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[2024] ZALMPPHC 32
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Mamayile Business Enterprise CC v MEC for the Department of Transport and Community Safety Limpopo Province (1186/2024) [2024] ZALMPPHC 32 (2 March 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO:
1186/2024
1. Reportable: No
2. Of interest to
other judges: No
3. Revised
2
April 2024
In the matter between:
MAMAYILE
BUSINESS
ENTERPRISE
CC
APPLICANT
(Registration nr:
2008/084769/23)
And
THE MEC FOR THE
DEPRATMENT OF
FIRST RESPONDENT
TRANSPORT
AND
COMMUNIT
SAFETY,
LIMPOPO
PROVINCE
MUSHOMA
SECURITY SERVICES
SECOND
RESPONDENT
AND
PROJECTS
CC
(Registration nr:
2008/216187 /23)
This
judgment is issued by the .Judge whose name is reflected herein and
is submitted electronically
to
the parties/their
legal
representatives by email. The date of this judgment is deemed
to be 2 April 202
JUDGMENT
DEANE Al
Introduction and
Background
[1]
This
is
an
urgent
application
for
a
procurement
review
arising
from
a tender
process
wherein
the
first
respondent
published
Tender
PUDP
786
for
the
provision
of physical
services at
Head
Office (Tender
786).
[2]
The
following
factual
chronology
of
events
is
essentially
common
cause or
not
disputed.
[3]
The first respondent published an invitation to
tender in Tender 786 on 11 August
2023.
The initial closing
date
was 4
September
2023.
[4]
Tender
786
provided
for
a
three-year
contract
of
24-hour
physical security services at the Head Office of
the Department of Transport and Community
Safety,
Limpopo Province.
[5]
The closing
of Tender
786
was 1 September
2023
at
11h00.
[6]
The
tender
validity
period
was
90
days.
[1]
[7]
The
Applicant
duly
applied
and
timeously
submitted
a
tender
bid
in respect of Tender 786 which was to be evaluated
by the Bid Evaluation Committee (BEC) of the
first
respondent.
[8]
The
BEC initially recommended that the Applicant be awarded the Tender
786.
[2]
[9]
On the basis that the Applicant was disqualified
the first respondent proceeded to award the tender 786 to the second
respondent
who was identified
as
the
highest-scoring
tenderer
in
respect
of
Tender
786.
[10]
Having
informally
learnt
on
30
January
2024
that
it
was
unsuccessful
and
observing that the representatives of the second respondent had
"already
mobilised
to
the
subject
site,
thus
manifestly
having
been
appointed
by
the first respondent
[3]
the
applicant
proceeded
by
way
of an
urgent
review
application to this court.
[11]
The
Applicant
seeks
an
order
against
the
Respondents
in
the
following terms:
1.
That this application be heard as an urgent
application;
2.
That the decision of the first respondent to award
Tender 786 to the second respondent be declared constitutionally
invalid, reviewed
and set aside;
3.
That
any
service
level
agreement
concluded
between
the
first
and
second
respondents
pursuant
to
the awarding
of Tender
786 be set
aside;
4.
That tender 786 be awarded to the applicant;
5.
Directing that the costs of this application be on
the scale of between attorney
and
client,
jointly
and
severally,
the
one
paying
the
other
to
be absolved.
[12]
In
answer
to
the
applicant's
application,
the
first
respondent
raises
the following
disputes:
1.
The urgency of this application;
2.
The
non-joinder
of
all
208
bidders
that
were
evaluated
in
terms
of
the
BEC
report;
3.
The
permissible
number
of
affidavits
that
may
be
filed
specifically
the filing
of
a
supplementary
affidavit
by
the
applicant;
4.
The Lapsing
of Tender
786.
[13]
I
will
proceed
to
first
deal
with
the
matter
of
urgency.
Urgency
[14]
The
legal principles governing urgency is set out in Rule 6(12) of the
Uniform Rules of Court ("the Rules"). The Courts
have over
the years provided guidelines as to the application of this Rule.
Rule 6(12) (a) confers a discretionary power on a court
seized with
an application of this nature to dispense with the forms and service
envisaged in the Rules, and to dispense of the
application at such
time and place and in a manner and to prescribe the procedure as it
deems appropriate. The preliminary enquiry
is aimed at the
determination of whether there must be a departure at all from the
usual process.
