About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 42
|
|
Neo Siyabonga Construction and Plant Hire CC and Another v Piet Bok Construction CC and Others (A794/2012) [2015] ZAGPPHC 42 (6 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
DATE: 6 FEBRUARY
2015
CASE NO: A794/2012
DATE HEARD:
10/12/2014
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
NEO
SIYABONGA CONSTRUCTION AND PLANT HIRE
CC
.......................................
First
Appellant
MAVIO
TRADING ENTERPRISES
CC
..........................................................................
Second
Appellant
and
PIET
BOK CONSTRUCTION
CC
.....................................................................................
First
Respondent
MINISTER
OF PUBLIC
WORKS
.................................................................................
Second
Respondent
CONSTRUCTION
INDUSTRY DEVELOPMENT
BOARD
........................................
Third
Respondent
MINISTER
OF CORRECTIONAL
SERVICES
...........................................................
Fourth
Respondent
JUDGMENT
J
W LOUW. J
:
[1] On 29 May 2009,
the Department of Public Works advertised tender no. H09/052 for the
construction, repair, maintenance and operation
of waste water
treatment works and water purification works at the Losperfontein and
Groenpunt prisons. The first and second appellants,
acting as a joint
venture (the JV), as well as the first respondent submitted tenders.
The first respondent's bid was R24 551 046.28
and was the lowest. The
JV's bid was R25 703 367.16. It was, however, the highest point
scorer, being awarded 91.19 points as against
the 91 points awarded
to the first respondent. The higher score awarded to the JV was based
on its BEE credentials. The Bid Evaluation
Committee nevertheless
recommended that the tender be awarded to the first respondent. The
Special National Bid Adjudication Committee
of the Department of
Public Works, however, decided to award the tender to the JV, which
it did on 2 February 2011.
[2] The first
respondent thereafter brought an application to review and set aside
the award of the tender to the JV and for an
order that the tender
forthwith be awarded to the first respondent. The main ground relied
upon was that one of the tender conditions
had been that tender
offers would be evaluated by an evaluation committee based on the
stipulated technical and commercial risk
criteria, which criteria
would be evaluated and be based on reports presented by the
Department's professional team, Virtual Consulting
Engineers (Pty)
Ltd (VCE); that a tender offer would be declared non-responsive and
removed from further evaluation if any one
criterion was found to
present an unacceptable risk to the employer; that one of the
technical risks listed is the quality of current
and previous work of
the tenderer; that the appointed professional team compiled a risk
assessment report from which it appeared
that only one of the six
previous projects on which the members of the JV allegedly worked
could be confirmed, which was a project
on which the JV was a
sub-contractor and which did not consist of construction work; that
the conclusion reached by the professional
team was that the JV's
lack of sufficient appropriate construction experience would pose a
risk in completing the scope of work
related to the contract; that
the JV's tariffs were unbalanced and contained arithmetical errors;
and that, therefore, the technical
and commercial risk of appointing
the JV was deemed to be extremely high and unacceptable.
[3]
The court
a quo
agreed
with the first respondent's submissions in this regard and
accordingly granted an order reviewing and setting aside the award
of
the tender to the JV. The court further found that the facts of the
present matter justified an order in terms of s 8(l)(c)(ii)(a)
of
PAJA in terms whereof a court may, in exceptional cases, substitute
or vary the administrative action in question. It accordingly
ordered
the Minister of Public Works (second respondent) to forthwith award
the tender to the first respondent. The first and second
appellants
were ordered, jointly and severally, to pay the first respondent's
costs, including the costs of two counsel. The court
granted the
first and second appellants leave to appeal to the full court.
[4] The period
within which the various types of construction and repair work for
which the JV was appointed had to be completed
varied from 4 months
to 10 months. The period within which the maintenance work had to be
completed was 36 months. The expiry date
of the contract was
therefore 1 February 2014. The appeal was set down for 10 August
2014. Shortly before the hearing of the appeal,
the first respondent
filed an affidavit by Mr. D.R. Veldtman who is a director of VCE and
who acted as the project director from
the inception of the project.
He states in the affidavit, which was deposed to on 9 July 2014, that
the work done at the Groenpunt
prison accounted, in value, for
approximately 20% of the total contract price and that this part of
the contract consisted of repair,
maintenance and operation work.
Construction work was limited to two sludge dams which have been
built. This part of the project
has therefore been finalized. The
contract in respect of Losperfontein has been extended by twelve
months, until 1 February 2015,
for construction to be completed.
He attached a
schedule to his affidavit reflecting the construction work still to
be done and the stages of completion thereof.
[5] Before any
argument was heard on behalf of the parties on 10 August 2014, we
enquired from them how far the work had been completed.
The only
evidence before us at that stage was the affidavit of Mr. Veldtman.
Counsel for the appellants requested an opportunity
to provide
updated information. The appeal was, as a result, postponed to a date
to be arranged and an order was made that the
affidavit by Mr.
Veldtman be admitted, that the appellants and the second respondent
may file an answering affidavit on or before
27 August 2014 and that
the first respondent may file a reply on or before 10 September 2014.
The appellants filed their answering
affidavit on 28 August 2014 and
the second respondent's answering affidavit was filed on 2 September
2014. The first respondent's
replying affidavit was filed on 10
September 2014. The date of 10 December 2014 was allocated by the
Judge President for the hearing
of the appeal.
[6] What emerges
from the affidavits which have been filed is the following. According
to Mr. Veldtman's affidavit, the total contract
value escalated to
approximately R30 million and the value of the work which still had
to be done as at 12 June 2014 was approximately
R9 million. This
constituted 13,3% of the value of all the work.
