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[2008] ZAEQC 2
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Manong Associates (Pty) Ltd v Eastern Cape Department of Road and Transport and Others (2/2008) [2008] ZAEQC 2; 2008 (6) SA 434 (EqC) (24 April 2008)

REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(Sitting as an Equality Court,
BHISHO)
Case No.
2/2008
DATE:24/04/2008
In the matter between
MANONG ASSOCIATES (PTY)
LTD
..........................................
Complainant
and
EASTERN CAPE DEPT OF ROADS AND
TRANSPORT
..............................................................................
First Respondent
THE NATIONAL
TREASURY
...................................................
Second
Respondent
HAWKINS HAWKINS OSBORN
…........................................
Third
Respondent
KWEZI V3
ENGINEERS
...........................................................
Fourth
Respondent
ILISO NINHAM
SHAND JOINT VENTURE
…......................
Fifth
Respondent
JUDGMENT
When a matter is determined in the
High Court under the provisions of the Equality Act 4 of 2000 the
High Court is exercising an
extended jurisdiction as a High Court,
not as a separately constituted ‘equality court’. It
retains its inherent and
constitutional power of review. The review
of administrative action may thus take place in the High Court
hearing a matter, both
under the provisions of the Equality Act and
other Constitutional provisions. Procurement policy that requires
experience and expertise
in road building is not unreasonable where
disadvantaged groups have had the opportunity to gain that experience
and expertise.
Froneman J.
Introduction to the issues
[1] This judgment
concerns matters brought before court under the provisions of the
Promotion of Equality and Prevention of Unfair
Discrimination Act
(‘the Equality Act’).
1
A person who institutes proceedings in terms of the Equality Act
based on an allegation that a provision of the Act has been
contravened
is referred to in the Act as a ‘complainant’.
2
The complainant in this matter is a commercial company whose
complaints relate to the allocation of tenders by the first
respondent
for the construction of a number of road works in the
province. It contends that the tender process is unfair under the
Equality
Act because it amounts to indirect discrimination against
previously disadvantaged persons. The unfair discrimination in the
process
is said to lie in the requirements that successful bidders
must have a history of at least seven years involvement in similar
projects,
must have completed at least five similar projects, and
that technical members of its staff must have a minimally prescribed
level
of engineering experience. These requirements, although
non-discriminatory on their face, are said to effectively exclude
previously
disadvantaged persons or groups, who did not have the
opportunity to gain such experience earlier, from entrance to the
public
roads works construction industry and thus amounts to
indirect, but still unfair, discrimination. In addition to these
grounds
the complainant also alleges that the procurement process is
flawed in that is insufficiently transparent in a number of respects;

not cost effective; contrary in some aspects to its enabling
legislation; and that the complainant’s disqualification at
an
early stage of the process was actuated by improper motives on the
part of officials of the first respondent resulting from
the
respondent’s earlier refusal to involve itself in corrupt
practices involving those officials.
[2] The complainant brought the
application as a matter of urgency, initially seeking relief in two
parts. The first part sought
temporary relief pending determination
of the relief sought in the main application. I gave judgment on the
application for temporary
relief earlier and apart from the question
of costs relating to those proceedings nothing further needs to be
said about that part
of the application. What remains for
determination is the final relief sought by the complainant.
[3] The complainant
delivered a formal notice of motion seeking (1) the review,
correction and setting aside of the decision to
disqualify from
further consideration its tender for the relevant road works; (2) the
review, correction and setting aside of the
award of the tenders to
the successful bidders;
3
(3) an order declaring the contracts resulting from the allocation of
tenders to be null and void; (4) orders declaring the procedure

followed in awarding the tenders to be inconsistent with section 217
of the Constitution and unfairly discriminatory under the
Equality
Act; and (5) a direction that the first and second respondents’
procurement procedures and practices should undergo
an ‘audit’
in a manner that the court must prescribe.
[4] The first and second respondents
oppose the relief sought on the basis, firstly, that this court does
not have the power or
competence to grant relief in the form of
administrative review; secondly, that the correct procedures under
the Equality Act have
not been followed; and, thirdly, that there is
no substance in the alleged complaints of unfair discrimination and
unlawfulness
in the procurement process. I will deal with the first
two together before turning to a more detailed examination of the
facts
and the substantive merit of the application. For the moment I
will simply draw attention to the fact that the complainant’s

grounds for the review relief it seeks are not simply restricted to
the provisions of the Equality Act, but includes reliance on
general
constitutional provisions which do not relate solely to equality.
Review jurisdiction
[5] The judicial
authority of the Republic is vested in the courts established in
terms of the Constitution.
4
These courts are the Constitutional Court,
5
the Supreme Court of Appeal,
6
the High Courts,
7
the Magistrates’ Courts
8
and any court established or recognized by an Act of Parliament,
including any court of a “status similar to either the High

