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[2016] ZAGPPHC 909
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Browns Airside v Airports Company of South Africa and Others (99521/15) [2016] ZAGPPHC 909 (18 October 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, PRETORIA)
Case
Number: 99521115
18/10/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
BROWNS
AIRSIDE APPLICANT
and
THE
AIRPORTS COMPANY OF SOUTH AFRICA FIRST
RESPONDENT
TOURVEST
HOLDINGS (PTY) LTD SECOND
RESPONDENT
MY
LIGHT HOLDINGS (PTY)
LTD THIRD
RESPONDENT
BROWNS
THE DIAMOND STORE (PTY) LTD FOURTH
RESPONDENT
JUDGMENT
S
K HASSIM AJ:
THESE
PROCEEDINGS
[l]
I have before me two applications for an interdict. The applicant
("Browns Airside ")
seeks a
mandamus
that the
first respondent
("ACSA")
implements a tender that
was awarded to it on 23 February 2015
("the tender award'').
I refer to this application as the "main application".
The third respondent, Tourvest Holdings (Pty) Ltd
("Tourvest"),
the only respondent opposing the application, counter applies for
an interim interdict restraining ACSA from giving effect to the
tender award pending the finalisation of an application reviewing
ACSA's decision to award the tender to Browns Airside.
[2]
The main application was launched on 14 December 2015. The counter
application was filed simultaneously with Tourvest's answering
affidavit on 14 January 2016. I was informed at the commencement of
the hearing that the review application is enrolled for hearing
during February 2016.
[3]
In the main application, Browns Airside seeks a final interdict in
the following terms:
"1.Directing that
the First Respondent [ACSA] forthwith take any and all steps of
whatsoever nature so as to implement First
Respondent's award of
Opportunity DFS 13 to the Applicant. "
[4]
Tourvest, in its counter-application seeks an interim interdict in
the following terms.
"1
. ,
pending the adjudication of the review application
...
under
case number 6682512015, the first respondent be interdicted from
implementing Opportunity DFS 13;
2. That the main
application be stayed pending the adjudication of the review
application."
REVIEW
APPLICATION
[5]
On or about 20 August 2015, Tourvest launched an application to
review the decision by the first respondent, the Airports Company
of
South Africa
("ACSA"),
to award the tender to Browns
Airside.
[6]
Tourvest sought the following order in the original notice of
motion.:
"1. Reviewing and
setting aside the decision taken by the ACSA to award
opportunity
DFS 13 in terms of the RFB to the Second Respondent [Browns The
Diamond Store (Pty) Limited];
2. Awarding
opportunity DFS 13 to the applicant on the terms of the Applicant's
bid, alternatively that the award in respect of
Opportunity DFS 13 in
terms of the RFB be referred back to ACSAfor re-evaluation of the
bids of the applicant, Browns and Shimansky
which were submitted in
respect of this opportunity, with appropriate directives from this
court that the Objective Criteria set
out in clause c7 on page 35 of
the RFB ("the Objective Criteria") should be disregarded in
the adjudication process.
"
[7]
Browns Airside was not a party to the review application. Instead
"Browns The Diamond Store (Pty) Ltd (i.e. the fourth
respondent)
was.
[8]
Tourvest believed that "Browns The Diamond Store (Pty) Ltd"
had been awarded the tender but this was not so. The tender
had been
awarded to Browns Airside CC (the applicant in the main application),
who is a corporate entity separate from Browns The
Diamond Store
(Pty) Ltd.
[9]
However, when the record was delivered in terms of rule 53( l)(b)
Tourvest discovered that neither Browns the Diamond Store
(Pty)
Limited nor My LighT Holdings (Pty) Limited had submitted bids. The
persons who had submitted bids were Browns Airside CC
which trades
under the names Browns Jewellers and Rapivest 12 (Pty) Limited
trading as Shimansky. The latter was also an unsuccessful
bidder.
