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[2015] ZAWCHC 82
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Traffic Management Technologies (Pty) Ltd v Tlokwe Municipality and Another (6628/2015) [2015] ZAWCHC 82 (28 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NUMBER: 6628/2015
DATE:
28 APRIL 2015
In
the matter between:
TRAFFIC
MANAGEMENT TECHNOLOGIES (PTY)
LTD
...............................................
Applicant
And
TLOKWE
MUNICIPALITY
..........................................................................................
1st
Respondent
TOTAL
CLIENT SERVICES (PTY)
LTD
...................................................................
2nd
Respondent
J
U D G M E N T
RILEY,
AJ:
On
24 April 2015 I heard this application on an urgent basis. The
relief sought by the applicant is in two parts. In terms of
Part A
applicants seeks an urgent review:
(1)
Declaring first respondent’s refusal to consider the
applicant’s internal appeal lodged in terms of section 62 of
the Local Government Municipal Systems Act 32 of 2000 (“the
Systems Act”) against the rejection of its bid for tender
29/2013: A Law Enforcement Administration Support System and the
Lease of Camera Law Enforcement Equipment to be unlawful and invalid;
(2)
Directing the first respondent to provide the applicant, within 5
days of this order, with reasons and the record of the decision
to
reject its bid, including all bids received for the tender and all
correspondence, reports, memoranda, minutes of meetings,
documents,
evidence, transcripts of recorded proceedings and other information
relevant to the decision;
(3)
Directing the first respondent to permit applicant to supplement its
internal appeal within 15 days after receiving the documents
listed
in paragraph 2 above.
(4)
Directing the first respondent to notify the applicant and second
respondent of the outcome of the internal appeal process within
2
days after the determination thereof.
In
addition to the relief sought herein before, an Order:
(1)
Declaring that the Service Level Agreement (“the SLA”)
concluded between first respondent and applicant on 23 February
2015
expires on 24 August 2015.
(2)
Declaring the first respondent to be in breach of the SLA concluded
between the first respondent and applicant by terminating
the SLA
with effect from 1 May 2015.
(3)
Directing that the applicant is entitled to perform the services
required in terms of the tender and be remunerated therefore
in terms
of the SLA until 24 August 2015.
Pending
the determination of the internal appeal herein before referred to,
or the expiry of the SLA on 24 August 2015, or the final
determination of the review instituted in terms of Part B, whichever
is the later date –
(1)
Interdicting and restraining the first and second respondents from
implementing the decision by the first respondent to award
the tender
to the second respondent.
(2)
Interdicting and restraining the first and second respondents from
implementing any contracts or agreements concluded between
the first
and second respondents pursuant to the award of the tender.
The
applicant, Traffic Management Technologies (Pty) Ltd (“TMT”)
is a provider of traffic management services which
includes the
monitoring, capturing and processing of traffic violations on behalf
of municipalities. It does so by using front
office equipment and
back office software. The former refers to hardware such as cameras
and other devices used to measure the
speed at which vehicles travel
and the latter equipment refers to software used to process fines in
cooperation with the relevant
municipalities and prosecuting
authorities. It is common practice that municipalities outsource
their traffic management services
to a private service provider such
as the applicant to enforce traffic laws and to assist the
municipality with the processing
and capturing of data in order to
collect revenue on the basis of the issued fines.
Since
there is no evidence on the papers that the background facts as set
out by Dr Nomathemba Emily Blaai-Mokgethi (“Mokgethi”)
in
the first respondent’s answering affidavit is demonstrably and
clearly unworthy of credence, I shall for the purposes
of the
determination of this application accept the factual account of
Mokgethi as correct. Accordingly, prior to the applicant
providing
services to the municipality there had been another service provider,
Standing Ovation (Pty) Ltd, which had a contract
with the
municipality for the provision of these services.
The
contract between the first respondent and Standing Ovation was on a
month to month basis. Standing Ovation was leasing the
systems, to
provide the services, from another entity known as Servitas (Pty)
Ltd. It then transpired that Servitas sold to the
applicant the very
same system that Standing Ovation was using to supply the services to
the municipality. A dispute arose between
applicant and Standing
Ovation in terms of which the applicant alleged that Standing Ovation
owes it R1 187 294,97. The applicant
withdrew the system from
Standing Ovation and in fact began the process of liquidating that
company as a result of which Standing
Ovation could no longer provide
the service required by the municipality.
