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[2016] ZAGPPHC 174
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Tourvest Holdings (Pty) Ltd v Airports Company South Africa SOC Ltd and Others (8654/2014) [2016] ZAGPPHC 174 (4 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: 8654/2014
DATE:
4/3/2016
In
the matter between:
TOURVEST
HOLDINGS (PTY)
LTDQ Applicant
And
THE
AIRPORTS COMPANY SOUTH AFRICA
SOC
LTD 1
st
Respondent
NOMANINI
CRAFTS 2
nd
Respondent
THEBE
TOURISM GROUP
3
rd
Respondent
THE
TRUSTEES FOR THE TIME
BEING
OF THE SIVA ZISIZA
TRUST 4
th
Respondent
JUDGMENT
TOKOTA
AJ
[1]
The first respondent is the Airports Company South Africa Soc Ltd,
(ACSA) a State owned company and as such an organ of State.
From time
to time it invites tenders for the lease of space at the OR Tambo
International Airport from various service providers.
As an organ of
State it is obliged to procure goods and services in accordance with
a system which is fair, equitable, transparent,
competitive and
cost-effective.
[2]
The applicant has been conducting businesses of retail stores at the
OR Tambo International Airport since March 2000 having
been awarded a
tender by ACSA. It had initially occupied the space in terms of
written lease agreements concluded with ACSA. The
lease agreements
had been expiring from time to time by efluxion of time. After the
lease agreements had come to an end the applicant
had, by agreement,
continued to occupy the space and paid rentals to ACSA on a monthly
basis pending the finalisation of valid
proper procurement processes.
[3]
In 2013 ACSA invited a Request for Bids in terms of Bid No.ORT011/13
for arts and curio retail stores in the Departures Airside
Terminal
at the Airport.
[4]
Bidders were invited to submit their bids for the conclusion of a
five year lease agreement in respect of three opportunities,
namely:
4.1
Opportunity 1, pertaining to Shop DF02 which was occupied by
the
applicant under a previous lease agreement trading as Out of Africa
Megastore;
4.2
Opportunity 2, being Shop DF20 trading as Sneakers Sports Apparel;
and
4.3
Opportunity 3, Shops BS02, IPR04, and DFE04, then and there trading
as Tourvest's Out of Africa Impulse, Out of Africa Kiosk, and lndaba
Origins stores respectively;
[5]
Four bids were received. These were from the applicant, Thebe Tourism
Group, Nomanini Crafts, and Siyazisiza Trust.
[6]
The applicant was suspected of having colluded with Siyazisiza Trust,
one of the tenderers, in respect of opportunity 3. They
were then
invited to make representations explaining the alleged collusion.
ACSA was not satisfied with the explanation. It then
disqualified the
applicant in respect of all opportunities. It was therefore
effectively excluded from the process.
[7]
On 28 November 2013 ACSA awarded the tender for opportunities 1 and 2
to Nomanini Crafts and opportunity 3 was awarded to Thebe
Tourism
Group.
[8]
On 5 December 2013 the applicant received a communication from ACSA
notifying it that it's tender has been unsuccessful.
[9]
On 3 February 2014 the applicant launched review proceedings seeking
an order reviewing and setting aside the decision to disqualify
it in
respect of all the opportunities. Further it sought an order
declaring it to be the winner of the bid.
[10]
On 17 February 2014 the applicant brought an application, on an
urgent basis, to this Court for an interim interdict restraining
and
interdicting ACSA from interfering with or disturbing its possession
and occupation of premises which it leased from ACSA at
the OR Tambe
International Airport where it is carrying out its businesses as
aforestated. Furthermore it sought an interim interdict,
pending the
review of the decision of ACSA to award a tender to the second
respondent.
[11]
On 22 April 2014 Tuchten J granted the application for an interim
interdict.
[12]
After an exchange of some correspondence between the parties the
record of the proceedings was delivered in terms of Rule 53.
The
applicant was not satisfied that it was a complete record. It
requested further documents to be delivered. ACSA claimed that
the
documents sought were privileged and therefore the applicant was not
entitled to demand delivery thereof.
[13]
This is now an interlocutory application in terms whereof the
applicant seeks an order compelling ACSA to deliver those documents:
[14]
At the hearing of this matter these documents were confined to the
following:
(a)
documents that were given to ACSA's in-house legal adviser for
purposes of providing an opinion as well as a copy of the opinion
relating to the disqualification of the applicant;
(b)
Copies of all documents which were given to ACSA's attorneys,
Mkhabela, Huntley, Adekeye attorneys as well as those that were
given
to Counsel briefed by Mkhabela attorneys seeking an opinion in this
regard including copies of the respective opinions;
(c)
Audio recordings of the deliberations of the Board Meeting of ACSA
Board on 28 November 2013.
