Afriforum v Minister of Finance (18449/21) [2021] ZAGPPHC 730 (30 September 2021)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO:18449/21

In the matter between:

AFRIFORUM Applicant

and

THE MINISTER OF FINANCE Respondent

JUDGMENT

MBONGWE AJ:

SUMMARY

[1] The applicant launched this application on urgent basis in terms of Rule 6(12) of the Uniform Rules of the Court. The urgency is founded on alleged failures of the government to expeditiously procure and distribute covid-19 vaccines in all provinces in the country resulting in the rapid spread of infections and an escalation of fatalities caused by the covid-19 virus. These alleged outcomes are the core ignitions of the applicant’s comprehension of imminent harm to the health and life of South Africans necessitating the launch of this application.

[2] The root cause of the alleged failures, the applicant surmises, lies in the provisions of the Preferential Procurement Policy Framework Act 5 of 2000 (“the Act”), which make it mandatory for aspirant government service providers to be compliant with the provisions of section 2(d) thereof to be eligible for selection as service providers and participants in government originated economic activities, including the distribution of covid-19 vaccines. The applicant alleges that this requirement preclude its members from participating in the distribution of covid-19 vaccines.

[3] Concerned by the gravity of the allegations of government failures, the applicant was asked to provide factual substantiation of thereof, particularly in light of the respondent’s response that there has been no failures in the procurement of the vaccines and that if there were delays in procurement, it was due to the none availability of the vaccines. The applicant conceded to the absence of factual proof, but went on to refer to its statistics comparing the country’s procurement rate with that of other countries, particularly rich overseas countries, including what the applicant referred to as ‘the government’s BRICS brothers’. The applicant failed to rebut the respondent’s referencing to the country’s economic weakness as rendering the comparison lacking in merit.

[4] With regard to the allegations of government failure to distribute covid-19 vaccines expeditiously, the respondent mentioned reputable companies, ostensibly known to the applicant, charged with the distribution of the vaccines and stating that there has never been a delay in the distribution of available vaccines. Again the applicant was found wanting to counter this response, oddly placing reliance and purported support of its allegations on the absence of footprint of the named companies in all the provinces in the country (ostensibly compared to the applicant’s members).

[5] It was irresistible to note that the applicant spent very little time purporting to address the clearly contrived failures of government compared to the time it took launching fierce attacks on the provision of section 2(d) of the Preferential Procurement Process Framework Act, more specifically, the Broad Based Black Economic Empowerment concept entrenched therein).

[6] The applicant alleged that it had written to the respondent, prior to launching this application, requesting that he exercises the discretionary authority bestowed on him by the provisions of section 3 and grant exemption to organs of state from compliance with the provisions of section 2(d). The absence of a response allegedly triggered the initiation these proceedings.

[7] I pause to state that the provisions of section 2(d) make it mandatory for government service providers to contract with one or more of the previously disfranchised category or categories of persons and for the purpose mentioned therein to qualify for consideration and selection as such. The only exceptions section 3 of the Act recognises are in respect of instances where the tenderer is a foreign entity or where it is in the interest of national security or public interest to deviate from the mandatory provisions of section 2(d).

[8] It is specifically the mandatory joint – participation in economic activities with the Broad Based Black Economic Empowerment (BBBEE) components envisioned in section 2(d) that the applicant resents and challenges in these proceedings. It is important to note that the challenge is, by extension, against the fundamental purpose of the provisions of section 217 of the Constitution of the Republic of South Africa Act…..which seek to obliterate the pre-democracy practices that deprived the majority of the citizenry (Black people) of the opportunity to participate meaningfully in economic activities in the country.

BASES OF APPLICANT’S CASE

[9] The gravamen of the applicant’s case is that the BBBEE component is responsible for the alleged failures of government, is corrupt and responsible for the high costs of the distribution of the vaccines. Confronted with this generalisation, the applicant redoubled in its argument, stating that BBBEE benefitted only a few. Ironically, the applicant expressed the desire to have the mandatory provisions of section 2(d) replaced with ‘functionality and pricing’; a proposition that would prejudice the majority of the people in the country.

[10] The idea of this replacement of the requirements of section 2(d) contradicts the applicant’s contention that the exemption sought is limited to combating the covid-19 pandemic. There has to be a more sinister motive behind the contemplation of the amendment of transformative statutory provisions. Clearly the applicant seeks the reversal of the transformative process or eradication of Black economic empowerment.

[11] The applicant is a South African based organisation and its local members are consequently obliged, constitutionally and legislatively, to comply with the mandatory provisions of section 2(d), unless issues of national security or public interest dictate otherwise.

POINTS IN LIMINE RAISED BY THE RESPONDENT

[12] The respondent raised a few points in limine against both the applicant’s standing and the relief sought.

THE APPLICANT’S LACK OF LOCUS STANDI

[13] The respondent contended that the applicant is not an organ of state and, therefore, had neither the authority to request the respondent to grant exemption to organs of state nor the legal standing to launch this application.