Courts or the Magistrates’ Courts”.
9
Under the common law only the then Supreme Court had the inherent
power to review and set aside the exercise of public power of
other
branches of government under certain circumstances. But they had “to
claim space and push boundaries”
10
in order to do so. That is no longer the case. The Constitution has
defined the role of the courts in relation to the other arms
of
government.
11
By virtue of the separation of powers and the judicial authority
vested in the courts by the Constitution they now have an extended

power of review to control the exercise of public power
12
in accordance with constitutional principles. More specifically in
relation to public administrative action, the courts exercise
that
power of review in accordance with a person’s fundamental right
to just administrative action under section 33 of the
Constitution,
as given expression to in the Promotion of Administrative Justice Act
(“PAJA”).
13
The High Courts, the Magistrates Courts (in certain respects)
14
and any independent and impartial tribunal established by national
legislation for the purpose of judicially reviewing an administrative

action in terms of PAJA,
15
may judicially review administrative action in terms of the
provisions of section 6 of PAJA.
[6] Where does a High Court or
Magistrates’ Court functioning as an equality court for the
area of its jurisdiction fit into
the judicial system under the
Constitution? Section 16 of the Equality Act provides for every High
Court and certain Magistrates’
Courts to be “equality
courts for the area of their jurisdiction” and for judicial
officials to be allowed to act in
them only after undergoing training
courses under section 31 (4).
[7] There appears
to be three possibilities which would place these courts within the
judicial system with judicial authority under
the Constitution. The
first is that they remain High Courts or Magistrates’ Courts
constituted under section 166(c) and (d)
of the Constitution, but
with extended jurisdiction and powers in terms of the provision of
the Equality Act. The second is that
they may be courts of a status
similar to a High Court or Magistrates’ Court, established
under section 166(e) of the Constitution.
The third possibility is
that they may be other courts recognised or established in terms of
an Act of Parliament under section
166(e) of the Constitution, but
which do not have a status similar to the High Courts or the
Magistrates’ Courts.
16
[8] Another,
fourth, possibility exists, but not as a court falling within the
judicial system with judicial authority under the
Constitution.
Parliament may provide for an independent and impartial tribunal to
deal with equality issues, which may also possibly
be clothed with
authority under sections 1 and 6 of PAJA to have the power to review
administrative action under PAJA. The Constitution
does not prohibit
the establishment of these kinds of institutions and they may in
appropriate instances be used to afford people
the fundamental right
of access to justice to have legal disputes resolved by the
application of law under section 34 of the Constitution.
Generally
speaking, however, they would not have judicial authority under the
Constitution to determine constitutional matters.
17
[9] Examples of
each of these possibilities can be found in parliamentary
legislation. The High Court exercises admiralty jurisdiction
as a
High Court in terms of the provisions of the Admiralty Jurisdiction
Regulation Act.
18
That appears to fit the first category mentioned above. The Labour
Court and Competition Appeal Court are courts established as
courts
with a status similar to that of a High Court in terms of their
founding legislation.
19
The Land Claims Court is a court which has powers to the exclusion of
any court “contemplated in section 166(c),(d) or (e)
of the
Constitution”.
20
They are thus courts that fit in with the second category and, in the
case of the Land Claims Court, its structure also seems to
encompass
the third category. The Tax Courts,
21
Commissioners of Patents
22
and the Competition Tribunal
23
may fall within either the third or fourth category - it is not
necessary here to decide which one.
24
The Commission for Conciliation, Mediation and Arbitration
25
is a tribunal which falls into the fourth category of an independent,
impartial tribunal without judicial authority under the
Constitution.
26
[10] It is
apparent from the provisions of sections 16 and 31 of the Equality
Act that equality courts are not separate courts of
“a status
similar to either the High Courts or the Magistrates’ Courts”
in terms of section 166 (e) of the Constitution.
Unlike the explicit
provisions establishing the Labour Court, Competition Appeal Court
and Land Claims Court there is no explicit
attempt in the Equality
Act to establish a separate court in terms of the provisions of
section 166 (e) of the Constitution, nor
is there provision for the
separate appointment of judges and judicial officers in accordance
with the Constitution as there are
in those Acts. Judges of the High
Courts and courts of a similar status are appointed by the President
on the advice of the Judicial
Service Commission,
27
and other judicial officials are appointed in terms of national
legislation which must ensure that their appointment, promotion,

