Canaan Electrical Contractors (Pty) Ltd v City of Tshwane Metropolitan Municipality and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Yende AJ
• Judgment Date: 13 September 2023
• Citation: 2023 JDR 3535 (GP)
• Hearing Date: 31 May 2023
• Docket Number: 293/2021
• Court: Gauteng Division, Pretoria

Yende AJ:

Nature of the Proceedings

[1]

This is a review application brought in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) in terms whereof the applicant seeks the review of administrative actions by the first respondent and the substitution of these decisions in terms of the provisions of section 8(1)(c)(ii) of PAJA.

[2]

The applicant by way of the present review application, seeks the following relief:

“1.

An order reviewing and setting aside decision take by the respondents with regard to tender number USD EE 15-2018/19 (“The First Tender”) and;

2.

Tender number USD EE 06- 2019/20 & USD EE 07-2019/20 (“The Second Tenders”);

3.

An order approving the applicant as a valid tenderer;

4.

Ordering the applicant as the successful bidder for the First Tender;

5.

Ordering the applicant as a successful bidder for the Second Tenders; alternatively;

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Yende AJ

6.

An order that the First and Second Tenders should have been allocated to the applicant as successful bidder when the tenders were allocated;”

[3]

The respondents have raised points in limine pertaining to:

“1.

the applicant’s locus standi in respect of US EE 15-2018/19;

2.

the failure to exhaust internal remedies;

3.

the delay in launching this application”.

[4]

Issues requiring determination

“1.

Whether the applicant has made out a case for reviewing and setting aside of the decision of the respondents on the First and Second Tenders.

2.

Whether the applicant is entitled to the relief sought.

3.

Whether the respondents set out a case for dismissal of the applicant’s review application with regard to the First or Second tenders or both”.

[5]

In opposing this application, the respondents raises points in limine and contends that the application should be dismissed on one, more or all of the three points raised on the following basis;

“1.

The applicant has no locus standi to apply for the relief sought insofar as it relates to the joint venture;

2.

The applicant has not exhausted all internal remedies before approaching the court, as required in terms of section 7(2)(a) of PAJA and, in the absence of an application for exemption from this requirement, the court is precluded from hearing the review; and

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Yende AJ

3.

There has been an unreasonable delay on the part of the applicant in launching the review application and, in the absence of application for the extension of the prescribed time-period, as contemplated in section 9(1) of PAJA, the court has no power to entertain the review”.

[6]

The respondents contends further that the applicant has fallen far short of making out a case for review of the decisions on any of the grounds upon which it relies and has made out no case for the substitution of these decisions, as contemplated in section 8(1)(c)(ii) of PAJA and that the application stands to be dismissed with costs.

[7]

At the commencement of the hearing of this application it was contended by the respondent’s counsel and agreed to by the applicant’s counsel that the points in limine raised should first be argued and adjudicated by the court prior to the consideration of the merits in the main application.

EPHEMERAL FACTUAL MATRIX

[8]

The respondents had issued two tenders namely ;

[8.1]

USD EE 15-2018/19 - TO APPOINT VARIOUS CONTRACTORS TO PROVIDE CONSTRUCTION WORKS ON LOW VOLTAGE (LV) AND MEDIUM VOLTAGE (MV) ELECTRICAL NETWORK INFRASTRUCTURE AND CONSUMER CONNECTIONS ON AS AND WHEN REQUIRED BASIS FOR A THREE-YEAR PERIOD, hereafter “the first tender”.

[8.2]

USD EE 06-2019/20 AND USD EE O7-2019/20- TENDERS TO APPOINT VARIOUS CONTRACTORS TO PROVIDE MAINTENANCE WORKS ON PUBLIC LIGHTING

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Yende AJ

ELECTRIC NETWORK INFRASTRUCTURE ON AS AND WHEN REQUIRED BASES, FOR A THREE-YEAR PERIOD hereafter “the second and third tenders”.

[8.3]

The applicant submitted its bid in respect of the “first tender” in a joint venture with Phumelela Dlomo Construction (Pty) Ltd, relating to the provision of certain construction works on low voltage and medium voltage electrical network infrastructure and consumer connections. With regards to the “second and third tender” the applicant submitted its solo bid relating to the provision of maintenance works on certain electrical network infrastructure. All three tenders are on an ‘as and when required’ basis for a three year period.

[9]

On 4th March 2020 a letter was addressed to applicant and JV Phumelela Dlomo Construction (Pty) Ltd that the joint venture, as regards bid USD EE15-2018/2019 and the applicant, as regards bid USD EE 06-2019/2020 and bid USD EE 07-2020, were disqualified in the tender evaluation process as follows;

“1

The joint venture (bid USD EE 15-2018/2019 in phase one because it did not complete the local content declaration”;

“2

The applicant (bid USD EE 06-2019/2020 and bid USD EE 07-2020), also in phase one as it was found at the time the decision was taken, that the applicant had a state employee in its employ”.

[10]

On 7 March 2020 successful tenderers were appointed in respect of all three tenders and have been rendering the required services since the tender was awarded. Accordingly, the applicant have been aware of this fact since at least 7 March 2020.

APPLICANT’S CASE.

[11]

The relevant applicant’s pleaded facts are herein under restated. In respect of tender under reference USD EE 15-2018/19 (the first tender). The applicant averred that the reasons for disqualification by official letter of the respondent dated 4 March 2020 and directed to the applicant was that “the bidder did not complete Annexure C

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Yende AJ

Local Content Declaration” (see par 18.1 to 18.1.3 of the Founding Affidavit as read with the letter dated 4 March 2020 marked as Annexure “SC5” (see page 002-49 to 002-51 on Caselines). The applicant maintains that it actually completed the relevant section by marking it “N/A” (Not Applicable) on the relevant sections (see Annexure “SC5” specifically pages 002-52 to 002-54 on Caselines.

[12]

The applicant argues that this was not necessary as the tender specifications specifically provided that “the appointee contractor will only be required to provide labour. Materials for the works shall be provided by the “CoT”.” According to the applicant a tender for both labour and supply of materials would specifically provide a list of the materials to be supplied and for each tenderer to provide a quote of their prices in each line item. No such list was provided. Consequently, argues the applicant that the grounds for disqualification are reviewable and should be set aside as they are in contravention of the Constitution and the PAJA Act in all aspects as cited in clause 2.1 and its subparagraphs.

[13]

In respect of tender under reference USD EE 06-2019/20 and USD EE 07-2019/20 (the second tenders). The applicant contends that the reasons for disqualification by official letter of the respondent dated 4 March 2020 and directed to the applicant was that “the applicant had a director in its employ who was a state employee in contravention of the relevant act.” According to the applicant this was incorrect as the relevant director had resigned way before the tenders. The applicant avers further that this point was conceded by the respondent who advised the applicant that its bids would be send to their bids evaluation committee to be re-evaluated and that the applicants would be informed of the outcome of the further evaluation process once that has been concluded [1].

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Yende AJ

Ground of review

[14]

The applicant contends that this application is based on the grounds for review provided for in the following sub-sections of section 6(2) of the (‘PAJA’) cited herein, mainly:

“1

section 6(2)(c) - procedural unfairness;

2

section 6(2)(e)(iii) - irrelevant considerations taken into account or relevant considerations not considered;

3

section 6(2)(e)(vi) – arbitrary or capricious actions;

4

section 6(2)(f)(ii) – actions not...