[14] I pause to state that the PPPFA is the legislative instrument created to give effect to the fundamental objective set out in the provisions of section 217(2) and (3) of the Constitution Act, being, the facilitation of the participation of previously disfranchised persons (mentioned in section 2(d) of the Act) in economic activities in the country. Section 1 of the PPPFA identifies the two role players tasked with the responsibility to ensure the realisation of those objectives, namely, the Minister of Finance, who is the respondent herein, and organs of state entrusted with the duty to select compliant and, therefore, qualifying government service providers. This delineation excludes the applicant and renders the applicant’s asserted entitlement to leveraging the provisions of section 3 for the request for the exemption of organs of state a remiss. Further, the applicant is by no means an authorised representative of organs of state to make the request on their behalf.

[15] It is trite that an applicant instituting proceedings must allege and prove in the founding papers that it has the requisite legal standing to do so. (see Trakman v Livshitz 1995 1 All SA 434 (A); 1995 1 SA 282 (A) and Nienaber v Union Government 1947 1 All SA 244 (T); 1947 1 SA 392 (T). The applicant’s failure to establish the alleged failures of government threatening the health of citizens disqualifies it from entitlement to bring this application:- spurious allegations cannot beget legal standing.

[16] It is disturbing and gravely concerning that the applicant deemed it fit to contrive failures of government and imaginary devastation directly resulting therefrom merely to gain access to the Urgent Court. The impugned provisions of the PPPFA have existed for more than two decades and the timing of the opportunistic challenge thereof, during a devastating pandemic, cannot reasonably create urgency – as the saying goes ‘a crisis is terrible to miss’.

THE LAW

[17] Save in the three instances specified in section 3(a), (b) and (c) in which the minister is obliged to waive compliance with the provisions of Section 2(d), the provisions of section 3 also clothe the minister with discretionary authority to grant exemption, on request, from compliance with the Act. The respondent’s authority entails oversight to ensure compliance with the Act by organs of state. It follows that only organs of state, where appropriate, may request exemption from compliance with the mandatory provisions of section 2(d).

[18] By its nature, the respondent’s exercise of its discretionary authority is an administrative action that is reviewable. The applicant, if it had locus standi, would have had to institute review proceedings. In the totality of the circumstances in this case, the application for a mandamus on urgency was ill-advised.

[19] In a further misplaced attempt to establish its locus standi, the applicant sought to leverage the provisions of section 38 of the Constitution by citing three of grounds stated therein purportedly entitling it to launch this application, namely, that;

15.3 It is acting in own interest in terms of section 38(a);

15.2 In the public interest in terms of section 38(d), and/or

15.3 In the interests of its members in terms of section 38(e).

Section 38 of the Constitution lends the persons listed therein “the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and seek appropriate relief, including a declaration of rights.”

[20] The applicant’s application has the hallmarks of a determination to undermine public law and the relief sought is unconstitutional. The applicant’s reliance on the provisions of section 38 of the Constitution is untenable and misplaced.

NON-JOINDER

[21] It is trite that failure by a party instituting legal proceedings to bring before the court all the parties who stand to be affected by the relief sought is fatal to the proceedings so instituted. In Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 659 the Court stated the principle thus:

“Indeed it seems clear to me that the Court has consistently refrained from dealing with issues in which a third party may have a direct and substantial interest without either having that party joined in the suit or, if the circumstances of the case admit of such course, taking other adequate steps to ensure that its judgment will not prejudicially affect that party’s interest.”

[22] It was within the knowledge of the applicant at the time of launching this application that service providers for the distribution of covid-19 vaccines had already been procured. It was therefore imperative that the applicant cites the selected service providers as parties to these proceedings as they stand to be affected by the relief sought which, for all intent and purposes, amounts to a re-invention of the wheel insofar as the selection of service providers is concerned. The applicant has not done so nor has it cited the relevant organs of state for whom it seeks the relief.

APPLICANT’S ENTITLEMENT TO THE RELIEF SOUGHT

[23] It is incumbent on an applicant seeking a mandamus to demonstrate that;

(a) It is the holder of a clear right,

(b) There is imminent or a reasonably comprehended threat of an infringement of that right and,

(c) That the applicant will suffer irreparable harm should the order sought not be granted and that there is no alternative remedy open to it than to approach the court.(see

ABSENCE OF ALTERNATIVE RELIEF

[24] What the applicant misguidedly perceives as a statutory preclusion of its members is in reality the applicant’s self-elected exclusion, based on racial discrimination, from participating in government originated business opportunities. The applicant’s alternative entails the applicant’s own re-invention and the embrace of the constitutional and imperative transformative process of joint-participation with previously unfairly disenfranchised persons referred to in section 2(d) of the PPPFA.