transfer, dismissal or disciplinary action against them must take
place without favour or prejudice.
28
Judges are appointed to serve in equality courts by the Judge
President of the particular High Court
29
and magistrates by designation in the Gazette by the Minister.
30
Judges are not appointed to serve in the equality courts by the
President on the advice of the Judicial Service Commission nor
are
magistrates appointed to serve there in terms of any specific
provisions ensuring their judicial independence under the
Constitution.
[11] The first and
second respondents’ contention that a High Court sitting as an
equality court for the area of its jurisdiction
in terms of section
16 (1) of the Equality Act does not have administrative review powers
is based on two grounds, said to be mutually
supportive of each
other. The first is that the manner of appointment or designation of
judges
31
who may hear matters under the Equality Act is an indication that
they determine matters under the Equality Act not as judges of
a
court with judicial authority under the Constitution, but as
officials presiding over tribunals without judicial authority under

the Constitution - that is, that they fall into the fourth category
referred to above. The second ground is that this conclusion
is
strengthened by the fact that review powers are not explicitly
included in the powers and functions granted to an equality court

under section 21 of the Equality Act.
[12] Section 16 (2)
of the Equality Act provides that only a judge or magistrate who has
completed a training course in terms of
the provisions of section 31
(4) may be designated to hear matters under the Act. Given the fact
that the Equality Act does not
purport to establish a separate court
in terms of the provisions of section 166 (e) of the Constitution and
that section 31(4)
envisages training courses “with a view to
building a dedicated and experienced pool of trained and specialised
presiding
officers, for purposes of presiding in court proceedings as
contemplated by this Act”, there may be some superficial
attraction
to the argument that what the legislature had in mind was
not a court with judicial authority and independence under the
Constitution,
but something else, a tribunal with specialised skills
to deal expeditiously with issues under the Equality Act and in
accordance
with “uniform norms, standards and procedures”.
32
In my view, however, this argument cannot hold.
[13] The judicial function exercised
by judges and magistrates under the Equality Act cannot be equated to
some specialised legal
skill such as that required of someone
determining, for example, a tax, patent, competition or labour
dispute. The achievement
of equality, together with the other values
mentioned in section 1 of the Constitution, including dignity and
freedom, is a fundamental
value of our Constitution. Achievement of
equality as a fundamental value of the society we aspire to, and the
interpretation and
application of the right to equality in terms of
section 9 of the Bill of Rights under the Constitution, are integral
features
of any adjudication on any given day in the courts
established under the Constitution. Judges and magistrates are bound
by their
judicial oath in terms of section 174 (8) of the
Constitution to uphold and protect the Constitution. They must give
expression
to the constitutional demand of equality in the
application of the law in the High Courts and Magistrates’
Courts every day.
Equality underlies all adjudication under the
Constitution, not only that in terms of the Equality Act.
[14] It is clear
from the provisions of the Equality Act that a court exercising its
function under the Equality Act does not do
so under any exclusive
jurisdiction to deal with the particular subject matter, nor does it
do so under any form of concurrent
jurisdiction with the High Court.
33
The fact that section 21 of the Equality Act does not specifically
provide for review powers is consistent with the view that
adjudication of equality disputes under the Equality Act falls under
the first category referred to in paragraph [8] above, namely
that it
is an instance of the High Court itself exercising equality
jurisdiction in terms of the Equality Act. When the High Court

exercises jurisdiction as a High Court under the Constitution it does
not need statutory review powers, it is already possessed
of them in
terms of the common law and by virtue of being a superior court with
judicial authority under the Constitution. The
provisions of the
Equality Act are not directed only against inequality in the private
sphere. Its provisions also bind the State
34
and neither the State nor any person may unfairly discriminate
against any person.
35
The Equality Act also places specific obligations on the State to
promote equality.
36
Much, if not most, of the conduct of State organs under these
provisions will amount to reviewable administrative action under
the
provisions of section 33 of the Constitution and that of PAJA. If the
intention was that an ‘equality court’ would
merely be an
independent and impartial tribunal with effective power to enforce
the breach of its provisions by administrative
review under PAJA, it
would have been necessary to include administrative review as part of
its powers and functions under section
21. The fact that this was not
done is in my judgment a clear indication that it was never intended
to be such a tribunal, but
that the equality jurisdiction in terms of
the Act would be exercised under High Court judicial authority, which
includes judicial
review.
[15] In
Minister
of Environmental Affairs and Tourism v George and others
(‘the
George
case’)
37
the Supreme Court of Appeal held that a matter heard under the
provisions of the Equality Act cannot be transferred to the High

