Brown Mogotsi Foundation v MEC for Health, North West Province and Another (UM185/2023) [2023] ZANWHC 187 (29 September 2023)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

Case No.: UM185/2023

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

BROWN MOGOTSI FOUNDATION

Applicant

and

MEC FOR HEALTH, NORTH WEST PROVINCE

First Respondent

MEDI-WARE (PTY) LTD

Second Respondent

(COMPANY REGISTRATION NO: K2012/0247717)

REASONS FOR JUDGMENT / ORDER

O Y DIBETSO-BODIBE AJ

INTRODUCTION

[1] The Applicant, Brown Mogotsi Foundation, applied to this Court on an urgent basis, for an interim interdict to prevent the Respondents from implementing a tender: NWDOH 0[...] ("the tender") to provide catering services for a period of four years, at the various health facilities within the North West Province.

[2] The matter was heard by Petersen J on 15 September 2023 and postponed to 22 September 2023 for the Respondents to file their answering affidavits.

[3] The First Respondent, the MEC for Health, awarded the tender to the Second Respondent. The interim interdict was sought pending the review of the decision to award the tender, which it was prayed, should be heard on an expedited basis. The Applicant, a not-for-profit company with its purpose being to champion the interests of communities including business and economic interests against maladministration in Government Departments, brought its application in the public interests as contemplated in Section 38(d) of the Constitution of the Republic of South Africa, 1996. This was necessitated by a letter, from the Head of Department of Health ("the Department") of 02 August 2023, ("the tender letter") in which the tender was awarded to the Second Respondent. The tender letter was brought to the attention of the Applicant by an employee

of the said Department, termed "whistleblower". The Applicant approached this court on urgent basis to interdict the

Respondents from implementing the tender, whose date of implementation was not written on the tender letter received by the Applicant. The concerns of the Applicant are more fully set out in the founding affidavit, and in view of the basis of my decision, I do not detail them in full.

[4] On 26 September 2023, I delivered an order in the following terms:

"1. The Applicant's non-compliance with the Rules of this Court as regard the time limits, forms and service is condoned and the matter is heard as semi-urgent in terms of Rule 6(12) of the Uniform Rules of Court.

2. Non-compliance with the provisions of Section 35 of the General Law Amendment Act No. 62 of 1955, is condoned.

3. The First Respondent is hereby interdicted and restrained from in any way implementing the decision to award the tender under Bid Number NWDOH 0[...]: Food Services at various Health Facilities and Nursing Colleges in the North West Province for a period of four (04) years, pending the finalization of the review proceedings which are to be instituted in respect of the award of the aforementioned tender.

4. The Second Respondent, including any other bidders concerning the tender under Bid No. NWDOH 0[...], are interdicted from commencing any work under the said tender pending the finalization of the review application which is to be instituted in respect of the awarding of the aforementioned tender.

5. The orders under paragraphs 3 and 4 above shall operate as an interim interdict with immediate effect, pending the finalization of the review application, which application shall be instituted within thirty (30) court days from the granting of this order.

6. The Respondents are ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved.

7. Reasons for this order will be handed down electronically by circulation to the parties or their legal representatives by email on Friday, 29 September 2023 at 14h00."

[5] Here follows the reasons for this order.

URGENCY

[6] This issue on urgency was tainted with language and tone unbecoming of the decorum of this Court, and before I deal with the merits on urgency, it is apposite that this type of conduct be addressed from the onset.

LANGUAGE AND TONE OF APPLICATION

[7] The First Respondent in his answering affidavit under the heading "THE APPLICATION IS NOT URGENT AND THE ABUSE OF COURT PROCESS", states the following:

"But before I respond to the allegations in the founding affidavit, I wish to deal with certain issues. The first is a point in limine relating to lack of urgency. I am advised that Petersen ADJP ruled on Friday, 15 September 2023 that the matter is urgent. Significantly, however, he made the order without proper consideration of the self-destructive averments made in paragraph 25 of the founding affidavit which were destructive of urgency of the application, let alone an application that was served in the morning of the 15th of September 2023 on an organ of state and set down to be heard the same day at 15h00 in flagrant contravention of the law which requires that the state organ should be given not less than 72 hours notice to oppose the application. Despite these elementary principles of procedure and the law, Petersen ADJP found without providing reasons that the matter is urgent and that he was ready to grant the interdict against an organ of state in the face of a patent irregularity in the application. This shows without doubt that Petersen ADJP came to adjudicate the matter at 15h00 on Friday, 15 September 2023 with a pre-determined outcome. I am advised that impartiality is the hallmark of a credible and independent judiciary. In any event, the Judge who will be presiding on this matter on Friday, 22 September 2023, is not bound by the ruling of Petersen ADJP that the matter is urgent, which in any event is patently wrong."

