Indwe Aviation (Pty) Ltd v Minister of Environmental Affairs and Another (14576/2017) [2018] ZAGPPHC 861 (27 November 2018)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case number: 14576/2017

Date: 27/11/2018

In the matter between:

INDWE AVIATION (PTY) LTD

APPLICANT

And

MINISTER OF ENVIRONMENTAL AFFAIRS

1ST RESPONDENT

ULTIMATE HELI (PTY) LTD

2ND RESPONDENT

JUDGMENT

PRETORIUS J.

(1) This is a review where the applicant requests the court to grant an order in the following terms:

"1. Reviewing and setting aside the first respondent's decision to award the tender, more fully described as E1338, for the Appointment of the Service Provider for the Provision of Helicopter Support Service with Full Crew and Compliment for the Branch: Ocean and Coasts, seasonally for a period of 4 years to Ultimate Heli (Pty) Ltd.

2. Directing that any respondent that opposes the relief sought in this application should pay the costs of the application, jointly and severally, the one paying, the other to be absolved."

THE PARTIES:

(2) The applicant is lndwe Aviation (Pty) Ltd, a company incorporated in accordance with the company laws of the Republic of South Africa,

with registration number 2002/031604/07.

(3) The first respondent is the Minister of Environmental Affairs, in her representative capacity as the head of the National Department of Environmental Affairs ("the Department").

(4) The second respondent is Ultimate Heli (Pty) Ltd ("Ultimate") a company duly registered in accordance with the company laws of the Republic of South Africa, with registration number 2010/019455/07 .

INTRODUCTION:

(5) This is an application in terms of section 6 of the Promotion of Administrative Justice Act[1] (" PAJA" ). The applicant seeks the court to review and set aside the decision of the Department, the first respondent, to award the tender, described as E1338, for the Appointment of the Service Provider for the Provision of Helicopter Support Service with Full Crew Complement for the Branch: Ocean and Coasts, seasonally for a period of four years ("the Tender") to Ultimate, the second respondent.

(6) The Tender was for the provision of Helicopter Support Services to the Department's annual research and resupply voyages it undertakes to Antarctica, Marion Island and Gough Island. The applicant was disqualified at the functional evaluation stage of the bid consideration by the Bid Evaluation Committee ("SEC").

(7) The applicant submits that the first respondent's exclusion of the applicant's bid during the functionality stage of the bid evaluation

was irrational, unfair and unconstitutional.

LEGAL PRINCIPLES - PROCUREMENT METHODS:

(8) Section 217 of the Constitution of the Republic of South Africa[2] ("Constitution") deals with procurement by organs of state. Section 217 provides:

"(1) When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective".

(9) Competitive procurement procedures are set out in the Public Finance Management Act[3] ("PFMA"). Section 38(1)(a)(iii) of the PFMA provides:

"(1) The accounting officer for a department, trading entity or constitutional institution-

(a) must ensure that that department, trading entity or constitutional institution has and maintains-

(iii) an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost- effective;"

(10) The National Treasury published a National Treasury Instruction Note[4] and paragraph 3 provides:

"3 GUIDELINES WHEN FUNCTIONALITY JS INCLUDED AS A CRITERION IN THE EVALUATION OF BIDS

3.1 "Functionality" means the measurement according to predetermined norms of a service or commodity designed to be practical and useful, working or operating, taking into account quality, reliability, viability and durability of a service or commodity.

3.2 The need to invite and evaluate bids on the basis of functionality depends on the nature of the required commodity or service. When functionality is utilised as an evaluation criterion, paragraphs 3.3 and 3.4 below must be adhered to.

3.3 When inviting bids an institution must indicate: -

(i) whether the bids will be evaluated on functionality;

(ii) the evaluation criteria for measuring functionality;

(iii) the weight of each criterion ; and

(iv) the applicable values as well as the minimum threshold for functionality

3.4 The evaluation of the bids must be conducted in the following two stages:

3.4.1 Firstly, the assessment of functionality must be done in terms of the evaluation criteria and the minimum threshold referred to in paragraph 3.3 above. A bid must be disqualified if it fails to meet the minimum threshold for functionality as per the bid invitation."