Court as “another … court” under section 20 (3)
(a) of the Equality Act:
“
It is true that s 20 (3) (a)
refers to ‘another ... court’. But ‘court’
clearly cannot include a High Court when the equality court is itself
a High Court sitting as an equality court. It may include
a small
claims court or a magistrates’ court but it is not necessary
for us to decide that now. What is clear is that, in
these
circumstances, a High Court is not intended.”
[16] The outcome of
the
George
case
in the Supreme Court of Appeal lends support to the approach that
when the High Court sits as an ‘equality court for
the area of
its jurisdiction’ in terms of section 16 (1) (a) of the
Equality Act it does so as a High Court with judicial
authority under
the Constitution.
38
The jurisdiction it exercises when doing so is its own, as a High
Court. There is, in my respectful view, no separate ‘equality

court’ (either in the form of a court established under section
166(e) of the Constitution or as a tribunal without judicial

authority under the Constitution) with any separate jurisdiction of
its own. The High Court sitting as an ‘equality court’

sits as a High Court, retaining its original jurisdiction as such,
together with any expanded jurisdiction that may be conferred
upon it
in terms of the provisions of the Equality Act.
[17] I am aware
that in
George and others v Minister of
Environmental Affairs and Tourism
,
39
reference was made to ‘parallel proceedings’ in the High
Court and Equality Court, and that in the Supreme Court of
Appeal in
the
George
case
it was stated that at least some of the relief sought by the fishers
lay “solely within the jurisdiction of the equality
court”
40
and that “some of the relief the fishers seek can be
adjudicated only by the High Court”.
41
But in my respectful view these comments should be read in the
context of the issue raised in that matter, namely whether an
‘equality
court’ may refer a matter to the High Court
under section 20 (3) (a) of the Equality Act, and especially against
the background
of the outcome in relation to that issue, namely that
such a referral cannot be done because, essentially, an ‘equality
court’
is
a
High Court.
42
If read with that in mind these remarks simply emphasize that a High
Court sitting as an equality court within its area of jurisdiction

may have an extended jurisdiction conferred upon it by the provisions
of the Equality Act.
[18] Perhaps it
would be conducive to clarity to talk of the High Court exercising
‘equality court jurisdiction’ under
the Equality Act
rather than the ‘equality court’ having that
jurisdiction.
43
Use of the term ‘jurisdiction’ in that sense would denote
that the High Court has jurisdiction to determine a cause
of action
brought before it which is based on the provisions of the Equality
Act. If used in that sense it would mean that there
should be no
obstacle to single proceedings being brought in the High Court, based
on a cause of action under the provisions of
the Equality Act, as
well as on any other cause of action over which the High Court would
normally have jurisdiction. There would
then be no need for the use
of ‘parallel proceedings’. If I am correct in this view
the problem that arose in the
George
matter
might have been avoided altogether.
[19] Two possible
difficulties may be raised to this approach. The first is procedural,
namely that “[a]n integral part of
the Equality Act …is
the focus on the creation of a user-friendly Court environment where
proceedings are conducted along
inquisitorial lines, with an emphasis
on informality, participation and the speedy processing of matters”,
44
and that by allowing other causes of action to be brought in the same
proceedings the advantages of this process will be lost.
It is a
valid point, but not one that cannot be overcome in a practical
manner. If litigants choose to bring single proceedings
in the High
Court by relying on both a cause of action founded in the Equality
Act as well as another not founded on the Equality
Act, they may have
to accept that by doing so they will have to forego the advantages of
the more informal and speedy proceedings
under the provisions of the
Equality Act. If they do want to proceed under speedier and more
informal procedures they would need
to apply for relaxation of the
normal High Court rules, or for condonation for not complying with
them. The question of prejudice
to their opponents may then be an
important consideration, apart from other requirements, but in
principle such an obstacle may
be accommodated within existing High
Court rules.
[20] The present case is an example of
the converse situation. The first and second respondents object to
the fact that the complainant
has used all the trappings of a normal,
albeit urgent, application for review instead of the informal
procedure provided for under
the Equality Act. They argue that I
should decline to hear the matter because there has been no proper
inquiry held in terms of
the provisions of section 21 (1) of the
Equality Act. I do not consider there to be any material substance in
the argument. An
inquiry under the Equality Act may take many forms,
some informal, others less so. The directions I gave for the further
conduct
of the matter at the earlier hearing were formal in the sense
that they allowed for the delivery of sets of affidavits, but also

less formal in the sense that these papers had to be filed speedily
within expedited limits. The hearing before me proceeded in
the
formal manner used in ordinary High Court applications. I do not
consider the form of the hearing or the filing of papers preceding
it
as not being in compliance with the provisions of the Equality Act,
nor am I able to conceive in what manner the first and second

respondents may have been prejudiced by the form the proceedings
took.
[21] The second
difficulty relates to the earlier argument concerning the appointment
of judges
45
to preside in Equality Act matters, but now in a different form. If
the High Court exercises its own jurisdiction when it determines

