Ikwezi Quarries t/a Blue Rock Quarries (Proprietary Limited) v MEC For Roads and Public Works, Eastern Cape Province and Others (1458/2015) [2015] ZAECGHC 45 (30 April 2015)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

Case no: 1458/2015

Date heard: 23 April 2015

Date delivered: 30 April 2015

NOT REPORTABLE

In the matter between

IKWEZI QUARRIES t/a BLUE ROCK

QUARRIES (PROPRIETARY LIMITED)............................................................................Applicant

and

THE MEC FOR ROADS AND PUBLIC

WORKS, EASTERN CAPE PROVINCE..................................................................First Respondent

DEPARTMENT OF ROADS AND PUBLIC

WORKS, EASTERN CAPE PROVINCE..............................................................Second Respondent

SIBATSHA PROJECTS CC......................................................................................Third Respondent

OWL EYE TRADING 119 (PROPRIETARY)

LIMITED...................................................................................................................Fourth Respondent

IRHAFU TRANSPORT CC........................................................................................Fifth Respondent

VADUBA INVESTMENTS CC..................................................................................Sixth Respondent

JUDGMENT

PICKERING J:

[1] Applicant, which describes itself in its founding papers as Ikwezi Quarries trading as Blue Rock Quarries (Pty) Ltd, launched this application as a matter of urgency on 31 March 2015 seeking, inter alia, the following relief:

“A2. Pending the final determination of the relief sought in Part B of this notice of motion (including any appeals arising therefrom), an order:

a. Interdicting and restraining the First and Second Respondents from implementing or giving effect to the decision declaring the Third Respondent to award (sic) Tender Number SCMU5-14/15-0084 Quarrying and Crushing Aggregates for the Construction of the Wild Coast Meander Madwaleni Hospital Road, to the Third Respondent; and

b. Interdicting and restraining the First Respondent and Second Respondent from implementing or giving effect to any contracts or agreements concluded with the Third Respondent pursuant to the decision referred to in paragraph 2A(a) above.”

[2] In part B of the notice of motion applicant seeks an order:

“B1: reviewing and setting aside the decision of First and Second Respondent’s Bid Adjudication Committee declaring the bid

submitted by the Applicant in respect of Tender Number SCMU5-14/15-0084 (“the Tender”), to be non-responsive.

B2 reviewing and setting aside the decision of the First and Second Respondents to award the Tender to the Third Respondent.

B3 Declaring invalid and/or setting aside any contracts concluded with Third Respondent pursuant to the award of the Tender;

B4 Directing that the Tender be remitted for adjudication afresh by the First and Second Respondents on the same tender and bid documents.”

[3] The relief sought in Part A of the notice of motion is opposed by both the first and second respondents, namely the MEC for Roads and Public Works, Eastern Cape Province and the Department of Roads and Public Works, Eastern Cape Province respectively, as well as by Sibatsha Projects CC (the third respondent).

[4] No appearance was entered by the fourth, fifth and sixth respondents all of which had submitted bids. An affidavit by a Mr. Paton was, however, filed in respect of fourth respondent in which he states that he was “stunned” when the present applications was served on him because the fourth respondent, of which he had been a director and controlling

shareholder, had ceased to exist during 2010. He stated that he had no knowledge of the Ms. Mzobotshi who was referred to as the contact person for fourth respondent. How fourth respondent came to submit a bid in these circumstances is inexplicable and is a matter which, it is trusted, will be investigated fully by the first and second respondents.

[5] The principles applicable to a matter such as this are well-known. In order for applicant to succeed it must establish the following:

(a) A prima facie right, even though open to some doubt;

(b) A well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted.

(c) A balance of convenience in favour of the granting of the interim relief; and

(d) The absence of any other alternative remedy.