[4]
[15]
In
Hultzer
v
Standard
Bank
of
SA (Pty) Ltd
it
was
stated that:
[5]
"The court will,
however, only grant such relief where an applicant is able to
persuade the court that extremely cogent grounds
for urgency exist."
[16]
Rule 6 (12) (b) renders it
peremptory
for the applicant to:
"set forth
explicitly the circumstances which is averred render the matter
urgent and the reasons why the applicant claims
that substantial
redress could not be afforded at a hearing in due course."
[17]
In
East
Rock
Trading
7
(Pty)
Limited
and
Another
v
Eagle
Valley
Granite (Pty) Limited and Others
the
court held that:
[6]
[6]
The import
thereof
is that the procedure
as
set out
in Rule 6(12) is
not there
for
the
taking.
An
applicant
has
to
set
forth
explicitly
the
circumstances
which
he
avers
render
the
matter
urgent.
More
importantly,
the applicant,
must state the
reasons
why
he
claims
that he cannot
be
afforded the substantial redress in due course. The question of
whether a matter
is
sufficiently
urgent
to
be
enrolled
and
heard
as
an
urgent
application
is
underpinned
by
the
issue
of
the
absence
of
substantial redress
in
the
application
in
due
course.
The
rules
allow
the
court
to
come to
the
assistance
of
a
litigant
because
if
the
latter
were
to
wait
for
the
normal
course
laid
down
by
the
rules,
it
will
not
obtain
substantial
redress....
[10]
In
Apleni
v
The
President
of
the
Republic
of
South
Africa
and
Another
the
Court said:
[7]
"Where
allegations are made relating to abuse of power by a Minister or
other public officials, which may impact upon the rule
of law, and
may have a detrimental impact upon the public purse, the relevant
relief sought ought normally to be urgently considered."
[11]
The
first
respondent
denies
that
this
application
is
urgent.
[12]
Subsumed with urgency is the disputed question of
substantial redress. It behoves
a
court
to
come
to
the
assistance
of
a
litigant,
as
in
this
application,
if
the
applicant
were
to
wait
the
normal
course
as
set
out
by the
Rules,
and the
applicant
would
not
obtain
substantial
redress.
[13]
This
Court
is
seized
with
a
judicial
discretion
to
abbreviate
the
various time frames set out in the Rules of Court
to allow for the expeditious ventilation of disputes, based on
sufficient and
satisfactory grounds as presented by the applicant.
[14]
Central
to
the
shortened
times
is
the
disputed
question
of
prejudice. Prejudice manifests itself within the
paradigm of urgency on three planes. Firstly, the prejudice that
applicant
is likely
to
suffer by having
to
wait
for a hearing in the ordinary course;
secondly
the prejudice
that other litigants may have to endure by what may be perceived as a
preferential hearing of a matter; and thirdly
prejudice that
respondent might suffer by the shortened prescribed times and
accelerated hearing.
[15]
In
PFE
International and Others v Industrial Development Corporation
of
South Africa Ltd
the
court held that:
[8]
[30] Since the rules are
made for courts to facilitate the adjudication of cases, the superior
courts enjoy the power to regulate
their processes, taking into
account the interests of justice. It is this power that makes every
superior court the master of its
own process. It enables a superior
court to lay down a process to be followed in particular cases, even
if that process deviates
from what its rules prescribe. Consistent
with that power, this court may in the interests of justice depart
from its own rules."
[16]
In
accordance
thereof
and
after
due
consideration
of
the
principles
governing
the
law
on
urgency, I
find
that
the
applicant,
has
met
the threshold of
urgency and as such condone the non-compliance with the
Rules
of Court.
[17]
Having
found
that
this
matter
may
proceed
by
way
of
an
urgent
application
I
now
turn
to
the
other
issues
raised
by
the
first
respondent.
RE:
Supplementary
Affidavit
[18]
The First Respondent raised the dispute that the
applicant exceeded the permissable
number
of
affidavits
to
be
filed
in
motion
proceedings
by filing two affidavits.
