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[2016] ZAGPPHC 877
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Air France-KLM SA and Another v SAA Technical SOC Ltd and Others (52406/2016) [2016] ZAGPPHC 877 (23 September 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
23/9/2016
Case
no. 52406/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
AIR
FRANCE-KLM
S.A. First
Applicant
SOCIÉTÉ
AIR
FRANCE Second
Applicant
and
SAA
TECHNICAL SOC
LTD First
Respondent
JM
AVIATION SOUTH AFRICA (PTY)
LTD
Second
Respondent
AAR
SUPPLY CHAIN
INCORPORATED Third
Respondent
LUFTHANSA
TECHNIK
AG
Fourth
Respondent
ISRAEL
AEROSPACE INDUSTRIES
LTD Fifth
Respondent
GLOBAL
AIRTECH Sixth
Respondent
JUDGMENT
RABIE,
J
1.
This is an application for an urgent interim
interdict precluding the implementation of a decision of the first
respondent to award
a tender for aircraft components support to the
joint venture between the second and third respondents. The interdict
is sought
in Part A of the notice of motion and is intended to
operate pending the finalisation of the applicants' review of the
first respondent's
decision sought in Part B of the notice of motion.
2.
The first applicant is Air France-KLM SA and the
second applicant is Société Air France. I shall refer
to the applicants
in the singular as "Air France". The
first respondent is SAA Technical SOC Limited and I shall refer to it
as "SAAT".
The second and third respondents are
respectively JM Aviation South Africa Pty Ltd and AAR Supply Chain
Incorporated to whom I
shall refer jointly as "JA". The 4th
to the seventh respondents shall be referred to as such or by their
names.
3.
This court has to decide Part A of the
application which was argued before me on behalf of Air France, SAAT
and JA. Due to the urgency
of the matter I shall not refer in this
judgement to all the arguments presented and submissions made but
confine myself to certain
of the salient features which led me to my
ultimate decision.
4.
Pursuant to a tender process Air France was
appointed on 26 June 2008 to provide SAAT with aircraft component
services for the maintenance
and repair of various types of aircraft.
This contractual arrangement between Air France and SAAT was extended
to 30 September
2016. For purposes of procuring similar services for
the period after 30 September 2016 SAAT sought fresh proposals in the
market
in terms of a Request for Bids ("RFB") which sets
out the basis upon which the bids would be evaluated. Air France, JA
(as a joint venture) as well as the 4th to 7th respondents submitted
bids on 19 January 2016 as required by the RFB.
5.
On 18 February 2016 SAAT addressed an email to
the bidders specifying the precise ATA Chapter Coverage Required from
the Bidders.
The Email also requested the bidders to revisit their
bids to check whether any adjustments would be necessary to their
pricing
and bid structure to ensure adequate coverage. They were
requested to submit their best and final offer ("BAFO"). On
15 April 2016 SAAT again addressed an email to the bidders who had
passed the first stage of tender evaluation requesting amongst
other
things, a further BAFO from each bidder. The final date for such
submissions was 22 April 2016.
6.
On 17 May 2016 Air France was notified by SAAT's
head of procurement that its bid had been unsuccessful. JA's bid had
been accepted
by the Board of SAAT.
7.
Not being satisfied with the result, Air France
requested reasons for the decision not to award the tender to Air
France. Air France
was inter alia informed that Air France was not
the highest scoring bidder. Further reasons were requested and
supplied by SAAT.
SAAT also submitted reasons in terms of Rule 53 (1)
(b) of the Rules of Court for awarding the bid to JA.
8.
It is common cause that the bids were evaluated
by the Cross Functional Sourcing Team ("CFST") of SAAT. The
allocation
of preference points was based solely on the price
submitted. The CFST computed the bids received in terms of the
Preferential Procurement Policy Framework Act, 5 of 2000
. The result
of the final bid was that Lufthansa was ranked first as it had
submitted the lowest total price namely US $ 69 311
049.93 over a
five-year period; JA was ranked second having submitted the second
lowest total price namely US $ 82 476 062, 02
over a five-year
period; and Air France was ranked third having submitted a total
price of US $ 88 596 000, 82 over a five-year
period. It is not
necessary to refer to the other bidders.