BACKGROUND

[6] It is common cause that during 2011 the Department of Roads and Public Works, Eastern Cape Province, (“the Department”)

contracted the Coega Development Corporation as an implementing agent for the Department’s Roads Enterprise Development Programme

(“the REDP”). This programme is described by the Head of the Department, Mr. Mlawu, as being an “incubator programme” which is aimed at “developing and equipping small, micro and medium sized enterprises (SMME’s) in the Eastern Cape.” According to Mr. Mlawu the Department’s decision to participate in the REDP was taken solely as an endeavour on its part to “progressively realise” the objectives of the programme.

[7] At the commencement of the REDP the Coega Development Corporation (“the CDC”) advertised an Expression of Interest for the establishment of a REDP Supplier database, the purpose being for SMME’s in the Eastern Cape to register on the database for consideration in respect of future REDP projects.

[8] Ikwezi Quarries CC duly responded to the Expression of Interest. On 29 November 2011 CDC wrote to Ikwezi Quarries stating that it had been “selected to participate in this REDP which runs over a period of three years.”

[9] On 4 May 2011 a Services Level Agreement: Roads Infrastructure Support (Annexure JM2(b)) was entered into between the CDC and Ikwezi Quarries CC in terms whereof, inter alia, Ikwezi Quarries CC was appointed “for the execution of the various Works Packages” and committed itself to the requirements and activities of the Mentorship of Emerging Quarry Operators on the REDP. Ikwezi Quarries’ appointment to perform the requisite services was for a period of three years which ended on 31 March 2014.

[10] On 12 May 2014 the Acting General Manager: Roads Special Projects of the Department wrote to the Head of the Department under the heading “Procurement of REDP service providers” recommending that the Department approve the direct procurement of services using the CDC’s REDP database for that year’s projects which would be implemented as part of the REDP and, further, that once procured, the Project Management Services for the contracts be provided by the CDC “to allow for implementation and reporting”.

[11] The Department then requested and was granted the approval of the CDC for the utilisation of the REDP’s supplier database for the procurement of service providers for one year.

[12] A letter (Annexure JM7) was duly addressed on 1 September 2014 to Ikwezi Quarries CC requesting confirmation in the following terms:

“In order to fulfil the requirements of Treasury Regulation 16A 6.6, we hereby request the following confirmation:

IKWEZI QUARRIES has responded to an expression of interest process to be adopted onto the Contractor Development Programme in 2010/11 financial year. IKWEZI QUARRIES has a Service Level Agreement with the CDC as a beneficiary of the REDP. IKWEZI QUARRIES is willing to participate in the REDP roll out as per the conditions of the programme’s extension. IKWEZI QUARRIES is willing to be invited for tendering by the Department under the same terms and conditions as the Coega contract of engagement.”

[13] This was agreed to by Ikwezi Quarries CC.

[14] On 11 September 2014 the Acting Deputy Director General: Roads and Public Works, addressed a letter to the Senior Manager: Supply Chain Management of the Department under the heading:

“Operators for Quarrying and Crushing Aggregates for the construction of the Wild Coast Meander: Madwaleni Hospital Road (phase 2).”

[15] The letter then set out a list of quarry operators, including Ikwezi Quarries CC, which had been obtained from CDC’s REDP database, for the purpose of procuring the said services.

[16] On 19 September 2014 the Department addressed letters to the various operators who were listed on the REDP database inviting tenders for the Madwaleni Road Project. Only quarry operators on the database were invited to submit bids for the tender. It was, in other words, a closed tender.

[17] It is common cause that Madwaleni Hospital is a rural hospital situated approximately 30kms outside of Elliotdale. Access to the hospital was, until early 2012, by way of a gravel road. The first phase of the Department’s so-called “inaccessible and impassable roads programme” concerned the commencement of the upgrading of a 5km stretch of the gravel road leading to Madwaleni Hospital to a tarred surface. The second phase encompasses the upgrading of a 12km stretch of the gravel road leading up to the hospital itself.

[18] It is not in dispute that the existing gravel road is in an extremely poor condition and that sections of it become impassable during the wet season.

