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[2016] ZAGPPHC 778
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Sofiline(Pty)Ltd v The Chaiperson of the Mpumalanga Gambling Board and Others (73875/2014) [2016] ZAGPPHC 778 (26 August 2016)
IN
THE REPUBLIC OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
CASE
NO: 73875/14
DATE:
26/8/2016
I
n
the
matter
between
SOFILINE
(PTY)
LTD
Applicant
and
THE
CHAIRPERSON OF THE
MPUMALANGA
GAMBLING
BOARD
.........................................................
First
Respondent
THE
MPUMALANGA GAMBLING BOARD
...........................................
Second Respondent
MEMBER
OF THE EXECUTIVE COUNCIL FOR
ECONOMIC
DEVELOPMENT, ENVIRONMENT
&
TOURISM,
MPUMALANGA
...................................................................
Third
Respondent
LISTENSURE
(PTY) LTD T A DELMAS STAR
CITY
HOTEL AND CASINO ENTERTAINMENT
RESORT
...................................................................................................
Fourth
Respondent
JUDGMENT
Fourie
AJ
INTRODUCTION:
1.
This is a review application arising out of a request for
proposals ("RFP') for applications for a casino licence in
Mpumalanga
Province, published on 6 September 2013 by the Mpumalanga
Gambling Board, cited herein as the second respondent.
2..
The Mpumalanga Gambling Board
("the
Board")
was established in terms of the Mpumalanga Gambling Act, No. 5 of
1995
("the Act).
In terms of the
National Gambling Act,
No. 7 of 2004
, four casino licences were allocated to Mpumalanga. In
1996, the Board adopted a policy that the licences would be allocated
to
each of four demarcated zones. Three of the four licences were
subsequently issued.
3.
The Board issued RFP's in relation to the fourth licence in
2008, 2012 and in 2013. The applicant applied for the fourth licence
pursuant to the 2012 and 2013 RFP's. Both RFP's were cancelled by the
Board.
4.
In this application, the applicant seeks an order reviewing
and setting aside the cancellation of the 2013 RFP.
BACKGROUND:
5.
In August 2006 and subsequent to a re-demarcation of districts
between Limpopo, Mpumalanga and Gauteng Provinces, the second
respondent
commissioned a study from the University of South Africa
to determine the viability of a fourth casino in Mpumalanga. Pursuant
thereto, in September 2008, the Board issued the first or 2008 RFP.
No licence was issued pursuant to this invitation.
6.
In September 2012, having engaged in a process of public
participation, the Board amended its policy to allow for applications
for
the fourth licence to be made in respect of any location in the
province and gave notice accordingly. This was followed by an
invitation
for proposals. The 2012 RFP was, however, cancelled by the
Board on 17 July 2013 as the Board had formed the view that the 2012
RFP did not adequately reflect its intention to have BEE equity as a
condition of the licence.
7.
On 3 September 2013, the Board consulted the Member of the
Executive Council for Economic Development, Environment and Tourism,
Mpumalanga
("the MEC" ),
herein cited as the third
respondent, in terms of section 29(1) of the Act, regarding the third
or 2013 RFP. The MEC approved the
2013 RFP.
8.
On 6 September 2013, the Board again published an RFP inviting
proposals for the fourth casino licence in the province.
9.
Pursuant thereto and on 20 January 2014, the applicant
submitted its proposal together with proof of payment of the
non-refundable
fee of R 250 000.00.
10.
The fourth respondent, Listensure (Ply) Ltd t/a Delmas Star
City Hotel and Casino Entertainment Resort, also submitted a proposal
for the fourth licence pursuant to the 2013 RFP. No relief is sought
against the fourth respondent, which has not opposed the application
or filed any affidavit. References made in this judgment to
"the
respondent
s
·
are in respect of the first,
second and third respondents only. There were no other applications.
11.
An exposition of the subsequent events as recorded in
contemporaneous documents is required, as an analysis thereof is
essential
to the determination of this application. The emphasis in
the quotes is mine.
11.1.
On 2 February 2014, the Premier of the Mpumalanga Provincial
Government wrote to the MEC. The letter reads as follows:
"It
was
recently brought to my attention that the Mpumalanga
Gambling Board published, during September 2013,
a
Request for
Proposals in respect of
a
Casino Licence with the
closing
date of 20 January
2014.
