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[2017] ZAKZDHC 15
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Westwood Insurance Brokers (Pty) Ltd v Ethekwini Municipality and Others (8221/16) [2017] ZAKZDHC 15 (5 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 8221/16
In
the matter between:
WESTWOOD
INSURANCE BROKERS (PTY) LTD
APPLICANT
and
ETHEKWINI
MUNICIPALITY FIRST
RESPONDENT
CHAIRPERSON: ETHEKWINI MUNICIPALITY
BID EVALUATION
COMMITTEE SECOND
RESPONDENT
CHAIRPERSON: ETHEKWINI MUNICIPALITY
BID ADJUDICATION
COMMITTEE THIRD
RESPONDENT
NC SOUTH WEST BROKERS
CC FOURTH
RESPONDENT
WANDA FINANCIAL CONSULTANTS (PTY)
LTD FIFTH
RESPONDENT
WATERSURE (PTY)
LTD SIXTH
RESPONDENT
INDWE RISK SERVICES (PTY)
LTD SEVENTH
RESPONDENT
MDUDUZI CHRISTOPHER NKOMO
N.O. EIGHTH
RESPONDENT
ORDER
Delivered: 5 April
2017
The
following order is granted:
1.
The
fourth respondent shall indemnify the first respondent by paying
fifty per cent (50%) of its costs.
2.
The
remaining fifty per cent (50%) of the first respondent’s costs
shall be paid in equal shares by the following:
(a)
Contracts
Administrator - Nonhlanhla Zondo;
(b)
Divisional
Manager for Regional Customer Services Water and Sanitation -
Bridgette Ntusi;
(c)
The
Manager Contracts and Materials – Tarry Bartholomew;
(d)
Head
of eThekwini Water and Sanitation – Edwin Msweli;
(e)
Deputy
Head Supply Chain Operations - Sandile Ngcobo;
(f)
Members
of the Bid Evaluation Committee namely,
i.
Vincent
Cebekhulu
ii.
Kamlesh
Naidoo
i
ii.
Zandile
Sithole
iv.
Greg
Evans
v.
Max
Mthembu
vi.
Tumo
Mpetsane
(g)
Members
of the Bid Adjudication Committee namely,
i.
Andre
Petersen
ii.
Dave
Renwick
iii.
Sandile
Mnguni
(h)
The
eighth respondent; and
(i)
The
City Manager who confirmed the award to South West.
3.
The
Acting City Manager Ms Nene shall forthwith serve or cause to be
served a copy of this judgment on the Mayor and all those liable
for
costs above.
4.
The
Ms Nene or her replacement shall report to the court on the steps she
or he has taken to recover costs under this judgment on
affidavit by
30 July 2017 and thereafter on the last day of each month until the
costs are paid or the court orders otherwise.
5.
The
registrar of this court shall serve a copy of this judgment on the
Auditor-General by fax or any other convenient means.
6.
There
is no order for costs against Ms Silidile Blose.
7.
Any
person having an interest in my judgment is given leave to apply for
leave to appeal against this judgment.
JUDGMENT
D.
Pillay J:
Introduction
[2]
I
heard the application to interdict the awarding of the tender for
underwriting insurance services for water leaks for individual
dwelling units on 30 September, 7 October and 15 November and I
granted judgment on 8 December 2016.
[1]
I found the eighth respondent’s decision to award the tender to
the fourth respondent, NC South West Brokers CC (South West)
to be
irrational, for amongst other reasons that he failed to give reasons
for preferring South West.
[2]
I
also found the opinion of the insurance and the treasury departments
upon which the eighth respondent relied to prefer South
West to be
mysterious in the absence of any explanation.
[3]
[3]
The
decision to prefer South West was processed through the departmental
personnel, the Bid Evaluation Committee (BEC) and the Bid
Adjudication Committee (BAC). I did not know the identity of all the
officials, and how each was involved in the awarding of the
tender.
Hence I gave directions for the service of my judgment on the eighth
respondent, and all those who were involved in supporting
the tender
in favour of South West or who had any information to assist the
court. The deadline expired for those officials to
deliver affidavits
to the court to show cause why they should not each personally
indemnify eThekwini against costs it incurred
in this litigation by
paying it jointly and severally, the one paying the others to be
absolved; and why a copy of my judgment
should not be served on the
Auditor-General. Such persons were also invited to indicate by 20
February 2017 whether they wished
to be heard in open court; if not,
I would dispose of the matter in chambers, as I am now doing.
[4]
My
judgment was served by eThekwini’s attorneys, on the attorneys
for the fourth respondent, the eighth respondent, Mr Sibusiso
Shezi
who had advised that South West’s bid was invalid and should be
disqualified, and Ms Silindile Blose the Legal Advisor:
Legal and
Compliance Unit of eThekwini. Dumisile Nene the Deputy City Manager
as the Acting City Manager of eThekwini delivered
an affidavit
confirming service of the judgment on the office of the Mayor and the
City Manager. She identified the members of
the BEC who attended the
meetings of 26 October and 2 November when the BEC considered the
tender, the three persons who served
on the BAC on 16 November 2015
and other officials who were also involved in the tender. She assured
the court that the judgment
was served on all the officials mentioned
in her affidavit.
[5]
All
the persons so identified have delivered affidavits except for Mr
Sandile Charles Ngcobo. The eighth respondent has also not
done so
despite being served with my judgment on 23 January 2017.
[6]
The
crux of the irrationality of the decision by all role players to
award the tender to South West turned on a singular undisputed
fact:
South West purported to comply with clause 3 of the Conditions of
Tender by submitting professional indemnity insurance (referred
to
here as PII1-3) when the tender called for provision of insurance for
water loss through underground leaks for individual dwelling
units.
Clause 3 stipulated that a letter of undertaking from an insurance
company licensed to operate in South Africa must accompany
the offer.
Furthermore the underwriter must be registered with the Financial
Services Board (FSB). South West submitted a quotation
for
professional indemnity from Marsh (Pty) Ltd whose registration with
the FSB as an insurer had also not been established.
[7]
The
difference between the two types of insurances is obvious and should
have been especially so to South West and those employees
of
eThekwini involved in specifying the condition, to the insurance and
finance departments who should have been knowledgeable
about
insurance and to the professionals who participated in awarding the
tender. Substituting one for the other calls into question
not only
the competence but possibly also the integrity of those who accepted
the quotation for professional indemnity insurance
instead of
underwriting insurance for water leaks.
[8]
In
trawling through the affidavits submitted to me in response to my
rule
nisi
I limited my search to finding explanations for how a quotation for
professional indemnity insurance, which insures members of
the public
against malpractices by professionals, was accepted as an undertaking
to provide underwriting insurance services for
water leaks.
Professionals were not involved in the provision of underwriting
insurance services so the need for professional indemnity
insurance
did not even arise.