It
was suggested that Standing Ovation should cede its contract with the
municipality to applicant but this did not come to fruition.
I am
satisfied that applicant was well aware that the agreement between
the municipality and Standing Ovation was on a month to
month basis.
By 27 August 2014 applicant summarily terminated the system,
resulting in the decision by first respondent to enter
into a short
and fixed term contract with the applicant.
According
to Mokgethi the applicant had manipulated its ownership of the system
to entrench its position as sole service provider
of the services
desperately required by the first respondent. The first respondent
then decided that since applicant has procured
the system which
contains the data of the municipality and whilst the first respondent
is in the process of procuring a service
provider for the services,
it should enter into a fixed term agreement (i.e. on a six month
basis) with applicant for provision
the services. It is clear that
this was only to be an interim measure and in accordance with the
short term procurement requirements
applicable to municipalities.
According
to the appointment letter dated 30 October 2014, the first respondent
made an offer to applicant to provide these services
or a period of 6
months, commencing on 1 November 2014. I deem it necessary to refer
to the essential terms of the letter of appointment
headed
“Contractual Appointment of TMT Services for Law Enforcement:
1.
This letter serves to inform you that Tlokwe City Council accepts
your services on a contractual appointment not exceeding a
period of
six months to render back office support for law enforcement…
2.
Your appointment will be subject to the conditions and specifications
stipulated in the contract which will serve as legal document
between
Tlokwe Council and your company.
3.
Note: This letter of appointment is provisional and is based on
performance and outputs meeting, the specifications and time-frames
stated in the document, failing which the City Council reserves the
right to terminate the appointment.
4.
Payments will be done strictly according to the Council’s
Expenditure Management Policy, therefore you are required, if
not
registered, to register your company on the municipalities’
database should you accept the contract.
6.
You are hereby requested to commence with this service by 1 November
2014 should you accept the offer and are requested to confirm
in
writing that you will accept the appointment with the conditions
stipulated in this correspondence, which acceptance will constitute
an agreement.”
It
is common cause and not in dispute that the specific terms of the SLA
took some time to finalise and was signed off much later
after the
applicant commenced performing the services as per the appointment
letter on 1 November 2014. It is further common
cause that the
parties had weekly meetings, attended by the applicant and first
respondent’s representatives, to discuss
inter alia the
implementation of the project, operational requirements and to
finalise the terms in SLA.
On
4 February 2015 applicant forwarded a draft service level agreement
to the first respondent. It suffices to say that first respondent
was concerned about certain of the proposed clauses, namely Clause
1.5; Schedule 4 and Clause 10.4. It is unnecessary to repeat
the
provisions except to say that the effect thereof according to first
respondent was that –
1.
First respondent waived its right to rely on the contra proferentem
rule;
2.
The applicant sought to secure a 3 year contract with first
respondent, unless first respondent gave notice of termination, in
terms of clause 10.4 which applicant must have received, in order for
the notice to comply with the contract;
3.
The notice period for termination of the contract was extended for a
period of two months.
The
first respondent carefully considered the draft agreement and it is
common cause that it changed the agreement, i.e. the SLA;
to give
effect to its intention as set out in the letter of appointment so
that the agreement between the parties would endure
for six months
only from 1 November 2014. The draft agreement was specifically
amended to include reference to the words, “as
per appointment
letter”.
Mokgethi
states that the SLA signed by the parties in February 2015 must
therefore be read together with the October 2014 appointment
letter
which contemplated that the SLA would be entered into between the
parties to record the conditions and specifications (i.e.
the nuts
and bolts) which regulate the provision of the services by applicant
to first respondent. According to her it was never
the intention of
the first respondent that the agreement was to commence on 23
February 2015 and run until August 2015.
The
applicant submitted its bid on 24 October 2014 and was unsuccessful
and the second respondent, Total Client Services Limited
(“TCS”),
was appointed as the preferred service provider.
On
4 February 2015 first respondent informed the applicant by way of a
letter which was also sent by telefax that –
“…
your
bid considered in accordance with the Municipal Supply Chain
Regulations and applicable laws was unsuccessful.
The
municipality further informs you that should you wish to lodge an
appeal against its decision, do so with 14 days of receipt
of this
correspondence as per the provisions of the Municipal Finance
Management Act 56 of 2003 citing reasons for such appeal.”