9.
Despite the lowest bid by Lufthansa the CFST was
of the view that there were objective criteria for not awarding the
tender to Lufthansa.
The Board of SAAT also accepted this view and no
more needs to be said about same for present purposes.
10.
The CFST were also of the view that the tender
should not be awarded to JA despite submitting the second lowest
price and based
the view on two grounds. Firstly, the CFST regarded
the pricing of this bid as being too low in respect of the "access
pool"
which is a pool of components from which replacements can
be procured while SAAT's own components are being repaired. Secondly,
the CFST was concerned that by decreasing its bid with approximately
$30 000 000,00 after the second request for a BAFO, JA was
"low-balling" in order to obtain the tender but with the
intention either to charge SAAT for additional ancillary services
or
to increase prices significantly during negotiations for the
conclusion of the final contract.
11.
CFST also relied on so-called "ostensible
benefits" for concluding a contract with Air France. For all the
above reasons
CFST as well as the Acting CEO of SAAT recommended that
the tender should be awarded to Air France over Lufthansa and JA. The
Board
of SAAT, however, deliberated on the issue and decided to award
the contract to JA.
12.
It was submitted on behalf of Air France that the
decision by the Board is reviewable for the following reasons: first,
the BAFO
requests were irregular and unlawful; second, there was a
material discrepancy between the price apparently contained in the JA
bid and the contract price; third, the impugned decision was
irrational and unreasonable; fourth, relevant considerations were
not
considered and irrelevant considerations were; fifth, the
requirements of the RFB were vague and uncertain; and sixth, there
is
a reasonable apprehension that SAAT was biased.
13.
It was further submitted on behalf of Air France
that it had shown a reasonable apprehension of irreparable harm if
the interim
relief is not granted and the ultimate relief is
eventually granted; that the balance of convenience favours the
granting of interim
relief; and that there is no adequate alternative
remedy available but to seek the interdict. SAAT as well as JA
opposed the application
in respect of each of the aforesaid grounds.
I shall briefly refer to each of these grounds and the principles
involved. My conclusions
and findings below are of course only
applicable to this application and should not be taken as binding on
the court which hears
the main review in terms of Part B of the
notice of motion.
14.
The requirements that need to be satisfied in a
matter such as the present are as follows. First, there must be a
prima facie right,
although open to some doubt, on the part of the
applicant; second, there must be a well-grounded apprehension of
irreparable harm
if interim relief is not granted and final relief is
ultimately granted; third, the balance of convenience must favour the
granting
of interim relief; and fourth, there must be no other
ordinary remedy that is available to give adequate redress to the
applicant.
Where there are factual disputes, the facts set out by the
applicant must be taken together with any facts as set out by the
respondent
which applicant cannot dispute and the court must consider
whether, having regard to the inherent probabilities, the applicant
should on those facts obtain final relief. The facts set up in
contradiction by the respondent then fall to be considered. An
applicant
upon whose case serious doubt is thrown cannot succeed in
obtaining temporary relief. If a well grounded apprehension of
irreparable
harm is established, in the absence of an adequate
ordinary remedy, the court is vested with a discretion which will
usually resolve
into a consideration of prospects of success and the
balance of convenience. The stronger the prospect of success, the
less need
for such balance to favour the applicant. Conversely, the
weaker the prospects of success, the greater the need for the balance
of convenience to favour the applicant See Gidani v Minister of Trade
and Industry and others [2014] ZAGPPHC 960 at paragraph 12
and 13.
15.
When an applicant seeks to interdict the
implementation of an administrative decision it must, however, do
more than indicate that
it has a prima facie right to review the
decision in question or that it has prospects of success in relation
to such a review.
It is only in the clearest of cases or where there
are exceptional circumstances, that courts will interfere with the
exercise
of a statutory power - as in this case, being the exercise
of public procurement powers by the Board.
16.
