About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 263
|
|
Rantoa Service Providers CC and MEC: Department of Police, Roads and Transport, Free State Province and 1 Other (2824/2024) [2024] ZAFSHC 263 (22 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
no: 2824/2024
In
the matter between
Rantoa
Service Providers CC
Applicant
And
MEC:
Department of Police, Roads and Transport,
First
Respondent
Free
State Province
Head
of Department: Police Roads and Transport,
Second
Respondent
Free
State Province
Neutral
citation: Rantoa Service Providers CC and MEC: Department of Police,
Roads and Transport Free State Province and 1 other
Coram:
Gusha AJ
Heard:
01 August 2024
Delivered:
This judgment was handed down and released to
SAFLII. The date for hand-down is deemed to be 22 August 2024.
Summary:
Application to furnish reasons –
s 5
of the
Promotion of Administrative Justice Act 3 of 2000
– written
reasons furnished two days before date of hearing – costs only
remaining for determination.
ORDER
The
respondents to pay costs on Scale B, the one paying the other to be
absolved.
DRAFT
JUDGMENT
Gusha
AJ
[1]
In its notice of motion, the applicant
initially sought, as its first prayer, an order compelling the
respondents to furnish it,
within 14 days of the order sought, with
full and adequate written reasons why its bid for the tender:
PR&T/BID 07/2022/2023
(the bid) for appointment of a contractor
for special maintenance of the primary road between Hoopstad and
Bloemhof in the Lejweleputswa
District Municipality was not
successful. It further sought, as its second prayer, an order
compelling the respondents to furnish
it with the documents relevant
to the adjudication and awarding of the bid. The aforementioned
relief was sought in terms of s
5 of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA). Its third and last prayer was an order
for costs.
[2]
Section 5 (1) of PAJA provides that any
person whose rights have been adversely affected by administrative
action and who has not
been given reasons for the action, may within
90 days, request that the administrator concerned furnish written
reasons for the
action. Such reasons must be furnished within 90 days
after receiving the request.
[3]
I interpose here to mention that this
matter initially served before Reinders J on 21 June 2024 on the
unopposed motion roll. On
the papers before me it appears that
subsequent to the matter being set down for hearing on the 19
th
June 2024, the respondents on the 26
th
June 2024 filed their notice to oppose. Pursuant thereto and on 27
th
June 2024 Reinders J postponed the matter to the opposed motion roll
for hearing on 1 August 2024 and directed ‘the respondent
(
sic
)
to file its answering affidavit on or before the 13
th
July 2024’ (the order). It is apposite to mention that contrary
to the order, the respondents, to date, failed to file their
answering affidavit(s).
[4]
During arguments on the 1
st
August 2024 I was advised by the parties that the respondents have
since furnished the applicant with written reasons, albeit belatedly
on 29 June 2024. I was also furnished with the letter detailing the
written reasons as furnished. The contents of the letter are
self-explanatory.
[5]
The aforesaid notwithstanding, the
applicant persisted with its prayer to compel the respondents to
furnish it with ‘full
and adequate’ reasons. This it
submitted, was because the respondents furnished it with inadequate
reasons as certain annexures
referred to in the written reasons
furnished were omitted.
[6]
In my view, nothing turns on the fact that
Annexures A and B referred to in the letter were not attached. A
careful reading of the
letter shows that Annexure A is a list of
goods and services required by the department, whereas Annexure B is
a Government Gazette
dated 23 February 2024. Both these documents, in
my view, could have been accessed by the applicant online and with
relative ease.
[7]
The reasons furnished, effectively and
adequately inform the applicant why its bid was unsuccessful –
the bid was cancelled
and thus no award, to any bidder, was made. The
letter, albeit belated, is dispositive of the first prayer as sought,
and the applicant’s
persistence therewith is futile.
[8]
With regards to its second prayer, the
applicant conceded that due to the furnished written reasons, its
prayer to compel the respondents
to furnish it with the documents
relevant to the adjudication and awarding of the bid was now rendered
moot. Consequently, the
only issue remaining for determination is
costs.
[9]
Notwithstanding the fact that I have found
no reason to grant the first and second prayers sought, the
respondents’ tardiness
and indolence must redound to its
disadvantage.
In the circumstances of this
case, albeit not successful, the applicant is entitled to its costs
occasioned by these proceedings.
This much is conceded by counsel for
the respondents.
[10]
The parties are however at variance with
regards to the scale on which same is to be awarded. The applicant
submits that I must
award a punitive cost order as the respondents
were reckless at best and vexatious at worst in their handling of
this matter.
[11]
The respondents oppose the cost order
sought and submitted that they tendered costs on a party-party scale
but that same was rejected.
They submitted that they were not
vexatious or reckless in handling this matter, but rather tardy.
Counsel for the respondents
tried to persuade the court that this
tardiness was due to human error – they apparently laboured
under the belief that the
letter was dispatched to the applicant,
when in fact it was not. I am not persuaded. The respondents’
misery is not due to
human error but rather to its own indolence.
[12]
They were nonchalant, tardy and indolent in
their handling of the request for reasons by the applicant. The
request for reasons
was made on 1 November 2023. Upon not receiving
same, the applicant launched this application. The passivity
continued, not even
a notice of set down was enough to move the
respondents into action, either by furnishing the requested reasons
or by filing their
opposition to the notice of motion as issued and
only filing same some two days before date of set down. The
nonchalance and indolence
did not end there, notwithstanding the
order to file their answering affidavits, by the 1
st
of August 2024, the respondents still had not filed same. To their
credit it would appear on the papers before me that they moved
into
some action on 29 July 2024 and dispatched, via electronic mail, a
letter to the applicant informing it that the requested
reasons were
furnished on or about 11 June 2024. However, it appears on the papers
before me that this letter dated 11 June 2024
was never dispatched to
the applicant.
[13]
It
is a well-established principle of our law that the general rule
regarding costs is that the unsuccessful party pays the costs
of the
successful party on the party and party scale. Equally established is
the principle that the court exercises a discretion
when considering
an appropriate costs order and should, of necessity, exercise same
judiciously.
[1]
In the exercise
of its discretion, the court must carefully weigh the issues in the
case, the conduct of the parties and any other
circumstance which may
have a bearing on the issue of costs and then make such order as to
costs as would be fair and just between
the parties.
[14]
I am however not persuaded that this matter
is one warranting a punitive cost order; it was a relatively
non-complex matter. The
main tussle between the parties was rendered
settled prior to hearing, furthermore, the respondents’
indolence notwithstanding,
the applicant could have and indeed should
have arrested its own costs as soon as it received the written
reasons.
[15]
In the result the following order is made:
The respondents to pay
costs on Scale B, the one paying the other to be absolved.
NG
GUSHA AJ
On
behalf of the Applicants:
Adv.
D.R. Thompson
Instructed
by:
Gcasamba
Inc
BLOEMFONTEIN
On
behalf of the Respondent:
Adv
K. Motholo (Ms)
Instructed
by:
Office
of the State Attorney
BLOEMFONTEIN
[1]
Trencon
Construction (Pty) Limited v Industrial Development Corporation of
South Africa Limited and Another
[2015] ZACC 22
;
2015 (5) SA 245
(CC) para 85.