Palm Stationery Manufacturers (Pty) Ltd and Another v Acting Head of Department: Mpumalanga Department of Education and Others (4080/2018) [2019] ZAMPMHC 18 (15 November 2019)

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION (MAIN SEAT)

CASE NUMBER: 4080/2018

PALM STATIONERY MANUFACTURES (PTY) LTD

AND MELI DATA MATRIX SOLUTIONS (PTY) LTD

JOINT VENTURE APPLICANT

And

ACTING HEAD OF DEPARTMENT: MPUMALANGA

DEPARTMENT OF EDUCATION 1ST RESPONDENT

MEMBER OF THE EXECUTIVE COUNCIL,

MPUMALANGA DEPARTMENT OF EDUCATION 2ND RESPONDENT

FREEDOM STATIONERY (PTY) LTD 3RD RESPONDENT

JUDGMENT

LEGODI JP

[1] Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior court and of any tribunal board or officer performing judicial, quasi-judicial or administrative functions shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer, chairman of the tribunal or board or to the officer as the case may be, and to all other parties-

(a)…….

(b) calling upon the magistrate, presiding officer, chairman or officer, as the case may be, to despatch, within fifteen days after receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside, together with such records as he is by law required or desires to give or make, and to notify the applicant that he has done so[1].

[2] While there may be no merit in the premise that the whole record of proceedings has to be furnished irrespective of whether or not it is relevant to the review, in order for the rule to fulfil its purpose in ensuring that all relevant evidential material is placed before court, it is self-evident that all portions of the record relevant to the decision in question should be made available’[2].

[3] What forms part of rule 53 record? The current position in our law is that with the exception of privileged information, the record contains all information relevant to the impugned decision or proceedings. Information is relevant, if it throws light on the decision-making process and factors that were likely at play in the mind of the decision maker[3] .

[4] The present proceedings are about whether the first and second respondents, namely Education, Mpumalanga Provincial Government and Member of the Executive Council for the Department of Education Mpumalanga, should be ordered to disclose the bid documents of the third respondent, Freedom Stationery (Pty) Ltd as part of the record of the decisions or proceedings sought to be reviewed.

[5] The applicant, Palm Stationery Manufactures (Pty) Ltd in joint venture with Mveli Data Matrix Solutions (Pty) Ltd, was one of the bidders in a tender which was issued by the first respondent in January 2019 for the appointment of a service provider to manufacture, package and deliver scholastic stationery to Public Education Institutions in the Mpumalanga Province for a period of three academic years.

[6] The tender was awarded to third respondent (Freedom Stationery) and the applicant, (Palm Stationery’s) outright exclusion to the tender process became an issue. Aggrieved by its outright exclusion and the award of the tender to Freedom Stationery, Palm Stationery launched an application to review and set the decision of 6 June 2019 awarding the tender to Freedom Stationery. The review application in which Palm Stationery wants the contract entered into between the state respondents and Freedom Stationery be declared invalid ab initio and of no force and effect, is still pending. Further relief sought, is that the state respondents be ordered to reconsider all the bids submitted within a period of fourteen (14) days from date of the order. Alternatively, that any just and equitable remedy be granted in the circumstances of the case.

[7] The present proceedings serve as an interlocutory application. The issue being whether the state respondents should be ordered to disclose as part of the record for the decision, the bid documents of Freedom stationery. Freedom Stationery as a successful bidder is resisting the relief for the disclosure of its bid documents. The state respondents elected to abide by the decision of this court. The fight in the present proceedings is therefore between Palm Stationery and Freedom Stationery.

[8] I will confine myself to the issue at hand. It is however important to emphasise that the ruling sought to be reviewed is premised on an outright exclusion of Palm Stationery from the bidding process. ‘The third respondent’s bid is utterly irrelevant to that ruling. It is submitted that it follows that the third respondent’s bid should not properly form part of the Rule 53 record’, so was the contention made on behalf of Freedom Stationery.

[9] I am unable to agree to this contention. First, the relief sought in the review application is to be preceded by the disclosure

of the Freedom Stationery’s bid documents. That relief is to set aside the award of the tender to Freedom Stationery and to send the matter back to the state respondents for reconsideration. To see the relief sought in the main review application as being confined only to automatic exclusion of the Palm Stationery bid documents and the rest being irrelevant, is misplaced.

