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[2013] ZAGPPHC 535
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Oxford University Press Southern Africa (Pty) Ltd v MEC, Limpopo Provincial Government: Department of Education and Others (5301/13) [2013] ZAGPPHC 535 (17 September 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
[NORTH
GAUTENG HIGH COURT, PRETORIA]
CASE: 5301/13
DATE: 17 SEPTEMBER
2013
In the matter
between:
OXFORD
UNIVERSITY PRESS SOUTHERN AFRICA (PTY)
LTD
..........................................
Applicant
and
THE
MEC, LIMPOPO PROVINCIAL GOVERNMENT:
DEPARTMENT
OF
EDUCATION
...........................................................................................
1
st
Respondent
THE
ADMINISTRATOR, LIMPOPO DEPARTMENT OF
OF
EDUCATION
.......................................................................................................................
2
nd
Respondent
THE
HEAD: LIMPOPO DEPARTMENT OF
EDUCATION
...............................................
3
rd
Respondent
CAMBRIDGE
UNIVERSITY PRESS (PTY)
LTD
.................................................................
4
th
Respondent
HEINEMANN
PUBLISHERS (PTY)
LTD
..............................................................................
5
th
Respondent
KALAHARI
PRODUCTIONS AND BOOKSELLERS (PTY)
LTD
.....................................
6
th
Respondent
MACMILLAN
SOUTH AFRICA (PTY)
LTD
........................................................................
7
th
Respondent
MASKEW
MILLER LONGMAN (PTY)
LTD
........................................................................
8
th
Respondent
NEW
GERENATION PUBLISHING ENTERPRISES
CC
...................................................
9
th
Respondent
SOUL
OF
AFRICA
...................................................................................................................
10
th
Respondent
VIA
AFRIKA (PTY )
LTD
.......................................................................................................
11
th
Respondent
VIVLIA
PUBLISHERS & BOOKSELLERS (PTY)
LTD
....................................................
12
th
Respondent
HEARD ON: 09
SEPTEMBER 2013
JUDGMENT DELIVERED:
17 SEPTEMBER 2013
JUDGMENT
LEGODI
J
.
[1] The release by
the first respondent on the 22 July 2013 of the selection results for
the distribution of school textbooks in
Limpopo, had resulted in the
dispute amongst the parties before me. This judgment has been
prepared in the course of a very busy
urgent motion roll and parties
should therefore not expect a scholarly and detailed judgment.
[2] The applicant
was one of the publishers who were selected to deliver certain
textbooks to schools in Limpopo. According to the
applicant, it was
awarded to place orders only to the value of R1.6 million, instead of
orders to the value of more than R40 million.
[3] The award of
orders only to the value of R1.6 million is regarded by the applicant
as being prejudicial to him and resulting
from unlawful procurement
process which contravenes section 217 of the Constitution. The
process leading to the decision is said
not to be fair, equitable,
transparent, competitive and cost effective. Based on all of these,
the decisions are said to be liable
to be reviewed and set aside in
terms of the Promotion of Administrative Justice Act 3 of 2000
(“PAJA").
[4] The alleged
unlawful procurement process is said to have caused the Department of
Education Limpopo having to place orders for
the school textbooks at
an increased price to the Department in excess of R6 million, more
than the price submitted by the applicant
for the 2014 school year.
The amount is said to likely increase in respect of the following
four years. According to the applicant,
this will result in a
wasteful and irregular expenditure of public funds.
[5] The alleged
irregularities in the award of the tender is also said to likely
cause the applicant loss of revenue of more than
R40 million for the
2014 school year as well as further R32 million over the following
four years. This is said to be significant
portion of the applicant’s
turnover. The loss of revenue will cause severe prejudice and
irreparable harm to the interest
of the applicant, so it was
contended. According to the applicant, it has in good faith, invested
significantly in the development
and production of textbooks in the
interests of education in South Africa.
[6] Based on all of
the above, the applicant has now approached this court on an urgent
basis, in terms of which it seeks relief
in Part B of its notice of
motion as follows:
“
5.
Condoning non-compliance with the Rules of Court and directing that
the application be heard as a matter of urgency in terms
of Rule
6(12);
6. Reviewing and
setting aside:
6.1 the decision
by the second and third respondents to select publishers to provide
the textbooks; and
6.2 the decision
to place any orders issued to publishers for the textbooks.
