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[2013] ZAGPPHC 115
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Security Services Providers Forum v Mec of the Limpopo Provincial and Others (27234/13) [2013] ZAGPPHC 115 (15 May 2013)
NOT
REPORTABLE
IN
THE HIGH COURTOF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 27234/13
DATE:15/05/2013
In
the matter between:
SECURITY
SERVICES PROVIDERS
FORUM
..........................................
Applicant
and
THE
MEC OF THE LIMPOPO PROVINCIAL
DEPARTMENT
OF
TREASURY
..................................................................
First
Respondent
THE
MEC OF THE LIMPOPO PROVINCIAL
DEPARTMENT
OF ROADS AND TRANSPORT
......................................
Second
Respondent
THE
MEC OF THE LIMPOPO PROVINCIAL
DEPARTMENT
OF
EDUCATION
...............................................................
Third
respondent
THE
MEC OF THE LIMPOPO PROVINCIAL
DEPARTMENT
OF
HEALTH
.......................................................................
Fourth
Respondent
THE
HEAD OF THE DEPARTMENT OF THE
LIMPOPO
OF
TREASURY
….....................................................................
Fifth
Respondent
JUDGMENT
MAKGOKA,
J:
[1]
The applicant, seeks, on an urgent basis, an interim order that a
consultation be held between it and the respondents, all members
of
the executive committee (MEC’s) in the Limpopo provincial
government, to discuss certain issues arising from a tender
bid no.
TC/LP 20/2013 (the bid). The applicant is an umbrella body for
business people in the security industry. Its members currently
provide security services to various departmental sites in the
Limpopo Province arising from previous tenders advertised by the
respondents.
[2]
The applicant seeks an interim order pending an order reviewing and
setting aside certain administrative actions taken by the
first and
fifth respondents concerning the tender bid. The applicant also seeks
to declare the tender bid as invalid and unconstitutional.
The first,
third, fourth and fifth respondents have filed a notice of intention
to oppose, but have not filed any answering affidavits.
The second
respondent has filed a notice to abide the decision of this court.
[3]
On 15 April 2013, an invitation to bid went on sale inviting the
provision of physical security services for various Limpopo
provincial departments for the period of three years commencing from
1 July 2013 to 30 June 2016. The bid was set to close yesterday,
14
May 2013, at 11 h00. The main complaint of the applicant and its
members, is that the bid has introduced a range of new specifications
which the applicant contends, are unconstitutional, unjust and
unfair.
[4]
On 19 April 2013 the applicant, through its attorneys, delivered a
letter to the first and the fifth respondents, respectively,
notifying them, among others, of their objections to the
specifications and the grounds therefor. The letter called upon the
first
and fifth respondents to withdraw or cancel the bid;
alternatively to postpone its closing date to enable the applicant to
consult
with the first and fifth respondents on the new procument
specifications, with the undertaking that the bidding process will be
suspended pending consultation. The response sought from the first
and fifth respondents was to be delivered within seven calendar
days
of delivery of the letter, failing which an urgent application would
be launched to prevent the respondents from proceeding
with the bid.
There was no response.
[5]
About five briefings of the bid were held, and attended by some
members of the applicant, who, on each occasion, reiterated
their
concerns about, and objections against, the new specifications
specifications. On 30 April 2013 applicant’s attorneys
delivered another letter to the respondents demanding their response.
There still was no response. On 6 May 2013 this application
was
launched. Counsel for the respondents, Mr. Mtsweni, contested
urgency. Mr. Bredenkamp SC, counsel for the applicant, submitted
that
the matter is urgent, given the fact that letters written to the
respondents were not replied to.
[6]
I disagree. The applicant and its members knew as early as 15 April
2013 of the new specifications. In the first letter to the
first and
fifth respondents, clear terms were put for a response. It is worth
noting that in that letter, urgent application was
mooted as a
definite next step, should there be no response.
[7]
In the founding affidavit, no explanation is furnished as to the
inaction on the part of the applicant on the expiry of the
seven days
deadline set for a reply. By 30 April 2013 it was clear that the
respondents were not going to reply to the applicant’s
letters.
This application was launched only a week later. The applicant, on
its own version, was aware that the bid would close
on 14 May 2013,
yet did nothing to launch this application earlier. The application
was set down for 10H00 on the day the bid closed,
allowing only for
only 1 hour for a possible hearing and order. That was ambitious.
[8]
By the time the matter was heard, the bid had closed. The urgency, if
any, was self-created by the applicant’s inaction.
[9]
In the circumstances the application is struck off the roll with
cost.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 14 MAY 2013
JUDGMENT
DELIVERED : 15 MAY 2013
FOR
THE APPLICANT : ADV BREDENKAMP SC together with ADV DA ROCHA
INSTRUCTED
BY : NR MUNYAI ATTORNEYS, POLOKWANE
FOR
THE RESPONDENTS : ADV DV MTSWENI
INSTRUCTED
BY : STATE ATTORNEY, PRETORIA