IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 22265/2023
In the matter between:
HELIOS SECURITY AND RISK MANAGEMENT CC First Applicant
SECHABA PROTECTION SERVICES
WESTERN CAPE (PTY) LTD Second Applicant
and
COLLEGE OF CAPE TOWN First Respondent
MTHIDHLA GROUP VIP AND SECURITY (PTY) LTD Second Respondent
SNIPER SECURITY SOLUTIONS Third Respondent
TSHEDZA PROTECTIVE SERVICES CC Fourth Respondent
MAFUKO SECURITY SERVICES CC Fifth Respondent
MADUNA PROTECTION SERVICES Sixth Respondent
DEPARTMENT OF HIGHER EDUCATION
AND TRAINING Seventh Respondent
Bench: Vivier, P AJ
Heard: 28 August 2024
Delivered: 18 October 2024
This judgment was handed down e lectronically by circulation to the parties'
representatives via email and release to SAFLII. The date and time for ha nd-down is
deemed to be 10h00 on Friday, 18 October 2024.
JUDGMENT
________________________________________________________________
VIVIER, AJ:
Introduction
[1] The First Applicant, Helios Security and Risk Management CC ( “Helios”), and
the Second Applicant, Sechaba Protection Services Western Cape (Pty) Ltd
(“Sechaba”), render security services to state institutions and private clients .
Where applicable I shall hereinafter refer to Helios and Sechaba jointly as the
Applicants.
[2] The First Respondent is the College of Cape Town ( “the College” ). It was
established as a public college, as described in sections 1 and 53 of the
Continuing Education and Training Act, No. 16 of 2006 (“CETA”). The College’s
main office is situate at Salt River, Cape Town, and it has several campuses
within the Western Cape Peninsula.
[3] The College is a semi -autonomous entity established by CETA . It is listed in
Schedule 2 of CETA as one of the “[e]xisting public further education and
training institutions, structures and bodies” . The College is a juristic entity and
derives its powers from the provisions of CETA.
[4] Helios previously provided security services to the College at eight college sites
(seven campuses and the central offices) . This occurred in terms of a contract
that had been entered into between Helios and the College, for the rendering of
such services during the period of 1 November 2020 to 31 October 2023.
[5] With a view thereto that the duration of this contract would come to an end on
31 October 2023, the College issued an invitation to bidders, to tender for the
provision of security services at the college sites, for a further period of 36
months. The closing date of the tender was 25 August 2023.
[6] In response to this invitation, 17 bidders, inter alia Helios, Sechaba, the Second
Respondent, Mthidhla Group VIP and Security (Pty) Ltd ( “Mthidhla”), and the
Third Respondent, Sniper Security Solutions (“Sniper”), submitted bids.
[7] On 16 October 2023 the College Principal (as the accounting offer of the
College) considered the recommendations of its Bid Evaluation Committee
(“the BEC” ) and Bid Adjudication Committee ( “the BAC” ), whereafter he
awarded the bid jointly to Mthidhla and Sniper. These entities were described in
the tender documents as the “Mthidhla-Sniper Security JV” . I shall for
convenience refer to these successful bidders jointly as “Mthidhla-Sniper”.
[8] This is an application for the review and setting aside of (a) the decisions and
recommendations made by the BEC in respect of the tender on 30 October
2023, as well as (b) the decision of the College Principal to award the tender to
Mthidhla-Sniper, on the grounds for review that I shall expand upon below.
[9] At the hearing of the application, Ms N Nyathi appeared for the Applicants, and
Mr L Matiso for the College.
[10] This application has an extra -ordinary procedural history . It was launched by
the Applicants on 7 December 2023. On 18 December 2023, the College
delivered a notice of intention to oppose the application ( “the notice of
opposition”).
[11] However, a fter the College had made the record of proceedings available in
compliance with rule 53(1) of the Uniform Rules of Court, and Helios, on 9 April
2024, had filed a supplementary founding affidavit and amended the relief
sought in the notice of motion, the College –
[11.1] on 13 May 2024 filed a counter-application, seeking a self-review of (a)
the determination of the tender specifications, as well as (b) the
decision to award the tender to Mthidhla-Sniper; and
[11.2] on 21 May 2024 filed a notice in terms of which it withdrew its
opposition to the review application.