7. Directing the
second and third respondents to ensure that the officials of the
Department;
7
.1
correct the errors made in capturing the prices submitted by the
applicant;
7.2 correctly
rank the publishers who participated according to prices submitted;
and
7.3 issue orders
for the textbooks on the basis of such a correct ranking.
8. That the costs
of the application be paid by the second and third respondents
jointly and severally, unless any of the fourth
to twelfth
respondents oppose the application, in which event any such
respondents who oppose the application, are to pay the costs
of the
application, jointly and severally, the one paying the other to be
absolved.
9. Further and/or
alternative relief’.
[7] Initially, the
applicant wanted the second and third respondents to be interdicted
from acting in terms of the award of the
tender for the distribution
of the textbooks in Limpopo, pending finalisation of the review
proceedings in terms of Part B of the
notice of motion, quoted in
paragraph 6 above. The interdict relief was sought in Part A of the
notice of motion.
[8] However, when
this matter was laid before me, parties had agreed that I should deal
with Part B. I agreed, provided that the
matter is heard on Monday
the 9 September 2013 instead of Tuesday 10 September 2013. The reason
for this was, the papers are voluminous,
more than 500 pages and in
terms of the practice directive, such a matter will require a special
date. Monday the 9 September 2013
was meant to be my reading day and
Part B of the notice of motion was scheduled for hearing on the 10
September 2013.
[9]
This should then bring me to deal with two issues that were raised as
points in
limine
or
preliminary issues. First, the non-joinder issue and second, lack of
urgency.
NON-JOINDER OF
PUBLISHERS
[10] The first,
second and third respondents articulated themselves on the issue as
follows:
“
2.1
It is evident from the intervention as published in the Government
Gazette that the Minister of Basic Education is the responsible
Minister in Central Government who
was
appointed as the
responsible Minister for Basic Education in Limpopo Province. As such
the Minister of Basic Education should have
been joined a
Co-Respondent which the applicant has failed to do. I have been
advised in the absence of all parties having
a
direct and material
interest in the matter the above Honourable Court will not grant".
[11] Similarly, the
fifth and eighth respondents also took the point that, judging by the
nature of the relief sought, all selected
publishers have a direct
and substantial interest in the case. I find it necessary to deal
first with the basis of the attack on
the non-joinder of publishers.
The issue is therefore whether the non-joined publishers who have
been selected and orders had in
fact already been placed with them,
have a direct and substantial interest in the relief sought.
[12] One of the
reliefs sought in Part B of the applicant’s notice of motion,
is to review and set aside the decision or decisions
of the second
and third respondents to select publishers to provide textbooks and
to place orders issued to the publishers for
the delivery of
textbooks.
[13] The applicant
is said to have elected to join only certain publishers. Other ten
publishers have not been joined. In its replying
affidavit, the
applicant seeks to avert the attack by stating that none of the ten
publishers would be affected by the correction
of the ranking of
publishers sought by the applicant, because the titles which have
been ordered from them, were not affected by
the changing of the
applicant’s submitted prices. It was contended that none of
them have direct and substantial interest
in the relief sought.
[14] One must make a
distinction between the relief sought in paragraph 6 and that sought
in paragraph 7 of Part B of the notice
of motion. The relief sought
in paragraph 6 of the notice of motion has been quoted in paragraph 6
of this judgment. Once a relief
sought in paragraph 6 of Part B is
granted, there would be no legal basis for the Department and the
said ten publishers to continue
to contract with each other.
[15] The relief
sought in prayer 6 of Part B of the applicant’s notice of
motion, makes it clear that what is sought to be
reviewed and set
aside, is the entire decision of the second and or third respondents.
[16] Counsel for the
applicant despite persistent caution by the court insisted that the
applicant was content with the relief as
sought in prayer 6 of the
notice of motion. In other words, that the relief sought is to review
and set aside the entire decision
in terms of which the selected
publishers were required to provide textbooks. Secondly, that the
court should review and set aside
any order issued to publishers for
the delivery of textbooks.
[17] I had
difficulties in understanding applicant’s insistence in this
regard, for indeed, if a ruling was to be given as
prayed for in
prayer 6, every publisher who has been selected to deliver or provide
books will be affected and therefore, there
can be no doubt about
their material and substantial interest in the matter.
[18] In paragraph 12
of the replying affidavit, the applicant seeks to simplify the issue
by stating that 'none of them would be
affected by the correction of
the ranking of publishers sought by OUP, because the titles which
have been ordered from them were
not affected from them were not
affected by the changing of OUP’s submitted prices by the
Department’. OUP is the applicant.