In the matter of National Treasury and others v
Opposition to Urban Tolling Alliance and others
2012 (6) SA 223
(CC)
the Constitutional Court found as follows in paragraph [26] : "A
court must also be alive to and carefully consider whether
the
temporary restraining order would unduly trespass upon the sole
terrain of other branches of government even before the final
determination of the review grounds. A court must be astute not to
stop dead the exercise of executive or legislative power before
the
exercise has been successfully and finally impugned on review. This
approach accords well with the comity the courts owe other
branches
of government, provided they act lawfully."
17.
And in paragraph [44): "The common law
annotations to the Setlogelo test is that courts grant temporary
restraining orders
against the exercise of statutory power only in
exceptional cases and when a strong case for the relief has been made
out. Beyond
the common law, separation of powers is an even more
vital tenet of our constitutional democracy. This means that the
Constitution
requires courts to ensure that all branches of
government act within the law. However, courts in turn must refrain
from entering
the exclusive terrain of the executive and the
legislative branches of government unless the intrusion is mandated
by the Constitution
itself."
18.
And in paragraph [46]: "... Similarly, when
a court weighs up where the balance of convenience rests, it may not
fail to consider
the probable impact of the restraining order on the
constitutional and statutory powers and duties of the state
functionary or
organ of state against which the interim order is
sought."
19.
And in paragraph [47]: "The balance of
convenience enquiry must now carefully probe whether and to which
extent the restraining
order will probably intrude into the exclusive
terrain of another branch of government. The enquiry must, alongside
other relevant
harm, have proper regard to what may be called
separation of powers harm. A court must keep in mind that a temporary
restraint
against the exercise of statutory power well ahead of the
final adjudication of a claimant's case may be granted only in the
clearest
of cases and after a careful consideration of the separation
of powers harm."
20.
And in paragraph [65]: "When it evaluates
where the balance of convenience rests, a court must recognise that
it is invited
to restrain the exercise of statutory power within the
exclusive terrain of the executive or legislative branches of
government.
It must assess carefully how and to what extent it's
interdict will disrupt executive or legislative functions conferred
by the
law and thus whether its restraining order will implicate the
tenet of division of powers. While a court has the power to grant
a
restraining order of that kind, it does not readily do so, except
when a proper and strong case has been made out for the relief
and,
even so, only in the clearest of cases."
21.
And in paragraph [66]: "A court must
carefully consider whether the grant of the temporary restraining
order pending a review
will cut across or prevent the proper exercise
of a power or duty that the law has vested in the authority to be
interdicted. Thus
courts are obliged to recognise and assess the
impact of temporary restraining orders when dealing with those
matters pertaining
to the best application, operation and
dissemination of public resources. What this means is that the court
is obliged to ask itself
not whether an interim interdict against an
authorised state functionary is competent but rather whether it is
constitutionally
appropriate to grant the interdict."
22.
Consequently, having regard to the above, I
should caution myself in granting the required interim relief unless
I am satisfied
that Air France has made out a compelling case and
even then I should only do so if I regard same as a clear case.
23.
A contract such as the one in issue relates to
billions of Rand which not only affects the South African Airways and
other Airways,
but also the public. Price is accordingly of crucial
importance and the aim of SAAT was to cut its operational costs to
competitive
levels from the inception of the new contract. With this
aim in mind the RFB broke with the past and required bidders to
submit
bids covering "chapters" of the referencing system
developed by the Air Transport Authority ("ATA"). This,
inter alia, would prevent or limit the contractor's ability to add
items not covered by the contract. For this purpose SAAT also
required bidders to submit their best possible prices and reserved
its right to negotiate with shortlisted bidders during the normal
course of the procurement process, as and when required.
24.
I have mentioned above that on 10 February 2016
SAAT approached the bidders per email. It clarified certain aspects
to all bidders
including that the chapter coverage under the ATA
referencing system is required. In the communication of 15 April 2015
certain
information was required and confirmation was asked in
respect of certain aspects of the tender. In both instances bidders
were
invited to submit their best and final offers. In both instances
Air France, JA and the other bidders responded and, inter alia,
submitted new best and final offers. In both instances Air France and
JA submitted reduced prices. After the final offers were
submitted,
Air France ranked third, being US $ 6 119 938, 80 more expensive then
JA.
