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2024
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[2024] ZALMPPHC 181
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Tubatse Security Services Pty Ltd v Mabotwane Security Services CC and Another (Leave to Appeal) (4291/2023) [2024] ZALMPPHC 181 (19 November 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: 19/11/2024
TUBATSE SECURITY
SERVICES PTY LTD
APPLICANT
And
MABOTWANE SECURITY
SERVICES CC
1
ST
RESPONDENT
SEKHUKHUNE DISTRICT
MUNICIPALITY
2
ND
RESPONDENT
In re:
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 (LEAVE TO
APPEAL)
MONENE AJ
[1]
This is an application for leave against a decision of this court
delivered on 20
August 2024 in which this court reviewed and set
aside a tender award to the current applicant and ordered the tender
process to
be started
de novo
. The application is opposed by
the current first respondent which had been the applicant in the
initial application and the second
respondent in
casu
, the
tender issuing municipality.
[2]
From the notice of application for leave to appeal and the heads of
argument filed
by the applicant, the grounds upon which this court’s
judgement was assailed and based on which it is submitted there are
reasonable prospects of another court finding differently were in
pith the following:
2.1 That this court ought
to have recused itself from hearing the application. This ground was
abandoned by the applicant at the
hearing of this application for
leave to appeal.
2.2 That this court
misapplied the test for exhaustion of internal remedies regard being
had to
section 7(2)(b)
and (c) of the
Promotion of Administrative
Justice Act No.3 of 2000
(“PAJA”).
2.3 That another court
would find that read both textually and contextually the bid
specification wording did not exclude an interpretation
that
permitted for one bidder to be awarded all four contracts in the four
clusters.
2.4 That there are
reasonable prospects of another court finding that the municipal
manager of the second respondent was empowered
to deviate from the
recommendations of the Bid Adjudication Committee as he indeed did in
this matter.
2.5 That this court
misdirected itself in the costs order it made.
[3]
The parameters within which leave to appeal contestations are to be
determined are
catered for in section 17 (1) (a) of the Superior
Courts Act No 10 of 2013 (“the Act”) provides as follows:
“
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that-
(a)
(i) the appeal would have a
reasonable prospect of success; or
(ii)
There is some other compelling
reason why the appeal should be heard, including conflicting
judgements on the matter under consideration;”
[4]
In
Ramakatsa and
Others v African National Congress and Another (724/2019)
[2021]
ZASCA 31(31 March 2021)
(“Ramakatsa”)
at para 10, the Supreme Court of Appeal held as
follows:
“
I
am mindful of the decisions at high court level debating whether the
use of the word ‘would’ as opposed to ‘could’
possibly mean that the threshold granting the appeal has been raised.
If a reasonable prospect of success is established, leave
to appeal
should be granted. Similarly, if there are some other compelling
reasons why the appeal should be heard, leave to appeal
should be
granted. The test of reasonable prospects of success postulates a
dispassionate decision based on the facts and the law
that a court of
appeal could reasonably arrive at a conclusion different to that of
the trial court. In other words, the appellants
in this matter need
to convince this court on proper grounds that they have prospects of
success on appeal. Those prospects of
success must not be remote, but
there must exist a reasonable chance of succeeding. A sound rational
basis for the conclusion that
there are prospects of success must be
shown to exist.”
[5]
Four Wheel Drive Accessory
Distributors CC v Rattan No
2019 (3) SA 451
(SCA) para 34 at 463
counsels us that a conclusion that there are
reasonable prospects of success must have a sound and rational basis.
Expanding on
this counsel for the first respondent, Mr Louw,
correctly submitted that the test is not whether there is a
possibility of another
court finding differently but whether there
are reasonable prospects that another court would find differently or
whether there
is some other compelling reason why the appeal should
be heard.
AD THE
MISSAPLICATION OF THE INTERNAL REMEDIES EXHAUSTION TEST
[6]
Apposite to this ground is the following finding by this court when
it dismissed the applicant
in casu’s
point in
limine
that the applicants in the main matter had not exhausted internal
remedies prior prosecuting the review application:
“
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.
”
[7]
Key to Mr Maphutha’s submissions on this score in moving the
leave to appeal application is that
exhaustion of internal remedies
is as per section 7(2) (b) and (c) of PAJA, coined in peremptory
terms and can only be deviated
from or exemption from compliance
therewith granted in exceptional circumstances upon application by
the party seeking not to exhaust
them. It is common cause that before
this court when it exempted failure to exhaust internal or condoned
same, there was no application.
