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2024
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[2024] ZAECMKHC 54
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Tyeks Security Services v Member of Executive Council for Department of Public Works and Infrastructure and Others (1815/2024) [2024] ZAECMKHC 54 (24 May 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
CASE
NO: 1815/2024
Reportable
YES/NO
In the matter between:
TYEKS
SECURITY
SERVICES APPLICANT
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
DEPARTMENT OF PUBLIC WORKS AND
AND
INFRASTRUCTURE FIRST
RESPONDENT
KHWANXISA
GENERAL TRADING SECOND
RESPONDENT
GOLDEN
SECURITY SERVICES THIRD
RESPONDENT
JUDGMENT
CENGANI-MBAKAZA AJ:
Introduction
[1] On 14 May 2024,
the applicant approached this court, on urgent basis, seeking an
interdictory relief which is couched
in the following terms:
‘
PART
A
1.
The applicant’s non-compliance with
the rules of the above Honourable Court as regard to service and
forms be and is hereby
condoned to the extent necessarily and that
this matter be heard on an urgent basis in terms of rule 6(12) of the
above Honourable
Court.
2.
A rule nisi be and is hereby issued by the
above Honourable Court that, pending the finalization of the review
applications set
out in Part B hereof, the following order be granted
namely:
2.1
That the First Respondent is hereby
interdicted and restrained from implementing the decision to award
tender number SCMUS-23/24-0048
in respect of cluster 3 and 8.
2.2
That paragraph 1 above operates as an
interim interdict pending the finalisation of PART B of this
application.
2.3
That the costs of the application in terms
of PART A be reserved for decision in respect of the relief sought in
PART B.’
[2] Part B only
relates to review proceedings and does not constitute issues for
determination by this court. In its founding
affidavit, the applicant
presented its grounds supporting the urgency of the matter. The
applicant asserts that there are significant
prospects of success in
the review application (Part B), arguing that the successful tenderer
(the second respondent) does not
appear on the list of bids
receiver’s register, no records of bid submission.
Consequently, it is contended that the second
respondent should not
have been awarded the tender. The applicant further asserts that the
decision to exclude the applicant was
inadequate and flawed, as the
bid evaluation committee mistakenly believed that the applicant had
tendered an amount of 2 million
instead of 22 million rand plus,
which is an amount reflected in the closing register. The applicant
submits that if the interim
relief sought in Part A of the
application is not granted, it may result in an undesirable outcome
where, even if the relief sought
in Part B succeeds, the judgment in
the applicant’s favour would be rendered hollow.
[3] The
application is opposed by the first respondent and in so doing it has
delivered an answering affidavit. The first
respondent raises three
points-in-limine
: self-created urgency, failure to exhaust
internal remedies and the applicant’s failure to prove the
requirements of an interim
interdict. The second and third
respondents filed no opposing papers.
The factual
Background
[4] In August 2023,
the first respondent published a request for bid (RFB) under tender
SCMU5-23/24-0048 (the tender) seeking
security service for various
clusters. The objectives of the tender were to
, inter alia,
appoint service providers to provide security services for
safeguarding of the premises, including all assets and personnel for
24 hours a day.
[5] The applicant
participated in the tender process and submitted its bid for clusters
3 and 8. The tenders were awarded
around 13 March 2024. The second
respondent was awarded the tender for cluster 3, while the third
respondent was awarded for cluster
8. The applicant’s bid was
unsuccessful. For cluster 3, the applicant ranked 6th out of 30
responsive bidders and under cluster
8, it was non-responsive.
[6] On 22 March
2024, the applicant’s attorney wrote a letter (referred to as
‘the first letter’) to the
first respondent demanding
documents relevant to the tender process. This was their first
communication. These were bid evaluation
committee reports, bid
adjudication committee minute and outcomes as well as a rejection
letter of the applicant’s bid and
the reasons for the rejection
(the relevant documents). On 25 March 2024, a second letter was
dispatched to the first respondent
with the following extracts:
‘
7.
