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2024
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[2024] ZANCHC 66
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Raubex Building (Pty) Ltd v HOD: Dept of Roads and Public Works, NC and Another (1508/2024) [2024] ZANCHC 66 (3 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
C
ase
No: 1508/2024
Heard:
3 July 2024
Judgment delivered:
3
July
2024
Reportable: YES /
NO
Circulate to Judges: YES /
NO
Circulate to Regional Magistrates:
YES /
NO
Circulate to Magistrates: YES /
NO
In the matter between:-
RAUBEX
BUILDING (PTY) LTD
Applicant
and
THE
HOD: DEPT OF ROADS & PUBLIC WORKS, NC
First Respondent
THE
MEC: DEPT OF ROADS & PUBLIC WORKS, NC
Second Respondent
JUDGMENT
Mamosebo, J
[1]
On 12 June 2024 the applicant served and filed the Notice of Motion,
to be heard on
28 June 2024 at 09:30 seeking the following relief on
an urgent basis:
“
1.
That the applicant’s non-adherence to this court’s rules
related to time
periods and service be condoned and the application
be heard as an urgent application in terms of Rule 6(12).
2.
That the respondents be ordered to, within five days after the
granting of this
order, give written reasons to the applicant for its
failure to secure public tender: TENDER NUMBER: DRPW 015/2023,
PROJECT NAME:
NURSING COLLEGE KIMBERLEY PHASE 2A.
3.
That the respondents be further ordered to provide the applicant with
the following
documents related and germane to the tender mentioned
directly herein above:
3.1 Copies of any and
all, whether they were externally sourced or internally generated,
evaluation reports and bids
submitted;
3.2 The minutes of
meetings held by any Evaluation and/or Adjudication Committee,
established in order to deal with,
advise on and make decisions as to
– bids submitted;
3.3 Any recommendations
made by such committees to award the tenders;
3.4 The appointment
letter issued to the successful tenderer;
4.
For insofar as this court may deem it necessary, the time periods set
in
section 5
of the
Promotion of Administrative Justice Act, 3 of
2000
is truncated on the terms set out in prayers 1 and 2 above, in
terms of
section 9
of the abovementioned Act.
5.
The respondents be ordered to pay the costs of the application; and
6.
Further and/or alternative relief.
”
[2]
The respondents filed a Notice of Intention to Oppose the application
and on 28 June
2024 agreed to a schedule for the filing of further
affidavits and Heads of Argument. The matter was set down for
today,
03 July 2024 at 09:00.
[3]
Mr Van Aswegen, counsel for the applicant, made the submission
conceding that the
applicant will not persist in seeking the relief
sought in prayer 3 but still persists with the relief in prayer 2,
that of essentially
compelling the respondents to provide the
applicant with records and full and written reasons to award the
successful tenderer
with the tender to build the nursing college.
[4]
The application is brought in terms of sections 5 and 9 of the
Promotion of Administrative
Justice Act, 3 of 2000 (PAJA).
Section 5 deals with reasons for administrative action while section
9 addresses the variation
of time. Mr Van Aswegen, invoking
Sikutshwa v MEC for Social Development Eastern Cape Province and
Others
2009 (3) SA 47
(TkH) at paras 53, 66 and 67, submitted
that the application is urgent the applicant’s tender was R49
million lower than
that of the successful tenderer generally it ought
to have been awarded the tender. The applicant wrote a letter
to the respondents
dated 05 June 2024 requesting for reasons on or
before 10 June 2024 which to date has not been forthcoming.
Concerned that
the tender was to the value of over five hundred
million, just the establishment of the site alone will cost the
public purse.
That is sufficient to warrant this application being
deemed urgent.
[5]
Despite the applicant relying on s 5 of PAJA which affords the
administrator 90 days
after receiving the request, the applicant has
not persuaded me why granting the respondents 5 days within which to
respond, of
which three of the five were working days, it has not
made out a case of exceptional circumstances which would trigger s 9
of PAJA
resultantly truncating the 90-day period. It is only at
commencement of this hearing where prayer 3 was abandoned, otherwise,
it
effectively means the argument as appearing in the respondents’
heads pertaining to the non-compliance with the Promotion
of Access
to Information Act 2 of 2000, (PAIA) was also at play. The request
for information and the request for reasons are governed
by the two
pieces of legislation. However, the applicant has embodied the two
requests in one letter addressed to the Head of Department,
Mr Johny
Mac Kay dated 05 June 2024. The applicant has, in my view,
conflated issues pertaining to the request made.
[6]
Mr Mthombeni, counsel for the respondents, contended that paragraph 9
of the HOD letter,
was not contained as part of the relief in the
Notice of Motion since the applicant did not ask this court to stay
the tender pending
the outcome of the intended review application.
Counsel submitted that the application was premature and lacks
urgency.
[7]
The applicant has not made out a case for urgency and even if there
could be any,
it is in my view, self-created. I am not convinced that
the applicant will not be afforded substantial redress at a hearing
in
due course. In the premises, the application stands to fail.
[8]
This application was unmeritorious and justifies a punitive cost
order. The
application is struck off roll with costs on a scale
as between attorney and client, including costs of counsel.
MC
MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
Obo
the Applicant:
Adv.
W.A. van Aswegen
On
instruction of:
Duncan
& Rothman Attorneys
Obo
the First and Second Respondents:
Adv.
X.P. Mthombeni
On
instruction of:
Mkhokeli
Pino Attorneys