[15]
As I understood the argument on behalf of the applicant the opinions
sought will enable the applicant to determine,
inter alia,
whether
the decision to disqualify it was as a result of an error of law or
was arbitrary or capricious.
[16]
The application is opposed by the ACSA primarily on the basis that
the opinions and audio recordings sought are irrelevant
and
privileged information.
[17]
There were certain preliminary points that were taken on behalf of
ACSA relating to the alleged defective application and other
issues
which it was claimed have prejudiced ACSA. In this regard I have
decided, without deciding whether or not the points are
bad or good,
to follow the approach of
Trans-Africa Insurance
Co
Ltd
v
Maluleka
1956
(2) SA
273
(A)
where it was stated:
"No
doubt parties
and
their legal advisers should not
be encouraged to
become slack
in
the observance of
the
Rules, which
are an
important element in
the machinery
for
the
administration
of justice.
But
on
the
other
hand technical objections to
less than
perfect procedural steps should not be permitted, in the
absence of
prejudice, to
interfere with
the expeditious and,
if
possible,
inexpensive
decision
of
cases
on
their
real
merits."
[18]
The refusal to discover the documents required is based solely on the
grounds thereof that they are privileged documents. With
regard to
the audio recordings it is further contended that these are used for
the transcription of the minutes of the meetings.
[19]
Mr Berger SC who, together with Mr Sibanda, appeared for ACSA
submitted that the opinions sought are not only privileged but
are
also irrelevant for the determination of the review. The review is
directed at the legality of the disqualification of the
applicant.
The record filed consists of all the information that led to that
decision. The review Court will have to decide on
the basis thereof,
not on the basis of opinions of the legal advisers of ACSA. With
regard to the audio deliberations he argued
that these are also
irrelevant and to discover those recordings would hamper the freedom
of the members of the Board to express
freely their views in the
future conduct of adjudication process. He argued that once the facts
relating to a full explanation
about the alleged collusion are before
Court the Court will be able to formulate its own opinion. The
question of collusion is
a legal question which must be decided by
Court.
[20]
The nub of the argument of Mr Maritz SC, who appeared for the
applicant, is that the privilege claimed cannot stand in the
face of
the current Constitutional provisions relating to procurement of
goods and services by an organ of State. ACSA, as an organ
of State,
is expected to act in manner which is fair and transparent. The
information which was sent to the in-house legal adviser,
to Mkhabela
attorneys and to Counsel for them to be able to give opinions is
necessary. This is so because the opinion was based
on that
information. The opinions are necessary because if the advice was
against the disqualification but ACSA nonetheless went
ahead and
disqualified the applicant then it acted arbitrarily and capriciously
in disqualifying the applicant. If the advice was
in favour of
disqualification then ACSA committed an error of law. He conceded,
however, that there is no absolute right to privileged
information.
In the written heads of argument it is contended that at best for
ACSA only those parts of the audio recording which
disclosed what
advice was given, would be privileged.
[21]
Mr
Maritz
further
conceded
that the
disclosure
of
the
audio
deliberations
i
s
secondary.
He argued,
however,
that the
audio deliberations
will
give
an
indication
of
how
ACSA
came
to
the
conclusion
to disqual
i
fy
the applicant.
He was,
however,
constrained to concede that if an
order
i
s
made
for
the del
i
very
of
the
information relating
to
the
opinions, audio recordings are not necessary.
I
debated
with him the
difference
between
the
deliberations
of
the
Judicial
Service
Commission
(JSC) and
those of ACSA.
If I
understood
him well, he contended that
the
decisions
of
the
JSC
relating
to
any
aspect
regarding
the
nomination,
selection
or
appointment
of
a judicial
officer
or
any
other
person,
i
n
terms of any law are excluded from jud
i
cial
review as an administrative
action. In
terms of
the Promotion of Adm
i
nistrative
Justice Act No. 3 of
2000 (PAJA)
this contention
is correct.
However,
I pointed
out to him
that some
of the decisions of the JSC have been subjected to jud
i
cial
scrutiny as
administrative actions.
[1]
Since
this point is peripheral I
need
not deal
with it. Suffice it to say that some of the decisions of the JSC
may
well
constitute
administrative
actions
and
therefore
fall
to
be
reviewed
under PAJA.
[22]
It is contended that the decision to disqualify the applicant in
respect of the three bids was informed by and based on one
or more of
the legal opinions obtained. Therefore if any of the legal opinions
was wrong, then the decision was based on an error
of law and would
be reviewable under PAJA.
