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[2008] ZAWCHC 231
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HCB Eiendomswaardeerders BK v Scholtz and Others (1229/2007) [2008] ZAWCHC 231 (1 August 2008)
REPORTABLE
IN
THE HI
GH
COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NUMBER:
1229/2007
DATE:
1
AUGUST 2008
In
the matter between
HCB
EIENDOMSWAARDEERDERS BK APPLICANT
and
J
J SCHOLTZ 1
st
RESPONDENT
DIE
TENDERTOEKENNINGSKOMITEE
VAN
DIE SWARTLANO MUNISIPALITEIT 2
nd
RESPONDENT
A
W BREDELL, UITVOERENDE
BURGEMEESTER 3
rd
RESPONDENT
M
# MEDEWERKERS 4
tn
RESPONDENT
JUDGMENT
DAVIS,
J
:
The
applicant is a close corporation which appears to transact business
as a valuator of property. On 29 April 2006, the Swartland
Municipality on 29 April 2006 caused an advert to be published for
applications to tender for a process to ensure a general valuation
of properties in the area for the period 1 July 2008 to 30 June
2012. A number of applications were made pursuant to this advert,
including one generated by the applicant and another by fourth
respondent.
It
appears from the evidence that the applicant produced the lowest
tender in the amount of R1 339 604, whereas the fourth respondent
applied by way of its tender in the amount of R2 706 665. The
designated committee of the Swartland Municipality decided on 12
September 2006 to award the tender to fourth respondent. Applicant
was dissatisfied with this decision and lodged an appeal against
the
decision to award the tender to fourth respondent.
It
appears to be common cause that on 10 October the appeal was
received and on 20 November 2006, the Executive Mayor, Mr Bredell,
considered the appeal and dismissed it. Applicant then lodged an
application for review and setting aside of these decisions,
such
application being instituted by way of a notice of motion on 6
February 2007. It is significant that when the notice of
motion was
generated, the application was not brought on the basis of urgency
nor was any interim relief sought, in this connection
the process
and procedure adopted by the applicant should be contrasted with
that which recently vexed this Court in the case
of
Entsha
Henra BK v Hessequa Munlsipaliteit & 3 Others
,
unreported judgment of
Griessel
.
J, 15 May 2008.
The
case, to the extent that it had been launched by the applicant in
February 2007, appeared to meander at a surprisingly
leisurely pace. The common cause facts are that an answering
affidavit, generated by first and second respondent, was finally
deposed to on 1 October 2007. According to Mr Pretorius, who
appeared on behalf of the applicant, there was some action taken
by
applicant's attorney in the period between February 2007 and October
2007 to expedite the hearing. This Court was referred
to a document,
28 June 2007, entitled kennisgewing van inskrywing op rol, which was
lodged by applicant's attorney and which
says:
"Geliewe
kennis te neem dat die applikant die bovermelde saak op 14 Junie
2007 op die deurlopende rol van bestrede aansoeke
ingeskryf net en
wel onder folionommer 77/2007 daarvan."
That
notice was lodged on 28 June 2007. Significantly, nothing appears to
have transpired until a chamber book application was
brought on 3
August 2007 in which an order was sought that the respondents filed
heads by the latest 22 August 2007. According
to an affidavit from
applicants attorney of 2 August 2007, presumably filed in support of
the chamber book application, the following
is stated:
"Na
ontvangs van die oorkonde, het die applikant op 24 April 2007 Yi
aanvullende beedigde verklaring geliasseer. In die omsiandighede
moes die respondente ten faaste 19 Junie 2007 hul opponerende
verklarings hasseer... Ek versoek derhalwe eerbiediglik namens
die
applikant, ft bevel ingevolge waarvan die respondente beveel word om
teen 17 Augustus 2007 hulle opponerende verklarings
te liasseer, 'n
gebreke waarvan die applikant geregtig sal wees om sy aansoek vir
aanhoor op 28 Augustus 2007 in die onbestrede
rol van hierdie Agbare
Hof te rolle te plaas."