BACKGROUND:

(11) The first respondent published an invitation to bid for the services as described above in the Government Tender Bulletin No 2916 of 13 May 2016. Only five bidders submitted tenders by the closing date of 3 June 2016. The bids had to undergo three stages during the evaluation process. Firstly, it had to be determined whether all the requisite documents had been provided. Thereafter, bids had to be tested for functionality and once that had been achieved, the third step related to the price. In this instance the bid exceeded the amount of R1 million and the preference points system of 90/10 for acquisition of services, works and goods was applicable. A bidder had to score 75% for functionality and technical, before it could move on to stage three where price and BBBEE would be considered.

(12) The tender was for the provision of helicopter support services including transporting personnel and equipment, at the request of the first respondent, in the areas of Antarctica, Gough and Marion Islands, as well as other coastal areas where the first respondent is conducting research projects. It was common cause that the bid called for a service provider who could operate in extreme weather conditions where the environment was unpredictable and harsh. These operations were to be conducted in Antarctica.

(13) The bid requirements were set out in the first respondent's Bid Invitation as follows:

"1. Helicopters are expected to operate in very harsh conditions for example, extreme winds, snow, ice, low visibility, rough terrain and imbalanced contrast.

2. In Antarctica, the helicopters are used to deploy scientific field parties to areas not accessible over-land. In addition, the helicopters are used as a search and rescue facility in this vast, hostile and unpredictable environment.

3. The conditions at these sites are vastly different than conditions anywhere in South Africa and the Bidder should have a clear understanding of what is required and the conditions that prevail.

4. Antarctica is a continent of extremes (coldest, highest, windiest etc.). Operational conditions are far from ideal. Helicopters should be able to operate in temperatures of down to -30 [degrees Celsius] (absolute minimum for Antarctic summer,) winds of up to 40 knots with very low humidity and low visibility."

REVIEW:

(14) The applicant argues that the decision to disqualify the applicant, at the functionality stage of the tender process, was irrational, procedurally unfair and unconstitutional. According to the applicant the decision is reviewable under:

1. Section 6(2)(c) of the Promotion of Administrative Justice Act[5] ("PAJA") as it was procedurally unfair to assess the applicant according to a standard different from that required in the invitation to bid.

2. Section 3(2)(b) of PAJA provides as follows:

In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1)-

(i) adequate notice of the nature and purpose of the proposed administrative action;

(ii) a reasonable opportunity to make representations;

(iii) a clear statement of the administrative action;

(iv) adequate notice of any right of review or internal appeal, where applicable; and

(v) adequate notice of the right to request reasons in terms of section 5."

3. Section 6(2)(e) of PAJA, as the second respondent was granted a point for each reference it provided, irrespective of the value and applicability of the

reference in question, whilst the applicant was given only 1 point as it had provided only one reference, therefor acting arbitrarily by having regard to irrelevant considerations and failed to have regard to the value of relevant references.

4. Section 6(2)(f)(ii) of PAJA , as the applicant was disqualified at the functionality state of the tender process, where it should have been clear that the applicant

had the functional capacity to perform the required actions as required by the contract. Therefor the BEC acted in a manner not

rationally related to the purpose for which it acted according to the information at their disposal.

5. Section 6(2)(i) of PAJA, because the unjustifiable disqualification of the applicant, resulted in the tender being awarded to the second respondent at an amount of R40 million more than the applicant's tender - this, according to the applicant, was inconsistent with the provisions of section 217 of the Constitution.[6]

(15) Furthermore, it is alleged, by the applicant, that the BEC applied double standards in their assessment of the applicant and the second respondent. It is set out in the answering affidavit of the first respondent that the applicant only scored 20% for references, as the applicant had provided only a single reference, pertaining to services rendered from George Airport in the Western Cape to various offshore installations.

(16) In Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social Security Agency, and Others[7] Froneman J held:

"Section 217 of the Constitution, the Procurement Act and the Public Finance Management Act provide the constitutional and legislative framework within which administrative action may be taken in the procurement process. The lens for judicial review of these actions, as with other administrative action, is found in PAJA. The central focus of this enquiry is not whether the decision was correct, but whether the process is reviewable on the grounds set out in PAJA. There is no magic in the procurement process

that requires a different approach. Alleged irregularities may differ from case to case, but they will still be assessed under the same grounds of review in PAJA. If a court finds that there are valid grounds for review, it is obliged to enter into an enquiry with a view to formulating a just and equitable remedy. That enquiry must entail weighing all relevant factors, after the objective grounds for review have been established".

