accepted
that
amendments such as the heading amendment fall into two, and only two,
categories: the applicant for amendment either wants
to substitute
one plaintiff or applicant for another or to correct a
misdescription, ie what the cases call a misnomer. Which category
is
apposite cannot be determined merely by looking at the form of
amendment sought. For example, an attempt to change a single
word in
the description of the plaintiff may in fact be an attempt to
substitute one plaintiff for another.
25
The
change in senior counsel's chambers of the heading to the notice of
motion was a mistake. But what kind of mistake? Was there
a decision
by senior counsel to change the applicant in the contemplated urgent
application to Security Services? Or was the reference
to Security
Services a simple misnomer? I shall conclude my reasoning on this
aspect below.
26
There
is also a line of cases
[1]
which is authority for the proposition that, without exception, an
attempt to substitute one litigant for another where the litigant
initially cited was non-existent, can never succeed. In
Van
Heerden,
an attempt to substitute
the testamentary executor for the deceased who had died before
summons was issued was held to be incompetent.
27
I
decline to follow
Van Heerden
and
its progeny on the point. I think it posits too rigid a test,
overlooks the multitude of factual situations that can give rise
to
such applications for amendment and does not give due weight to the
principle that procedural law must operate, not as an end
in itself,
but to give effect to the principle articulated in s 34 of the
Constitution that courts exist to decide
disputes
between litigants. I prefer the
reasoning in
Luxavia (Pty) Ltd v Gray
Secun"fy Services (Pty) Ltd,
[2]
which held that the correction of errors giving rise to applications
for such amendments should more appropriately be controlled
through
the limiting criteria of ma/a
fides
and prejudice.
28
To
determine what the notice of motion, with its existing heading, and
the founding affidavit actually mean , I find it useful to
apply the
Endumeni
principle.
As was so trenchantly observed in
Potgieter
v Olivier and Another ,
[3]
in
Natal Joint Municipal Pension Fund
v Endumeni Municipality
[4]
the Supreme Court of Appeal has
provided an exposition of the principles of interpretation. It is a
unitary exercise that requires
the consideration of text, context and
purpose. Of course in the present case, one must look too at the
evidence presented by the
parties. Neither of the respondents
contributed to the factual material. Maduna purported to do so but
its evidence is mere argument.
29
The
language is ambiguous; there is a reference in the text both to SSG
and to Security Services. But the language favours the conclusion
that the litigants intended SSG to be the true applicant, not
Security Services which had by then ceased to exist and which could
never succeed in an application to enforce SSG's rights arising from
the tender.
A fortiori,
the
third company whose registration number was wrongly attributed to
Security Services. The purpose was to produce a set of papers
that
would best ventilate the claim and enforce the rights of SSG, not
those of either of the other two companies. The context
was the
process in which papers were prepared for this purpose. All this
points, as I have said, irresistibly to the conclusion
that a mistake
was made in senior counsel's chambers.
30
Counsel
for Maduna submitted that there had been no explanation for the
mistake. Absent an explanation, he submitted, no amendment
was
competent. But the submission is wrong. There was an explanation.
Either senior counsel or his assistant who converted his
work into
the finished product
[5]
made a mistake. What is not explained is how that mistake came to be
made. In a proper case, the inability to explain how an alleged
mistake came to be made may be decisive against an applicant.
But once, as in the present case, the fact of a mistake has
been
proved, the inability to explain the mechanics of how the mistake
came to be made cease to be of decisive importance.
The argument
for the second respondent is essentially that the heading amendment
application lacks
bona fides.
I
reject this contention for reasons already given
31
Nor
was there any prejudice to the respondents. Prejudice was said to lie
in the fact that if the amendment in fact constituted
a substitution,
the main application would be out of time under s 7 of the Promotion
of Administrative Justice Act, 3 of 2000 (PAJA).
But this argument
overlooks the nature of the time restriction in s 7(1). An applicant
who is out of time under PAJA can apply
for what is generally
termed condonation under s 9. If the effect of the heading amendment
is, against, my conclusions, a
substitution rather than a correction
of a misnomer, then the respondents will have their remedy: they can
raise the alleged lateness
of the application as a bar to a decision
against them on the merits unless the hypothetical substitution is
"condoned".
32
In
determining whether the applicant for amendment wants to substitute a
party for another or correct a misnomer must surely depend
on
the intention of the litigants and their lawyers. Counsel for the
respondents argued that the intention of senior counsel must
have been to make Security Services the applicant. I do not
agree, If senior
counsel had held such an intention, consequential
changes to the founding affidavit would have been made. The heading
amendment
is obviously made to correct a misnomer.
33
It
therefore follows that the amendment must be granted. As to costs,
the respondents were within their rights to require SSG to
apply for
its heading amendment by substantive application. Generally, an
amendment is an indulgence which will save a respondent
who opposes
the amendment from an adverse costs order. But in the present case,
the respondents have been unsuccessful both
on the facts and on the
law. Some of their arguments were distinctly unreasonable. I think
the fairest course is to make no order
on the costs of the heading
amendment.
34
I
turn to the non-joinder point. The issue is whether the non
responsive tenderers ought to have been joined. Joinder of a
party is
only required as a matter of necessity, as opposed to convenience, if
that party has a direct and substantial interest
which
may be affected prejudicially
by the
judgment of the court in the proceedings concerned.
[6]
35
The joinder issue must be examined in
the light of the relief actually sought by the applicant in its
notice of motion. Whether
an applicant has claimed relief which is
competent or whether the applicant will or will not in due course
succeed is of no relevance
to this enquiry. In the present case, the
court is asked only to scrutinise the positions of SSG and Maduna. As
I see it, the court
is not asked to make any order which might
prejudice the non-responsive tenderers. Their position was determined
by the administrative
actions which rejected their tenders for
non-responsiveness. No request has been made to vary or set aside the
administrative actions
which terminated the participation of the
non-responsive tenderers in the tender process. Until so varied or
set aside, those actions
are decisive in ending the participation of
the non-responsive tenderers in the process. Had SSG asked for the
entire process to
be set aside, the position might have been
different.
36
I
therefore conclude that the joinder of the non-responsive tenderers
was not required of necessity. The non-joinder point taken
by VUT
must fail. This point is merely an aspect of the main application
which convenience required be determined separately. The
incidence of
the costs of the argument should form part of the material to be
considered in the context of a costs order by the
court which hears
the main application. I shall therefore reserve these costs.
37
I
make the following order:
1
The
application to amend the heading to the notice of motion dated 29
September 2017 and the heading to the amended notice of motion
dated
2 November 2017 brought by notice of motion dated 1 February 2018 is
granted.
2
Each party must pay its own costs in the
application to amend the headings.
3
The
non-joinder point taken by the first respondent is dismissed. It is
declared that the joinder of those tenderers whose tenders
were found
by the first respondent not to satisfy the mandatory requirements of
the tender and were therefore found by the first
respondent to be
non-responsive is not required as a matter of necessity.
4
The
costs incurred in relation to the argument of the non joinder
point on 26 March 2018 are reserved for determination by
the court
hearing the main application.
NB
Tuchten
Judge
of the High Court
28 March 2018
[1]
Exemplified by
Van Heerden v Du Plessis
1969 3 SA 298
O
[2]
2001
4
SA 211
W paras 17-20
[3]
2016 6 SA 272
GP para 30
[4]
2012
4 SA 593
SCA
[5]
Who in a bygone age would have been said to have typed his work
[6]
Judicial Services Commission and Another v Cape Bar Council
and Another
2013 1 SA 170
SCA para 12