Citiconnect Business Solutions v City Manager of the City of Tshwane Metropolitan Municipality N.O. and Others (82542/2014) [2015] ZAGPPHC 115 (4 March 2015)

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[2015] ZAGPPHC 115
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Citiconnect Business Solutions v City Manager of the City of Tshwane Metropolitan Municipality N.O. and Others (82542/2014) [2015] ZAGPPHC 115 (4 March 2015)

IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 82542/2014
DATE: 4 MARCH 2015
IN
THE MATTER BETWEEN
:
CITICONNECT
BUSINESS
SOLUTIONS
...........................................................................
APPLICANT
AND
THE CITY MANAGER
OF THE
CITY OF TSHWANE
METROPOLITAN
MUNICIPALITY
N.O.
….......................................................................................
FIRST
RESPONDENT
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
.................................................................................................
SECOND
RESPONDENT
SECURELINK
INTERNATIONAL (PTY)
LIMITED
.................................................................................................................
THIRD
RESPONDENT
BYTES
SYSTEM INTEGRATION
CC
...........................................................
FOURTH
RESPONDENT
TELKOM
SA SOC
LIMITED
...............................................................................
FIFTH
RESPONDENT
DIMENSION
DATA
LIMITED
............................................................................
SIXTH
RESPONDENT
PHATSIMA
CONSORTIUM
.........................................................................
SEVENTH
RESPONDENT
JUDGMENT
KOLLAPEN J:
l. In this
application, brought in two parts, the following relief is sought by
the applicant:
In part A the relief
sought is:
‘
That
pending the final determination of the relief sought in part B of the
application:
i The first and
second respondents be and hereby are interdicted and restrained, with
immediate effect, from in any way proceeding
with the tender process
or implementing the request for proposal for the provision of
municipal broadband network infrastructure
under tender reference
number GICT01 /2014/15;
ii. The first and
second respondents be and hereby are interdicted and restrained, with
immediate effect, from appointing a service
provider or concluding a
contract in any form with a prospective service provider in respect
of the intended project for the provision
of municipal broadband
network infrastructure, whether under tender reference number
GICT01/2014/15 or any other reference number.”
2
.
In part B, the applicant seeks an order in the following terms:
i.
That to the extent necessary, the period of 180 days referred to in
Section
7
of the Promotion
of Administrative Justice Act, 3 of 2000 (“PAJA ") be
extended to the date of institution of this application
in terms of
Section 9(l)(b) and Section 9(2) of PAJA;
ii. That to the
extent necessary, the applicant be exempted in terms of Section
7(2)(c) of PAJA from the obligation to exhaust internal
remedies;
iii. That the
decision by the first respondent taken on the 18
th
of June
2014, in terms of which the first respondent purported to cancel the
tender process under tender reference number CB104/2013,
be and is
hereby reviewed and set aside;
iv.
That a declarator
be issued to the effect that the applicant has been awarded the
tender under tender reference number CB104/2013;
v.
Alternatively to prayer 4 above,
that the first and second respondents be ordered to take all
necessary steps to proceed with the
tender process under tender
reference number CB104/2013 to its conclusion;
vi.
That the costs of part B of this
application be paid by the first and second respondents, as well as
by any other party that may
seek to oppose the relief sought in part
B of this application, jointly and severally with the second
respondent
vii.
Further and / or alternative
relief
3. The first, second
and seventh respondents oppose the application and the first and
second respondents have, in addition, filed
a counter application in
which they seek an order that:
i. The purported
award of the tender in dispute to the applicant is declared invalid
and set aside;
ii. The costs of the
counter-application be paid by the applicant.
THE FACTUAL
BACKGROUND
4. The applicant
describes itself as the fibre optic infrastructure and service arm of
the Wired Corporation and as having expertise
in the building and
development of city wired broadband infrastructure projects.
5. The first
respondent sought to implement a broadband network that would amongst
other things improve the delivery of services
and contribute to the
economic upliftment of the city.
6. Sometime in
mid-2013, the second respondent embarked on a tender process for its
broadband project which commenced with a written
request for proposal
