Wesley Pretorius and Associates Incorporated and Others v Amathole District Municipality and Others (1283/2019) [2020] ZAECGHC 41 (12 May 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case No: 1283/2019

In the matter between:

WESLEY PRETORIUS & ASSOCIATES INCORPORATED First Applicant

CLARK LAING INCORPORATED

Second Applicant

SMITH TABATA INCORPORATED

Third Applicant

And

AMATHOLE DISTRICT MUNICIPALITY First

Respondent

LIONEL TRICHARDT & ASSOCIATES

Second Respondent

ADVOCATE SHAHEED PATEL

Third Respondent

PATEL & ASSOCIATES

Fourth Respondent

THANDEKILE THEMBA MNYIMBA

Fifth Respondent

JUDGMENT

BESHE J:

NATURE OF THE RELIEF SOUGHT

[1] This is an application in which the applicants seek specific performance by the first respondent in terms of a contract for the provision of legal services by the applicants to the first respondent. The applicants further seek an order interdicting the first respondent from engaging second to fifth respondent from performing the legal services in respect of which they contend the first respondent is obliged to instruct them. Alternatively, an order to compel the first respondent to review its decision to appoint the second and fourth respondents to provide legal services to it. Alternatively, that first respondent be directed to terminate the mandates of the second to fourth respondents in all matters in which they have been instructed to render legal services. Also sought is an order that the first respondent be directed to render an account to the applicants in respect of all instructions given by it to the second to fourth respondents. That primarily is the relief sought by the applicants.

THE PARTIES

[2] The applicants are firms of attorneys with offices / addresses in East London.

[3] The first respondent is a municipality established in accordance with provisions of the Municipal Structures Act 117 of 1988, with its principal office in East London.

[4] The second respondent is also a firm of attorneys having its address at Somerset East.

[5] The third respondent is an advocate of the High Court of South Africa, with his address at Stanford Road, Gelvandale, Port Elizabeth.

[6] The fourth respondent is a firm of attorneys that also has its address at Stanford Road, Gelvandale, Port Elizabeth.

[7] The fifth respondent is first respondent’s Municipal Manager. He was joined as such in September 2019, the main application having been launched in April 2019. A costs order de bonis propiis is sought against the fifth respondent.

[8] The main application is opposed by the first and second respondents. With first respondent over and above the opposition making a counter application. After having been belatedly joined as a respondent, fifth respondent is also opposing the main application.

APPLICANTS’ CASE

[9] The following facts appear to be largely common cause:

Following a procurement process, the applicants were appointed to render legal services to the first respondent in October of 2016. An email from the office of the first respondent’s Municipal Manager dated the 10 October 2016 that is addressed to the applicant firms / representatives records the following:[1]

“This serves to confirm that Clark Laing Inc have been awarded the contract for legal services for the ADM for three years in respect of Litigation and general advisory services, together with Smith Tabata Inc, and Wesley Pretorius and Associates.

Your appointment is conditional on your accepting a reduction of your tendered rates to that of Smith Tabata, who’s bid was the lowest out of the three firms appointed. I attach a copy of the pricing schedule submitted by Smith Tabata.

Please can you confirm that your firm is prepared to reduce its tendered rates to be in line with the rates submitted by Smith Tabata, thereafter the contract can be concluded.

The intention is that the firms appointed will be briefed on a rotational basis.”

[10] Having accepted the appointment as aforementioned, the applicants were routinely allocated legal work by the first respondent.

[11] Applicants’ complaint is that during or about the early part of 2018, it came to their attention that the second to the fourth respondents had been engaged to render legal services to the first respondent in various matters. Applicants contend that this engagement was unlawful since the second to fourth respondents had not been appointed in terms of any lawful procurement process.

[12] The applicants proceed to enumerate pieces of legislation that regulate how organs of state, such as the first respondent, must procure goods and services. I did not understand the manner in which organs of state should procure goods and services to be in dispute. These are said to include:

Section 217 of the Constitution.

The Preferential Procurement Policy Framework Act 5 of 2000 (PPPFA).

The Municipal Finance Management Act 56 of 2003 (MFMA).

The National Treasury Regulations and Regulations promulgated in terms of MFMA and

The Supply Chain Management Policy of the first respondent.

[13] I do not intend to repeat the relevant provisions in view of the fact that I do not think that the applicability thereof is in dispute.

