Executive Carports (Pty) Ltd t/a Executive Carports v Airports Company South Africa Ltd and Others (42166/2015) [2017] ZAGPJHC 241 (30 August 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 42166/2015

Not reportable

Not of interest to other judges

Revised.

30 August 2017

In the matter between:

EXECUTIVE CARPORTS (PTY) LTD Applicant

t/a EXECUTIVE CARPORTS

And

AIRPORTS COMPANY SOUTH AFRICA LTD First Respondent

CONCIERGE (PTY) LTD) Second Respondent

NDABENDE CAPITAL CC Third Respondent

t/a SCRATCH MOBILE

JUDGEMENT

FISHER J:

[1] This is an opposed interlocutory application to the main application pending under this case number. It is sought in terms of rule 35(13) that the applicant be permitted to use the machinery in rule 35(3) to obtain discovery of documents which it alleges are relevant to issues in the main application and in respect of which it will seek to supplement its case in the main application.

[2] The main application is for the review of a tender process which was conducted by the first respondent during the period March 2015 to August 2015 to appoint a service provider to handle the operation and management of car valet parking facilities at OR Tambo International Airport. The main application is set down for a special hearing before me commencing on 4 September 2017.

[3] The applicant was an unsuccessful tenderer who had previously been the incumbent service provider. The second respondent is the party who found success in the impugned tender process, and the third respondent is alleged to be a related entity of the second

respondent, in that it is contended by the applicant that they are both run by a certain Mr and Mrs Kwezi.

[4] The involvement of Mr and Mrs Kwezi looms large in the applicant’s version. In essence, it is the contention of the applicant that the second respondent was unduly favoured in the process in order to benefit Mr and Mrs Kwezi. It is alleged that the award of the tender to the second respondent is tainted by corruption in that it is part of an orchestrated plan which was contrary to the relevant constitutional prescripts.

[5] A further protagonist in the matter is the first respondent’s manager of procurement, Mr Percy Sithole who is mentioned in the founding affidavit in the main application and who looms large in this application.

[6] The main application was brought in November 2015; the matter was set down on 6 April 2017 which was in court recess. It was thus postponed to 15 May 2017, whereupon it was declared in need of special allocation; the first respondent then applied for a special allocation a day later on 16 May 2017.

[7] In the interim, and apparently during April 2017, it had come to the applicant’s attention that certain media reports which had been published in October 2016 may be relevant to the review application. Such media report indicated that the first respondents supply chain management process was under investigation; that Mr Sithole had been issued with a pre- suspension notice in relation to this process and afforded the opportunity to give reasons why he should not be suspended; and that the board of directors had concluded an investigation following supply chain management irregularities being highlighted in the first respondent’s annual audit.

[8] This prompted the delivery on 10 April 2017 by the applicant of a supplementary affidavit which set out these facts. I pause to mention that this supplementary affidavit has not as yet been allowed into evidence – and this aspect needs still to be considered. The first respondent, in response and on 13 April 2017, filed a notice in terms of rule 30 in terms of which it objected to the delivery of the supplementary affidavit. This procedure has not been proceeded with.

[9] On 20 April 2017 the applicant delivered a notice which forms the basis of this interlocutory application and in respect of which discovery of documents was sought by the applicant so that they could be used in the main application. This would obviously be in due course and with the leave of the court. The documents sought are directly related to the media report and are as follows:

a. The charge sheet relating to the allegations of tender irregularity of the first respondents executives, including Mr Sithole;

b. Findings of the disciplinary committee relating to the allegations of tender irregularity of the first respondents representatives, including Mr Sithole;

c. Report and recommendations of the disciplinary committee relating to the allegations of tender irregularity of the first respondent’s

executives including Mr Sithole.

[10] The dispute in relation to this discovery issue was introduced into the proceedings by the applicant during early to mid-April 2017. The first respondent has resisted providing the documents or any documents of this nature. In essence, it contends that they are not relevant to the main application; that they have been requested out of time; and that the request is cast too wide. In addition it is alleged that the applicant has failed to show the exceptional circumstances required for an order that rule 35 be applicable to application proceedings.

[11] In relation to relevance; it appears that the fact that there is an investigation by the first respondent which may reveal systemic corruption in its tender process during the period in issue, and with particular reference to a person who has been named in the application in the first place, cannot but be held to be relevant.