under tender reference number CB104/2013 (‘the 2013 RFP’).
This was published on the 27
th
of May 2013 and the closing
date for the submission of tenders was the 6
th
of July
2013.
7. From amongst the
various tenders submitted within the stipulated period, those of the
applicant and the seventh respondent were
selected to progress to the
next phase of the technical evaluation process. The applicant was
informed of this in writing on or
about the 22
nd
of July
2013. It would appear that various committees of the second
respondent’s supply chain procurement process considered
the
then remaining tenders during the period after the tender closing
date in July 2013 up and until the 25
th
of April 2014 when
the executive acquisition committee (‘EAC’) of the
respondent resolved, subject to the matter being
referred to National
Treasury on the question of whether the bid was a Public Private
Partnership (‘PPP’) project,
to accept the applicant’s
bid and that a resolution to this effect was signed by the acting
chair of the EAC as well as the
first respondent in his capacity as
City Manager.
8. The written terms
of the tender issued under the 2013 RFP provides that the tender
validity period would be 180 days after the
closing date - ordinarily
this period would have expired on the 6
th
of January
2014.
To the extent that
the issue of whether there was a tacit extension of the validity
period has been raised, the following is of
importance:
i. On or about the
22
nd
of January 2014, the applicant completed a written
extension document which purported to extend the validity of the
applicant’s
tender to the 30
th
of May 2014;
ii. On or about the
12
th
May 2014, the applicant completed a further written
extension document which purported to extend the applicant’s
tender to
the 30
th
of June 2014;
iii. The seventh
respondent also completed similar written extension documents during
January 2014 and May 2014.
9.
On the 18
th
of June 2014, the first respondent advised the applicant in writing
of the cancellation of tender CB104/2013 with immediate effect.
It
indicated that it was doing so on account of the changed needs of the
first respondent and intimated that it was planning to
commence a new
procurement process in this regard.
10.
On the 12
th
of September 2014, the first and second respondents issued a request
for proposal for municipal broadband network infrastructure
under
tender reference GICT01/2014/15 (‘the 2014 RFP’).
11. There have been
various tenders submitted in response to the 2014 RFP including those
from the applicant and the seventh respondent.
While the
tender
validity period was due to expire on the 12 of January 2015, it has
since been extended to the 12 of April 2015. It is in
respect of
this, the 2014 RFP, that the applicant seeks the relief in part A of
this application.
THE STANCE OF
THE APPLICANT
12.
The relief sought by the applicant is premised on its stance that the
purported cancellation of the 2013 RFP was invalid and
unlawful and
that it was either awarded the tender under the 2013 RFP, or ought to
have been awarded that tender on the basis of
the various processes
undertaken by the first and second respondents, culminating in the
resolution of the EAC of the 25
th
of April 2014, which resolution was also signed and approved by the
first respondent.
13. To this extent
it contends that it has a clear right to review the decision by the
first respondent to cancel the 2013 RFP and
that if the 2014 RFP,
which it submits is substantially the same in content as the 2013
RFP, is allowed to run its course and another
tenderer is appointed,
it may have the effect of rendering academic the applicant’s
right to review the decision of the first
respondent, which it seeks
to do in Part B of this application.
14. The applicant
relies on a tacit agreement that in submitting the bids in response
to the 2013 RFP, the various bidders as well
the second respondent in
accepting the tenders and subjecting it to the 2013 RFP process,
tacitly agreed that the tender validity
period be extended until the
second respondent arrived at a decision as to whose bid should be
accepted.
15. It further
argues that in the event the Court concluded that the validity of the
bid period expired on the 6
th
of January 2014 and in
addition found that there was no tacit agreement to extend it, in
such event the conduct of the first and
second respondents in
considering and awarding the tender after it had expired, while
irregular, was not material and should not
lead to the invalidation
of the award of the tender.
THE STANCE OF
THE RESPONDENTS
16.
While the first and the second respondents in large measure do not
dispute the factual matrix that led to the resolution of
the EAC of
the 25
th
of April 2014 and the subsequent cancellation of the tender on the 18
of June 2014, they contend that if regard is had to the tender