matters under the Equality Act then, so the argument might run, there
is no constitutional or other justification for restricting
the
exercise of High Court equality jurisdiction only to those judges who
have completed a training course in terms of section
31 of the
Equality Act. I have considerable sympathy for such a view. It would
be ironic, regrettable and in my view unconstitutional
if the
provisions of the Equality Act indeed seek to make some judges ‘more
equal than others’.
46
It is also an impractical, inconvenient and illogical requirement.
47
But for present purposes I need not decide whether the provisions of
section 16 (2) of the Equality Act is unconstitutional or
not,
because whatever the outcome of such a challenge may be, it would not
affect the outcome in the present case. I am qualified
under the
present provisions of the Equality Act to preside in a matter arising
from the Equality Act. If it is found that the
provision is
constitutional nothing will change from the present situation. If the
particular provision in section 16 (2) is found
to be
unconstitutional it would not result in the whole of the Equality Act
becoming unconstitutional for that reason. The section
may be
declared unconstitutional or it may be read down to make it
constitutionally inoffensive so that all judges can sit in the
High
Court exercising equality jurisdiction. But none of that will render
the conclusion reached here, that the High Court exercises
its own
jurisdiction as a court with judicial authority under the
Constitution when it hears matters under the Equality Act, invalid.
48
Background facts
[22] The complainant is a national
company specialising in civil, structural and developmental
engineering with offices in Cape
Town, Johannesburg, Port Elizabeth,
East London and Mthatha. It has three black directors, all with civil
engineering qualifications
and experience in various parts of the
construction industry.
[23]As background to its present
complaint Mr. Manong, one of its directors, sketched the history of
its dealings with the first
respondent and the tender authorities in
this province since 2002, in the founding affidavit. Mr. Manong
alleged that in 2002 and
early in 2003 the complainant was approached
on more than one occasion by a Mr. Xoko, an official of the first
respondent, with
suggestions that the complainant should pay certain
amounts to him, Mr. Xoko, in order to facilitate the award of road
construction
tenders to the complainant. The complainant refused
these invitations to enter into a corrupt relationship with Mr.
Xoko..
[24] In May 2003 the first respondent
launched a roster system of appointing consultants to construction
projects. The aim of the
roster system was to ensure a fair and
equitable distribution of work with specific emphasis on affording
historically disadvantaged
firms and individuals preferential
treatment through accelerated appointments in order to assist them to
develop. Under the terms
of the roster system firms owned and
controlled by previously disadvantaged individuals would qualify for
more appointments under
the roster system than firms not so owned and
controlled, a result in keeping with the aim of preferential
treatment for previously
disadvantaged people.
[25] Since the implementation of the
roster system in 2003 the complainant alleges it has not received a
single appointment from
the first respondent. As a result of this
failure the complainant requested and held a meeting with the Member
of the Executive
Council (‘the MEC’) of the first
respondent in December 2004. The complainant alleges that this
intervention led to
the Auditor-General launching an investigation
which led to the uncovering of serious irregularities. Soon after
this the then
MEC was transferred and the matter was not pursued by
the incumbent MEC. In February 2005 the complainant became aware that
certain
consultants were appointed for road maintenance works and it
wrote a letter to the office of the MEC complaining about the manner

in which consultants were being appointed.
[26] In June 2006 the first respondent
advertised tenders for five road construction projects in the
province. On 26 July 2006 the
complainant brought an urgent
application for, in the first part, an order compelling the first
respondent to open the financial
proposals in public, and, in the
second part, seeking a direction for an inquiry under the provisions
of the Equality Act. The
urgent application was dismissed and the
complainant never proceeded with the relief sought in the second
part. When the complainant’s
technical proposal for those
contracts was disqualified on the basis that it did not obtain the
minimum number of points to be
considered further, it brought another
urgent application to interdict the award of the tenders pending
review of the process that
led to the complainant’s
disqualification from further participation in the process. This
urgent application was once again
dismissed, but the second part of
the application (for review) was postponed indefinitely. Complainant
sought leave to appeal against
the refusal of the urgent application,
which was refused, but an order for a directions hearing for the
review part of the application
was nevertheless made. A further
petition to the Supreme Court of Appeal for leave to appeal was also
refused, allegedly because
there was no application for condonation
for its late filing. On 13 June 2007 the review part of this second
application by the
complainant was heard. Judgment was handed down on
18 October 2007, after the complainant had complained to the Judicial
Service
Commission about lack of progress in the matter. The
application was dismissed on the ground that the equality court did
not have
review jurisdiction. Leave to appeal has been sought by the
complainant against that judgment, but the application for leave has

