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[2013] ZAFSHC 106
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SMEC South Africa (Pty) Ltd (Previously known as Vela Consulting Engineers (Pty) Ltd v Mangaung Metro Municipality and Another (2300/2013) [2013] ZAFSHC 106 (27 June 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 2300/2013
In
the matter between:-
SMEC SOUTH AFRICA
(PTY) LTD
(PREVIOUSLY KNOWN
AS VELA CONSULTING
ENGINEERS (PTY) LTD
...........................................................
Applicant
and
MANGAUNG METRO
MUNICIPALITY
...........................
1
st
Respondent
THE COMMISSIONER
FOR THE SOUTH
AFRICAN REVENUE
SERVICES
..................................
2
nd
Respondent
_____________________________________________________
HEARD ON:
18 JUNE 2013
JUDGMENT BY:
ZIETSMAN, AJ
_____________________________________________________
DELIVERED ON:
27 JUNE 2013
_____________________________________________________
[1] The applicant issued
an urgent application out of this Court on 12 June 2013, to be heard
on 18 June 2013, in which the applicant,
amongst others, moves for a
declaratory order in which the first respondent is obliged to report
and furnish to applicant certain
information regarding a tender
process in which the applicant was one of the tenderers on a project
of the first respondent.
[2] The first respondent
filed opposing affidavits on 18 June 2013, and the second respondent
filed a notice to abide on 13 June
2013.
[3] No replication had
been filed by the applicant.
[4] During the hearing of
the matter, the applicant (with the information it obtained from the
opposing affidavit of the first respondent),
decided not to proceed
with the orders sought in paragraphs 2 and 3 of the Notice of Motion.
It still, however, argued that condonation
should be granted
permitting the applicant to enrol the application as an urgent
application, and furthermore, the applicant still
moves for an order
that the first respondent pay the applicant’s costs in both the
application number 432/2013 (the previous
application) as well as the
present application.
[5] The reason why the
applicant do not proceed with the declaratory order, is because of
the fact that the first respondent answered
in its answering
affidavit that (according to annexure ‘SM3” thereto) the
applicant’s tender having been considered
by the first
respondent was unsuccessful for the project and reasons for this
unsuccessful tender was furnished by the Mangaung
Municipality to the
Legal Services Department already on 28 May 2013.
[6] The applicant’s
contention is that the main reason why the present urgent application
was lodged, was because of the fact
that the first respondent
(notwithstanding various requests thereto) failed to inform the
applicant whether the applicant’s
tender was submitted and
evaluated during the tender process, and/or what the outcome of the
tender process was. In this instance
it is important to note that the
applicant, through its attorneys, amongst others, enquired from the
first respondent’s Department:
Legal Services, Advocate Naidoo
on 27 May 2013 that they have not received any formal confirmation
that the applicant’s tender
would have formed part of the
evaluation process, and that it came to his client’s attention
that a tender has been awarded
to a Johannesburg based company.
Reasons and/or disclosure of the correct facts and information were
enquired.
[7] On 31 May 2013 a
letter was again addressed to Advocate Naidoo of the first
respondent’s Legal Services Department in
which reference is
made thereto that no response was received by the applicant and that
the applicant will proceed with the necessary
court application in
this regard.
[8] On 31 May 2013 the
first respondent replied by way of an e-mail by one Karin von
Wielligh, as follows:
“
We hereby
acknowledge receipt of your letters and wish to inform you that the
matter is receiving our attention.
The Municipality was unable to submit
the requested information within the stringent time frame provided in
your letter dated 27
May 2013.
Legal Services is in the process of
coordinating the required information and will respond to you
shortly.”
[9] Then again on 3 June
2013 a letter was addressed to Advocate Naidoo enquiring the
information regarding the tender process,
if the applicant’s
tender was accepted or not, the reasons therefore, whether the tender
was awarded to someone else, the
name of such other successful
tenders etc. The aforesaid information was requested before or on
Wednesday, 5 June 2013, 12h00,
because of the fact that the applicant
needed the aforesaid information to enable them to file an appeal in
terms of section 62
of the Systems Act or a review application, if
need be.