On
the same day first respondent notified the applicant in writing that
–
“
Your
six months contract obligation with Tlokwe City Council will be
ending by 30 April 2015. We further express our gratitude
in terms
of the service you have rendered to the municipality thus far, hoping
to have the same working relationship with you in
the future.”
On
the evidence it is clear that further correspondence was exchanged
between applicant and first respondent and their respective
attorneys
in relation to certain conduct of first respondent which the
applicant averred was in breach of the Promotion of Administrative
Justice Act 3 of 2000 (“PAJA”). First respondent however
adopted an intractable stance. Applicant also made several
attempts
to negotiate a resolution of the dispute between the parties which
was unsuccessful and this ultimately forced it to approach
this court
for relief in this urgent application.
According
to the applicant the decision by first respondent to award the tender
to second respondent falls to be set aside on the
following grounds:
(1)
Section 5 of PAJA requires that reasons for administrative action be
given. Despite applicants requests no such reasons have
been
furnished;
(2)
In terms of section 6(2)(c) the actions of the first respondent were
substantially and procedurally unfair.
(3)
The first respondent failed to take into account relevant
considerations in terms of section 6(2)(e)(iii) of PAJA and took into
consideration irrelevant facts.
(4)
The first respondent also acted arbitrarily or capriciously.
(5)
The decision falls foul of section 6(2)(f)(ii) of PAJA because it was
not rationally connected to the purpose for which it was
taken, the
purpose of the empowering provision calling for the tender and the
information before the first respondent and the reasons
given by the
first respondent.
(6)
The decision by first respondent is a decision which is so
unreasonable that no decision maker could have reached the conclusion
that the first respondent did on the facts before it and as such
falls foul of section 6(2)(h) of PAJA.
In
response to applicants’ averments that the first respondent’s
conduct falls foul of the provisions of PAJA the first
respondent in
answer denied that the decision to award the tender to second
respondent is reviewable and liable to be set aside.
According to
first respondent, the applicant has not set out any particularity and
or the basis for challenging the decision,
save to repeat the
sections of PAJA which it believes are applicable in its challenge.
First respondent invited the applicant
to provide particularity and
substance to its challenge.
In
reply applicant averred that it had set out the grounds in its
founding affidavit sufficiently and that in any event it would
only
be in a position to file a supplementary founding affidavit and
amended notice of motion in terms of Rule 53 once it has received
the
record.
I
agree with Mr Ackerman for the applicant that the issue whether or
not applicant had filed its appeal in time or at all is moot
as first
respondent has made it clear that it is not prepared to provide
reasons and that applicant must resort to the provisions
of the
Promotion of Access to Information Act. He submitted that applicant
is entitled to the information requested for the purposes
of an
internal appeal, that since the appeal process is part of the
procurement process and applicants’ right to an equitable,
transparent, competitive and cost effective procurement process in
terms of the Constitution and relevant Legislation.
In
his view sections 5 and 6 of PAJA require decision makers to give
reasons for their decisions, to act fairly, both procedurally,
not
arbitrarily and or capriciously, not to take decisions which are
unreasonable and not to take decisions which are so unreasonable
that
no reasonable decision maker could have reached the conclusion on the
facts. He contended further that applicant’s
price was more
competitive than that of second respondent and if there are other
reasons why second respondent, despite being more
expensive than
applicant was awarded the tender, the first respondent has not
provided the reasons despite applicant’s request.
Accordingly
he argued that applicant was entitled to the review relief as set out
in Part B of the notice of motion. Mr Ackerman
contended further
that in terms of the SLA the commencement date of the contract is
determined by the commencement date which is
the date of final
signature, in their words, 23 February 2015. He contended that
applicant therefore had a clear right in terms
of the SLA to continue
to render the service until 24 August 2015.
In
his view the injury to applicant is real in terms of lost income and
should the relief not be granted, second respondent will
soon
commence performing works and entrenching its position. He submitted
further that applicant has no alternative remedy available
to it but
to interdict the first respondent.
On
a consideration of the papers it seems that the application was
initially brought on an urgent basis to:
(1)
expedite applicants’ internal appeal;
(2)
to obtain reasons and records;
(3)
to enforce the SLA in the terms understood and contended by
applicant; and
(4)
in the interim to interdict the implementation of the decision to
award the tender to second respondent, or any implementation
of
contracts pursuant to that award.