[14] It is contended that the manner in which the first respondent procured legal services from the second to fourth respondents was manifestly unlawful since the process of procurement in this regard was neither fair, equitable, transparent, competitive and not cost effective. That it is also irrational.

[15] The applicants cite examples of second to fourth respondents having been engaged to provide legal services to the first respondent. In March 2019 the second respondent was engaged to render legal services to the first respondent in respect of disciplinary proceedings against workers who had taken part in an unprotected strike in Butterworth. First applicant had been engaged by the first respondent to apply for an interdict in respect of the same strike which was duly obtained. There being an application in the Labour Court for the rescission of the said order, first applicant continued to represent the first respondent in the matter before the Labour Court.

[16] The second respondent has also been engaged to act for the first respondent in two other matters: Fraser Alexander v Amathole District Municipality & Others; as well as in respect of Public Protector’s Investigation in respect of the awarding of a tender to Blue Nightingale Trading. That third and fourth respondent were also engaged to provide legal services in the matters mentioned above as well as for the general provision of legal services to the first respondent.

[17] The second applicant was engaged to provide legal services in respect of the Fraser Alexander matter mentioned above during 2017.

[18] In respect of the Public Protector matter, the second applicant provided legal services to the first respondent during October 2018. It came to the applicants’ attention that the second respondent was engaged to represent an official of the first respondent Mr Armstrong in connection with the same matter. Applicant contends that this was unnecessary as Mr Armstrong had been summoned by the Public Protector in his official capacity.

[19] In respect of Keiskammahoek Restitution Committee v Minister of Rural Development and Land Reform and Others, the third applicant was engaged to represent the first respondent. A meeting was arranged between third applicant’s Mr Smith and the fifth respondent with a view of discussing the matter. The meeting was also attended by a Mr Trichardt of the second respondent and the third respondent.

[20] The applicants point out that the second to fourth applicants are not based in East London, warranting that they travel from Port Elizabeth and Somerset East and be accommodated in East London in order to render services to the first respondent. And that therefore their engagement is irrational and not cost effective.

[21] Based on this, the applicants contend that first applicant is in breach of its contract with them. Further that this has the effect of depriving them of an opportunity to perform work which they were contractually entitled to perform.

FIRST RESPONDENT’S RESPONSE AND COUNTER APPLICATION

[22] The granting of the relief sought by the applicants is opposed by the first, second and fifth respondents. In addition to such resistance, first respondent is making a counter application. In the counter application, a declaratory order setting aside the decision to appoint the applicants as legal advisors to the first respondent is sought.

[23] The fifth respondent, Mr Mnyimba, deposed to the opposing affidavit which encompasses support for the granting of the counter application.

[24] It is common cause that at the time of the appointment of the applicants as first respondent’s legal advisors, fifth respondent was not the first respondent’s Municipal Manager. He was appointed subsequent to applicants’ appointment as legal advisors.

[25] First respondent raised a number of points in limine. The first, being that the applicants do not have the legal standing to approach the court because no contract was concluded between them and first respondent. This, on the basis that Mr Armstrong who purportedly appointed them had no authority to do so.

[26] Secondly, that upon assuming duties as Municipal Manager of first respondent, and having followed the necessary procedure, he appointed Mr Trichardt (second respondent) and the fourth respondent to render legal services to the first respondent. To that end, signed Service Level Agreement (SLA) with them. That such agreement has not been set aside.

[27] Thirdly, that applicants seek an order that first respondent be ordered to apply for the setting aside of its decision to appoint second to fourth respondent because they (applicants) cannot do so as they are out of time to do so 180 days having elapsed since they became aware of the impugned appointments.

[28] As far as the merits of the application are concerned, it is essentially opposed on the basis that no SLA was concluded between the first respondent and any of the applicants. The document applicants rely on marked “NOM1” records the need for a contract to be concluded. No such contract has been provided by the applicants. They place reliance on “NOM1”.

[29] Mr Mnyimba also pokes holes at the procedure followed by first respondent’s Mr Armstrong during the bidding process. He contends that the “purported” appointment of the applicants was irregular. The irregularities include Mr Armstrong having negotiated the prices with some of the applicants, having provided them with motivation letter to utilize in respect of the bid in question. Communicating with some of the applicants and excluding other bidders in such communication/s.