[19]
Rule
53(4)
[9]
clearly
provides
that:
"The-applicant
may within ten days after the registrar has made the record available
to him or her, by delivery of a notice
and accompanying affidavit,
amend, add or vary the terms of his or her notice of motion and
supplement the supporting affidavit."
[20]
In
this case the
applicant
in
their
notice
of
motion
indicates
the
following:
[10]
PLEASE
TAKE NOTICE FURTER that the applicant shall amend, add to or vary
the
terms
of
its
notice
of
motion
and
accompanying
affidavit,
should it
prove
to
be
necessary
to
do
so,
on
or
before 23
February
2024.
[21]
It has been submitted by the Applicant that this
proviso stems from the requirement that the first respondent delivers
the record
of its decision in terms of Rule 53(3). The record was
delivered on 21 February 2024 and court stamped
23
February 2024.
[22]
The Applicants supplementary
founding
affidavit consequently
falls within the
parameters
and
permissibility
allowed
for
in
terms
of
the
Rule
53( 4).
RE:
Non-Joinder
of
All Bidders
[23]
The first respondent argues that the applicant
should have joined all 208 bidders
that
were
evaluated
in
terms
of the
BEC
report.
[24]
It is
now settled law that any party who has a direct and substantial
interest in the subject matter must be joined in the proceedings
to
safeguard their interests.
[11]
The Supreme Court of Appeal in
Absa
Bank Ltd v Naude NO
[12]
,
formulated
the test for non-joinder
as
follows:
"The test whether
there has been non-joinder is whether a party has a direct and
substantial interest in the subject matter
of the litigation which
may prejudice the party that has not been joined."
[25]
Considering
the
above,
if
the
answer
is
in
the
affirmative,
the
party
that
has
a
direct
and
substantial
interest
in
the
subject
matter
must
be
joined
in the proceedings as failure to do so may result in the matter not
being heard. If the answer is in the negative, a court
may depending
on the circumstances of the case, proceed to adjudicate over the case
as the outcome
will
not
have
a
dire
impact
on
third
parties
who
are
not
cited
in
the proceedings.
[26]
The
question
that
then
arises
is
whether
the
applicant
should
have
joined all
the
participating
tenderers
in this
application.
[27]
In
Gordon
v Department of Health, Kwa Zulu Natal,
[13]
the
court stated that:
"The issue in our
matter, as it is in any non-joinder dispute, is whether the party
sought to be joined has a direct and substantial
interest in the
matter. The test is whether a party that is alleged to be a necessary
party, has a legal interest in the subject
matter, which may be
affected
rejudicially
by the judgment of the court in the proceedings concerned.
[14]
In
the
Amalgamated
Engineering
Union
case
(supra)
it
was
found that 'the
question
of
joinder
should
. . .
not
depend
on
the
nature
of
the
subject matter but
on
the manner in which, and the extent to which, the court's order may
affect the interests of third parties'.
[15]
The
court
formulated
the
approach
as,
first,
to
consider
whether
the
third
party would have
locus
standi
to
claim relief concerning the same subject matter, and then to
examine whether a situation could arise in which, because the
third
party had not been joined, any order the court might make would not
be
res
judicata
against
him, entitling him to approach the courts again concerning the same
subject-matter and possibly obtain an order irreconcilable
with the
order made in the first instance.
[16]
This
has been found to mean that if the order or 'judgment sought cannot
be sustained and carried into effect without necessarily
prejudicing
the interests' of a party or parties not joined in the proceedings,
then
that party or parties have a legal interest
in
the matter and must be joined.
[17]
[28]
These
cases
referred
to
further
illustrate
the
point
that
the
order
or
judgment of the court is relevant to the question of whether a party
has a direct
and
substantial
interest
in
the
subject
matter
of
any
proceedings.
[29]
In
casu,
I
am not
convinced that the court is being asked to make an order
which
might
prejudice
all of
the
participating
tenderers.
As
stated in
SSG
Security Solutions (Pty) Ltd
v
Vaal University of Technology and Another
[18]
"As I see it, the
court is not asked to make any order which might prejudice the
non-responsive tenderers. Their position was
determined by the
administrative actions which rejected their tenders for non
responsiveness. No request has been made to
vary or set aside the
administrative actions which terminated the participation of the non
responsive tenderers in the tender
process. Until so varied or set
aside, those actions are decisive in ending the participation of the
non responsive tenderers
in the process."
