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[2016] ZAGPPHC 421
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Esor Construction v Leepe Northen Water and Others (36110.2016) [2016] ZAGPPHC 421 (6 June 2016)
IN THE HIGH COURT OF SOUTH AFRICA (GAUTENGDIVISION,
PRETORIA)
Case
Number:
3
6110/
201
DATE: 6 JUNE 2016
In the
matter
between:
ESOR CONSTRUCTION (PTY) LTD
APPLICANT
And
LEPELLE NORTHERN WATER 1st
RESPONDENT
DEPARTMENT OF WATER AND SANITATION
2
nd
RESPONDENT
VHARANANI PROPERTIES (PTY)
LTD
3
rd
RESPONDENT
JUDGMENT
Fabrlcius J,
1
Applicant
seeks
an
order, pending the final adjudication of a review application to be
launched within 20 days, interdicting the Respondents from
implementing a tender relating to the supply of water from one day to
another in the Mopani District.
2Applicant
also seeks
copies of
various documents mainly relating to the tender of Third Respondent,
which was the successful tenderer.
3.
The
application, heard in the urgent Court on 1 June 2016,was opposed on
a
number of grounds, and very helpful Heads of Argument were
presented to me for which I thank Counsel.
4.
The
question of urgency loomed large and it was also contended that the
requirements for an interim interdict were not present.
In this
context I must refer to my judgment in
Afrisake and Others vs
City
of
Tshwane and Others,
delivered on 14 March 2014,
under case number 7419 2 /13.This judgment was followed with approval
by my brother Tuchten
J,
in
KGP
Media
Investments (Ply} Ltd vs Passenger Rail Agency of South
Africa
under
case
number 23826 /16, dated 18 April 2016, and in
Helen
Suzman Foundation vs Minister of Police
under case number
23199 /15, dated 18 April 2016.
5.It is clear that Applicant must at
the very least establish a right to which, if not protected by an
interdict, irreparable harm
would ensue. I must add, that Applicant
must show that such right needs to be protected urgently, if an
application is brought
in the urgent Court. The third requisite,
namely the balance of convenience is closely related to the question
of irreparable harm
and is often decisive. Even when all the
requirements for an interim interdict are present, a Court retains a
discretion whether
or not to grant an order which must be exercised
judicially having regard to all the facts of the matter considered
holistically.
6.
Applicant
argued that the prima facie right relied upon was that First
Respondent was obliged to
seek
clarification relating to any
ambiguities or uncertainties pertaining to Applicant's actual tender,
and that this exercise would
have contributed to a system such as
envisaged by the provisions of s. 217 (1) of the Constitution.
Further, a disturbing factor
was that the award of the tender to the
Third Respondent
resulted in a higher price of some R
170 million. It appears however from the Bid Evaluation report dated
14 December 2015 that
there were five other bids whose tender price
was less than that of Applicant.As to the right relied upon I was
referred to:
Metro
Projects CC v
Klerksdorp Local
Municipality
2004
(1) SA 16
SCA at
par.
13
–
14.
It is clear from the relevant dicta however, that the actual
right referred to, is the right to a fair process. A corollary of
that
right may
be
a
process of clarification if there is some unclarity in the actual
tender, but this would always depend on the context in each
given
case. In my view it is conceptually wrong to assert that one has a
right to a clarification process without qualification.
7. I may add that Applicant's cause of
action herein is not based on any fraud,corruption or procedural
defect in the process followed.
8. I do not intend to deal with all
defences raised by the Respondents herein. Those are for a review
Court to decide.
9. The question that now needs to be
decided is whether this right must be protected
now by way of an urgent order, failing
which, irreparable harm will result in the
future.
10.
A brief history of the matter is therefore necessary and this
history is in my view also
a relevant consideration in the context
of the question of the balance of convenience, although Applicant's
Counsel did not agree.
11.
11.1 The relevant
tender was awarded to the Third Respondent on 8 January 2016.
Applicant says it
became aware thereof on 2 February 2016.
11.2 On 3 February 2016 it wrote a
letter of objection also calling for information and demanding a
response by 5 February 2016,
failing which an interdict would be
sought to stop the execution of the project. It is clear that
Applicant contemplated an
urgent application with or without the
documents sought. It is also clear that apart from the Evaluation
Report, none of the
documents sought then, formed the basis of the
present application, which is dated 29 April 2016.
11.3 On 5 February 2016 (per "E9"),
First Respondent replied and gave the reasons why the tender was
not successful,
and was in fact disqualified, because certain
specific requirements had not been fulfilled or complied with. It
is common cause
herein (except the compliance with the CID8
practice point), that the specified items were in fact not complied
with, but Applicant's
view was that these deviations were minimal
and/or ought to have been the subject-matter of a clarification
process.