[30] Mr Mnyimba denies that the appointment of legal representatives can only be made through a competitive bidding process, and refers to Regulation 36 of the MFMA Supply Chain Regulations.

[31] He denies any wrong doing or irregularity in appointing the respondents as legal representatives in cases where he did. This in view of the fact that inter alia he has the discretion to make an appointment with a view to have a dispute settled without resort to litigation. He contends that an independent legal representative was appointed to attend the hearing by the Public Prosecutor where Mr Armstrong was subpoenaed because he was personally implicated in connection with a project known as the VIP toilet project.

[32] In essence, first respondent denies that a SLA was signed by the applicants. In particular, one that complied with Section 116 of the (MFMA) Municipal Finance Management Act.[2]

[33] Annexed to the opposing affidavit are SLA’s in respect of second and fourth respondents effective from June 2017 to June 2020. Mr Mnyimba does not deny that he appointed other legal representatives to deal with the disciplinary hearing allied with the matter where an interdict was obtained in the labour court – stating that he is at liberty to choose legal representatives to attend to matters on behalf of the first respondent in the best interest of the latter.

[34] It is therefore not disputed that second and third respondents’ services were utilized. This according to Mr Mnyimba was in the exercise of his discretion.

[35] Mr Mnyimba goes on to explain that fourth respondent’s services were utilized in respect of what he considered a problematic tender

dispute. He did so because he knew him to possess good negotiating skills. And he was able to settle the matter without need for further litigation. So goes for his appointment of second respondent in certain matters. As far as the matter that served before the Land Claims Court, Mr Mnyimba suggests that as a result of default / failure by Mr Smith of the third respondent, an order was issued against the first respondent. This resulted in him being threatened with contempt of

court proceedings. As a result he lost confidence in Mr Smith’s abilities. He believes that it was therefore in the best interest of both first respondent and himself that he appointed Mr Trichardt. He also states that the appointment of second and fourth respondents was made in respect of matters where there was a “serious conflict by individuals such as Mr Armstrong in one instance and Mr Smith’s ineptitude in the other matter”.[3] Mr Mnyimba suggests that this was in the exercise of his discretion. According to Mr Mnyimba, the applicants are not entitled to information relating to the amount of legal work that has been referred to the second to fourth

respondents. This is because, Mr Mnyimba submits the applicants have created a conflict of interest by litigating against the first respondent, their client. Further that

as a result of applicants not having signed SLA agreements as prescribed by the supply chain management policy, the MFMA and the

regulations, he was rendered unable to cancel the agreement in the event of any one or other of the applicants failing to perform in terms of the agreement(s). The SLA would have stipulated the terms and conditions of the agreement and allowed for termination in the case of none or underperformance. It would also have allowed for dispute resolution mechanism. It is based on these factors that it was submitted by the respondents that the main application should be dismissed with costs and that the counter application should be granted.

APPLICANTS’ REPLY

[36] Applicants re-iterate that first respondent has failed to deliver the record and provide reasons concerning the decision to appoint second to fourth respondents and therefore its counter application for a review should fail due to the defectiveness

thereof. Further that, if it is brought in terms of the provisions of the Promotion of Administrative Act[4] the application should fail also because there has been an unreasonable delay in dealing with the alleged irregularities. Applicants point out that their appointment was made in October 2016. That the subject of the review was only raised upon the present application being instituted and that this smacks of the review application being a retaliatory measure. That it is defective and ought to be dismissed with costs. Applicants also note Mr Mnyimba’s silence about the Bid Adjudication Committee decision which documents are or should be at his disposal. Submitting that he has also not been transparent, so the applicants assert, in not acknowledging that the standard tender documents incorporated the terms of the successful bidder’s appointment. Also that he has not put up applicants’ tender documents. In particular Section D of the tender documents comprises of the contract which forms the basis of any appointment of a successful bidder.

[37] Regarding respondents, in particular fifth respondent’s purported rationale for employing Section 36 of Municipal Supply Chain Management Regulations>, applicants’ assertion is that there was no justification for invoking this regulation. Regulation 36 is meant for use in cases where there are exceptional circumstances. According to the applicants, no such circumstances existed which justified reliance on the said regulation.