[10]
Tourvest supplemented its founding affidavit and amended the notice
of motion in the review application after the record had
been
received. The relief which it sought in the amended notice of motion
was the following:
"1. Reviewing and
setting aside the decision taken by the ACSA to award opportunity
DFSJ 3 in terms of the RFB to the Second
Respondent [Browns The
Diamond Store (Pty) Limited];
2. Awarding
opportunity DFSJ 3 to the applicant on the terms of the applicant's
bid, alternatively that the award in respect of
Opportunity DFS 13 in
terms of the RFB be referred back to ACSAfor re-evaluation of the
bids of the applicant, Browns and Shimansky
which were submitted in
respect of this opportunity, with appropriate directives from this
court that the Objective Criteria set
out in clause
7
on page
35 of the RFB ("the Objective Criteria") should be
disregarded in the adjudication process. "
[11]
The record contained among others a submission by ACSA's Bid
Evaluation Committee
("BEC' )
to the Bid Adjudication
Committee
("BAC').
On 13 April 2015 after ACSA had
awarded the bid to Browns Airside CC, the Bid Evaluation Committee
recommended to the National Bid
Adjudication Committee that the award
made to Browns Airside CC on 23 February 2015, should be
"rescinded
and cancelled''.
It further recommended that the bid should be
awarded to Shimansky.
It
appears from the record that prior to this recommendation being made
to the Bid Adjudication Committee, Shimansky had launched
legal
proceedings challenging ACSA's award to Browns Airside.
JOINDER
OF BROWNS AIRSIDE CC AND SHIMANSKY IN THE REVIEW APPLICATION
[12]
Tourvest amended the notice of motion and delivered a supplementary
affidavit. The names of Browns Airside CC (the applicant
in the main
application) and Rapivest 12 (Pty) Ltd trading as Shimansky
("Shimansky")
as fourth and fifth respondents
respectively, were inserted into the heading.
[13]
The amended notice of motion and supplementary affidavit were served
on Browns Airside and Shimansky. So too was the review
application. I
have my doubts as to whether the joinder of Browns Airside and
Shimansky was procedurally correct. I would have
thought that the
procedurally correct way to do so would have been to bring an
application for the joinder of these parties. Browns
Airside was at
liberty to bring an application in terms of rule 30 to set aside an
irregular step. It has not done so. To the contrary,
it has agreed to
its joinder. Shimansky's position is different it has neither consent
to being joined nor has it refused to be
joined.
THE
COUNTER APPLICATION
[14]
The question whether Browns Airside has been joined in the review
application is important. In deciding whether Tourvest has
demonstrated
a prima facie right
a court has to consider
Tourvest's prospects of success in the review application. In my view
if there is no pending
lis
between Tourvest and Browns Airside
in the review application, Tourvest would not be able to establish a
prima facie
right to an interdict. The joinder of Browns
Airside has removed the obstacle to the main application and the
counter application
because it is before the court in the counter
application. Whether Shimansky must be joined to the counter
application or not does
not arise because if the counter application
is granted Shimansky would not be adversely affected by the order. To
the contrary,
it may welcome it. It too attacks the decision awarding
the tender to Browns Airside. It would be very surprising that it
would
favour the implementation of the award.
[15]
In my view the main application and counter application are related
such that a finding on the one affects the other. By reason
of my
decision on the main application and the counter application I do not
have to examine whether Tourvest has made out a case
for an interim
interdict. I do not think it would be proper to express any view on
the counter-application except on the question
of costs.
MAIN
APPLICATION
[16]
The non-joinder of Shimansky in the application for a
mandamus
by
Brown Airside is entirely on a different footing from its non-
joinder in the counter application. Shimansky is also challenging
ACSA's decision to award the tender to Browns Airside. While I do not
have that application before me I can safely assume that
Shimansky's
case is that the tender should have been awarded to it. Implementing
the award will affect Shimansky. It may want to
say something about
that. It is trite that if a party as a direct and substantial
interest in any order that a court might make
or if such order could
not be sustained or carried into effect without prejudicing that
party, that party is a necessary party
and should be joined. It is
trite that all necessary parties should be afforded the opportunity
to be heard on matters which affect
them. It is so that the main
application was served on Shimansky. In my view that is not
sufficient.
[17]
If Shimansky is not a party to the main application, it is entitled
to take the position that because it was not a party to
the
application it is not bound the court order and may refuse to allow
the execution of the court order. This is unsatisfactory.