And at paragraph 90:

"In the context of a tender process, the tender documents give notice of the proposed administrative action, while the responding bids in effect constitute representations before the decision is made. Adequate notice would require sufficient information to enable prospective tenderers to make bids that · cover all the requirements expected for the successful award of the tender."

(17) In Dimension Data (Pty) Ltd and Others v State Information Technology Agency (SOC) Ltd and Another[8] is was held that the assessment of fairness and lawfulness of a procurement process is independent of the final outcome of the tender process.

(18) On 2 September 2016 a request was conveyed by the first respondent to extend the validity date of the tender period to 3 December 2016. On 5 September 2016 the applicant confirmed that it was willing to hold its bid v lid "IN ALL RESPECTS" for the extended period.

(19)

The applicant supplied one reference from Petro SA, and relied on the Titan Helicopter Group, of which it is a subsidiary, to enable it to provide the required services. It is clearly stated in the scoring on functionality, by members of the SEC, that they were aware of these circumstances and even commented favourably on this reliance on the Titan Helicopter Group.

(20) The applicant submitted its Tender Proposal to bid to the first respondent on 3 June 2016 . On 11 July 2016 a technical evaluation meeting was held at George. It was attended by representatives of the first respondent, including Mr Davenautor , Mr Hillard, Mr Khanyile, Mr du Preez and Mr Joseph. An inspection of the applicant's aircraft, facilities, including maintenance facilities, was conducted by the team from the first respondent. The purpose was to ascertain whether the applicant had the ability to properly perform the contract by having the necessary aircraft, spares and being able to maintain the aircraft.

(21) On 21 November 2016 the applicant, after making enquiries, noted that, according to the website of the Department, the tender had been awarded to the second respondent. The applicant requested a debriefing meeting with the first respondent, by email, on 21 November 2016; and again on 24 November 2016. On 5 December the first respondent informed the applicant that the applicant had been unsuccessful in its bid, due to it only obtaining 64% at the functionality stage of the bid. The applicant's bid did not qualify to proceed to the second stage of the tender process, as the percentage necessary to proceed was 75%. On the same date the applicant informed the first respondent that it would be seeking a review of the decision to award the tender to the second respondent.

(22) On 10 February 2017 the applicant received a letter from the first respondent, as well as the relevant score sheets that was used when evaluating the relevant tenders during the tender evaluation process.

(23) It was clear from the score sheets that the Bid Evaluation Committee ("BEC") assessed the relevant tenders for functionality by awarding a percentage point to each of four categories, namely, experience, references, finance and facilities.

(24) Functionality was scored out of 100, using the following criteria:

1. Experience in rendering of aviation services and track record - 25 points;

2. References provided by the clients of the bidder - 25 points;

3. Financial status of bidder - 25 points;

4. Facilities available, such as helicopters, hangars, etc. - 25 points;

The BEC physically inspected the facilities and helicopters of the applicant from 11 July 2016 to 15 July 2016, accompanied by an aviation specialist and supply chain management observer.

(25) The applicant's scores were: 75% for experience, 80% both for finances and facilities and only 20% for references. It is clear that the BEC had awarded 1/5 for every reference provided by a party, without examining whether such a reference was correct and applicable. It was thus clear that for each reference provided, whether it was applicable in the present circumstances or not, 1/5 was scored. Therefor the applicant, under these circumstances, could never have attained more than 1/5, as the BEC did not examine the references, but mechanically awarded one point for each reference.

(26) It must be mentioned that Mr Devanuthan, the deponent to the first respondent's answering affidavit, scored the applicant 75% as a total score. His turnabout in the answering affidavit is therefore inexplicable.

(27) the applicant had provided five references, it would have scored 100% in this regard. The applicant avers that a different standard was used when assessing the applicant's references. The applicant provided one reference from Petro SA, dealing with the applicant's experience in off-shore services. This lead to the applicant scoring 1/5 for the reference provided, whilst the second respondent scored 3/5. The complaint by the applicant is that the second respondent submitted a reference from the Australian Antarctic Division, for work performed at Davis Station in Antarctica and was regarded as similar work by the BEC. The other reference was a letter from the Indian National Centre for Antarctic and Ocean Rescue, relating to Antarctic experience, which may or may not have been for the same work done as mentioned in the Australian Antarctic Division's reference. The last reference of the second respondent did not pertain to work done in Antarctica, but was for helicopter services provided to the SAPS Air Wing. This reference was also scored 1/5 thus resulting in the second respondent scoring 3/5 for references.