[8]
In contesting this point both Mr Makoti and Mr
Louw, on behalf of the respondents to this application, argued
in
favour of the court’s finding and consequent order, pointing
out that the court’s finding while not expressly referring,
on
this score, to
Koyabe and
Others v Minister for Home Affairs and Others 2010(4) SA 327(CC)
which dealt with the rationale for exempting
failure to exhaust internal remedies, applied the principles thereof
to the tee.
[9]
Mr. Maphutha argued further that a key aspect of the court’s
reasoning in dismissing the failure to
exhaust internal remedies
point was the court’s reference to the Auditor-General’s
adverse findings a factor which
was, although referred to in the
papers, was not up for determination and the findings of which were
not remotely suggested to
be adverse on the applicant in these
proceedings. He was not challenged on this point, and I am unable to
fault him on it too.
[10] I do not
understand it to be available to a court hearing a leave to appeal to
agree with the respondents simply
because they are wont to heap
praises on a court as opposed to an applicant who wraps a court on
the knuckles for probable misapplications
of the law. What, in my
view, is needed from a court hearing a leave to appeal application is
a dispassionate relook at what the
court has decided oblivious of any
possible brown nosing or perceived attack on its judicial ego.
[11] I am inclined
to agree that there are reasonable prospects that another court would
find that the spirit and letter
of section 7(2) (b) and (c) of PAJA
needed to be upheld. Absent an application for exemption or
condonation, another court could
well find that the exhaustion of
internal remedies point out to have been upheld.
AD THE MEANING OF
THE BID SPECIFICATION TEXT ON WHO WAS TO BE APPOINTED PER CLUSTER
[12] The
terms of reference of the tender in question were couched in the
following terms:
“
6.2
Respondents are advised that this tender
will be awarded to four (04) preferred security services providers as
per the four(04)
clusters.
6.3 Respondents are
allowed to bid for all clusters if they wish”
[13]
Despite being referred to and addressed on
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA)
on the approach to
interpretation of texts by the applicant and it being submitted that
this court erred in its interpretation of
the above tender
specification text, I am not persuaded that another court would
reasonable find the intended meaning of the text
to have permitted
for a situation where only one bidder could be awarded for all four
clusters. As stated in the judgement, one
bidder counted four times
does not amount to four bidders at all.
[14] Accordingly,
I am unable to find for the applicants on this ground.
AD THE ACCOUNTING
OFFICER’S AUTHORITY AND/OR COMPETENCE TO DEVIATE FROM THE
RECOMMENDATIONS OF THE BID ADJUDICATION COMMITTEE.
[15] Heavy weather
was made by the applicant as to the meaning to be attached to clause
222 of the Municipality’s Supply
Chain Policy which reads as
follows:
“
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…
”
[16]
It was argued by the applicant that the municipal manager’s
deviation from the Bid Adjudication Committee
was informed and
empowered by this clause in the Supply Chain Policy and submitted
further that pursuant thereto the National treasury
had in fact gone
on to approve the deviation.
[17]
That, in short, premised the applicant’s contention that there
are reasonable prospects that another
court would find that this
court erred in finding that clause 222 found no application where the
Bid Evaluation Committee and the
Bid Adjudication Committee had, as
in casu, made similar recommendations.
[18] I
have had a relook at clauses 220 to 222 of the Supply Chain Policy
and found it to be curiously arranged
to a point of no absolute
clarity as to under what circumstances clause 222 finds application.
That alone, says to me that it is
reasonable that another court could
find that the municipal manager deviated as empowered by this clause,
that is, regardless of
what attitude the Auditor-General or Treasury
took when informed of the reasons for deviation by the municipal
manager.
[19]
In those premises I cannot justly say I am not persuaded by the
applicant on this ground.
AD THE COSTS ISSUE
[20] Rapping
me over the knuckles on my costs finding the applicant, while
acknowledging that costs lie primarily within
the discretion of the
court, submitted in the notice of application for leave to appeal
that this court erred in ordering costs
of counsel on scale C against
the applicant as third respondent in the main matter in circumstances
were such scale was neither
sought nor justified by any pleaded
facts.