PRIMA FACIE RIGHT

[19] Applicant’s founding affidavit in support of the interim relief sought was deposed to by Mr. Lorenzo Menegaldo, a director of the applicant which he described as being “Ikwezi Quarries t/a Blue Rock Quarries (Pty) Ltd” (Blue Rock) a duly registered private company. He states in amplification thereof that Blue Rock is a Joint Venture between Ikwezi Quarries CC and Haw and Inglis Civil Engineering (Pty) Ltd, a duly registered private company.

[20] Mr. Menegaldo, who is a director of Haw and Inglis, avers that after the invitation by the Department to Ikwezi Quarries CC to bid in respect of the tender, he was approached on behalf of Ikwezi Quarries with a suggestion that a tender be submitted under the name of a Joint Venture, Blue Rock, in which Ikwezi Quarries and Haw and Inglis were partners to ensure that a tender be submitted which fully responded to the qualifying criteria in the bidding enquiry document.

[21] Because all the invited bidders appeared to have been drawn from the REDP database he addressed an email query (LM2) on 14 October 2014 to the Department’s appointed agent in respect of the tender, Mr. Athol Cocks, in the following terms:

“Our partners in Blue Rock Quarries, Ikwezi Quarries CC, were invited to a tender briefing for the abovementioned bid.

I would like to enquire if the tender is restricted to the entities invited to the bid, which appeared to be drawn from the CDC database, or if Blue Rock Quarries in which Ikwezi Quarries hold a 50% stake would be able to submit a bid?”

[22] It is not in dispute that Mr. Cocks is in fact the agent appointed by the Department to assist it with the technical (engineering) support required for the provision of the services sourced under the tender.

[23] On 15 October 2014 he received a reply to this email from a certain Mr. Khetho, which was copied, inter alia, to Mr. Cocks. Mr. Khetho is employed by the agent to the Department as the resident engineer. Mr. Khetho stated in his reply as follows:

“My response to your question to the email below is as follows:

1. Entities invited to the bid were drawn from the CDC’s database, of which Ikwezi Quarries was one of them. Therefore ONLY IKWEZI QUARRIES will be accepted to submit the tender for the mentioned project and not concerned about the structure of Ikwezi Quarries.” (sic).

[24] Mr. Menegaldo replied to this email as follows:

“Kwezi Peti attended the site visit, and signed as Ikwezi Quarries t/a Blue Rock Quarries. We would like to propose submitting the tender in this format as Ikwezi Quarries are 50% shareholders in Blue Rock Quarries. Please confirm if this is acceptable. There are provisions made in the tender document for Joint Ventures (which can be formed post tender briefing), to submit bids. There is nothing precluding an outside party to the invited entities being precluded from being a member of a Joint Venture.”

[25] Mr. Khetho replied to this email as follows:

“Ikwezi Quarries t/a Blue Rock will be accepted to tender in this format. But this will be taken as a JV partnership which means all the requirements and the rules of the JV agreement as per the tender documentation must be followed.”

[26] Mr. Menegaldo states that on this basis Blue Rock prepared and submitted what he terms a fully compliant bid in respect of the tender. The closing date for submission of such bids was 21 October 2014. He states that the aforementioned Kwezi Peti, a director of Blue Rock and a member of Ikwezi Quarries CC attended the compulsory clarification meeting and Blue Rock’s bid was submitted timeously. At some time thereafter Mr. Menegaldo became aware of rumours that the tender had been awarded.

Eventually, on 3 March 2015, the Department replied to Blue Rock’s attorneys informing them that Blue Rock’s bid had been unsuccessful and that the tender had been awarded to the third respondent.

[27] It is common cause that five bids, including that by Blue Rock, were submitted to the Department. Of these bids Blue Rock’s tender was the second lowest on price at R29 515 645,45, whereas that of third respondent was R31 602 550,62.