(28) The first respondent confirmed that a bidder's experience and recommendations were of vital importance and avers:

"It has to be emphasised that category A2 unequivocally requires that references are to be provided by the clients of bidders, which is expressed in the plural and not the singular. If the Applicant had more than one reference which was not provided in its bid documents, it omitted such other references at its own peril."

This position was only clarified in the answering affidavit. There was no indication or explanation in the request for tenders that five references had to be provided in relation to the requirement of references. There was furthermore no indication that each reference would score only one point, irrespective whether it was applicable to the current tender or not.

(29) In National Lotteries Board And Others V South African Education And Environment Project[9] Cachalia JA found:

"The duty to give reasons for an administrative decision is a central element of the constitutional duty to act fairly. And the failure to give reasons, which includes proper or adequate reasons, should ordinarily render the disputed decision reviewable. In England the courts have said that such a decision would ordinarily be void and cannot be validated by different reasons given afterwards - even if they show that the original decision may have been justified. For in truth the later reasons are not the true reasons for the decision, but rather an ex post facto rationalisation of a bad decision. Whether or not our law also demands the same approach as the English courts do is not a matter I need strictly decide."

It is not admissible to provide further reasons in an answering affidavit, to sustain a decision that had previously been taken, without considering the further reasons at the time.

(30) Therefor I find that the applicant was assessed unfairly, according to a standard different from which was required in the invitation to bid and section 6(2)(c) of PAJA[10] which provides: "A court or tribunal has the power to judicially review an administrative action if- (c) the action was procedurally unfair;" had not been adhered to.

(31) The applicant further relies on section 6(2)(e)(iii) and (vi) of PAJA which provide: ". ..the action was taken- (iii) because irrelevant considerations were taken into account or relevant considerations were not considered; (iv) because of the unauthorised or unwarranted dictates of another person or body;". The same reasons as set out above should apply, as the SEC awarded one point per reference, without interrogating to which experience the reference pertains and whether it was relevant or not. Therefor irrelevant considerations were considered, while relevant references, which indicated relevant experience, were simply scored 1/5.

(32) Section 6(2)(f)(ii) of PAJA provides:

':A court or tribunal has the power to judicially review an administrative action if-

the action itself-

(ii) is not rationally connected to-

(aa) the purpose for which it was taken;

(bb) the purpose of the empowering provision;

(cc) the information before the administrator; or

(dd) the reasons given for it by the administrator;"

(33) If the record is perused it is clear that all the members of SEC marked the applicant non-compliant in respect of the documentary proof of licenced, qualified and experienced pilots and crew. The requirement was for qualification certificates, licences, and comprehensive curriculum vitae for every participating crew member. The applicant had provided all these documents, save for two of the twelve crew members, whose licences and medical certificates were not provided.

(34) This is in stark contrast to the second respondent, who did not submit any supporting documents for their crew. The first respondent disclosed that the second respondent had been allowed to furnish supporting documents at the facilities inspection, after the bid had closed. Unfortunately the same concession was not granted to the applicant and the applicant had not been aware of these actions by the first respondent at the time.

(35) A further co plaint by the applicant is that, although it had provided a video showing that it had extensive experience in deck or cargo slinging over distances not exceeding 200km and that it had offload/backload cargo capacity, it was certified as non-compliant in these respects. This decision and finding by the first respondent are inexplicable.

(36) Furthermore, Mr Devanuthan, the deponent to the first respondent's affidavit, had scored the applicant 5/5 for experience, justifying this score by referring extensively to the capacity and experience with the Titan Helicopter Group. It must be emphasized that the applicant is part of the Titan Helicopter Group, whose aircraft and crew are made available to the applicant to enable it to bid for South African Government contracts. This is done to empower previously disadvantaged people and entities and therefor the

experience of pilots and crew employed in the Titan group, was relevant in the applicant's bid and was known to the BEC. Mr Devanuthan, furthermore in the answering affidavit, set out at paragraph 68:

"The low score for reference is due to the fact that the applicant provided a single reference only, which pertained to services rendered from George Airport in the Western Cape to various offshore installations. This did not comply with the bid requirements i.e. operations in a harsh and hostile environment. The applicant did not have 'Antarctic' (harsh conditions) experience, which was an absolute necessity".

