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[2011] ZAWCHC 211
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F2 Waardeerders BK h/a Suid Kaap Waardeeders v Oudtshoorn Municipality and Another (6740/2011) [2011] ZAWCHC 211 (4 May 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
6740/2011
DATE
:
2011-05-04
In
the matter between:
F2
WAARDEERDERS BK
t/a
SUID-KAAP WAARDEERDERS
…....................................................
Applicant
and
OUDTSHOORN
MUNICIPALITY
…................................................
1
st
Respondent
BUY-LINE
TRADING 109 (PTY) LTD
t/a
M3 & ASSOCIATES
…............................................................
2
nd
Respondent
JUDGMENT
LE
GRANGE. J
:
This
is an application brought on an urgent basis by the Applicant against
the First Respondent, hereafter referred to as The Municipality,
to
furnish them with certain documentation. The Second Respondent abides
by the decision of this Court.
The
matter was argued on the 20
th
of
April 2011, and, pursuant to argument, I indicated to counsel that,
as a result of the Easter weekend and various subsequent
public
holidays, I will make my finding known today.
Before
granting the order, I wish to make the following remarks, and will
amplify them, if necessary.
The
Applicant, F2, was part of a bidding process for a tender with the
Municipality. On 13 December 2010 The Municipality informed
F2 that
the Second Respondent, which I will refer to as M3. was the
successful bidder. The subsequent events leading up to the
launch of
this application on the 28
th
of
March this year can be summarised as follows.
On
the 22
nd
of
December 2010, F2 lodged an appeal, or an objection, and raised,
inter
alia,
the
following grounds of appeal. Firstly, F2 is as qualified, if not
more, as the tenderer to whom the tender was awarded. Secondly,
M3,
who had been awarded the previous tender, had not carried out its
obligations in terms of the awarded contract. Thirdly,
The
Municipality's consultant who facilitated the tender process, was
neither neutral nor independent. Finally, F2's tender amount
is
significantly less than the price quoted by the successful tenderer.
In
the appeal document F2 also requested the reasons for The
Municipality's decision, including copies of the score cards used
in
the tender process, and a request that The Municipality not allow M3
to commence work in respect of the work covered by the
tender.
On
13 January 2011 The Municipality responded, and in which response
dealt with the various grounds of appeal raised by F2.
It
stated,
inter
alia,
that
it never assumed that F2 did not have the necessary qualifications
or experience, but that there were also other requirements
to adhere
to. The consultant appointed by The Municipality was never part of
the Evaluation or Adjudication Committee, which
only consisted of
municipal officials. The tender was for four years, and is not only
evaluated according to the general valuation,
or the face value of
the tender, but over the full term of the tender, as indicated in
the specifications. The tender was thus
considered on the total cost
effectiveness The Municipality concluded by stating that if it did
not hear from F2 in five days,
it would assume the matter to be
closed.
On
14 January 2011 a letter was received from F2 s attorneys,
indicating that F2 could not respond in five days, due to the
commitments of F2's members. On the 25 of January 2011 The
Municipality wrote a letter to F2 inviting them to a
"without
prejudice meeting"
on
Tuesday, 1
st
February
2011 to explain how the calculations for price were determined by
The Municipality in order to reach comparative quotes
and to
identify the preferred bidder. F2's attorneys received the letter,
per fax, on the 27
lh
of
January 2011. The Municipality expresses confidence that if F2 saw
the calculations and effort made by The Municipality it
would accept
its decision.
On
the 28
th
of
January 2011 F2's attorneys confirmed with the Municipality that the
meeting would take place on the 4
,h
of
February 2011, and requested The Municipality to make available
copies of M3's tender, as well as tender documents for the
previous
evaluation roll of M3, and sought permission to take these copies
and documents back to George to study.
On
the 1
st
of
February 2011, in a letter addressed to F2, The Municipality adopted
the stance that it would not make M3's tender available,
as it
constitutes the kind of information which is protected under section
42 of PAJA (Promotion of Administrative Justice Act,
3 of 2000). It
also reminded F2 that the whole intention of the meeting was to
"in
good faith"
explain
to F2 how comparative prices were determined, and that, during the
meeting, certain relevant information would be shown
to F2 on a
without-prejudice basis. The Municipality also stated that it was
concerned that F2 sought to delay the process with
its requests.