[30]
I align myself with the sentiments expressed in
this case and find that the joinder
of
all
of
the
tenderers
or
bidders
was
not
required
of
necessity. The
non-joinder
point
taken
therefore
fails.
RE:
The
Lapsing
of
Tender
786
[31]
Tender
786 was published in the Limpopo Provincial Tender Bulletin No 19 of
2023/24
dated
11
August
2023
as
follows:
[19]
BID
NO
DESCRIPTION
OF SERVICES OR SUPPLIES
CONTACT
DETAILS
BID
DOCUMEN T
PRICE
(NON- REFUNDA BLE)
DUE
AT
11Hoo
BID
DOCUMENTS AVAILABLE FROM
POST
OR DELIVERED BIDS
TO
(SEE ANNEXURES
1&2
PUPO
786
Provision
of
Physical
Security
Services
at
Head Office
Bidding
Process
Bopape
MM@
015 294
8420
N/A
01/09/2023
www.idot.lim
popo.gov.za
OR
www.etende
rs.gov.za
106
[32]
The
tender
validity
period
was
for
90
days.
[20]
[33]
Seeing
that
the
tender
validity
period
for
Tender
786
was
initially
90 days, being 1 September 2023, the validity
period would expire on 30 November
2023.
The
evidence
on
the
papers
before
me
that
relate
to
the
extension
of
the
validity period of
tender
786
are
consequently
as follows:
[21]
1.
The
Limpopo
Provincial
Tender
Bulletin
No.
35
of
2023/24
dated
1 December
2023; and
2.
The
Limpopo
Provincial
Tender
Bulletin
No.
38
of
2023/24
dated
12 January
2024
[34]
The first respondent contends that the tender
remains valid through the publication of these Bulletins.
[35]
The
applicant,
on
the
other
hand,
contends
that
the
Tender
786
lapsed
on
30 November 2023, and it
was therefore not possible for the first respondent to resuscitate
the lapsed tender. In addition, it is
contended by the applicant that
it was necessary for the first respondent to timeously request all
participating tenderers for
their consent to an extension and to
obtain the timeous consent of each participating tenderer, and which
was not done herein.
[36]
The
importance of the validity period was dealt with in
Joubert
Galpin Searle Inc and Others v Road Accident Fund and
Others
[22]
where
it was stated that:
[72]
The
issue
that
I
now
turn
to
is
whether,
having
heard
the
views
of the bidders
whose hats, ostensibly, remained in the ring, the RAF could extend
the tender validity period after it had already
expired -
and
thus whether
the
unsuccessfully
concluded
tender
process
could,
in
this
way, be revived.
[73]
In my
view, there is a simple answer to this. It
is
to be found in the National Treasury's
Supply
Chain Management: A Guide for Accounting Officers/Authorities,
which
is
part
of
what
Froneman
J
in
Al/pay
Consolidated
Investment
Holdings
[23]
called
'the constitutional and legislative
procurement
framework'.
As
such,
it
forms
part
of
those
provisions
that
both
empower
and
limit
the
powers
of
public
bodies
involved in the procurement of goods and services and is not merely
an internal
prescript
that
may
be
disregarded
at
whim.
[24]
The
document
provides
a
step-by-step
guide
which
institutions
such
as
the
RAF
must
apply when engaged in procurement processes.
[25]
It
makes
it clear that an 'extension
of
bid
validity,
if
justified
in
exceptional
circumstances,
should
be
requested
in
writing
from
all
bidders
before
the
expiration
date'.
[26]
[74]
The
reason for this provision is clear. By the time the tender validity
period
has
expired,
there
is
nothing
to
extend
because,
as
Southwood
J said
in
Telkom,
[27]
the
tender process has been concluded, albeit unsuccessfully. The result,
in this case, is that the RAF had no power to award the
tender
once
the bid validity
period
had
expired
and
it
had
no power to extend the period as it
purported
to do. In
the
language of s 6(2)(a)(i)
of
the
PAJA,
the
decision-maker
-
the
board,
in
this
instance
- 'was
not
authorised'
to
take
the
decision.
Put
in
slightly
different
terms,
there were no valid bids to accept, so the RAF had no power to accept
the expired bids.