apparently not yet been heard.
The present application
[27] The present application arises
from an invitation for tenders made by the first respondent in July
2007 for the design and
construction of three different road
construction works. The complainant submitted a tender for all three
projects in August 2007,
but was disqualified from further
participation in the tender process for failing to score the minimum
number of points in its
technical proposal. This happened on 20
December 2007 but complainant alleges it only became aware of this on
23 January 2008.
In its founding papers the complainant attacked the
disqualification of the complainant’s technical proposals as
unlawful
in general terms on the basis that the procurement process
was unfair, inequitable, not transparent, uncompetitive and not
cost-effective;
also that it was unfairly discriminatory under the
Equality Act: and, lastly, that it was unreasonable and irrational
and thus
contrary to the provisions of section 33 of the
Constitution.
[28] The factual basis for this attack
on the alleged unlawfulness of the procurement policy in the founding
papers is the following:
- the requirements that a bidder
should have undertaken a minimum number of similar projects in the
previous seven years and that
it should have key personnel with
sufficient technical expertise and experience unfairly discriminates
against new entrants, who
will predominantly be previously
disadvantaged groups or persons;
- there is insufficient transparency
in the process in that the opening of the technical proposals of
bidders is not immediately
followed by the opening of their financial
proposals;
- the process is not cost effective
because of the separate consideration of the technical and financial
proposals;
- that the process contravenes
legislation which states that 90 points should be allocated for price
whilst the process only allocates
27 points for price; and
- that the complainant is being
deliberately targeted because of his previous encounters with
officials of the first respondent,
especially Mr. Xoko.
[29] The first respondent, in an
affidavit deposed to by the chief engineer (materials) in the roads,
planning and design section
of the first respondent, dealt
extensively with the factual allegations underlying the complainant’s
attack on the lawfulness
of the tender process. In reply the
complainant did not directly attempt to refute these, but in argument
a number of issues arising
from the record of the process (which only
became available after the initial hearing before me) were used in an
attempt to justify
the complainant’s case in this regard. I
must also add that extensive argument on this aspect was addressed to
me at the
earlier hearing.
[30] In summary, the defence to the
attack on the alleged unlawfulness of the procurement policy and its
application is the following.
The first respondent denies that the
complainant was ever approached by its officials in order to involve
it in corrupt activities,
or that it has been unfairly excluded from
the allocation of tenders in the past. It points to the fact that the
complainant has
done work to the value of millions of rands for the
respondent as proof of this. There has been no exclusion of the
complainant
for improper motives or purposes. The procurement
procedure changed from the roster system to the present system
because of a change
to the enabling legislation applicable to public
procurement. The roster system was designed to, and did, give
previously disadvantaged
groups or persons the opportunity to gain
practical experience in the road construction industry. The
requirements relating to
experience and technical expertise under the
present system have been built into the bid rules in order to ensure
that successful
bidders have the capacity to carry out the functions
set out in any specific tender. The projects at stake are
multi-million rand
projects. If the successful bidder does not have
the functional capacity to perform the work public money would be
squandered.
The roads that need to be built must be safe to use and
should have maximum durability. The intention is not to exclude new
entrants,
but rather to employ experienced firms from historically
disadvantaged groups. The complainant is one of those historically
disadvantaged
firms who could fulfil the requirements of practical
experience and technical expertise under the provisions of the
policy. In
the particular projects relating to this application,
however, a fair and objective analysis of the complainant’s
functional
proposals led to an assessment that the complainant did
not reach the required 75 points to be considered further. The
details
of the manner of assessment and scoring in relation to the
complainant’s bids were provided in the first respondent’s

papers. The initial assessment of the functional proposals, and
making those results known, before proceeding with the process
in
relation to the financial proposals of those who passed the
functional threshold was practical, cost effective and transparent.

The procurement procedure of the first respondent does not allocate
27 points for price as the complainant alleged. Mr. Xoko was
not
involved in either the bid evalution or bid award committees. The
recommendations of the bid evaluation committee were duly
and
properly considered by the bid award committee. After consideration
the tenders were then properly awarded and the awards made
public.
[31] I may
interpose here that when the complainant launched the application on
an urgent basis it was not yet aware who had been
awarded the
tenders. On obtaining this information and the record of the process
the complainant added another string to its bow,
namely that the new
information showed that a massive fraud had been committed. The basis
for this new ground was that in respect
of at least one of the
projects, the successful bidder’s initial bid document was for
about half the amount at which the
final award was granted to it and
that the changes to reflect the increased bid amount could only have
been made on the document
after it had been initially submitted. On
the face of it this did indeed look odd, but, at the second hearing
before me, Mr. Bloem,
who appeared with Mr. Sandi for the first and
second respondents, explained that there was a simple and innocuous
explanation for
this. The total value of the particular contract was
increased substantially after the initial tender documentation was
made available.
At a meeting, the minutes of which was recorded and
formed part of the record of the tender proceedings,
49
the increase in value was made known to all the bidders, a
representative of the complainant included. An opportunity was given

to all for an adjustment of their bids, and automatic adjustments
were also made for those who did not do so on their own and had

passed the functional part of the process. The documents in the
record bear this out. Consequently, in my view, there is no, or

