About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2016
>>
[2016] ZANCHC 60
|
|
Schauman Builders CC v MEC: Department of Roads and Public Works, Northern Cape and Another (734/2016) [2016] ZANCHC 60 (11 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno / Case
number:
734
/ 2016
Datum aangehoor /
Date Heard:
27
/ 10 / 2016
Datum
gelewer/Date delivered:
11
/ 11 / 2016
In
the application of:
SCHAUMAN
BUILDERS CC
Applicant
and
THE
MEC: DEPARTMENT OF ROADS AND
PUBLIC
WORKS, NORTHERN CAPE
1
st
Respondent
KOBUS
DUVENHAGE BUILDERS (PTY) LTD
2
nd
Respondent
Coram:
Olivier
J and Erasmus AJ
JUDGMENT
Olivier
J et Erasmus AJ
BACKGROUND
1.
This
review application by the applicant (“Schauman Builders”)
concerns the decision to award tender DRPW 029/2015 to
the second
respondent (“Duvenhage Builders”) and the applicant
seeks,
inter
alia,
that the decision be reviewed and set aside.
2.
During
August 2015 the first respondent (“the Department”)
issued a tender notice and invited tenders under the project
title
“
Pre-qualification:
Construction of the New Substance Abuse Rehabilitation Treatment
Centre
”,
Tender DRPW 029/2015. In this notice the closing time for
receipt of tenders was stated as 28 September 2015 and
the validity
period to be 90 days.
3.
The
tender progressed in two stages:
3.1
In
the pre-qualification stage, tenderers were required to submit
technical and certain other information before the closing date
28
September 2015. Schauman Builders and Duvenhage Builders
submitted the relevant documents set out in the tender notice
under
the heading “Responsiveness Criteria”.
3.2
These
submissions were evaluated on 9 October 2015 during a meeting of the
Departmental Technical Bid Evaluation Committee.
After the
evaluation of the submissions in the pre-qualifying stage, the
qualifying tenderers, constituting 7 of the 11 initial
tenderers,
were invited to a compulsory meeting that was held on 10 November
2015. During this meeting tenderers were provided
with the
second envelope containing the pricing documents, also referred to as
the bills of quantities, and it was resolved that
these had to be
submitted by 3 December 2015.
4.
Both
Schauman Builders and Duvenhage Builders timeously submitted their
bills of quantities.
5.
In
a departmental report, dated 22 January 2016
[1]
,
the closing date of the tender is however stated as 4 December 2015
(which would be consistent with the deadline of 3 December
2015
determined at the meeting of 10 November 2015) and the validity
period again as 90 days. It appears that 7 tenders had
been
received timeously. In paragraph 3 thereof it was recorded that
a pre-qualification tender invitation had been done
and that the
tenderers’ ability, staffing, qualifications, experience and
financial position had been evaluated, that all
tenderers had then
been invited to submit tender prices based on the bills of quantities
and that 7 tenderers had responded.
The author set out an
analysis of these tenders.
6.
On
28 January 2016 the Department in writing requested both Schauman
Builders and Duvenhage builders to consent to the extension
of the
validity period for the evaluation of the tender documents.
[2]
In this document the existing validity expiry date was stated as 9
February 2016 and the requested extension date until when
the tender
would be valid, as 31 March 2016. Both parties consented to the
extension, respectively on 28 January and 9 February
2016.
7.
During
the meeting of the Departmental Bid Evaluation Committee (‘BEC’),
held on 29 February 2016
[3]
,
Schauman Builders’ bid was found to be non-responsive as its
so-called CIDB status had expired on 28 February 2016.
Schauman
Builders applied for re-registration on 8 March 2016 and its active
status was restored on 14 March 2016.
8.
The
tender was awarded to Duvenhage Builders on 2 March 2016 and the
letter of appointment issued on 10 March 2016.
[4]
The
interim interdict
9.
