DPP Value S (Pty) Ltd v Midvaal Local Municipality and Another (35218/17) [2017] ZAGPPHC 642 (4 August 2017)

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 35218/17

DATE: 04.08.2017

In the matter between:

DPP VALUES (PTY)

LTD APPLICANT

and

MIDVAAL

LOCAL MUNICIPALITY FIRST

RESPONDENT

NIEL DEKLERK (PTY) LTD

SECOND RESPONDENT

JUDGMENT

RAULINGA J,

1. This is an urgent application brought in terms of Rule 6(12) in which the applicant seeks the following relief:

Part A

1.1 That pending the final determination in Part B of this application, set out hereunder;

1.1.1 the implementation or further implementation of Bid Number 8/2/3/16 (2018 - 2023) for the Compilation and Maintenance of the Valuation Roll and Bi-Annual Supplementary Valuation Roll for 2018 - 2013 ( "the Tender") is suspended;

1.1.2 The first and second respondents are interdicted and restrained from implementing and/or executing the Tender, alternatively from further implementing and/or executing the Tender, and;

1.1.3 That the first respondent be ordered to pay the costs of Part A jointly and severally with the second respondent in the event of any opposition by second respondent.

Part B 2. Relief:

2.2 The first respondent's failure to commence with the applicant's appeal awarding of the Tender to the second respondent within 6 weeks as contemplated in section 69(5) of the Local Government : Municipal Systems Act, 32 of 2000(" the systems Act"), is reviewed and set aside;

2.3 In the alternative to 3.1above, the following decisions of the first respondent are reviewed and set aside;

(i) That the appointment of the second respondent as the first respondent's Municipal Valuer be rescinded;

(ii) That the tender be awarded only for the compilation of the valuation roll and that a separate bid process be followed for the maintenance of the valuation roll, inclusive of the compilation o f supplementary

valuation roll;

(iii) That the second respondent be appointed for the compilation of the valuation roll for the period 1 July 2017 to 31 July 2018.

2.3 The matter is referred back to the first respondent;

(i) for the hearing and finalisation of the applicant' s appeal as contemplated in section 62(1) of the systems Act alternatively;

(ii) to reconsider the awarding of the tender with regards to the preference points system prescribed in the Preferential Procurement Policy Framework Act, 5 of 2000 (" the PPPFA").

2.4 That the first respondent be ordered to pay the costs of this application.

2.5 That in so far as any other respondents oppose this application, they be ordered to pay the costs jointly and severally with the first respondent.

3. The validity of the Tender in this matter expired on 16 January 2017 at 9HOO. The first respondent awarded the Tender to second respondent after expiry date on 27 March 2017 alternatively on 20 April 2017. On 3 April 2017, the applicant got feedback from the first respondent that the Tender had been awarded to the second respondent.

4. Thereafter the applicant and the first respondent exchanged correspondence, the last of which

was on 12 May 2017 in which the applicant ' s attorney drew the first respondent' s attention to the fact that the applicant's objection was in fact an appeal in terms of section 62 of the Systems Act and that the 6{six) week period within which the first respondent had to commence with the applicant ' s appeal, would expire on 16 May 2017. Apparently there was no reply to that letter, until the 24 of May 2017 when this application was launched.

5. The applicant raised a plethora of reasons why the matter is urgent, chief amongst them being that the applicant lodged an appeal against the first respondent's decision to award the Tender to the second respondent and the six week period contemplated in section 62(5) of the Systems Act has now expired. It further contends that the matter is urgent in the sense that the applicant will not attain substantial redress if Part A of the application is heard in the ordinary course.

6. The first respondent opposes the application whereas the second respondent has filed a notice to abide.

7. The first respondent contends that the matter is not urgent in that from the timeline stated in its answering affidavit, it is evident that the applicant waited over seven weeks from the date on which, on the version of the applicant, it knew that the tender had been awarded to another party to launch this application. Further that it is now common cause that the applicant never noted a section 62 appeal, and as a consequence did not exhaust the internal remedies before launching this application.

8. Rule 6(12) of this Court provides as follows:

"In every affidavit or petition filed in support of any application under paragraph (12) of this sub-rule, the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course".

9. The applicant is thus required by Rule 6(12) to expressly set out :

(i) the circumstances which render the matter urgent; and

(ii) the reasons why he cannot obtain proper redress or why compliance with the normal Court Rules will make proper redress impossible.