[9]
Marsh
(Pty) Ltd delivered an affidavit to correct factual inaccuracies that
allegedly emerged in media reports about my judgment.
Its affidavit
is intended to assist the court and to resolve certain misconceptions
about its status. Marsh clarifies that it is
a licensed financial
services provider registered in terms of the
Financial Advisory and
Intermediary Services Act, 37 of 2002
. It conducts business as an
insurance broker specializing in professional indemnity insurance. It
does not conduct business as
an insurance company or an
underwriter.
[4]
As these facts
are publicly available on the website of the FSB
(
eThekwini.fsb.co.za
) it is all
the more remarkable that South West would offer PII1-3 and eThekwini
would accept it as compliant.
[10]
As
I have already analyzed the eighth respondent’s decision in my
previous judgment, this judgment will focus on the other
role-players
whose participation resulted in the awarding of the tender to South
West. I intend to deal with the three tiers of
decision-making
preceding the final decision by the eighth respondent. They are the
assessment of South West’s bid by the
line department and other
officials, the line department’s report back to the BEC, the
BEC meetings of 26 October 2015 and
2 November 2015, and the decision
of the BAC at their meeting on 16 November 2015.
The Evidence on
Affidavits
Pre-BEC
decisions
[11]
Bridget
Ngenzeni Ntusi employed by eThekwini as a Manager of Regional
Customer Services Water and Sanitation Unit submitted an affidavit
confirming that she received five responses to the notice advertising
the tender. Together with Nonhlanhla Zondo, the Contract
Administrator representing Supply Chain Management (SCM), she checked
all the documents and discovered that although South West
was the
most responsive bidder in terms of pricing and B-BBEE points it had
submitted a quotation. They were uncertain as to whether
they should
accept the quotation instead of a letter of undertaking.
[12]
They
enquired from Mr Sandile Charles Ngcobo, Deputy Head of the Supply
Chain Operations who referred them to the insurance department.
The
manager of the insurance department Mr Thulani Ntuli advised that
they should get a legal opinion as he was also uncertain.
They
approached Mr Sbu Shezi who advised that they should disqualify South
West and confirm WANDA Financial Services, the fifth
respondent who
was an insurer with a trading license issued by the FSB.
[13]
They
then prepared a report recommending WANDA. They incorporated all the
advice and correspondence pertaining to their consultations,
which
they submitted to the BEC meeting held on 26 October. They
recommended to that meeting that the tender be awarded to WANDA.
The
BEC responded that the:
‘
quotation
submitted by South West Consulting is equivalent to a letter of
undertaking and advised that the bids be re-evaluated
and that we
recommend the most responsive bidder as per the tender criteria.
’
[5]
Messrs
Ntusi and Zondo amended the
report
‘
as
advised by the BEC
’
and
returned
it
to the
BEC.
At
a meeting held on 2 November 2015
‘
the
report was approved.’
[14]
Ms
Ntusi contends that she performed her duties diligently, sought
advice, and acted on the advice she received. Consequently she
should
not be held liable for any legal costs. Nonhlanhla Zondo the Contract
Administrator filed an affidavit substantially similar
to that of Ms
Ntusi
Meetings
of BEC
[15]
Kamlesh
Rajoo, Chief Legal Advisor: Legal Support (Legal Compliance Unit) of
eThekwini attested to an affidavit in which she states
that she
attended the first BEC meeting on 26 October 2015. The minutes that
she attaches to her affidavit are merely a synopsis
of the
proceedings. An audio recording would be irrefutable proof of the
full contents of the discussions. However, after enquiring
about the
electronic recording of the proceedings the secretariat advised her
that all recordings are available save for that meeting
which cannot
be found. She finds this odd.
[6]
[16]
Her
further evidence proceeds as follows:
‘
We traversed
Sbu Shezi’s opinion and much debate ensued. As a prudent
Committee we could not just disqualify SOUTH WEST on
the basis of the
opinion, without satisfying ourselves that the opinion had merit.
This would be tantamount to Mr Shezi doing the
evaluation. I
personally said that Sbu Shezi would only make such a call to
disqualify, based on what information and documentation
was before
him. The Opinion referred to a “quotation”. We had not
had sight of that quotation. In the absence of seeing
this quotation
we would be remiss in just accepting the Opinion as being true and
correct.
On calling for the Quotation, the Line
Department furnished THREE (3) pages, the first being a
letter/certificate on a Marsh/Centrique
Letterhead confirming
insurance cover for the Underwriters Manwood (PTY) LTD, the second
being a quotation and the third certificate
showing a
contractual relationship between Marsh and Manwood to underwrite for
South West with all three’s Financial
Services Board
Registration Numbers (FSP)
However not being Insurance experts,
the committee asked the Line Department to look into these documents.
The Reevaluation would
entail the checking of the veracity and the
correctness of these documents before bringing these documents back
to the next BEC
with its findings. At no stage did the BEC state that
SOUTH WEST must be substituted for WANDA. In Fact, I submit that at
this
stage the BEC did not know who the most responsive bidder was
the BEC Minutes reflect this, as even WESTWOOD was to be
re-evaluated.
The Line Department was meant to evaluate one more time
and advise the Committee of its findings at the subsequent meeting.
The BEC sought to
defer the matter to its next meeting …’
[7]
(sic)
[17]
Furthermore
she considered the contract price of R81 million and the net profit
reflected in its income statement, and found that
the cash flow of
South West was ‘of a great concern’ to the BEC. So too
was the loss ratio of 104 per cent. The BEC
noted:
‘
that the
recommended company, WANDA Financial Consulting was not the lowest
and was the second responsive, the committee advised
the line
department to revisit the evaluation and to consider South West
Consulting as well as Westwood Insurance Brokers.
’
[8]
[18]
According
to the minutes of the meeting of 26 October 2015 the BEC learnt that
the most responsive tender was from South West having
scored the
highest points and lowest price. However, it had not submitted ‘a
letter of underwriting but a quotation of fees
from the company.’
[9]
[19]
Ms
Rajoo was absent from the second meeting of the BEC. However she
attests to information from records available to her that whenever
a
deferred matter returns to the BEC the line department has to attach
a cover page to explain the reasons for the deferral and
how the
deferred issues were dealt with to enable members to refresh their
minds. In this case the records show that the cover
page was absent
at this BEC. Hence the BEC had no record before it of its previous
deliberations. Instead a different report with
a new recommendation
was presented with a brief reference to the matter having served
before the BEC on 26 October. Ms Rajoo listened
to the record of the
proceedings of 2 November and attests to the matter having been dealt
with ‘in haste’. Someone
whose identity that neither she
nor anyone else discloses advised the committee
‘
verbally
that this matter was deferred from a previous meeting and everything
was in order
.’
Accordingly
the tender in favour of South West was approved without further
deliberation
.