On
11 April 2016 Schauman Builders lodged an urgent application for an
interdict, pending finalisation of these review proceedings,
to stop
and restrain
a.
further
implementation of the decision to award the tender and giving further
effect to any service level agreement between the
Department and
Duvenhage Builders, and
b.
performance
of any construction related activity related to the decision to award
the tender to Duvenhage Builders or the service
level agreement.
10.
Costs were sought against the Department, and against Duvenhage
Builders only in the event of the latter opposing the application.
Only the Department opposed that application.
11.
On 29 April 2016 Lever AJ granted the interim relief and ordered that
the costs be reserved for adjudication in the review application.
The
review application
12.
Schauman Builders lodged the urgent review application on 18 May
2016, seeking extensive relief. Adv Burger SC, on behalf
of
Schauman Builders, indicated in his heads of argument and also at the
onset of argument before us, that the relief sought would
however
only be as set out in paragraphs 5, 6 and 7 of the Notice of Motion,
to wit that
12.1
the tender process of the bid, as well as the awarding of the bid to
Duvenhage Builders, be reviewed and set aside, alternatively
be
declared unlawful and set aside;
12.2
the Department be ordered to, in accordance with the provisions of
section 8 of PAJA, re-advertise and call for bids
for the tender; and
12.3
the Department be ordered to pay the costs of the application,
alternatively, should Duvenhage Builders oppose the application,
it
be ordered to pay the costs of the application together with the
Department, jointly and severally, the one paying the other
to be
absolved.
13.
In his heads and at the hearing Mr Burger restricted his argument to
a single ground of review, namely the alleged lapsing of
the validity
period. We therefore do not deem it necessary to deal with the
factual allegations and submissions in respect
of other issues like
the disqualification of Schauman Builders when its bid was regarded
as non-responsive due to the expiry of
its CIDB certificate.
14.
Initially both respondents opposed the review application. The
Department, however, never filed an answering affidavit
and later
withdrew its opposition and gave notice of its intention to abide by
the decision of the court.
15.
After the Department had filed the record of the tender proceedings,
Schauman Builders elected not to supplement its founding
papers as
it, according to Mr Burger, did not deem it necessary to do so.
It did file lengthy replying papers though, in
response to Duvenhage
Builders’ answering affidavit.
The
founding affidavit
16.
Schauman Builders did not deal in founding with the two staged
process that had been followed or the actual sequence of events.
The impression created was that a single phase process had been
followed and that the submission of the tender documents, as set
out
in the pre-qualification tender notice, with the closing date of 28
September 2015, constituted the complete tender submission
process.
17.
The deponent to the founding affidavit referred only to the closing
date of 28 September 2015 and the validity period of 90
days, set out
in the pre-qualification tender notice. The case made out in
founding was simply that the validity period of
90 days would then
have lapsed on 28 December 2015 and a tender could not be accepted
after the lapse of the validity period.
18.
The deponent admitted that he had on behalf of the Schauman Builders
consented to an extension of the validity period from 9
February 2016
until 31 March 2016,
[5]
but
averred that he had never consented to the extension of the validity
period from 28 December 2015 until 9 February 2016.
He
maintained that the validity period had accordingly lapsed on 28
December 2015 and that the tender was therefore, notwithstanding
the
subsequent consent to extend it to 31 March 2016, unlawfully awarded
to Duvenhage Builders.
19.
The only reference in the founding affidavit to a further stage in
the tender process was an averment to the effect that, once
a bidder
had passed the responsiveness threshold, the bids were to be further
evaluated in accordance with the prescribed criteria
for purposes of
performing of the contract and the awarding of points to bidders.
No reference was made to the further meeting
held on 10 November
2015, nor to the fact that responsive bidders were invited to submit
their bills of quantities by 3 December
2015. Schauman Builders
elected to only deal with these issues in reply to Duvenhage
Builders’ answering affidavit.
The
opposing papers
20.
