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[2009] ZAGPPHC 348
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DFS Flemingo SA Pty (Ltd) v Airport Company SA (Pty) Ltd and Others (59131/09) [2009] ZAGPPHC 348 (11 December 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 59131/09
DATE:
11 DECEMBER 2009
DFS
FLEMINGO SA PTY (LTD)
APPLICANT
And
AIRPORT
COMPANY SA (PTY)
LTD FIRST
RESPONDENT
BIG
FIVE DUTY FREE (PTY)
LTD SECOND
RESPONDENT
THE
TENDER BOARD OF
ACSA THIRD
RESPONDENT
JUDGMENT
TOLMAY
AJ
Applicant
applied for urgent interim relief pending the review and setting
aside of a tender award and a contract based on such
a tender. A
review application was instituted during November 2009.
Urgency
The
Applicant alleges that the matter is urgent in that it no interim
relief is grained the effluxion of time may result in the
applicant,
even if successful, not being granted effective relief.
The
Respondents on the other hand contend that the matter is not urgent.
In
the light of the fact that the implementation date of the tender is 1
March 2010. I regard it in the interest of justice to adjudicate
on
this matter on an urgent based.
Background
The
first Respondent issued invitations to bid for the operation of the
Core Duty and VAT free stores in the International Departures
and
Arrival Airside Terminals at O R Tambo International Airport. Cape
Town International Airport and the new International Airport
at La
Mercy (North of Durban).
The
Applicant submitted a tender but the tender was awarded to second
Respondent. Second Respondent is the present incumbent of
the duty
free stores. The first and second Respondent entered into a written
agreement on 25 September 2009. The effective date
of the agreement
is 1 March 2010.
The
Applicant alleges that the content of the tender was formulated in a
manner which benefited the present incumbent and prejudiced
other
bidders. The Applicant requested information in respect of inter alia
turnover figures and information regarding the top
10 selling items
under each category with their respective selling prices. Applicant
was refused the information. Applicant alleges
that it needed the
information in order to develop a more comprehensive and meaningful
proposal. The first Respondent refused to
divulge duty free turnover
details of the shops because it was confidential information
pertaining to the second Respondent’s
business. Obviously as a
result of the second Respondents present position the information was
available to second Respondent.
Applicant also complained that the
respective weightings allocated to criteria and sub-criteria needed
to be disclosed to all renderers.
The
Applicant alleges that due to the aforesaid second Respondent was in
a better position to formulate a winning bid The lack of
transparency
placed the second Respondent in a better position than other bidders,
according to Applicant.
The
further allegation is that in the light of the fact that the
respective weightings allocated to criteria and sub-criteria were
not
disclosed the procedure followed was not fair and equitable.
Applicable
legal principles
1.
The first Respondent is a public entity in terms of the Public
Finance Management Act (PFMA) and is enjoined in terms
of sec 217 of
the Constitution and sec 51(a) (iii) of the PFMA to procure goods and
services by means of a system which is fair,
equitable, transparent
and cost effective.
2.
As a result of the aforesaid Applicant is entitled to procedure that
complies with the aforesaid legislation.
3.
In order to succeed with an interim interdict the Applicant must
prove
(i)
A prima facic right;
(ii)
A well grounded apprehension of harm:
(iii)
That the balance of the convenience favours it
(iv)
That no other satisfactory remedy is available.
See:
L F Boshoff Investments (PTY) Ltd v Cape Town Municipality; Cape Town
Municipality v L F Boshoff Investment (PTY) Ltd
1969 (2) SA 256(C)
on
267 B - E
Prima
facre right
In
order to establish whether a prima facie right exists. I need to
consider the facts set out by the Applicant, together with any
facts
set out by the Respondent which the Applicant cannot dispute, and to
decide whether with regard to the inherent probabilities
and the
ultimate onus, the Applicant should obtain final relief at the trial.
The facts set up in contradiction by the Respondent
should then be
considered and if they throw serious doubt on the Applicant's case
the Applicant cannot succeed.
On
an evaluation of the facts in this case the Applicant is entitled to
fair and just administrative procedure. Due to the fact
that
Applicant did not get the information it requested it could be argued
that it was not treated fairly and on equal footing
with the Second
Respondent. It could also be argued that the weightings allocated to
the different criteria should have been revealed
to the bidders.
Consequently the Applicant did prove a prima facie right.
Balance
of convenience
The
Applicant alleges that since Second Respondent is the present
incumbent there is no short term issue of handover from one
successful
bidder lo another. It is argued that the granting of
interim relief will not prejudice the First and Second Respondents in
that
the operation of facilities will continue uninterrupted until
the review application has been finalised.
The
Respondents contend that the balance of convenience favours them in
that they should proceed with the concluded agreement pending
the
finalisation of the review application Due to the long term of the
contract. 10 years, the Applicant will have more than enough
time to
challenge the existing contract in due course. The Respondents will
be greatly inconvenienced if the contract is not proceeded
with.
In
my view it is not in the interest of any of the parties to perform in
terms of a contract that could be set. aside by the Court
hearing the
review application.
Irreparable
harm
Applicant
alleges that if First and Second Respondents arc permitted to proceed
with the implementation of the tender the outcome
of the review
application will be academic and potentially nugatory. The
Respondents dispute this and argues that there will be
no irreparable
harm.
It
is however conceivable that if an interdict is not granted the
Applicant could suffer irreparable harm.
No
other satisfactory remedy
The
Respondents argued that the review application is a sufficient
alternative remedy and that therefore 1 should not grant an interim
interdict. This argument however looses sight of the fact that if the
terms of the contract arc complied with during the time pending
the
determining of the review application any relief granted may become
academic.
Consequently
the Applicant did prove the requirements for an interim interdict.
I
make the following order:
1.
Pending the finalisation of the review and setting aside of the
tender and/or setting aside of the decision of the First Respondent
and/or Third Respondent to award a tender for the operation of the
Core Duty and VAT free stores in the international departures
and
arrival airside terminals at OR Tambo International Airport. Cape
Town International Airport and the new International Airport
at La
Mercy (North of Durban KZN) in terms of bid reference number CDF08
05/2009 (“the tender").
1.2
The First and Second Respondents are interdicted from implementing
and performing in terms of any contract concluded between
the First
and Second Respondents, pursuant to the award of the aforesaid
tender.
2.
Costs of this application is to be costs in the review application.
R
TOLMAY
ACTING
JUDGE OF THE HIGH COURT