As
neither myself nor the Executive Council
was
consulted
in this regard, it will be appreciated it you would,
as
the Member of the Executive Council responsible for gambling
matters in the Province, provide me,
as a
matter
of
priority, with
a
written exposition
of
the processes
and procedures followed by
both yourself
as
well
as
the Mpumalanga Gambling Board,
which lead
to
the publication
of
the above-mentioned Request
for
Proposals, with specific reference
to
the complete lack
of
consultation with either myself
or
the Executive
Council. In this regard, your attention is drawn
to
section 133(2)
of
the Constitution, 1996, which states that
Members
of
the
Executive Council
of a
Province are accountable collectively
and
individually
to
the Provincial Legislature for the exercise
of
their powers and the performance
of
their functions.
Furthermore,
the process already embarked upon in respect
of
the said Request for Proposals. must be
suspended forthwith
until the
Executive
Council has been afforded
the
opportunity
to
duly consider and
express itself
on
this
matter.”
11.2.
On 12 February 2014 the MEG and the Chairperson of the second
respondent (who has been cited as the first respondent), had a
telephone
conversation, confirmed in a letter from the MEG on the
same date, which recorded the following:
"The
Honourable Premier has expressed dissatisfaction in the manner in
which this process has been managed, with specific reference
to the
complete lack of consultation with him and/or the Executive Council.
To
this end he has
directed
that the process already embarked
upon in respect of the RFP for the 4t11 Casino Licence
be
suspended forthwith until the Executive Council has been afforded
the opportunity to duly consider and express
itself on
the
m
atter.
It
is hoped this directive will secure your urgent attention."
11.3.
On the same date, the Board met, ostensibly - according to the
timeline provided in the RFP - to select a finalist amongst the
proposals
received. It appears from the minutes that a challenge that
the applicant had lodged with the Victor Khanye Local Municipality to
the acquisition by the fourth respondent of a site for the proposed
establishment of a casino in Delmas, was brought to the attention
of
the Board members. The Board resolved to defer the selection of
finalists pending receipt of a legal opinion in respect of this
issue. Notably, the first respondent was not present and no mention
was made of the MEC' aforesaid request.
11.4.
On or about 10 March 2014, the Board addressed a progress
report to the Mpumalanga Provincial Executive Council
(" The
Executive Council),
which report was approved by the former MEC.
This appears to have been in response to the directive of the Premier
contained in
his letter of 2 February 2014, relayed to the first
respondent by the former MEC on 12 February 2014, for the Executive
Council
to be afforded the opportunity to duly consider and express
itself on the matter of the fourth licence. On 12 March 2014, the
Board
also made a presentation to the Executive Council in respect of
the process, at the end of which it
"recommended that Exco
takes
note of the
sequence of events and
progress to
date, and provides guidance
going
forward"
regarding the licensing
process.
11.5.
The minutes of the meeting of the Executive Council on the
same date record the following:
"Executive
Council remarked that:
1)
There
is
a
concern that the matter is close to
finality
without EXCO having made inputs.
2)
An ideal site for the casino should be identified where
Mpumalanga people will benefit maximally. There is
a
concern that proposed Delmas site is too close
to
Gauteng.
3)
On why the matter was not presented to EXCO, it
was
indicated that there was an oversight.
4)
The process should be halted for the Board and
the
Department to interact fully with EXCO regarding the matter.
5)
A study, to justify the need and site of the fourth
casino, should be conducted and presented to EXCO.
”
"The
Executive Council resolved that:
•
The process
of
appointing the fourth casino
operator
should
be started afresh taking into account the issues
raised
a
bove.
n
11.6.
On 17 March 2014, the former MEC wrote to the first respondent
with reference to the meeting of the Executive Council on 12 March
2014, stating that:
"The
process of appointing the Fourth Casino Licence operator
should be started afresh taking into account that
a
study to
justify the need and site of the fourth casino should
be
conducted
and
presented to
the
Executive Council.
As
the Member of the Executive Council responsible for MGB, I hereby
direct
that this resolution
be
processed
a
ccordingly.”
11.7.
On 28 March 2014 the Board held a special meeting, the minutes
of which record,
inter alia,
that:
11.7.1.
