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2024
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[2024] ZALMPPHC 97
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Mabotwane Security Services CC and Others v Sekhukhune District Municipality and Others (4291/2023) [2024] ZALMPPHC 97 (20 August 2024)
Latest
amended version: 19 September 2024
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:4291/2023
(1) REPORTABLE:
YES
/NO
(2) OF INTEREST TO
THE JUDGES:
YES
/NO
(3) REVISED.
Signature:
Date:
In the matter between:
MABOTWANE
SECURITY SERVICES CC
1
ST
APPLICANT
BROWN DOGS SECURITY
SERVICES CC
2
ND
APPLICANT
LETONA 6 SECURITY PTY
LTD
3
RD
APPLICANT
And
SEKHUKHUNE DISTRICT
MUNICIPALITY
1
ST
RESPONDENT
M N
RAMPEDI
2
ND
RESPONDENT
TUBATSE SECURITY
SERVICES PTY LTD
3
RD
RESPONDENT
JUDGMENT
MONENE AJ
INTRODUCTION
[1] Sekhukhune District
Municipality, the first respondent in this matter, needing security
services in four different clusters
under its jurisdiction put a
tender inviting security service providers to submit bids in
competition thereto. The tender advert
stated, inter alia, that
bidders could bid for some or all the clusters. It further stated
that four bidders would be appointed
ostensibly meaning one per each
cluster.
[2] In the wake of the
procurement process completing its course through all the committees,
four different entities, one per cluster,
were recommended as the
successful bidders by both the Bid Evaluation Committee and the Bid
Adjudication Committee. These “winning”
bidders were the
first, second and third applicants as well as the third respondent.
[3] When the
recommendations of the Bid Adjudication Committee landed on the
second respondent’s desk, he, as the acting municipal
manager
then, overturned the recommendations or deviated therefrom, deciding
to appoint the third respondent in all four clusters
and reasoning,
ostensibly as supported by uncontroverted facts, that the third
respondent had scored best amongst all bidders in
all four clusters.
This resulted in the appointment of the third respondent in all four
clusters and commencement with the provision
of the security services
which provision persists to date.
[4] Unhappy with the
decision of the municipality per the acting municipal manager, the
three applicants brought this application,
in the main, seeking to
review and set that decision aside. Curiously, hardly had the
application gotten out of the blocks that
the second and third
applicants lost their appetite to proceed with it leaving the first
applicant to soldier it alone. Apparently
the two applicants backed
down in the wake of a municipality enquiry report which laid bare
fraudulent averments in their bid documents
and in the light of an
Auditor-General report which flagged the bid
in casu
as one
which reflected gross irregular expenditure.
[5] The application was
going forward only opposed by the first and third respondents with
the second respondent understandably
not featuring in the backdrop of
employment fortunes neither favoring him with a continuance in the
acting stint nor elevation
to permanency. However, by the time this
matter which commenced as an urgent application and ended up being
heard by this court
on special allocation was argued, only the third
respondent stood in the opposing corner with first respondent, the
municipality,
having in biblical Pontius Pilate fashion washed its
hands in the figurative waters of abiding or as their counsel termed
it, “withdrawing
opposition” to the setting aside of the
tender award decision.
[6] Cutting out the fatty
excesses of legalese, the grounds based on which the first applicant
challenges the decision are the following:
6.1 That the acting
municipal manager and thus the municipality in appointing only one
bidder for all four clusters flouted the
terms of the tender
advertisement as four different service providers one per cluster
were supposed to be appointed.
6.2 That the accounting
officer, the acting municipal manager, was not empowered to vary or
overturn a recommendation of the Bid
Adjudication Committee.
[7] In sum the defenses
hoisted by the third respondent in the papers, heads of argument and
submissions before court are the following:
7.1 As preliminary points
that the matter is not urgent, has been prosecuted irregularly in
terms of rule 6 instead of rule 53 and
is premature before this court
owing to failure to exhaust internal remedies available as per the
municipality’s supply chain
management policy.
7.2 That the Supply Chain
Management policy of the municipality does empower the municipal
manager to reject and deviate from the
recommendations of the Bid
Adjudication Committee.