[38] Regulation 36 provides for deviation from procurement process by the accounting officer – only in circumstances of:

“(i) an emergency;

(ii) if such goods or services are produced or available from a single provider only;

(iii) for acquisition of special works of art;

(iv) acquisition of animals for Zoos; or

(v) in any other exceptional case where it is impractical or impossible to follow the official procurement process.”

Regulation 2 requires the accounting officer to record the reasons for the proposed deviation.

[39] Applicants complain that the memorandum from the fifth respondent in this regard to the Chief Financial Officer is misleading, in that the appointment of the second to fourth respondents covered more scope that was envisaged in the fifth respondent’s memorandum.

[40] The relevant part of one of the letters records the following:

“The former Municipal Manager, Mr Chris Magwangqana has given notice of his intention to challenge the process of appointing the new Municipal Manager.

I wish to brief a firm of attorneys to oppose the application that will be brought by Mr Magwangqana, however, I believe that it would unfair and possible may conflict the ADM’s current appointment panel of attorneys to request any of these firms to deal with the matter, due to the fact that they probably worked closely with Mr Magwangqana in the past and will be expected to provide legal advice and services to my office going forward.

Accordingly I am hereby appointing the firm Lionel Trichard and Associates to represent the ADM in respect of this matter by way of a dispensing with official procurement processes both on the grounds of urgency and practicality.”

[41] The penultimate paragraph of the letter records:

“It is possible that I might engage the firm on other litigation matters over and above the one mentioned above, but only in respect of sensitive matters where the use of the current panel of attorneys may be inappropriate.”

[42] The letter is dated the 22 June 2017. On the 26 June 2017 fifth respondent addressed a letter to the second respondent appointing the said firm for a period of three (3) years to render ad hoc legal services to the first respondent. The Services Level Agreements were signed on the 22 and 23 June 2017. There is no reference to Mr Mangqangwana’s challenge to the appointment of the new Municipal Manager in relation to the second respondent’s appointment.

[43] The Service Level Agreements signed on the 22 and 23 of June 2017 lists a number of services in respect of which the second and fourth respondents will be required to provide the services encompassing “ad hoc advice and guidance on all municipal matters of a legal or administrative nature”. It would appear that the appointment covered a whole spectrum of legal services that would be required by the first respondent. Especially if regard is had to the provision of “ad hoc advice and guidance on all municipal matters of a legal or administrative nature”.

[44] It is noteworthy that the bids that were invited in respect of the subject matter of this litigation were for the provision of conveyancing, debt recovery, labour law and litigation and general advisory legal services for first respondent for a period of 36 months.

[45] According to the Service Level Agreement between the first and second respondents, the services to be provided by the second respondent were listed as being the following:[5]

· Ad hoc legal services and advice on labour, local government and administrative law;

· Ad hoc legal services and advice and assistance on labour/employee related issues;

· Ad hoc legal services and advice and assistance with the correct procedures relating to staff complaints, grievances and discipline;

· Ad hoc audits and or investigations, including disciplinary investigations;

· Ad hoc services and assistance in dealing with allegations of unfair dismissals and or unfair labour practices;

· Ad hoc advice and guidance on all municipal matters of a legal or administrative nature.

The services that are listed in Service Level Agreement with fourth respondent are the following:[6]

· Ad hoc advice on labour, local government and administrative law;

· Ad hoc advice and assistance on labour/employee related issues;

· Ad hoc advice and assistance with the correct procedures relating to complaints, grievances and discipline;

· Ad hoc advice and assistance in dealing with allegations of unfair dismissals and or unfair labour practices;

· Ad hoc advice and guidance on all municipal matters of a legal or administrative nature;

· Ad hoc advice and assistance with recruitment, selection and screening of staff;

· Ad hoc dealing with trade unions and or employee representatives;

· Ad hoc dealing with work stoppages and strikes, if and when necessary;

· Ad hoc drafting of various agreements, contracts, documents, etc.;

· Ad hoc drafting administrative documents and reports, if and when needed;

· Ad hoc advice and assistance with local government policy design;

· Ad hoc advice to the Municipality on matters of legal or administrative nature;

· Any such work as agreed between the parties hereto.

The two agreements were to commence on the 23 June 2017 and 22 June 2017 respectively and were to remain in effect until the 22 and 21 of June 2020 respectively. Being a period of three years or 36 months. The same period that was to be covered for purposes of the bids that were invited by the first respondent in this regard in June 2016. Following which the applicants were sent the letter marked NOM 1. This is the letter that recorded that they have been awarded the contract to provide legal services for the first respondent.

