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[2017] ZAGPPHC 147
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VIP Consulting Engineers (Pty) Ltd and Others v Minister of Finance Mr P J Gordhan and Others (24799/2013) [2017] ZAGPPHC 147 (20 April 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTH
GAUTENG DIVISION, PRETORIA
CASE
NO: 24799/2013
Reportable:
No
Of
interest to other judges: No
Revised.
20/4/17
VIP
CONSULTING ENGINEERS (PTY)
LTD
1
st
APPLICANT
REG
NO. 1997/005608/07
IGNATIUS
WILHELM
HENNING
2
nd
APPLICANT
PIETER
VAN
IMMERZEEL
3
rd
APPLICANT
STAFANUS
PRINSLOO
4
th
APPLICANT
JOHAN
JANSEN VAN
RENSBURG
5
th
APPLICANT
JOSEPH
RAMATHLODI
RAMALOPE
6
th
APPLICANT
GRAEME
ARTHUR LLOYD
AMBROSE
7
th
APPLICANT
STRATFORD
FULTNER
POHL
8
th
APPLICANT
IRVIN
BAFFANA
SIBISI
9
th
APPLICANT
and
THE
MINISTER OF FINANCE: MR PJ
GORDHAN
1
st
RESPONDENT
in
his capacity as the responsible Minister for
the
Department of National treasury
EKURHLENIMETROPOLITAN
MUNICIPALITY
2
nd
RESPONDENT
DEPARTMENT
OF FINANCE: EKURHULENI
3
rd
RESPONDENT
METROPOLITAN
MUNICIPALITY
THE
CHAIRPERSON OF THE BID ADJUDICATION
4
th
RESPONDENT
COMMITTEE:
EKURHULENI METROPOLITAN
MUNICIPALITY
THE
CHAIRPERSON OF THE BID
EVALUATION
5
th
RESPONDENT
COMMITTEE:
EKURHULENI METROPOLITAN
JUDGMENT
MSIMEKI
J,
INTRODUCTION
[1]
The applicants brought this application which is in two parts. In
Part A the applicants sought an order directing the first
respondent
to remove the applicants' names from the database of restricted
suppliers which is kept and/or administered by the Department
of
National Treasury in accordance with the Treasury Regulations for
Departments, Trading Entities, Constitutional Institutions
and Public
Entities, issued in terms of the
Public Finance Management Act,
1999
,
pending the final adjudication of the review application
referred to and envisaged in Part B.
[2]
Part B and its relief were postponed
sine die
and now serve
before me.
[3]
Part A was brought on an urgent basis and has been disposed of. Part
B is opposed by the second to fifth respondents.
[4]
Before the Court could deal with Part B of the Notice of Motion, the
respondents raised two points
in limine.
However, they
abandoned the first point
in limine.
I dealt with the second
point
in limine
which was that the applicants had brought the
judicial review proceedings outside the stipulated 180 days which
simply meant that
the proceedings had been brought out of time. This,
according to the respondents, amounted to a bar to the bringing of
such review
proceedings. The first respondent did not file an
answering affidavit as he was abiding the decision of the Court. I
found in favour
of the applicants and dismissed the second point
in
limine
with costs.
[5]
The respondents also brought an application to have the applicants'
replying affidavit struck out on the basis that it introduced
matters
which had not been dealt with in the applicants founding affidavit.
This, according to the respondents, amounted to the
applicants
abandoning their original cause of action and substituting it with a
new one. I again found in favour of the applicants
and dismissed the
interlocutory application which had been brought by the second to the
fifth respondents (in the main review application).
[6]
The second, third, fourth and fifth respondents were ordered to pay
the costs of the interlocutory application including the
costs
consequent upon the employment of senior counsel.
[7]
Advocate F. W Botes SC and Advocate L. P. Mkize acted for the
applicants and the second, third, fourth and fifth respondents
respectively when the points
in limine
and the interlocutory
application were heard and argued.
[8]
On 9 February 2016 I gave judgment in favour of the applicants, as
alluded to above, on the point
in limine
and the interlocutory
application. The matter was then postponed
sine die.
[9]
The matter, approximately 8 months after my aforesaid judgment was
again placed on the roll for further hearing. The parties,
on 6
October 2016, when the matter again came before me, were represented
by the same legal representatives. I must hasten to add
that my first
judgment has not been appealed.