[12] In addition to this relief, the College also sought the following relief in prayers 4
and 6 of the notice of motion filed in the counter-application:
[12.1] “[T]hat t he terms of the contract concerning payment for services
rendered by the third and fourth respondents shall remain intact and
subject to the said terms and rights that the third and fourth
respondents and the applicant have as against each other in contract,
the third and fourth respondents are to be paid for services already
rendered.” (Emphasis added.)
The references to the Third and Fourth Respondents in this prayer
were to Mthidhla and Sniper respectively, as they were cited in the
counter-application.
[12.2] “Directing that the costs of this application be paid by any party that
oppose this application, jointly and severally, the one paying the others
to be absolved.”
[13] The parties are in agreement that the decision of the College Principal to award
the tender to Mthidhla-Sniper, should be reviewed and set aside. The
Applicants recorded this agreement as follows in paragraph 4 of the practice
note filed by them:
“The parties are ad idem that the administ rative decision in question should
be reviewed and set aside.”
[14] In paragraph 5 of this practice note, the Applicants confirmed that the relief
sought by the College, as referred to in paragraph [1 2] above, are the only
issues for determination.
[15] In paragraph 1 of the practice note filed by the College, it confirmed the
aforesaid as follows:
“The First respondent makes common cause with the description of
proceedings as set out in the applicants’ practice note.”
[16] In the founding affidavit filed by t he College in the counter-application, it failed
to disclose any basis for the relief sought in respect of the contract between it
and Mthidhla-Sniper, as referred to in paragraph [1 2.1] above. When this
aspect was raised by the Applicants in their answering affidav it filed in the
counter-application, the College explained, in its replying affidavit , that such
relief is merely “consequential relief to cater for the period of the (new)
procurement process” . This was presumably a reference to the new
procurement proces s that would have to be implemented in the event of the
decision to award the tender to Mthidhla-Sniper, being reviewed and set aside.
The main grounds for review set out in the main founding affidavit
[17] Helios alleged that , on 23 August 2023, it submitted i ts bid in compliance with
the tender invitatio n. It thereafter received no further communication from the
College with regard to its bid.
[18] On 20 October 2023 Helios received “an electronic communication” 1 from the
College, requesting it to attend a meeting scheduled for 23 October 2023, at
the central office of the College. No explanation was given with regard to the
1 Presumably by e-mail. The nature of this communication was not explained in the founding affidavit.
purpose of this meeting.
[19] Mr Reza de Bruyns, the managing director of Helios, attended the meeting . It
was chaired by the College Principal, and several other persons were in
attendance. Mr De Bruyns incorrectly assumed that they were campus
managers. To his surprise, the College Principal however announced that they
were the representatives of the “new security service provider” , and that the
primary purpose of the meeting was to discuss the handover of the security
services.
[20] An agenda for the meeting was then handed out, and the following was, inter
alia, listed as the items on the agenda – (a) “Attendance Register and
Apologies”; (b) “Purpose of the Meeting”; (c) “Security Services (Current
Contract and New Contract)”; (d) “Handover Process and Communication
Protocols” and (e) “Handover and Close Out Report”.
[21] On 23 October 2023 Helios sent a letter to the College, and requested it to
provide Hel ios with the reasons why its bid had been unsuccessful. On
24 October 2023, the College responded to this letter, by e-mail. In this e -mail
the College advised Helios that its request had been sent to the College’s
attorneys “for processing”, and that the attorneys would “instruct a response”
for the College. No further correspondence was received by Helios, from either
the College or its attorneys, with regard to this request.
[22] On 26 October 2023 Helios sent a further letter to the College. In this letter
Helios pointed out and emphasised the lack of response to its previous request
for information, and recorded the following in paragraphs 8 and 9 thereof:
“8. It is of importance to note that the successful company namely , Mthidhla,
was established two year s ago and has little experience in the security
services industry. We also note that Mthidhla & Sniper are both Gauteng
based security service providers with little presence in the Western Cape
Province.
