About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2017
>>
[2017] ZAFSHC 186
|
|
Jorian Construction CC v Kopanong Local Municipality (1082/2017) [2017] ZAFSHC 186 (20 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to to other Judges; NO
Circulate
to Magistrates: NO
Case
number: 1082/2017
In
the matter between:
JORIAN
CONSTRUCTION
CC
Applicant
and
KOPANONG
LOCAL
MUNICIPALITY
Respondent
HEARD
ON:
19 OCTOBER
2017
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
20 OCTOBER
2017
[1]
The applicant is
Jorian
Construction CC, an
unsuccessful tenderer. It seeks costs of
an application brought by it on an urgent basis. The
only dispute
to be adjudicated is costs.
[2]
Respondent is the Kopanong Local
Municipality.
[3]
On Friday 3 March 2017 the application
was issued and served on respondent at 16h05 on even date. In terms
thereof respondent was
directed to inform applicant's attorney on or
before Tuesday 7 March 2017 at 09h00 if it intended to oppose the
application and
in such event, to file an answering affidavit on or
before Friday 10 March 2017 at 12h00. Applicant allowed it an
opportunity to
file a replying affidavit by Monday 13 March 2017 at
12h00. The matter was to be heard on Thursday 16 March 2017.
Applicant regarded
the application as urgent as can be gathered from
the abridged time frames set out in the notice of motion as well as
the evidence
contained in the founding
affidavit.
[4]
Applicant sought the
following relief
which I
quote
verbatim:
1.
"The Applicant's non-adherence to
this court's rules related to the time periods and service is
condoned, and the application
is heard as an urgent application in
terms of Rule 6(12);
2.
The time period cast in
section 5
of the
Promotion of Administrative Justice Act, 3 of 2000
for provision of
the reasons and documents sought below is reduced in accordance with
the provisions of prayer 3 below and in accordance
with
section 9
of
this Act.
3.
The Respondent is ordered to provide the
Applicant, within 10 days after the granting of this order, with full
and written reasons
for its decision to discard the Applicant's bid
for contract no.
KLM/RD/WT/09/2013/P
-
AUGMENT
WATER SUPPLY AND INCREASE WATER PRESSURE: REDDERSBURG PIPELINE, PUMP
STATION AND WATER
TREATMENT
AND PLANT WORKS,
such reasons to
include the following documents:
3.1
Copies of any and all evaluation
reports, whether internally generated or externally sourced;
3.2
Minutes of the
Bid Evaluation Committee Meeting(s)
and Bid Adjudication Committee
Meeting(s);
3.3
Letter of appointment to the successful
contractor;
3.4
Contract concluded between the
Respondent and the successful contractor;
4.
The Respondent is ordered to pay the
costs of
the
application.
5.
Further and /or alternative relief."
[5]
The relevant portions of ss 5
and 9 of the Promotion of
Administrative
Justice Act, 3 of 2000 ("PAJA") read as
follows:
"5
Reasons for administrative action
(1)
Any person whose rights have been
materially and adversely affected by administrative action and who
has not been given reasons
for the action may, within 90 days after
the date on which that person became aware of the action or might
reasonably have been
expected to have become aware of the action,
request that the administrator concerned furnish written reasons for
the action.
(2)
The
administrator
to whom the request is made
must.
within 90 days after receiving the request,
give
that person adequate
reasons
in writing for the administrative action.
9.Variation
of time
(1)
The period of
-
(a)
90 days
referred
to in section 5
may be reduced;
or
(b)
90 days or 180 days referred to in
sections 5 and 7 may be extended
for
a fixed
period,
by
agreement between the parties or, failing such agreement, by a court
or
tribunal
on application by the person or administrator concerned.
(2)
The court or tribunal may grant an
application in terms of subsection (1) where the
interests
of justice so require.
"
(emphasis added)
[6]
Applicant's
case is that it requested reasons from respondent for not being
awarded a tender pertaining to water supply, but that
the request was
ignored which entitled it to launch the application. The letter
relied upon is dated 23 February 2017. It is addressed
to the
Municipal Manager, Kopanong Local Municipality, Trompsburg, without
indicating a postal or street address. Provision was
apparently made
for sending the letter by e-mail to
lebo@kopanong.gov.za
and/or
faxing it to 051
713
0335.