STRIKING OUT APPLICATIONS

[46] Both parties have sought the striking out of certain parts of each other’s affidavits. First respondent seeks the striking out of paragraphs 25-7, 71-5, 148 and 149 of the replying and answering affidavit of Mr F W Pretorius. The basis upon which the application is made is that they constitute new matter or matter that should have been contained in the founding affidavit deposed to by Mr Pretorius and that they directly contradict applicant’s notice of motion.

[47] Applicants on the other hand seek the striking out of certain paragraphs or parts thereof of Mr Mnyimba’s affidavits (Answering and Founding) on the basis that they constitute inadmissible hearsay evidence.

[48] In argument, the respondents adopted the approach that the court should have regard to all the affidavits whether objected to or not suggested the “practical and common sense must be used”. Dealing with an objection that new matter has been raised in reply, the SLA in Lagoon Beach Hotel v Lehane 2016 (3) SA 143 SCA suggested that “practical and common sense must be used” – noting however that it is significant that many of the hearsay allegations complained of are admitted by the affidavit in its answering affidavit.

[49] Parts of first and second respondents’ affidavit that are sought to be struck out are said to be hearsay evidence – apart from not understanding why these parts are said to be hearsay evidence – the applicants do not say how they will be prejudiced should these parts be considered. In what way do the following examples constitute hearsay evidence?

I emphasize that the manner in which Mr Armstrong also manipulated the fees of the applicants in “NOM 1” is not inconsistent with the MFMA, the Municipality’s Supply Chain Management Policy, or the Constitution;

In respect of other impugned aspects of fifth respondent’s affidavit, how would he as Municipal Manager not be aware of matter relating to the VIP toilet project and the Public Protecting vis-à-vis Mr Armstrong in the inquiry?

In any event as stated earlier, the applicants do not tell me how they will be prejudiced should these parts of fifth respondent’s affidavit not be struck out. I therefore do not see why they should not be regarded.

[50] Coming to fifth respondent’s objection, the respondents have indicated that they do not consider it necessary

that they should deal with the matter of the striking out. They too have not stated how the admission of this impugned evidence will prejudice them. Whilst it is trite that a party is required to make its case in the founding affidavit[7], and not in reply, it must be borne in mind that the impugned affidavit not only contains a reply to respondents’ resistance

of the relief sought, but it also encompasses a reply to the respondents’ counter application. In my view, nothing stops a party from responding to matters that have been raised in answer. In any event, these are aspects that are within the fifth respondent’s

knowledge or purview consisting as they do of first respondent’s processes. Both applications to strike out must fail.

DISCUSSION

[51] Applicants submitted that they have a right to claim their exclusive appointment by the first respondent to provide it with legal services on a rotational basis. It is not in dispute that following the bidding process and issuance of NOM1 in October 2016, the applicants were instructed to provide legal services to the first applicant on rotational basis. It is also common cause that during June 2017 second to fourth respondents were contracted to provide the first respondent with legal services as pointed out earlier. This was during the same month that fifth respondent had been appointed as the Municipal Manager of the first respondent.

[52] First respondent’s defence in this regard is that in the exercise of his discretion and for the reasons he stated, second to fourth respondent were not engaged via the normal procurement process. Namely, competitive bidding process. They were appointed by means of deviations.

[53] First respondent denies that these deviations were unlawful as alleged by the applicants. Applicants point out the circumstances under which deviation is state procurement are allowed. And argue that fifth respondent’s motivation for the deviations does not reveal any of the grounds that are envisaged by Regulation 36.

[54] It is apposite to once again list the circumstances under which a deviation from the Supply Chain Policy is allowed in terms of Regulation 36 of the Supply Chain Management Regulations. They are:

(a) in an emergency;

(b) where the services are available from a single provider only;

(c) for the acquisition of animals for zooz ; or

(d) in any other exceptional case or where it is impractical or impossible to follow the official procurement process.

Fifth respondent does not claim any of these factors to have been a precursor to the appointment of the second to fourth respondents.