" The CEO informed the Board that
a
letter has been
received from the MEG
giving
a
directive
that the
process
of appointing the Fourth
Casino Licence Operator should be s
tarted afresh taking
into account that
a
study to justify
the need
and site of the Fourth
Casino should
be
conducted and presented to the Executive Council." ;
and
11.7.2.
" The Board deliberated upon this matter at length and
was
of the view to consider the following:
•
As
much
as
the
directive from the MEG
is
being considered, the
proposers/bidders need
to be
engaged in
respect of
a
PAJA
process
in order to foster the
principles of
fairness
and transparency
•
In this regard letters
are to be forwarded to the proposers/bidders,
as
well
as
to the MEG
to inform
her that the
matte
r
is
being considered."
11.7.3.
In addition, it was resolved that
"(i)n terms of PAJA,
letters regarding the contents of the letter from the MEG be
drafted and sent to the proposers/bidders to invite written
r
epresentations from them
as
to why the Board should not
withdraw or cancel the Casino RFP
in terms of
section 4.2
of the
RFP."
11.8.
The letter written to the former MEC by the Board and
foreshadowed in the aforesaid minutes is in my view important,
particularly
the following paragraphs:
"Subsequent
to receipt of the letter from the Honourable
MEG, the
Board sought
a
legal opinion from Senior Counsel on the
process
to be followed
in processing the Executive
Council Resolution
("the resolution"), referred
to in
the
aforementioned
letter."
"On
28 March 2014, the Board convened
a
Special Board Meeting
where it resolved to accept the recommendation
of
Senior Counsel's legal opinion to invite the bidders
...
to
make written representations on or before 7 April 2014 why the
Board, should not cancel the Request for Proposals
in
order to
give effect to the aforesaid
r
esolution.•
11.9.
The applicant responded on 2 April 2014, setting out its
objections. The fourth respondent noted that it was unable to comment
on
the limited information provided.
1
11.10.
On 8 April 2014, the Board held a special meeting during which
it resolved that:
"1.
There is merit in the directive to conduct
a
study in view
of
the changes in the demography and the economy of
the Province
and the new National Development
Plan.
2.
The original representations of the bidders did not take the
matter further or in
a
different
direction.
3.
Therefore The Fourth Casino Licence RFP be cancelled in terms
of section 4.2 of the RFP and letters informing the
bidders
and the MEG of the Board's decision be forwarded to
them".
11.11.
On 18 April 2014, the Board informed the MEC that it had
resolved to cancel the RFP and had informed applicants of the
decision.
11.12.
On 1 April 2014, the UNISA Bureau of Market Research submitted
a proposal for the second feasibility study to the second respondent.
It appears from the proposal that the final report could be completed
within one month after commencement of the study. The study
was in
fact completed in June 2014 and provided to the MEC, who in turn,
provided it to the Executive Council for its consideration.
The
Executive Council eventually considered the second UNISA report on 12
August 2015 and issued a resolution to the effect that
a fourth
licence is feasible, identifying eight issues that it deemed
significant. The Delmas site is not supported.
12.
.
The
reasons furnished by the Board in response to the applicant's request
for reasons for the cancellation of the 2013 RFP, may
be summarised
as follows:
12.1.
An objective feasibility study had value in the compilation of
the RFP and could enable the Board to have an informed position
arising
from the outcomes of the feasibility study on the impact the
issuing of the fourth Casino Licence will have on the diverse
population
of the Mpumalanga Province.
12.2.
Awarding a Casino Licence without a detailed feasibility study
may constitute a dereliction of its duty.
12.3.
Approximately 8 years had elapsed since the UNISA report was
undertaken and during this period there had been changes in
population
numbers, disposable income levels and gambling behaviours,
as well as the economic impact caused by the 2008/ 2009 recession.
12.4.
The Board could not ignore the adoption of the National
Development Plan 2030 by Parliament which contains objectives that
may inform
the feasibility study and the formation of the evaluating
criteria in considering the proposals of the bidders.
12.5.
It is imperative before embarking on the process to award a
fourth Casino Licence to commission a feasibility study to consider
all the matters raised above.
12.6.
Consequently, the Board, having considered the above, resolved
to withdraw the revised RFP pending the commissioning of the
feasibility
study for a fourth casino.
THE
CASE FOR THE APPLICANT:
13.
