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[2011] ZAFSHC 206
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Jorian Construction CC v Tokologo Local Municipality and Another (3401/2011) [2011] ZAFSHC 206 (15 December 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No: 3401/2011
In
the matter between:
JORIAN
CONSTRUCTION CC
….............................................
.Applicant
and
TOKOLOGO
LOCAL MUNICIPALITY
….........................
1
st
Respondent
COLEMO
PROJECTS
…................................................
2nd
Respondent
JUDGEMENT:
MATHEBULA AJ
HEARD ON
:
22 SEPTEMBER 2011
DELIVERED ON:
15 DECEMBER 2011
[1] The applicant is
approaching the court seeking and interim interdict pending an
application to review and set aside the award
of contract awarded by
the first respondent to the second respondent. This was for the
provision of bulk water under tender number
TLM/BWS/BL/3
in
Hertzogville. The matter is duly opposed by the first respondent.
[2] The first respondent
called for tenders for provision of work as explained which closed on
the 8
th
December 2010. The tender was to construct
approximately 10 kilometres water pipeline from Christiana to
Hertzogville. On the 8
th
December 2010 the tenders were
opened in public and read out loud. The applicant was the one who
tendered at the lowest price.
It is on this basis including points to
be earned on functionality that the applicant formed the impression
that success has been
achieved. The tender will be awarded to the
applicant.
[3] The applicant
enquired on a monthly basis regarding the tender but to no avail. It
was only in August 2011 that the applicant
learned that the tender
had been awarded to the second respondent. The reasons were sought
from the respondent as to why the applicant
was unsuccessful. These
could not be provided and this led to this application.
[4] The requirements for
an interim interdict have well been established in our law. These
requirements as set out in
SETLOGELO v SETLOGELO
1914
AD 221
at 227 are the following:
A prima
facie
right.
A well granted
apprehension of
irreparable harm, if
interim relief is not granted and the ultimate relief is eventually
granted.
The balance of
convenience in favour of the granting of the interim relief.
The absence of any other
adequate ordinary remedy.
[5] I will deal with
these requirements at a later stage. The applicant did make enquiries
from the first respondent in terms of
the provision of Promotion of
the Administrative Act 3 of 2000. It is not in dispute that this
tender process is an administrative
action.
[6] It was submitted by
Mr Grobbler that the first respondent did not act in a fair,
equitable and transparent manner. In actual
fact the first respondent
provided arbitrary reasoning why the second respondent was awarded
the tender.
[7] Mr Knoetze submitted
that the applicant knew of the disqualification by not complying with
the requirements. Further, the first
respondent waited too long for
reasons much to its detriment. He further submitted that once the
tender is non responsive, the
issue of price becomes irrelevant.
Further, it was also irrelevant to refer to the Construction Handbook
as it carried no legislative
value.
[8] The requirements in
matters of this nature are for the applicant to show that there is a
prima facie right. The correct approach
was succinctly stated by
MALAN J (as he then was) in
JOHANNESBURG MUNICIPAL PENSION FUND
v CITY OF JOHANNESBURG
2005 (6) SA 273
(W)
“
1.
exists
when there is a prospect for
success in the claim
for the principle relief, albeit that such prospect may be assessed
as weak by the judge who hears the interim
application.
to be satisfied that
the review application which is to be brought, is not frivolous or
vexatious, and that some plausible justification
is present which is
based upon the facts which were put up before that Court.
”
[9] This was the approach
of the court by DENNIS J in
CIVILS 2000 (PTY) LTD v INTERSITE
PROPERTY MANAGEMENT SERVICES (PTY) LTD AND TWO OTHERS
(Case
Number 25288/2009). It is not a mere allegation of taking a matter on
review but it must be a serious matter. The right to
be proved must
not be frivolous or vexatious. In this matter, I am satisfied that
given all the facts there seems to be flaws which
may be fatal. A
public body need to act in an equitable, fair and transparent manner.
There need to be balanced reasoning for all
decisions taken and not
in an arbitrary manner.
[10] This tender is for a
period of a year. It stands to reason that unless the relief is
granted the review may be of academic
value when granted or denied.
The action for damages must pass a stringent test in order to
succeed. This means that there exists
no alternative remedy in this
regard. It does not mean that the tender will be awarded to the
applicant.
[11] It was submitted
that the community of Hertzogville will be severely prejudiced if
services are not adequately and promptly
provided to them. Several
waterborne diseases will be the order of the day which will cause
health hazard and bring hardship to
the community. Further that this
was a project initiated from the National Government Department. If
the money is not utilised,
it will be rolled back and such funds may
not be allocated again. Although the submission is made in this
regard, I am not privy
to the extent of such allegations. This aspect
is dealt with by the court in CIVILS SUPRA where the judgment by
BINNS-WARD AJ (as
he then was) in
SEARLE v MOSSEL BAY
MUNICIPALITY AND OTHERS
(unreported 12 FEBRUARY 209) is cited
with approval at paragraph 29:-
“
When
it comes to the balance of convenience… in the situation in
which the applicant has on the current state of the papers,
established her alleged prima facie right quite strongly, the
prejudice of the respondents that will be occasioned by a cessation
of the building work, must be subordinate to the applicant’s
entitlement to the enforcement of a principle legality”.
I could not find no
reasons to depart from what is stated
by court in the above
matter.
[12] I make the following
order:-
Pending the
finalisation of a review application that the applicant stands to
launch against the decision by the first respondent
to award the
contract for the construction of the Regional Bulk Water Supply
Phase 1: Hertzogville Bulk Water Pipeline under
tender number
TLM/BWS/PL/3, to the second respondent;
The first respondent is
interdicted and restrained from executing in any manner whatsoever
upon the contract concluded and pursuant
to the granting of the
tender by the first respondent to the second respondent;
First respondent is
interdicted from further implementing or acting upon the award of
tender in favour of the second respondent;
The second respondent
is interdicted in carrying out any works envisaged by the tender
and/or any other contract concluded pursuant
to award thereof;
The applicant shall
institute the review referred to in paragraph 1 within thirty (30)
days of this order;
First Respondent is
ordered to pay costs of this application.
_____________________
M.A. MATHEBULA, AJ
On behalf of the
applicant: Adv. S. Grobler
Instructed
by:
Gous
Vertue & Associate
BLOEMFONTEIN
Ref: CV463
On behalf of the
respondents: Adv Barnard Knoetze SC
Instructed
by:
Stander
& Partners
BLOEMFONTEIN
REF: HJS/cvdm/GT0098