9. In contrast to the above, Helios Security has be en providing security
services in the Western Cape Province for approximately 16 years and has a
wealth of experience in providing such services to tertiary institutions.”
[23] Helios concluded the letter with a request that the appointment of the
successful bidders should be held in abeyance , until Helios had been provided
with the requested information. Helios also requested an opportunity to file an
appeal, if necessary.
[24] Helios received no response from the College to its letter of 26 October 2023. It
then resolved to launch an application for the review of the decision to award
the tender to Mthidhla-Sniper.
[25] Sechaba submitted its tender on 25 August 2023. It likewise received no further
response from the College. It was only on 24 October 2023, after Sechaba had
communicated with Helios with regard to the matter, that it obtained knowledge
thereof that the tender had been awarded to Mthidhla-Sniper. It addressed
similar correspondence to the College, requesting reasons as to why its bid had
been unsuccessful.
[26] On 25 October 2023 the College’s attorneys sent a letter to Sechaba in reply to
its request for information . In this letter the College’s attorneys acknowledged
that Sechaba was well within its rights to have requested information with
regard to the re ason(s) why its bid had been unsuccessful. It advised Sechaba
that such reasons would be requested from the College and “be provided in
terms of the College’s Supply Chain Policy, and relevant/applicable legislation”.
[27] Notwithstanding this acknowledgment b y the College’s attorneys of Sechaba’s
entitlement to the relevant reasons as requested, and the undertaking to
provide such reasons, the College failed to do so.
[28] Neither Helios nor Sechaba received any further response from the College
with regard to the reasons why their bids were unsuccessful.
[29] Section 45(1) of CETA impose d the following obligation on the College to
furnish the requested information to Helios and Sechaba –
“[A] college must make information available for inspection by any person in
so far as such information is required for the exercise and protection of the
rights of such person”.
[30] Paragraph 2 of the tender invitation stipulated that the tender process was
subject to the Preferential Procurement Policy Framework Act, No. 5 of 2000,
and the Preferential Procurement Regulations 2017. The Applicants contend ed
that the College, by initiating and concluding a tender process, was required to
give effect to section 217( 1) of the Constitution of the Republic of South Africa,
1996 (“the Constitution”), which provides as follows:
“217. Procurement– (1) When an organ of state in the national, provincial or
local sphere of government, or any other institution identified in the national
legislation, contracts for goods or services, it must do so in ac cordance with a
system which is fair, equitable, transparent, competitive and cost-effective.”
[31] The Supply Chain Management Policy ( “the SCM Policy” ) of the College
provides2 that its accounting officer is required to comply with the prescripts of
the Preferential Procurement Policy Framework Act.
[32] The SCM Policy also provides 3 that the College must adhere, inter alia, to the
following stages of a tender process:
• The handling of bids submitted in response to the public invitation
• The evaluation of bids
• The adjudication of bids
• The awarding of contracts
• The notification to bidders
• The signing of contracts
2 In clause 3.4.5 at page 17 thereof.
(Emphasis added.)
[33] In terms of clauses 4.30 and 4.31 of the SCM Policy,4 the College must –
[33.1] inform all unsuccessful bidders in writing about the outcome of the bid;
and
[33.2] when requested in writing by unsuccessful bidders, provide them with
the reasons why his/her own bid was not successful.
[34] The College failed to comply with these peremptory provisions of the SCM
Policy, in respect of its decision to award the bid to Mthidhla-Sniper. The
Applicants contend that the bidding process was therefore not conducted in a
manner that encourages ethical conduct, open and effective competition,
fairness and equal treatment.
[35] The Applicants further contend that the Col lege, by failing to comply with the
Applicants’ requests for reasons, also failed to comply with the provisions of
section 3(2) and section 6(2)( b) and ( c) of the Promotion of Administrative
Justice Act, No. 3 of 2000 (“PAJA”).