validity period, then the validity of all tenders and in particular
that of the applicant, expired on the 6 of January 2014.
17.
They argue that as there was no extension of the validity period
prior to the 6
th
of January 2014, the bids expired on the 6 of January 2014 and
accordingly whatever may have followed thereafter, including the

attempts of the 22
nd
of January 2014 and the 12
th
of May 2014 to extend the validity period, had no effect or
consequence in law. In this regard they conclude that the resolution

of the 25 of April 2014 was based on an incorrect understanding that
the tender was still valid and to that extent there could
be no legal
consequences that could conceivably attach to the resolution.
18.
Simply put their stance is that all the processes around the 2013 RFP
ended on the 6 of January 2014 and it could thus not be
said that the
applicant could be the holder of any rights that arose out of the
EAC’s resolution on the 25 of April 2014
as in law those
processes were a nullity, carried no effect or consequence and
accordingly could not generate any rights, particularly
the one the
applicant contends for.
19. With regard to
the reliance by the applicant on a tacit term to extend the validity
of the tender period, the respondents and
in particular the seventh
respondent, have argued that such a tacit term was not permissible in
law given that it sought to contradict
the express terms of the
agreement and that in any event, on the facts and circumstances that
existed at the time, it was extremely
unlikely if not impossible for
such an agreement to have been concluded. In addition the respondents
intimate that in any event
such a tacit agreement as contended for
would be in contravention of the transparency requirement found in
Section 217 of the Constitution.
THE ISSUES FOR
DETERMINATION:
Whether
the matter is urgent in the manner in which it was brought?
Did
the 2013 RFP validity period lapse on the 6 of January 2014 or was
there a tacit agreement to extend it as contended for by
the
applicant?
If
there was a tacit agreement to extend, then has the applicant
satisfied the other requirements for the grant of the interim
relief
it seeks?
If
there was no tacit agreement, did the ongoing consideration of the
tender and the award constitute a non-material irregularity
that
militates against the invalidation of the award?
URGENCY:
20. The case for
urgency that the applicant relies on is that while it became aware of
the cancellation of the tender during August
2014, it only became
aware of the award of the tender to it on the 15 of October 2014 when
the second respondent made available
the record relating to the EAC
decision of the 25
th
of April 2014. From that point onward
it took all reasonable measures to obtain legal advice, consult with
counsel and attend to
the preparation of papers culminating in the
launch of the application on the 11 of November 2014.
21
. The respondents in disputing that the matter is urgent, point out
that the applicant, as far back as the 27 of August 2014,
took issue
with the decision of the 18
th
of June 2014 cancelling the 2013 REP and that the application could
and should have been launched earlier.
22. In my view the
relevant time period is from the 15
th
of October 2014,
when the applicant became aware of the EAC decision. Whatever the
legal status of that resolution may be, from
the perspective of the
applicant, it was a significant factor in the way it interpreted its
position, concluded that it had acquired
rights out of that process
and then sought relief. I am satisfied that it took all reasonable
measures to prosecute its case timeously
and in enrolling it as it
did for the 2
nd
of December 2014.
23. There are
disputes relating to the ongoing urgency of the matter after that but
they relate largely to the question of costs
and I will address that
if it becomes necessary. In addition, there were various developments
after the 2
nd
of December 2014 which relate to joinder and
the extension of the validity of the bids in respect of the 2014 RFP
which then had
the effect of rendering the matter less urgent than it
originally was and which culminated in the hearing of the matter on
the
11
th
of February 2014.
24.
I am accordingly satisfied that a proper case has been made out with
regard to urgency.
THE
VALIDITY OF THE TENDER BEYOND THE 180 DAY
PERIOD:
25
.
It is not in dispute that in terms of the provisions of the 2013 RFP
the validity period of bids would be 180 days and that ordinarily
the
bids would no longer be valid after the 6
th
of January 2014 unless they were extended. The 2013 RFP also created
a mechanism for the extension of the validity of bids whereby
the
bidders could be requested to extend the period of validity and they
could then elect whether to do so or not. If they did
not then the
validity of the bid would expire if not extended.
26 . In advancing
the case for a tacit extension of the validity period, the applicant
argues that considering that historically,
the first and second
respondents were never able to finalise a tender within the 180 day
period, it was, at the time the various
bids were submitted
(presumably in July 2013), tacitly agreed between all the bidders and
the second respondent in accepting and
processing the various bids,
that the validity period would be extended until such time as the
second respondent made a final decision
on the tender. The applicant
also suggests that the respondents have raised the lapsing of the
2013 RFP as an afterthought as it
emerged as being their stance for
the first time in the opposing affidavits filed in these proceedings
and was never raised at
any time earlier as a factor justifying the
cancellation of the 2013 RFP.
27.
In
TELKOM SA LIMITED v MERID TRADING AND OTHERS
(case
number 27974/2010), an unreported judgment of the North Gauteng High
Court of the 7
th
of January 2011, the Court in dealing with a set of facts which are
strikingly similar to those in the matter on hand, made the
following
observations:
i. The decision to
award a tender is an administrative process and therefore the
provisions of the Promotion of Just Administrative
Action Act apply.
ii.
The
tender process is also regulated by Section 217 of the Constitution
which requires that the process must be ‘fair, equitable,