7.3 That the terms of the
tender did not mandate the appointment of four different bidders but
simply four bidders which, in their
view, could mean one bidder
counted four times.
[8] Outside the framework
of routine and traditional legal sophistry, to which I shall to the
extent necessary hereunder later briefly
go, the above constitute the
simple and mundane facts as well as disputes arising from the
parties’ divergent interpretation
of those facts, which serve
before me for determination it being so that in the notice of motion
the first applicant premised on
the
Promotion of Administrative
Justice Act 3 of 2000
(“PAJA”) prayed for the following:
8.1 That the decision of
the first respondent to award Tender SK8/3/3/1-51/2022/2023:
Appointment of service provider for security
services for a period of
three years in respect of Cluster 1, Cluster 2, Cluster 3 and Cluster
4 to the third respondent be declared
constitutionally invalid,
reviewed and set aside.
8.2 That any agreement
concluded between the first respondent and the third respondent
pursuant to the tender award, be set aside.
8.3 That the tender in
respect of Cluster 1 be awarded to the third respondent.
8.4 That the tender in
respect of Cluster 2 be awarded to the first applicant
8.5 That the tender in
respect of Cluster 3 be awarded to the second applicant
8.6 That the tender in
respect of Cluster 4 be awarded to the third applicant.
8.7 That the third
respondent be mulcted with costs on account of opposing the
application.
PRELIMINARY ISSUES
Whether this court
should have recused itself from hearing the matter
[9] Prior to the hearing
of arguments from the parties I disclosed to the parties that, upon
reading the papers, I had had a sense
that the story of a
four-cluster tender being awarded to one tenderer allegedly instead
of four had sounded a bit familiar to me.
[10] I indicated further
that my vague memory suggested that I must sometimes in 2023 have
received a call, in my capacity as counsel,
either from an unknown
union official or political party attorney indicating a likelihood of
briefing me in such a matter and that
hoever it was unclear to me now
as to on which side of the dispute that potential client was
intending to be. Nothing had come
of the matter after the call as I
was ultimately never briefed in the matter. Suffice to say that
neither of the parties currently
before me ever engaged me regarding
this matter.
[11] I made it clear that
I did not see this disclosure as remotely suggestive of bias
attaching to me or any reasonable apprehension
thereof and that in my
view my recusal from hearing the matter does not even begin to arise.
I just wanted to disclose that.
[12] Upon being given a
chance to comment on my disclosure, both counsel for the first
applicant and for the first respondent agreed
with me. Counsel for
the third respondent disagreed and launched into an impromptu
application to the effect that merely because
I had previously gotten
wind of a bit the facts from some unknown party and not the litigants
before me, I had to recuse myself
from hearing the matter. I
disagreed with him and decided to proceed to hear the matter.
[13]
This matter not really being about recusal per se, and there being no
formal recusal application serving before me, I am disinclined
to
saddle this judgement with a lot of analysis of the now trite law on
recusals. There is just no bias on my part in this matter,
nor can
there be any reasonable apprehension of bias from any of the parties.
Just how would hearing about some of the facts partially
amount to
bias against the third respondent is beside me. It is like, as one of
the counsel suggested, a judge hearing about a
robbery on the radio
and later seating in judgement over accused persons in a subsequent
criminal trial. Anybody who alleges bias
or apprehension thereof from
merely such meagre facts would be manifestly unreasonable. Judges and
this include acting judges like
this one, are not sourced at the
beginning of a trial or any hearing from another planet where they
come to try facts being completely
ignorant and oblivious of anything
on earth. They are human and live amongst humanity with all their
senses inclusive of sight
and hearing employed to their human milieu.
[14] Without
unnecessarily belaboring the point, that is the reasoning that
informed my decision to decline the third respondent’s
invitation upon me to recuse myself.
Urgency
[15] I have already
indicated
supra
that the application first came to court as an
urgent application in early to mid 2023. It is now then heard before
me as a special
allocation a year later. Yet curiously and
incredulously I am apparently being called upon to decide urgency and
in that regard
being referred to what was not done on time or known
and not known by the applicant in the context of approaching a court
urgently
in April 2023. I do not intend expending too much time on
the alleged lack of urgency point because, in my view, it is a
non-starter.