The main grounds for review set out in the supplementary founding affidavit
[36] The Bid Specification Committee ( “the BSC” ) comprised of the following
persons: (a) Tilly Reddy as chairperson; (b) Nathaniel Masiza; (c) Ryan March
and (d) Brenda Maasdorp.
[37] The BEC comprised of the followin g persons: (a) Sindiso Msipha as
chairperson; (b) Daria Duncan and (c) Alfred Ramahlaphe.
[38] The BAC comprised of the following persons: (a) Deon van Rooyen as
chairperson; (b) Achmat Gafieldien as deputy chairperson; (c) Basil Naicker; (d)
3 In clause 3.5 at page 17 thereof.
Fred Koopman and (e) Melody Marescia.
[39] On 21 July 2023 the BSC held a meeting in order to, inter alia, agree on and
adopt the tender specifications. However, Tilly Reddy did not attend this
meeting and Ryan Ma rch acted as chairperson (a position not held by him, but
by Tilly Reddy). A further irregularity was that Basil Naicker attended and
participated in the meeting. He was not appointed as a member of the BSC, but
of the BAC (a committee which served an entirely different function). In terms of
clause 4.11 of the SCM Poli cy, the BSC has the function of “compiling the
specifications for all procurement goods and services before the invitation
process”. On the other hand, clause 4.13 of the SCM Policy stipulates that the
BAC is responsible for making a final award or recomme ndation to the College
Principal.
[40] The BSC adopted the tender specifications on 21 July 2023, and on 31 July
2023 the College Principal approved the recommended specifications.
[41] On 15 August 2023 the College called on interested bidders to attend a tender
briefing session. The Applicants attended this meeting. The briefing session
was conducted by the College Principal. The main focus of the meeting was the
section of the tender documentation which contained the tender specifications.
A question-and-answer session was held thereafter, on the basis of the tender
specifications, which was dealt with by the College Principal.
[42] The Applicants alleged that they submitted their bids in accordance with the
requirements of the tender documentation, particularly the te nder
specifications.
[43] On 3 October 2023 the BEC held a meeting in order to evaluate the submitted
bids, in accordance with the tender specifications. The BEC discussed the bids,
in particular those who had complied with the tender specifications, and thos e
who purportedly did not comply. Out of 17 bidders, only 2 were recommended,
4 At page 45 thereof.
namely Gap Management and Mthidhla-Sniper.
[44] The bids of 15 bidders were not recommended , for the same reasons, namely
their failure to provide the following documents: (a) UIF ce rtificates; (b)
provident fund compliance; (c) public liability insurance cover; (d) vehicle
documents; and (e) proof of firearm licences.
[45] However, none of these documents were required to be submitted in terms of
the tender documentation and, particularly, the tender specifications.
[46] The BEC therefore evaluated and disqualified 15 bidders, including the
Applicants, on the basis of inaccurate criteria and on the basis of documents
that were not required to be submitted in terms of the tender specifications.
[47] The BEC therefore failed to evaluate the bids in accordance with the provisions
of clause 4.12 of the SCM Policy, which provides as follows:
“A bid evaluation committee must
a Evaluate bids in accordance with:
(i) the specifications for a specific procurement; and
(ii) …
b Evaluate each bidder’s ability to execute the contract” . (Emphasis
added.)
[48] On 12 October 2023 the BAC held a meeting in order to consider the report and
recommendations of the BEC, and to make a final award or recommendation to
the College Principal.
[49] Two members of the BAC , Mr Gafieldien and Mr Naicker, did not attend the
meeting. It was proceeded with in their absence, with no apologies recorded for
the absence, and no official replacements appointed for them.
[50] Moreover, Mr Van Ro oyen who acted as chairperson, was a member of the
College Council. He was not entitled to attend this meeting by virtue of the
prohibition contained in clause 4.13 of the SCM Policy, which provides as
follows:
“No members of the college council may be part of the BAC.”