Mr. Menegaldo contends that had the tenders been properly scored Blue Rock would have achieved the highest score and should therefore have been awarded the tender. On 17 March 2015, however, the Department provided Blue Rock‘s attorneys with a “bid adjudication report” (Annexure LN14) from which it appears that the bids of Blue Rock and fourth respondent were not scored in that they were deemed to be non-responsive. In this regard it appears from the report that the Bid Adjudication Committee had addressed the following query to the Department’s legal advisor in respect of the validity of the bids submitted by fourth respondent and Blue Rock as Joint Ventures:

“We have recently in our evaluation come across companies having tendered as Joint Ventures with other companies not on the programme.

The Department hereby seeks advice as to how to approach these instances? We are of the opinion that these companies are invited in the virgin state as an entity and not joint ventures and agreeing to accept the tenders might be irregular as a joint venture did not respond in the expression of interest of adoption of the programme. Therefore it would be irregular to appoint a company not registered on the database.”

[28] The response of the Department’s legal advisor was as follows:

“The principle is that only service providers that are in the REDP database are allowed to participate in the tendering process, on the basis of this, that bid is not to be considered further for adjudication process.”

The report further states:

“The company invited is Ikwezi Quarries but submitted documents of a J/V with Haw and Inglis (a company which does not form part of the REDP database) to form Blue Rock Quarries (Pty) Ltd, thus defeating the purpose of the company development programme. Due to the abovementioned statement the company is deemed to be non-responsive.”

[29] Mr. Menegaldo avers further, with reference in particular to section 217 of the Constitution that, in determining that Blue Rock’s bid was non-responsive, the Bid Adjudication Committee took into account irrelevant considerations and the decision was accordingly irrational, procedurally unfair and/or otherwise unlawful and, also, that the award of the tender to third respondent was in conflict with the points system in the invitation to tender and the decision was accordingly irrational, procedurally unfair and otherwise unlawful.

[30] In his answering affidavit, the Head of the Department, Mr. Mlawu, points out that applicant is described as “Ikwezi Quarries t/a Blue Rock Quarries (Pty) Ltd and that Blue Rock Quarries (Pty) Ltd is itself described as being a Joint Venture comprising Ikwezi Quarries CC and Haw and Inglis Civil Engineering (Pty) Ltd.” Mr. Mlawu points out that Ikwezi Quarries CC and Blue Rock Quarries (Pty) Ltd are incorporated separately from one another and that a close corporation cannot legally trade as a private company.

[31] In their answering affidavits the three respondents’ reiterate that applicant, as cited, cannot legally exist inasmuch as a close corporation (Ikwezi) cannot legally trade as a completely different legal entity, a company (Blue Rock). They aver that it is clear from the documentation that Ikwezi Quarries CC and Blue Rock Quarries (Pty) Ltd are two separate entities and that neither registered a trading name different from its business name.

[32] Mr. Swart, who describes himself as being a director of Ikwezi Quarries t/a Blue Rock Quarries (Pty) Ltd states, however, that the respondents appear to be labouring under the misapprehension that Blue Rock seeks to assert that it is the same entity as Ikwezi

Quarries CC whereas this is incorrect. He states that it is apparent from the share certificates and the Joint Venture agreement

entered into between Ikwezi Quarries and Haw and Inglis (Pty) Ltd that “Blue Rock is a Joint Venture company in which Ikwezi Quarries CC and Haw and Inglis (Pty) Ltd respectively hold 50% of the issued share capital.” He states that it is apparent from the papers that applicant is in fact Blue Rock Quarries (Pty) Ltd. He states further that “to the extent that the description of Blue Rock in these proceedings may give rise to any misunderstanding on the part of Sibatsha, Blue Rock will apply at the hearing of the matter to clarify its citation as the applicant in this matter to simply read Blue Rock Quarries (Pty) Ltd.”