11.4 On 8 February 2016, Applicant
replied to this letter and referred to, and explained,the
deviations, after having stated
the following in the introductory
paragraph: "We hereby notify you of our intention to dispute
and appeal the Municipality's
decision to disqualify Esor from the
Construction from the tender process (sic). It is our opinion that
Lepelle Northern Water
have erroneously disqualified Esor
Construction...".At the end of this letter a commitment in
writing, within two days,
was sought that no construction
activities would continue before a resolution of the dispute. I
must add at this stage that
the intended internal appeal was not
proceeded with. It is also not clear to me on which basis in law an
erroneous disqualification
can without further ado form the
subject-matter of a review application.
11.5 On 29 February 2016 a letter of
demand was written notifying First Respondent that Applicant's
Attorney had been instructed
to seek an urgent interdict, mainly
because the Third Respondent "is continuing his preparations
and establishment of
the works".The existence of the harm
alleged now existed then, but no application followed.
11.6 On 3 March 2016, First
Respondent refused to accede to Applicant's demand that
construction cease. It was also said that
an approach to the Court
at that stage was not justified as the urgency was self-created.
11.7
On 8 March 2016, Applicant's Attorney wrote again that an
urgent application would follow. First Respondent was
afforded
until 10 March 2016 to confirm that all work would cease.
At that stage, reliance was placed on the judgment of the Supreme
Court
of Appeal referred to below, which dealt with fraud and
corruption in a previous tender, although this had not been the
subject-matter
of Applicant's objection to the award of the tender.
It was stated that if no undertaking was given
"we will immediately proceed with
the application . Again, reference was made to "ongoing
criminal or corrupt activity''.
11.8 On 11 March 2016, Respondent's
Attorney refused to accede to this demand and advised t hat they
would accept service of an
application.
11.9 On 6 April 2016, Applicant wrote
again stating that It would follow all necessary procedures for
requesting information.
11.10 On 8 April 2016 Applicant's
Attorney wrote again stating that their client, the Applicant,was
intent on launching an urgent
application and that the documents
sought were critical. It appears that this is not so. To the
contrary, with the exception of
the Evaluation Report, none of the
"critical" documents were the subject-matter of the
Founding Affidavit.
11.11 On 12 April 2016, First
Respondent's Attorney wrote and stated that any urgent application
would be opposed and that urgency
was self-created.
11.12 On 21 April 2016, Applicant's
Attorney again threatened an immediate urgent application. This was
only launched on 29 April
2016.
12. It is my view that Applicant could
have launched a review application calling for documents, amongst
others in terms of the
Rules of Court in February 2016. On its own
version, it was also ready to launch an urgent application by then,
even without the
so-called critical documents. The threatened
internal appeal also did not materialize.
13.
In the meantime, First Respondent has been in possession of
the site since 28 January 2016. Third Respondent's Contract Manager
made an affidavit stating that offices, toilets, septic tanks,
electricity facilities, generators, storage facilities,bore-holes
and
access roads have all been established. By 16 May 2016, Third
Respondent had done about 500 000 cubic metres of excavation,
had
surveyed
the pipe-line and had procured about
70km of pipe at a cost of about R 188 million.
Personnel have been employed.
14. I do take into account that the
whole project will take 24 months to complete. I do not however agree
with Applicant's Counsel,
who submitted in this context, that for
those reasons the needs of the community played no significant role.
Having regard to the
whole history of the matter, which is set out in
great detail in
Esorfranki
Pipelines
(Pty)\
Ltd and Another v Mopani District Municipality and Other
ZASCA21 (28/03/2014),
the
interest of the particular community that requires the supply of
water, remains a relevant consideration, both in the context
of
self-created urgency and the balance of convenience, which does not
favour the Applicant at this stage at all. This Court has
consistently refused urgent applications in cases when the urgency
relied-upon was clearly self-created. Consistency is important
in
this context as it informs the public and legal practitioners that
Rules of Court and Practice Directives can only be ignored
at
a
litigant's peril. Legal certainty is one of the
cornerstones of a legal system based on the Rule of Law. There is no
adequate or
satisfactory explanation before me why the urgent
application was not launched in February 2016, or the appeal. On the
objective
facts
emanating
from the mentioned correspondence and Founding Affidavit and its
annexures, there is no merit in the assertion that all
relevant
documents were furnished to Applicant late April only, and that such
was "critical" or even necessary.
The
appropriate order is that the application be struck off the Roll with
costs,including costs of two Counsel where employed, and
this Is so
ordered. I
may also add that I find that the balance of
convenience does not favour the
Applicant in any event.
JUDGE H.J FABRICIUS
JUDGE OF THE GAUTENG HIGH COURT,
PRETORIA DIVISION
Case number: 36110/16
Counsel for the Applicant: Adv K. W.
Liideritz, SCAdv C. Woodrow
Instructed by: Thomson Wilks Inc
Counsel for the 1st Respondent:Adv
W.
R.
Mokhari SC,Adv M. P.
Mdalana
Instructed by: Phambane Mokone Inc
Counsel for the 3"' Respondent
Adv P. L. Carstensen SC
Adv T. L. Marolen
Instructed by: Ramabulana Attorneys
Date
of Hearing: 1 June 2016
Date of Judgment:6 June 2016 at
10:00