[51] During this meeting the comments and decisions of the BEC were discussed
and reviewed. The BAC recorded its concern that the BEC had evaluated the
submitted bids on the basis of documents which had not been required in terms
of the tender specifications, as follows:
“The BEC minutes did not give full clarity on the reasons for implementing the
requirements of a Provident Fund and therefore eliminating certain suppliers .
The Chair discussed this with the Chair of the BEC.
The BAC requested th at in order for the members to agree to the rejection of
Supplierd (sic) on the basis of provident funds, the BEC is requested to
update their minutes as the Tender Documents was not clear on this process.
The Members then proceeded with the rest of the Suppliers and confirmed the
findings of the BEC.” (Emphasis added.)
[52] As is evident from these minutes , the BAC both acknowledged and expressed
its concern that the BEC had evaluated the submitted bids on the basis of
documents that had not been required in terms of the tender specifications.
[53] The BAC proceeded to discuss the recommended bidders, GAP Management
and Mthidhla-Sniper. The following was recorded in the minutes, in this regard:
“The BAC reviewed the two Suppliers and concluded as follows:
1) GAP Management is more than 50km in radius as required by the bidding
document. BAC rejects GAP’s application.
2) Mthidlha-Snipper (sic) is lacking proof of financial stability of the Company.
The Financials submitted was not properly concluded and indicated no
financial support. The Joint Venture on the suppliers did not submit the
JV’s financials and therefore the BAC is unable to recommend the
Supplier.
BAC members could therefore not conclude a recommendation .”
(Emphasis added.)
[54] The BAC therefore decided not to rec ommend any bidders, and recorded its
decision as follows:
“The Bid Adjudication Committee do not recommend any Supplier but
recommends that the matter be referred to the Office of the Principal for
consideration and next steps . If necessary the 17 Supplier s w ho tendered
should be called to another Briefing Session to explain the requirements of
the Provident fund as well as Proper Financial Statements.
It is best due to time and appointments to urgently clear with the Principal
Office and extend the service s of the current service provider on Security for
another month.” (Emphasis added.)
[55] On 16 October 2023 the College Principal received the recommendations of the
BEC and BAC, and considered the evaluation forms which had been completed
by the BEC and BAC in respect of all the received bids.
[56] On the last page of the bid evaluation form in respect of Mthidhla-Sniper, the
College Principal recorded the following statements and decision made by him
in respect of this bid:
“The issue of feasibility of finances r aised by the BAC is outside of the
requirement of the tender and can therefore not be considered . The office of
the Accounting Officer notes that the two Committees agree in everything and
therefore submitted to him to make a determination. The office of the Principal
therefore award this contract to the JV.” (Emphasis added.)
[57] The College Principal’s summation in the first two sentences of the quotation in
the previous paragraph, is manifestly incorrect. Clause 16 of the Special
Conditions of Contract5 required an investigation by the College of the bidder’s
financial position to execute the contract, and to reject any bid received from a
bidder who does not have the capacity to execute the contract. Clause 16
provides as follows:
“16. Vendor assessment (capability and financial ability)
16.1 The College of Cape Town will have the right to confirm the ability of
bidders to execute this contract successfully. This includes an
investigation by the College of Cape Town or its appointee of the
following: a) the bidder’s financial position to execute the contracts , b)
previous contracts executed and current contract, c) delivery periods,
Quality and Quantity of Products.
16.2 …
16.3 …
16.4 Should the contractor not cooperate in any of these matters and/o r do
not have the capability to execute the contract his/her offer will be
regarded as not acceptable.” (Emphasis added.)
[58] It therefore follows that a bidder’s financial ability to execute a tender contract,
was a materially relevant consideration. The College Principal failed to consider
this requirement, nor did he consider the fact that the unsuccessful bidders had
5 As set out at page 42 of the tender documentation.
been unduly disqualified on the basis of the failure to submit documents, which
the tender document did not call for.
[59] The College Principal d id not take into account the recommendations by the
BAC which called for a further briefing session to be held with the bidders who
had been disqualified. The College Principal did not follow these
recommendations, and failed to provide a justifiable reaso n for effectively
rejecting the BAC’s recommendations in this regard.