This court has held in
Arocon Mbokodo CC v
Mogalakwena Local Municipality (2650/2024)[2024] ZALMPPHC 57(7 June
2024)
that:
“
[14]I
must state from the outset that, in my view, it would be a
circuitous, imprudent, and wasteful exercise to deploy scarce
judicial resources at special allocations only to sidestep dealing
with the merits of opposed applications meagerly insulated by
dismissing those motions on the technical basis of urgency. Once a
matter is given a special allocation more so by agreement between
the
litigants, it must, in my view, be disposed of on the merits and not
on such dilatory in limine points as urgency. In that
regard points
in limine should, in my view, only be magnified if they are
dispositive of applications.
[15] It is from that
premise that I am inclined to enroll this matter as urgent and hear
and determine the merits thereof for it
certainly cannot be in the
interests of justice that heads of court allocate matters on special
allocation, secure judges from
a very limited base; that litigants
secure counsel, and in this particular matter expensive heavy
artillery senior counsel who
engaged in extensive preparation at
great cost to litigants; that matters are recircled on the escapist
probable ruse of them not
being urgent.”
[16] I stand by the above
assertions and find again that in general non-dispositive preliminary
points such as urgency have no place
in specially allocated
applications. Matters must, at special allocation, be dealt with at
merits level without giving any regard
to dilatory erudite sounding
but litigiously unhelpful legal gymnastics.
[17] Given that the
matter first found its place on the urgent roll a year ago in 2023,
even if I be wrong in my above assertion
on the legal fruitlessness
and wastefulness of dilatory points
in limine
raised in
specially allocated matters, it stands to reason that the matter now
being argued in 2024, urgency cannot be argued in
interpreting the
past, that is, as to whether it was urgent in 2023 seen through the
2024 lense, a year later. Had the matter been
struck off for lack of
urgency in 2023, it most probably would have been heard in the normal
cause earlier than it was argued before
me.
[18] Accordingly I frown
most sternly on the lack of urgency “point” taken by the
third respondent and have no hesitation
in dismissing it.
The
rule 30
and/or
30A irregular step point
[19] The nub of this
point as taken by the third respondent is that the applicants
irregularly brought this application bringing
it only in terms of
rule 6
and not
rule 53.
[20] It is then argued
that the third respondent is somewhat prejudiced in the proper and
adequate vindication of its rights particularly
regarding its right
of access to court by some unexplained deficit in the record of the
proceedings leading to the decision sought
to be reviewed in casu.
[21] For me the question
is whether the decision impugned by the applicants is clearly defined
before court and is capable of being
responded to by the respondents.
I understand the importance of rules within the context of them being
made for the court and not
the court for them and brood no favour for
feverish almost religious and puritan escapist apparent upholding of
rules at the expense
of determination of clearly defined disputes.
[22] Much like my
approach to the preliminary point on urgency above, I find the point
taken to be serving no purpose other than
being needlessly dilatory.
That much is apparent from a portion in the
rule 30/30A
notice which
calls upon the applicant to withdraw this application and then
deliver another perhaps compliant with
rule 53.
[23] Beyond this court’s
supra
stated frown upon non-dispositive points
in limine
in specially allocated matters the following further inform this
court’s disinclination to uphold the third respondent’s
rule 30 / 30A objection:
23.1
Rule 53
is not the
only vehicle through which a review can be prosecuted. There are
others available which include uniform
rule 6
as permitted in terms
of PAJA regulations which was employed by the first applicant in
casu.
23.2 The furnishing of
the record in terms of
rule 53(3)
is as per that subrule a mandate of
the registrar and not per se of an applicant. Reference to the
subrule in a review notice of
motion calls upon whomever has the
record to avail it to the registrar. It cannot therefore, in my view,
be an irregularity that
is imputed against an applicant if there is
some defect in the record. Such an irregularity would lie at the foot
of the decision
maker because an applicant who is not a decision
maker is not a custodian of the record.