[8] Regarding this type of conduct, the court in Goliath and Another v Chilory SA (Pty) Ltd (3382/2018) [2023] ZAECMKHC 38 (7 February 2023) said the following:

"[17] ... The work of a court and of all who appear before it is a serious business. The words that are spoken, the words that are written, and the decisions that are made, have far-reaching consequences for the litigants.

[18] The language and tone used in the present application and heads of argument are unacceptable. They undermine the decorum and dignity of the Court..."

[My emphasis]

[9] Both the First and the Second Respondents argued that the application lacked urgency stating that the Applicant did nothing after it received the tender letter on 11 August 2023 and only approached this Court on urgency on 15 September 2023. The Applicant contended that it made a mistake in its founding papers regarding the dates, and that the month of "September" and not "August", is when the Applicant was notified by the whistle-blower about the

tender; it received the tender letter during September, it approached the legal representatives during September; court papers were drafted during September; and the urgent application was instituted during September.

[10] In correcting the error regarding the month, the Applicant in its answering affidavit said:

"8. I apologise to the Honourable Court for the heading before paragraph 22, which reads "EVENTS OF 13 AUGUST 2023" in the affidavit I deposed to on 15 September 2023. This was a typing error and was intended to read "EVENTS OF 13 SEPTEMBER 2023"

9. I further apologise to the Honourable Court for the referral to the date of 13 August 2023 as appears in paragraph 22 of the affidavit that I deposed to on 15 September 2023. This was a typing error and it was intended to read 13 September 2023.

10. I apologise to the Honourable Court to the referral to the dates 13 August 2023, 14 August 2023 and 15 August 2023 as appears in paragraph 25 of the founding affidavit I deposed to on 15 September 2023. This was a typing error and dates were intended to read 13 September 2023, 14 September 2023 and 15 September 2023."

[11] Based on the following observations regarding the dates leading up to the adjudication of the application on 15 September 2023, it is in my view highly improbable that the Applicant received such an important piece of information in the form of a tender letter, consulted with legal representatives did everything that it takes to cause the matter to be ripe for hearing by the 14 August and thereafter decided to bury his intentions of approaching this Court until a month later. Given the chronology of events as they occurred in the Applicant's founding affidavit, it is, in my view, highly probable that the events under paragraphs 22 to 25 aforesaid occurred in the month of September and not August so as to read:

"22. On or about 13 September 2023, I received information from the same whistleblower that informed the Applicant of the intention to award the tender to the Second Respondent. The whistleblower forwarded to me a picture of computer screen, with a letter dated 2 August 2023 from the Office of the Head of Department: Department of Health North West Provincial Government to the director of the Second Respondent, Mr Samuel Pooe.

23. A copy of the picture of the computer screen with the letter from the Head of Department: Department of Health, North West Provincial Government to the director of the Second Respondent dated 2 August 2023 is attached and marked "BMF3"

24. The Applicant immediately caused for consultation to be arranged with its attorneys to discuss the contents of BMF3

25. Consultation was held with the attorneys of the Applicant on 13 September 2023 and consultation was arranged with Counsel in the afternoon of 14 September 2023. These papers were drawn on 14 September 2023 and forwarded to the attorneys in the early hours of 15 September 2023."

[12] The fact that the founding affidavit was opposed to by the Applicant on 15 September 2023, strengthens the probability that the chronology of events occurred during September month. The fact that the matter was postponed on 15 September 2023 to allow the Respondents to file their answering affidavits strengthens the probability that the Applicant hastened to court on an urgent basis.

LOCUS STANDI

[13] One of the issues that was highly contested by the Respondents is that the Applicant lacked locus standi; that the deponent failed to provide proof of registration of the Applicant as a company and the resolution of the company giving the deponent authority to depose to the affidavit. The Applicant stated in its founding affidavit that the "Applicant is a not-for­ profit company with its purpose to champanion the interests of communities including businesses and economic interests against maladministration in Government Departments ... " The Applicant seeks to undertake public interest litigation that safeguards the rights of vulnerable persons who are unable to utilize the ordinary political process, to support public advocacy interventions and dialogue that promote public participation and deliberation and so result in informed, reasoned decision making and to end systematic criminal conduct destructive of a Constitutional State"

[14] The Applicant further stated that "The Applicant accordingly has the necessary locus standi to bring this application in its own interests and or in the public interests in terms of Section 38 of the Constitution of the Republic of South Africa." Further, the Applicant stated that "the awarding of the tender to the Second Respondent touches on Section 27(1)(a) and (b) of the Constitution ..."