insufficient, evidence to sustain this additional and alternative
complaint against the process.
[32] The complainant did not ask for
the matter to be referred to oral evidence on any specific aspect,
nor does my reading of the
record indicate any reason, readily
apparent from the review record, that throws any material doubt on
the version put up by the
first respondent about the procurement
process in respect of the works under consideration in this
application. That version appears
to refute the complainant’s
allegation of an unlawful and unfair process completely.
[33] On the version put before me by
the first respondent (which is the version I have to accept for the
determination of this matter)
there is no factual basis to sustain
interference by review because of improper motive or purpose. So too
in respect of the complaints
relating to transparency, cost
effectiveness and the correct points allocation under the policy.
What remains is the alleged indirect
discrimination flowing from the
requirements of experience and functional expertise. The test here is
whether these requirements
could be said to be reasonable given the
stated aim of the first respondent, in terms of the empowering
legislation, to advance
the empowerment of previously disadvantaged
groups and persons.
[34] “[T]he
broad goals of transformation can be achieved in a myriad of ways”,
remarked O’Regan J in
Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs and others
,
50
and on the particular facts of that case held that a policy that
favoured ‘internal’ transformation rather providing
for
new entrants to the particular part of the fishing industry passed
the test of reasonableness. On the facts before me the initial
roster
policy appears to have provided for the possibility of obtaining
practical experience in the field. The requirements of
practical
experience and functional expertise in the present procurement policy
are rationally connected to the unobjectionable
goals of providing
safe and durable roads to the public without wasting public money.
There is no indication before me that there
are no previously
disadvantaged groups or persons sufficiently experienced and
qualified to satisfy the functional requirements
in the procurement
policy. Indeed, the complainant itself appears to fit this profile in
general terms. I cannot hold that a reasonable
decision-maker could
not have reached the conclusion that the policy is fair and
reasonable.
51
[35] In the result I find that the
complainant has failed to advance sufficient grounds to justify the
relief sought in the notice
of motion.
Ancillary matters
[36] In its founding papers the
complainant saw fit to include correspondence between it, the Chief
Justice and the Judicial Service
Commission in relation to complaints
made by it about the conduct of the judges involved in the earlier
litigation referred to
in this judgment, as well as that of another
judge in a different division. When taxed about the relevance of this
Mr. Manong,
a director of the complainant who was allowed to
represent the complainant in the hearings before me, eventually
apologised for
its inclusion in the papers, saying that there was no
ulterior purpose in including the correspondence in the papers. I
accepted
his explanation and apology and hope that it does not happen
again. What other judges did or did not do in matters the complainant