[20]
She
asked to be absolved from paying any costs because she was absent
from the meeting of 2 November 2015. She did not act
mala
fide
,
negligent or improperly, that she was acting in the course and scope
of her employment with eThekwini and as a member of the BEC
has no
interest in the outcome of the tender. None of the safeguards
of the committee system worked in the awarding of this
tender.
[10]
[21]
Gregory
Standish Evans is the Head: Engineering Unit who, when he served on
the BEC, held the position of Strategic Executive, Engineering
Unit.
He filed an affidavit stating that he has served on bid committees
for more than three years. He was mindful of certain clauses
of the
Supply Chain Management Policy 2013 adopted by the Council on 30
October 2013. Importantly, the BEC would not consider any
bid unless
the Supply Chain Management (SCM) verified the bid, accepted it on
the agenda of the BEC or it was otherwise approved
by the chairman.
He was not present at the meeting of 26 October 2015; the City
Manager had requested that he attend another meeting.
[22]
He
attended the meeting of 2 November 2015. The tender for water leaks
insurance was not on the agenda. It was raised as the last
matter of
the day. Mr Evans had not expected this item and had not considered
it before. He was therefore unprepared and relied
on others who had
been present at the previous meeting. He was of the opinion that the
new report submitted by the department had
taken into account
previous deliberations of the meeting of 26 October. The minutes of
the previous meeting were not available
at the meeting of 2 November
2015. He had no background to the matter. He did know what the BEC’s
previous position had been.
Nor was Mr Shezi’s opinion, of
which he was unaware at the time, attached to the report.
[23]
The
report from the Water and Sanitation Unit stated that:
‘
the
tenderers responses have been reviewed, and there are no technical or
commercial issues with the most responsive offer being
that of South
West Consulting.
’
[11]
On
that basis he agreed with the recommendation of this award. After
perusing the department’s report received on 2 November
2015 Mr
Evans observed that there was ‘nothing reflecting that the
recommended tenderer was not compliant with the provisions
of clause
3 of the conditions of contract and its specification
.
’
[12]
Inexplicably, despite having the bid of South West, PII1-3 and the
line department’s report that it was a tender for insurance
for
water leaks Mr Evans nevertheless concluded that whatever concerns
had been identified by the BEC on 26 October 2015 had been
corrected
by the Water and Sanitation Department and that all was in order. He
maintained that there was
‘
nothing
obvious from the report that could have warranted [him] to question
the authenticity of the report to further probe.’
[13]
(
sic)
[24]
The
recommendation was then made to the BAC to make a final award. The
responsibility for the final decision did not rest with the
BEC but
with the BAC, which received the same documents and recommendation as
the BEC when the latter deliberated on the bid.
[25]
Tumo
Mpetsane, a member of the BEC, filed an affidavit stating that he was
present at both meetings of the BEC as Supply Chain Manager.
He
confirms that although South West was the highest scoring company
with the lowest price it did not comply with the requirements
because
it failed
‘
to submit a
letter of underwriting but instead supplied a quotation of fees.
After interrogating the line department about the letter
of
underwriting, the line department went to SCM and provided both
“
Professional
Indemnity Quotation”
’
documents to BEC proving that South West Consulting met the Technical
requirements. The line department conformed [?] to
BEC that the
“
Professional
Indemnity Insurance”
was in order.’
[14]
(sic)
[26]
According
to Mr Mpetsane the BEC deferred the report to the line department
Water and Sanitation for re-evaluation taking into consideration
both
South West and Westwood. Mr Mpetsane had a copy of Mr Shezi’s
opinion disqualifying South West’s bid. He questioned
whether
Mr Shezi had all three pages of PII1-3 because his opinion referred
only to the professional indemnity quotation whereas
the other two
pages referred to professional indemnity insurance. Remarkably, he
does not explain how professional indemnity, whether
presented in the
form of a quotation or insurance, could ever be relevant to a tender
for the provision of insurance for water
leaks. Intriguingly Mr
Mpetsane’s affidavit continues as follows:
‘
The
Evaluation report was completely new, having no legal opinion
attached to it, it did not have any qualification, or motivation
to
disqualify South West, meaning that it was complying with the
specification. It further stated that the tenderers was
reviewed
and
they
were no technical or commercial issues
with the most responsive offer being that of South West Consulting.’
(sic)
[27]
On
the basis of the line department’s recommendation the BEC
approved the recommendation of the award of the tender to South
West.
[28]
Maxwell
Mthembu, the Project Executive: Electricity Unit and a member of the
BEC, filed an affidavit confirming that he was present
at both
meetings of the BEC. At the outset he pointed out that the BEC
has to ensure that
‘
an
appropriate assessment of eligible bidder’s ability to execute
the contract has been undertaken by the department presenting
the
item’.
[15]
(
sic
)
His
affidavit is otherwise substantially a duplication of the affidavit
of Mr Mpetsane.
[29]
Vincent
Cebekhulu, Head: Community Participation and Action Support Unit and
a member of the BEC, submitted an affidavit confirming
that he
attended the meeting of 26 October 2015 only. His paragraphs 9 and 10
are substantially similar to paragraph 8 and 10 of
the affidavit of
Mthembu and Mpetsane.
[30]
Zandile
Sithole, Deputy Head Supply Chain Management Policy and Support
Services and a member of the BEC, filed an affidavit stating
that he
was present at both meetings of the BEC. His affidavit substantially
repeats the evidence from Messrs Mpetsane, Cebekhulu
and Mthembu.
Although these deponents served with Mr Evans on the BEC, and would
therefore have had South West’s Bid,
PII1-3 and the line
department’s report they too do not explain how they accepted
professional indemnity insurance as compliance.
Compliance check
[31]
Tarryn
Bartholomew, employed as the Manager of Contracts and Materials
Branch in the Water and Sanitation Department, filed an affidavit
confirming her involvement in the tender once the first report to the
BEC recommending WANDA was produced to her for signature.
Her
function was to confirm that the evaluation in the report conformed
to s 217 of the Constitution of the Republic of South Africa,
1996,
that the proceedings were conducted in an open, fair and transparent
manner and that the recommendation complied with SCM
Policy. The
recommendation was based on the opinion of Mr Sibusiso Shezi from the
Legal Department. A copy of his opinion was attached
to the report.
[32]
Ms
Bartholomew has no personal knowledge of what transpired at the BEC.
However she learnt that the BEC had raised an issue that
the
quotation submitted by South West was the equivalent of the letter of
undertaking on the basis of which the bids had to be
re-evaluated and
that the department should recommend the most responsive bidder as
per the tender criteria. Ms Bartholomew amended
the report believing
it was on the advice of the BEC and returned it to the meeting of 2
November 2015.
