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[2024] ZALMPPHC 43
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Mopani Flying Squad and Alarm Response (Pty) Ltd v Mopani District Municipality and Another (354/2022) [2024] ZALMPPHC 43 (7 May 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE.
CASE
NO. 354/2022
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
DATE:
07.05.2024
SIGNATURE
SIGNATURE
In
the matter between:
MOPANI
FLYING SQUAD AND ALARM RESPONSE
APPLICANT
(PTY)
LTD
(REG
NO: 2014/109386/07)
and
MOPANI
DISTRICT MUNICIPALITY
FIRST RESPONDENT
THE
A TEAM TASK FORCE (PTY) LTD
SECOND RESPONDENT
(REG
NO: K2018/589674/07)
JUDGMENT
Heard
on 22 January 2024.
Delivery:
This judgment was handed down electronically by circulation to the
parties' legal representatives via email and release
to SAFLII. The
date and time of hand down is deemed to be the 7 May 2024 at
11:00.
SEMENYA
DJP.
[1]
The applicant instituted a judicial review application in term of the
Promotion of Administrative Justice Act 3 of 2000
, against the
respondents in which, in the main, the following order is sought:
a)
Review of the decision of the first respondent appoint the second
respondent
(the A Team task Force) under bid number MDM 2021/22-105
for the provision of security services to the municipality for a
period
of 36 months; and
b)
to declare the decision of the municipality to appoint the A Team
Task Force
to be invalid.
The
application is opposed by the two respondents.
[2]
The background facts that led to the application are that on the 03
October 2021,
the municipality advertised a tender for the provision
of security services to it under Bid 2021/22-150. The duration of the
tender
was for a period of 36 months. The closing date for the
submission of the bid documents was the 2 November 2021. The bid
requirements
which prospective bidders were to comply with were
clearly outlined in the advertisement and the tender documents. One
of the requirements
which is relevant for the adjudication of the
issues before the court was that the bidders were to submit their
audited or reviewed
company annual financial statements for the last
three years. The prospective bidders were informed, in no uncertain
terms, that
the Municipality will not be bound to accept the lowest
bid or any bid. It also reserved the right to accept the bid in whole
or
in part, to appoint and to cancel negotiate further conditions in
terms of the Municipal Finance Management Act, 56 of 2003 and
the
Municipal Supply Chain Regulations.
[3]
The prospective bidders were informed that it is only bidders who
meet the prerequisite
conditions of the tender who will be evaluated
on the functionality test. It was further stated that only bids that
met the minimum
functionality test points would be evaluated on a
scale of 80/20 in terms of the Preferential Procurement Policy
Framework Act,
2000 (PPPFA) and the Regulations promulgated in
relation thereto.
[4]
It is common cause that after the evaluation of the bids, the
municipality appointed
and awarded the tender to the second
respondent together with other eight entities to provide the security
services to the municipality
in terms of the tender. Aggrieved with
the decision of the municipality, the applicant approached this court
with this application.
[5]
The first respondent avers that eight successful bidders were
appointed after an evaluation
of all bids which took place in a
manner which was procedurally fair, lawful and reasonable. The first
respondent argues that the
applicant was not appointed mainly on the
ground that it submitted incomplete financial statements. The
averment of the municipality
is the applicant submitted annual
financial statements of one year instead of three as required in the
tender document. It therefore
failed to comply with a mandatory
requirement.
[6]
It is necessary at this stage to outline the event that took place
before the hearing
of oral arguments on behalf of the parties. The
first respondent served the applicant with a notice to oppose the
application.
The record of the proceedings sought to be reviewed were
filed with the registrar of the Polokwane High Court on the 07
February
2022 as envisaged in rule 53. On the 28 January 2022 the
attorneys of the first respondent wrote a letter to the applicant's
attorneys
in which they requested the applicant to provide the first
respondent with proof of service of the application on the first
respondent.
On the 10 February 2022, the first respondent addressed
yet another letter to the applicant in which they informed the
applicant
that they are still waiting for the reply to the letter
dated the 28 January. The applicant was further requested to remove
the
matter from the unopposed roll of the 8 March 2022 to the opposed
roll as it has since become opposed.