transparent, competitive and cost effective’.
iii.
As
soon as the validity period of the bids had expired without the award
of a contract the tender process was complete. Any attempt
to
continue with the tender process would no longer be transparent,
equitable or competitive.
iv.
The
requirements of transparency, equity and competitiveness would
require that in the event a tender was not awarded within the

validity period, all interested parties should be offered a further
opportunity to tender (presumably under a new tender).
v.
If
the tender process was irregular because it did not comply with the
required procedure, the organ of State was obliged to ignore
the
award of the tender and resist any attempt to enforce it.
vi.
To
the extent that reliance is placed on the existence of a tacit
agreement to extend the validity of the tender, the existence
of such
an agreement must be inferred from all the relevant facts and
circumstances.
Here, SOUTHWOOD J
accordingly reviewed and set aside the award of the tender.
28.
In
JOUBERT GALPIN SEARLE INC AND OTHERS v ROAD
ACCIDENT FUND AND OTHERS
2014
(4) SA 148
(ECP)
,
PLASKET J followed the approach taken by SOUTHWOOD J in
TELKOM
(supra)
and took the view that once the bid validity period of a tender had
expired, there was nothing to extend because the tender
process was
concluded.
When
one has regard to the facts before this Court, clearly there was no
written or express extension of the bid validity period
beyond the
6
th
of January 2014 and certainly on the basis of the reasoning in
TELKOM
and
the
JOUBERT
cases
with which I associate myself, the validity of the bid was not
expressly extended before it expired and accordingly all the

processes and decisions purported to be taken after the 6
th
of January 2014 would have no effect or consequence.
30
.It was suggested by the applicant that the stance adopted in
TELKOM
and
JOUBERT
was
incorrect in that the conclusion of invalidity was cast in stone and
was immutable, as it were. It failed to consider whether

notwithstanding the irregularity or the deviation, there was still
compliance with the principles set out in Section 217 of the

Constitution. It argued that if ultimately the irregularity or the
deviation did not impact on the fairness, transparency,
cost-effectiveness
or equity of the process, invalidation should not
follow.
31.
My view is that creating such a distinction is fraught with
difficulty and danger. The tender process that has developed cannot

be insulated from the requirements of fairness, transparency or
equity. On the contrary, it has not been raised in these proceedings