25.
Before referring to the grounds of the review and
more particularly to the extent that same were referred to in
argument before
this court, it is necessary to address Air France's
attack on the reasons filed by SAAT in terms of Rule 53 (1) (b) with
respect
to the decision taken by the Board of SAAT in awarding the
tender to JA. Air France submits that this court should find that the
reasons are instead to be found in the email of 20 May 2016, the
letter of 7 June 2016 and an extract from minutes of the Board's
meeting of 9 May 2016.
26.
I do not agree with this submission. The
correspondence and minutes referred to do not purport to provide a
complete and exhaustive
account of the reasons for the Board's
decision. Mr Zwane, SAAT's CEO and a member of its Board explained in
his affidavit that
the reasons for the Board's decision are contained
in the reasons filed in terms of Rule 53. These reasons explain the
Board's
reasoning which underpinned the extract of the minute of the
meeting at which the Board resolved to award the tender to JA. There
is no basis to go behind the affidavit of Mr Zwane. The
correspondence and minute referred to clearly did not intend to be
comprehensive
and exhaustive as far as the reasons for the Board's
decision is concerned. There is furthermore nothing in the
correspondence
and the minute which contradicts what is stated in the
reasons in terms of Rule 53. It is furthermore clear from the reasons
in
terms of Rule 53 that the recommendations of the CFST and the
Acting CEO were properly considered in respect of all relevant
issues.
It inter alia explained the Board's view that there were no
risks of unsustainability or problematic "low-balling"
associated
with JA's bid. It also considered JA's commercial profile
and SAAT's ability to contract with JA in such a manner that JA would
be held to the prices contained in its bid. The Board was
consequently satisfied for the reasons stated by it that JA would
provide
the services and components required by SAAT at its tender
price without subjecting SAAT to any unacceptable risks. The Board
further
explained why it was of the view that there were no
compelling objective criteria which justified the award of the tender
to Air
France and why it disagreed with the CFST and the Acting CEO
in this regard.
27.
In support of its submission that it has a prima
facie right which should be protected, Air France submitted, firstly,
that the
requests for subsequent best and final offers were irregular
and unlawful. It was inter alia submitted that the request for bids
is part of the legally binding and enforceable framework within which
tenders must be submitted, evaluated and awarded and that
there was
no room for departure from these provisions. It was submitted that
where an organ of state does depart from these provisions,
the basis
for such departure must be reasonable and justifiable and the process
of change must be procedurally fair. It was submitted
that in the
present instance the RFB did not make provision for more than one
BAFO and the bidders could therefore not be requested
to submit more
than one.
28.
I do not agree with these submissions. All the
bidders received the same notifications and requests which included a
request to
consider submitting a fresh BAFO. An organ of state
procuring goods or services under section 217 of the Constitution and
the provisions
of the PPPFA, which require the organ of state to
procure such goods or services cost effectively, can in my view not
be precluded,
ceteris paribus,
from
requesting bidders, openly and fairly, to submit improved pricing
during a tender process unless the tender documentation expressly
provides for this. This is especially so if bidders are requested to
submit improved pricing following the clarification of tender
requirements or when some time had passed between the submission of
bids to the ultimate adjudication of the tender. The BAFO process
followed by SAAT did not introduce new criteria into the bid process
but merely sought to ensure that the bidders understood what
the
requirements were and furthermore sought to ensure that SAAT obtained
the most competitive prices possible. It is true that
after the
second request JA submitted a much reduced price but the reasons for
that have, in my view, adequately been explained
by JA. Most
importantly, the Board has also explained its reasons for not
regarding the reduction of price as out of the ordinary
in the
prevailing circumstances.
29.