[37]
The
applicant in support of their contention that the validity period of
Tender 786 had lapsed cites the authority of
Telkom
SA v Merid Training (Pty) Ltd and Others
[28]
In
that matter, Telkom published a request for proposals to appoint
service providers. The request for proposals stipulated a closing
date as 12 December 2007, and a tender validity period of 120 days
from the closing date, during which the offers made by bidders
would
remain open for acceptance by Telkom.
By
the time the tender validity period expired on 12 April 2008, no
decision had been taken by Telkom and the tender validity period
had
not been extended. Despite this, Telkom continued to evaluate and
short-list the bids it had received. It was only after the
tender
validity period had expired that Telkom sent emails to the 15 bidders
it had short-listed requesting them to agree to an
extension of the
tender validity period. Some agreed to do so. The decision to accept
the bids of six respondents was only taken
after the expiry of tender
validity period of 120 days. Before any contract had been concluded
with the accepted bidders, Telkom
decided, on legal advice, to apply
for the setting aside of its own decision.
[38]
Southwood
J
then
went
on
to
conclude:
[
14]
The question to be decided is whether
the procedure followed by the applicant
and
the
six respondents
after
12 April 2008 (when the validity period
of
the
proposals
expired)
was
in
compliance
with
section
217
of
the Constitution. In my view it was not. As soon the validity period
of the proposals
had
expired
without
the
applicant
awarding
a
tender,
the
tender
process
was
complete-
albeit
unsuccessfully
-
and
the
applicant
was
no
longer
free
to
negotiate
with
the
respondents
as
if
they
were simply
attempting to enter into a contract. The process was no longer
transparent,
equitable
or
competitive.
All
the
tenderers
were
entitled
to
expect the applicant to apply its own procedure and either award or
not award
a
tender
within
the
validity
period
of
the
proposals.
It failed to award a
tender within the validity period of the proposals it received, it
had to offer all interested parties a further
opportunity to tender.
Negotiations with some tenderers to extend the period of validity
lacked transparency and was not equitable
or competitive. In my view
the first and fifth respondents' reliance only on rules of contract
is misplaced."
[39]
I am in agreement with Southwood J for
the
reasons given by him. As a result,
it
is
my
view
that,
in casu,
once
the
tender
validity
period
had expired on 30 November 2023, the tender
process had been completed, albeit unsuccessfully.
[40]
Accordingly, a timeous request to and favourable
response from all the bidders
in
Tender
786
was
not
only
a
requirement,
but
it
was
required
that
this
be
done
prior
to
the
expiry
of
that
tender.
Failing
which,
the tender comes to
an
end.
The first respondent
does
not
argue at any time that
written
requests
to
the
208
bidders
for
these
extensions
were
given.
[41]
I
cite
with
approval
the
following
judgment
in
All Pay
Consolidated
Investment
Holdings
(Pty)
Ltd
and
Others
v
Chief
Executive
Officer,
South African
Social
Security
Agency and
Others
2014(1)
SA 604
(CC)
wherein
Froneman, J stressed that compliance with the requirements for a
valid tender process, issued in accordance with the constitutional
and legislative procurement framework is thus legally required and
that they are not merely internal prescripts that may be disregarded
at whim. The Judge went further to state that:
The Preferential
Procurement Policy Framework Act 5 of 2000 ("PPPFA")
defines an "acceptable tender" as any
tender which in all
respects, complies with the specification and conditions of tender as
set out in the tender document. Once
the tender/bid had expired, the
bid is no longer an "acceptable tender" and cannot be
resuscitated after expiry.
[42]
Furthermore,
in the
City
of Ekurhuleni Metropolitan Municipality v Takubiza
Trading
&
Projects
CC
and
Others
case
[29]
the
court
held
that to extend the
validity
period,
all
bidders
are
required
to
consent
to the
extension before the expiration of the validity period. If there is
no consent by all bidders, the tender process has come
to an end. A
tender process cannot be open-ended.
[43]
In
casu
the
first
respondent
has
failed
to
consider
the
nature
of
the
validity
period
and
specifically
that
a
tender
process
cannot
be
open-
ended. It has become
clear that in the absence of any valid extension of the tender
validity period, the tender would have lapsed
on 1 December 2023. The
applicant's submission is that on this basis alone, prayers 2 and 3
of the notice of motion should be granted.