BAC
meeting of 16 November 2015
[33]
André
Petersen, Head: SCM at eThekwini was a member of the BAC. He
submitted an affidavit stating that he as chairperson
of the BAC met
on 16 November 2015 with Sandile Mnguni and Dave Renwick to consider
the water insurance tender. His explanation
for supporting the award
to South West is as follows:
‘
From the
schedule provided in the departmental report to the BEC, the
recommended company was the most responsive and the most reasonably
priced, hence recommended for award. My support was therefore given
as the report seemed straightforward and contained no suggestion
that
there were any problematic issues.’
[16]
[34]
Sandile
Brian Mnguni, Head: Expenditure at eThekwini and a member of the BAC,
filed an affidavit substantially similar to that of
Mr Petersen. He
concluded that compliance with the administrative/legal requirements
of the tender had been properly checked by
the Water and Sanitation
unit, SCM unit, compliance unit, the BEC and all was in order.
Furthermore in his view:
‘
[t]he
responsibility to evaluate tenders in accordance with tender
specifications is specifically assigned to the BEC in terms of
Regulation 28 of the Municipal Supply Chain management Regulations.’
[35]
David
Lewin Renwick, a registered Professional Engineer, a member of SAICE
and a fellow of IMESA, employed by eThekwini Engineering
Unit as a
project Executive and a member of the BAC, filed an affidavit
substantially confirming the evidence of Messrs Mnguni
and Petersen.
He has since retired.
[36]
None
of the BAC members attach a copy of the tender specifications and
PII1-3 to their affidavits.
[37]
Ms
Rajoo attests to the BAC being aware of the deferral of this tender
as the deferral appeared on the BAC agenda. The members of
the BAC
were aware of the legal opinion of Mr Shezi as it formed part of
their bundle. They ought to have queried and not rubber-stamped
the
decision of the BEC recommending South West contrary to the legal
opinion, she persists. Ms Rajoo is surprised that notwithstanding
past practice the BAC gave no credence to the legal opinion and did
not refer the recommendation back to the BEC.
[17]
Legal
advisor
[38]
Silindile
Blose, Legal Advisor to eThekwini, filed an affidavit in which she
confirms that she took instructions from the Water
and Sanitation
Department officials namely Messrs Ntusi and Zondo. Their
instructions were that
‘
the
line department officials’
were
under
‘
immense
pressure’
in
so far as this tender was concerned.
[18]
In their view the litigation was a delaying tactic to prevent the
commencement of the tender. On those instructions Ms Blose opposed
the application. Those instructing her also explained the:
‘
far reaching
ramifications [of] not having a service provider to provide water
loss insurance on the public at large as well as
eThekwini
Municipality on whom the consumers are reliant for protection.
’
South
West was already setting up its processes and the applicants were
engaging meaningfully in the handing over process. The matter
was
urgent and she delivered an initial affidavit whilst the officials
obtained all the relevant documents to be included in a
supplementary
affidavit.
[39]
When
the further documents came to light counsel advised on the prospects
of success. The line department instructed her on 15 September
2016
to concede the application for the interdict and for the review on
condition that the tender would commence afresh whilst
Westwood would
remain the service provider on a month to month basis until a new
tender process was finalized. Westwood rejected
this settlement offer
and insisted on substitution. eThekwini’s SCM Unit insisted on
the tender process commencing
de
novo
.
When the settlement discussions collapsed eThekwini’s counsel
argued the matter on the limited issue of substitution.
Evidence
for South West
[40]
Mr
Viwe Maxwell Matimba submitted an affidavit seeking to absolve South
West from liability from any costs on the basis that it
elected to
abide the decision of the court. He responded to paragraph 4.2 to the
second order prayed in which Westwood had sought
an order for costs
against those opposing the first and second orders prayed. On this
basis he alleges that there has been no wrong
doing of whatsoever
nature by South West and that any cost order would be wholly
inappropriate.
The
Puzzling Question
[41]
How
did the entire procurement team of eThekwini comprising of officials
from the line department, bid specifications committee,
the BEC, the
BAC, the compliance officer, SCM practitioners, financial officials
and professionals like legal advisors and engineers,
unanimously
decide that firstly, a quotation is the equivalent of a letter of
undertaking and secondly, the provision of professional
indemnity
insurance qualifies as underwriting insurance for underground water
leaks for individual dwelling units, which was the
specified
condition of tender? Metaphorically speaking they decided that chalk
is cheese.
[42]
One
page of PII1-3, which South West presented as underwriting for water
leaks insurance, is on the letterhead of Marsh–Centriq
and
bears the title ‘Professional Indemnity Insurance’.
Another page bears the heading ‘Professional Indemnity
Quotation’. The third page on the letterhead of Marsh also has
the heading ‘Professional Indemnity Insurance.’
Nowhere
in the three pages that constitute PII1-3 is there any reference,
express or implied, to insurance for water leaks. Instead
one of the
pages provides schedules for limits of liability for various grades
and levels of professionals. A person simply reading
PII1-3 would
have been able to see that it had nothing to do with insurance for
water leaks.
[43]
In
the circumstances the evidence above fortifies my finding that the
decision is not merely irrational but bizarre. An irrational
decision
might still have an explanation albeit one that is not acceptable or
is weak in logic. But a bizarre decision is manifestly
inexplicable.
The decision in this instance is so bizarre that unsurprisingly even
those who participated in making it cannot explain
it.
[44]
The
possible explanations range from mistake, ignorance, incompetence,
negligence, corruption or something else. However, none of
the
deponents advance any of these possibilities. Notwithstanding my
previous judgment none of those involved in the decision to
appoint
South West now expresses the following:
i.
Any
recognition of the difference between professional indemnity
insurance and underwriting insurance for water leaks even at this
stage of the proceedings. Those who paid any attention at all to
PII1-3 seem to have focused only to the word ‘quotation’.
However, my judgment drew attention to both differences. If they did
not know the differences then they should have known them
after my
judgment.
ii.
Any
remorse for their conduct, the unlawfulness of which eThekwini
conceded.
iii.
Any
recognition of the consequences of the award to South West being
allowed to stand. South West had not secured underwriting insurance
services and therefore would not have been able to deliver at all on
its contract with eThekwini. The consequences for eThekwini
and its
residence would have been dire.
iv.
The
basis on which the opinion of Mr Shezi was rejected and substituted
with the opinion that a quotation for professional indemnity
insurance is the equivalent of a letter of undertaking for
underwriting insurance for water loss.
[45]
All
those involved in the decision to appoint South West persist in
defending what is now manifestly indefensible by trying to justify
their conduct in order to avoid having to pay costs. Their responses
fortify their failure and continuing refusal to be not only
accountable and transparent but also remorseful for their manifestly
inexplicable decision which renders them liable for costs.
But there
is more.
