Randcivils CC v Minister: Department of Rural Development and Land Reform and Another (938/2015) [2015] ZAECPEHC 20 (7 April 2015)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, PORT ELIZABETH

CASE NO: 938/2015

Date heard: 19 March 2015

Date delivered: 7 April 2015

In the matter between

RANDCIVILS CC................................................................................................................Applicant

And

THE MINISTER: DEPARTMENT OF

RURAL DEVELOPMENT AND LAND REFORM.............................................First Respondent

RUWACON (PTY) LTD......................................................................................Second Respondent

Application for urgent interim relief pending review of award of tender – applicant seeking reasons for decision and suspension of implementation of award – first respondent failing to respond to repeated requests for reasons and to request for undertaking

regarding implementation of tender – opposing application but only delivering answering affidavit on day of hearing – reasons for decision then supplied – conduct of first respondent in breach of its Constitutional and statutory obligations – such conduct necessitating application by applicant – fact that matter resolved on day of hearing not depriving applicant of right to costs of interim application – first respondent ordered to pay costs of that part of application.

JUDGMENT

GOOSEN, J.

[1] This is an interim application to compel the furnishing of reasons for an administrative decision by the first respondent and to suspend the implementation of a tender awarded to the second respondent. The relief is sought pending an application to review and set aside the decision of the first respondent to award a tender to the second respondent. The interim relief is set out in Part A of the notice of motion.

[2] The first respondent filed a notice of opposition to the application, but did not file any opposing affidavits until the day of the hearing. The second respondent, the successful tenderer, filed both a notice of opposition and answering affidavits opposing the relief sought by the applicant. At the hearing of the matter I was informed by the applicant’s counsel that the applicant and second respondent had reached an agreement in relation to the matter, the consequence of which was that the applicant would withdraw its application. I was informed that since the first respondent had, in its answering affidavits, supplied the reasons sought by the applicant it was not pursuing any substantive relief against the first respondent. The only issue was that of costs since the applicant and first respondent had not reached agreement on this issue.

[3] It is important to bear in mind, for the purposes of determining the liability for costs, that the application before court concerned only the question of the interim relief sought by the applicant. The interim relief concerned, principally an order for the furnishing of reasons for an administrative decision and, to the extent necessary, a further order suspending the implementation of the award of the tender.

[4] As indicated the first respondent handed up a set of answering papers to the applicants founding affidavit at the hearing of the matter. It was common cause that the reasons for the first respondent’s decision as had been requested by the applicant were set out in the answering affidavit. It was therefore common cause that the principal relief sought by the applicant in Part A of the notice of motion was no longer required by reason of the delivery of the answering affidavit.

[5] The following facts are relevant in determining the question of liability for costs. The applicant received notice that its tender was unsuccessful on 23 January 2015. The applicant requested a meeting with the first respondent on 27 January 2015. That meeting was held on 28 January 2015. On 30 January 2015 the applicant formally requested reasons for the first respondent’s decision as well as an undertaking to suspend the implementation of the tender pending the furnishing of those reasons and the setting aside of the award of the tender. The first respondent did not respond to the request.

[6] On 12 February 2015 the applicant’s attorneys addressed a letter to the first respondent again requesting the reasons. No response was received to that letter. On 27 February 2015 the applicant was provided with certain requested documents, pursuant to a formal request for such documentation in terms of the Promotion of Access to Information Act.[1] Thereafter, on 3 March 2015 the applicant’s attorneys requested an undertaking to suspend the implementation of the tender. Again no response was received to this letter. When the deadline set for a response expired on 6 March 2015, the applicant’s attorneys advised the first respondent that the applicant would bring this application. Again no response was received to this communication and on 10 March 2015 the application was launched.

[7] A notice of opposition was filed by the first respondent on 11 March 2015. No reasons for the administrative decision were furnished by the first respondent until the afternoon of 18 March 2015, the day before the hearing of the application, when an unsigned answering

affidavit was presented to the applicant’s attorneys. The signed affidavit was handed in at court on the day of the hearing of the application. In that affidavit, the first respondent, for the first time, supplied reasons to the applicant pursuant to its request.

[8] The first respondent is an organ of state and it is obliged not only to comply with the Constitution, but, in its conduct to promote the spirit, purport and objects of the Constitution. The first respondent is accordingly obliged to give effect to the rights enshrined in the Bill of Rights and to ensure that such legislation as has been enacted to give effect to the rights enshrined in the Bill of Rights, in this instance the right of access to information and the right to fair and just administrative action, are strictly complied with.

[9] The applicant requested reasons on several occasions and was not afforded the courtesy of a reply. The first respondent, although

filing notice of opposition, did not file its opposing affidavits until the day of the hearing. In those answering affidavits it

supplied reasons for its conduct for the first time. Those reasons, coupled with other considerations, no doubt resulted in the

resolution of the application, at least in so far as the interim relief is concerned. The answering affidavit provides no reason why the applicant’s formal request could not be complied with or why it was not afforded the courtesy of a reply to its correspondence.