There also
exists the possibility that Browns Airside will have to bring an
application to which Shimansky is a party to enable
it to execute the
order. Then there is also the possibility that Shimansky would bring
an application to stop the execution of
the order. Launching such an
application will be warranted. (Whether it will succeed is another
matter. The facts and other issues
will determine this).
[18]
The order which Browns Airside seeks, will affect Shimansky.
Shimansky has the same interest which Tourvest has. Clearly Browns
Airside considered Tourvest to be a necessary party which it brought
before court. The same right has not been accorded to Shimansky.
[19]
Shimansky is a necessary party and it must be joined. Where a
necessary party has not been joined the court will not deal with
the
issues without a joinder being effected, and no question of
discretion or convenience arises.
[1]
[20]
I am alive to the fact that Browns Airside has brought the main
application to Shimansky's attention and Shimansky has not
taken any
steps to intervene in the proceedings. Mere notification is not
sufficient. The fact that the main application has been
served on
Shimansky does not alter the position. In this regard it was stated
in in Amalgated Engineering Union v Minister of Labour
[2]
that:
"Mere
non-intervention by an interested party who has knowledge of the
proceedings does not make the judgment binding on him
as resjudicata.
"
[21]
Tourvest has raised a non-joinder of Shimansky squarely on the
papers. It was submitted on behalf of Tourvest that because
Shimansky
has not been joined to the proceedings, the application should be
struck from the roll. I am in agreement that Shimansky
must be joined
to the proceedings. I however disagree that the appropriate order
should be that the matter is struck from the roll.
In my view the
appropriate order in such circumstances would be for the main
application to be postponed
sine die.
Browns Airside can then
decide whether it wishes to join Shimansky to the application.
[22]
I find that Shimansky is a necessary party and it must be joined.
This brings me to the question as to the fate of the main
application. A court may dismiss an application if there has been a
non-joinder of a necessary party.
THE
APPROPRIATE ORDERS
[23]
Mr Swart who appeared for Tourvest did not move for an order
dismissing the application. He submitted that the application
should
be struck from the roll. The postponement of an application has the
same effect as one struck from the roll. I am not inclined
to make an
order striking the application from the roll but am prepared to
postpone the main application. This will give Browns
Airside an
opportunity to join Shimansky.
[24]
The mam application and the counter application in my view are
mutually exclusive. I am not inclined to grant the counter
application. If I do so, I will effectively be refusing the main
application. If I consider the counter application and make a finding
in Tourvest's favour that will effectively put an end to the main
application. Ifl am to afford Browns Airside an opportunity to
join
Shimansky by postponing the main application and at the same time
grant the counter application, the effect thereof would
be that
Browns Airside cannot proceed with its application because a court
has already made a decision interdicting the implementation
of the
award. To grant the counter application and at the same time grant an
indulgence to Browns Airside by postponing the main
application will
hold no benefit for Browns. On the other hand, Tourvest will not be
prejudiced if the applications are postponed.
If Browns Airside
enrols the main application in due course Tourvest will be able to
pursue its counter application. The just and
equitable order in the
circumstances is to postpone both applications.
[25]
I turn to consider who should bear the wasted costs occasioned by the
postponement. The postponement is caused by Brown Airside
failing to
join Shimansky. Had Shimansky been joined there would have been no
need for a postponement. Browns Airside has caused
the postponement.
In the circumstances it is unfair for Tourvest to be burdened with
costs. The appropriate order insofar as costs
are concerned would be
for Browns Airside to pay the wasted costs occasioned by the
postponement of the main application and counter
application.
[26]
I therefore make the following order:
(a) The main application
and counter application are
postponed sine die.
(b) The applicant is to
pay the wasted costs occasioned by the postponement.
_______________________
SK
HASSIM
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, PRETORIA
Appearances:
For
the Applicant:
Adv A Katz SC
JL
Kaplan
For
the Respondent:
Adv BH Swart SC
[1]
Khumalo v Wilkens & Another 1972 (4) 470 (N).
[2]
1949 (3) SA 637
(A)