The applicant contends that the decision by the Board to
cancel the 2013 RFP was unlawful and falls to be reviewed and set
aside
because:
13.1.
It was taken subject to the unlawful dictation of the Executive
Council and the MEC;
13.2.
It was irrational and unreasonable;
13.3.
It was procedurally unfair, because the Board did not inform the
applicant of the true reasons for the intended cancellation
and as a
result the applicant was not afforded a fair hearing before the
decision was taken.
14.
The applicant relies in this regard on the Promotion of
Administrative Justice Act, No. 3 of 2000
("PAJA'),
and
on the principal of legality that applies to the exercise of all
public power.
THE
CASE FOR THE RESPONDENTS:
15.
On behalf of the respondents, it was contended that:
15.1.
The decision to cancel the RFP was made after considering the effect
of adhering to the peremptory directive of the MEC, which
resulted in
the Board requesting a feasibility study.
15.2.
The decision was made by the Board itself.
15.3.The
decision was rational and reasonable under the circumstances.
15.4.
The Board adhered to fair administrative process.
15.5.
The relief sought by the applicant is non-suited as the applicant has
not indicated any rights that were adversely affected,
and because
the procurement process has already expired and cannot be revived.
15.6.
In supplementary heads of argument filed pursuant to the recent
judgment delivered by the Supreme Court of Appeal in
SAAB Grlntek
Defence (Pty) Ltd v South African Police Service
&
Others,
(316/2015) [2016) ZASCA 104 (5 July 2016), the respondents
contended that the cancellation of the RFP did not constitute
administrative
action and was accordingly not reviewable under PAJA.
FIRST
GROUND OF REVIEW : UNLAWFUL DICTATION
16.
The applicant argues that in terms of the Mpumalanga Gambling
Act, power is conferred on the Board and only the Board, to issue
requests for applications for casino licences and to determine the
fate of such applications. Neither the Act nor the 2013 RFP confer
any power on the MEC or the Executive Council to issue or cancel a
request for applications or proposals or to give to the Board
any
instruction to issue or cancel such request. This contention was not
disputed by counsel for the respondents. Both parties
agreed that if
the Board decided to cancel the 2013 RFP because it was instructed to
do so by the Executive Council or the MEC,
such decision was unlawful
and fall so be set aside.
17.
Furthermore, there are no material differences between the
parties regarding the law pertaining to unlawful dictation.
18.
The issue to be decided is accordingly a factual one. Does the
evidence before Court demonstrate that the Board took the decision
to
cancel the 2013 RFP because it was instructed to do so, whether by
the Executive Council or by the MEC or both, or does the
evidence
support the contention that it took the relevant decision
independently?
19.
I have already set out the contemporaneous documents and
correspondence relating to the decision. Counsel for the applicant,
Mr
Budlender, who appeared together with Mr Ferreira, contends that
these documents make it clear that the Board cancelled the 2013
RFP
because it was instructed to do so by the Executive Council and the
MEC.
20.
Not so, says Mr Mphaga SC, who appeared for the respondents
with Ms Ellis. His argument appears to rest on the following:
20.1.
There is no indication in either the minutes of the Board
meeting on 12 February 2014, or the letters forwarded to the bidders
pursuant
thereto, that the Board suspended the process as directed by
the Premier.
20.2.
On receipt of the letter from the MEC dated 12 February 2014,
recording the directive of the Premier, the first respondent did not
call a meeting of the Board as the Executive Council only required a
progress report, and neither did the Board suspend the process.
20.3.
The resolution taken by the Executive Council on 12 March 2014
to the effect that the process should be started afresh taking into
account the issues raised (in respect of the study), constituted an
executive decision, which the former MEC was constitutionally
obliged
to convey to the Board. She was also obliged to ensure that the
required study be conducted, and the means to achieve this
was by
utilising the provisions of section 3(c) of the Act. Section 3(c)
provides that the Board shall advise the MEC or furnish
a report or
recommendation to the MC on any matter referred to the Board by the
MEC for consideration and arising from the application
of the Act or
relating to the control over gambling in the province. The provisions
are peremptory and not subject to any time
constraints. The Board is
obliged to adhere to a request in terms of section 3(c), unless the
request does not relate to any matter
arising from the application of
the Act or the control of gambling in the Province. The Board was
accordingly compelled to adhere
to the request by the former MEC to
be provided with the feasibility study, and this, he argued, was the
only directive contained
in the former MEC's letter of 17 March 2014.