I
have referred in some considerable detail to these events leading up
to the hearing of this application this morning, being
1 August
2008. They are important, particularly in the light of two
considerations:
No
urgent relief was ever sought by the applicant pursuant to the
appeal against the decision having been dismissed on 20 November
2006 and the launching of the application in February 2007 or
throughout the period which I have now documented with regard
to
ensuring that the case proceed to court.
These
events are particularly relevant when the time lines for the
implementation of the tender are considered.
According
to the evidence, it appears that the tender process would go through
some ten different phases, the first being completed
on 30 September
2006 and the final phase being completed on 30 April 2008. In
essence, when the process of work envisaged by
the tender is
examined, the work for which the successful tenderer would be
remunerated, was to be completed by and large by
the end of December
2007. It appears that this was the case in so far as the work
undertaken by fourth respondent was concerned.
These considerations
are extremely important with regard to the question as to whether an
application of this kind should be
entertained by this Court.
In
Millennium
Waste Management v Chairperson Tender Board
2008(2)
SA 481 (SCA),
Jafta
.
J A at para 23 said the following:
"The
difficulty that is presented by invalid administrative acts, as
pointed out by this Court in Oudekraal Estates, 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 the tenderer and
that is often immediately followed by further contracts 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 an
innocent tenderer and adverse consequences for the public at large,
in whose interests an 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 an
equitable."
The
proposition advanced in this dictum, constitutes an invitation to
courts to implement a doctrine of proportionality; that
is to weigh
up the affected interest for the disappointed tenderer against
public interests in ensuring that work adopted in
the public
interest is implemented expeditiously, that delays do not take place
and that the public are not jeopardised by such
delays, or
considered within the prism whether the public body has acted, in a
reasonable fashion.
This
point was explicated in the judgment which followed hard on the
heels of the
Millennium
Waste Management
judgment supra by
Scott
,
J A in
Chairperson
STC v J F E Sapela Electronics
2008(2) SA 638 at para 28, in which the learned judge of appeal
states:
"In
appropriate circumstances a court wilt decline in the exercise of
its discretion to set aside an invalid administrative
act. This was
observed in
Oudekraal
Estates
(Ptv)
Ltd
v City of Cape Town
204(6) SA 222 (SCA) para 36 at 246 D: 'It is that discretion that
accords to judicial review its essential and pivotal role in
administrative law, for it constitutes the indispensable moderating
tool for avoiding or minimising injustice when legality and
certainty collide."
A
typical example would be the case when an aggrieved party fails to
institute review proceedings within a reasonable time. The
effect of
this delay would be to "validate" what would otherwise be
invalid. In the present case, as I have found,
there was no culpable
delay on the part of the respondents. The raison d'etre of the delay
rule was set out by
Brand,
J A
in
Associated
Institution Pension & Others v Van Zyl & Others
2005(2)
SA 302 (SCA) at para 46:
"First
the failure to bring a review within a reasonable time may cause
prejudice to the respondent. Secondly, there is a
public interest
element in the finality of administrative decisions and the exercise
of administrative functions. Under the
rubric of the second, I
would add considerations of pragmatism and practicality.
1
'
In
this case the applicant took almost two and a half months before it
launched its application for review, having been dissatisfied
with
the appeal process. It then appeared to have done nothing to
expedite the hearing until, on its own version, June 2007.
Even then
there were further delays until steps were taken to implement a
chamber book application in August 2007. All of this
took place
within the context of an applicant, which knew full well that the
entire process would have been completed by the
latest December
2007. It made no attempt to stop the process by way of interim
relief to which it might well have been entitled.
I make no comment
thereon.
If
the competing interests of the municipality, anxious to ensure that
an important component of its entire revenue basis are
carried out
as expeditiously and efficiently as possible, against the rights of
applicant are weighed, the fact that applicant
took so long and did
so little to ensure that the process could be brought forward so
that a court adjudicate thereon before
considerable prejudice was
incurred by way of a review, which would have subverted the laudable
objectives of the municipality,
is itself indicative that in a
balancing process this Court should do no more than find that the
application was not brought
timeousty and that the dicta, to which \
have made reference from the SCA, must hold sway.