[23]
The object of review proceedings in terms of Rule 53 is to enable an
aggrieved party to get quick relief where the rights or
interests are
prejudiced by wrongful administrative action. The
furnishing of a complete record of the proceedings
is therefore an
important element in the review proceedings: see
Jockey
Club
of
South
Africa
v
Forbes
1
993 (1)
SA
649
(A) at
A 6600--1; S
v Baleka and
Others
1
986 (
1
) SA 361 (T)
at
3971--398A.
The applicant should not be deprived of the
benefit of this procedural right unless there is clear justification
therefor: see
Crown
Cork
&
Seal
Co
I
nc
and
Another
v
Rheem
South
Africa (Pty) Ltd and Others
1
980 (3) SA
1
093
(W) at
1
095F--
H
.
B.
[24]
I did not understand Mr Maritz to be contending that the opinions and
audio recordings are not covered by the rule of privilege.
It is
settled law that an opinion given by a lawyer in his or her
professional capacity is confidential and privileged.
[25]
In
Th
i
nt (Pty)
Ltd v
National
Director
of
Publ
i
c
Prosecutions;
Zuma
v National
Director
of Public
Prosecutions
2009
(1)
SA
1(CC)
para 184 Langa CJ
stated the position of privilege thus:
"[184]
The right to legal professional privilege is a general rule of our
common law which states that communications between
a legal advisor
and his or her client are protected from disclosure, provided that
certain requirements are met. The rationale
of this right has changed
over time. It is now generally accepted that these communications
should be protected in order to facilitate
the proper functioning of
an adversarial system of justice, because it encourages full and
frank disclosure between advisors
and clients.
This, in tum, promotes fairness in
litigation.
In the context of criminal proceedings,
moreover,
the right to have
privileged
communications with
a
lawyer protected is necessary to
uphold the right to
a
fair trial in terms of s 35 of the
Constitution, and for that
reason it
is
to
be
taken very
seriously
indeed." (Footnotes
omitted).
[185]
Accordingly, privileged materials may not
be admitted
as evidence without consent. Nor may they be seized under
a
search warrant. They need
not
be
disclosed
during
the
discovery
process.
The
person in
whom the right vests may not be obliged to testify
about the content of the privileged material. It should,
however, be emphasised
that the
common-law right to legal
professional privilege must be claimed by the right-holder or by the
right-holder's legal representative.
The
right
is not absolute;
it
may,
depending
upon
the facts of
a
specific case, be
outweighed
by countervailing
considerations."
[26]
In
Jeeva
v
Receiver
of
Revenue,
PE
1995
(2)
SA
433
(SE)
Jones J
stated:
"The law
relating
to privilege
unquestionably
limits
a
person's constitutional right of access to State-held
information. It
is
part of the common law
of evidence and hence
a
Jaw of general application; and
the
limits
it
places
on
the
right
of
access
to
information
do
not negate the essential nature of the
right
(Phato v
Attorney-General, Eastern
Cape,
and Another
(supra at
67);
S
v
Majavu
1994 (4) SA 268
(Ck)
at 316F
and
317C;
Khala
v Minister
of
Safety
and
Security
1994 (4)
SA
218
(W)
at
227E-228C).
Are
those
limits
reasonable?
And
are they
justifiable
in an open
and
democratic
society
based
upon
freedom and equality?
The
answers to
these questions will
depend on considerations of
principle
which
are
of
general application, and on considerations
which
are
peculiar
to the case in hand. Among
the general
considerations
will
be, inter alia,
the nature
of
the
privilege,
the purpose
and
the
function
it
fulfils
in
the
administration of justice,
the
reasons
which
justify
its
existence, and
the extent of
the limits it
places
upon the right of access to information.
There will, in addition, frequently be
special
reasons arising out
of
the
facts
and circumstances of
a
particular case which could operate either for or against upholding
the limitation of the privilege."
He
concluded that the limitation of legal professional privilege upon
the applicants' right of access to information in terms of
s 23 of
the Constitution is reasonable and justifiable in an open and
democratic state.
[27]
In this case I must balance the right to information held by the
State and the right to claim privilege of confidential information
by
ACSA. The crucial question is whether refusal or failure to disclose
the information sought will hamper the applicant from exercising
its
right to review the decision of ACSA. I think not.
[28]
First, the deliberations consist mainly of the views of the members
of the Board and debates as to whether or not the applicant
should be
disqualified. Such debates are not necessarily decisive of the
matter. To my mind the debates preceding the final. decision
are
irrelevant. In
Johannesburg City
Council
v
The
Administrator, Transvaal,
and
Another (1)
1970 (2) SA 89
(T):
dictum at 91G--92C
'A
record of proceedings
is analogous to the
record of proceedings in
a
court
of
law
which
quite
clearly
does
not
include
a
record
of
the deliberations subsequent
to the receiving of the evidence and preceding the
announcement
of the court's decision.