[10] Freedom Stationery’s bid documents cannot be utterly irrelevant to the review proceedings. The setting aside thereof is the subject of the dispute in the review application. That being so, it is important not to forget what the purpose of Rule 53 is. It is to “facilitate and regulate applications for review[4]. This will appear clearer when I deal with the case law on point.

[11] The requirement in Rule 53(1)(b) that the decision-maker file the record of decision is primarily intended to operate in favour of an applicant in review proceedings. It helps to ensure that review proceedings are not launched in the dark[5]. The record enables the applicant and the court fully and properly to assess the lawfulness of the decision making process. It allows an applicant to interrogate the decision and, if necessary, to amend its notice of motion and supplement its grounds for review[6]. Without a record, a court cannot perform its constitutional entrenched review functions, with the result that a litigant’s

right in terms of section 34 of the Constitution to have a justiciable dispute decided on a fair public hearing before a court

with all the issues being ventilated, would be infringed[7].

[12] The filing of the full record furthers an applicant right of access to court by ensuring both that the court has the relevant information before it and that there is equality of arms between the person challenging a decision and the decision-maker. Equality of arms requires that parties to the review proceedings must each have a reasonable opportunity of presenting their case under conditions that do not place them at a substantial disadvantage vis-a vis their opponents. This requires that all the parties have identical papers before them when the matter comes to court[8].

[13] Undeniably, Rule 53 record is an invaluable tool in the review process. It may help; shed light on what happened and why; give the ice to unfounded ex post facto (after the fact) justification of the decision under review in the substantiation of as yet not fully substantiated grounds of review, giving support to the decision maker’s stance; and in the performance of the reviewing court’s function[9].

[14] Inasmuch as Freedom Stationery moves from the premises that its bid documents are ‘utterly irrelevant’ to the relief sought by Palm Stationery in the review application, contrary finding to this contention will expose Freedom Stationery to no defence for its refusal to provide the requested documents under Rule 53(1) which documents are identified in Rule 30A notice as:

‘(i) The record of the proceedings resulting in the decision sought to be corrected or set aside, including but not limited to:

(a) all documents which served before the BEC, the BAC and the first respondent when the decision was taken;

(b) all reports, contemporaneous notes, scoring sheets, recommendation of the BEC, BAC and first respondent; and

(c) the bid of the successful tenderer, the third respondent’.

[15] Refusal to provide or make disclosure of Freedom Stationery’s bid documents, in my view, is aimed at defeating the very essence of Rule 53 as articulated in the case law referred to in paragraphs 10 to 13 of this judgment. Paragraph [16] of its written heads argument, Freedom Stationery seems to suggest that it is not obliged to produce all relevant documents. The contention seems to be premised from what was held in Helen Suzman Foundation case. But, blanket refusal to disclose records of the decision cannot be allowed and the case law is very clear on this aspect.

[16] In what is titled “The conspiracy theory”, Freedom Stationery in paragraph 23 of its written heads of argument inter alia, states:

“In employing emotive language in place of legal argument, the applicants attempt to create the impression that there is something sinister in the third respondent’s desire to keep its admittedly confidential information private in circumstances where there is no compulsion to do otherwise. It also vaguely suggests that the Department is guilty of furtive misconduct to page 409 (SFA p 261 para 34). It is sufficient to refer to the Department’s response (Mgwenya, p 407, para 16 to p 409, para 19). From the third respondent’s perspective, there can hardly be anything sinister in wishing to retain as confidential material that has no relevance to the applicant’s review application”.

[17] One thing first. ‘No relevance to the applicant’s review application’ about something which Palm Stationery is not privy to, is neither here nor there. It is Freedom Stationery and the decision-maker who know what is in those bid documents. Without the record, a court cannot perform its constitutionally entrenched review function, with the result that a litigant’s right in terms of section 34 of the Constitution to have a justifiable dispute be ventilated in a fair public hearing before a court with all the issues, would be infringed.

[18] Anything short of full disclosure of Freedom Stationery’s bid documents would be to throw the applicant under the bus. The applicant will be denied the right to have the record of the decision to operate in its favour as an applicant in the pending review proceedings. It will be to deny the applicant the assurance that review proceedings are not launched in the dark.

[19] As held in Helen Suzman Foundation case in para [26]: ‘…Rule 53 process differs from normal discovery under Rule 35 of the Uniform Rules of court. Under Rule 35 documents are recoverable if relevant; and relevance is determined with reference to the pleadings. So, under the Rule 35 discovery process, asking for information not relevant to the pleaded case would be a fishing expedition. Rule 53 review are different. The rule envisages the grounds of review changing later. So, relevance is assessed as it relates to the decision sought to be reviewed, not the case pleaded in the founding affidavit’. (My emphasis).