On
the said date, the meeting was held to discuss the appeal of F2
against The Municipality's decision regarding the tender. The
Municipality also indicated at such meeting, that the objection by
F2 could be considered by an independent and impartial person
not
directly involved in the supply chain management process.
On
the 17
lh
of
February 2011 the attorneys of F2 responded to The Municipality's
letter of the 1
SI
and
4
th
of
February, and denied that F2 sought to delay the implementation of
the tender and insisted they be given access to the tender
documents
of M3, which, allegedly, were necessary to prepare the case of F2.
The
Municipality replied on the 24
,h
of
February 2011, and reiterated its stance that it was precluded from
releasing commercially-privileged information, and emphasised
that
the offer extended to F2 was to inspect and to consider, on an
informal basis, the information which was considered by the
Bid
Evaluation Committee, and the Bid Adjudication Committee. Moreover,
it informed F2 that it had decided to refer the dispute,
in terms of
Regulation 15(5)
of the
Municipal Supply Chain Management
Regulations, to
the Provincial Treasury for resolution.
On
14
th
March
2011 F2's attorneys responded to The Municipality's letter of the
24
lh
of
February 2011, indicating that they were preparing papers to compel
The Municipality to provide the information set out in
the letter.
On the 28
th
of
March 2011 this application was launched and the documents requested
in the notice of motion are essentially the copies of
M3's tender
documents, as well as the documents relating to the tender, compiled
by the Bid Evaluation Committee and the Bid
Adjudication Committee
and the score cards.
It
is trite law that a party seeking to bring an application on the
basis of urgency must set forth explicitly the circumstances
which
he avers renders the matter urgent, and the reasons why he claims
that it could not be afforded substantial redress at
the hearing in
due course.
In
paragraph 35 to 35(3) of the Applicant's founding affidavit the
following is recorded - and I quote:
"Ek
voer aan dat die huidige aansoek dringend is, indien die volgende
feite in ag geneem word.
35.1.
Die
key task functions wat aangedui word op bladsy 32 van SDS1 toon
sperdatums wat reeds verstryk het. Met die aflegging van hierdie
verklaring is die enigste blyke van eerste respondent se houding dat
dit M3 opdrag gegee het om met die kontrak voort te gaan.
Dit het
hoegenaamd nie gereageer op applikant se versoek om sodanige opdrag
terug te hou totdat die dispuut tussen applikant
en eerste
respondent gefinaliseer is nie.
35.2.
Sonder die dokumentasie wat applikant van eerste respondent versoek,
is applikant nog in staat om die prosedure in terme
van Regulasie 50
van die
Municipal Supply Chain Management Regulations behoorlik
te
volg, nog om sy verdere regie tot hersiening, of die eis van
skadevergoeding betyds te oorweeg en uit te oefen.
35.3.
Die volg van die tydperk uiteengesit in die Promotion of
Administration of Justice Act, Wet 3 van 2000, sal beteken dat
M3
reeds soveel van die kontrak waarvoor die tender toegeken is,
afgehandel het, dat hersiening waarskynlik nie suksesvol sal
wees
nie."
These
reasons put forward by the Applicant are, in my view, manifestly
inadequate to justify the extraordinary urgency with which
this
application was brought. It is even more remarkable, considering the
somewhat resolute exchange of correspondence between
the parties
during the period, December 2010 and March 2011. and the fact that
the Applicant, through its attorneys, took approximately
two weeks
to respond to The Municipality's letters of 1 and 4 February 2011,
and about two and a half weeks to respond to The
Municipality's
letter of 24 February 2011. In fact, in paragraph 17 of the founding
affidavit, the following is recorded regarding
some of these delays
- and I quote;
"In
hierdie verband moet aangemerk word dat beide van applikant se lede
vir dae aaneen waardasies-verpligtinge in ander munisipaliteite
en
distrikte het, soms so ver as Strandfontein aan die Weskus. Ter
stawing, heg ek 'n opsomming hierby aan van daardie dae
f
van
Januahe 2011 tot Maart 2011, wat ek en die ander lid van applikant
uitstedig was, as SDS6, 'n totaal van 47 werksdae. Terwyl
ons
uitstedig is, is dit uiteraard nie moontlik om behoorlike aandag aan
aangeleenthede soos die huidige te gee nie. Marais self
is deei van
'n twee-man-praktyk, en hanteer dikwels sake op ander dorpe. Hierdie
twee gegewe maak dit dikwels moeilik om op kort
kennisgewing
volledige instruksies te neem van applikant."