10. In Luna Meubels Vervaardigers (Edms) Bpk v Makin and Another t/a Makin's furniture Manufacturers 1077 (4) SA 135(W) at page 137F; the court held as follows:

"Mere lip service to requirements of Rule 6(12)(b) will not do and applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the norm, which is involved in the time and doing for which the matter must be set down".

11. Thus in Salt and Another v Smith 1991(2) SA 186(NM) at para 187 the court held that:

"This Rule entails two requirements namely the circumstances relating to urgency which has to be explicitly set out and secondly reasons why the applicant in this matter could not be afforded substantial redress at a hearing in due course........"

12. Urgency in urgent applications, which are not ex-part e applications under Rule 6(4), involves mainly abridgement times prescribed by the rules, and secondly the departure from established filing and sitting times of the court. Luna Meubels (supra). This entails that the other party may be inconvenienced in that it must attend to the matter within the time frames as dictated by the party seeking relief urgently.

13. Further, urgency may be plagued by lack of the exhaustion of internal remedies.

14. I have already intimated above that the applicant became aware of the awarding of the Tender to the second respondent on 3 April 2017 and only launched their application on 24 May 2017 over7(seven) weeks from the date on which it knew that the Tender had been awarded to another party.

15. In its founding papers, the applicant contends that it lodged an appeal against the first respondent’s decision to award the Tender to the second respondent. The applicant then changed tact and now submits that the section 62(3) of the Systems Act provides that the appeal authority must consider the appeal and confirm, vary or revoke the decision, but no such variation or revocation of a decision may detract from any rights that may have accrued as a result of the decision. Further, so the arguments continue that the second respondent was appointed unconditionally and not subject to the outcome of an appeal process contemplated in section 62(3) of the Systems Act. Because, so the argument develops, the appeal authority would not be entitled to set aside the second respondent's appointment, the applicant could not resort to the procedure in terms of section 62(3) of the Systems Act in order to comply with section 7(2) of PAJA.

16. The first respondent correctly submits that the position taken by the applicant that it never noted an appeal in terms of section 62 was not pleaded in the founding papers. And therefore represent a shift in the applicant's case. It does not matter whether the second respondent was appointed conditionally (upon an appeal) or unconditionally. Clause 14 of the Bid document (at page 223 of annexure "FA3") contains the terms which were binding on all Bidders and which the applicant accepted and bound itself to when it signed its Bid.

17. In its founding affidavit and in its prior demands that it made to the first respondent to suspend the implementation of the award made to the second respondent (failing which an urgent application will be launched), the applicant relied on its appeal in terms of section 62 of the Systems Act. It first stated that an appeal has been lodged, then it referred to the Regulation 49 objection as being an appeal and thereafter vacillated between intended appeal and other descriptions for the appeal which it is now common cause that it was never lodged.

18. Having conceded that it never filed an appeal the applicant in its replying affidavit changes tact and says that during the seven (7) weeks period it attempted to exercise its internal remedies which it was obliged to do in virtue of section 7(2)(a) of PAJA.

19. I agree with the first respondent that an appeal in terms of section 62 was the only internal remedy available to the applicant. It was a term of the Bid invitation accepted by the Bidders.

20. The applicant launched this application on an urgent basis on:

(i) The alleged right;

(ii) The alleged infringement thereof by the first respondent; and

(iii) The averment that "it will not be afforded substantial redress if interdictory relief is not applied for in due course".

In the replying affidavit it made out an entirely different case which, in any event, destroyed the case made out in its founding affidavit.

21. The basis of urgency, in the face of the applicant's altered position relating to section 62 appeal, is destructive and renders the urgent application a non-starter. In the premises there is no need for this court to deal with the merits of the case.

22. The application is struck off the roll for lack of urgency, with costs on the scale as between attorney and client.

_______

TJ

RAULINGA

JUDGE OF THE GAUTENG DIVISION, PRETORIA

DATE

OF HEARING

: 15 JUNE 2017

DATE

OF JUDGMENT

:

ATIORNEYS

FOR APPLICANT

: KOTZE & ROUX ATIORNEYS

ADVOCATE

FOR APPLICANT

: ADV BC STOOP SC

ATIORNEY FOR FIRST RESPONDENT : SAVAGE JOOSTE & ADAMS INC

ADVOCATE

FOR FIRST RESPONDENT : ADV S MITCHELL