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[2017] ZAKZDHC 1
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Kwafel CC v Kwa Dukuza Municipality and Others (9959/2016) [2017] ZAKZDHC 1 (5 January 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, DURBAN
CASE
NO: 9959/2016
In the matter between:
KWAFEL
CC
APPLICANT
and
KWA DUKUZA
MUNICIAPLITY FIRST
RESPONDENT
LAMULA BENJAMINI
TRADING SECOND
RESPONDENT
SIYAJABUKA
UMHLABA TRADING CC
THIRD
RESPONDENT
SBUSAHLE TRADING ENTERPRISES
CC FOURTH
RESPONDENT
TJDK TRADING
CC FIFTH
RESPONDENT
KISSOONLAL INVESTMENTS CC t/a
K.K GARDEN
WORLD SIXTH
RESPONDENT
ORDER
The following order is
granted:
The
application is dismissed, the applicant to pay the first respondent’s
costs
on
an attorney and client scale.
JUDGMENT
D
PILLAY J
[1]
The
applicant seeks an interdict to restrain the respondents from taking
any steps to implement certain tenders for grass cutting
and verge
maintenance for Kwa Dukuza on the KwaZulu-Natal North Coast. It also
wants the second respondent to produce the record
of the tender
adjudication and bid process as well as a copy of the record of the
proceedings in respect of its objection. It challenges
the award of
the tender to the second to sixth respondents on various technical
grounds.
[2]
The
first respondent opposes the application on two preliminary points
which could be dispositive. The first ground raised was that
the
person signing the tender documents did not have authority to do so
because the resolution of the applicant, a close corporation,
was to
authorise Dhamini Sing to sign the tender document. But the manager
of the applicant, Mr Arunachellam signed the tender
bid and the
applicant’s founding affidavit. In its replying affidavit Mr
Arunachellam states that Dhamini Sing and Khoreesha
Sing are members
of the applicant who resolved that he should sign the bid documents
for the applicant. Affidavits from the two
members were filed
confirming that they read his affidavit and that of Anganth Hurbans
Singh and confirm their contents in so far
as they relate to them.
[3]
For
the purposes of this application I am satisfied that the members of
the applicant are aware of these proceedings and, by extension,
the
fact that they were aware that Mr Arunachellam signed the bid
documents on behalf of the applicant. The disparity in the resolution
and the person signing the tender bid for the applicant was not an
issue that concerned the Tender Adjudication Committee (TAC).
It was
not the reason for rejecting the applicant’s bid. Hence I need
say no more about the authority of the persons representing
the
applicant in the tender process.
[4]
The
second ground of the
locus
standi
challenge was that the tender was non-responsive from the outset in
that it failed to comply with the requirements regarding a
waste
management plan which was a compulsory requirement that led to the
disqualification of the applicant’s tender.
[5]
On
the facts the applicant’s bid was processed to finality through
the tender process until it the TAC rejected it. To the
applicant’s
advantage the first respondent and the TAC did not treat the
applicant’s bid as being unresponsive from
the outset. Did the
applicant meet the minimum peremptory requirements of the tender?
[6]
The
first respondent published a notice of tender MN 113/2015 for grass
cutting and verge maintenance for KwaDukuza zone 3 (Wards
4, 6, 21).
In the notice the first respondent stipulated that a compulsory
clarification meeting would be held at 10h00 on 17 July
at the Supper
Room
corner
King Shaka Street and Chief Albert Luthuli Street KwaDukuza. The time
for submitting the tender was 12h00 on 24 July 2015
when the tenders
would be opened in public.
[7]
One
of the qualifying requirements was that the contractor had to provide
the first respondent with a Waste Management Plan for
all refuse that
it collected. It defined the Waste Management Plan as follows:
‘
The Solid
Waste Management Plan is a document/plan that establishes goals and
programs for the handling of solid waste in a manner
that meets local
needs and is consistent with the countr[y’s] solid waste
management priorities. The plan also describes
the method used to
collect and transport solid waste and recyclables to disposal and
processing facilities in an environmentally
sound manner.
’
[1]
[8]
At
its meeting on 4 July 2016 the TAC rejected the applicant’s bid
for the following reason:
‘
The tenderer
did not submit a Waste Management Plan’
[2]
[9]
By
a letter dated 12 July 2016 the first respondent notified the
applicant that its tender was unsuccessful and that the TAC had
awarded it to the third respondent, Siyajabuka Umhlaba Trading CC. It
awarded tender MN114/2015 to the second respondent, Lamula
Benjamini
Trading and tender MN122/2015 to the fourth respondent Sbusahle
Trading Enterprises CC, the fifth respondent TJDK Trading
CC and the
sixth respondent Kissoonlal Investments CC.
[10]
On
1 August 2016 the applicant objected to the award of tenders
MN126/2015, MN122/2015, MN113/2015 and MN114/2015. Its grounds of
objection ranged from the first respondent re-arranging the venue for
the clarification meeting, not furnishing an addendum that
was
supposed to have been circulated to the attorneys at the site
briefing, sending out
the
‘letters of regret’
on
different dates, the parties colluding amongst themselves, and
allowing the lapse of a year from the closing date to the awarding
of
the tender.
[11]
By
letter dated September 14 2016 the first respondent replied to the
objection pointing out that the change of venue was to the
Town Hall,
which was in the same vicinity as the Supper Room where the meeting
had been scheduled initially. The addendum had been
included with the
applicant’s tender and therefore the applicant had to have
received it. The
‘
letters
of regret’
were
sent on different dates because they were advertised individually and
dispatched as and when the tender evaluation committee
and the TAC
completed each zone. The bidding was competitive and the first
respondent had no control on the prices submitted by
the tenderers.