In
considering these reasons advanced for urgency, the first relates to
the deadline dates for the key task functions, as set
out on page 32
of SDSL It is said that this shows that The Municipality must have
given M3 permission to proceed with the contract
envisaged by the
tender. These deadlines must have been known to the applicant since
the beginning of October 2010, when the
invitation to tender was
published. Moreover, The Municipality, from the correspondence,
repeatedly emphasised the need to resolve
the dispute expeditiously,
because of the need to adhere to the time frames for the municipal
valuations. These deadline dates
can, therefore, hardly justify the
application being brought on two days' notice to the First
Respondent, at the end of March
2011, and, furthermore, being
brought with such abbreviated time periods, with no explanation for
the preceding delay.
in
any event, The Municipality is on record as stating that M3 did
indeed start performing work in early February 2011. It has
not,
however, performed that work in terms of a formal, signed contract
between The Municipality and M3, as no such contract
has yet been
signed by The Municipality, given the current status of the dispute
raised by F2.
The
second reason for urgency proffered by the Applicant is that the
documentation is purportedly necessary in order for F2 to
properly
follow the procedures in terms of Regulation 50 of the Municipal
Supply Chain Regulations, and also to consider or exercise
its
further rights to bring a review or an action for damages.
The
Applicant has entirely failed to demonstrate, on these papers, why
it needs the documentation requested to properly follow
the
procedure in terms of Regulation 50, as it, as long ago as 22
December 2010, alleged there were serious irregularities in
the
tender process.
Moreover,
The Municipality referred the dispute, in any event, to the
Provincial Treasury on the 24
lh
of
February 2011, as it is entitled to do, in terms of Regulation
54(a), if a dispute is not resolved in 60 days. From the papers
filed of record, it is evident that the Applicant did not approach
the Provincial
Treasury
in this regard.
The
contention that the documents are thus needed as a matter of extreme
urgency for the purpose of participating in Regulation
50
proceedings, in terms of the Supply Chain Management Regulation, is,
in my view, contrived.
The
information now sought is also plainly not needed as a matter of
urgency for any possible damages action. Insofar as information
that
was genuinely necessary for any such claim to be formulated, the
information could be sought and obtained under PAIA (Promotion
of
Access to Information Act, 2 of 2000).
The
third explanation why the application is purportedly urgent, is that
adherence to the time periods provided for in the Promotion
of
Administration of Justice Act 3 of 2000 (PAJA) would mean that M3
would have already completed so much of the contract to
which the
tender related that a review would probably not be successful.
This
justification is, with respect, difficult to understand. Even if any
abbreviation of the time periods in PAJA would be required
in the
event of a review by F2, this can hardly provide a justification for
the manner in which this application for information
was brought.
Furthermore,
the manner in which the Applicant has proceeded with this matter
calls into question its seriousness about challenging
The
Municipality's decision on 13 December 2010 to award a tender to the
Second Respondent. A decision at issue was made on 13
December 2010,
and an appeal was lodged on 22 December 2010, and reasons were
requested. Reasons were furnished on 14 January
2011. The Applicant
has waited for more than three months to institute and set down the
present proceedings, not for any substantive
relief, but merely for
documentation. This demonstrates that the alleged urgency was
self-imposed by the Applicant
In
my view, the Applicant failed to provide proper and adequate reasons
for the application to be heard as a matter of extreme
urgency. It
follows that the application cannot succeed, due to lack of urgency,
and, in the result, the following order is made.
THE
MATTER IS STRUCK FROM THE ROLL. WITH COSTS
LE
GRANGE, J