[46]
All
the deponents deny liability for costs claiming variously that they
did not act dishonestly, in bad faith or negligently. It
is difficult
and therefore unusual for a court to make findings on credibility,
intention or motive in motion proceedings, which
are confined to
evidence on affidavit and the court does not have the opportunity of
examining the witnesses. Hence my analysis
will steer a course
through facts not in dispute. I preface my analysis with a brief
outline of the regulatory framework for procurement
as a benchmark to
assess the steps through which the tender was processed in this
instance.
Supply
Chain Management Law
[47]
How
does the process implemented in the tender in this case square with
the norms set for transparent and accountable public procurement
under the Constitution?
[48]
eThekwini’s
Supply Chain Management Regulations,
[19]
based on National Treasury Regulations,
[20]
is designed on the committee system.
[21]
The bid specification committees, BECs and the BACs
[22]
are
carefully populated and structured to inculcate competent,
independent and impartial tender specification, evaluation and
adjudication.
The accounting officer, who in the case of a
municipality is the municipal or city manager,
[23]
and all officials involved in the implementation of supply chain
management policy ‘must meet the prescribed competency levels’,
for which resources, opportunities and training would be
provided.
[24]
The
accounting officer is responsible for implementing the supply chain
management policy.
[25]
She or
he:
‘
must
…
take
all reasonable steps to ensure that proper mechanisms and
separation
of
duties
in the supply chain
management system are in place to minimise the likelihood of fraud,
corruption, favouritism and unfair and irregular
practices.
’
[26]
(my emphasis)
[49]
Each
committee has members appointed by the accounting officer. The policy
must provide for:
‘
an
attendance or oversight process by a
neutral
or independent observer
appointed by the accounting officer when this is appropriate for
ensuring fairness and promoting transparency.’
[27]
(my
emphasis)
[50]
Absolutely
no councillor may serve on any bid committee.
[28]
The BEC must as far as possible be composed of officials from
departments requiring the goods or services and at least one SCM
practitioner of the municipality.
[29]
The BAC ‘must consist of at least four senior managers of the
municipality’ which must include the chief financial
officer or
another manager in the budget and treasury office reporting directly
to the chief financial officer and designated by
the chief financial
officer, at least one senior supply chain management practitioner who
is an official of the municipality, and
a technical expert in the
relevant field who is an official of the municipality.
[30]
To reinforce its independence and impartiality a member of the BEC
may not serve on the BAC.
[31]
[51]
The
committees are assigned specific functions. For instance the BEC must
‘evaluate bids in accordance with the specifications
for a
specific procurement; and evaluate each bidder’s ability to
execute the contract.
[32]
The
BAC ‘must consider the report and recommendations’ of the
BEC before making a final award or recommendation, including
one that
deviates from the BEC’s recommendation.
[33]
[52]
Given
these prescripts each individual and committee acting independently
and impartially is meant to exercise effective checks
and balances on
the others. Additionally no person may interfere with the SCM process
of a municipality or amend or tamper with
‘tenders, quotations,
contracts or bids after their submission.
[34]
Analysis
[53]
For
convenience I repeat clause 3 of the Condition of Tender here:
‘
Registration:
Offers underwritten by insurance companies licenced to operate in
South Africa will only be considered. A letter of undertaking
from
the insurance company must accompany the offer.
The underwriter
must be registered with the Financial Services Board (FSB)
.’
[54]
The
cover sheet to the report from the Water and Sanitation Department to
the BEC and the approval of the BEC to the BAC states
and restates
boldly that the tender was a:
‘
RECOMMENDATION
TO AWARD (WATER LOSS INSURANCE)
PROVISION
OF INSURANCE COVER FOR UNDERGROUND LEAKS FOR INDIVIDUAL DWELLING
UNITS
.’
[55]
Insurance
for water leaks was unmistakeably central not peripheral to the
contract, as it might be for example in a building contract
in which
insurance against loss during construction would be incidental to the
primary construction contract. Tenderers had to
comply with it
strictly. For non-compliance meant that the very service for which
the tender was issued would not be delivered.
[56]
I
had ordered the Mayor and the Municipal Manager to identify every
person who participated in awarding the tender and to deliver
my
judgment to him or her. The accounting officer had to be involved in
the awarding of this tender. No accounting officer has
delivered an
affidavit to give his or her account of the tender in this instance.
Ms Nene as the Deputy City Manager and Acting
City Manager is the
current accounting officer. She fails to explain whether she or any
other person was the accounting officer
and what her role was at the
time of the award. She does not say when she was appointed to act. If
she was not the accounting officer
at the time then she has failed to
comply with paragraphs 2 and 3 of my order. It is possible that the
accounting officer at the
time, if it was not Ms Nene, has not been
served with my judgment. Sibusiso Sithole signed off as the City
Manager the circular
appointing members to the bid committees.
However that was on 5 June 2014; the tender process in this instance
began in April 2015.
However, Ms Nene had an opportunity to
disclose fully the identity of all the persons involved in the
tender. Her failure to disclose
the identity of the accounting
officer at the time and the role played by that person, whoever it
was, is unacceptable.
[57]
Of
the persons to whom Ms Nene delivered my judgment I have not received
an affidavit from the Mayor, who generally has no role
in procurement
processes, and two senior officials who do have a role, namely, Edwin
Msweli and Sandile Ngcobo. As the head
of Water and Sanitation,
Mr Msweli had a duty to deliver an affidavit to account for what
happened in his department under his
watch, even if in the unlikely
event, he played no direct role in awarding the tender. Messrs Ntusi
and Zondo approached Mr Ngcobo
for advice. As the Deputy Head: Supply
Chain Operations he had to know the difference between a quotation
and an undertaking at
the very least, and between professional
indemnity and underwriting insurance. If he genuinely did not know
then he had a duty
to make reasonable enquiries. Most of all, both
officials holding senior positions had a duty to explain their acts
and omissions
not only to avoid a cost order but also to account as
is their constitutional obligation.
[58]
Messrs
Ntusi and Zondo approached the manager of the insurance department.
If Mr Thulani Ntuli genuinely did not know whether PII1-3
could be
accepted as an undertaking for insurance for water leaks how is he
the manager of the insurance department?
[59]
According
to the eighth respondent’s award, the advice came from the
insurance and treasury departments to which he deferred
because they
‘deal with these kinds of undertakings on a regular basis.’
[35]
As I noted in my previous judgment, not a single document has
surfaced from those in the insurance and treasury departments
evidencing
their opinion. Nor have I received an affidavit from Mr
Thulani Ntuli or any other person from the insurance and treasury
departments.
Ms Nene does not identify anyone from these departments
as having participated in the decision. She has not served my
judgment
on Mr Ntuli. The palpable silence about the involvement of
the insurance and treasury departments suggest that they know more
than
they care to disclose but I cannot take the matter further
against them as they are not before me.
