Mathatha General Trading VV and others v Head of the Department of Safety, Security and Liason Mpumalanga Province
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Kgoele J |
| Judgment Date | 14 July 2023 |
| Citation | 2023 JDR 2587 (MN) |
| Docket Number | 2350/2022 |
| Court | Mpumalanga Division (Main Seat) |
Kgoele J:
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Kgoele J
This is an application for the rescission of an order which was granted by Roelofse AJ(the Court) on 23 June 2022. The order was granted pursuant to an urgent application for an interim interdict which was brought by the applicants (Mathata, Mabotwane, and Mafoko) aimed at interdicting the first and the second respondents from giving effect to the decision to award and appoint the third to nineteenth respondents (successful bidders) for the provision of security services for the Mpumalanga Government Buildings. I will collectively refer in this judgment throughout to the first and second respondents as “the Department” and to the third to nineteen respondents as “the successful bidders”. The applicants will where necessary be referred to by their respective names. The rescission application is opposed by all the applicants.
A brief background to this application is as follows: As already indicated above, the application stems from an urgent interdict application brought by Mathata in two parts. Part A sought an interim interdict pending the outcome of the review proceedings, whereas Part B sought to review the awarding of the tender to the successful bidders. Paragraph 4 of the notice of motion sought an order that the interdictory relief operates as interim interdict pending a review application to be instituted within thirty (30) days from receipt of the documents requested in one of the preceding paragraphs in the notice of motion.
The application was set down to be heard on 21 June 2012. On 7 June 2021, Mabotwane brought an application to be joined as the second applicant to support the urgent application brought by the Mathata. Three days before the matter can be heard, Mafoko entered the fray and brought an application divided into three parts. The first part was a prayer for leave to intervene and in the second part, an order that its affidavit filed serve as support of the interdictory relief sought by Mathata, and the third part, an alternative to the interdictory relief that the decision of the Department to appoint the successful bidders be reviewed and set aside.
The urgent application came before Roelofse AJ and the following order(the impugned order) was granted:
A rule nisi is hereby issued calling upon all interested parties, including the parties in this matter, the successful bidders listed in annexure ‘CL1’ to the First and Second Respondent’s answering affidavit, dated 15 June 2022 (attached to
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this order, marked “X”) (the service providers), to show cause on 8 August 2022, why the orders in paragraphs [2] to [7] below should not be made final.
It is declared that the award of the tender Number: SS/048/21/MP, for the provision of security services for the Mpumalanga Provincial Government buildings for a period of three years (the tender) is constitutionally invalid.
The declaration of invalidity of the tender is suspended pending the determination of a just and equitable remedy.
The Applicants, the First to Fourteenth Respondents, the interested parties and the service providers are directed to furnish factual information on affidavit, as well as further written submissions, on the following aspects:
The time and steps necessary in the initiation, response and completion of a new tender process for the provision of security services for the Mpumalanga Provincial Government buildings (the services).
The time and steps necessary, and the costs likely to be incurred, in the implementation of the services after the new tender process, if so ordered is completed.
The just and equitable arrangements that should be made for the continued delivery of the services until new agreements for the services are implemented.
The cost implications for the Applicants, the Respondents, the service providers if a new tender process is ordered and implemented, and how these costs could be ameliorated or offset.
What would be in the public interest when determining a just and equitable remedy.
The exact extent of the implementation of the tender to date, including all contracts concluded, payments made, amounts received and costs incurred in respect of the tender.
Any other information considered relevant.
The Applicants, the First to Fourteenth Respondents, interested parties and the service providers must comply with the directions in paragraph [4] above by no later than Wednesday, 26 September 2022 or on such extended date the court deems meet.
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Parties are directed to, by no later than 3 october 2022 approach the Registrar of this court with a duly completed Form B to this court’s Practice Directive for purposes of case managing the proceedings for the grant of a just and equitable remedy.
The grant of a just and equitable remedy is reserved pending the further hearing on a date determined during the case management in paragraph [6] above.
The First and Second Respondents are directed to:
Within 5 (FIVE) days of the date of this order, to furnish a copy of this order to the Third to Fourteenth Respondents and the service providers;
File a service affidavit setting out full compliance with the order in paragraph [8](a) above.
The First and Second Respondents are ordered to pay the applicants’ costs and, in Mathata’s instance, the costs consequent upon the employment of two counsel.”
When the order was granted, the successful bidders had not yet joined the proceedings. On 3 August 2022, the Department, aggrieved by this order, issued this application to rescind the impugned order. After a successful recusal application brought against Roelofse AJ by the successful bidders, this application was enrolled for hearing on 2 March 2023. In the meantime, before this hearing, as per the impugned order dated 23 September 2022, the parties, including the successful bidders complied with the Directive and Order of Roelofse by completing Form “B” wherein times frames for filling of further papers in this application was agreed upon.
The Department bemoans in the current application in the main that the order reviewing and setting aside its decision was granted without them being offered an opportunity to be heard in relation to the merits of the review application and thus, in its absence. According to the Department, what was before the court on the day of the hearing was the interdictory application, as well as the joinder including the application to intervene and not the review. Their submission is that the answering affidavit filed on behalf of the Department was only filed in response to the interdictory application and not the review, as the review application was not brought on an urgent basis. The Department furthermore contends that in entertaining the review application and deciding it without
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affording it an opportunity to file its answering affidavit thereto, the Court, not only took away the Department’s rights in terms of Section 34 of the Constitution, but also committed a procedural irregularity which is serious enough to satisfy the requirement of an error in Rule 42(1) (a) of The Uniform Rules of Court(the Rules).
The successful bidders simply echoed the same sentiment expressed by the Department that the Court entertained the review application when it was not yet ripe for hearing and in their absence when the Court was aware that they are the interested parties who will be affected by the outcome of the interdict and the review application. They argued that he should have postponed the matter for them to be joined.
It is trite that in order to succeed in an application for rescission of judgment and or order under Rule 42(1)(a), the applicant must demonstrate (i) that the order was granted in his absence, (ii) that the order was erroneously sought and obtained. It is furthermore not necessary for a party to show good cause under this subrule.
Before I deal with the merits of this application, there was an objection raised by the applicants during the hearing of this application which requires me to first deal with it in order to clear the path. The objection relates to the participation of the successful bidders in this application. The argument advanced is that they ought not to be allowed an audience during hearing of this application including not making submissions and addressing the Court as they are not applicants in the rescission application. Their supporting capacity ought not to be allowed by the Court, the argument continued. As a result of the fact that the objection was raised during the hearing of arguments, I allowed the successful bidders represented to continue making submissions, ordered that a formal written objection be filed, and that this Court will during the writing of this judgment, consider the objection and rule on whether it is upheld or not. If it is upheld, the submission made by the successful bidders will not be considered in the final analysis of this application. This I did, to avoid the application being further postponed in the middle of the hearing.
I may hasten to indicate that, after reading the papers filed, I find that this objection is not only belated, but not made bona fide and lacks merit. A simple answer to this objection is that on 23 September 2022 when Roelofse AJ granted the recusal Order,
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the successful bidders were already joined as parties to this proceedings. Secondly, Form “B” which Roelofse AJ ordered all the parties to complete before 26 September 2022 to case manage this application was completed, agreed to, and signed by the legal representatives of all the parties. Paragraph 3.1 thereof requires the third to the nineteenth...
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