[20] Furthermore, and coming to the second leg of the quotation in paragraph [16] above, that is, the refusal to provide documents based on the fact that they are covered by confidential-privilege, it is also important to bear in mind that the fact documents contain information of a confidential nature does not per se in our law confer on them any privilege against disclosure[10].

[21] What is considered to be a positive development, our courts place emphasis on the fact that deliberations are relevant to the enquiry as to what it is that informed the decision[11]. I tend to agree with what was argued in Helen Suzman Foundation[12] with reference to the SCA decision that, the decision not to provide the record based on irrelevance, undermines procedural factors,

curtails the efficacy of Rule 53 in a manner inconsistent with open, transparent decision-making; undermines the ability of court to exercise their power of judicial review; and encourages selective disclosure by respondents in review applications.

[22] Parties who participate in tender bids particularly in the public sector where public funds are involved, must be prepared to be transparent and play open cards when tender decisions in their favour are challenged. It cannot be right to impede a challenge by hiding behind confidentiality privilege. Is there any legally cognisable basis that such documents in the present case should nonetheless be excluded from a Rule 53 record?

[23] Insofar as Freedom Stationery might have wanted to use confidentiality point to protect its commercial information, although

that is not articulated strongly in its opposing papers, it is important to mention that this type of information is routinely

disclosed in civil proceedings where that is necessary. ‘It would be an oddity for it to be suggested that this should not be so. Indeed, confidential commercial information about private business for a variety of purpose has an interest in the protection of confidential information submitted to it, because third party may otherwise be unwilling to co-operate’[13].

[24] In Bridon case referred to in footnote 13, a confidential commercial information belonging to it was divulged to an organ of state to enable it to exercise its anti-changing investigative powers in terms of an Act of Parliament. The recommendation was made to the relevant Minister to take a decision that would affect another party Casar Drahtseiwek Saar GMBH (Casar), being Bridon’s competitor. The recommendation was acceded to by the Minister. Casar, like in the present proceedings instituted proceedings in which it sought the review of both the Consortium Recommendation and the Minister’s decision. In complying with Rule 53, disclosure of Bridon’s confidential commercial information was refused. This was on the basis that, in terms of Part D of Chapter 4 of the International Trade Administration Act, the information could be divulged only with the consent of Bridon. This stance led to an interlocutory application by Casar that the Commission be compelled to furnish the information in terms of Rule 53. The High Court granted that application subject to a strict confidentiality regime. An appeal by Bridon to the Supreme Court of Appeal was unsuccessful.

[25] Dealing with the facts of the case in Bridon, Madlanga J in Helen Suzman Foundation at para [49] held:

“Crucially for present purposes, the effect of what the Supreme Court of Appeal held – correctly so – was that Bridon’s confidential commercial information was subject to disclosure under Rule 53. Of course, the Supreme Court of Appeal upheld the High Court’s strict confidentiality regime”

[26] There is no closed list of what may constitute privilege. The test is based:

“On a judicial evaluation of the balance between two conflicting public interests. On the one hand there is the public interest in finding the truth in court proceedings. This is to be weighed up against the countervailing public interest when sometimes requires that the confidentiality of information be mankind”[14].

[27] Whether or not the information or documents sought to be withheld qualify for public interest privilege, the Freedom Stationery in the present case laid no facts upon which such a claim can legitimately be made. However, in Helen Suzman Foundation case, in the third judgment, it was held as follows in rejecting the confidentiality point:

“Even if access to the deliberations of the JSC are limited to the parties and their lawyers, the material in the deliberations is likely to find its way into affidavits and oral submission made by the parties.”

[28] In para [73] of the majority judgment in Helen Suzman Foundation case, it was held:

“This is not true of all confidentiality regimes. Some can and do impose very stringent conditions with the result that it becomes unlikely that the confidential material may be divulged beyond the category of people who should rightly have it...”

[29] In terms of Rule 30A notice, Palm Stationery in the present case tendered receipt of Freedom Stationery’s bid documents under confidentiality regime in terms of which only the legal representatives of Palm Stationery would view the confidential aspects of the bid. According to Palm Stationery this tender was more than reasonable in the circumstances. I tend to agree.

[30] However, Freedom Stationery instead of addressing the court on confidentiality, it branded the request by Palm Stationery as

‘impermissible, unlawful and manifestly constitutes a fishing expedition’. For this, Freedom Stationery contended in its communication dated 17 July 2019 that its bid documents have no relevance to the central issue in the matter.