I
accept, as Mr Pretorius urged upon this Court, that there may well
have been some problem with the administration within these
courts
to ensure that the matter was brought expeditiously, but the
correspondence to which he has referred, indicates that for
a very
long time little was done to ensure that the urgency was grasped by
the applicant. An applicant cannot, in a matter of
such urgency,
knowing full well the facts, take a leisurely approach to review and
then complain when the review is rejected
for reasons of pragmatism,
practicality and delay. Delay, of course, is always a contextually
based inquiry. Given the facts
as I have outlined them, it is, to my
mind, a fatal obstacle to the prosecution of this review. That, of
course, is the end of
the matter, because if there cannot be a
review, there cannot be the relief as sought by applicant.
However,
I do need to say a few things with regard to this aspect of the
case. Realising the difficulty that a review application
to set
aside a tender which had already been completed, applicant sought at
a very, very late stage to bring an application for
an amendment to
its notice of motion. There is, therefore, before us a further
affidavit deposed to by Mr Hendrik Coenraad Botha,
who describes
himself as "die algemene bestuurder van applikant beslote
korporasie". In this affidavit Mr Botha claims,
what Mr
Pretorius later described as 'out of pocket expenses
1
incurred in what proved to be an unsuccessful application for the
tender.
I
must add that it is a very sloppily drafted document. The amount
which is claimed in typing referred to R55 360 and an extra
amount
of R97 918. The document makes some very curious cfaims. That having
been said, the proposition, advanced by Mr Pretorius
on behalf of
applicant, was that this Court could adopt a far more pragmatic
approach to award damages in the form of the 'out
of pocket
expenditure' to applicant, such amounts being just and equitable in
the circumstances of an unsuccessful tender, which
may have been
unsuccessful only because of breaches of the rules of administrative
justice as contained in the Promotion of the
Administration of
Justice Act 3/2000 ('PAJA').
In
this regard Mr Pretorius referred to a decision in
Parson
Construction (Ptv) Ltd v City of Cape Town
2007(4) SA 488 (C). In that case,
Selikowitz
.
J considered a review application in circumstances where, as in the
present case, the work had already been completed. He accepted
athe
claim for damages in the form of a loss of profits claim could not
be sustained as damages by their nature were unliquidated
and that
some form of statement as to what loss of profits would be, couid
not be a justifiable reason for so granting damages
of a
constitutional nature, even if the decisions were set aside.
However,
the learned judge accepted that an 'out of pocket expenditure' of
R25 955 was justified in the circumstances of
the case as he
considered that the decision to award a tender should be reviewed
and set aside. It is clear that in cases of
this kind, damages
can only be awarded in exceptional circumstances. Mr Olivier, who
appeared together with Mr Engela on behalf
of respondent, correctly
referred us to section 8(1) of PAJA, in terms of which a Court is
empowered to grant any order that
is just and equitable, including
the setting aside of the administrative action and in exceptional
circumstances, directing the
administrator or any other party to the
proceedings to pay compensation.(Section
8(1)(c)(ii)(b)(e)).
In
this case, even were I inclined to consider that the review
application should succeed, the manner in which this has been
brought at the proverbial twelfth hour, the vagueness of the claims
cannot justify a Court, simply taking a relatively cavalier
approach
to the award of damages. I have no basis for understanding how
Selikowitz
,
J arrived at the award of R25 000 for out of pocket expenditure, but
I must presume that on those papers, those claims were
sufficiently
clear to satisfy the grant of the amount.
In
this case, the claims produced in the affidavit of Mr Botha, are of
an unsatisfactory nature and would necessitate a carefully
consideration by the Court after proper evidence has been adduced by
both parties. That, fortunately or unfortunately as the
case may be,
does not have to vex the Court, because as
Seiikowitz
,
J made it clear in his carefully considered judgment, damages can
only be granted after a review application succeeds. In this
case,
for the reasons that I have set out, the applicant's own conduct and
the jurisprudence of the Supreme Court of Appeal,
as I have outlined
it, dictate that the application for review should be dismissed.
Once dismissed, the issue of compensation
falls away.
For
these reasons, therefore, the application is dismissed with costs,
including the costs of two counsel.
DAVIS,
J
STEYN,
AJ:
Concurred
STEYN,
A J