23.3 The above said, the
impugned decision of the acting municipal manager does not call for a
lot of record. With what is available
already the issues between the
parties have been clearly defined and the third respondent has been
able to answer and mount a defence.
Its right of access to court
being compromised as argued in the third respondent’s heads of
argument is, in my view, a baseless
red herring.
[24] In the above
premises, I find that the approach or procedure followed by the
applicant in employing uniform
rule 6
to be permissible and to the
extent that it is not perfect for incongruencies such as referring to
PAJA regulations as rules, I
am inclined to condone it.
[25] Accordingly, the
rule 30/30A
objection by the third respondent is dismissed.
The failure to
exhaust internal remedies point
[26] As I understand this
point taken by the third respondent it is suggested that in terms of
the supply chain management policy
of the municipality and in
particular paragraph 225 thereof, the first applicant, unhappy with
the decision to appoint only the
third respondent for all four
clusters, should have first appealed that decision within the
municipality by giving a written notice
of appeal to the accounting
officer within 21 days of the decision they now seek to review.
[27]
It is contended with reference to such matters as
Koyabe
and Others v Minister for Home Affairs and Others 2010(4) SA 327 (CC)
and
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others 2004(4) SA 490(CC)(“Bato Star”)
that the first applicant’s
failure to appeal internally should see this application dismissed.
[28] It is the third
respondent’s further contention that for this court to attend
to this review application without first
prosecuting an internal
appeal, the first applicant should have demonstrated exceptionality
in the interests of justice in an application
for exemption or
condonation of failure to exhaust internal remedies.
[29] In opposing this
point the first applicant stated that clauses 225 to 227 of the
municipality’s supply chain management
policy which speak to
internal appeals are embodied in
section 62
of the
Local Government:
Municipal Systems Act of 2000
which does not make an internal appeal
mandatory. They argue further that they elected to proceed to court
without internally appealing
because engaging in an appeal first
would have caused unreasonable delays which would have subverted
their rights.
[30] Clauses 225 to 226
of the supply chain policy of the municipality provide as follows:
“
225.
In terms of Section 62 of the Systems Act, a person whose rights are
affected by a decision taken by the Municipality, in terms
of a
delegated authority, in the implementation of its SCM system, may
appeal against that decision by giving written notice of
the appeal
and reasons to the Accounting Officer within 21 days of the date of
receipt of the notification of the decision.
226. The tender
documents must state that any appeal in terms of clause 225 must be
submitted to the Accounting Officer at the address
stated, and must
contain the following:
a. reasons and/or
grounds for the appeal
b. the way in which
the appellants rights have been affected; and
c.
the remedy sought by the appellant
“
[31] Section 62 of Act 32
of 2000 as amended provides for almost the same wording as the policy
quoted
supra save
for detailing further which bodies serve as
appeal authorities for which decisions.
[32] Indeed neither the
policy nor section 62 of the Act make the processing of an internal
appeal mandatory.
[33]
As I understand the
Bato
star
principle on
exhaustion of internal remedies at paragraph 25 of that judgement, a
key rationale behind the principle is the due
regard a court must
give to pre-litigation decisions of internal appeal structures,
bearing in mind special expertise or experiences
such structures may
have. It is not and cannot have been merely a pedantic approach which
routinely sees fatality for the mere
fact of not going through
internal appeals. I understand neither
Bato
Star
nor
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining And Development Company
Ltd and Others 2014(5) SA 138(CC)
at
para 123 to be authority to a proposition which suggest that a court,
particularly one seating at special allocation, should
cop out of
deciding review applications on a dilatory point of failure to
exhaust internal remedies more so in matters were allegations
and
proofs of irregular expenditure as pointed out by the Auditor-General
in casu
relating
to this tender are commonplace. The courts have a duty to intervene
in situations where chapter 9 institutions like the
Auditor General
regarding this tender have pointed out financial irregularities
detrimental to the general populace. Courts cannot
and should not, in
my view, bury their heads in the sand of immaterial non-compliances
in the face prima facie illegality
[34] In my view therefore
the failure of the first applicant to appeal the decision of the
Accounting Officer to either the executive
mayor or the
Municipality’s council is not fatal to this application regard
being had to the following considerations:
35.1 The
Auditor-General’s findings of financial improprieties attendant
to this matter which were highlighted by the first
respondent in
initially opposing this matter before it chose the Pontius Pilate
approach, cannot be ignored by this court. It is
in the interests of
justice that those be factored into a decision on whether to condone
the failure to appeal internally or not.