20.4.
I must confess that I find it difficult to read the directive
in such a restricted manner. The last paragraph of her letter reads
that
"I hereby direct that this resolution be processed
accordingly" .
Mr Mphaga conceded that a directive in this
context is akin to an instruction. The reference to
"this
resolution"
is to the resolution of the Executive Council
dated 12 March 2014. The operative part of the resolution is
"that
the
process
of appointing the fourth casino operator should be
started afresh".
The balance of the sentence constituting
the resolution, namely
"taking into account th
e
issues
raised
above",
prescribes the manner
in which the process is then to be conducted. The phrase
"be
processed accordingly”
can only mean that effect be given
to the resolution of the Executive Council. The submission by the
respondents that it is possible
to read the directive of the
Executive Council while ignoring the instruction that the process of
appointing the casino operator
be started afresh, is at best,
artificial and forced. It cannot be upheld.
20.5.
I find support for this view in the following:
20.5.1.
In the letter directed by the Board to the bidders on 28 March
2014, the bidders were invited
"to
make
representations in
writing on or before 7 April
2014, why the Board should
not withdraw or cancel the
RFP
as
provided for in clause 4.2
of the RFP, to
give effect to the request of the MEC
as
set
out in the
aforesaid letter.•
The bidders were clearly invited to
comment on the Board's intention to withdraw or cancel the process.
They were not requested
to comment on the amendment of the RFP or the
restructuring of the process, nor does it appear, on the necessity of
a feasibility
report.
20.5.2.
The applicant, in paragraph 2 of its letter in response to
this invitation, pertinently drew the attention of the Board to the
issue
of unlawful dictation, where it stated that
"if the
Board
were to withdraw the RFP to give effect to the
request of the Executive Council, the Board would be acting
...
pursuant to
the unauthorised or unwarranted dictates of a
person or body".
'
20.5.3.
One would have expected the Board to have made a concerted
attempt to refute this allegation in making its decision on 8 April
2014,
yet no mention is made of any grounds upon which the Board
based its decision to withdraw the RFP, rather than to suspend or
amend
it. In its response to the applicant's request for reasons,
when the Board had ample opportunity to formulate its reasons, it
still
failed to provide a single reason for having cancelled the
process.
20.6.
Mr Mphaga further contended that the mere fact that the
resolution of the Executive Council contained the phrase
"the
process
of appointing the fourth casino operator should
be started afresh",
does not mean that the Board
acted thereon. This is because, he submitted:
20.6.1.
The process was already in jeopardy in light of the applicant's
submissions in respect of the property purchased by the
fourth
respondent, yet the Board still intended proceeding with the process
which it had shown no intention of abandoning or suspending.
20.6.2.
If the Board had been acting on instructions, it would already have
suspended the process.
20.6.3.
The Board did not cancel the RFP when its chairperson was informed
that the MEC had failed to consult on the matter with
either the
Executive Council or the Premier.
20.6.4.
The phrase was not a directive. There was in fact only one directive
in the MEC's letter of 17 March 2014, namely the request
for a study,
and it is upon this directive, and this directive only, that the
Board acted.
20.6.5.
The MEC was entitled to request a report, and it this request to
which the Board responded. This request was legal and valid
and the
Board had no lawful reason to refuse such a request.
20.6.6.
The minutes also make no reference to the process having to start
afresh.
20.6.7.
In acceding to the request for a study, the Board was prompted to
consider the effect thereof, in other words, the feasibility
of
proceeding with the procurement process and timelines provided for in
the RFP, whilst the study was obtained and considered
by the
Executive Council. (This is the closest that the Board comes in
addressing the actual cancellation).
20.6.8.
The minutes of the meeting of the Board on 8 April 2014 reflect that
the Board deliberated on the matter (of the representations
received
from the bidders) at length, which infers that the issue of
cancellation was debated. The same may be said of the minutes
of the
meeting on 28 March 2014.
21.
I find the respondents' arguments in this regard also to be
unconvincing. I agree with Mr Budlender's submission that the
contemporaneous
documents call for an answer, and a comprehensive
answer at that.
21.1.