The deponent for Duvenhage Builders explained that the tender process
embarked upon by the Department had actually consisted
of a two-stage
procedure, recognised in the “
Standard
for Uniformity in Construction Procurement”
as
issued in terms of the Construction Industry Development Board Act,
No. 30 of 2000 (‘the CIBD Act’). This procedure
entails
20.1
a pre-qualification stage and then, after evaluation of the
pre-qualification documents,
20.2
an invitation to responsive tenderers to submit further information
in respect of pricing and submission of their bills
of quantities.
21.
It was pointed out that the initial invitation to tender, as is
evident from the tender notice, related to pre-qualifying documents
and that the closing date for the submission of those documents was
28 September 2015, with a tender validity period of 90 days
from that
date.
22.
The tender data document
[6]
,
which accompanied the tender notice inviting tenders, stipulated that
the conditions of tender were the Standard Conditions of
Tender as
contained in Annexure F of the CIDB Standard of Uniformity in
Construction Procurement.
[7]
23.
The minutes of a meeting of the BEC, held on 9 October 2015
[8]
,
relate to the evaluation of the pre-qualification documents,
submitted during the first stage of the tender process.
24.
It was explained that, after evaluation of the pre-qualification
documents, the responsive tenderers attended a final compulsory
meeting on 10 November 2015 and that during that meeting they were
invited to submit their bills of quantities by 3 December 2015.
It was pointed out that the financial procurement documents, handed
to the responsive tenderers on 10 November 2015, no longer
referred
to “pre-qualification” documents, but to “procurement
documents”.
25.
On 2 December 2015 Duvenhage Builders sent an e-mail to the
Department, applying for a postponement of one week of “the
tender closing date from 3 December 2015 to 10 December 2015”.
This request was refused.
26.
It was averred that essential documents had been omitted from the
record and that Schauman Builders’ attorneys were informed
accordingly, but that the said attorneys insisted that Duvenhage
Builders file its answering papers.
27.
Duvenhage Builders was not provided with the relevant notices and
minutes pertaining to the events and meetings after 9 October
2015,
up and until 3 December 2015, including the minutes of the meeting of
10 November 2015. After Schauman Builders had
been informed
accordingly, its attorney delivered a notice in terms of Rule 35(3)
to the Department, but only requested delivery
by the Department of
the minutes of a meeting held on 12 November 2015 and invitations to
tenderers to submit relevant cost schedules.
28.
The Department responded to the notice by stating “The minutes
of the 12/11/2015 are unavailable, there was no meeting
held on this
day, no discussion of the bid, the No. 29/2015 was still active until
the 28/12/2016.” It further stated
“The notices,
letters inviting the 7 companies are attached to the record filed in
Court, under a bundle NCT 52 (LIST OF
TENDERERS RECEIVED).”
The last mentioned bundle does not form part of the record and/or the
bundles filed by Schauman
Builders, and according to its attorney
could not be found.
29.
It was submitted on behalf of Duvenhage Builders that, in the absence
of these documents and minutes, and the complete record
of what had
transpired in the relevant period, a case for review of any of the
decisions of the Department had not been made out.
The
replying papers
30.
In reply it was admitted that the tender process had consisted of two
parts; the first part being the pre-qualification phase
and the
second part being the pricing phase. It was submitted though
that the second phase formed part of the same tender
with the same
validity period of 90 days, from 28 September 2015. It was
pointed out that a two-envelope procedure was followed
and that
tenderers were
not
required “
to
submit a fully Priced Bill/Lump Sum tender document, with the tender
closing.
”
31.
Schauman Builders also admitted that the bills of quantities had to
be submitted by 3 December 2015. It was submitted
that this
date was within three weeks of the last day of the initial and only
period of validity, to wit 28 December 2015.
The date of the
final compulsory meeting was admitted to have been 10 November 2015,
and also that the bills of quantities were
handed to the qualifying
bidders at that meeting.
32.
It was conceded that certain documents had been omitted from the
record and that, according to the minutes of a meeting of the
Bid
Adjudication Committee (‘BAC’), held on 2 March 2016, the
minutes of a meeting of 12 November 2015 had been approved
at that
meeting, suggesting that a meeting had taken place on that day.
Schauman Builders contended though that the documents
not included in
the bundle were either irrelevant or could not be traced.