[44]
In
deciding
the
way
forward
thereto,
and
having
found
that
Tender
786 has
lapsed
what
then
happens
when
this
point
has
been
reached.
I
am
once
again
further
guided
by
the
dicta
in
Joubert
Galpin
Searle
Inc and
Others
v
Road
Accident
Fund
and
Others
wherein
the
court
found that:
I
have
found
that
the
RAF acted
irregularly
when
it
awarded
the
tender
to
the second to 34th
respondents.
What
happens when this point is reached was dealt
with
in
the
Al/pay
Consolidated
Investment
Holdings
case,
in
which Froneman J stated:
[30]
'Once
a
ground
of
review
under
PAJA
has
been
established
there
is
no room
for
shying
away
from
it.
Section
172(
l)(a)
of
the
Constitution requires the decision to be declared
unlawful. The consequences of the declaration
of
unlawfulness
must
then
be
dealt
with
in
a
just
and equitable
order
under
s
172(
l)(b).
[45]
The
judgment continues by articulating what is meant by a "just and
equitable"
remedy
as
contemplated
by
the
Constitution.
It
states
that
section 8 of PAJA
gives
detailed
legislative
content
to
same:
[31]
[94]
Section 172(1) of the Constitution states:
'When deciding a
constitutional matter within its power, a court-
(a)
must
declare
that
any
law
or
conduct
that
is
inconsistent
with
the Constitution is invalid to the extent of its
inconsistency; and
(b)
may
make
any
order
that
is
just
and
equitable,
including-
(i)
an order limiting the retrospective effect of the
declaration of invalidity; and
(ii)
an
order
suspending
the
declaration
of
invalidity
for
any
period and on any
conditions, to allow the competent authority to correct the defect.'
[95]
Section 8(1)
of the PAJA
provides:
'The court or tribunal,
in proceedings for judicial review in terms of section 6(1), may
grant any order that is just and equitable,
including orders-
(a)
directing the administrator-
(i)
to
give
reasons;
or
(ii)
to act
in the manner
the
court
or
tribunal
requires;
(b)
prohibiting the administrator
from
acting in a particular manner;
(c)
setting aside the administrative action and-
(i)
remitting the matter for reconsideration by the
administrator, with or without directions; or
(ii)
in exceptional
cases-
(aa) substituting or
varying the administrative action or correcting a defect resulting
from the administrative action; or
(bb) directing the
administrator or any other party to the proceedings to pay
compensation;
(d)
declaring the rights of the parties in respect of
any matter to which the administrative action relates;
(e)
granting a
temporary
interdict or other temporary
relief;
or
(f)
as to
costs.'
[96]
Howsoever
a court fashions a remedy, it is required by s 38 of the Constitution
to
award
a
remedy
that
is
not
only
just
and
equitable
but also appropriate when, as here, a fundamental right has been
infringed.
Appropriate
relief
is
relief
that
effectively
remedies
the
breach
of
the
right.
[32]
It
is
relief
that
fits
the
injury:
it
must
be
'fair
to those affected
by
it
yet
vindicate
effectively
the
right
violated'
and be 'just and equitable in the light of the facts, the implicated
constitutional principles, if any, and the controlling
law'.
[33]
[46]
The
court
in
the
Joubert
Galpin
Searle
[34]
judgment
then
cited
with
approval the case of
Bengwenyama
Minerals (Pty) Ltd
&
others
v Genorah
Resources
(Pty)
Ltd
&
others:
[35]
I
believe
it is fair to say that Froneman J
made
it clear that, even though courts always retain
a
discretion to refuse to award a remedy when unlawfulness is found,
the default position is that the principle of legality should
be
upheld
and
vindicated,
and
that
there
must
be
compelling
reasons
to
override
this
default
position
:
[36]
[47]
At
para
84
of
the
Bengwenyama
Minerals
(Pty)
Ltd
&
others
case
it was stated that:
It would be conducive to
clarity, when making the choice of a just and equitable remedy in
terms of PAJA, to emphasise the fundamental
constitutional importance
of the principle of legality, which requires invalid administrative
action to be declared unlawful. This
would make it clear that the
discretionary choice of a further just and equitable remedy follows
upon that fundamental finding.