[10]
The submissions by both Counsel, when the matter came before me for
the first time, were such that it was clear that both Counsel
could
not have argued the matter without touching on the merits of the
case. This, clearly, is indicative of the fact that the
matter was
substantially argued when it came before me for the first time. My
judgment, in the main, dealt with all the issues
that were raised and
argued by both Counsel. Counsels' arguments and submissions in this
judgment, in the main, have been covered
in my first judgment. This
judgment, as a result, will be brief.
[11]
This application has been brought in terms of
Rule
53 of
the
Uniform Rules of Court
(which I shall refer to as the
"Rules
of Court").
[12]
The applicants, in this review application, and in accordance with
Rule 53 of the Rules of Court,
seek an order which reviews and
sets aside the decision or resolution which the second respondent's
Bid Committees (the fourth and
fifth respondents) adopted on 23 July
2012, prohibiting first applicant from participating in contracts
involving organs of State
with effect from 23 July 2012 for a period
of 5 years and publishing and/or listing the applicants' names on the
database of restricted
suppliers which is kept or administered by the
Department of National Treasury.
[13]
The second respondent's tender and procurement committee, on 12
February 2007 resolved to appoint the first applicant as consulting
engineers in accordance with the provisions of paragraph 36(1)(a)(v)
of the Supply Chain Management Policy, to render specific
services to
the second respondent. The engineering services included the
rendering of professional engineering services for the
construction
of civil engineering infrastructure for the western portion of
Etwatwa Extension 34.
[14]
The second respondent, on 30 July 2007, on its own accord, contracted
with Niloti Carpentry and Construction CC (hereinafter
referred to as
"Niloti") for the construction of the civil engineering
infrastructure for the western portion of Etwatwa
Extension 34
(hereinafter referred to as "the works"). The construction
of the civil engineering infrastructures was
to be administered by
the first applicant.
[15]
I need to mention that the second up to and including the sixth
applicant are currently directors of the first applicant and
the
others were previous directors.
[16]
The second respondent contends that the first applicant breached the
contract between them and this, as a result, caused it
to cancel the
contract. The first and second applicants' names have been listed on
the database of the restricted suppliers which
is kept and/or
administered by the Department of National treasury (the first
respondent). This resulted in Part B of this application
which seeks
the order referred to above. The applicants, in Part B, seek an order
for costs against the second up to and including
the fifth respondent
jointly and severally the one paying the other to be absolved.
[17]
My first judgment extensively deals with the issue raised namely,
that the review application was brought out of time. I have,
in the
judgment, demonstrated why I found in favour of the applicants on the
issue. The judgment clearly evinces how I arrived
at the decision
that the applicants were not given an opportunity to be heard before
the second respondent's Bid Committees' decision
to cancel the
contract was taken and before the listing of the applicants' names on
the database of restricted suppliers which
is kept or administered by
the Department of National Treasury was done. My judgment further
discloses that the second respondent's
Bid committees contemplated
barring the first applicant from participating in contracts involving
organs of State with effect from
23 July 2012 for a period of 5
years. This sanction was not communicated to the first applicant
before the decision was taken on
23 July 2012. The reasons therefor
were also not communicated to the first applicant. The review
application, therefore, could
not have been brought out of time.
[18]
My aforesaid judgment carefully deals with the respondents'
contention that the applicants abandoned their original cause of
action and substituted it with a completely new cause of action. I
have referred to case law which supports my findings and decision.
I
therefore deem it unnecessary to repeat all of that in this judgment
as the first judgment is still intact.
[19]
The fact that the applicants initially referred to incorrect
legislation, as submitted by Mr Mkize, is also dealt with in my
aforesaid judgment. It is important to note that I specifically
mention in the judgment that it is not correct that the applicants
founding affidavit fails to disclose a cause of action and that the
applicants failed to make out a case for the relief that they
seek.
One need only read paragraphs 32 and 64 of the founding affidavit
together with paragraphs 28, 29 and 37 of my first judgment
to better
understand the applicants' case, my reasoning and my decision.
[21]
On the basis of what I said in my aforesaid judgment, the law I
referred to and applied and the clear case of the applicants
I come
to no other decision than that the applicants have made out a clear
cut case for the relief that they seek in Part B of
the Notice of
Motion.
[22]
They were given no opportunity to be heard on the matter before the
decision was taken by the second respondent's Bid Committee.