[7]
On the 14 February, the applicant's attorneys responded to the
letters dated the 28
January and the 10 February and informed the
first respondent that they are not in possession of the return of
service and further
that they note the request to remove the matter
from the unopposed toll. The first respondent addressed yet another
letter to the
applicant, dated the 28 February, in which they wanted
the applicant to explain what its lawyers mean when they say that
they are
not in possession of the return of service. The first
respondent further informed the applicant that it should have filed
amended
its notice of motion and supplemented its founding affidavit
within ten days of receipt of the record filed as envisaged in rule
53(4) and that it has failed to do so. The applicant's attorneys were
requested to indicate whether the applicant intends to file
any
amendments to the notice of motion and the founding affidavit so as
to enable the first respondent to proceed with the filing
of the
answering affidavit. The first respondent's attorneys informed the
applicant that they note that they have no record of
the removal of
the matter from the unopposed roll. The first respondent again
requested the applicant to remove the matter.
[8]
On the 4 March 2022, the first respondent addressed another letter to
the applicant
informing the applicant that should they not receive
the notice of removal of the matter on even date at 14: 00, they will
appoint
counsel who will then seek punitive costs against the
applicant's lawyers. The first respondent's attorneys placed it on
record
in the letter that they have not yet been informed whether the
applicant intend to amend its notice of motion and founding affidavit
following service of the rule 53 record. On the 20 May 2022, the
first respondent's attorneys addressed a letter to the applicant's
attorneys in which they noted that they have filed their answering
affidavit on the 4 April and that the second respondent filed
theirs
on the 4 May. The first respondent further noted that the applicant
failed to file their replying affidavit within the prescribed
time
frames. The first respondent's attorneys requested the applicant's
attorneys to take instructions from client as to whether
the it
intends to proceed with the application after receipt of the record.
They further informed them that they are instructed
to seek
allocation of the hearing date with the intention to have the
application dismissed, should they not receive an answer
to their
letter within ten days.
[9]
On the 2 June 2022, the applicant's attorneys responded to the first
respondent and
stated that they have not received the affidavits of
the respondents as stated in the first respondent's letter date the
20 May.
The first respondent's attorneys, in a letter dated the 10
June, transmitted a copy of the served answering affidavit to the
applicant's
attorneys. They attached an email received from the
attorney of the second respondent in which they advised the first
respondent
that they have served their answering affidavit on the
applicant on the 4 May 2022. The second respondent's answering
affidavit
which was served on first respondent was attached to the
same letter. It was brought to the attention of the applicant's
attorneys
that they have omitted to advise the first respondent as to
whether their client intends to pursue or abandon the application and
that they should do so by the close of business on the 14 June,
failing which they will proceed to seek allocation of the hearing
date and to argue punitive costs against them.
[10]
The applicant's attorneys replied to the letter on the 13 June and
informed those of the first respondent that the sheriff
failed to
serve the answering affidavits in time. They placed it on record that
their amended papers incorporating condonation
application will be
filed on the 24 June. They further confirmed that they have been
given instructions to proceed with the review
application. The first
respondent replied to the letter on the 14 June and placed on record
that they will vigorously oppose the
application for condonation in
view of the record of correspondence that they have been exchanging
with the applicant and the prejudice
which the first respondent will
suffer as a result of the intended condonation application. It was
further placed on record hat
it is not clear as what papers was the
sheriff supposed to file on time.
[11]
The first respondent proceeded to seek allocation and the matter was
allocated the date of the
9 February 2023. The applicant was
accordingly served with the notice of set down. On the 30 January
2023, the applicant's attorneys
addressed a letter to the first
respondent's lawyers informing them that they have perused the roll
of the 9 February and that
the matter was not on the opposed roll.
The first respondent replied to the letter on the 2 January 2023
informing the applicant
that they have proceeded to court on the 1
February to finally enrol the matter. They stated that they were
informed that the registrar
has told them that this could be an error
on the part of the staff in the general office and that they have
obtained a new date
on the opposed roll of the 22 January 2024. The
notice of removal from the roll of the 9 February 2023 and set down
for the 22
January 2024 was then and there transmitted to the
applicant.