[7]
Applicant did not provide proof that the
letter was e-mailed and/or faxed. The municipal manager of Kopanong
to whom the letter
was addressed, Ms L Y Moletsane, wants the court
to find that she did not receive such letter. I quote the following
from her affidavit
filed on 23 March
2017:
"4.6
It is of paramount importance at this stage to
mention to the Honourable Court that the
request attached
as
"JS1"
is
a carbon copy of a request for written reasons that was
also
forwarded to the Respondent in a similar application between
the same parties under case
number
1081/2017.
I attach the
request
hereunto
marked
Annexure
"OPS".
4.6.1
The two requests are the same in almost
all respects except for the reference number, which also only differ
at the end
thereof.
4.6.2
The
request
in the other application was sent
by
e-mail
and
proof thereof was attached to the other
application.
4.6.3
The Respondent has replied to the other
request without
delay.
4.7
In the matter at hand there was no
confirmation attached that the said request for written reasons and
documents was sent either
by e-mail or fax or otherwise.
4.8
There is also no indication or averment
in the founding affidavit that Respondent has refused to provide the
Applicant with the
requested reasons and/or documents.
4.9
Despite the above the Applicant elected
to approach the Honourable Court on an urgent basis for the relief
sought without pursuing
the matter with the
Respondent.
4.10
Due to the similar nature of the two different applications as well
as the request for written reasons and documents, the
Respondent
was not aware that documents were requested for a different matter
other than the one that is already
in an advance stage in this Honourable Court under case no
1081/2017.
4.11
As I have indicated herein before, the Respondent provided the
requested documents to the Applicant, which was done in an attempt
to
curb unnecessary further legal costs and expenses. It was also done
as soon as possible taking into account the structure of
the
Respondent and different functionaries involved in the tender process
as well as other duties imposed on me and other functionaries."
(emphasis added)
[8]
In paragraph 5 of the answering
affidavit respondent's deponent carried on in similar vein, alleging
that the "...application
is premature in light of the fact that
written reasons were never effectively requested as per Section 5 of
PAJA." Respondent
also
complains
that
it
had
90
days to respond
in
terms
of
PAJA and
that only the
court
could reduce the prescribed period of 90 days. It is so that
applicant failed to provide proof of delivery of the aforesaid
letter
and also forfeited the opportunity to provide such proof in a
replying affidavit. It elected not to reply, where upon the
matter
was set down by it as long
ago
as
30
August
2017
for
hearing
on
19
October
2017.
[9]
The bulk of information and
documentation required by the applicant
ex
facie
the notice of motion were
delivered by respondent on 15 March 2017 and the remainder shortly
afterwards, but
still
prior
to
the
filing
of
the
answering
affidavit.
[10]
On 13 March 2017 respondent gave notice of its intention to oppose
the
application, but
notwithstanding
that, delivered
reports of its consultant and the Bid
Evaluation and Bid Adjudication Committees on 15 March 2017. The next
day an order was obtained
by agreement in terms whereof applicant
withdrew its "application for reasons", the costs thereof
to stand over for adjudication
during the proposed interdict and
review application. However, no such application was launched. It
could perhaps be argued that
the application has become moot
in
toto
in that applicant intended
to
argue
costs
in
a
totally
different application
to be launched in the future. The
parties did not address me on this issue
and
it
is
only
fair
to
consider
costs of
the
application now.
[11]
As is apparent from the answering affidavit of Ms Moletsane, she was
probably under the impression that the information and
documentation
were requested by means of a letter of the same date, but in respect
of application number 1081/2017. That application
was also set down
for hearing on 16 March 2017 as I was informed from the bar. The same
parties are involved in that application,
although the reference
numbers of the two projects differ slightly. The reader is referred
to the similarity evident from the
two letters
attached as annexures “JS1” to
the founding affidavit and "OPS"
to the answering
affidavit.
[12]
It is admitted that respondent received
the letter requesting reasons and documentation in application
1081/2017, which letter is
also dated 23 February 2017. Ms Moletsane
alleges that, unlike in the application before me, applicant provided
written proof of
delivery of that particular letter. Mr Grabler
argued that she did not in so many words deny receipt of the relevant
letter
in casu,
but
that she relies on a technicality without unambiguously stating that
the letter was not received.
[13]
I need to mention that, even if I accept
for the moment that the letter was indeed emailed or faxed on 23
February 2017, or at all,
I find it inconceivable that applicant
could be so unreasonable to request respondent to provide reasons for
a decision and copies
of several documents within two working days.