[60]
Underwriting
insurance for water loss was a threshold, qualifying requirement. If
a tenderer failed to provide such insurance, its
bid should not have
passed the first tier of checks by the line department into the
second tier before the BEC. The query that
the BEC referred to the
line department was about South West submitting a quotation of fees.
Its preoccupation appears to have
been about whether the letter
amounted to a quotation or a letter of undertaking, not that it was
professional indemnity and not
water loss insurance.
[61]
The
line department and bid specification committee prepared the
conditions of tender emphasizing clause 3 as an absolute
prerequisite.
These officials had to know precisely what the
condition meant, why it was necessary, what tenderers had to do to
comply, that
literally and contextually the provision of professional
indemnity insurance instead of insurance for water leaks was
non-compliance
and a quotation was not an undertaking.
[62]
Messrs
Ntusi and Zondo should not have considered a non-compliant or
non-responsive bid. Even though they recommended WANDA, they
submitted South West’s bid with their first report to the BEC.
Once they obtained the opinion of Mr Shezi who confirmed that
they
should reject PII1-3, they should not have submitted it. Why did
they?
[63]
On
the version of the line department officials, it was members of the
BEC at the meeting of 26 October who formed the opinion that
a
quotation was the equivalent of underwriting insurance. They
understood the deferral to be an instruction to substitute South
West
as the preferred bidder. They do not say who from the bid
specifications committee prescribed clause 3 as a qualifying
requirement,
and if it was not them then whether they at any stage
checked with such person(s) who did, whether PII1-3 met that
department’s
condition for underwriting insurance. Of all role
players the line department officials had to know what the insurance
requirements
were.
[64]
Messrs
Ntusi and Zondo mindlessly accepted the BEC’s alleged response
that the ‘quotation submitted by South West Consulting
is
equivalent to a letter of undertaking’.
[36]
They undertook no further checks, not even the basic step of
reverting to Mr Shezi on whose advice they had acted initially.
On
their own version they are liable for costs for simply doing the
BEC’s bidding without applying the most basic checks and
balances required of officials responsible for rendering a fair and
transparent procurement process. The BEC based its decision
on
their work; in turn the BAC based its decision on the decision of the
BEC.
[65]
On
the version of the members of the BEC, supported by the minutes of
the meeting of 26 October, they were not experts and deferred
the
matter to the line department for clarification of PII1-3. What
expertise did the BEC need that they could not distinguish
literally
and contextually between professional indemnity and water leaks
insurance, and between a quotation and an undertaking?
[66]
Ms
Rajoo as the Chief Legal advisor does not offer any evidence that she
distinguished between underwriting insurance for water
loss and
professional indemnity insurance either at the meeting at 26 October
2015 or subsequently when she prepared her affidavit
for this enquiry
into costs. She had Mr Shezi’s opinion, which she correctly
refused to accept without seeing all three pages
of PII1-3. Even
after perusing PII1-3 she needed an insurance expert. A law graduate
does not need an insurance expert to distinguish
between these two
types of insurances let alone someone holding the position of Chief
Legal Advisor in a large city. Her advice
should have been to
disqualify South West’s bid without further ado.
[67]
Ms
Ntusi’s affidavit about what directives the BEC issued to her
differs considerably from the minutes of the BEC meeting
of 26
October and Ms Rajoo’s affidavit. According to Ms Ntusi the BEC
regarded South West’s quotation as the
‘
equivalent’
of
a letter of undertaking. According to Ms Rajoo’s affidavit the
committee was uncertain of the
‘
veracity
and correctness of two quotations and the third being a certificate
which was submitted purportedly in compliance with
the underwriting
insurance requirement of the conditions of tender
.’
Where
does truth lie?
[68]
The
identity of the person who formed the opinion that South West’s
bid could be salvaged if it were sent back to the line
department has
not been disclosed to the court. All that the court is aware of is
that such person is a member of the BEC. However
it is the BEC at its
meeting of 26 October that decided collectively to reject the opinion
of the line department which rested
on the advice of Mr Shezi and
called for a reconsideration of PII1-3.
[69]
At
the second meeting of the BEC the first report and the reasons for
the deferral were not tabled. No one, not even Ms Zondo, who
is
referenced in the report to the BEC, offers any explanation for
omitting to do so. Nor did any of the members of the BEC object
to
presiding over the bid without full disclosure. Members who were not
at the previous meeting were not privy to the deliberations
that
resulted in the second report to the BEC. On their version without
full knowledge of the tender and the line department’s
reports
the members attending the second BEC meeting approved the appointment
of South West. Messsrs Mpetsane, Cebekhulu, Mthembu
and Sithole,
three of whom attended both meetings, disingenuously state under oath
that ‘Professional Indemnity Quotation’
documents
provided to the BEC proved that South West met the technical
requirements. The omission of the first report from
the second
meeting of the BEC is a red herring because the annexures to Mr
Evans’s affidavit proves that members of the BEC
had all the
information they needed to reject PII1-3.
[70]
None
of the BEC members identify the person(s) who moved, seconded or even
spoke in favour of the appointment. They accepted
the ‘advice’
of the
line department that PII1-3 providing for the professional indemnity
insurance complied with the condition of tender requiring
underwriting insurance for water leaks.
[71]
What
Mr Evans and other members of the BEC assented to without full
knowledge was the recommendation that South West
‘
be accepted
for provision of insurance cover for underground leaks for individual
dwelling units for a period of Thirty-six (36)
months, in accordance
with their schedule of rates’
(
sic
),
which
amounted to R27 million per year over three years from 2015
.
They
assented despite having before them PII1-3. They did not need to have
the report of 26 October 2015 to realise that the tender
condition
was not being met.
Mr
Evans, as the Head of the Engineering Unit, and Mr Mr Sithole, as
Deputy Head of SCM Policy and Support Services, had to know
the
difference between underwriting and professional indemnity
insurance.
[72]
Mr
Evans and Ms Rajoo both attest to the BAC having the same document
pack and recommendations when considering the bids. However,
to their
affidavits the three members of the BAC attach the record of the BEC
report serving before them when they made the decision
to confirm the
award to South West. That record does not include the tender
specifications, the bid documents and especially PII1-3.
They do not
comment at all about the omission of these documents from their
bundle. How could they consider a bid without the specifications
and
the bid documents?
[73]
It
should have been clear from my judgment that they were required to
explain how they approved a tender for the provision of water
loss
insurance without seeing any proof of underwriting insurance as
stipulated in the conditions of tender. If they did
not
appreciate the differences when they considered the BEC report they
should have seen the light after my judgment. However,
they say
nothing, not even about the near-travesty for which they would have
been co-responsible.
[74]
Regulation
29(1) requires the BAC to:
‘
consider the
report and recommendations of the bid evaluation committee; and …
either- … make a final award or a recommendation
to the
accounting officer to make the final award
.’