We demand this information on or before 28 March 2024.
8. In the interim, we
urge you to suspend the implementation of the tender award pending
your provision of the above requested information
and consequent
review proceedings.
9. We further request
that you tender us with a written undertaking that you will so
suspend the implementation by no later than
end of business 26
th
March 2024.
10.
In the event that
no such undertaking is provided by your good selves, we will approach
Court and seek relief on urgent basis together
with costs against
yourselves.
’
(my underlining)
[7] On 28 March
2024, the first respondent through Mr T.L Manda wrote a detailed
letter (‘the first response’)
outlining the reasons why
the applicant was not successful in the tender process. On the same
date the applicant responded with
a third letter seeking all the
relevant documents stating that it would approach the court on an
urgent basis had they failed to
provide the relevant information. On
08 April 2024, the applicant wrote a fourth letter requesting the
same information. In its
second response dated 08 April 2024, the
first respondent advised the applicant to seek the information in
terms of Promotion of
Access to information Act (the PAIA) and
outlined the necessary procedures. On 09 April 2024, the applicant
wrote a fifth letter
indicating that the information sought is not
premised under PAIA but under sections 3 and 6 of (Promotion of
Administration of
Justice Act) PAJA. The applicant also expressed
that the delay tactics were prejudicial and that it would approach
the court urgently
for appropriate relief. In its third response the
first respondent reiterated that the information required is held by
the department
and that PAIA is applicable, advising the applicant to
follow the PAIA procedures. After the first respondent’s last
response,
the applicant took approximately 16 days before it could
approach the court for the relief sought.
[8] On 30 April
2024, this court issued the following directive:
‘
Having
read the papers filed of record, I hereby issue the following
directive(s) with regard to the hearing and further conduct
of the
matter:
1.
The papers be served upon the Respondents
on 2 May 2024;
2.
The Respondents file a notice of
opposition, if any, on or before 6 May 2024;
3.
The Respondents file answering affidavits,
if any, on or before on 09 May 2024; and
4.
The Applicant file its replying affidavit,
if any, on or before 11h00 on 13 May 2024; and
5.
The matter be set down for hearing on 14
May 2024. The date and time for hearing is subject to a further
directive from the duty
Judge.’
[9] The first
respondent was served with the papers on 06 May 2024 and not 02 May
2024 as directed by the court. The applicant
opted to file no
replying affidavit in the proceedings. The parties advanced their
legal submissions both on the issue of urgency
and the merits of the
case.
Urgency
[10]
Before addressing the merits of the matter, I believe it would be
plausible in assessing whether the application is urgent
to the
extent that the court should treat it as such. In this exercise, one
must tread carefully because the issues of urgency
and the merits of
the interim interdict are to some extent interconnected. Uniform Rule
6(12) of the Uniform Rules of court requires
an applicant to
explicitly set forth the circumstances which render the matter urgent
and the reasons why it could not be heard
in the ordinary
course.
[1]
The
correct test to be applied in urgent applications is whether the
applicant will be afforded substantial redress in future.
[11]
Our courts have consistently refused to grant urgent relief in cases
where the urgency relied upon is self-created. In
Dynamic
Sisters Trading (Pty) Limited and Another v Nedbank Limited
[2]
the court held:
‘
Consistency
is important in this context as it informs the public and legal
practitioners that rules of court and practice directives
such as the
actual need for urgency as prescribed by rule 6(12) should never be
ignored.’
An
applicant cannot create its own urgency by simply waiting till the
normal rules can no longer be applied.