33.
Although Schauman Builders admitted that a two stage process had been
followed, it averred in reply that Duvenhage Builders’
“
attempts
to
create
a two stage process for purposes of the tender is to get past the
validity that expired on 28 December 2015”.
It
was submitted again that it remained one tender process, not a
further tender, and that it still had to be finalised within
the
validity period of 90 days.
34.
With reference to the report dated 22 January 2016
[9]
,
it was submitted that committees are not responsible for the bidding
process and that this was the responsibility of the Supply
Chain
Management department. Although the report specifically referred to a
closing date of 4 December 2015 and a validity period
of 90 days
(supposedly from 4 December 2015), it was maintained that the
reliance of Duvenhage Builders on two separate stages,
with a new or
extended closing date of 3 or 4 December 2015 as part of the second
stage, was misplaced and not supported by the
contents of the tender
evaluation report of 22 January 2016.
35.
It was denied that the BEC had sat on 9 October 2015 and it was
stated that it had in fact been the Technical Bid Evaluation
Committee which had sat for the “
first
gate”
that
the 11 tenderers had to pass through, probably referring to the
pre-qualification stage, in response to the Tender Notice with
the
closing date of 28 September 2015.
36.
It was alleged that the deponent, Mr Jampies, had attended the
meeting held on 10 November 2015 when the bills of quantities
were
handed to tenderers. He had requested an extension for the
filing of this until 10 December 2015, but such request was
turned
down because of the reason that this “
was
the second envelope and the first envelope completed
.”
[10]
It was further alleged in this regard that the Department had at the
meeting adopted the attitude that the awarding of the
contract had to
be finalised before the December 2015 holiday and the successful
contractor had to start with construction in January
2016, after the
builders’ vacation.
37.
It was submitted on behalf of Schauman Builders that the tender had
not been finalised by 28 December 2015, the last day of
the validity
period of 90 days, which according to Mr Jampies had to be calculated
from 28 September 2015. It was further
submitted that the
request for an extension of the validity period had been made and
acceded to after the validity period had already
lapsed, and that the
representative of Schauman Builders had never agreed to a revival of
the validity period.
The
issues
38.
As already mentioned, the only remaining challenge to the decision of
the Department is on the basis that the decision to award
the tender
to Duvenhage Builders was taken after the validity period of the
tender had expired on 28 December 2015.
39.
The issues before us are the following:
39.1
Whether the date determined for the submission of the bills of
quantities, to wit 3 December 2013 or the first day after
that
deadline, had constituted a new closing date and/or whether the
initial closing date of 28 September 2015 had been extended
to 3 or 4
December 2015;
39.2
If so, what the effect thereof would have been on the validity date;
39.3
Whether the award of the tender contract to Duvenhage Builders should
be set aside and the tender re-advertised.
The
legal position
40.
An organ of state must procure goods and services in accordance with
a framework and system which is fair, equitable, transparent,
competitive and cost effective.
[11]
A contract may only be awarded on an acceptable tender, i.e. a
tender that complies with the specifications and conditions
set out
in the tender document.
[12]
41.
It is trite that a court has the power to judicially review an
administrative action if it falls within the categories stipulated
under section 6(2) of PAJA and that the awarding of a contract in a
tender process indeed constitutes administrative action.
This
court should in such a review not however concern itself with the
merits of the decision, but only with whether the decision
was made
lawfully.
[13]
42.
If a ground for review has been established, the decision by the
decision-making authority has to be declared unlawful and the
consequences of such unlawful administrative action must thereafter
be dealt with by making a just and equitable order.
[14]
In doing so a balance must be struck between the interests of an
applicant, that of a respondent, as well as the consequences
for the
public at large.
[15]
43.