Furthermore, as stated above, by calling for
further BAFO's SAAT did not change the tender evaluation criteria and
each bidder was
given an open, fair and equal opportunity on
identical terms. Thus, the additional explanations and requests
contained in the relevant
emails, and the invitations to submit a
fresh BAFO, did not prejudice any of the bidders. In fact, all the
bidders, including Air
France, made use of the opportunities to
submit a more competitive tender. The difficulty for Air France
simply arose from the
fact that JA decreased its tender substantially
with the result that it submitted a cheaper pricing then Air France.
This result
cannot be blamed on an unlawful or improper or unfair
process. In so far as there may have been a deviation from the
procedures
mentioned in the tender documents, such deviation was
reasonable and justifiable. All the bidders with treated on an equal
footing
and the process remained fair, equitable, transparent,
competitive and cost-effective.
30.
Air France also submitted that its price is lower
than JA's true contract price, according to the contract that was
later concluded
between SAAT and JA, and that this has the result
that Air France should have been awarded the tender. This ground of
review was
mentioned for the first time in Air France's replying
affidavit and for that reason it should in my view not be
entertained. However,
SAAT and JA filed supplementary affidavit's
which confirmed that JA's bid rates in its bid are identical to those
contained in
the contract which was subsequently concluded with SAAT.
It has been adequately explained in the affidavits why it may appear
that
the prices in the contract are higher than those contained in
JA's bid while it is in reality not the case.
31.
Air France also contended that the Board's
decision to award the tender to JA was irrational or unreasonable and
that the review
court will in due course set it aside on one or both
of these grounds.
32.
The Constitutional Court has held in Democratic
Alliance v President of the RSA and others
2013 (1) SA 273
(CC) at
paragraph 42 that the rationality standard, "by its very nature
... prescribes the lowest possible threshold"
for review. In
South African National Roads Agency Ltd v Toll Collect Consortium
2013 (6) SA 356
(SCA) in paragraph [27] the court held as follows:
" [27] The
invitation to rescore the Consortium's tender for quality must be
declined. Once again it must be stressed that
this is not the
function of a court. The task of evaluating and awarding these
tenders rested in the hands of SANRAL, not the court,
and its
decision must be respected, provided it was arrived at in accordance
with the constitutional requirements applicable to
public procurement
as set out in s 217 of the Constitution, any applicable legislation
and the terms of the tender. The court could
only interfere if the
process were infected with illegality. The court will not hesitate to
interfere with the award of a tender
where there is impropriety or
corruption. However, where the complaints merely go to the result of
the evaluation of the tender
a court will be reluctant to intervene
and substitute its judgment for that of the evaluator. It may not
interfere merely because
the tender could have been clearer or more
explicit. Nor will it interfere because it disagrees with the
assessment of the evaluator
as to the relative importance of
different factors and the weight to be attached to them. The court is
only concerned with the
legality of the tender process and not with
its outcome."
33.
A review based on the reasonableness can only
succeed if the decision is one that a reasonable decision maker could
not reach. See
Bato Star Fishing v Minister of Environmental Affairs
and Tourism and others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at paragraph 44.
34.
Both the issues of irrationality and the
reasonableness mainly related to Air France's complaint that the
Board did not sufficiently
interrogate the price reduction of JM's
bid following the second BAFO request and the risks that it was
"low-balling"
to win the tender. These issues were, in my
view, adequately addressed in the reasons in terms of Rule 53 and the
statements in
the answering affidavits. JA's pricing for the
provision of the required services was well within the acceptable
market band for
the provision of such services and in fact fell
between that offered by Lufthansa and Air France. Furthermore, future
price increases
was something which the Board thought could be
avoided by the introduction of the ATA Chapter coverage system which
provides less
scope for bidders to profit from providing out of
contract components and services, and furthermore by proper and
robust bargaining
of the final contract. The Board thus formed the
view that JA's price reduction did not pose an operational or
financial risk to
SAAT and that the bid was commercially sustainable.
Having regard to these circumstances I am of the view that this court
cannot
substitute its view for that of the Board of SAAT, even if it
held a different view. On the submissions made to this court and the
evidence presented I can in any event not come to a different view.
35.