[33] It is noteworthy, as was submitted by Mr. Beyleveld S.C., who appeared for third respondent, that not once in the emails addressed by Mr. Menegaldo to the Department was reference ever made to Blue Rock Quarries (Pty) Ltd, a private company having a completely separate existence to Ikwezi Quarries CC. Whether the failure to refer thereto was deliberate is, in the view I take of the matter, not necessary to decide.

[34] Mr. Rosenberg S.C. who, with Ms. Adhikari, appeared for applicant, reiterated the averments made by Mr. Swart. He stressed that Blue Rock was in fact “a Joint Venture company” in which Ikwezi Quarries CC and Haw and Inglis respectively held 50% of the issued share capital. He submitted accordingly that Ikwezi Quarries CC was nothing other than Blue Rock (Pty)Ltd’s “Joint Venture partner.”

[35] In my view these submissions cannot be sustained.

[36] A Joint Venture, as was correctly submitted by Mr. Beyleveld, is nothing other than a partnership entered into between the parties thereto for a particular purpose and for a limited period of time. Whereas a Joint Venture requires the participation of at least two parties thereto, each retaining their own separate juristic personalities, Blue Rock (Pty) Ltd is, by contrast a single entity, in which Ikwezi Quarries CC is a shareholder and not a partner.

[37] There is also no reference whatsoever in the Joint Venture agreement, relied upon by applicant in submitting its bid, to Blue Rock (Pty) Ltd. That agreement referred to “a Joint Venture in accordance with the provisions of this agreement under the style or firm name of Blue Rock Quarries Joint Venture.” In my view Blue Rock Quarries (Pty) Ltd can in no way be described as a “Joint Venture company” and the shareholders therein are in no way “Joint Venture partners.”

[38] This is not a case of placing excessive emphasis on form rather than substance as was submitted by Mr. Rosenberg. The Joint Venture envisaged between Ikwezi Quarries CC and Haw and Inglis has morphed into an entirely separate legal entity, Blue Rock (Pty) Ltd, which company was not on the REDP database and was accordingly never invited to submit a bid in respect of the Madwaleni Hospital Road tender.

[39] In light of the fact that invitations to bid were limited to quarry contractors on the REDP database any decision by the Department to award the tender to Blue Rock (Pty) Ltd, a company not on the database, would, in my view, have been reviewable in terms of the provisions of the Promotion of Administrative Justice Act no 3 of 2000 and, inter alia, would have fallen foul of the prescripts of s 217 of the Constitution, inasmuch as the process would have lacked fairness, competitiveness and transparency as all quarry operators, not only those listed on the REDP database, would have been deprived of an equal opportunity to submit competing bids for the tender.

[40] In my view therefore Blue Rock Quarries (Pty) Ltd has failed to establish a prima facie right to the relief sought.

[41] In view of this conclusion it is not necessary for me to deal in any detail with the further submissions made on behalf of applicant as to its prima facie right. I will, however, briefly record my views thereanent, against the event that I may be wrong in coming to my aforesaid conclusion.

[42] The respondents contend that only entities registered on the REDP database could submit bids and that any entity not so registered was precluded from doing so.

[43] In this regard much was made by applicant of the responses by Mr. Khetho to the emails of Mr. Menegaldo, which responses were copied to Mr. Cocks, the Department’s agent. Applicant seeks to rely on the statement in the emails by Mr. Khetho/Mr. Cocks to the effect that Ikwezi Quarries t/a Blue Rock Quarries “will be accepted to tender in this format” and seeks to estop the Department from denying the authority of Mr. Cocks in particular to grant such consent.

[44] In my view there is no merit in these averments. Mr. Cocks makes it clear in his affidavit that he was authorised to deal only with enquiries relating to “technical information” and not to those relating to “bidding procedures”. For his part, Khetho was merely the resident engineer employed by the agent. The Invitation to Bid made it clear that any enquiries relating to the bidding procedures should be directed to Ms. Norman at the Department. In these circumstances the question of estoppel cannot arise.

