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[2015] ZAECELLC 18
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Slip Knot Investments 777 (Pty) Ltd v Mayibuye Transport Corporation (EL757/15, ECD1557/15) [2015] ZAECELLC 18 (28 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO: EL757/15
ECD1557/15
In
the matter between:
SLIP
KNOT INVESTMENTS 777 (PTY) LTD
APPLICANT
and
MAYIBUYE
TRANSPORT CORPORATION
RESPONDENT
REASONS
FOR JUDGMENT
MBENENGE
J:
[1]
On 17 July 2015 this Court entertained this application, brought by
way of urgency. Due to the urgency of the matter,
an order,
favourable to the applicant, was granted, with an indication given
that reasons therefor would be handed down today.
[2]
In effect the order –
(a)
condones the applicant’s non-compliance with the Rules of this
Court in respect of service and notice,
and grants the applicant
leave to proceed with the application as one of urgency in terms of
rule 6 (12) of the Rules of this Court;
(b)
restrains and interdicts the respondent from proceeding with or
implementing the tender process it commenced
by publishing, in the
Daily Dispatch newspaper, a tender invitation, on 22 May 2015, under
bid reference number SCM 2015/16/04,
pending the finalisation of a
review application to be instituted by the applicant or any other
interested party, within 10 days
of receipt by the applicant of the
full written record and documents pertaining to the decision taken by
the respondent to award
the tender;
(c)
directs the respondent to furnish the applicant with the record
referred to in paragraph 2 above by 4 August
2015; and
(d)
directs the respondent to pay the costs of the application.
[3]
At the heart of this application is a tender process set in motion
without compliance with a requirement that bids be advertised
in the
government bulletin. The facts underlying the application are largely
common cause.
[4]
During the course of 2014 the respondent, a provincial government
business enterprise subject to the provisions of the
Public Finance
Management Act 1 of 1999
and the Preferential Procurement, 2011
Regulations invited tenders to provide office accommodation under bid
number SCM 2014/15/17
(the initial bid). The initial bid was,
however, cancelled by the respondent on 17 December 2014, for reasons
not relevant
hereto, after Saldosol Investments (Pty) Ltd had
submitted a tender.
[5]
It came to pass that the respondent set in motion a tender process in
pursuance of a tender notice published in the Daily Dispatch
on 22
May 2015 (the bid). The applicant, which specialises in the
acquisition, development and leasing of commercial buildings
throughout the Republic of South Africa, became one of the potential
and prospective bidders in the tender process. It is
not in
dispute that the applicant became aware of the advert in the 22 May
2015 Daily Dispatch newspaper on 29 June 2015.
It is also not
in dispute that the oversight resulted from the fact that the bid had
not been advertised in the government bulletin.
It is perhaps
timely to refer to the respondent’s Supply Chain Management
Policy, clause 14.1.1(a) of which reads:
“
The
procedure for the invitation of competitive bids is as follows:
(a)
Any
invitation to prospective providers to submit bids
must
be
by means of a public advertisement in the provincial tender bulletin
and local newspaper appropriate ways...”. (emphasis
supplied)
[6]
The applicant became dissatisfied with the non-publication of the bid
in the government bulletin and instructed its attorneys
of record to
seek an undertaking from the respondent that it would not make an
award in pursuance of the bid and that the bid would
be cancelled.
The applicant also sought to be furnished with the relevant and
applicable documentation and information in
terms of the relevant
provisions of the Promotion of Administrative Justice Act 3 of 2000
(the PAJA) and the Promotion of Access
to Information Act 2 of 2000
(the PAIA).
[7]
The respondent confirmed the award of the bid, but did not make the
undertaking sought. Nor did the respondent furnish
the details
of the successful bidder, which the applicant had requested to be
furnished with. As at the time the application
was heard the
applicant was still oblivious to the identity of the successful
bidder.
[8]
Eventually, the respondent advised the applicant that the tender
process had been finalised as an award was made and that, therefore,
an agreement had been concluded with an occupation date being set.
[9]
The steadfast stance of the respondent of not giving the requested
undertaking and of suspending the further implementation
of the bid
resulted in this application being launched, by way of urgency.
[10] The
applicant is of the view that its right to procedurally fair
administrative action which encompasses a system that
is fair,
equitable, transparent, competitive and cost effective had been
adversely affected by the failure on the part of the respondent
to
comply with the requirement that the bid be advertised in the
government bulletin and that, therefore, the subsequent decision
by
the respondent to award the tender notwithstanding such failure is
liable to be set aside on review. The applicant, so
goes its
case, is bent on challenging the decision on appeal or on review.
Those intentions have been thwarted by the fact
that the
relevant documents and information have been withheld by the
respondent.
[11]
The respondent raised the following contentions in opposition to the
application, namely:
(a)
that the application lacks urgency;
(b)
that, insofar as the application is founded on the provisions of
PAJA, the applicant has failed to exhaust
available domestic
remedies, this being clause 25 as read with clause 26 of the
respondent’s Supply Chain Management Policy
(the Supply Policy)
which makes provision for a mechanism in terms whereof persons
aggrieved by decisions or actions taken by the
respondent in the
implementation of the Supply Policy may lodge a written objection or
complaint and for the referral of disputes
or complaints to an
independent, reputable and impartial dispute resolution body;
(c)
that the applicant has not applied to the Court to wave its
obligation to exhaust domestic remedies; and
(d)
that the applicant has not established the requisites for the grant
of interim relief.