Where the validity period of a tender had lapsed before the award of
the tender, Southwood J held in
Telkom
SA Ltd v Merid Trading (Pty) Ltd and Others
:
[16]
“
As
soon as the validity period of the proposals had expired without the
applicant awarding a tender the tender process was complete
–
albeit unsuccessfully – and the applicant was no longer free to
negotiate with the respondents as if they were simply
attempting to
enter into a contract. The process was no longer transparent,
equitable or competitive. All the tenderers were entitled
to expect
the applicant to apply its own procedure and either award or not
award a tender within the validity period of the proposals.
If it
failed to award a tender within the validity period of the proposals
it received it had to offer all interested parties a
further
opportunity to tender.”
44.
Once the validity period of a tender has expired it can no longer be
extended, as the tender process had expired. There
is therefore
nothing to extend and any award subsequent to the expiry date would
be unlawful. As stated in
Joubert
Galpin Searle Inc v Road Accident Fund
[17]
,
in such circumstances the process will have been concluded, albeit
unsuccessfully. In the matters of
Telkom
SA v Merid Trading
and
Joubert
Galpin Searle Inc v RAF
supra
the c
losing
date for bids had remained unaltered
.
A
single tender process had been followed and the information that was
evaluated had remained exactly the same as it had been on
the closing
date.
[18]
45.
An employer, like the Department in this instance, may utilise a
two-stage system and such a process is recognised in the CIDB
Standard for Uniformity in Construction Procurement.
[19]
The two-stage system is frequently used in the construction
trade.
[20]
46.
An employer may also extend the closing time beyond the date
specified in the initial invitation to tender for any reason and
the
requirements of the conditions of tender will then apply equally to
the extended date, as held in
Bosch
Munitech (Pty) Ltd v Govan Mbeki Municipality
.
[21]
Evaluation
47.
This court is now required to
consider
whether the evidence established that the validity period had lapsed
before the tender was awarded, which is the alleged
irregularity and
cause of action relied upon by Schauman Builders.
48.
Schauman Builders’ application, as set out in the founding
papers, is based on the premises that a single document tender
process had been followed. It did not in founding address the
two stage process that had been followed, and elected not to
file a
supplementary affidavit. Adv. Pienaar on behalf of Duvenhage Builders
submitted that Schauman Builders thereby elected to
stand or fall by
the averments in its founding affidavit.
49.
In this regard the conditions of tender that were incorporated in the
tender data are the Standard Conditions of Tender, as
contained in
Annexure F of the CIDB Standard Uniformity in Construction
Procurement.
[22]
As set out in
the answering papers of Duvenhage Builders, clause F.1.6.3 of
Annexure F provides for the two-stage system and Option
2 thereof, as
contained in clause F.1.3.6.2, appears to have been followed in this
instance.
50.
In terms of clause F.2.15.2, under the heading “
Tenderer’s
Obligations
”,
tenderers have to accept that “
if
the employer extends the closing time stated in the tender data for
any reason, the requirement of these conditions of tender
apply
equally to the extended deadline.
”
This confirms that the extension of a closing date, as opposed to the
extension of a validity period, is technically
possible. Mr
Burger’s submission to the contrary, and his argument that an
extension of a closing date would necessitate
that the whole tender
process begin
de
novo,
is
irreconcilable with the unequivocal provision for such an extension,
on exactly the same tender conditions.
51.
There
are strong indications that the closing date had indeed in this case
been extended to 4 December 2015, when provision was
made for the
submission of the bills of quantities by 3 December 2015. If
so, the other conditions of tender would have applied
equally to the
extended deadline and would have had the effect that the validity
period was extended for a further 90 days.
52.
The submission on behalf of Duvenhage Builders that the closing date
was extended to 4 December 2015 (resulting in a further
validity
period of 90 days thereafter) is fortified by the probabilities that
emerge from the contents of several documents included
in the bundles
placed before us by Schauman Builders as the record of the
proceedings in the tender process.
52.1
As appears from the minutes of the meeting of the BEC, held on 9
October 2015, the BEC evaluated the pre-qualification
tender
documents that had to be submitted on or before the closing date of
28 September 2015. Thereafter the qualifying tenderers
were
invited to attend a compulsory meeting on 10 November 2015, and they
were there handed the bills of quantities which had to
be submitted
by 3 December 2015.
