Cigi Cell (Pty) Ltd v City of Matlosana and Another (UM113/2022) [2022] ZANWHC 31 (30 June 2022)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

CASE NO.: UM 113/2022

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates NO

In the matter between

CIGI CELL(PTY)LTD Applicant

and

THE CITY OF MATLOSANA First

Respondent

SPECTRUM UTILITY

MANAGEMENT(PTY)LTD Second

Respondent

JUDGMENT

PETERSEN J

Introduction

[1] This application was brought by the applicant ("CIGI CELL") as an urgent application on Monday, 27 June 2022. The application was opposed by the first respondent ("the Municipality") and the second respondent ("SPECTRUM").

[2] CIGI CELL seeks an order in Part A of the application, interdicting and restraining the Municipality from taking any steps to implement any contract awarded to SPECTRUM, pending the determination of final relief sought in Part B of the notice of motion. The relief sought by the applicant in Part A is only against the Municipality. The relief sought in Part A of the application is specifically formulated as follows:

"PART A

"1. That the Applicant's non-compliance with the forms and services contemplated in the Uniform Rules of Court is condoned and the application is heard as one of urgency in terms of Rule 6(12) of this Court's Rules;

2. That a Rule Nisi do issue calling upon the respondents and all other interested parties to show cause before this Court on Thursday 21st day of July 2022 at 09h30 why the following orders should not be made final:

2.1 That pending the final determination of Part B of this application (including any applications for leave to appeal and appeals), the first respondent is interdicted and restrained from taking any steps to implement any contract awarded to the second respondent pursuant to the awarding of a tender described as TENDER COM/SCM/T/04/2021/22 APPOINTMENT OF A SERVICE PROVIDER FOR ONLINE PREPAID VENDING SYSTEM AND THIRD PARTY VENDING FOR A PERIOD OF THIRTY-SIX (36) MONTHS ("the tender') to the second respondent;

2.2 That those Respondents who oppose the granting of the interim relief pay the costs related to such opposition, alternatively and if unopposed, that the costs related to such opposition, alternatively and if unopposed, that the costs of the application for interim relief be costs in the cause.

3. That paragraph 2.1 hereof shall operate as an interim interdict with immediate effect."

The parties

[3] CIGI CELL and SPECTRUM are private companies incorporated in accordance with the company laws of the Republic of South Africa. Both companies submitted bids for TENDER COMISCMff/04/2021/22 APPOINTMENT OF A SERVICE PROVIDER FOR ONLINE PREPAID VENDING SYSTEM AND THIRD PARTY VENDING FOR A PERIOD OF THIRTY-SIX (36) MONTHS ("the tender") as advertised by the Municipality, with SPECTRUM prevailing as the successful bidder.

The essence of the application

[4] CIGI CELL aggrieved by the outcome of the tender process, approaches this Court primarily on the basis that the bid amount of SPECTRUM is much higher than GIGI CELL'S bid amount, which is said would be tantamount to a waste of taxpayer's/ratepayer's money in circumstances where Municipalities are struggling financially. Ancillary thereto is GIGI CELL's exclusion in the tender process, on the basis that a soft copy of its bid in PDF format which GIGI CELL maintains was on a memory stick in an envelope attached to its bid document, was not so attached at the time the bid documents were opened.

Urgency

[5] Counsel for the respondents impressed on this Court to deal with the issue of urgency first. I ordered that urgency be argued and adjourned to attend to the other matters on the recess Court Roll. On completion of the other matters and for the first time, I had an opportunity to consider the submissions in the heads of argument of Counsel for the respondents which was filed shortly before commencement of the hearing. On resumption, I ordered that the merits be argued, without making a pronouncement on the issue of urgency.

[6] The Municipality and SPECTRUM oppose the urgent application mainly on the basis of urgency. This much is clear, as this Court was implored at the commencement of the hearing, by Counsel for the respondents, to deal with the question of urgency first. The heads of argument of Counsel for the respondents echoes the fact that the opposition is predicated in the main on the issue of urgency.

[7] I have carefully considered the submissions on urgency and I do not propose to repeat same in this judgment, save to note that the essence of the opposition by the Municipality and SPECTRUM is clearly predicated on the background sketched by CIGI CELL in its founding affidavit. It is to that background which I now turn. CIGI CELL became aware of the appointment of SPECTRUM when on 20 January 2022, it received an e-mail from the Municipality intimating that it had concluded a contract with SPECTRUM in respect

of the tender. By implication, CIGI CELL was not awarded the tender. CIGI CELL was further requested to attend a meeting on 2 February

2022 to discuss, inter alia, the implementation of the tender and the hand-over of information and data to SPECTRUM to facilitate a smooth transition. CIGI CELL, one week later, on 27 January 2022, notified the Municipality of its formal objection to the tender being awarded to SPECTRUM and its intention to appeal the award. CIGI CELL further requested specific and identified tender documentation from the Municipality to prepare its grounds of appeal.