[12]
These contentions are dealt with seriatim.
[13]
It is within the context of the applicant’s alleged failure to
avail itself of internal remedies, including those
afforded by the
PAIA, that it is being contended that the application lacks urgency.
The exchange of correspondence between the
parties pre-dating the
launch of this application makes it plain that the applicant did not
rest on the side-lines and created
urgency, but sought, at the
outset, information that would enable it to vindicate its rights.
Had the respondent furnished
the information and disclosed the
identity of the successful bidder, the applicant would not have
resorted to launching the application.
For reasons more fully
set out hereunder, the criticism levelled at the procedure adopted by
the applicant is devoid of merit.
Regard being had to the time
from which the applicant started engaging the respondent in
meaningful interaction and the fact that
the harm sought to be
averted (move into the new premises) is imminent, the application
deserves of being heard as one of urgency.
[14]
Section 7(2)(a) of the PAJA makes provision of the exhaustion of
internal remedies prior to the Institution review proceedings.
According to the section no court or tribunal shall review an
administrative action in terms of the PAJA unless any internal remedy
provided for in any other law has first been exhausted. A
question to be posed and answered is whether this application
constitutes a review within the meaning and contemplation of section
7(2)(a) of the PAJA.
[15]
The question at hand falls to be answered in the negative.
There is authority for the view that on a purely grammatical
interpretation of section 7(2)(a) the prohibition against instituting
review proceedings without first exhausting internal remedies
is only
relevant for the purposes of a full review and not an application for
interim relief.
[1]
There
are no reasons for departing from this view.
[16]
It is doubtful whether the machinery provided by clauses 25 and 26 of
the Supply Policy measures up to the standard of
an effective remedy
for purposes of section 7(2) and thus an internal remedy in terms of
the section. In light of the view I take
of this matter, I find it
unnecessary to deal with the question of whether these clauses
constitute an internal remedy.
[17]
The requisites for the grant of the interim interdict sought have
been fulfilled. The right which the applicant
seeks to secure
is legitimate and ought to be protected. Adequate protection of
the right includes considering all the relevant
documents and the
reasons for arriving at the impugned decision before the applicant
can formulate and finalise its grounds for
review. Refusing the
interdictory relief sought may very well have the effect of rendering
the contemplated review proceedings
nugatory.
[18]
The evidence sufficiently points to the respondent as having awarded
the tender to an unidentified successful bidder
on or about 30 June
2015. The respondent also seems to have already concluded an
agreement with the successful bidder in
respect of the awarded
tender. Once the agreement is implemented and the respondent has
moved into the new premises there will
be difficulty (if not
impossibility) to undo the situation.
[19]
The balance of convenience favours the granting of the interdictory
relief sought. Were the respondent to be allowed
to implement
the award and the successful bidder permitted to move into the
premises before the finalisation of the contemplated
review
proceedings, the court entertaining the review application may be
reluctant to undo the rights and obligations emanating
from the award
or subsequent agreement, notwithstanding the administrative action
given rise to the rights and obligations being
declared unlawful.
[2]
[20]
As already pointed out, this application is not hit by the provisions
of section 7(2)(a) of the PAJA. The several
attempts made by
the applicant to obtain an undertaking from the respondent in order
to avoid the launch of this application, all
of which were
unavailing, make it plain that the applicant was entitled to launch
this application, as indeed it did not have,
at its disposal, any
other speedy effective remedy.
[21]
From a reading of the applicant’s founding papers, the
contemplated review proceedings enjoy reasonable prospects of
success. The respondent’s Supply Policy obliges the respondent
to advertise bids in the government bulletin, as well.
The
Supply Policy was not complied with in an important respect.
[22]
For all these reasons I granted the order I did.
______________
S
M
MBENENGE
JUDGE
OF THE HIGH COURT
Applicant’s
Counsel:
Mr J F Pretorius (instructed by Sim &
Botsi Attorneys Inc. C/o
Gravett Schoeman Inc, East London
Respondent’s
Counsel: Mr P G Beningfield
(instructed by Mbambane & Sokutu Inc. Attorneys)
Delivered
on:
28 July 2015
[1]
Esda
Properties (Pty) Ltd v Amathole District Municipality
2014 JDR 1878 (EGG); Also see P Bolton PER/ PELJ 2010(13) 3
[2]
Chairperson
Standing Tender Committee and Others v JFE Sapela
Electronics
(Pty) Ltd and Others
2008
(2) SA 638
(SCA) at paras 26 to 29;
Moseme
Road Construction CC and Others v King Civil Engineering Contractors
(Pty) Ltd and Another
2010 (4) SA 359
(SCA) at para 21;
Oudekraal
Estates (Pty) Ltd v City of Cape Town
2004 (6) SA 222
SCA at 36.