[45] In any event, as was submitted by Mr. Beyleveld, Mr. Khetho and Mr. Cocks did no more than to approve the submission of a bid by Ikwezi Quarries CC in its own name but trading as Blue Rock Quarries. At no stage was approval given by them for the submission of a bid by a non-existent entity such as Ikwezi Quarries CC trading as Blue Rock Quarries (Pty) Ltd or an entity not listed on the REDP database.

[46] In my view, therefore, the reliance on estoppel is misplaced.

[47] Mr. Rosenberg submitted, with reference to the tender documentation and the Standard Conditions of Tender that there was nothing

contained therein that required that both parties in a Joint Venture which submitted a bid in respect of the present tender were required to be registered on the REDP database. He submitted that the respondents’ contentions that the Madwaleni Hospital Road tender was the second phase in a two phase tender (the first phase having been the initial public pre-qualification phase which culminated in the REDP database) were wrong and that the initial tender process was separate and distinct from the later Madwaleni Hospital Road tender.

[48] In my view, however, it is clear that the Madwaleni Hospital Road tender process was in fact the second phase of a two phase process. The agreement between the Department and the quarry operators on the REDP was, in my view, nothing more than a novation of the contract between CDC and the quarry operators in terms whereof the Department was substituted for CDC. The Department was in the circumstances entitled to rely on the first phase undertaken by the CDC with the consent of the CDC and the quarry operators.

[49] As submitted by Mr. Beyleveld, there is no restriction in the Preferential Procurement Policy Framework Act no 5 of 2000 or the Procurement Regulations, 2011, prohibiting the type of two phase process which occurred in the present matter. Compare

Industrial Development Corporation of South Africa Limited v Trencon Construction (Pty) Ltd [2014] ZASCA 163.

[50] The fact that the tender documents do not specifically provide that only invited parties on the REDP database may submit bids is not, in my view, persuasive. The very fact that only parties on the REDP database were invited to submit bids would render any recordal of that fact superfluous. What is clear is that there is nothing precluding entities listed on the REDP database from entering into Joint Ventures with each other.

[51] It is important, in my view, to have regard to the purpose of the REDP which, as Mr. Mlawu states, is an incubator programme aimed at developing and equipping SMME’s. To allow outside entities to participate in any form at the expense of those on the database, would, in my view, be to subvert the very purpose of the programme.

[52] In the circumstances applicant’s claim to a prima facie right cannot be sustained.

BALANCE OF CONVENIENCE

[53] In the event that my conclusion as to the existence of applicant’s prima facie right may be incorrect I will proceed to consider the balance of convenience. In doing so I accept for present purposes that applicant has satisfied the requirements for an interim interdict relating to irreparable harm and the absence of any other alternative remedy.

[54] As was stated by Plasket J in Equicent Eastern Cape Developments (Pty) Ltd v University of Fort Hare and Others unreported Eastern Cape, Grahamstown, case no 3562/2014 dated 28 October 2014, an interim interdict is an extraordinary remedy which is granted or withheld within the discretion of the Court. Once a prima facie right, a well-grounded apprehension of harm and the absence of an alternative remedy have been established, that discretion involves weighing, inter alia, the prejudice to applicant if the interdict is withheld, against the prejudice to the respondent if it is granted.

[55] As stressed by Mr. Rosenburg, first and second respondents do not deal at all in their affidavits with the issue of the balance of convenience and do not allege that they will suffer any prejudice should the interdict be granted.

[56] For its part, third respondent alleges that it was not aware of Blue Rock’s impending legal challenge to the awarding of the tender and that as a consequence it has incurred very considerable costs in preparation for establishing itself on the site. Mr. Rosenburg submitted that in the light of the undisputed facts third respondent’s averments in this regard are simply not credible.

[57] I agree. In my view, Mr. Rosenburg was correct in submitting that the only reasonable conclusion to be drawn from the facts is that third respondent was indeed aware of the Department’s instruction not to take over the site but nonetheless chose to proceed with preparations to do so in order to secure a benefit for itself. As such, any prejudice which it may have suffered in consequence of its actions is entirely self-created.