The events prior to 17 March 2014 serve primarily to place the issue
in context. It was on 17 March 2014 that the Board was
formally
directed to implement the resolution taken by the Executive Council,
and this was, in the submission of the respondents,
the genesis of
this application.
21.2.
Mr Mphaga emphasised the importance of the feasibility study several
times. The merits of obtaining a feasibility study are
not in
dispute. The need for such a study also does not support the
respondents' submissions.
21.3.
As I have already noted, there is no room for the argument that the
MEC's letter contained only a directive to obtain a report.
21.4.
There is no indication of what facts or factors the Board took into
account in the minutes of the meetings of 28 March 2014
and 8 April
2014, or the respondents' reasons. No reasons appear in the
affidavits deposed to by the first respondent, Mr Vilakazi.
The high
water mark of his affidavit is the statement in paragraph 15 that
"(a)ccordingly and after having considered all the factors,
including the implications thereof on the Third RFP processes
and
timeframes, the MGB decided in its sole discretion
to cancel the Third RFP."
This is simply not enough.
21.5.
The contemporaneous documents do not reflect an acknowledgment on the
part of the Board that an instruction to cancel the
process may be
ignored as falling outside the authority of the Executive Council.
The affidavit deposed to by the first respondent
does not state that
the Board acknowledged that this portion of the instruction could be
regarded as
pro non scripto
and could be ignored. In fact,
nothing is said about it.
21.6.
These documents are only capable of being read to mean that the
Executive Council issued an instruction or directive to cancel
the
RFP, the MEC conveyed the directive to the Board, the Board
understood it to be a directive to cancel the RFP and gave effect
to
that directive.
21.7.
Paragraph 4.2 of the RFP affords the Board the right to cancel or
suspend the RFP, or to restructure or cancel the process.
Nowhere is
any explanation offered why the Board considered the cancellation of
the RFP to be the preferable option. Considerations
of prejudice to
bidders, delays occasioned by the report, references to lengthy
debates, are all speculative and were not addressed
in the
affidavits.
22.
.
There is simply nothing on the papers upon which I am able to
find that the Board acted independently and I do not accept the
respondents'
contention that the Board took the decision to cancel
the procurement process of its own volition.
LEGAL
PRINCIPLES:
23.
The legal principles pertaining to the matter of unlawful
dictation, were common cause in argument. In common law, a
discretionary
power vested in a particular administrator may not be
exercised by another, whether he or she is in a superior or
subordinate position.
Stated differently, the exercise of powers must
accord with the principle of legality, the holder of a public power
may exercise
no power and perform no function beyond that conferred
upon him or her by law. See
Baxter, Administrative
Law,
442; also
Fedsure Life
Assurance Limited &
Others v Greater Johannesburg
Transitional Metropolitan
Council
and Others
[1998] ZACC 17
; ,
1999 (1) SA 374
(CC) at paras. 57 - 59.
"Where power
is
conferred
upon an office or statutory
body
it is intended
that
the power should be
exercised by that office or body and no one else. The recipient
of
the power
has presumably
been
chosen
for
a
purpose
-
for
his
accountability, expertise, seniority or advantaged position in
exercising the power.
Should he allow the
power
to
be exercised by someone who was
not
chosen he will effectively have abdicated his own power and will not
have complied with the legislation. The Courts will recognise
neither his
chosen substitute nor any person who has
usurped his powers."
Where a functionary abdicates
the power confirmed upon him or her to another person, such
abdication is invalid. See
President of the Republic of
South Africa & Others v South African Rugby Football Union
& Others
("SARFU"),
2000 (1) SA 1
(CC) at par. 38. Unlawful dictation is a form of
abdication where a functionary vested with a power, does not of his
own accord
decide to exercise the power, but does so on the
instructions of another. See
SARFU
at par. 40. The functionary
vested with a power is permitted only to consult with and to consider
the views of others but not
·
to adopt the role of
rubber stamp".
Whether there has been an abdication must be
decided on the facts of each case. See
Minister
of
Environment
Affairs and
Tourism & Another v
Scenematic Fourteen (Pty) Ltd,
[2005] ZASCA 11
;
2005 (6) SA 182
{SCA) at par. 20,
Walele
v
City of
Cape
Town & Others,
[2008] ZACC 11
;
2008 (6) SA 129
{CC) at par.144.