[55] The following also boggle the mind:

Having been appointed on the 1st of June 2017 as Municipal Manager, on the 22 June fifth respondent addressed a letter to the Chief Financial Officer with a view to appointing second respondent to deal with a matter where the erstwhile Municipal Manager has given a notice to challenge his appointment. Granted, in fairness to him he does state that the matter is urgent. Surprisingly though, he does not appoint second

respondent to deal with that specified matter. But for a host of other services. Not only that, and for a period of three years, the same period that would have been covered by a contract that followed a competitive bidding process. When or how did he determine that the applicants are not possessed of skills to handle certain legal assignments, such as the ones for which fourth respondent was appointed in a few days after his appointment? Two other things are telling in his motivation for the deviations:

Already he envisages an appointment for a period of 3 years.

He acknowledges that there is a current appointed panel of attorneys of the first respondent.

[56] As applicants rightly pointed out, it was only upon the launch of these proceedings that first respondent raised the issues of the validity of applicant’s appointment. Is this perhaps not opportunistic on his part? Even though fifth respondent professes to have been vigilant to pick up issues that may trouble first respondent, tainted contracts etc, in his first month of being first respondent’s Municipal Manager, and having pertinently dealt with matters concerning first respondent’s legal representatives, it was only after a period of two years that for the first time impugned the appointment of the applicants. Meaning he did not pick up the irregularities he now raises.

[57] It is not clear from the counter-application whose decision is sought to have set aside. In paragraph of his affidavit, fifth respondent states only that the purpose of the affidavit is to oppose the main application “and is a counter-application to obtain a declaratory order setting aside the purported decision to appoint the applicants as legal advisors of the municipality”. Respondents’ case is that applicants lack locus standi in judicio because no Service Level Agreement was concluded between them and first respondent. Also that Mr Armstrong did not have the authority to appoint service providers. Apart from making his assertion, Mr Mnyimba does not provide any evidence why he makes the latter assertion. He also avoids making any reference to the Bid Adjudication Committee’s

role in the appointment of the applicants. As I indicated earlier, it is not clear whose decision (to appoint the applicants) is sought to be set aside. In my view therefore this cannot be said to amount to a dispute of fact – put differently, this is not a question that can be decided on respondent’s version. This does not raise a genuine dispute of fact. Sight cannot be lost of the unexplained delay in challenging applicants’ appointment. By now it is trite that reactive challenges are open to state organs.[8] But the challenge must not be unduly delayed.[9] I agree with the applicants that the challenge in casu is retaliatory as opposed to being reactive. Especially given the delay in raising the challenge. Instead, what fifth respondent did was to ignore the appointments and appoint his own panel of legal advisor for three years. The reason for doing so is not far to locate. And can only lead to one inescapable conclusion, that it was personal preference on his part to work with second to fourth respondents using the procedure prescribed in Regulation 36 of the MFMA Supply Chain Management Regulations. And for purposes it was not meant for. In his letter in which he seeks to amend an earlier request for deviation he states that he had worked with third respondent previously.[10] In fact it is not in dispute that the fifth respondent has had extensive dealings with second to fourth respondents prior to appointing them as legal advisor of first respondent. In the earlier motivation for deviation he states that second respondent’s firm has the necessary legal expertise to provide the required legal services. This can hardly be in keeping with the provisions of Section 217 (1) of the Constitution which provides:

“217. Procurement.‒(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.”

The system adopted by the fifth respondent was neither fair, equitable, transparent, competitive nor cost effective. It is common cause that the legal practitioners he appointed were not based in East London and were to be paid higher than normal fees.

MOOTNESS POINT

[58] I have already pointed out that this point was only raised in argument. It did not form part or respondents’ case. The applicants were not afforded an opportunity to reply thereto. Be that as it may, I am of the view that the dispute between the parties is still very much alive even though the agreement / contract sought to be enforced by the applicants has since expired. It is trite that “a case becomes moot and therefore not justifiable, if it no longer presents an existing or live controversy which should exist if the court is to avoid giving advisory opinions on abstract questions of law”[11]. In Pheko v Ekurhuleni Metropolitan Municipality[12] it was stated that:

“[32] It is beyond question that the interdictory relief sought will be of no consequence as the applicants have already been removed from Bapsfontein. Although the removal has taken place, this case still presents a live controversy regarding the lawfulness of the eviction. Generally, unlawful conduct is inimical to the rule of law and to the development of a society based on dignity, equality and freedom. Needless to say, the applicants have an interest in the adjudication of the constitutional issue at stake. The matter cannot therefore be said to be moot. It is also live because if we find that the removal of the applicants was unlawful, it would be necessary to consider their claim for restitutionary relief”

I am therefore of the view that even though the “contract” has expired, the matter cannot be said to be moot. Namely whether the applicants were entitled to specific performance in terms of the contract entered into between them and the first respondent.

