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[2015] ZAGPPHC 372
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Viva Engineering Project CC and Others v Minister of Water Affairs and Others (64340/13) [2015] ZAGPPHC 372 (5 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 64340/13
DATE:
5/6/2015
In
the matter between:
VIVA
ENGINEERING PROJECT CC
First
Applicant
VIVA
ENGINEERING PROJECT CC
AND
CORRO-WEAR JOINT
VENTURE
Second
Applicant
and
MINISTER
OF WATER
AFFAIRS
First
Respondent
MRS
Z MATHE
NO
Second
Respondent
METHABICA
CONSULTING
Third
Respondent
STELENBOSCH
NACO
Fourth
Respondent
BELTA
SERVICES
Fifth
Respondent
PRO-ELECTRO
SERVICES
Six
Respondent
JUDGMENT
A
B ROSSOUW A J
(1)
This is an
application for leave to appeal against the order that I made on 17
March 2015.
(2)
The
application for leave to appeal was brought to my attention about two
weeks ago. I immediately requested the registrar to facilitate
the
hearing of this application.
(3)
The
applicants raised eleven grounds for leave to appeal. These grounds
are set out in the applicant
’
s
notice of application for leave to appeal, which I find unnecessary
to repeat.
(4)
The
applicants argued that an unsuccessful bidder has
locus
standi
simply by virtue of its having submitted a bid. This submission was
made in respect of my finding that the second applicant lacked
locus
standi.
It
must be borne in mind that the issue of standing is divorced from the
substance of the case. Thus, I had to decide this issue
on the
assumption that the seconds defendant
’
s
challenge was justified. I found that the second applicant, ie Viva
and Corro-Wear, in their capacity as partners or associates
in a
joint-venture, did not have a standing because the alleged
joint-venture never existed for the reasons set out in my judgment.
A
non-existent entity does not have any standing, let alone
constitutional rights and I am not aware of any authority proclaiming
that each constituent member of an alleged entity with
locus
standi
is
rendered with legal standing by a finding that the entity has never
existed. I am of the opinion that there is no reasonable
prospect
that my finding in this regard would be overturned on appeal.
(5)
The
applicants further argued that my finding of an absence of irregular
conduct in the first phase did not dispose of the whole
case. If
there was no irregularity committed in the administrative phase, then
the question is whether a bidder who was
duly
disqualified
in the first phase has any
locus
standi
to challenge a decision made in any subsequent phase. Counsel
submitted that such a disqualified bidder does have that right. I
could not find any reported judgment dealing with
locus
standi
in the context of a phased evaluation bidding process. If the broader
principles of constitutional own-interest standing as set
out in
Giant
Concerts CC v Renaldo Investments (Pty) Ltd and others
2013 (3) BCLR 251
(CC) are applied to the facts of this case, I have
difficulty to see how a decision taken in any subsequent phase can
directly
affect the said bidder
’
s
rights or interests or potential rights or interests, or how such an
interest can be real and not merely hypothetical or academic
or on
what basis such a person is entitled to claim the court
’
s
time and put the opposing party to trouble. Even from a purely
pragmatic point of view, it would make no sense to grant such a
bidder the opportunity to contest a decision made in any subsequent
phase. In the light hereof, I am of the view that there is
no
reasonable prospect that another court would find that a duly
disqualified bidder in a phased evaluation bidding process has
locus
standi
to challenge any decision in any subsequent phase.
(6)
Regarding
the applicant
’
s
grounds relating to SDB9, the following: I found that the purpose of
SDB9 was to prevent any form of bid rigging, which included
collusive
dealings between constituent firms and the prevention of more than
one (alternative) bid per bidder with a view to preventing
any
form of bid rigging.
It
is true that the terms of SDB9 had a wider scope than the Competition
Act, but in my opinion there is no reasonable prospect
that another
court would find that the terms were unreasonable, immaterial or
unconstitutional or that the Committee was entitled
to ignore them or
that the terms were the cause of any form of unfair treatment for the
reasons set out in my judgment.
(7)
Regarding
the remaining grounds for leave to appeal and mindful of the factual
findings and my reasons contained in my judgment,
I am likewise of
the opinion that the appeal would have no reasonable prospect of
success.
(8)
I therefor
make the following order:
1.
The
application for leave to appeal is dismissed with costs, including
costs of senior counsel.
___________________
A
B ROSSOUW A J
DATE:
05/06/2015
DATE OF HEARING: 3
JUNE 2015
DATE OF JUDGMENT: 5
JUNE 2015
FOR THE FIRST AND
SECOND APPLICANTS:
ADVOCATES: MM
SNYMAN (With him ND DE LANGE)
ATTORNEYS: NORTON ROSE
FULBRIGHT (INCORPORATED AS DENEYS REITZ INC), UMHLANGA C/O MARITZ
SMITH VAN EEDEN INC, PRETORIA
FOR THE FIRST AND
SECOND RESPONDENTS:
ADVOCATE: Z Z MATEBESE
ATTORNEYS: THE STATE
ATTORNEY, PRETORIA
FOR THE THIRD
RESPONDENT:
NO APPEARANCE
FOR THE FIFTH
RESPONDENT:
ADVOCATE: A G SOUTH
MACROBERT INC, PRETORIA