[75]
The
online thesaurus gives the following meanings for ‘consider’:
‘
reflect,
think, deliberate, ponder, study, cogitate, ruminate, mull over,
weigh up, judge something, weigh possibilities before
deciding,
examine and discuss problem, look carefully at something.’
[76]
‘
Consider’
means much more than the BAC simply endorsing the decision of the BEC
without interrogating the correctness of it.
They could not
have considered it because if they had then these senior officers who
include a professional engineer, the Head
of Supply Chain Management
and the Head of Expenditure would have applied their collective
general knowledge and experience to
realise that a quotation for
professional indemnity insurance is not underwriting insurance for
water leaks.
[77]
Ms
Bartholomew holds a highly responsible position as manager
effectively in charge of corporate governance in the Water and
Sanitation
Department to ensure compliance with the constitutional
aims for procurement free of corruption and collusion. In this
instance
she failed to perform her functions independently and
consistently with her duties to uphold and enforce s 217 of the
Constitution.
Her evidence amounts to an admission that she fettered
her discretion in favour of the opinion of another, notably the BEC.
[78]
To
summarise: contrary to eThekwini’s Supply Chain Management
Regulations,
none
of the committees and officials exercised their independent,
impartial discretion. The line department or specification committee
submitted a bid despite being advised by Mr Shezi that they should
disqualify it. They then capitulated and cow-towed to the BEC’s
alleged instruction to equate a quotation to an undertaking. Members
of the BEC who attended the first meeting irrationally accepted
that
professional indemnity insurance was underwriting insurance for water
loss and that a quotation is an undertaking. Those members
of the BEC
who attended the second meeting mindlessly rubber-stamped a
recommendation of the line department. It was this ill-considered
recommendation that surfaced before the BAC, a committee of senior
officials prevailing at the apex of the committee structure.
The BAC
also abdicated its responsibilities by simply endorsing the BEC’s
recommendation without making the most elementary
checks to ensure
that the bid met the tender specifications.
[79]
Ms
Blose opposed the interdict on the instructions of Messrs Ntusi and
Zondo. Their view that the litigation was a delaying tactic
to
prevent the commencement of the tender and their concern for the ‘far
reaching ramifications [of] not having a service
provider to provide
water loss insurance on the public at large as well as eThekwini’
[37]
prompted
her decision to oppose the application.
[80]
In
her role as Legal Advisor, Ms Blose had no choice but to carry out
the instructions of the line department to oppose the application.
Furthermore she had to do so under the pressure of an urgent
application. As soon as better information came to light she withdrew
the opposition.
[81]
However,
the withdrawal came after the court insisted on seeing compliance
with clause 3, which was the obvious starting point of
the enquiry.
Moreover in her affidavit opposing the interdict she dismissed the
non-compliance with clause 3 flippantly saying:
‘
The
underwriting is just a fancy word for a quotation.’
As a lawyer her reaction
was irresponsible.
[82]
As
for South West, my enquiry is not into costs due to Westwood. I
resolved that issue in my previous judgment. This enquiry, I
emphasise, is about recovering costs incurred at the expense of the
tax paying public in a procurement process that was seriously
flawed.
[83]
Evidence
of the Rajah brothers in the application showed that South West knew
that it had submitted a bid that had failed to comply
with a
qualifying requirement. The tender was for water leaks insurance;
that was the service that South West was tendering to
provide. As the
tenderer it had to know that what it offered, namely the professional
indemnity, was not water loss insurance.
Its bid should never
have served before the BEC.
[84]
After
I queried the insurance requirements, South West attempted to rectify
its situation by submitting a contract for insurance
with Lion of
Africa. Although it could have been compliant with clause 3,
[38]
South West violated the regulations to submit documents after the
closing date of the tender.
[85]
The
party to gain most from allowing the award to stand was South West.
The wrongfulness of its conduct is its misrepresentation
that
professional indemnity insurance was in fact underwriting of
insurance for water leaks. Its misinterpretation was not naïve
or innocent; no one tendering to provide underwriting insurance for
water leaks can genuinely mistake professional indemnity insurance
as
compliance, not when insurance for water leaks is the core service
for which the tender was issued, not when the potential reward
is as
high as R80 million, and definitely not when the risks of
non-delivery for the residents of eThekwini would be catastrophic.
[86]
As
for the eighth respondent, not only is his failure to give reasons a
basis to impose a cost order on him but also his unsubstantiated
and
mindless deference to officials from the treasury and insurance
departments. I am still in the dark as to what information
he had
from these departments.
Costs
[87]
A
tender of R80 million was large enough to be taken very seriously.
Importantly, if South West got away with its misrepresentation,
vulnerable people occupying, for instance, municipal and other
sub-economic housing schemes would have had no insurance for water
leaks. The cost of the water leaks would have had to be borne by
eThekwini and by extension all its tax paying residents. Coinciding
with a devastating drought, the lack of insurance for water leaks
would have been catastrophic for water supplies if the leaking
pipes
were not repaired quickly. Why South West’s bid was not
rejected at the outset for non-compliance adds to the mystery
as to
how it passed the scrutiny of so many officials charged with the
responsibility of safeguarding public procurement against
illegalities.
[88]
A
recurring theme of this judgment is the non-disclosure of relevant
information. Whether this is deliberate or not is not always
impossible to tell. Irrespective, when determining liability for
costs, the fact of the non-disclosure alone counts. It must be
measured against the constitutional obligation of all persons
performing public services to be accountable and transparent.
Disclosure
is also important for individuals to avoid or mitigate
their liability for costs. If all those involved are exposed then the
burden
on each individual would be mitigated if an order for joint
and equal liability is imposed. Also, if those who had a greater hand
in awarding an unlawful tender are exposed then the liability for
costs of those who played a less significant role would be
commensurately
minimised. This approach commends itself
for the greater cause of inculcating accountability and transparency
in every
sphere of public procurement, including enforcement.
[89]
I
analysed the evidence in some detail to assess where in the range
from ignorance, incompetence, negligence, corruption or something
else the conduct of the decision-makers fall in order to determine
whether some should be held more or less liable than others
in order
to apportion costs appropriately. I cannot single out individuals as
having committed acts of corruption because the evidence
does not go
that far. However, given how bizarre the decision is I cannot
exclude that possibility but that is for some other
process to
uncover. Ostensibly, all the participants were negligent, inattentive
to their responsibilities and unaccountable. I
have not been able to
uncover why this was so
.
[90]
I
considered distinguishing the role played by the various persons in
the decision to award the tender to South West. All who participated,
including South West, are liable for costs because of their on-going
refusal to explain, account, accept responsibility, and recognise
that but for the interdict their decision would have resulted in a
calamity of intolerable proportions. None show remorse. All
the
participants failed in their duty to check and recheck that the
contract that they approved was capable of delivering the services
that eThekwini and its residents would pay for. The compliance
officer, the line department officials and all the members of the
BEC
are particularly liable because they engaged with PII1-3. The
seniority of the members of the BAC and the fact that they
preside at
the apex of the committee system is an aggravating factor. They
should have engaged with PII1-3.