Here, the applicant was
referring to the ten publishers who have not been joined in these
proceedings.
[19] The so called
‘correction of the ranking of publishers’, cannot take
place, unless a decision is made under prayer
6. In other words, the
entire decision of the second and or third respondent must first be
reviewed and set aside as prayed for
in prayer 6, before correction
of ranking of publishers and correction of the alleged errors made in
capturing of the prices by
the applicant.
[20] Counsel for the
applicant argued that this court has discretion to deal with a
limited review and setting aside of the decision
of the second and or
third respondent in a manner that will accommodate the ten publishers
who have not been cited. This contention
should be seen in the light
of the attitude by the applicant that there is nothing wrong with the
relief sought in prayer 6 of
the notice of motion. Of course, the
applicant cannot be right if he still wants to argue that the ten
publishers do not have direct
and substantial interest in the matter.
Just on this aspect alone, the applicant’s application is
destined to fail. In other
words, the non-joinder issue should be
found to be justified.
[21] The applicant’s
main contention on merits is that the second and or third respondent
acted unlawfully in substituting
its nil pricing on the teachers’
guides with a price that was previously tendered by the applicant. It
was not only the applicant
who had submitted zero pricing on the
teachers’ guides. One or two publishers did the same, for
example, Shutter and Shooter
(PTY) Ltd. Neither of these publishers
has been joined in these proceedings. I did not hear the applicant to
be suggesting that
it cannot be said they have no material and
substantial interest in these proceedings.
[22]
However,
counsel for the applicant suggested that Shutter and Shooter (PTY)
Ltd had elected not to be involved seen in the light
of the fact that
they had previously queried the Department’s substitution of
their zero pricing with their previous pricing
on the teachers’
guides. After the Department had given an explanation, the two
publishers did nothing to challenge the explanation
or the decision
to substitute the zero-pricing. Counsel suggested that by so doing,
it must be assumed that they never intended
to participate in these
proceedings and that therefore it was not necessary to join them in
these proceedings.
[23] I cannot agree
with this submission. There is no evidence to suggest that the
present proceedings ever came to their attention.
Secondly, counsel
for the applicant from the bar suggested that Shutter and Shooter
elected not to challenge the decision to change
their zero pricing
was an indication that they had no interest in the present
proceedings, particularly that their query to the
Department was
raised before the institution of the present proceedings. Without
evidence to this effect, the suggestion will remain
speculative.
Failure to have joined the other publishers in similar situation with
the applicant was a fatal blow to the applicant’s
case.
NON-JOINDER OF
THE NATIONAL MINISTER OF BASIS EDUCATION
[24] Limpopo
Province had a problem. As a result, its administration was taken
over by the National Department. However, an Administrator,
(the
second respondent) was appointed instead. The decision under attack
was taken during the tenure of the administrator. The
National
Minister of Basic Education has not been joined in these proceedings.
The first to third respondents contend that the
Minister should have
been joined as a party which has a substantial and material interest
in the proceedings.
[25] Effectively,
the second respondent has stepped into the shoes of the first
respondent on behalf of the National Minister. A
question was posed
to counsel for the first to the third respondents. The question was,
whether the non-joinder point would have
been raised, had the
administration of the first respondent not have been placed under the
control of the second respondent? The
answer was no! I therefore can
see no difference whether the interests of the National Minister are
taken care of by the first
respondent or the second respondent.
[26] What prejudice
is there for the Minister to suffer? I did not understand the
suggestion to be that the respondents’ case
would have been
dealt with differently had the Minister been joined. I therefore find
that it was not necessary to join the Minister.
LACK OF URGENCY
[27] The respondents
took a swipe at the delay in the institution of the present
proceedings. The founding affidavit was deposed
to on the 26 August
2013. On the same day, the proceedings were instituted. PART A of the
notice of motion was set down for hearing
on the urgent motion roll
for the 3
rd
September 2013 and PART B for the hearing on
the 10 September 2013. PART A is the interdict pending finalisation
of the review
proceeding in PART B.
[28] On 3 September
2013, PART A was postponed to 5 September 2013 and on that date the
matter was stood down by Kgomo J to the
6 September 2013. The
criticism is that, the application as a whole, should long have been
instituted before the 26 August 2013.
