Fizik Investments (Pty) Ltd t/a Umkhombe Security Services v Nelson Mandela Metropolitan University (1210/2008) [2008] ZAECHC 194; 2009 (5) SA 441 (SE) (18 November 2008)

Fizik Investments (Pty) Ltd t/a Umkhombe Security Services v Nelson Mandela Metropolitan University (1210/2008) [2008] ZAECHC 194; 2009 (5) SA 441 (SE) (18 November 2008)

The court found that the matter had not been shown to be settled or moot. The applicant was entitled to the record of proceedings under rule 53, as the respondent's undertakings were general and did not incorporate the specific legislative requirements sought by the applicant. There was no formal concession or settlement, and the applicant's right to amplify its case after receiving the record was affirmed. The respondent could not circumvent this right by providing general undertakings. The amendment to include a prayer for costs was permissible, as the main issues had not been finally disposed of. Costs were awarded to the applicant, including the costs of two counsel.

Citation
[2008] ZAECHC 194
Parties
Applicant: Fizik Investments (Pty) Ltd t/a Umkhombe Security Services; Respondent: Nelson Mandela Metropolitan University
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
18 November 2008
Case Number
1210/2008
Procedural Posture
Review Application / Interlocutory Application for Delivery of Record and Amendment to Include Costs
Outcome
Application granted. The respondent is ordered to furnish the record and pay costs.
Judges
Jones
Legal Topics
Promotion of Administrative Justice Act, Preferential Procurement Policy Framework Act, Constitutional Fairness, Review of Administrative Action, Costs Amendment, Rule 53 Procedure
Administrative Law Civil Procedure Promotion of Administrative Justice Act Preferential Procurement Policy Framework Act Constitutional Fairness Review of Administrative Action Costs Amendment Rule 53 Procedure

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Parties

Fizik Investments (Pty) Ltd t/a Umkhombe Security Services

Applicant

Nelson Mandela Metropolitan University

Respondent

Procedural Posture

Review Application / Interlocutory Application for Delivery of Record and Amendment to Include Costs

Legal Issues

  1. 1 Whether the respondent's decision to exclude the applicant from tendering was lawful and procedurally fair.
  2. 2 Whether the respondent is obliged to furnish the record of proceedings under rule 53.
  3. 3 Whether the applicant may amend its notice of motion to include a prayer for costs when the main relief is allegedly conceded or moot.

Ratio Decidendi

The court found that the matter had not been shown to be settled or moot. The applicant was entitled to the record of proceedings under rule 53, as the respondent's undertakings were general and did not incorporate the specific legislative requirements sought by the applicant. There was no formal concession or settlement, and the applicant's right to amplify its case after receiving the record was affirmed. The respondent could not circumvent this right by providing general undertakings. The amendment to include a prayer for costs was permissible, as the main issues had not been finally disposed of. Costs were awarded to the applicant, including the costs of two counsel.

Court Disposition

Application granted. The respondent is ordered to furnish the record and pay costs.

Orders

  • The respondent is ordered to furnish the Registrar of this Court with the record of the proceedings sought to be reviewed or set aside in the main application, together with such reasons as it is required or desires to give, within 5 court days of the date of this order, and to notify the applicant that it has done so.
  • The notice of motion is amended by the addition of the two prayers 5 and 6 as set out in paragraph (b) of the notice of motion.