that the content of those processes can and do stand apart from the
prescripts found in Section 217. In this regard the conclusion
by
SOUTHWOOD J in
TELKOM
that
the doctrine of legality requires that a contract of this nature be
preceded by compliance with the prescribed tender processes
failing
which invalidity will result, is not an immutable proposition but
rather one that carefully considers and gives effect
to the
requirements of Section 217 as they manifest themselves in the
intricacies and the detail of the tender process.
32.
Accordingly my conclusion on this aspect of the argument is that upon
the expiration of the tender validity period and in the
absence of an
award being made within the validity period, the tender would
ordinarily have expired, except of course if there
was a tacit
agreement to extend the validity of the bid which is an issue I now
proceed to deal with.
THE
‘TACIT TERM’ THAT EXTENDED THE BID VALIDITY
PERIOD:
33
. I now proceed to deal with the applicant’s argument that
there was a tacit extension of the bid validity period. In this

regard the applicant’s case is that at the time the bids were
submitted, a tacit agreement to extend the validity period
of all the
bids submitted came into existence and the tacit agreement was to the
effect that the validity period would be extended
until the final
decision on the tender was taken by the first and second respondents.
34. Before dealing
with the merits of this submission, it may be useful to state the
legal principles that should guide the Court
and be applicable in
adjudicating this aspect of the matter.
A tacit term is an
unexpressed provision of a contract that is derived from the common
intention of the parties, which is inferred
from the express terms of
the contract and from the surrounding circumstances.
In
MULTILATERAL MOTOR VEHICLE ACCIDENTS FUND V
THABEDE
1994
(2) SA 610
(N),
MAGID
J drew attention to the difficulty of reading a tacit term into an
offer, since a tacit term depends on the common intention
of the
parties and ‘there can be no such ‘common intention’
in a unilateral document like an offer’. MAGID
J went on to say
(at 614B):
‘
It
seems to me, therefore, that, save for an implied term properly
so-called (that is to say one implied by law), it is impossible
to
read into a unilateral document such as an offer a tacit term unless
there are surrounding circumstances which are relied on
by the
offeror and pleaded and proved in the course of the litigation in
question. ’
35 . Given that both
the first and the seventh respondents deny that such a term was
tacitly agreed upon at the time of the submission
of bids, it is
inconceivable how the Court can arrive at a conclusion that the
common intention of the parties supported the tacit
agreement
contended for. In addition all that is said with regard to the
surrounding circumstances is that it was common knowledge
that the
tender process would not be complete within 180 days and all those
submitting bids, and the first respondent in accepting
them, accepted
and consented to participate in the process until the first
respondent arrived at a final decision
36.
Given both the denial by the respondents of this understanding of the
circumstances, their specific denial of the tacit term
contended for
and the extremely vague and generic nature of the circumstances
relied upon to advance the case for a tacit term,
I would be
extremely reluctant on such a speculative scenario articulated by
only the applicant to place too much reliance on those
alleged
circumstances in order to advance the argument for a tacit term
having come into existence for those reasons. In this regard
one must
also be guided by the caution expressed by our Courts that a Court
should not readily import a tacit term
(See
ALFRED MCALPINE & SON (PTY) LTD v
TRANSVAAL PROVINCIAL ADMINISTRATION
1974
(3) SA 506
(A))
37 . There are with
respect no facts provided to support the conclusion the applicant
contends for. Whatever the history of the
second respondent may be in
dealing with and deciding on tenders, that can hardly be decisive of
the issue. It is quite a far-reaching
proposition to state that such
a history on its own stands to support the conclusion of a tacit
agreement. In my view there has
been no case made out for the
existence of a tacit agreement by reference to the surrounding
circumstances that existed at the
time the alleged agreement was to
have been arrived at.
38. In addition, the
applicant sought to rely on the purported written extensions during
January and May 2014 to which reference
has already been made, to
support the argument that a tacit extension was agreed upon in July
2013. This proposition is also unsustainable.
If indeed there was a
tacit agreement to extend the bid validity until a decicion was
taken, there would be no need to effect the
purported extensions
until the end of May 2014 and June 2104 respectively. Those purported
extensions far from advancing the case
for the existence of a tacit
term, strongly militate against its existence. It must certainly be
eminently arguable that the need
for the written extension existed
precisely because there was no prior agreement on the bid validity as
contended for by the applicant.
That can be the only reasonable
explanation for these purported extensions. The suggestion in
argument that the purported written
extensions constituted a
variation of the tacit term already agreed upon is with respect
contrived and convoluted.
39.
A tacit term cannot be irreconcilable with the express terms of the
contract. It is well established that a tacit term cannot
be inferred
if it would be irreconcilable with the express terms of the contract.
In
FIRST NATIONAL BANK OF SA LTD v TRANSVAAL
RUGBY UNION AND ANOTHER
1997
(3) SA 851
(W)
the
Court stated that (at 864G):
‘
It
is trite that an implied term which conflicts with the express
wording of an agreement cannot be maintained. A useful restatement
of
the relevant legal principles is to be found in
Robin
v Guarantee Life Assurance Co Ltd
[1984] ZASCA 72
;
1984
(4) SA 558
(A) at 567C-F, where Trengove JA, as he then was, stated
the following:
‘
A
tacit term cannot be imported into a contract in respect of any
matter to which the parties have applied their minds and for which