In themselves those findings
by the Auditor-General are exceptional circumstances which although
not raised in an application for
exemption by the applicant are
available to the court’s ear and cannot be ignored by any court
acting reasonably in the interests
of justice.
35.2 What compounds the
first consideration
supra
is the fact that, it being more than
a year since the decision sought to be reviewed was taken, it would
clearly not be helpful
to the interests of justice for the court to
deafen itself to hearing it because it being remitted back to the
internal appeal
process would now be trumped by the 21 days
dies
within which an internal appeal ought to have been prosecuted. The
circuitous condonation applications that could arise therefrom
and
further delay the ultimate determination of the lawfulness of the
tender
in casu
cannot be countenanced by this court in the
light of the Auditor General’s findings of financial
irregularity. This court
has already emphasized twice elsewhere in
this judgement the distaste it has towards circuitous legalistic
gymnastics employed
as preliminaries, in the main, to frustrate the
determination of clearly determinable legal disputes. The situation
becomes worse
when such points
in limine
are magnified and
given undue prominence in the backdrop of a consuming fire of the
nature the Auditor-General has alerted regarding
the tender
in
casu
.
35.3
Looking at the character of the decision sought to be reviewed in
casu, as one of the considerations O’Regan J in
Bato
Star
urged that due
weight should be accorded, which is neither a technical nor a
specialized decision that needs any expertise from
possible appeal
tribunals, I see no reason why this court should, sitting as a
special allocation court, refrain from hearing
this matter deferring
to an internal appeal which would whichever way it went fail to bring
the matter closer to any finality.
I am seized with this matter; the
dispute is clear, and no party is prejudiced in any manner if I
proceed to hear and determine
it. So, I should proceed to hear the
matter.
35.4 In my view the
failure to first appeal internally prejudices nobody in this matter.
Nowhere does the third respondent suggest
any prejudice to itself.
All it says, as part of numerous hurdles it places on the tracks of
this application, is that that the
appeal did not happen and should
have happened before this court was approached.
35.4. The fact that the
appeal clause does not make an appeal peremptory speaks volumes to
this court as it decides whether to be
seduced into refusing to hear
this matter or not. It ultimately says to me that I must, in the
interests of justice, exercise my
discretion in favour of hearing the
matter.
[36] In all the above
premises I am disinclined to uphold the failure to exhaust internal
remedies point. It just is not, in my
view, a strong enough point in
the light of all the factors involved in this matter, to see me
refusing to entertain this review
application.
THE
ISSUES, THE LAW AND ANALYSIS
[37] Crisply the issues
are the following:
37.1 Whether the decision
of the acting municipal manager to appoint only one bidder for all
four clusters contravenes the terms
of the tender.
37.2 Whether the acting
municipal manager was authorized to change, deviate from or reject
the recommendations of the Bid Adjudication
Committee which sought to
have four different bidders appointed, that is, one for each security
cluster.
[38] The first issue
speaks to section 2(f)(i) of PAJA which speaks to the judicial
reviewability of an administrative action which
is not authorized by
the empowering provision. In this regard the empowering provision is
Security Tender Terms of Reference which
at paragraphs 6.2 and 6.3
reads thus:
“
6.2
Respondents are advised that this Tender will be awarded to four (04)
preferred Security Service providers as per the four (04)
clusters.
6.3
Respondents are allowed to bid for all clusters if they wish
.”
[39] Both the Bid
Evaluation and Bid Adjudication Committees understood this empowering
provision to mean that although the bidders
could bid for all four
clusters, no bidder could be awarded more than one cluster. That is
also the understanding of the first
applicant before this court.
[40] The nub of the third
respondent’s take on the empowering provision is that it does
not say four “different”
bidders but simply four. This to
the third respondent does not exclude the possibility of one bidder
being awarded the tenders
four times.