[60] In awarding the bid to Mthidhla -Sniper, a bidder who had not been
recommended by the BAC (on the basis that a requirement of the tender
specifications had not been met), the College Principal gave Mthidhla-Sniper an
unfair advantage, to the detriment of all the other bidders.
The grounds of review set out in the counter-application
[61] The College alleges that after the filing of the Applicants’ amended notice of
motion and supplementary affi davit, the officials of the College “took advice”
(presumably from the College’s legal advisors) and there was consensus “that
the tender process had been tainted by bona fide irregularities that rendered
the entire procurement process unlawful”. The College was therefore advised to
institute a counter -application for a self -review of its decision to award the
tender to Mthidhla-Sniper.
[62] The College relied, in the first instance, on the judgment of Minister of Finance
v Afribusiness NPC 35 ,6 in which the Con stitutional Court held that the
Preferential Procurement Regulations,7 promulgated by the Minister of Finance,
were inconsistent with the Preferential Procurement Policy Framework Act, and
therefore invalid. The College allege d that it was unaware of this judgment at
the time that it formulated the tender specifications. The tender process was
therefore rendered unlawful, because the empowering provision (the aforesaid
Regulations) was invalid.
6 2022 (4) SA 362 (CC).
[63] The College further alleged that the requirements of the “tender data ” was
vague and caused confusion, in that it was not clear what documents would be
required in order to comply with the following operational requirement:
“The Service Provider is solely responsible for the safety and well -being of its
employees when working at CCT.”
[64] The tender data therefore did not set out the “evaluation criteria for
administrative phase” , nor did it “explicitly set out the administrative
requirement and sanction for non -compliance”. The provisions of section
3(2)(b) of PAJA had therefore not been complied with.
[65] The College alleged that the bidders were entitled to know how their bids would
be evaluated in each evaluation phase, which was not the case given the
vagueness of the requirement. This vagueness “strikes at the core of t he
tenderer’s right to procedural fairness”.
Discussion
[66] The College did not file an answering affidavit and raised no defence to the
grounds upon which the Applicants sought the review and setting aside of the
impugned decisions.
[67] Instead, on 13 May 2024 the College filed its counter-application.
[68] On 21 May 2024 the College filed a notice entitled “Notice of Withdrawal”, in
which it notified the Applicants as follows:
“BE PLEASED TO TAKE NOTICE THAT THE FIRST RESPONDENT hereby
withdraws their (sic) notice of intention to oppose.”
7 Preferential Procurement Regulations, GN R32 GG 40553, 20 January 2017.
I have already alluded to this notice in paragraph [11.1] above.
[69] In the founding affidavit filed in the counter -application, the College proffered
the following explanation as to why it deemed it necessary to launch a counter -
application, notwithstanding its decision to withdraw its opposition to the main
application:
“The College does not concede any of the review grounds advanced by the
applicants’ in the main application but rather, institutes this self -review
application in discharge of its higher duty as a public institution to act lawfully
and correct any unlawful acts as soon as it becomes aware of such.”
[70] In my view, this explanation is unsatisfactory and difficult to reconcile with the
College’s decision not to file an answering affidavit in the main application, but,
instead, to withdraw its opposition there to. There was no need to institute a
counter-application for essentially the same relief sought by the Applicants ,
albeit on different grounds, in respect of the decision t o a ward the tender to
Mthidhla-Sniper.
[71] In view of th ese decisions by the College, the grounds for review upon which
the Applicants rely, became unopposed. The College could therefore not have
laboured under any misapprehension with regard to the outcome of the main
application. The position taken by the College in its founding affidavit in the
counter-application, that it does not concede any of the review grounds, does
not detract from this conclusion.
[72] The College did not proffer any explanation in its fou nding affidavit as to why it
had filed the “Notice of Withdrawal . In argument, Mr Matiso sought to e xplain
this on the following basis – the notice of opposition was irregular. It had been
filed prematurely and out of sequence, because it would only have b een
necessary to file such notice after the rule 53 record had been made available.