[7] The appellants
commissioned independent engineers, GKB Design Associates (Pty) Ltd,
to assess the status of the construction
phase of the project. Their
report, which is dated 11 August 2014, is attached to the answering
affidavit filed on behalf of the
appellants. According to the report,
49,2% of the construction aspect of the work had been completed and
the cost of the outstanding
work in respect thereof was R2 650
850.00, which constitutes 12% of the entire remaining works,
excluding the amount of R115 850,00
per month for the maintenance and
operations part of the project.
[8] According to the
answering affidavit filed on behalf of the second respondent, which
was deposed to on 26 August 2014, the status
of the construction work
at Losperfontein as at that date was 60% despite challenges faced by
the contractor due to heavy rains
which contributed to the delays.
According to a certificate provided by VCE on 11 August 2014, the
total value of the construction
work at Losperfontein was R6 307
586.00. If 60% of the construction had been completed as at 26 August
2014, the amount outstanding
in respect thereof amounted to R3,784
million.
[9] The first
respondent's replying affidavit was deposed by Mr. P.I.L. Pretorius,
a member of the first respondent and a qualified
civil engineer. He
states that the outstanding value of the construction work still to
be done as at 15 August 2014 is the sum
of R4 093 366.30, excluding
maintenance and operations costs. Bearing in mind that this affidavit
was deposed to on 15 August 2014
and that of the second respondent on
26 August 2014, the small difference between the two figures is
probably due to further work
having been done between those two
dates.
[10] All the
evidence indicates that, as at August 2014, a relatively small amount
remained payable in respect of the construction
work at
Losperfontein. It is reasonable to assume that as at the date of the
hearing of the appeal on 10 December 2014, further
construction work
had been done and that the outstanding value of the construction at
that date would, as a result, have been less
than the amounts
estimated in August 2014. As previously mentioned, the completion
date of the project was extended to 1 February
2015. We do not know
whether the construction work was, as a fact completed by that date.
If not, any outstanding amount due in
respect of the construction
work must be small in relation to the total value of the contract. As
far as the maintenance, repair
and operation aspects of the contract
are concerned, that came to an end on 1 February 2015.
[11]
In
Chairperson,
Standing Tender Committee and Others v JFE Sapela Electronics (Pty)
Ltd
1
the
following was said:
In
appropriate circumstances a court will decline, in the exercise of
its discretion, to set aside an invalid administrative act.
As was
observed in
Oudekraal
Estates (Pty) Ltd
u
City of Cape Town
2004
(6
)
SA
222 (SCA)
para 36 at 246D:
It is that
discretion that accords to judicial review its essential and pivotal
role in administrative law, for it constitutes the
indispensable
moderating tool for avoiding or minimising injustice when legality
and certainty collide.
A
typical example would be the case where an aggrieved party fails to
institute review proceedings within a reasonable time. See
eg
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A)
;
see also s 7(1) of PAJA which gives statutory recognition to the
rule. In a sense, therefore, the effect of the delay is to 'validate'
what would otherwise be a nullity. See
Oudekraal
Estates (Pty) Ltd,
(supra)
para 27 at 242E-F. In the present case, as I have found, there was no
culpable delay on the part of the respondents. But
the object of the
rule is not to punish the party seeking the review. Its
raison
d'être
was
said by Brand JA in
Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005
(
2)
SA
3
02
(S
CA)
([2004]
4 All SA 133)
in para 46 to be twofold:
First, the failure
to bring a review within a reasonable time may cause prejudice to the
respondent. Secondly, there is a public
interest element in the
finality of administrative decisions and the exercise of
administrative functions.
Under the rubric of
the second I would add considerations of pragmatism and practicality.
[12]
In my view, this is a case where, by reason of the effluxion of time,
considerations of pragmatism and practicality dictate
that, even if
the findings of the court a quo were correct, the decision of the
second respondent to award the tender to the appellants
should not be
set aside. The contract in respect of repair, maintenance and
operation has expired. The construction work at Groenpunt
has been
completed and at Losperfontein it has either been completed or, if
not, the value of the outstanding work is small in
relation to the
total value of the work. If the tender were to be awarded to the
first respondent at this stage, the completion
of the last small
portion of the construction work at Losperfontein will be disrupted.
The first respondent will also probably
not be interested in
establishing itself on site just for the purpose of completing that
small outstanding portion of the work.
[13]
I come to the question of costs. I am in respectful agreement with
the findings of the court
a
quo.
The
tender should not have been awarded to the appellants for the reasons
stated in the judgment of the court. The decision to award
the tender
to the appellants was therefore correctly reviewed and set aside by
the court. For that reason, it would be appropriate
that the
appellants and the first respondents be ordered to pay the first
respondent's costs both in the court
a
quo
and
in this court.
[14] I propose that
the following order be made:
(1) The appeal is
upheld.
(2) The first and
second appellants and the second respondent are ordered to pay the
first respondent's costs of the appeal jointly
and severally, the one
paying the other to be absolved, including-
(a) the costs of 30
July 2014;
(b) the costs of two
counsel.
(3)
The order of the court
a
quo
is
set aside and substituted with the following order-
'(i) The application
is dismissed.
(ii) The first,
second and third respondents are ordered to pay the applicant's costs
of the application jointly and severally,
the one paying the other to
be absolved, such costs to include the costs of two counsel.'
J.W. LOUW
JUDGE OF THE HIGH
COURT
I agree:
T.V. RATSHIBVUMO
ACTING JUDGE OF
THE HIGH COURT
I agree, and it is
so ordered:
M.W. MSIMEKI
JUDGE OF THE HIGH
COURT
1
2008
(2) SA 638
(SCA) para [28]