[41] One does not even
have to refer to any authority on interpretation of texts to
immediately see how absurd and manifestly wrong
the third
respondent’s preferred meaning of the empowering provision is.
Why would the text have to say four preferred service
providers per
four clusters if it was referring to a simple ordinary situation of
the best bidder winning at every cluster. It
is true that the word
“different” is not employed in the text, but its meaning
is patently clear to this court on the
textual reading of the
empowering provision. One does not even have to infer such a meaning.
It is a patent, clear in your face
meaning because had the third
respondent’s preferred meaning been possible the text would
simply have stated that the best
bidder will win or simply stated
nothing there. The emphasis of the word “four” twice in
paragraph 6.2 of the empowering
provision means exactly what it
ordinarily means; four preferred bidders one per cluster. One bidder
chosen four times can, assuming
the Bantu Education arithmetic we
learned is still correct, never be said to amount to four service
providers. One entity does
not become four when referred to four
times. It remains one.
[42] Paragraph 6.3 of the
empowering provision only serves to further emphasize the point of
four preferred service providers one
per each cluster when it
enlightens the bidders that they can take their chances in all four
within an understanding that they,
if successful, can only be
appointed in one. I fail to see how any other meaning different from
this that I give, can be preferred
by any reader of the empowering
provision.
[43] In the premises, I
find that the decision of the second respondent as Acting Municipal
Manager contravened the empowering provision
and should on that
ground alone be reviewed and set aside.
[44] The second issue
speaks to section 2(a)(i) of PAJA which provides that a court or
tribunal has the power to judicially review
an administrative action
if the administrator who took the decision was not authorized to do
so by the empowering provision. In
this regard, the question is
whether the Supply Chain Management policy of the municipality
authorizes the Accounting Officer to
deviate from the recommendations
of the Bid Adjudication Committee as he did in this case.
[45] I have gone through
the Supply Chain Management policy attached to the papers as an
annexure and could not find a single provision
which authorized the
Acting Municipal Manager to deviate from the recommendations of the
Bid Adjudication Committee as he did.
The closest I found resembling
some kind of powers the municipal manager has in a case where he has
hiccups with a recommendation
is a referral back to the Bid
Evaluation or Adjudication Committee of a recommendation for
reconsideration in terms of clause 224.
[46] In arguing this
point the third respondent sought to suggest that clauses 220 and 222
of the Supply Chain Management policy
empowered the second respondent
to deviate or reject recommendations of the Bid Adjudication
Committee as he did
in casu
. The clauses relied upon read as
follows:
“
Approval
of Bid not recommended
220. If a Bid
Adjudication Committee decides to award a bid other than the one
recommended by the Bid Evaluation Committee, the
Bid Adjudication
Committee must, prior to awarding the bid:
220.1 check in respect
of the preferred bidder whether that bidder’s municipal rates
and taxes and municipal service charges
are not in arrears.
220.2 check in respect
of the preferred bidder that it has the resources and skills required
to fulfil its obligations in terms
of the bid document.
220.3 notify the
Accounting Officer.
221. The Accounting
Officer may:
221.1 after due
consideration of the reasons for the deviation ratify or reject the
decision of the Bid Adjudication Committee referred
to in clause 220
above.
221.2 If the decision
of the Bid Adjudication Committee is rejected, the Accounting Officer
can refer the matter back to the adjudication
committee for
reconsideration.
222.
If a bid other than one recommended in the normal course of
implementing this policy is approved, then the Accounting Officer
must, in writing and within ten working days, notify the Auditor
General, the Provincial Treasury and the National Treasury of
the
reasons for deviating from such recommendation…
”
[47] Quite clearly,
reliance on the above clauses as the ones empowering the second
respondent to deviate from the recommendations
of the Bid
Adjudication Committee as he did
in casu
is misplaced. In the
first place the clauses, as the heading thereof suggests, deal with
what to do regarding approving a bid recommendation
of the Bid
Evaluation Committee with which the Bid Adjudication Committee does
not agree. In the second place even where the municipal
manager
rejects the recommendation of the Bid Adjudication Committee after
this committee second-guessed the Bid Evaluation Committee,
he cannot
just make an appointment of his own as he did in this matter. His
option is to refer it back to the adjudication committee
for
reconsideration. Thirdly, in this matter these clauses do not arise
at all as both the Bid Evaluation and Adjudication Committees
made
the same recommendations.