[31] Clearly no basis has been laid for the confidentiality on the Freedom Stationery bid documents. Instead, irrelevance of its documents have been relied upon as the main ground for refusal to make such a closure. I have dealt with this aspect earlier in this judgment. Freedom Stationery is clearly mistaken in this regard. The decision by the decision-makers in awarding the tender to Freedom Stationery is sought to be reviewed. That places the contention of irrelevance out of the way. The opposition to the relief sought in paragraph 1 of the amended notice of motion is therefore destined to be rejected.

[32] At the risk of repetition and in conclusion to the much repeated contention for reliance on Helen Suzman Foundation case, paragraph

[25] was used as the ace-card for the argument and alleged entitlement not to disclose the requested information and or documents. The simple contention was that the requested documents were irrelevant with regard to the pleaded case. Part of what was relied upon in paragraph [25] reads: “…What must be disclosed is information relevant to the impugned decision’. This ignores what is immediately held after this statement. That is, “Unsurprisingly, a review applicant may not have pleaded certain issues that bolster her or his challenge exactly because she or he was not aware of their existence.”

[33] It is always a problem to argue a case based on selective principle set out in a particular case law or statute. It amounts to arguing case on a half-baked cake. For example, to pick up in paragraph [25] of Helen Suzman Foundation case the wording: ‘What must be disclosed is information relevant to the impugned decision’ and then ignore the rest or context thereof is bound to lead one to argue out of context as it has happened in the present case.

[34] Furthermore, if it was not for dealing with the case law relied upon out of context with reference to paragraph [25] in Helen Suzman Foundation matter, the argument would have been bought to rest immediately because paragraph [26] thereof referred to in paragraph [19] of this judgment, is instructive on the issue.

[35] Perhaps counsel for Freedom Stationery was correct in conceding that he should have been ‘measured’. I want to believe, on his insistence that allowing disclosure of what is not pleaded under rule 53 would amount to a fishing expedition. I say so because the issue of fishing expedition and pleaded case does not arise under rule 53, but rather under rule 35 as clearly spelled out in paragraph [26] of Helen Suzman Foundation case.

[35] Consequently, an order is hereby made as follows:

35.1 The first respondent, Acting Head of Department of Education Mpumalanga Provincial Government is hereby ordered to disclose bid documents of the third respondent, (Freedom Stationery (Pty) Ltd) within seven days upon handing down of this judgment.

35.2 The bid documents of the third respondent shall be so disclosed to the applicant’s legal representatives for the purpose of reviewing the decision of the first respondent and if need be to amend the relief sought and or supplement its founding papers in the review application.

35.3 The third respondent, Freedom Stationery (Pty) Ltd to pay the costs of the application.

35.3 No order as to costs is made against the first and second respondent.

LEGODI JP

DATE OF HEARING: : 10 OCTOBER 2019

DATE OF JUDGMENT : 15 NOVEMBER 2019

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[1] Rule 53(1) (b) of the Uniform Rules

[2] Ekuphumleni Resort (Pty) Ltd and Another v Gambling and Betting Board, Eastern Cape & Others 2010(1) SA 228 (E) at para [9]

[3] Helen Suzman Foundation v Judicial Service commission 2018 (4) SA 1 CC at para [17]

[4] Jockey Clubs of South Africa v Fobes 1992 ZAASCA 237, 1993(1) SA 649 (1) at 661

[5] See Jockey Club SA at 660G, see also Helen Suzman Foundation v Judicial Service Commission 2018(4) SA 1 CC at para 13

[6] See further Helen Suzman Foundation para 13

[7] See Helen Suzman Foundation No supra at para 14; see also

[8] See Helen Suzman Foundation at para 15, see also Turnbull-Jackson v Hibiscus Court Municipality [2014] ZACC 24; 2014(6) SA 592 (CC)

[9] See Turnbull-Jackson no 7 supra at para 37

[10] See Helen Suzman Foundation supra at para 17

[11] See Helen Suzman Foundation supra at para 19, see also City of Cape Town v South African National Roads Agency Ltd [2013] ZA WCHC 74 at para 48

[12] Para [6] thereof

[13] Bridon International GMBH vs International Trade Administration Commission 2013(3) SA 197 SCA at para 25, see also Helen Suzman

Foundation case supra at 48

[14] See Helen Suzman Foundation at para [59]