[3]
If there is some delay in instituting the proceedings on an urgent
basis, the applicant must explain the reasons for the delay
and why
despite the delay he claims that he cannot be afforded substantial
redress at the hearing in due course. Strydom J in
Roets
N.O. V SB Guarantee Company (RF) Pty Ltd
[4]
,
held:
‘
Urgency
which is self –created in a sense that an applicant sits on its
laurels or take time limits to bring an urgent application
can on its
own lead to a decision that a matter is struck off the roll. It would
of course depend on the explanation provided but
if the explanation
is lacking and does not cover the full period from when it was
realised, or should have been realised, that
urgent relief should not
be obtained. If this criteria to strike a matter from the roll is not
available to a court, a court would
be compelled to deal with an
urgent application where for instance nothing was forthcoming for
weeks or months and a day or two
before an event was going to take
place, a party who wants to stay that event can approach a court and
argue that if an order is
not immediately granted such party would
not obtain substantial redress in due course. If this is the approach
to be adopted by
the court, there exists no reason why any
explanation for the delay should be provided at all. An applicant
only has to show that
should interim relief not be granted it will
suffer irreparable harm.’
[12]
In his body of work
V
De Wit
[5]
,
‘…
..
harm does not found urgency. Rather, harm is a mere precondition to
urgency. Where no harm has, is, or will be suffered, no application
may be brought, since there would be no reason for a court to hear
the matter. However, where harm is present an application to
address
harm will not necessarily be urgent. It will only be urgent if the
applicant cannot obtain redress for that harm in due
course. Thus:
harm is an antecedent for urgency, but urgency is not a consequence
of harm.’
[13]
In the exercise of its discretion in dispensing with the outlined
formalities and procedures, the court has to take a
proper account on
whether the respondent can adequately present its case in the time
given, prejudice to the respondent and the
administration of justice
as well as the strength of the applicant’s case. In
Nelson
Mandela
Metropolitan
Municipality & Others v Greyvenouw CC and Others
[6]
,
Plasket AJ (as he then was) said the following:
’
37
it is trite that Applicants in urgent applications must give proper
consideration to the degree of urgency and tailor the notice
of
motion to that degree of urgency. It is also true that when Courts
are enjoined by Rule 6(12) to deal with urgent applications
in
accordance with procedures that follow the Rules as far as possible,
this involves the exercise of a judicial discretion by
a court
‘concerning which deviation it will tolerate in a specific
case.’
[14] During
arguments, I invited the applicant’s counsel to account for the
delay before the institution of the application
under consideration.
Counsel argued that the first respondent contributed to the delay, in
that, he failed on numerous occasions
to furnish the relevant
documents. The first respondent’s counsel on the other hand
submitted that a detailed response outlining
the applicant’s
failure to succeed in the bid was dispatched to the applicant. It was
further advised of the correct procedure
to follow in order to obtain
the relevant documents. It ought to have followed the PAIA procedures
or request for the impugned
record in terms of Uniform Rule 53 of the
Uniform Rules of court, so the argument continued.
[15]
I acknowledge the sentiments raised by Notshe AJ in
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others
[7]
,
where he held the following in relation to urgency:
‘
(8)
In my view the delay in instituting proceedings is not on its own a
ground for refusal to grant the matter urgent. The court
is obliged
to consider the circumstances of the case and the explanation given.
The delay might be an indication that the matter
is not as urgent as
the applicant would want to believe. On the other hand, delay might
have been caused by the fact that the applicant
has attempted to
settle the matter or collect some facts with regard thereto.’
In
the matter under consideration, the first respondent raised a point
in limine
regarding self-created urgency, which was not properly addressed by
the applicant in the papers filed. Although the applicant
threatened to initiate legal proceedings from 22 March 2024, it was
only able to do so on 30 April 2024. There was a delay of about
16
days from the day the applicant received the last response until it
decided to bring the matter to court. Despite being directed
to serve
the first respondent with papers on 09 May 2024, there was
unaccounted delay of about four days before the first respondent
was
served with papers. Additionally, the applicant was provided with
detailed reasons for its failure in the bid and was advised
of the
remedies available to obtain the relevant documents. Given these
facts, the argument that the first respondent contributed
to the
delay in bringing the matter before the court lacks merit.
