Manong & Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape, and Another (No 1)

• Jurisdiction: South Africa
• Judge: Pillay J
• Judgment Date: 18 October 2007
• Citation: 2008 (6) SA 423 (EqC)
• Docket Number: 928/06
• Hearing Date: 13 June 2007
• Counsel: T Masuku for the applicant.TM Ntsaluba for the respondents.
• Court: Equality Court

Pillay J:

This is an application launched by the applicant in this court A during August 2006. I am called upon to deal with what has been referred to as part B of the notice of motion. Part A was interim relief sought on an urgent basis pending the outcome of the application as constituted in part B. Only the relief sought in part B will therefore be dealt with herein. B

The relief sought in part B of the application reads as follows:

1.

Reviewing, correcting and setting aside the decision taken by the delegated authority of the First Respondent, at some time before 16 August 2006, to disqualify from consideration the Applicant's tender for the upgrading of the provincial roads referred to in C paragraph 2 of Part A relief of the Notice of Motion;

2.

Reviewing, correcting and setting aside the decision of the delegated authority of the Respondent to award of the tender (sic) any other tenderer (to the extent that such an award has been made);

3.

Declaring that any purported contract entered into with any other tenderer in relation to the tendered services (pursuant to the award D of the tender) be declared to be null and void, and of no force and effect (to the extent that such a contract has been made);

4.

Declaring that the procedure followed by the First Respondent or its delegated authority outlined in clause 24 of the Bid Rules issued by the First Respondent, to disqualify the Applicant is inconsistent with the requirement of section 217 of the Constitution of the E Republic of South Africa, alternatively that clause 9.4 of the Practice Note issued by the National Treasury in terms of which the Bid Rules are made is inconsistent with section 217;

5.

Declaring the procedure followed by the delegated authority to disqualify the Applicant's tender bid unfairly (sic) discriminatory in F terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and therefore unlawful;

6.

Directing the Respondents to undergo an audit of its procurement procedures and practices as the Court may direct;

7.

Granting Applicant further and or alternative relief;

8.

That the costs of this application be borne by the Applicant. G

The matter has a long and chequered history. The urgent application for interim relief was refused, as was the subsequent application for leave to appeal and petition to the Supreme Court of Appeal for leave to appeal. Another related application was also refused. H

Paragraphs 1, 2 and 3 of the relief are of a practical nature and refer to the decisions of a State institution which are sought to be, inter alia, reviewed and set aside. Paragraph 4 seeks a declarator in terms of which the procedure followed by the relevant tender committee, and outlined in clause 24 of the Bid Rules, be declared inconsistent with s 217 of the I Constitution of the Republic of South Africa of 1996 (the Constitution).

Paragraph 5 similarly seeks a declarator that the procedure, in terms of which the delegated authority disqualified the applicant's tender, is declared unfair and unlawful as envisaged in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Act). J

Pillay J

A Paragraph 6 seeks an order directing the respondents to undergo an audit of their procurement procedures and practices as this court may deem appropriate.

Paragraphs 7 and 8 do not touch on the nature of the rationale of this B application.

The application with all the papers was filed and served on 22 August 2006. It gave notice that the application would be brought before the equality court on 25 August 2006. By the nature of the relief sought, and as set out in the notice of motion, it could only have been brought before C the court on an urgent basis to deal with part A of the relief.

A notice of opposition dated 24 August 2006 was filed by the respondents. The matter was postponed on 25 August 2006 to 31 August 2006. Furthermore, the respondents filed a notice in terms of the Uniform Rules of Court, viz rule 6(5)(d)(iii), which reads as follows:

D (d) Any person opposing the grant of an order sought in the notice of motion shall -

(i)

. . . ;

(ii)

. . . ;

(iii)

if he intends to raise any question of law only he shall deliver notice of his intention to do so, within the time stated in the preceding sub-paragraph, setting forth such question.

E The period referred to therein is 15 days.

The notice of the respondents dated 30 August 2006 in terms of rule 6(5)(d)(iii) sets out the following:

1.

The Applicant has failed to satisfy the requirements for the relief (interim interdict) it seeks;

2.

F Consequently, the application ought to be dismissed with costs.

It is unclear what the respondents were attempting to convey in the notice. It certainly does not comply with rule 6(5)(d)(iii), in that it does not set forth any question of law.

G In any event the urgent application was proceeded with on 31 August 2006 and was refused. The application was postponed for the purposes of dealing with part B of the relief sought.

The application proper was heard by me on 13 June 2007 after a hearing as contemplated in s 20(3)(a) of the Act was convened and completed. H The purpose of a hearing in terms of s 20(3)(a) is to investigate, inter alia, whether the substance of the proposed proceedings is such that it should be entertained by the equality court or some other court or forum. However, by the time that hearing was held, the urgent application had already been entertained by the equality court and the decision I in respect of part B of the relief was postponed accordingly.

The order did not contain a directive that a hearing in terms of s 20(3)(a) should be held. Consequently the order in question must be construed to have meant that the application (proper) was postponed to the equality court. It is therefore understandable that the presiding J officer in the s 20(3)(a) hearing felt constrained to deal with the issue

Pillay J

placed before him on the basis that consideration as to whether the A matter should be dealt with outside of the equality court was excluded because he could not have set that order aside or amended it in any way. That being the case, the equality court was seized with the matter.

The respondents did not plead to the allegations made by the applicant at all. B

Heads of argument on behalf of the applicant were properly and timeously filed. Surprisingly, there were no heads of argument filed on behalf of the respondents, as is generally required in matters such as this. The provision of heads of argument in opposed applications is so trite C that the failure to do so could hardly be excused and is unacceptable...