Mr Matiso was, however, unable to explain why the College had decided to
withdraw its opposition to the main application at such a late stage, if the
purpose thereof was merely to rectify its own mistake (of having filed the notice
of opposition prematurely).
[73] This explanation proffered on behalf of the College, is unsatisfactory. There is
no suggestion in the papers that the Applicants objected to the notice of
opposition, b ecause it had been filed prematurely. In any event, nothing was
done to replace the irregular notice, if it was indeed the intention of the College
to merely rectify this irregularity, and to persist in its opposition of the main
application.
[74] It became apparent during argument that the College’s decision to withdraw the
notice of opposition , occurred concurrently with the decision to launch the
counter-application. The inference is inescapable that this was not a mere
coincidence, notwithstanding the Colleg e’s contention to the contrary. I
therefore question the explanation proffered on behalf of the College, as to why
it had withdrawn the notice of opposition.
[75] Be that as it may, regardless of my view in this regard, the fact remains that the
main application and the grounds upon which the Applicants seek the review
and setting aside of the impugned decisions, are unopposed.
[76] When I questioned Mr Matiso about the merits of the grounds for review, as set
out in the Applicants’ main founding affidavit, he did not contest that they were
valid, but merely stated that he had no instructions to concede the merits
thereof.
[77] I am satisfied that the grounds for review, as set out in the Applicants’ main and
supplementary founding affidavits, are well -founded. The Coll ege Principal’s
decision to award the tender to Mthidhla -Sniper was not only procedurally
unfair, but taken because (a) irrelevant considerations were taken into account
and (b) relevant considerations were not considered. The grounds for review as
described in section 6(2)(c) and (e)(iii) of PAJA are therefore satisfied.
[78] The conclusion is inescapable that the College’s main purpose for launching
the counter-application, was to obtain the relief sought in prayer 4 of its notice
of motion (as quoted in paragraph [12.1] above).
[79] The College failed to disclose any basis for this relief in its founding affidavit. Mr
Matiso contended that the College require d such relief because it could not
allow its campuses to be without any security services. He was unable t o
substantiate this contention, with reference to any evidence produced by the
College.
[80] In the College’s replying affidavit it embarked upon a process of interpreting the
relief sought in prayer 4 of its notice of motion, and contended that it “is no
more than a (sic) consequential relief to cater for the period of the procurement
process”. It was submitted in the College’s heads of argument that the Court is
empowered by section 172(1)(b) of the Constitution to grant just and equitable
relief, after having set aside a decision taken in the exercise of a public power.8
[81] It is trite that under section 172(1)(b) of the Constitution, a court deciding a
constitutional matter has a wide remedial power to make “any order that is just
and equitable”.9 However, this discretion cannot be exercised in the air. If the
Court is to exercise its discretion to grant an equitable remedy under section
172(1)(b), there must be a basis to do so, and that basis must be gleaned from
the facts placed before the Court, or objective ly available facts.10 The College
made no attempt to place relevant facts before the Court in support of the relief
it seeks in this regard.
[82] A further difficulty is that Mr Matiso confirmed that the College persist ed in
seeking the relief as formulated in prayer 4 of its notice of motion. Th is relief is
contradictory to the relief sought in prayer 3 of the notice of motion, namely –
“Reviewing and setting aside the contract concluded between the applicant
and the third and fourth respondents’ (sic) pursuant to the award of the
tender.”
8 Par 16 of the heads of argument.
9 State Information Technology v Gigima Holdings 2018 (2) SA 23 (CC), par 53.
10 Gigima, supra, par 49.
[83] Moreover, the Court is left in the dark with regard to at least the following
important aspects: (a) what are the terms of the existing contract “concerning
payment for services rendered” that should “remain intact” ; and (b) for what
period should these provisions of the contract effectively remain extant?
[84] The “Service Level Agreement” entered into between the College, on the one
hand, and Mthidhla and Sniper, on the other, for the provision of security
services to the College , was attached to the College’s replying affidavit.