[8] On 31 January 2022, CIGI CELL further caused an e-mail to be sent to the Municipality refusing to commit to a handover until it had received a response to its letter of 27 January 2022. On 3 February 2022, the Municipality replied to CIGI CELL and explained the reason for its disqualification as follows:

"Your company did not submit scanned PDF soft copy of your tender document. Take notice that submission of the above CD was mandatory in order for your company to be regarded as responsive."

[9] On 8 February 2022, CIGI CELL addressed a further letter to the Municipality requesting that the relevant tender documents be delivered by close of business on 11 February 2022, so as to properly formulate its grounds of appeal. CIGI CELL further recorded that the failure by the Municipality to provide the documents was prejudicial to it. The letter was met with a response on 11 February 2022, to the effect that the letter did not suffice for the Municipality to provide information related to other parties having regard to the Protection of Personal Information Act ("POPI Act") and that CIGI CELL should utilize the Promotion of Access to Information Act ("PAIA").

[10] CIGI CELL, on 16 February 2022 completed the requisite forms in terms of PAIA and submitted same to the Municipality, maintaining that it was done without conceding that CIGI CELL was obliged to follow PAIA. The request according to CIGI CELL was met with silence. On 7 March and 16 March 2022 respectively, CIGI CELL followed up with the Municipality regarding its request in terms of PAIA. CIGI CELL is silent in its founding affidavit on what it did from 16 March 2022 until it received a letter from the Municipality's attorneys on 7 June 2022 in which they, inter alia, noted CIGI CELL's intention to object to the appointment of SPECTRUM, adding that CIGI CELL had, however, failed to do so or take any other action.

[11] CIGI CELL concedes that it could have approached this Court earlier but appears to suggest that its failure to do so was due to the inaction of the Municipality to its requests for information and documents.

[12] The latter paragraph, considered with the timeframe sketched by CIGI CELL in my view sums up the position in respect of urgency. It alludes to the so-called modals of lost opportunities, "would have, should have, could have". CIGI CELL would have approached this Court earlier, if not for the Municipalities inaction in acceding to its request for information, whilst conceding that it should have approached the Court earlier in circumstances where it could have followed the remedies in PAIA when the information was not forthcoming. Instead, CIGI CELL on the eve of the looming date for commencement of the contract between the Municipality and SPECTRUM, approaches this Court on urgency. The reality is that the blame cannot be placed at the door of the Municipality for CIGI CELL's acquiescence in the Municipality's intimation that it should follow the PAIA route and then to remain oblivious to the provisions of PAIA in respect of the prescripts and specified timeframes provided for in PAIA.

[13] The contention premised on SPECTRUM's tendered amount being higher than that of CIGI CELL, which impacts on the finances of the Municipality, cannot in my view justify urgency in favor of GIGI CELL. As disconcerting as the reality may be in respect of the higher tendered amount, that cannot be an overarching factor tilting the scales of urgency in favor of CIGI CELL. On CIGI CELL's own account of the sequence of events, it has created its own urgency; urgency which is self-created.

[14] The submissions on the merits on which the interim relief is predicated, are essentially an extension of the basis relied on for urgency. The additional grounds on which the Municipality suggests CIGI CELL failed to meet the requirements of the tender in the completion of the tender document, is not a matter for this Court's consideration and an issue I decline to engage in this judgment. The conclusion I reach in this matter is further such that nothing more needs to be said about the merits.

Conclusion

[15] Having regard to the discussion under urgency supra, I am not convinced that CIGI CELL has mustered the threshold enunciated in Rule 6(12)(b) and the application accordingly stands to be struck from the roll for lack of urgency.

Costs

[16] I can find no reason in the exercise of my discretion on the question costs, why the successful parties should not be awarded their costs.

[17] Whilst no relief was sought against SPECTRUM, it elected to oppose the application. The rationale behind that decision, rather than to abide by the decision of this Court in a battle which was not SPECTRUM's to fight may be questionable, but is no basis on which SPECTRUM should not be entitled to its costs.

[18] The order as to costs should include the costs on employment of Counsel.

Order

[19] I accordingly make the following order:

(1) The urgent application be and is hereby struck from the roll for lack of urgency.

(2) The applicant is to pay the costs of the urgent application which costs shall include the costs consequent upon the employment of Counsel.

A H PETERSEN

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

For the Applicant Adv

W. N. Shapiro SC

Instructed by

Barkers Inc.

c/o Smit Stanton Inc.

29 Warrant Street

MAHIKENG

For the First Respondent Adv N. G. Laubscher

Instructed by Oosthuizen

Du Plooy Attorneys

c/o Bruce Loxton Inc.

20 Cooke Street

Golf View

For the Second Respondent : Adv G. V. Maree

Instructed by Phosa Loots Inc.

c/o Morweng Attorneys

Kelgor House

14 Tillard Street

Date of Hearing 27

June 2022

Date of Judgment 30

June 2022