they have made express provision in the contract. As was said by Van
Winsen JA in
SA
Mutual Aid Society v Cape Town Chamber of Commerce
1962
(1) SA 598
(A) at 615D:
A term is sought
to be implied in an agreement for the very reason that the parties
failed to agree expressly thereon. Where the
parties have expressly
agreed upon a term and given expression to that agreement in the
written contract in unambiguous terms no
reference can be had to
surrounding circumstances in order to subvert the meaning to be
derived from a consideration of the language
of the agreement only. ’
40.
Similarly in
KELVINATOR GROUP SERVICES (PTY) LTD
v MCCULLOH
1999 (4) SA
840
(WLD)
,
NUGENT J stated that:
'A
tacit term is not merely one that would have been reasonable, or
convenient, for the parties to have included in their agreement...but

is rather a term which, by necessary implication, the parties must
have intended would form part of their agreement or would have
so
intended if they had turned their minds to the particular issue. It
follows that there can be no room for such a term if it
would be in
conflict with the express provisions of the agreement.
’
(at
844B)
41.
It must also be noted that Courts are generally slow to import a
tacit term into a contract. CORBETT JA reiterated this principle
in
ALFRED MCALPINE
& SON (PTY) LTD
v
TRANSVAAL
PROVINCIAL ADMINISTRATION
1974
(3) SA 506
(A) (at 532H-533A):
‘
The
Court does not readily import a tacit term. It cannot make contracts
for people; nor can it supplement the agreement of the
parties merely
because it might be reasonable to do so. Before it can imply a tacit
term the Court must be satisfied, upon a consideration
in a
reasonable and businesslike manner of the terms of contract and the
admissible evidence of surrounding circumstances, that
an implication
necessarily arises that the parties intended to contract on the basis
of the suggested term. '
42
. Under these circumstances the content of the alleged term, namely
that bids would be open-ended until acceptance, stands in stark

contrast to Tender Notice and Invitation and the provisions of Clause
F 2.16.1 of the Tender which states that tenders must remain
valid
for a period of 180 days and that the tenderer, if requested by the
employer, could consider extending the validity period
for an agreed
additional period.
43. Clearly what was
contemplated was an extension and this can only mean an agreement to
extend the 180 day period that is arrived
at after the submission of
bids and before the expiration of the 180 day period. The case for
the applicant does not constiutute
an extension but rather from the
very outset an amendment to the tender conditions.
44. The alleged
tacit term is accordingly clearly in conflict with the express
provisions of the tender and cannot be maintained.
45 . If one has
regard to the tender document and the bids submitted, they clearly
reflect the position that the parties had applied
their mind to the
matter and the particular issue of the validity period and therefore
it could never be said that the tacit term
is one which the parties
by necessary implication must have intended to be part of their
agreement.
46.
For all of the above reasons there can be no basis to uphold the
applicant’s assertion that a tacit agreement came into