52.2
Subsequent to the determination of the deadline of 3 December 2015,
Duvenhage builders requested, in writing, an extension
of the
closing
date
of
3 December 2015 to 10 December 2015.
52.3
It appears from the financial procurement documents, referred to
above, that they contained no further reference to the
‘pre-qualification’ stage, but rather that the tenderers
were in them requested to submit “Procurement Documents
for ….”
52.4
In the report of 22 January 2016
[23]
,
as already mentioned, reference is made to a closing date of 4
December 2015 and a validity period of 90 days. The mention of
a
validity period of 90 days could obviously not have been intended as
a reference to the initial validity period of 90 days from
28
September 2015, because that period would long since have expired.
The inescapable conclusion is that a new 90 day period
was intended,
from 4 December 2015. The validity period of the tender would
then have lapsed on 4 March 2016.
52.5
On 28 January 2016 the Department requested written permission for
the extension of the validity period from 9 February
2016 to 31 March
2016. Both Schauman Builders and Duvenhage Builders agreed to
such an extension and the tender was awarded
before 31 March 2016.
It is not clear though from the record of proceedings and/or
the papers why reference was at that stage
made to a validity expiry
date of 9 February 2015.
52.6
The minutes of the BEC meeting held on 29 February 2016
[24]
relate to the evaluation of the financial submissions and are
consistent with the second stage of the tender process.
53.
Mr Burger referred us to page 39 of the Supply Chain Management Guide
for Accounting Officers/Authorities. It provides
that bidders
should be required to submit bids valid for a period specified in the
bidding documents. It further states that
the period should be
sufficient to enable the institution to complete the comparison and
evaluation of bids, review and award the
contract. In
this instance it was improbable, if not impossible, that the bills of
quantities in respect of a contract
of this nature, with a value in
excess of R60 million rand, could and would have been evaluated and
the tender contract awarded
between 3 December 2015 and the start of
the December holidays in 2015, in order for work to commence in
January 2016, after the
builders’ holidays.
54.
From the abovementioned minutes of the meeting of the BAC, held on 2
March 2016
[25]
, it appears (as
pointed out in reply) that the committee had approved minutes of a
meeting held on 12 November 2016. This
does not correspond with
the Department’s response to the Rule 35(3) notice. We do
not know whether these minutes could
have shed light on the date of 4
December 2015, later stated as being the closing date. These
minutes are also obviously
not included in the record, although
Schauman Builders had in this case and through their Rule 35(3)
notice clearly attempted to
place the minutes before the court.
55.
Minutes of meetings held during the period between 9 October 2015 and
4 December 2015 would in all probability have shown that
the first
stage of the tender had been evaluated and finalised during the
initial validity period and could have shed light on
the
determination of the time period within which the second stage had to
be concluded.
56.
The minutes of the meeting of 10 November 2015 are specifically
relevant for the adjudication of the issues in this matter.
This was conceded by Mr Burger.
56.1
It would have been during this meeting that Duvenhage Builders was
brought under the impression that the closing date for the
tender was
then 3 December 2015, hence they applied for an extension of that
“closing date”. Mr Baily, the project
manager of
the Department and author of the report of 22 January 2016, was
apparently also under the impression that the new closing
date was 4
December 2015 and the validity period a further 90 days, and so too
it appears the members of the BAC that had attended
the meeting on 2
March 2016.
[26]
56.2
We have already made reference to the allegation of Mr Jampies that
it was at the meeting of 10 November 2015 that they were
informed
that the tender had to be awarded before the Christmas holiday and
that work had to commence in January 2016, after the
builders’
vacation. This could arguably have been an indication of an
intention that expiry date of the validity period
was at that stage
still regarded as 28 December 2015.
57.