[12]
The matter came before court on the 22 January 2024 and the applicant
had not, as at that date,
filed its amended notice of motion and
supplemented affidavit on the two respondents. Counsel who appeared
on behalf of the applicant
stated that he is standing in on behalf of
the applicant's counsel and that his mandate is to apply for a
postponement. The applicant
did not bring a substantive application
for postponement and has instead moved it from the bar. After hearing
the argument by counsel
for the first respondent, I dismissed the
application. The matter proceeded without representation on behalf of
the applicant and
the second respondent.
[13]
In the founding affidavit filed in support of the application, the
applicant draws the court's
attention to the functionality criteria
part of the bid document. The applicant avers that had a proper
evaluation been done, the
applicant would have scored more points
than the second respondent on the functionality criteria. The
applicant avers that the
first respondent followed a procedure which
is biased, unfair, unreasonable and unlawful in its evaluation of the
bids. The applicant
further states that the second respondent lacked
the necessary experience and capacity.
[14]
The applicant states in its affidavit that it is relying on the
provisions of PAJA. Section 6(2)
(a) to (i) of PAJA provides a list
of circumstances under which a court or tribunal may review an
administrative action. It is
not clear from the applicant's affidavit
upon which of the grounds listed in section 6 (2) is the applicant
launching the application.
The applicant avers that the first
respondent's administrative action is reviewable in that the decision
was taken without proper
evaluation of all bids. It further avers
that the first respondent was biased, unreasonable and unfair. The
applicant failed to
provide substantive facts upon which it relied to
arrive at that conclusion. It simply made vague statements to that
effect. I
agree with counsel for the first respondent that the
applicant failed to set out the grounds of review upon which the
application
hinges.
[15]
The Constitutional Court in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[1]
said that:
"...
I am prepared to assume, in favour of the applicant, for the purposes
of this case, that its failure to identify with
any precision the
provisions of PAJA upon which it relied is not fatal to its cause of
action. However, it must be emphasised that
it is desirable for
litigants who seek to review administrative action to identify
clearly both the facts upon which they base
their cause of action,
and the legal basis of their cause of action..."
In
the absence of a clear statement from the founding affidavit with
regard to which of the grounds provided in section 6(2) is
the
applicant relying, I am inclined to accept the first respondent's
assumption that the applicant must be relying on section
6(2)(b) of
PAJA.
[16]
It is common cause that the second respondent was awarded the tender
together with eight other
bidders. On this point, the first
respondent raised a point of law of non-joinder of the seven other
bidders. The first respondent
avers that the seven other bidders who
were awarded the tender have a direct and substantial interest in the
outcome of their case
and the applicant's failure to join them
constitutes non-joinder as envisaged in rule 10. It is now settled
that the mere fact
that a party may have interest in the outcome of
the litigation does not in itself justify the raising of a point of
law of non-joinder-
Judicial
Service Commission v Cape Bar Council.
[2]
[17]
The applicant avers that the first respondent would have found that
the second respondent lacks
experience and capacity and that had the
first respondent acted properly, it would have rejected respondent's
bid. I am of the
view, based on this fact, that it was not necessary
to join the other seven if the applicant is of the view that they did
not lack
experience and capacity like the second respondent. I
further fail to find how the setting aside of the award in respect of
the
second respondent would affect the rights of the other seven
bidders. In any event, the first respondent fails to show the court
how the order will be carried out without affecting the rights of the
seven other bidders. The point of law of non-joinder raised
by the
first respondent is found to be without merit.
[18]
The applicant failed to amend, add or vary the notice of motion and
to supplement its founding
affidavit after it was furnished with rule
53 record. The applicant failed to do so despite numeral letters
written to its attorneys
urging it to do so. The founding affidavit
is drafted in such a way that any diligent litigator would have
seized the opportunity
given to him/her/it by the opponent. The
applicant missed that opportunity. The facts contained in the first
and second respondents'
answering affidavits, read together with the
record of the proceedings that led to the decision sought to be
reviewed, and which
served on the applicant in terms of rule
53(1)(b), are left unchallenged.