In my view there is also merit in the reasons
submitted by the Board for not accepting the considerations offered
by the CFST and
the Acting CEO for accepting Air France' is bid and
regarding same as not being objective criteria. In my view the Board
assessed
the benefits and the risks associated with all the bids and
made an informed decision which is not open to the challenge of being
irrational or unreasonable. For the same reasons I cannot conclude
that the Board considered irrelevant considerations and failed
to
consider relevant considerations. As mentioned, the Board, inter
alia, considered the substantial price reduction by JA and
came to
the conclusion that the bid should be accepted for the reasons
stated. It is settled law that an ultimate decision maker
may not
adopt the role of a rubberstamp to the decision of others and must
itself consider the information regarding the decision,
including
recommendations from lower bodies, but it is not bound to follow
those recommendations. In my view it cannot be said
that the Board
did not apply its mind properly and fully to all the relevant issues
and that, with reference to its reasons, came
to a conclusion which
is for any reason a reviewable.
36.
Air France further contended that the tender
would in due course be set aside on the basis that the requirements
of the RFB were
vague and uncertain, so much so that the Board's
decision was rendered procedurally unfair. This issue was not heavily
relied upon
during the hearing before this court and the detailed
contents of the RFB were not analysed. Consequently it is not
necessary to
say anything more about this issue except to add that
Air France took part in the tender process right to the end without
any suggestion
from its part that the tender process or the
requirements of the RFB were vague and uncertain.
37.
Air France also contended that the review court
will ultimately set aside the tender on the basis that there is a
reasonable suspicion
that the Board was biased in favour of JA. This
contention seems to rely, firstly, on the fact that a memorandum of
understanding
was previously concluded by SAAT and JA which creates,
so it was submitted, a reasonable suspicion of bias in favour of JA,
and,
secondly, that the Board's alleged failure to interrogate JA's
reduction in price after the second BAFO request, was suspicious.
In
my view Air France has failed to demonstrate actual or perceived bias
on the part of the Board. After the expiry of the first
contract
period SAAT awarded a short-term tender to Air France and this would,
by the same reasoning, rather show bias in favour
of Air France. As
far as the second submission is concerned, I have already indicated
that in my view the bidding process was reasonable
and fair to all
concerned. In all the circumstances I am of the view that no
reasonable person would suspect the Board of bias
either by allowing
all bidders to submit revised bids or by not penalising JA for
submitting a significantly more competitive bid,
or at all.
38.
In respect of the issue of irreparable harm Air
France, inter alia, contended that if interim relief is not granted
it would suffer
immediate commercial loss, incur unnecessary costs
and also be denied effective relief when Part B of the notice of
motion is adjudicated.
39.
As far as the issues of immediate commercial loss
and unnecessary costs are concerned it appears that both these issues
are based
on the premise that Air France has a right to continue
under the current contract past 30 September 2016 and/or the right to
be
awarded the tender. Air France has no such right. It's contract
comes to an end on 30 September 2016 and it has no right to continue
under the current contract past this date. Even if the interim relief
of Part A were to be granted, Air France would still not
have any
such right. It would also not have such right even if the final
relief in terms of Part B were to be granted. Air France
has not
applied for substitution relief and it would be for SAAT to
reconsider the matter probably by way of a fresh tender process,
and
not for the court to substitute Air France for JA as the successful
bidder.
40.
I am also not convinced by the argument that Air
France would suffer unnecessary costs in relation to removing its
staff and resources
that are currently in place to service the
existing contract with SAAT. It is of course correct that Air France
would incur costs
to remove its operations when the contract comes to
an end on 30 September 2016 but such costs would not be unnecessary
for the
reason that France has no right to the contract being awarded
to it. A service provider in a fixed term contract knows that the
contract may not be extended or renewed and that it would incur costs
as a result of the termination of the contract.
41.
If the interim relief were to be refused and the
final review were to be successful and Air France were to be awarded
the subsequent
tender, the costs of removing its staff and resources
would have been unnecessary in the greater scheme of things but such
costs
cannot, in my view, be regarded as an unnecessary waste of
costs for purposes of obtaining interim relief in circumstances such
as the present.