I
am satisfied that the first prayer sought by the applicant, together
with the fact that the first complaint by the applicant on
11 March
2015 to the municipality was to appeal the decision not to award the
tender, was the real basis for the urgent application.
In its reply
and during argument by Mr Ackerman it is clear that there is no
longer mention of the award of the tender being an
infringement of
the right to a fair and equitable procurement process as set out in
section 217 of the Constitution.
During
argument Mr Ackerman also agreed that the effect of prayer 4 is for
final relief, pending the review relief sought in Part
B in terms of
Rule 53 the wording “whichever is the later date” must be
accepted to mean that the SLA will have to
run its course and
consequently the effect of an order would be for final relief.
The
main focus of the relief sought by the applicant is the enforcement
of the SLA. The question that must therefore be answered
is whether
the applicant has a contractual right to remain the incumbent in its
current post for 6 months ending 24 August 2015
in terms of the SLA.
It
is trite law that where the relief prayed for by the applicant (as is
the present matter) in the notice of motion is final in
nature, the
applicant has to establish a clear right. Thus the applicant must
establish that its contract with the first respondent
will remain in
effect until 24 August 2015. It is further accepted law that a final
interdict is one which unconditionally and
permanently prohibits the
wrongful conduct of the respondent. A Court may grant a final
interdict in motion proceedings if the
facts in issue are not in
dispute, otherwise action must be instituted.
Thus
the applicant must prove on a balance of probabilities that it has a
clear right, an actual or threatened invasion of its right,
and the
absence of a suitable remedy.
Mr
Manentsa who appeared on behalf of the first respondent contended
that:
(1)
the allegation that the service level agreement would commence and
run for a period of 6 months is premised on the erroneous
and self
serving interpretation of the agreement by the applicant;
(2)
that it was clear that the SLA must be read together with the
appointment letter and that on a proper interpretation of the
SLA the
duration of the agreement is from 01/11/2014 to 30/04/2015;
(3)
that the first respondent has not breached the agreement, that the
applicant has failed to establish such a clear right and
can
accordingly not succeed in having the agreement declared to expire in
August 2015;
(4)
that in any event the applicant is not left without any recourse. It
can have a claim for compensation against the first respondent.
In
my view the provisions of the SLA must be interpreted in accordance
with the established principles of interpretation. See Natal
Joint
Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA)
at para 18, Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun
Transport (Edms) Bpk
2014 (2) SA 494
(SCA), para 12. According to
the SCA it is necessary in interpreting an agreement or document to
bear in mind that:
“
whilst
the starting point remains the words of the document, which are the
only relevant medium through which the parties have expressed
their
contractual intentions, the process of interpretation does not stop
at a perceived literal meaning of those words, but considers
them in
the light of all relevant and admissible context including the
circumstances in which the document came into being. The
former
distinction between permissible background and surrounding
circumstances, never clear, has fallen away. Interpretation
is no
longer a process that occurs in stages but is ‘essentially one
unitary exercise.’ It is further clear that the
context of the
provision under consideration must be determined by both the internal
context namely the language, words, grammar
and syntax of both the
provision in question and the document as a whole, and also by the
external context provided by the factual
matrix in which the document
finds its setting, which includes both the background and surrounding
circumstances.”
Considering
the principles outlined by the SCA (including the the principles laid
down in the unreported judgment of Kilburn Tuning
Fork (Pty) Ltd
[2015] ZASC53 (delivered on 29 March 2015) and applying them to the
present matter then it is clear that:
(1)
The appointment letter must be read together with the SLA.
(2)
The first respondent only intended the SLA to be in place for a
period of 6 months.
(3)
That it clearly intended to put the services that applicant was to
perform out to tender.
(4)
That its intention was that the applicant commences its services on
01/11/2014 in terms of the appointment letter.
(5)
That applicant did in fact commence performing its services on
01/11/2014 and gave effect to what both parties intended.
(6)
That applicant commenced invoicing the first respondent in terms of
the letter of appointment for services rendered.
(7)
That the SLA contained the clauses which were to regulate the
conditions and specifications of the services performed by the
applicant to first respondent.
(8)
That the inclusion of the words in the final SLA which was signed by
the applicant “as per appointment letter” makes
it clear
that the agreement was only of temporary nature and certainly not
intended to be extended beyond 30 April 2015.