[19]
The court's approach when faced with an application of this nature
has been set out as follows
in
Allpay
Consolidated investment Holding (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security Agency
and
Others:
[3]
"...
the proper approach is to establish, factually, whether an
irregularity occurred. Then the irregularity must be legally
evaluated to determine whether it amounts to a ground of review under
PAJA. This legal evaluation must, where appropriate, take
into
account the materiality of any deviance from legal requirements, by
linking the question of the compliance to the purpose
of the
provision, before concluding that a review ground under PAJA has been
established."
[20]
The respondents argue that the applicant's affidavit lacks the
necessary facts from which this
court may establish whether an
irregularity has occurred during the evaluation of the bids, which
may have afforded the second
respondent an unfair advantage over all
other bidders. The respondents further contend that the applicant
failed to furnish facts
upon which this court would be able to assess
whether the first respondent was biased against the applicant and
that its action
is unlawful. There are also no facts upon which this
court may find that the first respondent acted irregularly. I agree
with the
contention made by the two respondents.
[21]
Furthermore, there is no evidence on the part of the applicant to
gainsay the first and second
respondents' averment that the decision
sought to be reviewed is compliant with the provisions of section 217
of the Constitution
of the Republic of South Africa and its Supply
Chain Management Policy. In the same way, there are no facts which
may assist the
court in determining whether a decision of the first
respondent is unreasonable or not.
[4]
In the absence of evidence to the contrary, this court has no reason
to reject the version of the respondents that proves that
the second
respondent's bid complied with the requirements of the bid.
[22]
The logical conclusion one may be forgiven to arrive at is that the
applicant failed to supplement
its founding papers after it was
provided with the record is that it could not find facts upon which
it can rely to challenge the
decision of the first respondent. It was
also unable to find facts to support its averment that the second
respondent lacks experience
and capacity which disqualified it from
being awarded the tender. I will, in the circumstances find that the
first respondent's
administrative action is lawful, reasonable and
procedurally fair as envisaged in section 33 of the Constitution.
[23]
The second respondent denies that it lacked capacity to provide the
first respondent with the
necessary security. In its affidavit, the
second respondent states that it had the number of security radios,
firearm licences
for hand guns and vehicles. The second respondent
further argues, correctly so, that there is nowhere in the
applicant's affidavit
where it is alleged that the requirements in
the bid specification of the first respondent are unconstitutional.
The second respondent's
submission that the process followed by the
first respondent appears from the rule 53 record to open, fair and
reasonable. I agree
with this submission. In any event, there is no
evidence to gainsay this submission.
[24]
With regard to costs, I agree with counsel for the first respondent
that the manner in which the applicant conducted itself
constitute a
fragrant abuse of court processes. The applicant was given sufficient
opportunity to withdraw the application after
it was provided with
the record. Its attorneys replied to the applicant's letter by
stating that their instructions are to proceed.
The applicant was
further reminded numerous occasions to consider to amend its notice
of motion and to supplement its founding
affidavit. The applicant
simply ignored the first respondent's letters until the first
respondent decided to apply for a date of
hearing of hearing of the
application.
[25]
I further find that the applicant is not entitled to the Biowatch
protection in that it clearly had no intention to proceed
with the
application. It is clear from the manner in which the applicant
conducted its affairs that it launched the application
with the
purposes of frustrating the two respondents. The applicant is found
to be a vexatious litigant as opposed to a litigant
who wanted to
protect its constitutional rights. I agree with counsel for the
applicant that a punitive cost order, in the circumstances
of this
case, is justified.
[26]
In the result I make the following order:
i.
The application is dismissed; and
ii.
The applicant shall pay the first and second respondents' costs on
attorney
and client scale.
M
V SEMENYA
DEPUTY
JUDGE PRESIDENT
LIMPOPO
DIVISON, POLOKWANE.
APPEARANCES:
For the applicant:
ADV Mothupi:
Instructed by:
Dakalo Ramuthaga
Attorneys
For the first
respondent:
ADV P Mthombeni
Instructed by:
Mahumani
Incorporated.
For the second
respondent:
ADV S I Mashele
Instructed by Mpho
Mashiloane Attorneys.
[1]
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at
[10]
[2]
2013 (1) SA 170 (SCA)
[3]
2014(10 SA 604 (CC) at par (25)
[4]
Bato above.