[10] On 4 June 2013 the
aforesaid Karin von Wielligh, on behalf of the Legal Services
Department of the first respondent, responded
as follows:
“
We hereby
acknowledge receipt of your letter, dated 3 June 2013.
Your request for information should be
dealt with in terms of the Access to Information Policy of the
Municipality and has therefore
been referred to Mr Sabata Taje…
Kindly liaise with him directly with
regards to the process that needs to be followed.”
[11] The applicant
thereafter issued the present urgent application. As referred to
above, the applicant realised from the opposing
papers in this
application that the applicant’s tender was indeed
unsuccessful, which fact was indeed conveyed to the Legal
Services
Department of the first respondent already on 28 May 2013. The
last-mentioned fact is confirmed in the opposing affidavit.
[12] It is quite clear
that the first respondent, through its Legal Services Department, was
in possession of the necessary information
regarding the fact that
the applicant’s tender was unsuccessful, and the reasons
therefore, on 28 May 2013. When a further
demand was dispatched to
the Legal Services Department on 3 June 2013 by the applicant’s
attorneys, requiring such information,
it would have been quite easy
for the Legal Services Department of the first respondent to
enlighten the applicant of the reasons
for the fact that its tender
was unsuccessful, which was in the Legal Services Department
possession on 28 May 2013 as per annexure
“SM3” to the
opposing papers.
[13] It is furthermore
clear that the reason why the Legal Services Department sent and
e-mail to the applicant on 4 June 2013 whereby
it indicated to the
applicant that they must utilise the internal process of access to
information manual, in order to obtain information,
it did so most
probably, because it felt that the municipality could not be bullied
into the furnishing of information within the
timeframes as the
applicant has set down.
[14] In the aforesaid
circumstances, it is understandable why the applicant thereafter
launched an urgent application to obtain
such information, which was
for no good reason, withheld from the applicant.
[15] In the
circumstances, and whereas the first respondent is obliged to be open
and transparent, with specific regard to such
a tender process, as to
at least who was successful and who was unsuccessful in the tender
bidding and the reasons therefore, it
is understandable why the
applicant launched the present application. In those circumstances I
am inclined to accept the arguments
on behalf of the applicant that
it was obliged to lodge the present urgent application and that it
should be awarded the costs
of the application.
[16] Although the present
applicant also moves for the costs of application number 432/2013, a
previous application, such previous
application had to do with an
order to compel the first respondent to accept the applicant’s
bid in the aforesaid tender
process. That order was taken by
agreement (although there was an initial notice of intention to
oppose). The first respondent
complied with that order and the
applicant’s bid was evaluated together with other tenders. The
order made as far as costs,
in that application, was that costs
should stand over. It is not clear why the court ordered such a costs
order, whereas that application
was finalised at that stage. I am of
the view that I should not exercise my discretion, as far as the
costs of that application
is concerned, in the present application. I
therefore make no order as to costs with reference to case number
432/2013.
[17] As far as the
present application is concerned under case number 2300/2013, I am
satisfied that the application brought by
the applicant was of an
urgent nature, and that the applicant should be awarded the costs of
the application.
[18] On the aforesaid
basis I make the following orders:
18.1. Under case number
432/2013 no order as to costs is made.
18.2. In case number
2300/2013, the costs of the application is awarded in favour of the
applicant, and therefore the first respondent
is ordered to pay such
costs.
_______________
P. ZIETSMAN, AJ
On behalf of applicant:
Adv J.Y. Claasen SC
Instructed by:
Alberts Attorneys
BLOEMFONTEIN
On behalf of first
respondent: Adv Rathadili
Instructed by:
Moroka Attorneys
BLOEMFONTEIN
/spieterse