This is in contrast to his scoring of the applicant.

(37) It is enlightening to mention the evaluators' comments in regards to the applicant's bid and relationship with the Titan Helicopter Group..

Evaluator 1:

"Petro SA since 2008 from George. Subsidiary of THG Amo Titan does maintenance, lndwe since 2002. THG and lndwe agreement terminate October 2018. Pilots are experienced but most of the relevant experience is with Titan and lndwe experience is limited".

Evaluator 2:

''The company has a capability to do the operations and have experience in working in the harsh conditions. The management and the crew is well experienced".

Evaluator 3:

"The bidder's team comprises of what is required in terms of this bid. The team also have the necessary experience and track record. The bidder (company) itself doesn't have the minimum required experience for the services required, however the holding company THG, does have the necessary experience and track record."

Evaluator 4:

"Experience- Antarctica, Marion and Gough Islands, 8 years of experience through the Titan Helicopter Group (THG) - which allows them flexibility in terms, when there are emergencies - back-up.

Tables 1 - 5 compliant with all.

Offering 3 options of helicopters that have various cargo, weight grading also in duplicate.

Social relevant capacity building within schools and communities in the Western Cape.

Operating certification to be verified should they be nominated.

CV's of the team (have all 10) others and ad hoc basis including permanent. Most of their permanent crew have extensive experience which demonstrate capability of staff to execute the work as required from the specs".

(38) Unfortunately, Mr Devanuthan, in his answering affidavit, sought to justify the disqualification of the applicant, by alleging that the video shown was that of the Titan Helicopter. This begs the question as to why, when he was a member of the BEC, he scored the applicant highly, having regard to the fact that the applicant relied on the Titan Helicopter Group and that he referred, in glowing terms, to the applicant's reliance on Titan Helicopter Group.

(39) The BEC had to verify that the bidder could carry sufficient spares, personnel and expertise to provide uninterrupted service for the full duration of each expedition. The BEC was informed that the relevant spares of the applicant were stored in Cape Town, whilst the BEC's inspection took place in George. The BEC did not accept the invitation to inspect the Aircraft Maintenance Organization in Cape Town and without any inspection marked the applicant non-compliant in respect of spares.

(40) The BEC's evaluation of the second respondent's facilities was in complete contrast to that of the applicant, where even the aircraft

proposed being used for the tender by the second respondent could not be inspected, as these aircraft were not stationed in South Africa and were not available for inspection.

(41) The first respondent's response to this was that the second respondent had satisfied this requirement as it demonstrated sufficient spares in respect of BK117, whilst, the second respondent, in reality, would be flying Bell 412 helicopters. This can hardly be described as rational considerations, as the two types of aircraft are completely different and could not be compared in this manner.

(42) The applicant was also marked non-compliant in respect of extensive deck or cargo slinging experience, in spite of having proved such experience on the video supplied to the first respondent. This was, in any event, at odds with the confirmation in Table 1 Item 5 as well as Table 3 Item 2, where the applicant was marked compliant from the video material that had been submitted. There is no rational explanation for this discrepancy at all. The capacity to offload/backload cargo was similarly demonstrated in the video, but once more, the applicant was marked non-compliant.

(43) Once more Mr Devanuthan, in the answering affidavit, tried to explain it by alleging that the applicant did not have the necessary experience and capacity, without the Titan Helicopter Group. This is extremely strange, as Mr Devanuthan had on his own evaluation score, being part of the BEG, scored the applicant 5/5 for experience and when justifying this score he dealt extensively with the Titan Helicopter Group. The principles enunciated in the National Lotteries case[11] applicable, as Mr Devanuthan could not rectify his score sheet in the answering affidavit.

(44) The BEG marked the applicant non-compliant in regards to the requirement whether the bidder carried sufficient spares to provide uninterrupted service for the full duration of each expedition. This, the BEG did, although the applicant had at the meeting in George, invited all the members of the BEG to inspect its Aircraft Maintenance Organization in Cape Town, which they did not do and therefor could not comment on this requirement.