The problem is, however, the missing documentation. Despite the
obvious importance of the meeting of 10 November 2015, the minutes
of
that meeting do not form part of the record. There is no
indication that specific steps were taken by Schauman Builders
to
make further enquiries about these minutes or to seek discovery
thereof. In fact, it appears that the bundles that were
placed
before us by Schauman Builders do not include all of the documents
made available by the Department as the record of proceedings,
and
there is no evidence that these minutes and other information
pertaining to the period from 9 October 2015 to 3 December 2015
are
not part of the documents that do form part of the submitted record
of proceedings, but which were not included in the bundle
which
Schauman Builders chose to place before us.
58.
The probabilities favour the version of Duvenhage Builders that the
closing date and validity period of the tender were extended
to make
provision for the submission and evaluation of the bills of
quantities and the subsequent award of the contract.
It is also
borne out by the objective facts pertaining to the evaluation of the
tenders and the awarding of the contract during
the period January,
February and March 2016, as referred to above. If
this was so, the tender had not been unlawfully
awarded to Duvenhage
Builders.
59.
At the very best though Schauman Builders has in our view on the
papers, and in the conspicuous absence of the documentation
already
referred to, without any explanation on oath in this regard, failed
to make out a case that the validity period had
expired before
9 February 2016 or at any time before the contract was awarded.
60.
It may be argued that a validity expiry date of 9 February 2016, as
inter
alia
mentioned
in the Department’s 28 January 2016 request for an extension of
the validity period to 31 March 2016, would be difficult
to reconcile
with the validity period having already been automatically extended
with 90 days from a new or extended closing date
of 4 December 2015
(which would have resulted in an expiry date of 4 March 2016).
61.
On the other hand an expiry date of 9 February 2016 would most
certainly also be completely irreconcilable with the case of
Schauman
Builders that the validity period had expired on 28 December 2015.
There is no satisfactory explanation for this
in any of the
affidavits of Mr Jampies. The fact that the deponent for the
Department had in his affidavit in the interdict
application claimed
not to have knowledge of the events between 28 December 2015 and 28
January 2016 would not assist Schauman
Builders. Mr Jampies has
not made a similar claim and must therefore be assumed to have
knowledge of everything that transpired
in that period. It is
therefore strange that he would not be able to offer an explanation
for the date of 9 February 2016,
which incidentally also appears in
an internal memo of the Acquisition Management Unit of the
Department, dated 28 September 2015.
[27]
62.
Mr Jampies has also not claimed that the portion of the available
documentation that Schauman Builders chose not to place before
this
court would not have revealed an explanation in this regard.
63.
The documentation placed before us by Schauman Builders consisted of
18 bundles. It is noteworthy that in respect of the
minutes and
reports of the Department the first thereof is dated 9 October
2015
[28]
, while the next are
dated 22 January 2016
[29]
, 29
February 2016
[30]
and 2 March
2016
[31]
respectively. The
period between 9 October 2015 and 22 January 2016 is exactly the
period that calls for explanations regarding
the reference to a
closing date of 4 December 2016 and the earlier references to an
expiry date of 9 February 2016.
64.
Then there is also the fact that Mr Jampies had on 28 January 2016
agreed to an extension of the validity period. This
was a month
after 28 December 2015, the date on which Mr Jampies now claims the
validity period to have expired. He does
not claim not to have
been aware, at that stage, of the fact that an expired validity
period could not be extended. He must
therefore be assumed to
have been aware of this. Why would he then have agreed to an
extension of the validity period on
28 January 2016? One
possible explanation would be that Mr Jampies had at that stage been
satisfied that the validity period
had not yet expired and, if so,
the question would be what had led Mr Jampies to that belief.
The only other possible explanation
would be that that Mr Jampies
believed the expiry period to have expired and that he had been under
the impression that it could
nevertheless be extended, but this is
not Mr Jampies’s case.
65.
It follows that the application stands to be dismissed, if not on the
basis of a positive finding that the closing date had
been extended
within a valid period, then on the basis that Schauman Builders has
failed to rebut the not at all untenable version
of Duvenhage
Builders in this regard. It is trite that where in motion
proceedings disputes of fact arise, a final order
can only be granted
if the facts averred in an applicant’s affidavits, which have
been admitted by the respondent, together
with the facts alleged by
the respondent, justify such order.
