About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2012
>>
[2012] ZAECELLC 22
|
|
Evaluations Enhanced Property Appraisals (Pty) Ltd v Buffalo City Metropolitan and Others (EL 1544/2012, ECD 3561/2012) [2012] ZAECELLC 22 (20 December 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(EAST LONDON CIRCUIT LOCAL
DIVISION)
Case No: EL 1544/2012
ECD 3561/2012
Date Heard: 14/12/2012
Date Delivered: 20/12/2012
In the matter between
EVALUATIONS ENHANCED PROPERTY
APPRAISALS (PTY) LTD
.........................................................
Applicant
and
THE BUFFALO CITY METROPOLITAN
MUNICIPALITY
.
..........................................................
First
Respondent
PRIMELAND PROPERTIES (PTY) LTD
......................
Second
Respondent
AND THE FURTHER RESPONDENTS AS
PER ANNEXURE “A” OF
THE NOTICE OF MOTION
JUDGMENT
REVELAS J
[1] The applicant instituted urgent
proceedings, for interim relief pending the outcome of a review
application it intends bringing
to review and set aside a decision of
the first respondent, awarding a certain tender to the second
respondent.
[2] The interim relief sought was
firstly, for the delivery of certain listed documents which included
copies of all the tenders
submitted to the first respondent in
respect of the contract in question (contract no. 2953) and all
service level agreements pertaining
thereto. Secondly, the applicant
sought to interdict the respondents from implementing any agreement
in respect of contract no.
2953, pending finalisation of the review
application. An order directing the first respondent for reasons for
its decision was
also prayed for.
[3] The applicant specializes in the
compilation and maintenance of general valuation rolls, and the
valuations of municipal properties
in South Africa. The applicant
employs a number of professional valuers who are registered in terms
of
section 20(2)(a)
of the
Property Valuers Profession Act, 2000
.
[4] During 2011 or early in 2012 the
first respondent called for tenders for the contract no 2953 and
invited bids from suitably
qualified registered property valuers for
the compilation and maintenance of the general (municipal) valuation
roll, asset register
of municipal properties, supplementary valuation
rolls, as well as the supply of other valuation related services in
compliance
with the Local Government: Municipal Property Rates Act
2004 (Act No 6 of 2004). The date of the valuation was determined as
1
July 2013 and the date of implementation of the certified valuation
roll was to take effect on 1 July 2014.
[5] The applicant and the second
respondent were the only two co-tenders who, after a sifting process,
became the final competitors
for the contract. The second
respondent’s “contract price” was about R3 million
less than the applicant’s
price. Despite severe scepticism on
the part of one of the first respondent’s employees about the
competence and suitability
of the second respondent for the highly
specialized task at hand, the second respondent was awarded the
tender.
[6] The first respondent did not
notify the applicant of the outcome of the bidding, despite the
applicant’s queries directed
at it. Instead, the first
respondent relied on a general announcement of the outcome of the bid
in the second respondent’s
favour, it had posted on its
website. On the 21 August 2012, the applicant wrote to the first
respondent, and said that it had
been advised by the Supply Chain for
the first respondent that the tender in question had been awarded. In
the letter the applicant:
(1) requested (as a matter of
urgency) a written response as to whether the award had been made or
was still being adjudicated;
(2) urged the first respondent to
treat the request as urgent “
as if the tender has already
been awarded
”;
(3) notified the first respondent of
its intention to lodge an objection and recorded it dissatisfaction
with the entire tender
process;
(4) requested documentation on the
entire process, scoring and technical competence of the service
provider;
(5) advised the first respondent of
its intention to “move an urgent application in the High Court”
for an interdict
(such as the one under consideration).
[7] The first respondent did not
answer or address any of the questions raised above. It only advised
the applicant on 11 October
2012 to comply with internal procedures
and to complete the correct documentation in connection therewith. On
16 October 2012,
in response to a further letter by the applicant,
the first respondent advised that: “No Service Level Agreement
has been
signed yet and the project had not yet commenced”.
Nothing was said about the second respondent and the applicant was
requested
to keep litigation in abeyance.
[8] On 8 November 2012, the
applicant had cause to write (through newly appointed attorneys) to
the respondent requesting
inter alia:
(1) Confirmation of whether or not
the tender has been awarded.
(2) If the tender was awarded, to
whom and when.
(3) Whether the service level
agreement was signed.
(4) At what stage would the tender
be implemented.
(5) A copy of the tender document
submitted by the successful tender.
[9] The first respondent’s
only response to these requests was to insist once again completing
the correct forms and follow
the correct procedures. More
importantly, not a word was said about the second respondent who had
already been engaged by this
stage. A complaint form was indeed
forwarded by the applicant to the first respondent, even though it
was not sufficiently completed.