had previously been involved in, and whether the complainant reported
their conduct to the JSC, are matters that are irrelevant
to the
issues that I had to decide in this application.
[37] As mentioned in the previous
paragraph I allowed Mr. Manong to represent the complainant in this
application. The regulations
issued under the Equality Act appear to
make provision for individuals to represent complainants who are not
able to do so adequately
for themselves. In the context of informal
and speedy proceedings where the aim is to make those proceedings
accessible and understandable
to litigants who may not be attuned to
legal proceedings there should not be a problem in allowing that kind
of representation.
But on reflection I do not think that it is
appropriate where the litigation involves a commercial company such
as the complainant,
and in proceedings where purely commercial
advantages are being sought in formal proceedings such as the
present. The fact that
I allowed Mr. Manong to represent the
complainant in the particular circumstances of this case should not
be regarded as a precedent
for allowing him to do so in further
proceedings of a similar nature.
[38] The matter is of sufficient
complexity and importance to justify the costs of two counsel.
Because of the history and urgency
of the matter I do not think the
complainant should be ordered to pay the costs of the two previous
hearings. The complainant did
not know initially when the tenders
would be awarded and who the successful bidders were.
[39] In the result the application is
dismissed with costs, such costs to include the costs of two counsel,
but to exclude the costs
relating to appearances on the two previous
days when the matter came before court.
J.C.Froneman
Judge of the High Court.
1
No 4 of 2000.
2
Section 1, definition of ‘complainant’.
3
They have since been joined as parties to the proceedings.
4
Sections 165 and 166 of the Constitution.
5
Section 166(a).
6
Section 166(b).
7
Section 166(c).
8
Section 166(d).
9
Section 166(e).
10
Pharmaceutical Manufacturers Association of SA
and another: In Re Ex Parte President of Republic of South Africa
and others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000
(3) BCLR 241
(CC), para. [45].
11
Id.
12
And private power too, but the limits of those
powers of review are not in issue in this case.
13
Act
3 of 2000.
14
Section 9A of PAJA.
15
Definition of “tribunal” in section 1
of PAJA.
16
Section 166(e) provides for “any other court
established or recognised in terms of an Act of Parliament,
including any court of a status similar to either the High Courts
or the Magistrates’ Courts
”. The implication appears
to be that Parliament may create courts that do not have the status
of either High Courts or
Magistrates’ Courts.
17
Sections 169 and 170 of the Constitution.
18
No. 105 of 1983, section 2.
19
Section 151(2)
of the
Labour Relations Act 66 of
1995
;
section 36(1)(a)
of the
Competition Act 89 of 1998
.
20
Section 22(1)
of the
Restitution of Land Rights Act 22 of 1994
.
21
Section 83(3) of the Income Tax Act 58 of 1962.
22
Section 8
of the
Patents Act 57 of 1978
.
23
Section 26 of the Competititon Act, note 19
above.
24
It is not clear to me what the position or status
in the constitutional judicial system is of “any other court”
established
under section 166(e) which does not have a status
similar to either the High Courts or the Magistrates’ Courts.
25
Section 112
of the
Labour Relations Act, note 19
above
.
26
Sidumo and another v Rustenburg Platinum Mines
Ltd and others
[2007] ZACC 22
;
2008 (2) SA 24
(CC);
2008 (2) BCLR 158
(CC), paras. [82] to [88]
27
Section 174 (6) of the Constitution.
28
Section 174 (7) of the Constitution.
29
Section 16 (1) (b).
30
Section 16 (1) (c).
31
The argument was restricted to judges, but an analogous
argument about the competence of magistrates may also be made.
32
Section 31 (4) (b) of the Equality Act.
33
In this regard the Equality Act’s provisions differ
from those of, for example,
section 157
(1) and (2) of the
Labour
Relations Act, note 19 above
, and
section 22
(1) of the
Restitution
of Land Rights Act, note 20 above
, where exclusive and concurrent
jurisdiction in respect of constitutional matters are conferred on
the Labour Court and the Land
Claims Court respectively.
34
Section 5 (1) of the Equality Act.
35
Section 6.
36
Sections 24, 25 and 26.
37
2007 (3) SA 62
(SCA).
38
Magistrates’ Courts sitting as equality courts
for administrative regions in terms of section 16 (1) (c) of the
Equality
Act do so, similarly, as Magistrates’ Courts with
judicial authority under the Constitution. Whether they would also
have
review powers would depend on the designation process in terms
of section 9A of PAJA.
39
2005 (6) SA 297
(EqC), para. [27].
40
The
George
case, note 24 above, para. [12].
41
Id
., para. [13].
42
It is not clear to what extent the question of
jurisdiction and remedies under the equality and other provisions of
the Constitution,
compared to those under the Equality Act itself,
were raised and debated in the
George
matter, and the issue does not appear
to have been central to the ultimate issue at stake. There appears
to me to be room for
an argument that a High Court may be able, in
an equality matter, to achieve all that can be achieved under the
Equality Act,
solely in reliance on the Constitution, by virtue of
the provisions of, in particular, sections 38, 172 and 173 of the
Constitution.
43
In a similar manner to the High Courts exercising ‘admiralty
jurisdiction’ under section of the Admiralty Jurisdiction

Regulation Act, note 18 above.
44
Per N C Erasmus J in the High Court
George
case, note
39 above, para. [12].
45
The appointment of magistrates will fall under the same
argument.
46
“All animals are equal but some animals are more equal than
others”, in ch. 10 of
Animal Farm
,
by George Orwell.
47
Only one such training course has been offered
for Eastern Cape judges. One of the presenters of the course I
attended was Professor
Plasket, then an academic at Rhodes
University. He is now a judicial colleague, but has not yet attended
the training course
which he earlier taught us in. He may thus not
sit in matters of first instance under the Equality Act. By some
accident another
colleague, one of the most senior judges in the
Eastern Cape, could not attend the training course. He, too, may not
sit in a
matter of first instance under the Equality Act. But both
of them may sit as judges of appeal in appeals under the provisions
of the Equality Act, and all judges must interpret and apply the
constitutional demands to achieve equality in other cases that
come
before them in the High Court. We have all also attended ‘social
context’ judicial education as judges of the
High Court that
differed little from the ‘equality training’.
48
It will be apparent from the reasoning in this
judgment that I disagree with the finding of Pillay J in an earlier
matter of
Manong & Associates v
Dept of Transport, EC and another
,
case no. 928/06 (Bhisho), that the High Court sitting as an equality
court does not have review jurisdiction. The fundamental

disagreement between us appears to me to lie, with respect, in
whether the ‘equality court’ does have a separate

existence from the High Court or not. I consider that difference of
opinion of a sufficient degree to allow me not to follow
his
judgment. I do not think my views are inconsistent with those
expressed by Moosa J in
Manong &
Associates
v
City of Cape Town and others
, case no.
2/2005 (CPD), except that this judgment goes beyond the narrower
point raised in that matter.
49
Not part of the court record, though, because a substantial
part of the very voluminous record of the entire tender process was

physically available at court on the day of the second hearing
before me but, by agreement between the parties, was not included
in
the court record.
50
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (70 BCLR 687
(CC), at para. [35].
51
Id
., at para.
[44].