[15] The Constitutional Court in Limpopo Legal Solutions v Vhembe District Municipality and Others (CCT119/16) [2017] ZACC 30 dealt with the issue of locus standi in relation to Section 38(d) of the Constitution as follows:

"[2] The applicant is a voluntary association whose object is ... It is a non-profit organization ...

[3] ... It brought the application for the benefit of the residents of Malamulele, Extension L, Limpopo ...

[4] In the founding affidavit in the High Court the applicant made it clear that the rights that it contended were being infringed by the conduct of the respondents included the right to human dignity of the residents of Malamulele entrenched in Section 10 of the Constitution ...

[6] In regarding, to standing the applicant's case was in part, that it was acting in the public interest as contemplated in Section 38(d) of the Constitution. In this regard the applicant referred to the fact that, by way of the application, it sought to enforce the rights of the residents of Malamulele entrenched in the Bill of Rights including the right to human dignity. Section 38(d) of the Constitution reads:

"Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach court are-

…

(d) anyone acting in the public interests, ... "

[7] The High Court held that the applicant was not genuinely acting in the public interest and that, therefore, it had no standing derived from Section 38(d) of the Constitution.

[12] In support of its contention that it did have standing, the applicant, inter alia relied on Section 38(d) of the Constitution. It said that it instituted the proceedings in the public interest. .. The High Court had no proper basis for its conclusion to the contrary.

[13] In Lawyers for Human Rights this Court dealt with what needs to be shown in order to establish whether a person or entity is acting in the public interest. In this regard, this Court quoted with approval a passage from O' Regan J's judgment in Ferreira where she said:

"This Court will be circumspect in affording applicants standing by way of Section 7(4)(b)(v) and will require an applicant to show that he or she is genuinely acting in the public interest. Factors relevant to determining whether a person is genuinely acting in the public interest will include considerations such as: whether there is another reasonable and effective manner in which the challenge can be brought, the nature of the relief sought, and the extent to which it is of general and prospective application, and the range of persons or groups who may be directly or indirectly affected by any order made by the Court and the opportunity that these persons or groups have had to present evidence and argument to the Court. These factors will need to be considered in the light of the facts and circumstances of each case. The Constitutional provisions that were considered in Ferreira were those in the interim Constitution. In Lawyers for Human Rights this Court went on to point out that the standing provisions in the interim Constitution and Section 38 of the Constitution were, for all practical purposes the same and the approach advocated by O' Ragan J is therefore equally applicable to Section 38(d).

[14] The Court also said:

"The issue is always whether a person or organasation acts genuinely in the public interest. A distinction must however be made between the subjective position or the person or organization claiming to act in the public interests on the one hand, and whether if it is, objectively speaking, in the public interest for proceedings to be brought. It is ordinarily speaking not in the public interest for proceedings to be brought in the abstract. But this is not an invariable principle. There may be circumstances in which it will be in the public interest to bring proceedings even if there is no live case. The factors set out by O' Regan J help to determine this question. The list of relevant factors is not closed. I would add that the degree of vulnerability of the people affected, the nature of the right said to be infringed, as well as the consequences of the infringement of the right, are also important considerations in the analysis."

[15] If one has regard to the passage quoted above and to the applicant's affidavit, there can be no doubt that the applicant had standing by reason of Section 38(d) of the Constitution. The High Court's conclusion that the applicant did not genuinely act in the public interest had no proper basis."

[16] Although the aforementioned passage was fairly long, it was worth quoting it in toto for complete clarity. The Applicant in the matter at hand received a tender letter from the whistle-blower. I deem it appropriate to canvass some few discrepancies between the tender letter disclosed by the Applicant and the one submitted by the Head of the Department of the First Respondent ("the HOD"). The Applicant's tender letter is marked "BFM3" whilst that of the HOD is termed "AA1".

[17] The primary distinguishing factor between the two annexures is that the main paragraph on the first page of "BMF3" reads:

"This communique serves to inform you that your company is appointed for food services management (catering) services at various health facilities and nursing colleges in the North West Province for a period of four (04) years as follows ... " The next page and other pages following are tables showing the menu specification and the names of the Health facilities where the specified menu will be catered.

[18] The main paragraph under "AA1" is similar to "BFM3", except for the last sentence which reads:

"period of four (04) years: 01 November 2023 to 31 October 2027 as follows ... "

[19] The last sentence on "BMF3" is shorter with no date of commencement of the tender whilst the last sentence of "AA1" is longer and the implementation date of 01 November 2023 - 31 October 2027 has been inserted before the words "as follows". One of the strongest contentions against the Applicant was that the Applicant deleted the implementation date fraudulently in order to deceive and mislead this Court, that it did not know that the implementation of the tender was imminent given the wording of the last sentence of both the annexures. For BMF3 to be tempered with in order to remove the date, the sentence must first be deleted in the sense that the date is in between the words in that sentence. It was

not going to be a simple matter like if the date was at the end of the sentence.