Even though Kopanong Municipality is a small municipality, it was
highly unfair to
seek a response at such short notice.
Applicant went further and decided to reduce the 90 days allowed a
decision maker in
terms of s 5 of PAJA to provide reasons; however,
it sought condonation in prayer 2 of the notice of
motion.
[14]
I wish to refer to the following
authorities pertaining to the adjudication of opposed applications.
In motion proceedings the affidavits
not only serve as
the pleadings, but must also contain the
essential evidence which would ordinarily be led at the trial. See
Transnet Ltd v Rubenstein
2006
(1) SA 591
(SCA) at para [28). A party in motion proceedings is
obliged to state the facts as well as the conclusions drawn from such
facts
in
his
or her affidavits and is not allowed to
base an argument on passages and documents annexed to the papers
unless the conclusions
sought to be drawn from such passages have
been canvased in their affidavits. See
Minister
of
Land
Affairs and
Agriculture and
Other
v
D
&
F
Wevell Trust and Others
2008
(2) SA 184
(SCA) at 2008-E. In line with
Plascon-Evans
final relief may only be granted in
motion proceedings if the facts averred by the applicant which have
been admitted by the respondent
justify such an order, unless the
allegations and denials by the respondent are so far-fetched or
untenable that the court is entitled
to reject the respondent's
version merely on the papers. In general, decisions of fact cannot
properly be made in motion proceedings
on a consideration of the
probabilities, unless the court is satisfied that there is no real
and genuine dispute on the papers
regarding the facts in question, or
that one of the parties' allegations are so far-fetched that it may
be rejected on the
papers,
or
viva
voce
evidence would not disturb the
probabilities. See
Administrator of
the Transvaal and Others v Theletsane
&
Others
[1990] ZASCA 156
;
1991
(2) SA 192
(A) at 197A-B. Heher JA stated the
following in
Wightmann t/a
JW
Construction v Headfour (Ply) Ltd
and another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at
para
[13]
: "A real,
genuine and
bona fide
dispute
of fact can exist only where the court is satisfied that the
party who purports to raise the dispute has in its affidavit
seriously and unambiguously addressed the fact said to be
disputed.....But when he signs the answering affidavit, he commits
himself
to its contents, inadequate as they may be, and will only in
exceptional circumstances be permitted to disavow them. There is thus
a serious duty imposed upon a legal advisor who settles an answering
affidavit to ascertain and engage with facts which his client
disputes and to reflect such disputes fully and accurately in the
answering affidavit. If that does not happen it should come as
no
surprise that the court takes a robust view of the matter."
[15]
The only dispute to adjudicate is the
costs issue as mentioned
supra.
Applicant, alleging that it is the
successful party in that respondent capitulated and provided what was
required and failed to
file an answering affidavit within the time
stipulated in the notice of motion, seeks costs of the application.
Respondent, on
the other hand 1 submits that the application
should never have been brought. It never refused to provide reasons
and documentation!
but immediately responded on receipt of the
application to address applicant's request. Therefore, applicant
shall be held liable
for the costs of the applicatio
n,
including respondent's
costs of opposition, alternatively each
party should be ordered to pay its own costs.
[16]
Generally speaking the successful party
is entitled to its costs. However, in given circumstances a
successful party may be deprived
of its costs and may even be ordered
to pay the costs of the unsuccessful party. Van Loggerenberg,
Erasmus
Superior Court Practice,
Service 4
states the following with reference to authorities at 05-11: "A
court should not be astute to deprive a successful
litigant of
any of his costs. In the absence of special circumstances the
successful litigant is entitled to his costs. The successful
party
should not be ordered to pay the costs of the unsuccessful party
except where the conduct of the successful party has been
the cause
of all the costs of the proceedings. An unsuccessful party cannot
escape liability for costs by labelling the litigation
as a
'test case' when it is clear that a resort to litigation was the only
way in which the successful party could obtain delivery
of that which
the unsuccessful party unlawfully refused to deliver.
The
grounds upon which a successful party may be ordered to forfeit costs
or pay those of his opponent are various, but may for
convenience be
roughly classified under the following heads:
(a)
making excessive demand;
(b)
causing unnecessary or frivolous
litigation;
(c)
succeeding on a technicality only;
(d)
increasing costs through wrong
procedure;
(e)
allowing defects in
pleading;
(f)
being guilty of misconduct
generally.