24.
It is common cause that only the Board is entitled to make the
decision to cancel the process in question. The Board, however,
exercised
this power on instruction of the Executive Council. In this
sense, the Board abdicated its powers in terms of the Mpumalanga
Gambling
Act to the Executive Council. As such the resolution to
cancel the Request for Proposals for the fourth casino licence was
unlawful
and must be set aside.
25.
It
is accordingly not necessary to consider the further grounds upon
which this review rests. It was also common cause that the
SAAB
judgment did not affect the first ground of review insofar as it
is based on the principle of legality. It is also therefore not
necessary to consider whether the Board's decision to cancel the RFP,
adversely affected the applicant's rights.
26.
lf of the respondents that the relief sought by the applicant
is non-suited because the procurement process has already expired and
cannot be revived. The RFP published on 6 September 2013, contained
clear defined timelines for the entire procurement process.
The
process in terms thereof came to an end in September 2014, and could
only have been extended prior to the expiration thereof.
This
application was issued during the following month. For their
contention that it is not possible for the decision-maker to
revive
the tender process, the respondents relied on Telkom SA Ltd v
Merid
Trading
(Pty)
Ltd & Others,
[2011] JOL 26617
(GNP), Joubert Galpin Searle & Others v
Road
Accident Fund
& Others,
[2014] 2 All SA 604
(ECP) and
SAAB.
27.
Mr Budlender, on the other hand, submitted that this case is
completely different, the reason being that the decision to cancel
was made in April 2014, at which stage the tender was still valid and
the process had not yet expired.
28.
I agree that this case may be distinguished from the
authorities upon which the respondents rely. In this instance, the
conduct
that rendered the process subject to review, occurred prior
to the expiry of the validity period of the proposals. In the matters
referred to in the preceding paragraph, the tender period expired
prior to any decision having been made by the relevant
decision-maker.
29.
The further relief sought by the applicant also requires
reflection. Mr Budlender submitted that the only effective remedy was
the
relief claimed in prayer 2. Should the matter be referred back to
the Board to take a new decision whether to withdraw or cancel
the
RPF, it will simply do so in the shadow of the dictation to which it
previously succumbed. It was argued on behalf of the respondents
on
the other hand, that the events subsequent to the invitation to
submit proposals, being the resolution taken by the Executive
Council
and the feasibility report that has now been prepared by UNISA,
cannot be ignored, but also, cannot be implemented unless
they form
part of the RFP. This, it was submitted, renders the relief sought
academic.
30.
This issue can easily be resolved. Clause 4.2 of the RFP
records that the Board reserves the right to cancel or amend the RFP,
or
to restructure or cancel the process. The Board can in terms of
this clause incorporate the resolution and the recommendations of
the
feasibility report.
31.
Costs were only sought as against the third respondent in the
event of opposition. The third respondent filed an affidavit in terms
of Rule 6(5)(d)(iii) wherein he raised legal arguments in support of
the first and second respondents. The applicant is entitled
to an
order of costs as against the third respondent.
32..
The following order is made:
32.1.
The decision of the second respondent taken on 8 April 2014, to
withdraw the Request for Proposals for a fourth casino licence,
published on 6 September 2013
("the RFP'),
is reviewed
and set aside.
32.2.
The second respondent is directed to continue to evaluate the
preliminary proposals received by it in response to the RFP,
within
one month from the date of this order, for the purpose of inviting
detailed proposals as contemplated in Regulation 4(6)
to the
Mpumalanga Gambling Act, No. 5 of 1995.
32.3.
The first, second and third respondents are ordered to pay the costs
of the application, jointly and severally, such cost
to include the
costs of two counsel.
…
...................................
H
R FOURIE
ACTING
JUDGE OF THE HIGH
COURT
FOR
THE APPLICANT
ADVOCATE:
S. BUDLENDER AND N. FERREIRA
ATTORNEYS:
EDWARD NATHAN SONNENBERGS, CAPE TOWN %
…
..................................................
FRIEDLAND
HART SOLOMON & NICOLSON, PRETORIA
FOR
THE FIRST, SECOND AND THIRD RESPONDENTS
ADVOCATE:
M. MPHAGA (SC) AND I. ELLIS
ATTORNEYS:
STATE ATTORNEY, PRETORIA