Thus
the deliberations
of the Executive
Committee
are
as
little part
of
the
record
of proceedings
as
the
private deliberations of th
e
jury
or of
the court in
a
case before it.'
[29]
In
MEC
for
Roads and
Public
Works,
Eastern Cape and Another v lntertrade Two (Pty)
Ltd 2006(5) SA 1 (SCA)
para.15,
the SCA referred to
the above quotation apparently with approval where it stated,
referring to Johannesburg City Council v The Administrator,
Transvaal
and Another,
"(s)ome of
the
documents
sought
by
lntertrade may
not be obtainable
by means
of
either Rule 53 or
35."
[30]
In
Helen Suzman
Foundation v Judicial
Service
Commission
2015 (2) SA 498
(WCC)
Le Grange J stated
that the JSC's deliberations are no different to those of a
magistra,te or those of a judge as reflected in his
or her court
book, or deliberations which do not form part of the record of
proceedings on appeal or review. He accordingly held
that the
non-disclosure thereof cannot taint the entire review proceedings.
[31]
In my view the weight of authorities seem to favour the retention of
common law rule that communication between lawyers in
their
professional capacities with their clients is privileged and this
privilege can only be unveiled if special circumstances
exist to
justify doing so. In my view no special circumstances have been shown
to exist in this case. Failure to discover the opinions
and the
deliberations will not hamper the applicant from exercising its right
of review. I agree with Mr Berger that the opinions
and audio
recordings of the deliberations of the Board are irrelevant for the
determination of the review by the Court.
[32]
The position of an in-house legal adviser may arguably be viewed on a
different footing. However, although he is part of the
organisation
his opinion is merely given with a view to assist the decision maker.
The decision maker must still consider the facts.
In my view
rationality can only be based on the facts placed before the decision
maker and not on the opinion. Therefore the opinion
of the legal
adviser is also irrelevant.
[33]
I
t
has not
been pointed out to
me during
argument
that the documents
that were
filed as
record
of the
proceedings
did not
include
the
documents that were furnished to the attorneys to give advice.
In my
opinion
those documents should
form part
of the record.
I
did not
peruse
the
record
filed
but
Mr
Berger
gave
me the
impression
that
full
explanation by both
the
applicant
and
Siyazisiza
Trust
form
part
of
record.
I
f
this
i
s
the
case
the
Court
can formulate
its own
opinion
as to
whether the
disqualification
was
irregular
or not.
I
t
will be
irrelevant
whether or not
the
decision of ACSA was r
i
ght
or wrong
.
[2]
Judicial review is,
in
essence,
concerned
with
the
decision-making
process.
I
t
i
s
not
directed at correcting a decision
on the
mer
i
ts.
Upon review
the court
i
s
in general terms
concerned
with the
l
egal
i
ty
of the decision,
not with
i
ts
merits.
[34]
Accordingly I am of the view that the application cannot succeed. Mr
Berger submitted that if the application fails I should
make an order
of costs against the applicant. If the application succeeds I should
make no order as to costs. I do not agree. The
general rule is that
costs should follow the event. However in this case if it turns out
in the review that the documents that
were accompanying the requests
for opinion have not been discovered then the applicant would be
entitled to those documents to
be discovered. I am therefore of the
view that costs should be determined at the end of the case.
[35]
In the result I make the following order:
(a)1.
The interlocutory application is dismissed.
2.
The question of costs of this application is to be determined at the
end of the review case.
TOKOTA
AJ
ACTING
JUDGE OF THE HIGH COURT
DATE
OF HEARING: 1 FEBRUARY 2016
DATE
OF JUDGMENT:
Applicant's
Legal Representatives
N G D Maritz
SC
Instructed
by
Mac Robert Inc.
First
respondent's Legal Representatives: Daniels Berger
SC
M Sibanda
Instructed
by
Mkabela, Huntley Adekeye Inc.
[1]
See
Freedom
Under
Law
v
Acting
Chairperson:
Judicial
Service
Commission
2011
(3)
SA
549
(SCA);
Acting
Chairperson:
Judicial
Service
Commission
v
Premier
of
the
WC
Prov
2011
(3)
SA
538
(SCA)
[2]
See
Liberty
Life
Association
of
Africa
Ltd
v
Kachelhoffer
No
and
Others
2005
(3)
SA
69
(C)
para
79;
Malema
v
Chairman,
NCOP
20
1
5
(4)
SA
1
4S
(WCC) para
49