[10] As foreshadowed in the letter
of 8 November, the first respondent’s failure to deal with any
of the applicants requests
listed above by 13 November 2012, caused
the applicant to bring the current application.
[11] The respondents challenged the
application on several grounds. These were:
1. Urgency, in that the applicant
knew on 21 August 2012 already that the tender had been awarded, but
waited until the end of November
to bring this application.
2. The applicant’s failure to
comply with internal procedures.
3. The prejudice of granting an
interdict to the second respondent. Mr Baleni, who
de facto,
is the second respondent, had relocated from Johannesburg, opened
offices, purchased furniture and equipment, and entered into
two-year
contracts with service providers.
[12] The main argument in respect of
urgency was that the applicant was supine, the author of its own
urgency, and therefore not
entitled to the urgent relief it seeks. I
disagree.
[13] Whereas the applicant perhaps
could have been more pro-active in placing the first respondent on
specific terms, the correspondence
between the parties strongly
suggests that the first respondent was most uncooperative by not
adhering to a single request made
by the applicant, (the only other
tenderer). The respondents relied
ex post facto,
and
repeatedly on the applicant’s knowledge of the outcome of the
tender award as early as 21 August 2012. It was not open
to the first
respondent to rely on its website announcements to attribute specific
knowledge to the applicant in the circumstances
where the applicant
had been asking for detailed information and documentation about the
tender.
[14] The first respondent, simply
stonewalled the applicant by deliberately withholding crucial
documentation and insisting on the
completion of forms, when the
information requested in the first place, was crucial to complete the
forms sensibly. The documentation
sought by the applicant was only
made available before Mr Beningfield for the applicant, commenced his
argument in court.
[15] The work envisaged to be done
in terms of contract no 2953 is very important. It is in the public
interest that the valuers
who perform the functions in question for a
municipality, are suitably qualified and have the best work-related
experience possible.
The second respondent also relied on the
extensive experience of an individual who would assist it with the
work, but who was not
part of the tender process, to meet the tender
criteria.
[16]
Prima facie
, in my view,
there appears to be merit in the proposition that the second
respondent was not sufficiently suitable for the work.
The lower
contract price does not necessarily cure that. Any benefits achieved
by opting for the cheapest tender could easily be
eradicated if the
work in terms of the tender is performed by under-qualified
personnel. The scathing criticism of the second respondent’s
suitability and qualifications, along with certain other factors, may
very well persuade a reviewing court to set aside the tender.
Even if
the municipal employee who wrote the scathing critique of the second
respondent’s suitability was not a member of
the relevant
committee responsible for evaluating the co-tenderers, his views
should not be discarded out of hand.
[17] The prejudice to be suffered by
the second respondent could have been avoided, if the first
respondent was less determined
in its stance of tolerating no
inference in its awarding the contract to the second respondent. It
ought to have played open cards
with the applicant. The first
respondent would have strengthened its case considerably if it had
just furnished the information
as requested. Its insistence on
correct procedures would then have appeared less contrived and swayed
the balance of convenience
in its favour. Co-operation may very well
have averted this present application. The prejudice to the second
respondent presents
no bar to the applicant to persue its
constitutionally enshrined right to fair administrative action.
[18] In my view, the applicant has
made out a
prima facie
case for the relief it seeks, except
for paragraph 2 (delivery of the documents). The period of five days
in paragraph
5
ought to be extended. Even though the second
respondent also opposed this application, it was the first
respondent’s conduct
which necessitated this application and
the latter should be liable for the costs of the application.
[19] In the result I make the
following order:
An order in the terms set out in
Part A, paragraphs
1, 3, and 5
of the applicant’s
notice of motion is granted.
The first respondent is ordered to
furnish reasons, as envisaged in the Uniform Rule 53, in respect of
contract no 2953 to the
respondent, by no later than 11 January
2013.
The first respondent is ordered to
pay the applicant’s costs of this application,
This order shall lapse on Friday 18
January 2013, at 12h00, if the applicant has not filed its
application for review by that
date.
__________________
E REVELAS
Judge of the High Court
Counsel for the Applicant, Adv
Buchanan and Adv Benningfield, instructed by Conlon & Associates
Inc.
Counsel for the First Respondent,
Adv de La Harpe, instructed by The Buffalo City Metropolitan
Municipality.
Counsel for the Second
Respondent, Adv Quinn, instructed by Primeland Properties (Pty) Ltd.
Date Heard: 14 December 2012
Date Delivered: 20 December 2012