The Tender Specification Committee stipulated the waste management
plan as a compulsory returnable. The applicant’s
bid was for
only MN126/2015, MN122/2015, MN113/2015 and MN114/2015; it was
eligible to appeal the rejection of only those bids.
[3]
[12]
In
conclusion the first respondent pointed out that the applicant had
attended the briefing session and had never raised any queries.
It
had withdrawn its objection to the change of the venue. The first
respondent gave notice of its intention to proceed with awarding
the
tenders without objection from the applicant. The minutes of the
meeting of the TAC to consider his objection held on 14 October
2016
resolved the following: to dismiss the applicant’s appeal in
three tenders and pointed out that no award was made for
the fourth,
tender MN126/2015. As for the validity period none was stipulated in
the tender specification.
[4]
[13]
The
applicant’s Waste Management Plan read as follows:
(a)
’
The
business entails the dumping of
organic
matter only
(grass, leaves and branches).
(b)
This
process is arranged via KDM with Dolphin Coast Waste Management based
on a need to dump principal.
(c)
We
reserve the right to negotiate separately with farmers and other
persons who wish to take the waste for composting.’
[5]
(
sic
)
[14]
The
crux of the question is whether this response of the applicant to
tender specification 3.n that stipulated that the contractor
must
provide the municipality with a waste management plan for all
refuse
[6]
met the first
respondent’s definition of ‘Waste Management Plan’
above.
[7]
[15]
The
applicant’s response to the first respondent’s reasons
for rejecting its bid was that the first respondent erred
because:
‘
[G]iven that
no small business has its own waste disposal site and will make use
of the appropriately approved facilities when executing
the work. A
contract in this regard can only be negotiated and signed after the
business knows that it has been awarded the tender.’
[8]
Implicit
in this response is the applicant’s acknowledgment that it did
not meet the prescribed definition; the response was
merely an
explanation for not doing so.
[16]
Although
the definition is neither an elegant draft nor a model of clarity, at
its most basic it calls for a document that sets
out how the tenderer
would collect, transport and dispose of solid waste. The applicant’s
response clearly does not describe
these three key elements of the
plan let alone the more normative requirements of establishing goals
and programmes for handling
solid waste. As this is not a review and
no record has been filed in these proceedings, I am also unable to
assess how the applicant’s
waste management plan compared with
the successful tenderers’ plans.
[17]
In
this case it is common cause that the singular reason for rejecting
the applicant’s bid was that his waste management plan
did not
comply with the tender specifications. On the evidence before me I
must find in favour of the first respondent. Manifestly,
the
applicant’s plan does not meet the minimum requirements to even
qualify as a valid tender. Consequently, the second
locus
standi
point is upheld.
[18]
The
applicant chose to apply urgently for an interdict pending the
launching of a review or some other process in due course. It
brought
the application in terms of Rule 53. It calls on the first respondent
to deliver a copy of the record in these proceedings.
The review of
administrative action is governed the Promotion of Administrative
Action Act, 3 of 2000 (PAJA). Decisions pertaining
to the awarding of
a tender are administrative actions. The review begins with a request
for reasons for administrative action.
However, the applicant
launched this application without requesting reasons for the first
respondent’s administrative action
in terms of s 5 of PAJA or
complying in any other way with PAJA.
[19]
The
applicant had to request reasons in terms of s 5(1) of PAJA
‘
within
ninety days after the date on which [it] became aware of the action
or might reasonably have been expected to become aware
of the
action’.
The
applicants request for reasons are not included in this application.
I was advised from the bar that the request was dispatched
on 13
October 2016. If that was not after the ninety days had expired from
12 July 2016 or shortly thereafter when the applicant
received the
letter advising that its bid was unsuccessful, then the request was
delayed without any explanation. Judicial review
must be instituted
within 180 days after internal remedies are concluded or
‘
on
the date on which the person concerned was informed of the
administrative action, became aware of the action and the reasons
for
it or might reasonable be expected to have become aware of the action
and the reasons.’
Instead
the applicant launched this Rule 53 application as late as 3 October
2016. In addition to the delay it is an abuse
of process that
attracts an adverse costs order. However, blame cannot lie at the
door of the applicant alone, as its junior counsel
who prepared the
application ought to have known the procedure.
[20]
However
the applicant must take responsibility for some of the grounds on
which it challenged the awards; it alleged flaws had occurred
from
the outset. The applicant should have stopped the tender process
immediately instead of allowing the process to continue to
completion
and then objecting to it. Furthermore, it revived objections that it
had already withdrawn. In these circumstances I
do not make an award
of costs
de
bonis propriis
against the applicant’s junior counsel.
[21]
The
application is dismissed, the applicant to pay the first respondent’s
costs on an attorney and client scale.
______________
D
Pillay J
APPEARANCES
Counsel
for the Applicant
: R.B.G
Choudree SC, with M Manikam
Instructed
by
: Nirvan
Kawulesar & Company
Tel:
(032) 551 6213
Ref:
NK/CIV/K274
Email:
nkawulesar@gmail.com
Counsel
for the 1
st
Respondent
:
A.J
Troskie SC, with M.C Tucker
Instructed
by
:
Livingston Leandy Attorneys
Tel:
(031) 5367500
Ref:
Peter Andrew/clg
Email:
pandrew@livingston.co.za
Date of Hearing
: 08
December 2016
Date of
Judgment
: 5
January 2017
[1]
Page 233 of the
pleadings
[2]
Page 378 of the
pleadings
[3]
Page 149 of the
pleadings
[4]
Page 409 of the
pleadings
[5]
Page 310 of the
pleadings
[6]
Page 234 of the
pleadings
[7]
Page 233 of the
pleadings
[8]
Page 147 of the
pleadings