[29] A brief
background might be necessary. On 7 June 2013, the applicant
submitted its prices to the Department. On the 22 July
2013, the
selection results were released. The Publisher’s Association of
South Africa and on behalf of all its members including
the
applicant, addressed a letter to the Department in which concerns
were raised and clarity was sought. Of importance is that,
the second
respondent was required to make public the selection criteria and
pricing list by the close of business on Tuesday 30
July 2013. It was
indicated in the letter that it was essential that this be resolved
before official orders were released and
should be treated as a
matter of urgency.
[30] There was no
response to the request and demand made by the Publishers’
Association of South Africa. By the 7 August
2013, there was still no
response. A reminder was sent to the second respondent on the 7
August 2013. When no response was forthcoming,
another letter was
sent on the 14 August 2013.
[31] On the 8 and 9
August 2013, the second respondent started placing orders with
various selected publishers. On the 16 August
2013, the second
respondent released the Limpopo catalogue together with the prices of
the textbooks. The applicant discovered
that prices of a number of
titles submitted by it had been changed. The change related to the
teachers’ guides for which
the applicant charged nothing. Was
it a donation? If so, was it allowed or did it form part of the
tender requirements? I deal
later with the question.
[32] Subsequent
thereto, a letter was written to the second respondent on the 18
August 2013, and this was on a Sunday. On Monday
the 19 August 2013,
a discussion ensued with many of the role players. When the
discussion did not result into fruition, on the
26 August 2013, the
present application was launched.
[33] Before I come
back to the issue under discussion, it is important to mention that
the National Department of Basic Education
introduced tight time
frames to ensure that books to schools are delivered timeously. It is
called Basic Education Management Plan
for Procurement and Delivery
of LTSM 2013. Everything was to start in June 2013 and by October
2013 the schools should have received
correct textbooks. The
distribution of books to leaners is expected to be completed by
October 2013. The idea is to ensure that
come 2014, all learners must
have received the necessary books to ensure schooling starts in
earnest almost like on the first day
of schooling in 2014. The
publishers were aware of these time frames or were expected to have
been aware of the time frames.
[34] The applicant
knew or is expected to have known at least on the 22 July 2013 of the
selected titles for it. The applicant was
not happy about the fact
that bid prices and selection criteria were not made public in the
release of the 22 July 2013. The applicant
like other publishers,
decided to speak through their association which then addressed a
query to the second respondent on or about
26 July 2013. In the
letter, the second respondent was warned not to issue official orders
before the concerns raised in the letter
were resolved.
[35] The question
then is, could the applicant have proceeded with the present
application, in particular, Part A of the notice
of motion without
issues raised in the letter by the Publishers’ Association were
resolved? Paragraph 2 of Part A reads as
follows:
“
2.
Pending the
determination of the relief sought in PART B of this Notice of
Motion:
2.1
interdicting and restraining the second and third respondents from
giving effect to its selection of publishers to provide any
teacher’s
guides, learner’s books or readers (collectively referred to
herein as
“
textbooks”)
for Grades
7,
8,
9 and 12 of the 2014 school year;
2.2 interdicting
the second and third respondents to instruct all selected publishers
not to implement or proceed with the implementation
of any order
placed with them by any officials of the Limpopo Department of
Education (“the Department") in respect
of the textbooks
for the 2014 school year".
[36] Clearly, what
is being asked for in prayer 2 of Part A of the notice of motion
could have been done without publication of
the selection criteria
and prices requested in the Publishers’ Association’s
letter to the second respondent. The applicant
for one reason or the
other, waited until the 26 August 2013. Bearing in mind the time
frames referred to earlier in this judgment
and the fact that other
publishers would have been entitled and obliged to act on the basis
of official orders placed with them,
it was incumbent on the
applicant to ensure that the delay in bringing the application did
not happen, with or without the prices
and or selection criteria. The
delay in this regard is self-created and the applicant has only
itself to blame. To wait from the
26 July 2013 until the 26 August
2013 was in circumstances of the case unreasonable.
[37] Similarly,
waiting from the 16 August 2013 until 26 August 2013 in the
circumstances of the case, was unreasonable, especially
bearing in
mind what I said about the entitlement and obligation of other
publishers who are selected to deliver books. The application
therefore ought to be struck off from the roll on the basis of lack
of urgency. This then brings me to deal with the other issues
that
were identified in these proceedings.