[91]
However,
I do distinguished South West from the rest. No tenderer should
be allowed to escape with impunity for deliberate
misrepresentations
in public procurement processes. South West created the situation
that compelled this litigation. Walking away
unscathed from the
debacle is not an option.
[92]
Legal
Advisor Ms Blose acted under the pressure of an urgent interdict and
played no role in the decision to award the tender. She
is absolved
from liability for costs.
[93]
No
order is made against persons from the finance and treasury who have
not been served with my judgment as those who implicated
them ought
to have ensured that they were served.
[94]
Those
who have been served but who have not delivered an affidavit will be
held liable.
[95]
In
deference to the separation of powers principle this judgment does
not preclude but encourages eThekwini to further investigate
the
awarding of the tender.
Order
[96]
Accordingly
I make the following order:
1.
The
fourth respondent shall indemnify the first respondent by paying
fifty per cent (50%) of its costs.
2.
The
remaining fifty per cent (50%) of the first respondent’s costs
shall be paid in equal shares by the following:
a.
Contracts
Administrator - Nonhlanhla Zondo;
b.
Divisional
Manager for Regional Customer Services Water and Sanitation -
Bridgette Ntusi;
c.
The
Manager Contracts and Materials – Tarry Bartholomew;
d.
Head
of eThekwini Water and Sanitation – Edwin Msweli;
e.
Deputy
Head Supply Chain Operations - Sandile Ngcobo;
f.
Members
of the Bid Evaluation Committee namely,
i.
Vincent
Cebekhulu
ii.
Kamlesh
Naidoo
iii.
Zandile
Sithole
iv.
Greg
Evans
v.
Max
Mthembu
vi.
Tumo
Mpetsane
g.
Members
of the Bid Adjudication Committee namely,
i.
Andre
Petersen
ii.
Dave
Renwick
iii.
Sandile
Mnguni
h.
The
eighth respondent; and
i.
The
City Manager who confirmed the award to South West.
3.
The
Acting City Manager Ms Nene shall forthwith serve or cause to be
served a copy of this judgment on the Mayor and all those liable
for
costs above.
4.
The
Ms Nene or her replacement shall report to the court on the steps she
or he has taken to recover costs under this judgment on
affidavit by
30 July 2017 and thereafter on the last day of each month until the
costs are paid or the court orders otherwise.
5.
The
registrar of this court shall serve a copy of this judgment on the
Auditor-General by fax or any other convenient means.
6.
There
is no order for costs against Ms Silidile Blose.
7.
Any
person having an interest in my judgment is given leave to apply for
leave to appeal against this judgment.
____________________
D.
Pillay J
APPEARANCES
Counsel
for the Applicant
: A.G Jeffrey
SC
Instructed
by
: Larson
Falconer Hassan Parsee Inc
Tel:
(031) 534 1600
Ref:
yhassan@Ifhp.co.za
Counsel
for the 1
st
, 2
nd
,3
rd
Respondent
: I Pillay
Instructed
by
: S.D
Moloi & Associates
Tel:
(031) 563 3231
Ref: SDM/XSN/0461-16
Date of Judgment
: 5 April 2017
[1]
Westwood
Insurance Brokers (Pty) Ltd v Ethekwini Municipality
(8221/16) [2016] ZAKZDHC 46 (8 December 2016)
[2]
Paragraph 59 of
judgment
[3]
Paragraph
58 of judgment
[4]
Paragraph 5 and 6
of affidavit of Prabashni Padayachee – Naidoo for Marsh (Pty)
Ltd
[5]
Paragraph 14 of
the affidavit of Ntusi
[6]
Paragraph 17 of
affidavit of Kamlesh Rajoo
[7]
Kamlesh Rajoo’s
affidavit para 18
[8]
Kamlesh Rajoo
affidavit page 17
[9]
Kamlesh Rajoo
affidavit page 17
[10]
Kamlesh Rajoo
affidavit para 26.5
[11]
Paragraph
17 of affidavit of Mr Evans;
see
also report from Nonhlanhla Zondo attached to his affidavit.
[12]
Paragraph 18 of
affidavit of Mr Evans.
[13]
Paragraph 19 of
affidavit of Mr Evans.
[14]
Paragraph 8 of the
affidavit of Tumo Mpetsane
[15]
Paragraph 2 of the
affidavit of Mthembu
[16]
Paragraph 6 of the
affidavit of Petersen
[17]
Kamlesh Rajoo
affidavit para 25
[18]
Paragraph 4 of
affidavit of Ms Blose.
[19]
Municipal
Supply Chain Management Regulations GN686
of 2005.
http://eThekwini.l2b.co.za/public/tenderforms/the_municipal_supply_chain_management_regulation_of_2005.pdf.
(accessed
28 March 2017).
–
GenN
868 of 2005
[20]
http://eThekwini.treasury.gov.za/legislation/pfma/regulations/gazette_27388.pdf
(accessed 28 March 2017).
[21]
Regulation 26
of
eThekwini’s Supply Chain Management Regulations.
[22]
Regulation 27-29
of eThekwini’s Supply Chain Management Regulations.
[23]
s 60
of the
Local
Government: Municipal Finance Management Act 56 of 2003
.
[24]
s 119
of the
Local
Government: Municipal Finance Management Act 56 of 2003
.
[25]
s 115(1)(a)
of the
Local Government: Municipal Finance Management Act 56 of 2003
.
[26]
s 115
(1)(b) of
the
Local Government: Municipal Finance Management Act 56 of 2003
.
[27]
Regulation 26
(1)(b) of eThekwini’s Supply Chain Management Regulations
.
[28]
s 117
of the
Local
Government: Municipal Finance Management Act 56 of 2003
.
[29]
Regulation 28(2)
of eThekwini’s Supply Chain Management Regulations.
[30]
Regulation 29(2)
of eThekwini’s Supply Chain Management Regulations.
[31]
Regulation 29(3)
of eThekwini’s Supply Chain Management Regulations.
[32]
Regulation
28(1)(a)(i) and (b) of eThekwini’s Supply Chain Management
Regulations
[33]
Regulation 29(1)
and (5) of eThekwini’s Supply Chain Management Regulations.
[34]
s 118
of the
Local
Government: Municipal Finance Management Act 56 of 2003
.
[35]
Page 44 of the
pleadings line 360.
[36]
Paragraph 14 of
the affidavit of Ms Ntusi.
[37]
Paragraph 4 of the
affidavit of Ms Blose.
[38]
Paras 45 - 47 of my judgment.