[48] In the premises the
decision of the second respondent to deviate from the recommendations
of the Bid Adjudication Committee
in this case was not authorized by
the empowering provision and is judicially reviewable and must be set
aside. I was half-hearted
referred to section 114 of the Municipal
Finances Management Act 56 of 2003 by third respondent’s
counsel it being argued
it empowered the second respondent to decide
as he did. I read it. It does not.
[49] In all the above
premises I find that a case for the setting aside of the decision of
the first and second respondent to award
Tender SK8/3/1-51/2022/2023:
Appointment of service provider for security services for a period of
three years in respect of Cluster
1 , Cluster 2, Cluster 3 and
Cluster 4 to the third Respondent must be declared invalid and
unlawful and be reviewed and set aside.
That finding is simply on the
facts and the PAJA provisions referred to unavoidable. Respecting
precedence trite law and the stare
decisis doctrine still, it is, in
my view sufficient to, in casu, so find without the traditional
references to caseloads of case
law which sometimes tend to not
disabuse some of the probably misplaced notion that they amount more
to codified and canned strands
of reasoning which unwittingly holds
back the development of the law than to a helpful tool of analysis in
determination of matters.
REMEDY
[50] I am empowered in
terms of section 8(1) of PAJA to, post setting aside an
administration action as invalid and unlawful, determine
a remedy
that is just and equitable.
[51] The first applicant
seeks a substitution order in the sense of this court setting aside
the decision to appoint the third respondent’s
appointment and
replacing it with and order mirroring the recommendations of the Bid
Adjudication Committee which should then see
it, the second and third
applicants and the third respondent being awarded a cluster each.
While that is a remedy available in
law as per section 8(1) (c)
(ii)(aa) of PAJA, I am ,for the following reasons, disinclined to go
that route:
51.1
Firstly, that order would be impractical in the sense of ordering for
the second and third respondent an order they have not
sought as they
have pulled back as applicants. Additionally, in the light of
evidence of fraud allegedly committed by the two applicants
who
subsequently distanced themselves from this application as per the
first respondent’s investigations and the Auditor
General’s
report, the counsel of the SCA in
Namasthethu
Electrical (Pty) Ltd v City of Cape Town and Another (201/19[2020]
ZASCA 74 (29 June 2020)
that
no court in this land will allow a person to keep an advantage which
he has obtained by fraud registers most positively with
this court.
51.2 Secondly, it will
offend my sense of what is just to order such substitution in the
face of the supra-mentioned findings of
the Auditor-General that the
tender constitutes one of the many key case studies in irregular
expenditure. It can never be just
and equitable to order what at face
value appears fair to the parties but is grossly unfair on the public
purse. It being so that
section 131(1) of the Municipal Finance
Management Act 56 of 2003 makes it mandatory for a municipality to
address any issues raised
by the Auditor-General, it cannot be the
court which makes an order which pulls the municipality towards
non-compliance with the
Act. Additional thereto is the fact that
section 217 of the Constitution of this country binds organs of state
to contract for
goods and services in a cost-effective manner, a
situation not painted by the Auditor-General’s report.
51.3 Thirdly, this court
is not in as good a position as the first respondent to decide on who
deserves the tender or tenders or
not. Not only is it not a foregone
conclusion as to how the tender should have been awarded but the
actual state organ seized with
the power to appoint is, in the light
of the Auditor-General’s recommendations not opposing the
setting aside of its decision
to appoint the third respondent.
51.4
This court does not have an appetite to offend or even appear to
offend the separation of powers doctrine by encroaching onto
the
terrain of the municipality and indulging in what counsel for the
first respondent has aptly termed “co-governance with
the
executive”. Indeed, as has been repeated many times by our
courts as in
South
African Association of Personal Injury Lawyers v Heath and Others
2001(1) SA 883
and
National Treasury
v Opposition to Urban Tolling Alliance and Others 2012(6) SA 223(CC)
the oversight role of a court should
not be abused to usurp executive functions or to intrude into the
executive and the legislature’s
terrains.