[16] It is observed
that the applicant’s urgency’s arguments primarily
concern the success of the second and third
respondents in the bid
process. The core of the applicant’s complainant is that the
first and second respondent should not
have been awarded the bid.
Regarding the strength of the applicant’s case, it was argued
that the first respondent’s
evaluation committee mistakenly
believed the applicant bid an amount of 2 million instead of 22
million. This discrepancy is reflected
in the first respondent’s
response where the applicant’ failure to succeed in the bid was
explained. The first respondent’s
counsel highlighted that this
was an administrative capturing error that could not be accounted for
in the answering affidavit
due to time constraints and urgency of the
matter. I accept this explanation, especially in light of the fact
that all the documents
filed in the RFB reflect an amount of 22
million plus which was the amount that the applicant bided. Fortified
by
Roets’s
case above, I conclude that this is a typical
case of self-created urgency. The applicant’s failure to serve
the first respondent
with the papers as directed by the court created
prejudice, in that the first respondent had little or no time to
canvass some
of the issues raised in the founding affidavit. In my
considered opinion, it would be prejudicial to the first respondent
if the
matter were to be heard on an urgent basis.
[17] Considering
the observations made above, it would be futile to even traverse on
the merits of the application for interim
interdict.
Order
[18]
The following order is issued:
1.
The matter is struck off the roll
for want of urgency.
2.
The applicant shall pay the wasted
costs, in accordance with scale A as contemplated in Rule 69 of the
Uniform Rules of Court.
N CENGANI-MBAKAZA
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
APPEARANCES
:
Counsel for the
Applicant :
Adv I. J Smuts SC and Adv M. L Beard
Instructed
by :
MBULELO QOTOYI ATTORNEYS
MTHATHA
C/o
YOKWANA ATTORNEYS
10 New
Street
MAKHANDA
Ref.:
Mr Yokwana
Tel.:
046 – 622 9928
Counsel for the first
Respondent :
Adv N. T Dwayi
Instructed
by :
STATE ATTORNEY (GQEBERHA)
29
Western Road, Central
GQEBERHA
Ref.:
M Sisilana
Tel.:
041 – 585 7921
Date
heard
:14 May 2024
Date
delivered
:24 May 2024
[1]
Uniform
Rule 6(12) of the Uniform Rules of Court provides that:
(a) In urgent
applications the court or a judge may dispense with the forms and
service provided for in these rules and may dispose
of such matter
at such time and place and in such manner and in accordance with
such procedure (which shall as far as practicable
be in terms of
these rules) as it deems fit.
(b) In every affidavit
filed in support of any application under paragraph (a) of this
subrule, the applicant must set forth explicitly
the circumstances
which is
[sic]
averred render
[sic]
the matter urgent
and the reasons why the applicant claims that applicant could not be
afforded substantial redress at a hearing
in due course.’; see
also Rule 12(a)(ii) of the Joint Rules of Practice for the High
Courts of the Eastern Cape.
[2]
(081473/2023) [2023] ZAGPPHC 709 (21 August 2023) at paragraph 18;
Case Number 1076/2021 Garth Merrick Voigt N.O and Another
v Egh IP
(PTY) LTD and Another, judgment delivered on 04 May 2021
(unreported) (see paragraph 28).
[3]
Enx Group Limited v Spilkin (2296/2022) [2022] ZAECQHC at paragraph
15.
[4]
(36515/2021
[2022] ZAGPHC 754
(06 October 2022).
[5]
V de Wit’ The correct approach to determining urgency’
[2021] 21 (2) without prejudice 12 at 13.
[6]
2004 (2) SA 81
(SE) [37], [38] AND [40]; Enx Group Limited v Spilkin
(2296/2022) [2022] ZAECQHC at paragraph 13.
[7]
2011 JDR 1832 (GSJ) at paragraph 8.