I
pause to mention here that the fact that first respondent had removed
what it regarded as the offensive clauses, which was contrary
to the
letter of appointment and the fact that applicant signed the SLA
after the amendments were made by first respondent is further
evidence that the parties were in agreement on the terms of the SLA
as well as the period of the agreement.
It
must therefore be so that the SLA and the appointment letter must be
interpreted to mean that the agreement between the parties
comes to
an end on 30 April 2015.
Accordingly
I am not persuaded that applicant has made out a case on a balance of
probabilities that it has a clear right based
on its assertions that
the SLA extends until 24 August 2015. In the result the application
falls to be dismissed on this basis.
There
is a further issue that requires to be dealt with. This relates to
whether or not this court has jurisdiction to hear this
application.
It
does not appear to be in dispute that the conduct complained of by
the applicant in respect of the first respondent as aforesaid,
and
which forms the subject matter of the review proceedings, constitute
administrative action and that accordingly the provisions
of PAJA
apply. An important issue to consider is whether or not this Court
is in any event justified to hear this matter. In
its founding
affidavit applicant avers that this Court has jurisdiction by virtue
of the fact that in terms of the PAJA and particularly
the definition
of Court in section 1 of PAJA, the adverse effect of the first
respondent’s action under review will be experienced
in the
area of jurisdiction of this Court.
No
other ground to found jurisdiction is advanced. Apart from the
description of the applicant company, no information is provided
about the applicant’s domicile. Both Mr Manentsa on behalf of
first respondent; and Adv Jacobs (who was assisted by Adv
Coetzee),
on behalf of the second respondent, contended strongly that this was
fatal to applicant’s case and that applicant
had failed to make
out a case that this Court had jurisdiction to entertain this
application.
In
the present application the second respondent specifically locked
horns with the applicant on the issue of jurisdiction and launched
a
wide range attack on why, in its view, the applicants’
application should be dismissed due to lack of jurisdiction.
Apart
from denying the averments made by the second respondent that this
Court lacks jurisdiction to entertain the application and
averring
that the issue of jurisdiction is a matter for legal argument,
applicant presented no factual response to the averments
made by the
second respondent (or the first respondent) regarding its lack of
jurisdiction.
The
Superior Courts Act provides that High Courts have jurisdiction over
all persons residing or being in and in relation to all
causes
arising and all offences triable within their respective areas of
jurisdiction, and all other matters of which they may,
according to
law take cognizance.
Section
1 of PAJA defines the term “court” as
‘
(a)
...
(b)
(i) a High Court or another court of similar status; or
(ii)
a Magistrate’s Court either generally or in respect of a
specified class of administrative actions designated by the
Minister
by notice in the Gazette and presided over by magistrate or an
additional magistrate designated in terms of section 9A,
within
whose area of jurisdiction the administrative action occurred or the
administrator has his or her or its principal place
of administration
or the party whose rights have been affected is domiciled or
ordinarily resident or the adverse effect of the
administrative
action was, is or will be experienced.’
In
terms of section 6(1) of PAJA any person is entitled to institute
proceedings in a court for the judicial review of an administrative
action. Section 6(2) in turn provides that a court has the power to
review an administrative action on a number of grounds listed
in
subsection 2 of section 6.
In
B.O. Mahony N.O. Trustee for the Time Being of Rainbow Nation
Property Trust Number 3 and two others v The Member of the Executive
Council for Health and Social Development Eastern Cape Provincial
Government and two others, an unreported case of Mayosi, AJ (case
number 1444/2015), the learned acting Judge correctly held at para 20
that considerations of convenience are indeed relevant to
the
question of whether or not a particular division of the High Court
has jurisdiction to determine a particular case.
In
National Arts Council and Another v Minister of Arts and Culture and
Another
2006 (1) SA 215
(CC) Yekiso, J held that the question of
whether or not this court has jurisdiction must be answered with
reference to both The
Superior Courts Act, read with the provisions
of section 1 and 6 of PAJA. In that case he found that this Court
did not have jurisdiction
as it was clear from the evidence that the
headquarters of the National Council were in Johannesburg and that
first applicant’s
staff were based in Johannesburg. All the
indications were that the first applicant’s business activities
was carried on
in Johannesburg and various other factors point to the
conclusion that it could not be said that the residence or otherwise
of
any member of the National Council within the area of jurisdiction
of a court was a sufficient connecting factor to establish
jurisdiction.