42.
Regarding the submissions that Air France would
suffer the harm of being denied effective relief if successful with
the main review,
I disagree with such submissions. The tender relates
to the provision of services under a services contract and is not of
the type
where the horse would have bolted by the time the review is
adjudicated and it would thus be impractical to set aside the
impugned
decision. In my view there is no reason to presume that the
court would not set aside the decision if the ultimate review
succeeds.
I agree with the submissions on behalf of SAAT and JA that
there is no reasonable apprehension that, should the interdict fail
but the review succeed, Air France would be denied effective relief.
43.
Regarding the issue of balance of convenience Air
France submitted that the harm it would suffer if the interim
interdict is not
granted, outweighs the harm that SAAT and JA would
suffer if the interim interdict is granted. In considering this issue
I have
considered all the relevant factors referred to by the
parties. I have thus also considered the effect on the public purse.
44.
First and foremost it seems clear that if the
interim interdict is granted Air France would continue with an
extremely lucrative
contract which appears to be much more lucrative
than the one it had tendered for. By the same token SAAT would have
to pay at
much higher rates than it would otherwise pay to JA under
the contract concluded pursuant to the tender. That would be the case
whether SAAT continues under the existing contract with Air France or
whether it procures services from another party in the interim.
45.
Air France also suggested that implementation of
the tender could result in aircraft being grounded and that
reliability issues
may arise and that the safety of passengers may be
jeopardised. These allegations were rather vague and unsubstantiated
and in
my view SAAT has more than adequately explained that there is
no reason to doubt the services that JA would render under the
contract.
Reference was also made to the ability and worldwide
reputation of the third respondent in regard to the provision of
aviation
services, including the services that are relevant to this
tender.
46.
Having regard to the aforesaid as well as the
obvious impact of the vast amounts on SAAT and the public purse which
would be lost
if the interim relief is granted, which SAAT calculated
at more than R 15 200 000,00 per month, as opposed to the almost
negligible
loss to Air France, I am of the view that the balance of
convenience does not favour the granting of interim relief.
47.
It was contended by Air France that it has no
adequate alternative remedy but the interim relief prayed for. I do
not agree with
this contention as the relief claimed in Part B
constitutes such alternative remedy especially in light of the
balance of convenience
that heavily favours SAAT and JA.
48.
In the result Air France has in my view not
satisfied the requirements for interim relief. The prima facie right
on which Air France
relies has not been shown to exist or at least to
be strong. The other requirements for interim relief are also weak,
if they exist
at all, as indicated above, with the balance of
convenience being overwhelmingly in favour of SAAT and JA.
Consequently, and considering
that the relief is aimed at
interdicting an administrative decision, Air France has failed to
show that it is entitled to the interim
interdict prayed for.
49.
In light of the findings arrived at by me it is
not necessary to discuss the issue of urgency.
50.
In regard to costs it was inter alia submitted by
Air France that in the event of Part A of the application being
refused, no adverse
order as to costs should be made since it pursued
the litigation in good faith to vindicate its constitutional rights.
It was submitted
in the alternative that I should either reserve
costs order costs to be costs in the application under Part B of the
notice of
motion.
51.
I agree with the submission on behalf of SAAT and
JA that there is no self standing constitutional dimention to
this case and
that it is manifestly about Air France's own commercial
interests. The application is one under PAJA and the constitutional
claims
of Air France added nothing to the grounds of review under
PAJA.
52.
I am furthermore of the view that this
application under Part A stood sufficiently on its own legs for
purposes of adjudicating
the costs relating thereto and also that the
court hearing Part B would not be in a better position than this
court to adjudicate
the issue of costs relating to Part A. In my view
there is no reason why costs should not follow the event and I agree
with the
submissions that the order of costs should include the costs
of two counsel.
53.
In the result the following order is made:
1.
The application in Part A of the Notice of Motion
is dismissed with costs which costs shall include the costs of two
counsel.
______________________
C.P.
RABIE
JUDGE
OF THE HIGH COURT
23
September 2016