[58] A far more valid consideration raised by third respondent relates to the prejudice which would be suffered by the community served by the Hospital were there to be a delay in the implementation of the tender. In this regard it is common cause that the tender had a validity period of 120 days which expired on 23 February 2015. Once the tender validity period of an impugned tender has expired the tender process is at end. See Joubert Galpin Searle Inc. And Others v Road Accident Fund and Others 2014 (4) SA 148 (ECP) at para 70. If eventually the award of the tender to third respondent were to be set aside there would be no valid tender offers to consider as they would all have lapsed and the tender process would accordingly need to commence afresh. In such circumstances there would, in all probability, be a consequent delay of up to two years in the implementation of the project.

[59] Mr. Rosenburg submitted further that third respondent’s contentions were baseless inasmuch as the tender related solely to the crushing of material to be used in the construction of the road and not to the actual construction of the road. There was, so he submitted, no evidence as to how a delay in the operation of the tender would impact, if at all, on the construction of the road.

[60] In my view, however, it is clear that the tender is an integral part of the road construction without which the upgrade of the road could not be completed. It is important to bear in mind that this tender is part of the “impassable roads” project and the tender document requires the “quarrying and crushing of aggregates for the construction of the Wild Coast Meander Madwaleni Hospital (ph2).”

[61] Any lengthy delay in the finalisation of the construction of the road would carry with it very adverse consequences for the community. In this regard, what was stated by Davis JP in Glaxo Wellcome (Pty) Ltd and Others v Terblanche N.O. and Others (N0 2) 2001 (4) SA 901 (CAC) at 911 A – D is apposite:

“In Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D) at 383F Holmes J (as he then was) said:

‘(B)y balance of convenience is meant the prejudice to the applicant if the interdict be refused, weighed against the prejudice to respondents if it be granted.’

In clarifying the scope of this dictum Magid J said in Verstappen v Port Edward Town Board and Others 1994 (3) SA 569 (D) at 576H:

‘I do not believe that the learned Judge intended to suggest that the manner in which the grant or refusal of an interdict would affect the immediate parties to the litigation was the only matter relevant to a determination of the balance of convenience. Where, as in this case, the wider general public is affected, the convenience of the public must be taken into account in any assessment of the balance of convenience.’

See also Corium (Pty) Ltd and Others V Myburgh Park Langebaan (Pty) Ltd and Others, 1993 (1) SA 853 (C) at 858F.”

[62] In the Corium case supra Conradie J stated at 858E – F as follows:

“The first respondent will suffer loss if an interdict is granted. This circumstance deserves sympathetic recognition. On the other hand I am called upon to consider not only the interests of the applicants, but those of the general public whose members may be affected. Bamford v Minister of Community Development and State Auxiliary Services 1981 (3) SA 1054 (C) at 1061 D – E; Roberts vs Chairman, Local Road Transportation Board, Cape Town, and Another (2) 1979 (4) SA 604 (C) at 607E – 608T.”

[63] A supporting affidavit deposed to by Dr. Barber, was filed by third respondent. When this affidavit was originally filed it had not yet been attested to by Dr. Barber. Applicant accordingly contented itself in reply by stating that the contents thereof should therefore be disregarded. By the time of the hearing of this matter, however, a duly attested affidavit by Dr. Barber had been filed. Applicant chose not to reply thereto. The averments contained therein are therefore uncontested. It is necessary to set them out in detail:

[64] Dr. Barber states as follows:

“3. I have worked as a doctor at Madwaleni Hospital since the beginning 2014. I am one of nine doctors working at this institution.

4. Madwaleni Hospital is situated approximately 100km from our referral centre, being the Nelson Mandela Academic Hospital situated in Mthatha.

5. The hospital also receives referrals from local clinics, including Elliotdale Community Health Centre.

6. There is only one road that connects Madwaleni Hospital to the Health Centre and this road continues on to Mthatha where the Nelson Mandela Academic is Hospital situated.