[38] Let me just
explain myself before I deal with those issues. PART B of the notice
of motion is also being brought on an urgent
basis and has been
placed on the urgent motion roll. I could as well have dealt with the
preliminary issues without dealing with
the merits of the review
application. However, I decided to deal with the case as a whole. I
did so, on the basis of practicality
and convenience for the parties.
They did not object to this approach. In fact, they all welcomed the
approach. But, I also did
so seen in the light of the findings I
intend to pronounce myself on later in this judgment.
[39] The following
issues which have been identified by counsel on behalf of the first
to third respondents and agreed to by other
parties, have relevance
to the merits of the review application. I deal with these issues and
make findings on them in the event
I was to be wrong with regard to
the two preliminary issues disposed of earlier in this judgment. The
issues are:
39.1 Did the
applicant’s quotations comply with the requirements of the
Department as set out in annexures BSC1 and BSC2?
39.2 Did the
Department commit any reviewable irregularities in placing the
orders?
39.3 If the answer
in 39.2 above is yes, what should be the appropriate remedy in the
circumstances of the case?
DID THE APPLICANT’S
QUOTATIONS COMPLY WITH THE REQUIREMENTS OFTHE DEPARTMENT AS SET OUT
IN ANNEXURES BSC1 AND BSC 2?
[40] The main attack
of the decision of the first, second and or third respondent is
premised from the fact that, in submitting
its procurement documents
as a package for the supply of the learners’ books, core
readers and teachers’ guides, the
applicant decided not the
charge the Department for the sale and delivery of the teachers’
guides. The department then on
its own decided to put a price, which
caused the applicant to be awarded insignificant part of the tender,
so it was contended.
[41]
All the publishers were informed as early as the 29 May 2012 that the
procurement process of textbooks for the 2014 school
calendar year
will or must be adhered to. Publishers were informed that purchasing
will be based on the
lowest
price
and
not
the largest discount
.
This appears in a document addressed to all publishers and titled
“LIMPOPO DEPARTMENT OF EDUCATION -PROCUREMENT OF TEXTBOOKS
FOR
THE 2014 SCHOOL CALENDAR YEAR” dated the 29 May 2012. It is
also stated in this document which is marked BSC 2 to the
applicant’s
founding affidavit that the Limpopo Department of Education
considers
pricing to be the most appropriate criteria for purchasing of
all
the CAPS aligned textbooks
.
[42]
In addition, textbooks, core readers and teachers guides for all
languages are to
be
purchased as a package from the same publisher and
that
they
will not be
considered
separately
.
The
price consideration for all the three units was to be
the
comparison of total price for the pack of leaners’ book, core
readers and
teachers
guides
.
[43] The underlining
in the preceding paragraph is my own emphasis. Lastly, in annexure
BSC 2 the publishers were required to submit
their revised prices on
the excel spread sheet of the National catalogue template.
[44]
The applicant as I said earlier in this judgment, decided on its own
not to charge anything for the teachers’ guides.
Having done
so, it gave the total price which did not include the price of the
teachers’ guides. In other words, teachers’
guides were
given free of charge. Was this allowed? Or was this in accordance
with the prescribed requirement by the Department.
Put it
differently, did this not amount to the largest discount prohibited
in paragraph 2 of annexure BSC 2.
[45] ‘Pricing
to be the most appropriate criteria for purchasing, price
consideration and comparison of total prices’,
became the basis
for procurement in the instant procurement process. This is clearly
set out in annexure BSC 2. The
Preferential Procurement Policy
Framework Act 5 of 2000
requires an organ of state to establish a
procurement policy. It becomes incumbent on an organ of a state to
follow a tender procedure
that is fair and transparent. The process
must in terms of
section 3(2)(a)
of PAJA be lawful, fair and
justifiable. Similarly transparency, equity and fairness are required
in terms of
section 217
for all tender processes. Such imperative
must be decided on the circumstances of each case. What is contained
in annexure BSC
2 should be seen as policy envisaged in Procurement
Policy Framework Act 5 of 2000.
[46]
The
issue
therefore
is,
whether the applicant complied with this policy as set out in
annexure BSC2. Of course it did not and the Department would have
been entitled to disqualify the appellant. In other words, the
Department would have been entitled to exclude the applicant
completely
from participating in the procurement of books in Limpopo
for 2014 due to non-compliance with its guidelines to this particular
tender.