[20] The HOD discloses "AA1" as an annexure to the answering affidavit of which he is the deponent. Earlier on and during the written representations between the Applicant's deponent and the HOD, and after the Applicant's deponent alerted the HOD that he is aware of the tender, and that the Applicant will be challenging the awarding of the tender, the HOD responded as follows:

"You make reference to the catering tender award in your letter and you mooted an attack on the manner in which the said tender was awarded. You have concluded that the tender was irregularly awarded, yet the Department has not officially published the outcome of the tender in the Tender Bulletin or in any platform for that matter. All the bidders who submitted bids for tender number: NWDOH-0[...] have not been officially notified of the outcome thereof. In other words the outcome of the said tender has not been communicated to anybody outside the Department. I am therefore perplexed to learn that you seem to know the outcome and have formulated an opinion that the tender was irregularly awarded."

[21] The aforementioned letter by the HOD is dated 10 August 2023 whilst both "BMF3" and "AA1" are dated 02.08.2023. In other words, when the HOD responded to the Applicant on 10 August 2023, informing it that the tender has not been awarded, the truth of the matter is that the tender had already been awarded more than a week before the response to the Applicant. One of the issues taken against the Applicant is termed "falsehood" around the chronology of the sequence of events in relation to the August month. "Real false hood" in my view is with regard to the response

by the HOD. The Constitution imposes an obligation on officials to act reasonably and lawfully when exercising public power.

Furthermore, the disclosure regarding the awarded tender is sufficient to set review proceedings in motion.

HEARSAY

[22] The Respondents argued that the Applicant failed to disclose the source of the tender letter and that he failed to secure a confirmatory affidavit as such from the said source. The Applicant in its founding papers clearly articulated this issue when it termed the source, a "whistle-blower". Furthermore, the Applicant stated that the whistle-blower is an employee of the Department and therefore that the Applicant cannot risk disclosing the particulars of the whistle-blower.

[23] The conundrum of being a whistle-blower has been sharply explained by Tlhotlhalemaje AJ of the Labour Court in Ngobeni v Minister of Communication and Another (J0B/14)(2014] ZALC JHB 96 (3 April 2014) as follows:

"[1] ... South Africa's whistle-blowing framework has received the highest possible rating of three stars in a report by global law firm DLA Piper for providing express protection to those making legitimate disclosures. It means South Africa trumps Germany, France, Hong Kong and Australia and is on a par with the laws in the US, UK and China.

[2] In the light of such "feel-good" news, as South Africans we should ordinarily be in self-congratulatory mood and patting ourselves at the back for having trumped such illustrious nations known generally for clean governance, and also being on par with such good company in the field of whistle-blowing. The irony however is that our whistle-blowing framework does not always and immediately provide the protection whistle-blowers expect and deserve. Given the various political forces and interests at stake in the scramble to lay hands on the public purse, that valiant act of exposing malfeasant within the public service might be career limiting move if not the beginning of a long nightmare. The well­ known matter of Charlton v Parliament of the Republic of South Africa is a case in point. Just to recap, honest Mr Charlton exposed all those "Honourable Members" of Parliament involved in "Travelgate Scandal" in April 2003. Some of those "Honourable Members"

who had committed fraud on a grand scale owned up, and re-paid the ill-gotten gains. Some were "disciplined", whilst others went audaciously with their lives and regarded the whole episode and scandal as a non-event if not a big joke. As for honest Mr Harry Matthew Charlton though, he came out second best for causing trouble, and was subsequently involved in a protracted battle to set aside his unfair dismissal.

[3] It need to be emphasized however that all is not doom and gloom. In the face of the powerful, greedy and politically connected officials within the public service, whose past time is looting public funds, there will always be honest and brave South Africans in the form of whistle-blowers. They will take upon themselves to continue to expose

the rot and those public officials with itchy fingers. These are our unsung heroes and heroines, the faithful servants of the people of our beloved country. They should be recommended, encouraged and supported in their quest for making public officials accountable,

with the acknowledgement that they continue do so at great risks to themselves and their careers."

[24] The Respondents' contention that the whistle-blower information is hearsay simply because his or her identity cannot be disclosed, carries no weight.