[32]
Costs
66.
The costs in respect of the interim interdict were, as already
mentioned, reserved to be adjudicated at this stage. Costs
were
in that application not sought against Duvenhage Builders, unless it
opposed the application. It was only the Department
that
opposed the interim application. Although Schauman Builders was
successful in those proceedings, it will not be substantially
successful in the review application. We therefore deem it just that
Schauman Builders and the Department each pay their own costs
in
respect of the interdict application.
67.
In respect of the review proceedings there is no reason why costs
should not follow the result and there is no reason why Schauman
Builders should not be ordered to pay the costs of Duvenhage
Builders.
68.
Whether the Department had incurred costs before eclecting to abide
and to withdraw its opposition of the review application
is unknown,
but that is for it to pursue.
Wherefore
we make the following order:
1.
The application for review is dismissed with costs.
2.
In respect of the urgent application for the interim interdict issued
on 29 April 2016, the applicant and the first respondent
will each
pay its own costs.
__________________
__________________
CJ
OLIVIER
SL
ERASMUS
JUDGE ACTING
JUDGE
For
the Applicant:
Adv
AJ Burger SC oio Van de Wall & Partners
For
the Respondent:
Adv
CD Pienaar oio Engelsman Magabane Inc
[1]
Bundle 16: P 1530 - 1536
[2]
Vol
1: P 37
- Annexure B4; P 102 – Annexure
G
[3]
Vol
1: P 49
– Annexure B9
[4]
Bundle 16 p 1512
[5]
Vol 1: P 40 – Annexure B4
[6]
Bundle 3: P 212
[7]
as per Government Notice No. 751
Published in Government Gazette No. 27831 of 22 July 2005, as
amended
[8]
Bundle 16: P 1548
[9]
Bundle 16: P 1529 - 1530
[10]
Vol 2: P 115 Para 16.3
[11]
Section 172 of the Constitution of the Republic
of South Africa; Preferential Procurement Policy Framework
Act, No. 5 of
2000 (‘PPPFA’);
Public
Finance Management Act, No. 1 of 1999
; Regulation 16A3.1 and
16A3.2(a) of the Treasury Regulations
[12]
Section 1, read with section 5 of the PPPFA and
the Preferential Procurement Regulations issued in terms thereof,
R502, published
in Government Gazette R4350 of 8 June 2011
[13]
Cape Town City v South African National Roads
Agency 2015(6) SA 535 (WCC) para [214]
[14]
Section 172(1)(a) and (b) of the Constitution,
read with provisions of section 8(1) of PAJA; See also Allpay
Consolidated
Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of SASSA and Others 2014(1) SA 604 (CC) para [25]
–
[29]
[15]
Moseme Road Construction CC v King Civil
Engineering Contractors (Pty) Ltd and Another 2010(4) SA 539 (SCA)
para [19]
[16]
2011
JDR 0004 (GNP)
[17]
2014(4) SA 148 (ECP) at 167D – 168C
[18]
Joubert Galpin Searle
supra
para [64] and [67]
[19]
Government Notice 751, published in Government
Gazette 27831 of 22 July 2005
[20]
Trencon Construction (Pty) Ltd v Industrial
Development Corporation of South Africa Ltd 2015(5) SA 245 (CC) para
[4] – [10]
[21]
[2015] 4 All SA 674
(GP) paras [3]-[5] and [30]
[22]
Bundle 3: P 212
[23]
Bundle
16: P 1530
- 1536
[24]
Bundle 16: P 1508
[25]
Bundle 16: P 1512
[26]
Bundle 16: P 1512; 1527; 1530; 1532
[27]
Bundle 9: P 882
[28]
Bundle 16: P 1548
[29]
Bundle 16: P 1530
[30]
Bundle 16: P 1508
[31]
Bundel 16: P 1512
[32]
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd 1984(3) SA 623 (A) at 634E-365C; Staatsdiensliga van
Suid-Afrika v Minister
van Waterwese 1990(2) SA 440 AT 443G