[47] The applicant
together with one or two other entities did not price for the
teachers guides. This could not have been fair
to those who had
adhered to what was stated in annexure BSC 2. In other words, it
could not have been fair to those who have complied
with the
procurement policy applicable in the instant matter. For example, if
they knew that they did not have to charge for every
unit of the
tender, like the teachers’ guides, they could have adjusted
their reduced prices differently.
[48] Therefore,
before the applicant can claim to have its right protected as
enshrined in section 217 of the Constitution and those
applicable
provisions under PAJA, it must first show that it was entitled to
give a zero pricing for the teachers’ guides.
As I said, it was
not entitled to. On this point alone, its application for review and
setting aside of the decision or decisions
in question was destined
to fail in any event. This finding brings me to deal with another
issue.
DID THE DEPARTMENT
ACT FAIRLY TO OTHER TENDERERS BY ADJUSTING THE APPLICANT’S
PRICING?
[49] The department,
second and or third respondent sought to accommodate the applicant
instead of excluding it completely from
the process, so it was
contended. In doing so, it went back to what the applicant had
previously tendered on teachers’ guides
and it substituted the
nil-price with the previously quoted price. This according to the
applicant, was unlawful and the respondents
as organs of state were
not entitled to do. I cannot agree more.
[50]
Remember, this was a tender process and therefore the Department was
under obligation to follow a system that was fair, equitable,
transparent, competitive and cost-effective. Choosing to accommodate
a tenderer who did not comply with a particular policy for
a
particular procurement cannot be fair, transparent and equitable to
other tenderers who had participated in the process. To have
allowed
this made, the process to lose the attribute of fairness and
transparency
1
.
Having made this finding, the next question that follows is:
WHAT WOULD HAVE
BEEN THE APPROPRIATE REMEDY IN THE CIRCUMSTANCES OF THE CASE?
[51] The question is
raised in this fashion, seen in the light of my findings with regard
to the preliminary issues dealt with earlier
in this judgment. As a
brief background again, the delay of delivery of school books in
Limpopo for 2012 was widely reported. It
has become a matter of
common cause and concern to many. Any repetition of what had happened
will in no doubt bring an outcry.
But even most importantly, it will
offend against the provisions of section 219 of the Constitution in
particular subsection (1)(b)
which provides that everyone has the
right to further education, which the state through reasonable
measures must make progressively
available and accessible. That
availability and accessibility will be denied should books not be
delivered timeously.
[52] At the same
time, one must guard against encouraging the state organs acting
contrary to the spirit of the provisions of section
217 of the
Constitution. That is, whenever an organ of the state contracts for
goods or services, it must do so in accordance with
the system which
is fair, equitable, transparent, competitive and cost-effective. I
have been referred to a number of case laws
dealing with the issue
under consideration.
[53] The real
question is whether to set aside an invalid administrative action
pertaining to the applicant? Invalid administration
action in the
sense that the applicant could have been excluded from participating
in the procurement process in question due to
non- compliance Put it
differently, should the court allow the process to continue despite
the invalidity of the action? Invalid
also, in the sense that the
respondent acted contrary to its requirement by accommodating the
applicant on an issue that was not
offered to other tenderers.
[54] A court of
review is not obliged to set aside an administrative action if it was
unlawfully taken. Court of review is conferred
a discretion to make
an order that is just and equitable. Unlawfully taken in that the
second and or third respondent substituted
the applicant’s zero
pricing with a particular pricing. It is the applicant who is
challenging this move and therefore the
action could not be
legitimised by ensuring that the applicant was not excluded.
[55]
Although the principle of legality requires a court in the case of
unlawful administrative action to strike it down, the concept
of
certainty may persuade a court not to set aside an invalid
administrative action, but decline to do so
2
.
[56] A court should
when making the choice of a just and equitable remedy, emphasise the
fundamental constitutional importance of
principle of legality, but a
court should also consider whether relief sought does not give full
effect to the finding of invalidity
is justified in the particular
circumstances of the case before it.
[57]
Normally, this will arise in the context of third parties having
altered their positions on the basis that the administrative
action
was valid and will therefore suffer prejudice if the administrative
action is set aside. This desirability of certainty
needs to be
justified against the fundamental importance of legality
(see
Bengwenyana Minerals (PTY) Ltd & Others
supra at par 84).
[58]
The rule of law must never be relinquished, but the circumstances of
each case must be exercised in order to determine whether
factual
certainty requires some notion of legality and if so, to what extent.