INTERIM RELIEF

[25] An applicant for an interim interdict must, accordingly, establish a prima facie right (being a right prima facie established even if open to doubt) that irreparable harm is likely to result if the remedy is not granted and that there is no other satisfactory remedy available and the balance of convenience must be in favour of granting the remedy[1]. The remedy is a discretionary remedy[2]. In cases where the interdict restrains the exercise of public power impacting on the separation of powers, the application of these considerations is qualified and "the test must be applied cognizant of the normative scheme and democratic principles that under pin our constitution[3]. In such cases, a court may grant an interim interdict if satisfied that an applicant has good prospects of success in the main review and the claim must be based on strong grounds likely to succeed[4]. Moreover, our courts are required to consider what is described as separation of powers harm in assessing the balance of convenience.

This entails, amongst other things, a consideration of the extent to which the restraining order will intrude into the exclusive terrain of another branch of government. Where the effect of an interdict is to prevent the exercise of public power, then a temporary interdict should be granted only in the clearest of cases[5]. Courts understand the principles, established by the Constitutional Court, to apply to the exercise of all public power, and not, as is sometimes argued as being limited to executive or legislative powers. There is no restraint on the exercise of power in this case as the tender process is complete and what is sought to be restrained is the resultant contract. But it is not necessary for me to decide this, as I am satisfied that the elevated standards are met in this case.

THE STRENGTH OF THE APPLICANT'S CASE

[26] I am satisfied, on the papers before me, that the Applicant has established strong prospects of success and that the review is likely to succeed. For instance, as in this case, a failure to act procedurally fairly is a ground of review recognised in terms of Section 6(2)(c) of the Promotion of Access to Justice Act (PAJA). The founding affidavit has articulated clearly the grounds of review, both procedural and substantive. Given "BMF3" and "AA1", it is clear that processes which are integral to ensuring the process is procedurally fair have not been followed.

ALTERNATIVE SATISFACTORY REMEDY

[27] This is a case where one cannot pursue damages in due cause, if it is found that the tender was unlawful. There is currently no available internal remedy, if pursued, that would have the effect of suspending the award of the tender.

IRREPARABLE HARM

[28] There is a real risk that the dispute may become academic in the meantime. If so, the applicant will not only have lost the prospect of the award of the tender in its capacity as contemplated under Section 38(d) of the Constitution, but will also have been subjected to unlawful and unfair administrative action.

BALANCE OF CONVENIENCE

[29] From the Applicant's perspective, considerations of convenience favour the grant of an interim interdict. Furthermore, considerations relevant to the public and potential separation of powers harm have particular resonance in this case.

[30] Given the public importance of ensuring that the Health facilities continue to be catered for with catering services, there are other available remedies to the First Respondent in ensuring that the necessary catering services are provided to the various Health facilities, who won't suffer any prejudice in terms of the provisions of the Public Finance Management Act, 01 of 1999 (PFMA).

CONCLUSION

[31] The public rightly demands that tender processes are above board and that no corrupt practices ensue. Unless the process is properly followed, the public cannot have any confidence that the correct persons are being targeted for restriction or excluded from business, notwithstanding offering competitive business.

[32] On the information before me, including the dodgy "BFM3" and "AA1", I am satisfied that these allegations warrant due consideration a review. I hasten to state that an affidavit from the 2nd Respondent found its way into the Court file bearing the date stamp of 22 September 2023, the date upon which this application was heard. This affidavit was not accepted as part of the evidence, after it became clear that the affidavit was never served on the other

parties, including the Applicant. Accordingly, there are good prospects that the tender awarded has the potential to threaten the

integrity of the tender process. It is for the aforementioned reasons that I granted the order referred to in paragraph [4], supra.

O.Y DIBE-BODIBE

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION: MAHIKENG

Delivered: This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email. The date for hand-down is deemed to be 22 September 2023

ORDER GRANTED ON 26 SEPTEMBER 2023

JUDGMENT DELIVERED ON 29 SEPTEMBER 2023

APPEARANCES

On behalf of the Applicant: Mr Masike Instructed by: Tau Matsemela Attorneys On behalf of the 1st Respondent: Mr Mokhare SC, Mr Monnahela Instructed by: Modiboa Attorneys On behalf of the 2nd Respondent: Mr Manala Instructed by: Matela Sibanyoni & Associates

[1] Setlogelo v Setlogelo 1914 AD 221 & 227

[2] Knox Darcy and Others v Jamieson and Others 1996(4) SA348(A)

[3] National Treasury and Other v Opposition to Urban Tolling Alliance and Others [2012] ZACC 18 of 45 (OUTA)

[4] Economic Freedom Fighters v Gordhan 2020 (6) SA 325 CC at 42

[5] OUTA at 46-47