[12] To the extent that the applicant need show exceptional circumstances as required in Moulded Components & Rotomoulding SA (Pty) Ltd v Coucourakis, 1979 (2) SA 457 (W) and cases following it – it has, in my view, done so. The constitutional imperatives in relation to the tender process and the public function of the first respondent is such that the

disclosure of this documentation appears necessary for a proper consideration of the main application.

[13] As set out above, the first respondent on 16 May 2017 sought to set the matter down on a date for the special motion to be heard. At this stage, it knew that documents relating to the investigation into supply chain management irregularity were required by the applicant. It knew also that its failure to provide these documents would affect the manner in which the review proceedings would proceed in due course.

[14] The applicant immediately disclosed to the DJP this impasse between it and the first respondent in relation to the documents and its context in relation to the proposed hearing of the matter. The first respondent in turn held fast to its position that it wanted a date allocated for the hearing notwithstanding the imepending dispute in relation to the documents.

[15] In the event, the date for a special hearing was allocated for 4 September 2017.

[16] The applicant continued with its requests for the documents. Pertinently, on 1 June 2017 it asked that the documents be furnished

so as to avoid a postponement of the allocated date. It was clear, at this stage, that the applicant intended vigourously to seek that the hearing be delayed until had the discovery that it sought.

[17] To this end, and on 13 June 2017, the applicant brought this interlocutory application which was opposed.

[18] The earliest date that this interlocutory matter could be allocated by the Registrar was 29 August 2017 – being the week before the the hearing of the application.

[19] It is clear that, if the applicant is entitled to the documents or a significant and material portion thereof, then the hearing on 4 September 2017 needs to be postponed for the purposes of obtaining such discovery and then allowing all parties to prepare for the hearing once such discovery has taken place. If, however, the applicant is not entitled to access to the documents then there is no reason to postpone the hearings.

[20] The second and third respondents abide the decision on the the interlocutory application.

[21] The costs of this interlocutory application and the wasted costs of the postponement of the hearing of the main application next week are sought by the applicant against the first respondent should it succeed on the interlocutory application. The second and third applicants only opposed the application for postponement. They abided the decision in the interlocutory application. It was however conceded on behalf of all the parties that if the interlocutory application succeeded then this would inevitably occasion a postponement of the hearing of the main application next week. On this basis it is not clear why the first and second respondents took the approach that they did in relation to the postponment. There were, after all, no reasons apart from the agreed impact of the applicant being given access to the documents that would have affected the opposition of the postponement on behalf of the second and third respondents.

[22] In all the circumstances, it appears to me that justice cannot be done to the main application without the documents relating to the irregular processes and inquiries to which reference is made in the media reports. It is to be noted that the respondents do not deny the existence of such documents.

[23] I am, however, inclined to agree with counsel for the first respondent in relation to the scope of the request for documents.

Such request is not limited as to the timeframe during which they were generated. This is untenable. Counsel for the Applicant

wisely conceded that the scope of the request could be properly limited to the period relevant to the time frame at hand, being the period commencing January 2014 and ending 31 December 2016.

[24] In relation to the costs of the postponed hearing set down for next week, it appears to me that it is proper that this aspect be dealt with once the nature and import of the discovery sought is weighed up.

In all the circumstances I make the following order:

1. The applicant is permitted to rely on the provisions of rule 35 of the Uniform Rules for the purposes of this order;

2. The first respondent is to furnish to the applicant as contemplated in rule 35(3) read with rule 35 (6) the following documents within 15 days of date hereof:

a. Any charge sheets relating to any allegations of tender irregularity perpetrated by executives of the first respondent, including Mr Percy Sithole for the period 1 January 2014 to 31 December 2016;

b. Any findings of a disciplinary committee of the first respondent relating to such allegations of tender irregularity for the said period;

c. Any reports and recommendations of a disciplinary committee relating to such allegations of tender irregularity for the said period.

3. The special motion hearing set down to commence on 4 September 2017 is postponed sine die;

4. Each party will pay its own costs of this interlocutory application;

5. The wasted costs of the postponement are reserved.

________________________________

D FISHER

HIGH COURT JUDGE

GAUTENG LOCAL DIVISION, JOHANNESBURG

Date of Hearing: 29 August 2017

Judgment Delivered: 30 August 2017

APPEARANCES:

For the Applicant: Adv Machaba Instructed by Jerry Nkeli & Associates.

For the First Respondent: Adv Majola Instructed by Msikinya attorneys.

For the Second and Third Respondent: Adv Ngwenya Instructed by Governed Patel Dladla Incorportaed.