The discretionary choice may not
precede the finding of invalidity. The discipline of this approach
will enable courts to consider
whether relief which does not give
full effect to the finding of invalidity, is justified in the
particular circumstances of the
case before it. Normally this would
arise in the context of third parties having altered their position
on the basis that the administrative
action was valid and would
suffer prejudice if the administrative action is set aside, but even
then the "desirability of
certainty" needs to be justified
against the fundamental importance of the principle of legality.
[48]
Additionally
and
of
particular
importance
the
court
went
on
to
say
that:
[85]
The
apparent
anomaly
that
an
unlawful
act
can
produce
legally
effective
consequences
is
not
one
that
admits
easy
and
consistently
logical
solutions. But then the law often is a pragmatic blend of logic and
experience. The apparent rigour of declaring conduct
in conflict with
the Constitution
and
PAJA
unlawful
is
ameliorated
in
both
the
Constitution and
PAJA
by
providing
for
a
just
and
equitable
remedy
in
its
wake.
I
do
not
think that it is wise to attempt to lay down inflexible rules in
determining a just and equitable remedy following upon a declaration
of unlawful administrative action. The rule of law must never be
relinquished, but the circumstances of each case
must be examined in order to determine
whether
factual certainty
requires some
amelioration of legality and, if so, to what extent. The approach
taken will depend on the kind of challenge presented
-
direct
or collateral; the interests involved, and the extent or materiality
of the breach of the constitutional right to just administrative
action in each particular case.'
[49]
Reverting
to
the
dicta
in
Allpay
Consolidated
Investment
Holdings
case the
court stated that:
[98]
In
determining whether it is just and equitable to refuse to award a
remedy when administrative action has been found to be invalid
(or to
grant other relief such as a
suspension
of an
order of invalidity
for
a period), a court must consider the interests not only of the
parties, but also the public interest.
[37]
[50]
As
indicated
in
the
above
cases
and
principles
of
law,
I
do
not
intend
to
shy
away
from
the
finding
that
the
tender
period
had
lapsed
and
that
any awarding
of
the
tender
thereof
to
the
second
respondent
is
consequently invalid.
[51]
This
is
not
the
type
of
tender
in
which
relief
should
be
withheld
because too
much
water
has
flowed
under
the
bridge
by
the
time
that
this
matter is heard.
[52]
Indeed,
I
am
of the view and considering
the
discretionary
powers
of this court
as
well
as
the
relatively
short
period
that
has
passed
since
the
granting of the award to the second respondent (based on the
averments made
on
paper),
it
distinguishes
this
case
from
the
typical
situation
where
an irregularly awarded tender is allowed to stand because the work
concerned has all but
been
completed by the time a matter like this is heard.
[38]
[53]
Taking into account that a relatively short period
has lapsed between the awarding
of
the
tender
to
the
second
respondent
and
the
order
of
this court
it
is
hereby
ordered
that:
53.1. This application is
heard as an urgent application in terms of the provisions of Rule
6(2) of the Uniform Rules of Court.
53.2.
That the decision of the first respondent to award Tender PUDP 786
for
the provision of physical security services at Head Office (Tender
786)
to the second respondent is declared constitutionally
invalid
and
is set aside.
53.3.
That any Service Level Agreement concluded between the first
respondent
and the second respondent pursuant to the awarding of
Tender
786 is set aside.
53.4.
Costs
will
follow the result on
the
scale as between attorney and
client.
T
DEANE
ACTING
JUDGE OF THE HIGH COURT,
POLOKWANE;
LIMPOPO DIVISION
APPERANCES
FOR
THE PLAINTIFF :
Adv.
APJ
Els
SC
&
Adv. A.A. Basson
INSTRUCTED
BY
:
Thomas &
Swanepoel
Incorporated
FOR
THE DEFENDANT :
Mr. P. Malatji (Attorney)
INSTRUCTED
BY :
The
State
Attorneys:
Polokwane
DATE
OF HEARING :
12 March 2024
DATE
OF JUDGEMENT :
02 April 2024
[1]
First
Respondents
Answering
Affidavit
Index
2, at
p
190.