7. The road is approximately only half way tarred, the remaining section being gravel.

8. The road is in an extremely poor state of disrepair. It is uneven, bumpy, pot hole ridden and is impassable in times of inclement weather and heavy rainfall.

9. Due to the poor state of the road one has to drive at very slow speed. There are instances where you cannot exceed a speed of approximately 29km/h.

10. The state of the road takes a heavy toll on vehicles and the cost of repairs to vehicles is becoming a major deterrent for retaining staff at the hospital as tyres have to be replaced and windscreens crack on a regular basis with the result that transport costs are very high.

11. As the road is the only access route between the Health Centre and the hospital, emergency transfers of patients are often delayed.

12. Thus far lives have been lost as a direct consequence of this delayed transfer. I pause to mention a maternal fatality which occurred when a mother in one of the surrounding villages gave birth and suffered severe haemorrhaging, and died on the way to the hospital as she could not be transported there quick enough.

13. Such a loss of life can and should have been avoided.

14. Besides the loss of life, it is often very difficult to transport patients as the road is exceptionally bumpy and is unsafe.

15. A large majority of our patients being transferred are critically ill or are pregnant female patients. Our decision to transport patients is often challenged by the state of the road thereby, potentially influencing the appropriate quality of care that the patient may receive and deserves.

16. Critically ill patients often have life supporting equipment attached to or inserted within them such as an endotracheal tube. A tracheal tube is a catheter that is inserted into the trachea (the throat of a patient) for the primary purpose of establishing and maintaining a patient’s airway and to ensure the adequate exchange of oxygen and carbon dioxide. These tubes often become dislodged during transfer and has resulted in the loss of life.

17. To add to this there have been times during the rainy season where ambulances have not been able to access the hospital at all.

This effectively deprives deserving patients of their constitutionally protected right to health care services as contemplated in section 27(1)(a) of the Constitution.

18. Transfer of patients from Madwaleni Hospital to our referral centre, are also deeply impacted by the state of the road.

19. Although the hospital does have access to an aeromedical transfer service this is not always an option owing to weather affected and night-time transfers. This is therefore not a sustainable solution to the problem. The upgrading of the remainder of the gravel road to a tarred surface is the only long term viable solution to the loss of life being experience at the hospital due to the state of disrepair of the road.

20. The state of the roads therefore has had and will continue to have a drastic impact on both community members as well as health care workers.

21. Having personally witnessed the negative impact that the condition of the gravel road has on the lives of the community members as well as health care workers, my opinion is that the road needs to be upgraded immediately and urgently. Any delay would inevitably result in the loss of further life and hospital staff.”

[65] In the light of these averments the prejudice to the larger community of Elliotdale and beyond, should there be a lengthy delay in the implementation of the tender, is incontrovertible and the effect of an interim interdict leading to such delay in the upgrading of the road would be devastating for the community.

[66] In the circumstances the balance of convenience is, in my view, overwhelmingly against applicant. On this ground alone the application for interim relief cannot succeed.

[67] It was accepted by counsel that the costs of two counsel, wheresoever employed, should be allowed, whatever the result.

[68] Accordingly the following order will issue:

The application for interim relief is dismissed with costs, such costs to include the costs of two counsel wheresoever employed.

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J.D. PICKERING

JUDGE OF THE HIGH COURT

Appearing on behalf of Applicant: Adv. S.T. Rosenberg S.C. and Adv. M. Adhikari

Instructed by: Wheeldon Rushmere and Cole Attorneys, Mr. van der Veen

Appearing on behalf of First and Second Respondents: Adv. S.M. Mbenenge S.C. and Adv Nzuzo

Instructed by: Maseko Tilana Incorporated,

Appearing on behalf of Third Respondent: Adv. A. Beyleveld S.C.

Instructed by: Huxtable Attorneys, Mr. Huxtable.