The approach will depend inter
alia
,
the interests involved, the extent of materiality of the breach and
the constitutional right to just administrative action
(see
Bengwenyana Minerals (PTY) Ltd and other at par 85
supra)
[59]
The difficulty that is presented by invalid administrative acts, is
that they often have been acted upon by the time they are
brought
under review. That difficulty is particularly acute when a decision
is taken to accept a tender. A decision to accept a
tender is almost
always acted upon immediately by the conclusion of a contract with
tender and that is often immediately followed
by further contract
concluded by the tenderer in executing the contract. To set aside the
decision to accept the tender, with the
effect that the contract is
rendered void from the outset, can have catastrophic consequences for
the public at large in whose
interest the administrative body or
official purported to act. Those interests must be carefully weighed
against those of the disappointed
tenderer if an order is to be made
that is just and equitable
3
.
[60] I am satisfied
that the facts of the present case falls squarely within the
principle articulated in the preceding paragraphs.
It is a tender
that has a bearing on the education of learners in Limpopo. Any
further delay in the process that had already started
since, orders
were placed with the publishers on the 8 and 9 August 2013. Contracts
had already been concluded with publishers
and similarly some
publishers had already entered into agreements with printers. About 1
673 495 out of 6 600 000 books had already
been delivered. The fifth
respondent has already delivered textbooks to the value of R12 780
903.04. Similarly, the eighth respondent
had already delivered books
to the value of R39 666 220.06 with a further value of R8 44 294.00
in transit. All of the textbooks
printing orders placed with the
printing suppliers for Limpopo are already in production and are set
to be completed by the 30
September 2013.
[61] To seek to set
aside what has already been done and redo the rating as suggested by
the applicant, will have catastrophic consequences.
I would therefore
not set aside any action that might have been wrong in the present
tender process. This means that despite the
invalidity, I would have
allowed the decision to stand, had it not have been for my findings
on the preliminary issues. Effectively
therefore, the applicant would
still be entitled to act in terms of the decision. However, I do not
have to make this an order
of the court seen in the light of my
findings on the two preliminary issues relating to non-joinder and
lack of urgency.
[62] Consequently an
order is hereby made as follows:
62.1 The application
is struck off from the roll due to lack of urgency and nonjoinder;
62.2 The applicant
to pay the costs of the application, such costs to include the
reserved costs and costs for preparing heads of
argument;
62.3 Further, the
applicant to pay the costs of two senior counsels and their juniors
appearing for the first, second, third, fifth
and eighth respondent
respectively. Such costs also to include the costs of counsel for the
seventh respondent.
M F LEGODI
JUDGE OF THE HIGH
COURT
APPLICANT’S
ATTORNEY
...............................................
1
st
TO
3
rd
RESPONDENTS ATTORNEYS
FAIRBRIDGES
ATTORNEYS
….......................................
THE
STATE ATTORNEY
c/o
MACROBEBERT INC
....................................................
Salu
Building,
Macrobert Building
…..............................................................
316
Francis Baard Street
Cnr Charles & Duncan
Streets
..................................................
PRETORIA,
0001
BROOKLYN,
PRETORIA
.......................................................
Ref:
5150/2013/Z17/hm
Ref: A Van
Niekerk
..................................................................
TEL:
012 309 4567
TEL: 012 425 3400
5
th
& 8
th
RESPONDENTS’ ATTORNEYS
….................................
7
Th
RESPONDENT ATTORNEYS
EDWARD
NATHAN SONNENBERGS
…......................................
SPOOR
& FISHER ATTORNEYS
c/o
ELOFF BRINK
ATTORNEYS
.....................................................
TEL:
012 676 1111
Lord Charles Office
Park
337 Brooklyn Road,
Building A
1
st
Floor, North Wing
PRETORIA
Ref: A VAN DER MERWE
TEL: 012 346 7432
1
See
Metro Projects CC and Another v Klerksdorp Local Municipality and
Others
2004 (1) SA 16
SCA par 11-13
2
See
Chairperson, Standing Tender Committee & Others (PTY) Ltd
and Others
2008 (2) SA 638
(SCA) par 29
See
also Bengwenyama Minerals (PTY) LTd and Others v Genorah Resources
(PTY) Ltd and Others
2011 (4) SA 113
(CC) pars 82 and 85
3
See
Loghro Properties CC v Bedderson NO & Other 2003(2) SA 460
(SCA)