existence under the circumstances contended for. From this it must
follow that the purported award of the tender was invalid and
that
the applicant could not be said to have acquired any rights as a
result thereof.
47
. The final argument of the applicant was that even if there was no
tacit term proved, the conduct of the parties in continuing
to deal
with and consider the tender and ultimately awarding it, was a
non-material deviation from the agreed process and should
not result
in the invalidity of the award. Reliance was placed on the
dicta
in
ALLPAY CONSOLIDATED INVESTMENT HOLDINGS (PTY) LTD
AND OTHERS v CHIEF EXECUTIVE OFFICER, SOUTH AFRICAN SOCIAL SECURITY
AGENCY, AND
OTHERS
2014
(1) SA 604
(CC).
48. In this regard
the deviation could hardly be described as non-material or
inconsequential. The consideration of a tender after
it had lapsed is
a serious matter. Even more serious is that once the tender had
lapsed there could be no justifiable reasons to
have continued
considering the tender of only two bidders. At that stage, if there
was to be any ongoing consideration, it would
have had to include all
the original bidders. Fairness and transparency would have required
nothing less. In my view the deviation
was material and there can be
no room for the Court to condone what was simply an ongoing
illegality in the consideration of a
lapsed tender.
49
.For all of these reasons, it cannot be said that the applicant has
established a
prima
facie
right
(even one open to some doubt) in its reliance on the award made to it
on the 25
th
of April 2014. No rights could have flowed from the process which had
become fatally flawed after the 6 of January 2014 when the
tender
lapsed. The application must accordinglty fail on account of this.
COSTS
50.
While costs should ordinarily follow the result, the Court has a
discretion with regard to costs which discretion must be judicially

exercised. When one has regard to the conduct of the first respondent
then from the common cause facts, it hardly acted in a manner

commensurate with a public body entrusted with the responsibility of
managing large tenders. It remained in control of the tender
process
and it set the conditions for the tender and the timeline for the
submission of bids and their validity. Despite this it
allowed a
process that had lapsed to simply continue and even when advised of
the implications of its conduct by reference to the
TELKOM
decision,
it continued to process the tender and make an award.
51. More must and
should be expected of it and indeed the Supply Chain Management
Policy of the first respondent enjoins it to be
efficient, effective,
and conform to all legal requirements. It certainly did not in this
instance if one has regard to the events
after the 6
th
of
January 2014 and the stance that the tender had lapsed was adopted
for the first time in the opposing affidavits in this application.
52. Under these circumstances my view is
that even though it has been successful, it should not on account of
its conduct be awarded
any costs. Mr Tsatsawane objected to the Court
making any adverse costs order in this regard on the basis that it
was not the case
the first and second respondents was required to
meet. I have noted and considered the objection but believe that to
the extent
that I have relied on common cause facts to sustain the
conclusion I have arrived at, the first and second respondents cannot
complain
of any prejudice in this regard.
53. There was some
discussion as to whether the applicant’s failure to obtain
relief in Part A disposes of Part B and the
counter application and
while it may well appear to be so, Part B is not before me and the
applicant may well wish to consider
its position in respect of part B
after considering this judgment. I accordingly see no need to make
any order in respect of Part
B or the counter application.
ORDER
54 . I make the
following order:
i. Part A of the
application is dismissed with costs;
ii. The applicant is
ordered to pay the costs of the seventh respondent which shall
include the costs of two counsel.
N
KOLLAPEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
HEARD ON: 11
FEBRUARY 2015
FOR THE APPLICANT:
ADV. J J BRETT SC (assisted by ADV. E KROMHOUT)
INSTRUCTED BY: DAVID
KAHN & ASSOCIATES (ref: Kahn/BWI 1/0001)
FOR THE FIRST AND
SECOND RESPONDENTS: ADV. K TSATSAWANE
INSTRUCTED BY:
GILDENHUYS MALATJI INC. (ref: H Chaane/KM/01738038)
FOR THE SEVENTH
RESPONDENT: ADV. R BHANA SC (assisted by ADV. E WEBBER)
INSTRUCTED BY:
NORTON ROSE FULBRIGHT (ref: C van Eetveldt/DM/MAT33442)