Amandla Magic Kleen CC v MEC for the Department of Public Works, Gauteng Province and Others (44394/17) [2017] ZAGPPHC 475 (21 July 2017)

IN THE NORTH GAUTENG HIGH COURT, PRETORIA

[REPUBLIC OF SOUTH AFRICA]

CASE NUMBER: 44394/17

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

AMANDLA MAGIC KLEEN CC APPLICANT

And

THE MEC FOR THE DEPARTMENT OF PUBLIC WORKS,

GAUTENG PROVINCE FIRST

RESPONDENT

THE CHAIRPERSON, THE BID MANAGEMENT, THE DEPARTMENT OF PUBLIC

WORKS SECOND

RESPONDENT

THE MEC FOR THE DEPARTMENT OF CORRECETIONAL SERVICES,

GAUTENG THIRD

RESPONDENT

BNT MASINGA (PTY) LTD FOURTH

RESPONDENT

JUDGMENT

MAVUNDLAJ;

[1] The applicant and others, including the fourth respondent, were the bidders for a tender under JHB /16/ 30, which tender was awarded to the fourth respondent. Dissatisfied with this outcome, the applicant contends that its bid was the lowest and it should have been the successful bidder, brought an urgent application, seeking an order restraining the first to third respondents in taking any steps to effectuate the award, pending the final determination (including appeals) of review application it intends to launch.

[2] The respondent did not concede urgency. Although the applicant, as far back as on the 5 May 2017 learnt from the grape vine that the tender was awarded to the fourth respondent, did not immediately approach the Court, instead directed letters to the second respondent inquiring of the outcome of the tender process. On the 13 June 2017 the applicant got certainty through the web site of the second respondent that indeed the tender was awarded to the fourth respondent. It is only on the 29 June that the applicant approached this court on urgent basis for the relief mentioned herein above. Without deciding the issue of urgency, I propose to decide the matter on the merits. This would obviate another court having to plough through more than 700 pages of this application at a later stage, regard being had to the fact that in the event I were to rule that the matter is not urgent, this would not kill the matter. The matter would have to be referred to the opposed motion court roll. I had already read the papers. However, because of the importance of the matter to the respective parties, considering the time constraints and the workload in this Division, it is not possible to prepare an erudite judgment, but one that would advise them as soon as is possible, of the Court's reasoning why the application is dismissed.

[3] In adjudicating on this matter, it is apposite to cite, what is trite, but clearly restated by Mhlanhla AJA (as she then was) in the matter of National Council of SPCA v Openshaw [2008] ZASCA 78; 2008 (5) SA 339 (SCA) where she held that:

"[20] An interdict is not a remedy for the past invasion of rights but is concerned with the present or future. Where a wrongful act giving rise to the injury has already occurred, it must be of a continuing nature or there must be a reasonable apprehension that it will be repeated. The requisites for the right to claim an interim, interdict are:

(a) a prima facie right . What is required is proof of facts that establish the existence of a right in terms of substantive law;

(b) A well- grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted;

(c) The balance of convenience favours the granting of an interim, interdict;

(d) The applicant has no other satisfactory remedy."

[4] It is instructive to have regard to the matter of Radio Islam v Chairperson, Independent Broadcasting Authority[1] where the Court held that: "In adjudicating upon an interim application, the prospect of success of the review application and the balance of convenience had to be considered. The usual rule in that regard was that very good prospect of success might make up for a poor case in regard to the balance of convenience, and that the converse applied."

[5] The tender award concerns the operation, services and maintenance of coal fired boilers, heat pumps, calorifiers and steam distribution

pipe system, condensate pipe system and comprehensive operation of boilers to Boksburg prison in Johannesburg, Regional Office.

[6] It is common cause that the applicant has been providing these services to the Boksburg Prison on ad hog basis. However, this does not place it above all others who have also made tender for the same services, nor give it a prima facie right to be awarded the tender. The applicant contended that its tender was the lowest. In my view, the mere fact that the tender was the lowest does not mean that the tender must be awarded to the applicant, nor does this bestow to it the right to be awarded the tender.

[7] The applicant's main chagrin stems from the fact that, the respondent in its tender award publication on its website, stated that the fourth respondent was awarded the tender at a price of R5 940 569.29. The applicant contended that its tender amount, was R3 986 858.73, which was R2 000 000.00 (two million rand) lower than what the fourth respondent had tendered for. The applicant further contended that its tender amount was the lowest and more competitive compared to that of the fourth respondent. The applicant further alleged in its founding papers that the award to the fourth respondent was unlawful because the fourth respondent was allowed to amend its tender price after submission of the tender midway the tender process.

[8] The change of price midstream, in my view, may have been a ground of review, on the basis of it being an unfair process amounting to irregularity. In this regard it is worth mentioning that: "deviation from fair process may themselves all too often be symptoms of corruption or malfeasance in the process. In other words, an unfair process may betoken a deliberate skewed process. Hence insistence on compliance with process formalities has a threefold purposes: (a) it ensures fairness to participants in the bid process; (b) it enhances the likelihood of efficiency and optimality in the outcome; and (c) it serves as a guardian against a process skewed by corruption." This entails, in my view, a strict compliance with the procedural requirements of the bid process. In casu, however, the respondent in its replying affidavit, stated that the mention of the amount of R5 940 569. 20 was an error on its part, but the fourth respondents had in fact in its tender stated an amount of R3 200 878. 00. The applicant was unable to refute this version, as the result the foundation of its chagrin falls away, and, in my view, so too the prospects of success on review. Besides, the fourth respondent's price of R3 200 878. 00 is much lower than that of the applicant by R739 691.20.