COUNTER APPLICATION

[59] As regards the counter-application seeking the reviewal of the decision to appoint the applicants, the applicants complained that there was no Rule 53 placed before the court. First and fifth respondents retorted that this complaint was misplaced in that they were not obliged to provide the record. In support of this submission first respondent refers the court to the matter between Nelson Mandela Bay Metro v Evastyle & Others.[13] At paragraph [23] of the judgment the following is stated:

“It is against this background that paragraph 82 of the judgment[14] is to be understood. The case was not concerned with the procedural question as to whether Rule 53 ought to be employed. Rather it was concerned with a broader question – namely whether it is necessary for a state party which seeks to impugn its own decision or conduct to initiate a formal review process. The affirmative answer does not, in my view, translate to a finding that this can only be done in accordance with Rule 53.”

[60] I am in agreement with the respondents in this regard. I am however for reasons stated earlier not persuaded that they have made a case for the setting aside of the decision to appoint the applicants.

APPLICANTS’ CLAIM TO ACCOUNTING

[61] I am of the view that the applicants were unlawfully deprived of an opportunity to render services on a rotational basis in terms of the contract to provide legal services to first respondent. That being the case, are they entitled to an account / accounting by the first respondent.

COSTS

[62] In addition to the dismissal of the counter-application, the applicants seek an order for costs against the first respondent on an attorney and client scale, claiming that first respondent has dealt recklessly with the matter amongst other things. And costs of both the main application and counter-application de bonis propiis and on an attorney and client scale against second, third and fifth respondents. This in view of fifth respondent’s role in the appointment of the second to fourth respondents and failure by second and fourth respondents to carry out their responsibilities as officers of this court. The application for the proposed cost order is opposed, fifth respondent pointing out he was acting in a representative capacity and it has not been shown that he acted with mala fides. I do not think that in the circumstances of this case it will be appropriate to award punitive costs, even though a case can be made for doubtful ethical conduct and dishonesty on the part of second and fifth respondents.

[63] Accordingly, the following order will issue:

(1) An order in terms of prayers (a), (b) and (e) of the notice of motion.

(2) First, second and fifth respondents are ordered to pay the costs of the main application the one paying the other to be absolved.

(3) The counter-application is dismissed with costs.

_____________­­__

NG BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicants : Adv: SC Rorke SC & Adv: BL Boswel

Instructed by :

WESLEY PRETORIUS & ASSOCIATES INC

C/o NETTELTONS ATTORNEYS

118A High Street

GRAHAMSTOWN

Ref: I Pienaar

Tel.: 046 – 622 7149

For the 1st, 5th Respondents: Adv: I Bands

Instructed by

: WHEELDON RUSHMERE & COLE

119 High Street

Ref: Mr Brody/Glyn/S22108

Tel.: 046 – 622 7005

For the 2nd Respondent : Adv: HB Marais SC

Instructed by

: HUXTABLE ATTORNEYS

26 New Street

Ref: Mr O Huxtable/bv

Tel.: 046 – 622 2692

Date Heard

: 24 October 2019

Date Reserved : 24 October 2019

Date Delivered

: 12 May 2020

[1] Annexure to Founding Affidavit marked NOM1.

[2] Act 56 of 2003.

[3] Answering affidavit – page 151 of record paragraph 32.21.2.

[4] Act 3 of 2000 (PAJA).

[5] Annexure TTM 2 page 169 of record.

[6] Annexure TTM 3 page 175 of the record.

[7] Director of Hospital Services v Mistry 1979 (1) 262 A.

[8] Department of Transport & Others v Tasima (Pty) Ltd and authorities referred to therein.

[9] Tasima paragraph [14].

[10] TTM5 page 186 of the record.

[11] National Coalition of Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 CC at 18.

[12] 2012 (2) SA 598 CC at [32].

[13] 2019 (3) SA 559 ECD.

[14] Referring to MEC for Health Eastern Cape Ano. v Kirkland Investments supra.