Clause 2.1 thereof provides as follows:
“The price for the service shall be as set out in the Security Pricing Schedule
(SPS) attached (Annexure ‘A’).”
[85] However, the document which was attached to the cont ract as annexure “A”, is
not a “Security Pricing Schedule”. It appears to be a document that related to
the scope of work s, that formed part of the tender documentation. It does not
deal with the prices for the rendering of security services. Mr Matiso conceded
that this was not the correct attachment to the service level agreement.
[86] I therefore conclude that no basis exists for granting the relief sought in prayer
4 of the notice of motion in the counter -application, as an equitable remedy in
terms of section 172(1)(b) of the Constitution. The College’s counter-application
for such relief should therefore be dismissed.
Costs
[87] The Applicants initiated these proceedings in order to obtain the review and
setting aside of the decision to award the tender to Mthidhla-Sniper. The
application was initially opposed by the College . A s a consequence , the
Applicants’ legal representatives was faced with the formidable task of perusing
and considering a voluminous rule 53 record, comprising more than 20 lever-
arch files, and the filing of a supplementary founding affidavit and an amended
notice of motion.
[88] It was only thereafter that the College withdrew its opposition to the application.
Although the College took the position in its founding affidavit in the counter -
application that it does not concede any of the grounds for review relied upon
by the Applicants, it effectively never challenged the basis upon which the
Applicants sought the setting aside and review of the impugned decisions.
[89] In my view, there is no reaso n t o depart from the general rule, namely that
costs should follow the event in respect of the main application. This rule
should only be departed from where there are good grounds for doing so. 11
None have been disclosed.
[90] With regard to the counter -application, it is apparent from the College’s
founding affidavit that it based the self-review of its decision to award the tender
to Mthidhla-Sniper, on the provisions of PAJA.12
[91] This cause of action was misconceived. The College exercised a public
function when it procured security services and awarded the tender to Mthidhla-
Sniper. As such, it could not use PAJA to review its own decision. PAJA is not
available to organs of state as a vehicle for self-review.13
[92] It is unnecessary, however, to make a finding in this regard, given the fact that
the parties are in agreement that the decision to award the tender to Mthidhla -
Sniper, should be reviewed and set aside.
[93] In my view, the main purpose of the counter-application was to obtain the relief
sought in prayer 4 o f the notice of motion, namely that the terms of the
College’s existing contract with Mthidhla-Sniper, with regard to the latter’s
remuneration for the provision of security services, should remain intact.
[94] The College was unsuccessful in obtaining such relief, and should therefore
11 Law of Costs, 3rd Edition, by A C Cilliers at page 2-16.
12 See paragraphs 29 and 35 of the College’s founding affidavit.
13 Gigima, supra, par 36 and 37.
pay the Applicants’ costs.
[95] In the result, I make the following order:
1. The decision s and recommendations made by the First Respondent’s Bid
Evaluation Committee on 3 October 2023 in respect of Tender No.
CCT042023, are reviewed and set aside.
2. The decision of the First Respondent’s College Principal to award Tender
No. CCT042023 to the Joint Venture between the Second Respondent and
the Third Respondent, is reviewed and set aside.
3. The First Respondent is directed to appoint the following committees –
(a) a bid specification committee;
(b) a bid evaluation committee; and
(c) a bid adjudication committee;
in accordance with its supply chain management policy, with a view to re -
advertising, adjudicating and awarding Tender No. CCT042023.
4. The First Respondent is directed to re -advertise Tender No. CCT042023 in
accordance with its supply chain management policy.
5. The application for the relief sought by the First Respondent in terms of
prayer 4 of its notice of motion in the counter-application, is dismissed.
6. The First Respondent shall pay the Applicants’ costs in respect of the main
and counter -applications. Costs are granted on Scale A in terms of
rule 67A(3)(a).
_________________
VIVIER, AJ
APPEARANCES
For the Applicants : Adv N Nyathi
Instructed by Mark Hess Attorneys
Cape Town
For the Respondents : Adv L Matiso
Instructed by Mukombo Attorneys
Cape Town