Yekiso, J held that it was clear that no decision
adversely affecting the rights of anyone of the applicants that had a
direct,
external legal effect had been taken in Cape Town and found
that this Court lacked jurisdiction to hear the applicants’
application
for urgent relief or for the judicial review of the first
respondent’s decision.
It
is accepted law that an applicant in motion proceedings is bound to
justify his claims to make his case in his founding affidavit.
See
Port Nolloth Municipality v Xhalisa and Others
1991 (3) SA 98
CPD at
111. In his heads of argument, and during argument Mr Ackerman
contended that there are a number of cases confirming that
the
definition of Court as defined in PAJA confirms jurisdiction on the
Court where the effect of the administrative decision
is felt. He
placed strong reliance on the judgment of Yekiso, J in Johnson and
Others v Minister of Home Affairs; in re; Deloire
and Others v
Minister of Home Affairs and Another (10310/2014; 10452/2014)
[2014]
ZAWCHC 101
(30/06/2014). In my view the facts of that case is
distinguishable from the present matter. In the instance of the
Johnson and
Delorie matters the applicants averred that they are all
domiciled and ordinarily resident in Rondebosch, Cape Town and were
thus
in the area of the Court’s jurisdiction. In the present
matter the applicant failed to make such an averment. The
applicants’
submissions are accordingly not supported by the
record. Its failure to reply to the averments, as contained, in
second respondent’s
answering affidavit, is for the reasons
which is outlined hereunder, fatal to its application:
(1)
The SLA upon which the applicant relies for the relief it seeks
provides inter alia:
1.1
for services to be rendered by the applicant to the local authority
which is defined in the SLA as the Tlokwe Municipality.
1.2
the offices of Tlokwe Municipality has its domicile and domicili
citandi et executandi at corner of Saul Plaaitjie Avenue and
Wolmarans Street, Potchefstroom,
1.3
the services to be rendered is within the area of the Tlokwe
Municipality.
(2)
The tender process for Tender 29/13, occurred under the auspices and
the instance and request of the Tlokwe Municipality.
(3)
The performance of the applicant’s contractual obligations in
terms of the SLA are territorially bound by the municipal
area of the
Tlokwe Municipality. In addition, the receipt of tenders and the
adjudication of tenders as well as the allocation
of the tender,
which the applicant attempts to challenge occurred in the Tlokwe
Municipality.
(4)
The service which applicant is presently obliged to render is not
only to be rendered within the Tlokwe Municipality and the
payments
which it received pursuant to the SLA, are also made by the Tlokwe
Municipality.
(5)
The applicants staff and infra structure are employed at the offices
of the Tlokwe Municipality from where it renders the service.
(6)
The alleged adverse effects which applicant complains about relates
to the fact that it would be precluded from rendering service
in the
Tlokwe municipal area and to the Tlokwe Municipality beyond
30/04/2015, being the date when the SLA comes to an end.
(7)
The applicant’s review proceedings i.e. the merits and
competency of which is disputed by second respondent, is confined
to
the Tlokwe Municipality and municipal area.
(8)
The applicant’s reliance on an internal appeal similarly
relates to a tender process and adjudication which occurred in
the
Tlokwe Municipal area.
(9)
Second respondent has its head office and principal place of business
in Centurion, Pretoria, which falls within the area of
jurisdiction
of the Gauteng Provincial Division, Pretoria.
It
is therefore clear that since the respondents have not waived their
rights to raise jurisdiction as a defence and the fact that
respondents have not submitted to the jurisdiction of this Court, I
cannot find that this Court has jurisdiction to hear the application
for urgent relief or for the judicial review of the decisions by the
first respondent. See National Arts Council v Minister of
Arts and
Culture (supra). Accordingly, and in my view, the applicant has in
addition,n not succeeded in surmounting the jurisdictional
hurdle.
In
the result I make the following order:
THE
APPLICATION IS DISMISSED WITH COSTS WHICH SHALL INCLUDE IN THE CASE
OF THE SECOND RESPONDENT, COSTS CONSEQUENT UPON THE EMPLOYMENT
OF TWO
COUNSEL.
RILEY,
AJ