[2]
Rule
153(3)
Notification,
at
p
127
[3]
Founding
Affidavit Index 2, at p
15
[4]
See
Luna
Meube/
Vervaardigers
v Makin and Another
1977
(4) SA
135
(W)
at
I
36H- I
37F
[5]
(1999)
20 ILJ
1806(LC)
at 1809.
[6]
2011ZAGPJHC
196,
at para 6.
[7]
2018 (I) Al l SA 728
(GP).
[8]
2013(1)SA
I
(CC)atpara30.
[9]
Uniform
High Court Rules
[10]
Page
3 to the
Notice
of Motion.
[11]
Bowring
NO v Vrededorp Properties CC
2007
(5) SA 391
(SCA) at para 21.
[12]
[2015]
ZASCA
97
at
para
12.
[13]
[2008] ZASCA 99
;
2008
(6) SA 522
(SCA).
[14]
Bowring
NO
v Vrededorp
Properties
CC
2007 (5) SA
391
(SCA)
para
21.
[15]
At p
657.
[16]
See
also
Collin
v Tofjie
1944
AD 456
at 464;
Home
Sites (Pty)
Ltd
v Senekal
1948
(3) SA 514
(A) at 521A and P
eacock
v
Marley
1934
AD
I
at 3;
Burger
v
Rand
Water
Board
2007
(I) SA 30 (SCA) at para
7.
[17]
Bekker
v Meyring,
Bekker
's
Executor
(1828-1849)
2 Menz 436.
[18]
(67027/17)
[2018] ZAGPPHC 775
[19]
Rule
153(3) Notification, at p 8
[20]
First
Respondents Answering Affidavit Index 2, at p 190.
[21]
Rule
153(3)
Notification,
at
pp.
158-9,
175.
[22]
(3191/2013)
[2014)
ZAECPEHC
19;
[2014)
2 All
SA
604
(ECP); 2014 (4) SA
148
(ECP).
[23]
.
Allpay
Consolidated
Investment
Holdings
(Pty)
ltd
&
others
v
Chief
Executive
Officer,
South
African
Social
Security
Agency & others
2014
(I)
SA
604
(CC)
at
para
31-37.
[24]
At
para 40.
[25]
Section
4.1.2.
[26]
ATP39.
[27]
Telkom
SA
limited
v
Merid
Training
(Pty)
ltd
&
others;
Bihati
Solutions
(Pty)
ltd
v
Telkom
SA
limited
&
others.
[28]
(27974/2010,25945/2010)
[2011] ZAGPPHC
I.
[29]
(Case
no 846/2021) [2022) ZASCA
82
(03 June 2022).
[30]
At
para
25.
[31]
Joubert
Galpin Searle Inc and Others v Road Accidenl Fund and Others
at
para 94.
[32]
Minister
of
Health
& others v Treatment Action Campaign & others (No 2)
[2002] ZACC 15
;
2002
(5) SA 721
(CC)
at para
I
06.
[33]
Steenkamp
NO v Provincial Tender Board, Eastern Cape
at
para 29.
[34]
Joubert
Galpin Searle Inc and Others v Road Accident Fund and Others
at
para 97.
[35]
Bengwenyama
Minerals (Pty) Ltd & others v Genorah Resources (Pty) ltd
&
others
20
I I
(4)
SA
I
I 3 (CC). See also
Mpumalanga
Construction (Pty) ltd
&
others v Buffalo City Municipality & another
ECO
25 August 2009 (case no. ECD29/2009; EL229/2009) unreported
paras
25-26.
[36]
At
paras
84-85. See also
Chairperson,
Standing
Tender
Committee &
others
v JFE Sapela Electronics (Pty)
ltd
&
others
(note
3) at
para
28;
Oudekraal
Estates
(Ply)
ltd
v
City
of
Cape Town
2004
(6) SA 222
(SCA)
at
para
36.
[37]
Millenium
Waste Management (Ply) ltd
v
Chairperson,
Tender
Board:
Limpopo Province &
others
2008
(2) SA
481
(SCA), at paras 22-23
[38]
See
for
example
Chai,person,
Standing
Tender
Committee &
others
v
JFE Sapela
Electronics
(Pty) ltd
&
others,
at
para 29