(45) This would not have been so odd, had the SEC treated the second respondent in the same manner with regards to spares. The second respondent was marked compliant, although all their aircraft, if their bid was to be accepted, were located outside of the Republic of South Africa. The first respondent's reply to criticism of this by the applicant, was that Item 14 of Table 3 should have been understood as a capacity to forecast spares requirement and as already shown above the second respondent's forecast was in respect of the BK117, and not the Bell helicopters, which were to be used by the second respondent. There is absolutely no indication in the Rule 53 record of any forecasting exercise relating to spares. Table 3 dealt with the availability of spares and not the forecasting of the availability of spares.

(46) These double standards once more exacerbated the impression of irrationality and unfairness. Mr Devanuthan miscalculated the price

that lndwe bid for, in order to justify granting the tender to the second respondent, in circumstances where the second respondent's bid was substantially higher, in the amount of R40 million, than that of the applicant. He, furthermore, suggested that certain of the applicant's pilots and crew licences had expired.

(47) Mr Devanuthan, who on the face of it, initially supported the applicant's bid, in the answering affidavit tried to justify his about turn by making allegations in respect to the fact that some of the applicant's pilot and crew licences had expired - this was patently wrong. He further deals with the video and the site inspections and makes wrong allegations pertaining to the invitation

to visit the spare division of the applicant in Cape Town, the requirement dealing with spares, the applicant's slinging capacity

and the request to provide the applicant's transformation plan.

(48) It is quite clear that apart from bidding much lower than the second respondent, the applicant was objectively able to provide the

required services. At the time that the BEC evaluated the bid, Mr Devanuthan was convinced that the applicant could provide the

services and he scored the applicant as such. His about turn only occurred when he deposed to the answering affidavit and, most

probably, realized that the successful bidder had been granted the tender at a much higher amount than that which the applicant had bid for.

(49) The first respondent had to apply the test as set out in the Allpay case[12] that "strict and equal compliance by all competing tenderers on the closing day for submission of tenders" and if it had done so the second respondent would not have been awarded 3/5 for references and would have failed the functionality test of 75%.

(50) I cannot but find that excluding the applicant at the functionality test, under all these circumstances as set out above, must be

regarded as unjustifiable, irrational and inconsistent with section 217 of the Constitution[13]. An unlawful application of the functionality test, according to the Preferential Procurement Policy Framework Act[14] (" PPPFA" ) regulations, resulted in the second respondent being granted the tender.

(51) I must come to the conclusion that the applicant was unfairly treated as the second respondent was afforded opportunities to supplement its bid, after the closing date of the tender. It is clear from Mr Devanuthan's explanation, for applying double standards in respect of the applicant and the second respondent, that the applicant had not been treated procedurally fairly in the adjudication of its bid by the first respondent.

(52) It is clear from the Rule 53 record that the first respondent utilized a mechanical approach by awarding one point for each reference, without examining the references and evaluating them properly. It begs the question that Mr Devanuthan was the member of the BEC who had dealt with this question of references in a proper manner, but in the answering affidavit chose to try and mitigate his scoring and even negating it.

(53)

Although the second respondent warned the court of the consequences of "fronting", I cannot find that there was fronting in this case, as the video submitted clearly showed Titan Helicopter Group's previous services to the first respondent. There was no attempt to hide the fact that the applicant would, as a subsidiary of Titan Helicopter Group, make use of their equipment and expertise.

REMEDY:

(54) According to the second respondent the setting aside of the tender would be disastrous. The second respondent transports cargo and personnel to the South African Antarctic Territory and has been doing so successfully, for at least two years. Food, equipment and fuel have to be transported to the base and waste material must be removed. Due to the extreme climate and weather conditions, this can only be done by helicopters. The second respondent's argument is that, should the court grant the relief sought by the applicant, the operations and people in Antarctica will be at risk and the scientific research being conducted will be undermined. The court is mindful that should it set the tender aside, it should consider that a just and equitable result prevails as set out by Froneman J in Allpay[15].

(55) It is important to note that the second respondent concedes that there had been some irregularities in the decision-making process. Nevertheless, the second respondent argues that, as the tender has been granted for four years, it should not be set aside at this stage, as the consequences of such action would be too severe to all. It will place the Antarctic expeditions and the 11 countries that rely on the Republic of South Africa to provide search and rescue operations, if necessary, at risk.

(56) I have been referred to the Allpay decision[16] by the Constitutional Court, where it was found that although the tender had been awarded irregularly and unlawfully, setting it aside would result in untenable prejudice. The solution in the Allpay case[17] was to keep the contract in place, until a new tender was awarded. This is the remedy that the applicant requests the court to grant the applicant.