[9] According to the respondent, the applicant's bid application was disqualified from the bid during the first phase of the assessment,

for enclosing a copy of a certified copy of a boiler operation. The applicant disputed having sent a copy of a certified copy of a boiler certificate and contended that in any event it sent more copies, of boiler certificates to show that it had capacity. This is a dispute of fact which can only be resolved by interrogating the parties through cross examination. The applicant did not call for this dispute to be referred to oral evidence. As such, this Court sitting as an urgent Court, can only resolve this aspect on the basis of Plascon Evans principle, accepting the version of the respondent that a copy of a certified copy was attached; vide Walleye v City of Cape Town and Others,[2] contrary to the tender requirements, which demanded that a certified copy of the boiler certificate be submitted.

[10] The applicant contended further that the respondents ought to have exercised their discretion in favour of the applicant at phase one, particularly because it had demonstrated that it had a capacity in so far as the providing people who are qualified as boilers, even if one of the copies was a copy of certified boiler certificate. In this regard, in my view, at entry point, there is no discretion to be exercised. At this stage, strict compliance is required so as to avoid unnecessary clogging of the entire system through non-compliant tenders. vide Minister of Environmental Affairs and Tourism and others v Pepper Bay Fishing (Pty) Ltd; Minister of Environmental Affairs and Tourism and others v Smith 2004 (1) SA 308 (SCA) where it was held that:

"[31] As a general principle an administrative authority has no inherent power to condone failure to comply with a peremptory requirement. It only has such power if it has been afforded the discretion to do so (see, for example, Le Roux and Another v Grigg-Spall 1946 AD 244 at 252; South African Co-operative Citrus Exchange Ltd v Director-General: Trade and Industry and Another [1997] ZASCA 6; 1997 (3) SA 236 {SCA) ([1997] 2 B All SA 321) at 241 (SA)). The Chief Director derives all his (delegated) powers and authority from the enactment constituted by the general notice. If the general notice therefore affords him no discretion, he has none. The question whether he had a discretion is therefore entirely dependent on a proper construction of the general notice.'' Besides, this aspect of discretion was not raised in the applicant's founding affidavit. An applicant in notice motions stands or fall on its founding paper's; vide Bowman NO v De Souza Roldao 1988 (4) SA 326 at 327D-G;[3] Shepard v Tuckers v Land and Development Corporation (Pty) Ltd 1978 (1) SA 173 (W) at 177H.

[11] I deem it not necessary to traverse the rest of the applicant's submissions because these submissions, primarily relate to what comes. by way of its replying affidavit.

[12] In the result I find that the following order be and is accordingly issued:

ORDER

That the application is dismissed with costs.

_________________

N.M MAVUNDLA

JUDGE OF THE HIGH COURT

HEARD ON THE : 21/07/2017

DATE OF JUDGMENT : 03/08/2017

APPLICANT'S ADV : ADV. Z NGWENYA

INSTRUCTED BY : MATTHEW FRANCIS INC

2ND RESPONDENT'S ADV : ADV H.C. JANSE VAN RENSBURG

INSTRUCTED BY : STATE ATTORNEY PRETORIA

[1] 1999 (3) SA 897 WLD at 903 G-H.

[2] 2008 (6) 129 (CC) at 142 para [26].

[3] Kirk-Cohen J said: 'Generally speaking an applicant must stand or fall by his founding affidavit; he is not allowed to make out his case or rely upon new grounds in the replying affidavit. See, for example, Director of Hospital Services v Mistry 1979 (I) SA 626 (A) at 635 in fin-636 where Diemont JA said the following: 'When, as in this case, the proceedings are launched by way of notice of motion it is to the founding affidavit which a Judge will look to determine what the complainant is. As was pointed out by Krause J in Pountas’ Trustee v Lahanas 1924 WLD 67 at 68 and has been said in many cases "...an applicant must stand or fall by his petition and the facts alleged therein and that, although sometimes it is permissible to supplement the allegations contained in the petition still the main foundation of the application is the allegation of facts stated therein, because those are the facts which the respondent is called upon either to affirm or deny." Since it is clear that the applicant stands or falls by his petition and the facts therein alleged 'it is not permissible to make out new grounds for the application in the replying affidavit.'

[3] Kirk-Cohen J said: 'Generally speaking an applicant must stand or fall by his founding affidavit; he is not allowed to make out his case or rely upon new grounds in the replying affidavit. See, for example, Director of Hospital Services v Mistry 1979 (I) SA 626 (A) at 635 in fin-636 where Diemont JA said the following: 'When, as in this case, the proceedings are launched by way of notice of motion it is to the founding affidavit which a Judge will look to determine what the complainant is. As was pointed out by Krause J in Pountas’ Trustee v Lahanas 1924 WLD 67 at 68 and has been said in many cases

"...an applicant must stand or fall by his petition and the facts alleged therein and that, although sometimes it is permissible to supplement the allegations contained in the petition still the main foundation of the application is the allegation of facts stated therein, because those are the facts which the respondent is called upon either to affirm or deny."

Since it is clear that the applicant stands or falls by his petition and the facts therein alleged 'it is not permissible to make out new grounds for the application in the replying affidavit.'