51.5 It will not only be
impractical to order a piece of the tender to go to the third
respondent and/or another piece to the first
applicant, but it will
be offensive to the separation of powers doctrine as the court will
be engaging into some industrious role
of an underqualified
procurement official. There is just no piece of this tender that can
creatively be excised from the whole
which is, as determined already
supra, invalid and unlawful.
[52] Accordingly, I am
not persuaded that a substitution order will be just and equitable in
the circumstances.
[53] In my view therefore
a just and equitable order will be one which invokes section 8(1) (c)
(i) of PAJA by setting
the decision impugned in these proceedings
aside with immediate effect and ordering the re-issuing of the tender
and its processing
on attenuated timeframes.
[54] I was addressed by
all counsel on various permutations I can make regarding a just an
equitable order if I, as I have now,
set aside the decision impugned
in these proceedings. I was invited to deal with the problem of how
services may be rendered in
the interim pending the tender being
determined anew by suspending the declaration of invalidity and
unlawfulness for a period
equal to the time it will take to finalize
a new tender. I do not find such an approach attractive in this
matter. If to err be
human, to nurse the continuation of the error in
the circumstances, will, in my view, be diabolical for the religious
and not in
the interests of justice for legalistic. I am not blind to
the immediate need for security services and the impact thereon by
the
setting aside order but, in my view, the first respondent has a
lot of tools at its disposal to deal with situations emergent upon
this order. Without being prescriptive, as that is not my role in the
circumstances, I take note of tools like
Regulation 36
of the
Municipal Supply Chain Management Regulations which
ought to be
employable in the time between the order made in casu and the
finalization of the new tender.
COSTS
[55] The first applicant
having achieved some substantial success in the matter, there is no
reason why it should not be entitled
to costs against third
respondent. I decline the invitation by the first respondent to mulct
the second and third applicants with
costs even after they had
withdrawn from prosecuting the application. I do not understand why,
given the heavily skewed power relations
between the first respondent
and the two former applicants, which skew favours the first
respondent, and given the fact that it
is the first respondent’s
conduct of making an invalid and unlawful appointment which birthed
this matter, I should mulct
the underdog with costs in the first
respondent’s favour.
CONCLUSION
[56] Resulting from all
the above, the following order is made:
56.1 The application
succeeds only to the extent of setting aside the award of the tender
in casu
to the third respondent.
56.2 The decision of the
first respondent to award Tender SK8/3/3/1-51/2022/2023: Appointment
of service provider for security services
for a period of three years
in respect of Cluster 1, Cluster 2, Cluster 3 and Cluster 4 to the
third respondent is declared invalid,
unlawful and is reviewed and
set aside.
56.3 Any agreement and/or
service level agreements concluded between the first respondent and
the third respondent pursuant to the
tender award is declared
invalid, unlawful and is set aside.
56.4 The tender under
Tender SK8/3/3/1-51/2022/2023 is remitted back to the first
respondent to be started de novo and to be finalized
within 45 court
days of the delivery of this judgement
56.5 The third respondent
is ordered to pay the first applicant’s costs inclusive of
counsel’s costs on scale C.
MALOSE.S. MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 17 May 2024
Judgement delivered
on
: 20 August 2024
For the First
Applicant
: Adv. APJ Else SC
:
Instructed by Albert Hibbert Attorneys
:
Tel: - 012 346 4633
:
Email: albert@hibbertlaw.co.za
For the First and
Second Respondent : Adv. M Z Makoti with Adv
R Mushiana
:
Instructed by P K Legodi Inc Attorneys
:
Tel: 012
100
3345
:
Email: pk@legodiinc.com
For the Third
Respondent
: Adv. M R Maphutha
:
Instructed by Kutullo Kgafane Attorneys
:
Tel: 015 230 4000
:
Email: bafanantsoane@gmail.com