[21] In
submissions in court the applicant’s counsel, Mr Maphutha
amplified the protest against, the costs order by
arguing further
that it was a misdirection to order costs against the applicant who
was the third respondent in circumstances where
the offensive conduct
which was reviewed and set aside was not conduct of the applicant but
that of the municipality. A costs order
under those circumstances
ought to have been directed against the municipality and not the
applicant which had not been an active
participant in the impugned
decision as it had not awarded the tender to itself.
[22] In opposing
this ground Mr Louw on behalf of the first respondent in this
application posited the following:
22.1 That the scale of
costs for counsel was discretionary and further that this court had
exercised that discretion judiciously.
22.2 That the applicant
had, in its notice of application for leave to appeal, not raised the
point about the only party being worthy
of being mulcted with costs
being the municipality and that therefore it was impermissible to
raise it only in argument.
[23] It remains
human not to like being told that one is wrong and this court also
being not extra-terrestrial, would also
not be immune from those
human tendencies. But, looking at the costs order I made I am unable
to say another court would not interfere
with it. That is so even if
the amplification of the ground of costs beyond the costs scale is
not considered for the reasons raised
in the objection by the first
respondent, an objection which, in the interests of justice, I do not
at any rate uphold.
[24] Accordingly,
I am inclined to grant leave to appeal on this ground of costs.
[25]
In the final analysis therefore, I am persuaded that leave to appeal
on the grounds of failure to exhaust internal remedies,
the powers of
the accounting officer to deviate and on the costs order ought to be
granted. That finding is premised on my conviction
that there are
reasonable prospects that another court would find differently on
those points. I have chosen to employ the word
“would” as
opposed to “could” and in line with the law as it stands
despite this court’s remarks
in the unreported matter of
Action
Tinyiko Ngoveni and Another v Premier Limpopo Province and 6 Others
(02/2022) Limpopo local Division, Thohoyandou [26 June
2024]
which suggested that perhaps what the legislature
meant by “would” was merely a stronger version of “could”
because I am persuaded that another court would find differently to
my findings on the issues reflected upon
supra
.
For completion’s sake those remarks were the following:
“
I
momentarily pause, digress a bit and note that the court in
Ramakatsa,
while
not per se answering the question of whether ‘would’
infers a more strenuous test than ‘could’, went
on to
itself employ the word ‘could’. I venture to state here,
albeit uninvited to go so far, that, it would in my
view not be
humanly possible nor permissible for a court seating as a court
determining a leave to appeal application to make a
finding on what a
court of appeal
would do
.
Such a finding would have some definitiveness which would not only be
prejudging the consequent appeal and thus conflating the
leave and
appeal stages but would, if the appeal subsequently fails,
disrespectfully suggest rather that the court granting the
leave was
in its injudicious soothsayer sighting of the future, some kind of
false prophet. Courts are, as we are taught, steeped
in the facts and
law realm of this planet and have no jurisdiction in the prophetic
spiritual other worldly. In my view therefore,
despite the employ of
the word “would” by the legislature in the Act, the
actual rational intended meaning remains
“could”, which
is not only a lesser attainable threshold but one judiciously and
rationally permissible. Perhaps that
is why the SCA in Ramakatsa did
not pronounce with any definiteness on the debate at “high
court level” on the could/would
interpretation.
”
[26] There is, in
my view, nothing exceptional militating for the appeal in this matter
to be heard by the Supreme Court
of Appeal. Counsel for the applicant
expressly sought for leave to be granted for hearing in the Full
Court of this division and
so shall it be ordered.
[27]
Resulting from all the above, the following order is made:
27.1 Leave to appeal to
the Full Court of this Division against the judgement and orders of
this court dated 20 August 2024 is granted.
27.2 The costs of this
application will be costs in the appeal.
MALOSE.S.
MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard on
:
11 November 2024
Judgement delivered
on
: 19 November 2024
For the
Applicant :
Adv. M R Maphutha
:
Instructed by Kutullo Kgafane Attorneys
:
Tel: 015 230 4000
:
Email: bafanantsoane@gmail.com
For the First
Respondent :
Adv. N G Louw
:
Instructed by Albert Hibbert Attorneys
:
Tel: - 012 346 4633
:
Email: albert@hibbertlaw.co.za
For the 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