MOOT RELIEF

[25] The applicant has not disputed the respondent’s assertion that the launch of this application came shortly after the respondent had made a public announcement that the process of securing service providers for the procurement and distribution of covid19 vaccines had been completed. In National Coalition for Gay & Lesbian Equality and Others (2002(1) SA (CC) at para [21] where the Court held that;

“a case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law.”

The relief sought will therefore not serve no meaningful and practical purpose.

[26] With regard to the alleged inefficiency of function causing delays in the distribution of the vaccines expeditious to the provinces, the respondent mentioned the names of the companies, ostensibly known to the applicant, charged with the distribution of the vaccines and that there has been no delays in the distribution of available vaccines and that all was on track. The applicant’s response that the named companies had no footprint in all the provinces in the country (compared to its members) is non- meritorious and offers no support for an allegation of the magnitude of a failure that puts the lives of citizens and people in the country in danger. The applicant has not shown that it was a requirement that distributors of the vaccines ought to be based in the province they serve.

[27] It is curious that the applicant does not state what differential the participation of its members would bring to alleviate the contrived government failures.

FINDINGS

[28] Notwithstanding that this application may validly be dismissed on any of the individual points in limine raised, I deem it necessary to traverse the legal aspects pertaining to the relief sought.

[29] The applicant’s contrived failures of government, the unwarranted fierce attack on extant statutory provisions for unconscionable retrogressive interests and purpose amount to a flagrant abuse the process of the court. The conduct of the applicant falls squarely within the radar of the definition of abuse of process enunciated by the Supreme Court of Appeal in BIENASH v WIXLEY [1997] ZASCA 32; 1997 (3) SA 721 (SCA) at 734 f – G, as follows:

“What does constitute an abuse of the process of the Court is a matter which needs to be determined by the circumstances of each case. There can be no all-encompassing definition of the concept of “abuse of process.” It can be said in general terms, however, that an abuse of process takes place where the procedures permitted by the Rules of the Court to facilitate the pursuit of the truth are used for a purpose extraneous for that objective.”

The applicant approached the Court on spurious allegations of government failures threatening the lives of people in the country (1) to gain access to the Urgent Court for the sole purposed of, (2) launching an unwarranted attack on Broad Based Black Economic Empowerment and, (3) seeking an unconstitutional relief.

[30] Neither the provisions of section 217 of the Constitution nor section 2(d) of the PPPFA preclude the applicant’s members, or anyone for that matter, from availing themselves, through the submission of tenders, to render services to government. The applicant’s none participation in the distribution of covid-19 vaccines is in fact a self-chosen station that is by no means of national interest.

THE LAW VIS-À-VIS THE RELIEF SOUGHT

A. THE RELIEF SOUGHT

[31] The applicant’s expressed desire for the replacement of the requirements section 2(d) of the PPPFA with ‘pricing and functionality’ is nothing less than a long term purported re-introduction of unfair discriminatory practices and contradicts the applicant’s assertion that the relief sought is limited to the fight against the devastation brought by the covid-19 pandemic. One never reasonably contemplate the far- reaching repeal and/or amendment of statutory and constitutional provisions in the manner espoused by the applicant for a temporary convenience.

SEPARATION OF POWERS

[32] It is remarkable that, notwithstanding the knowledge of the injunction of the doctrine of separation of powers, the applicant seeks that the judicial arm of government encroaches on the spheres of the other arms to facilitate the ill -conceived unconstitutional relief sought in this case.

[33] It is irresistible not to think that, in an effort to belatedly get into the mainstream and participate in government originated business, the applicant seeks to impose its terms of entry at all costs, including making spurious allegations.

URGENCY

[34] Urgency does not arise where the relief sought is unlawful and unconstitutional. I find, therefore, that this application is not urgent.

COSTS

[35] The PPPFA provides for three circumstances under which the respondent may exercise its discretionary powers in terms of section 3, namely; where it is in the interest of national security to do so; where the likely tenderers are international suppliers or where it is in the public interest to do so. None of these circumstances, particularly the third mentioned, is present in the applicant’s case. The applicant’s contention that the principle in the Baywatch case in relation to a determination on liability for costs finds application in casu is misplaced. There is no reason, therefore, why the applicant should not be ordered to bear the costs of this application.

[36] I find that the respondent’s employment of two counsel was justified in this case.

ORDER

[37] Resulting from the findings this judgment the following order is made:

1. This application is not urgent.

2. The application is dismissed.

3. The applicant is ordered to pay the costs of this application, including costs consequent upon the employment of two counsel.

M. MBONGWE J

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA.

PARTIES’ REPRESENTATIVES.

For the Applicant: Adv. M. Oppenheimer

Instructed by: Hurter

Spies,

Kloofsig, Pretoria.

For the Respondent: Adv. N. Maenetje SC

with him: Adv.

M. Stubbs

Instructed by: State Attorney, Pretoria

DATE OF HEARING: 26 May 2021

JUDGMENT ELECTRONICALLY TRANSMITTED TO THE PARTIES ON 30 SEPTEMBER 2021.