[10] During argument it was suggested that the reasons were nevertheless supplied with in the period of 90 days for which provision is made in section 5(2) of the Promotion of Administrative Justice Act[2]. That can hardly avail the first respondent. The first respondent is under an obligation to provide reasons, particularly where those reasons are readily available, at the earliest possible opportunity and it cannot hide behind the 90 day period for which provision is made in section 5(2) (cf. Sikutshwa v MEC for Social Development, Eastern Cape 2009(3) SA 47 (TkH)).

[11] The applicant has achieved success in relation to the primary relief it sought at this stage of the proceedings. In order to obtain the reasons now furnished by the first respondent it was obliged to launch the application. The first respondent was aware that the applicant was intending to bring proceedings in order to compel the production of reasons, as well as to order the suspension of implementation of the tender. The first respondent was placed on terms to respond with in an appropriate time period and it failed to do so. The consequence was that the applicant launched this application. It does not avail the first respondent to suggest that it is not obliged to pay the costs of the application because the matter has been settled as between the parties. It must be accepted, as a matter of probability, that had the reasons been supplied at an earlier stage when the applicant first requested those reasons and had the first respondent responded appropriately to the applicant’s communications regarding the implementation of the tender, the application would not have been brought. It was argued that the applicant knew what the basis of the first respondent’s decision was even before the reasons were furnished. That also does not assist the first respondent. As already indicated the first respondent is under a Constitutional obligation to furnish. The fact that a party may be aware of what the likely reasons are for a decision cannot exempt a decision-maker from furnishing the reasons. The applicant in this instance was put to unnecessary costs of litigation in order to compel the first respondent to meet its constitutional obligations. In my view that entitles it to an award of costs.

[12] In the matter of Robcon Civils and Another v Kouga Municipality [2012] JOL 29752 (ECP), a similar set of circumstances was dealt with as follows by Eksteen J at paragraphs [24] and [25]:

[24] The Applicant requested material to which it was entitled during May 2005. It did not enjoy the courtesy of the response from the municipal manager for at least six weeks after the request was made and was lulled into a false sense of security by the correspondence

received from Aurecon. I consider that the first respondent acted in breach of its constitutional obligations imposed in section 217 of the Constitution. The following remarks of Van Coller J in Oosthuisen v LUR, Plaaslike Regering en Behuising en ‘n ander 2004 (1) SA 492 (O) … are apposite to the present matter:

‘Dit wil voorkom dat daar eintlik geen rede bestaan waarom die inligting nie behoorlik verstrek is nie. Indien dit wel behoorlik verstrek is, sou daar bes moontlik geen aansoek gewees het nie. Die volgende opmerkings van Colman R aangaande die optrede van die respondent in die saak van Howie NO v Essey 1963 (3) SA 402 (T) op 404A-B is na my mening ook hier van toepassing.

‘In my judgment, the respondent’s behaviour was unreasonable, uncooperative and discourteous. If she had behaved properly, and I’m speaking now not about compliance with legal obligations, but merely was normal and reasonable courtesy in a matter of business, the application would probably not have had to be made. In these circumstances I am not disposed to disallow any part of the applicant’s costs.’

In die lig van al die omstandighede is ek van mening dat dit billik sal wees indien geen kostebevel in hierdie aansoek gemaak word nie.’

[25] In the present matter, it is of course not merely reasonable courtesy which is an issue, but indeed the first respondent’s flagrant disregard for its constitutional obligations. Whilst it may be so that the first applicant afforded the respondent merely one court day to respond when it launched the application I consider that the conduct of the first applicant (sic) which gave rise to the application in the first place, far outweighs this consideration. In the circumstances it would be appropriate to order the first respondent to pay the costs of the application, including the costs which were reserved 4 August 2009, on a scale as between attorney and client.

[13] The latter remarks made by the learned judge are in my view apposite to the present matter. The applicant, however, does not seek a punitive costs order. It seeks only that the first respondent be ordered to pay the costs of the application in respect of the relief sought in Part A of the notice of motion.

[14] In my view, no reasonable grounds have been advanced by the first respondent, why the first respondent should not be ordered to pay the applicant’s costs. The first respondent was in breach of its constitutional obligations. Furthermore it acted with undue discourtesy in its dealings with the applicant which, on the probabilities, gave rise to the launch of these proceedings. As already noted, the applicant was put to the expense of bringing the application in order to compel the first respondent to meet its constitutional obligations. In my judgment it is appropriate that the first respondent be ordered to pay the applicant’s costs.

[15] I therefore make the following order:

The first respondent is ordered to pay the costs of the application in respect of the relief sought in Part A of the notice of motion.

G. GOOSEN

JUDGE OF THE HIGH COURT

Appearances: J. D. HUISAMEN SC

For the Applicant

Instructed by Joubert, Galpin & Searle

A. BEYLEVELD SC

For the First Respondent

Instructed by the State Attorney

F. W. A. DANZFUSS SC

Assisted by C.D. PIENAAR

For the Second Respondent

Instructed by Pagdens Attorneys

[1] Act 2 of 2000

[2] Act 3 of 2000