This
list makes no pretence of being an exhaustive or logical
classification. In many instances the decisions given below under
one
head might with equal reason be placed under another; and, in others,
grounds falling under two or more heads contributed to
the final
result. In a confused subject any order is better than none.
It
must be stressed that a successful litigant can, as a rule, be
deprived of his costs only on the ground of some fault on his
own
part;... "
See the further
discussion at
DS-12
to
D5-16.
[17]
Bearing in mind
Plascon-Evans
and
Wightmann
supra
as well as the other
authorities quoted I am unable to find that the letter of 23 February
2017 requiring reasons and documentation
was not sent to and received
by respondent. Respondent failed to unambiguously state that the
letter was not received and consequently,
there is no real,
genuine and
bona
fide
dispute in
this
regard. The probabilities also favour applicant. There is no reason
why its attorney would email or fax the one letter, but
not the
other. In my view the similarity of the two letters probably confused
the recipient, causing her to believe them to be
in respect of the
same project. It was not required of applicant under the
circumstances to file a replying affidavit in order
to provide proof
of delivery. However, even if I accept that the letter was received
by respondent, the applicant acted unreasonable
in giving respondent
insufficient time to react. Its demand was excessive.
[18]
Mr Grabler submitted that although
insufficient time might have been given to respond to applicant's
request, it is apparent that
respondent did not ask for extra time
and even waited until the day before the hearing to present the
required documents. It is
not correct to suggest as respondent does
in its answering affidavit that PAJA allowed it 90 days to provide
reasons and that the
application was therefore premature. Reasons
must be given within 90 days, but that does not mean that the
decision maker can keep
quiet for about three months and in the
meantime arrange with the successful tenderer to complete the
project, the subject of the
tender. Here, applicant requested
respondent to give an undertaking to stop all work in respect of the
particular project, but
respondent failed to give such undertaking.
Applicant was entitled to launch an urgent application, particularly
insofar as a handover
of the site had taken place on 20 February
2017, an allegation that was not disputed by respondent. It, as the
disappointed and
unsuccessful tenderer, was entitled to know on what
basis and for what reasons the tender had been awarded in order to
determine
whether its rights to lawful administrative action had been
violated.
[19]
Unnecessary costs were incurred in
launching the application, but applicant should not be blamed for
acting as it did. It received
no response from respondent, either in
respect of the letter of 23 February 2017 or the notice of motion
issued on 3 March 2017,
until 15 March 2017. Respondent should have
asked for more time to respond (if it was necessary) and
undertaken not to allow
works on the project to proceed pending the
hearing on 16 March 2017. It is now - after the expiry of seven
months - clear that
applicant was advised not to take the
respondent's decision on review, but that does not mean that it did
not have a right to the
respondent's reasons. The further costs
incurred since March 2017 in order to adjudicate costs only is
unfortunate. It could
have been prevented so easily at an early
stage.
[20]
Both counsel submitted in their heads of
argument that costs should be awarded in favour of their clients on
an attorney and client
scale. During oral argument they were not
prepared to insist on such punitive costs. In exercising my
discretion I seriously considered
granting costs in favour of
respondent, but eventually came to the conclusion that applicant did
not act unreasonable in launching
an urgent application. It was
entitled to obtain reasons to consider its position as unsuccessful
tenderer and the fact that
it eventually did not institute review
proceedings does not alter the situation. The authorities referred to
by Mr Thompson at
footnote 18 of his heads of argument do not assist
his client's case as they are distinguishable. In
Mahommed
v Nagdee
1952 (1) SA 410 (AD)
at 418 the court dealt with two scenario's: firstly that if no prior
demand is made before summons is
issued, and the debtor tenders
or pays the amount claimed, he is
not liable for
costs;
secondly, if summons is issued against a
defendant for payment of a claim without a prior demand and where the
amount is not due,
except after demand. In
De
Kock v Davidson and others
1971 (1)
SA 428
(TPD) at 432 the court referred to the first scenario
mentioned in
Mahommed
although
the case was decided upon a different basis.
[21]
Consequently the following order is
made:
1.
The respondent shall pay the costs of the application. such
costs to be taxed on a party and
party
scale.
____________________
JP
DAFFUE, J
On
behalf of applicant: Adv S
Grabler
Instructed
by:
Gaus Vertue & Associates Bloemfontein
On
behalf of respondent: Adv DR Thompson
Instructed
by:
Mhlokonya Attorneys
Bloemfontein