The
minutes of the Bid Adjudication Committee meeting dated 23 July 2012
(paragraph 12 of its recommendations on page 18 of file
5) confirms
this. See also paragraph 18 of my first judgment.
[23]
The applicants were not even aware of the sanction of being
prohibited from participating in the contracts involving organs
of
State with effect from 23 July 2012 "for a period of 5 years".
(my emphasis).
[24]
No reasons for the decision that the Bid Adjudication Committee made
were given (See paragraphs 14, 15 and 20 of my first judgment).
[25]
The second respondent's Bid Committee (fourth respondent) failed to
observe the
audi alteram partem
rule as correctly demonstrated
by Mr Botes.
[26]
The respondents failed or neglected to inform the applicants of their
right to review or internal appeal as contemplated in
Section
3(2)(b)
of the
Promotion of Administrative Justice Act 3 of 2000
.
[27]
The respondents also failed or omitted to give adequate notice to the
applicants of their right to request reasons from the
respondents.
This led Mr Bates to correctly submit that the respondents were not
authorised to adopt the resolution or decision
that they arrived at
on 23 July 2012.
[28]
Just as I found for the applicants' in my first judgment, I am not
persuaded to find otherwise even in this judgment. The application
should succeed.
[29]
Mr Bates furnished me with a draft order which I have perused. I
agree with its contents which, in my view, should be made
an order of
the Court.
ORDER
[30]
I, in
the result, make the following order:
The
draft order marked "X" which I have signed and dated is
made an order of the Court.
________________________
M.
W. MSIMEKI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION OF THE HIGH
PRETORIA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
CASE
NO. 24799/2013
In
the matter between:
VIP
CONSULTING ENGINEERS (PTY)
LTD
1
st
APPLICANT
REG
NO. 1997/005608/07
IGNATIUS
WILHELM
HENNING
2
nd
APPLICANT
PIETER
VAN
IMMERZEEL
3
rd
APPLICANT
STEFANUS
PRINSLOO
4
th
APPLICANT
JOHAN
JANSEN VAN
RENSBURG
5
th
APPLICANT
JOSEPH
RAMATHLODI
RAMALOPE
6
th
APPLICANT
GRAEME
ARTHUR LLOYD
AMBROSE
7
th
APPLICANT
STRATFORD
FULTNER
POHL
8
th
APPLICANT
IRVIN
BAFFANA
SIBISI
9
th
APPLICANT
and
THE
MINISTER OF FINANCE : MR PJ GORDHAN
1
st
RESPONDENT
in
his official capacity as the responsible Minister for
the
Department of National Treasury
EKURHULENI
METROPOLITAN MUNICIPALITY
2
nd
RESPONDENT
DEPARTMENT
OF FINANCE: EKURHULENI
3
rd
RESPONDENT
METROPOLITAN
MUNICIPALITY
THE CHAIRPERSON OF THE
BID ADJUDICATION 4
th
RESPONDENT
COMMITTEE : EKURHULENI
METROPOLITAN
MUNICIPALITY
THE
CHAIRPERSON OF THE BID EVALUATION 5
th
RESPONDENT
COMMITTEE
: EKURHULENI METROPOLITAN
MUNICIPALITY
DRAFT
ORDER
AFTER
HAVING HEARD
counsel on behalf of all the parties concerned and
after perusal of the documents (including the record) filed, the
following order
is made:
1.
The decision or resolution adopted by the Second Respondent's bid
committees (the Fourth- and Fifth Respondents) to prohibit
the First
Applicant from participating in contracts involving organs of State
with effect from 23 July 2012, is reviewed and set-aside
in
accordance with the provisions of Rule 53 of the Uniform Rules of
Court;
2.
The decision or resolution adopted by the Second Respondent's bid
committees (the Fourth- and Fifth Respondents) to publish and
to list
the Applicants' names on the data base of restricted suppliers which
is kept and administered by the Department of National
Treasury, in
accordance with the provisions of the Treasury Regulations for
Departments, Trading Entities, Constitutional Institutions
and Public
Entities, issued in terms of the
Public Finance Management Act, 1999
,
is reviewed and set aside in accordance with the provisions of Rule
53 of the Uniform Rules of Court; and
3.
The Second-, Third-, Fourth- and Fifth Respondents are ordered to pay
the costs of this application, jointly and severally, including
the
costs consequent upon the employment of senior counsel.
By
order, the Court
_______________
Registrar