(57) The service level agreement was concluded on 16 March 2017, which lead to the second respondent purchasing two helicopters and assembling a permanent crew of twelve members. The total cost incurred was R10 million. The second respondent argues that if the tender should be set aside, it will take at least six months for a new tender process, and a minimum of eleven months before another service provider would be able to take over the tender and provide the same service.

(58) These facts are common cause and are not in dispute. The solution to this problem, according to the applicant, is to suspend the order for eleven months so that there will be no break in the services rendered.

(59) The court must consider what the Constitutional Court held in Steenkamp NO v Provincial Tender Board, Eastern Cape[18] held:

"It goes without saying that every improper performance of an administrative function would implicate the Constitution and entitle the aggrieved party to appropriate relief. In each case the remedy must fit the injury. The remedy must be fair to those affected by it and yet vindicate effectively the right violated. It must be just and equitable in the light of the facts, the implicated constitutional principles, if any, and the controlling law. It is nonetheless appropriate to note that ordinarily a breach of administrative justice attracts public-law remedies and not private-law remedies. The purpose of a public-Jaw remedy is to pre-empt or correct or reverse an improper administratiev function. In some instances the remedy takes the form of an order to make or not to make a particular decision or an order declaring rights or an injunction to furnish reasons for an adverse decision. Ultimately the purpose of a public remedy is to afford the prejudiced party administrative justice, to advance efficient and effective public administration compelled by constitutional precepts and at a broader level, to entrench the rule of Jaw."

(60) Having regard to both sections 8 of PAJA[19] and section 172(1)(b) of the Constitution[20] and the principles set out in the authorities mentioned above, I have to determine a just and equitable remedy in these particular circumstances.

(61) I have considered all the papers, the heads of argument, the decisions referred to and have taken note of the concession by the second respondent that some irregularities had occurred during the tender process.

(62) I find that the tender has to be reviewed and set aside due to all the reasons dealt with in my judgment. A contract cannot be allowed to continue, where it was clearly granted contrary to the provisions of section 317 of the Constitution[21] and the relevant provisions of the PFMA[22] . Such a state of affairs cannot be allowed and is untenable.

(63) In the result the following order is granted:

1. The first respondent's decision to award the tender, more fully described as E1338, for the Appointment of the Service Provider for the Provision of Helicopter Support Service with Full Crew and Compliment for the Branch: Ocean and Coasts, seasonally for a period of 4 years to Ultimate Heli (Pty) Ltd, is reviewed and set aside as invalid.

2. This order is suspended for a period of 11 months to allow the first respondent to award a new tender after completion of the new tender process.

3. The new tender process must be initiated within 15 days of this order.

4. The second respondent must continue providing the services as required, until a new tender has been awarded, within 11 months of this order.

5. The new request for proposals for the new tender must not interrupt the services provided by the second respondent.

6. The respondents must pay the costs of the application, jointly and severally, the one to pay, the other to be absolved.

Judge C Pretorius

Case number

: 14576/2017

Matter heard on

: 30 October 2018

For the Applicant : Adv M Chaskalson SC

Adv C Tabata

Instructed by

: Ramsay Webber Incorporated

For the 1st Respondent : Adv DA Preis SC

Adv C Janse van Rensburg

Instructed by

: The State Attorney

For the 2nd Respondent : Adv A Subel SC

Adv K Hofmeyr :

Instructed by

: Terry Mahon Attorneys

Date of Judgment : 27 November 2018

[1] Act 3 of 2000

[2] Act 108 of 1996

[3] Act 1 of 1999

[4] Issued on 3 September 2010

[5] Supra

[6] Supra

[7] 2014(1) SA 604 CC at paragraph 45

[8] (2895 2 /2016) [2016] ZAGPPHC 351 (13 May 2016) at paragraph 43

[9] 2012 (4) SA 504 (SCA) at paragraph 27

[10] Supra

[11] Supra

[12] Supra

[13] Supra

[14] Act 5 of 2000

[15] Supra at paragraph 45

[16] Supra

[17] 2014(1) SA 604 CC at paragraph 78

[18] 2007 (3) SA 121 (CC) at paragraph 29

[19] Supra

[20] Supra

[21] Supra

[22] Supra