Naidoo and Others v Johannesburg City Council and Others

• Jurisdiction: South Africa
• Citation: 1979 (4) SA 893 (W)

Naidoo and Others v Johannesburg City Council and Others
1979 (4) SA 893 (W)

1979 (4) SA p893

Citation	1979 (4) SA 893 (W)
Court	Witwatersrand Local Division
Judge	Coetzee J
Heard	June 14, 1979; June 15, 1979
Judgment	July 18, 1979

Flynote : Sleutelwoorde

Municipality — Licences — Flower sellers — Power delegated to management committee of City Council to determine tenderers — Consideration such H committee had to have in mind was the money offers — Licences not granted to highest tenderers — Unsuccessful tenderers bringing proceedings under review in terms of Rule of Court 53 — City Council cited as respondent — Proper to do so — Not necessary to join the management committee — Management committee had acted illegally in awarding tenders to lower tenderers — Decision set aside.

Headnote : Kopnota

The thirteen applicants were unsuccessful tenderers for written authority to carry on the business of flower vendors on certain flower stands allocated by the first respondent to the second to sixth respondents. In an application

1979 (4) SA p894

under Rule of Court 53 to review the decision of the first respondent it appeared that several of the applicants' tenders were higher than those of some of the successful tenderers. The first respondent averred that the A proceedings should have been brought against the management committee of first respondent as it was the body to which power had been delegated in regard to the grant of the tenders.

Held, that a delegation to the management committee was one which took place in a scheme of deconcentration of administrative power and function and a necessary corollary was that the delegate did not do anything on its own behalf but did it purely and strictly on behalf of the Council as if the Council itself was doing it. The proper body to cite in legal B proceedings was the City Council. It was not necessary to cite the management committee at all.

Held, further, that the City Council was bound to look at the money offers only when it determined which of the competing applicants for the same stand ought to be allowed.

Held, further, that the City Council had failed to apply the only legal C criterion, namely the highest tender, in allocating the stand. It was plainly illegal to have rejected the tender higher than those of some of the successful tenderers: the City Council was not entitled to act in this fashion. Accordingly the first respondent's decision had to be set aside with costs.

Case Information

Application for review under Rule of Court 53. The facts appear from the reasons for judgment.

M D Kuper for the applicants. D

J H Coetzee SC (with him R W Nugent) for the respondents.

Cur adv vult.

Postea (July 18). E

Judgment

Coetzee J:

The thirteen applicants were unsuccessful tenderers for written authority to carry on the business of flower vendors on five socalled flower stands in Rosebank, Johannesburg, which were allocated by the first F respondent ("the City Council") to the other, the second to the sixth, respondents. The decision of the City Council awarding the flower stands to these respondents is now attacked by means of review proceedings brought under Rule 53 of the Uniform Rules. The applicants have joined in these proceedings purely by reason of the fact that their rights to relief G depend upon the determination of substantially the same questions of law and fact which would arise if separate applications were brought.

On behalf of the City Council, it is said with some justification that flower sellers litigation in respect of these stands is at least an annual event in the litigation calendar of this Division. See the SA Law Reports H 1979 (1) SA 977 to 1009 where five judgments given over the period 1975 to 1978, are reported. The City Council goes on to say that it is also well-known that there are at least two main factions in this annual scramble for authority to trade on these Rosebank stands and that it has appeared to it that there may now even be a third such faction. Its licensing department has very often distinct misgivings as to the existence and identity of particular tenderers. It questions the bona fides of applicants in the sense that they may merely be fronts for other persons and do not intend to trade personally if any authority were to be granted. It is said that in

1979 (4) SA p895

Coetzee J

some cases where the tenderers are identifiable and/or known to members of the licensing department it is doubted that such person will ever be in a position to pay the amount which is tendered which is sometimes not A insubstantial. Stands previously awarded by tender have not been taken up in these circumstances. It is said that specific cases can be quoted to support these averments but, if a total history of the flower sellers legend were to be told and analysed in these papers, such would become totally unmanageable. And it is contended that the management committee of B the Council, whose decision is under review, properly and bona fide discharged its function in regard to the grant of the tenders, presumably having exercised its discretion along the lines alluded to above.

On 7 October 1977 the City Council advertised in the Press that these C stands would be available for tender in respect of the year 1978 and invited applicants to lodge sealed tenders, endorsed: "Tender Flower Stands" addressed to the clerk of the Council which had to be placed in the tender box inside the foyer of the Administration Building not later than Friday, November 1977. In the advertisements it was stated that tenders would be opened in public in the board room at 10.30 on the D closing date of tenders.

The complaint of the applicants is a simple one, namely that the stands were awarded to persons whose tenders were all lower than those of the applicants. They take their stand basically on the judgment which I delivered in this Division on 1 November 1977 which is one of the series E of judgments to which I have referred, reported at 992. At 998, I followed the earlier judgment of MCEWAN J (at 977) and held that the word "tender" in the relevant by-law embodies the well-known and common criterion of a money offer and that the criterion for selecting amongst competing applicants the one who is to be given the authority is solely a monetary one. It is contended that, because the City Council did not apply this F criterion, the respondents were awarded these stands irregularly and in conflict with the clear provisions of the relevant by-law. I do not propose to reproduce the terms of the by-law or the enabling legislation as this is fully dealt with by MCEWAN J in his judgment. (See particularly 979 - 980.)

G The main answering affidavit of the City Council is that of the deputy city secretary who says that he is duly authorised to make this affidavit in opposition to the application on behalf of the City Council. Paras 5, 6, 7 and 8 of his affidavit raise a preliminary point and I quote these paragraphs in full:

"5.

The power to decide on the grant of the requisite written authorities H has been lawfully delegated to the management committee of the first respondent in terms of s 58 of the Local Government (Administration and Elections) Ordinance 40 of 1960, and as such it is the management committee and not the first respondent which has exercised such powers.

6.

It is submitted and I am advised that having regard to the true nature and the provision of review proceedings in terms of the relevant Uniform Rules of Court, it is the management committee's decision that has to be reviewed and it is that body or its chairman that should have been cited as the respondent in this matter. The City Council of Johannesburg need only be joined in so far as its licensing department is an interested party or it has an 'interest' sufficient to justify its having notice of the application. The first respondent

1979 (4) SA p896

Coetzee J

and its officials cannot, it is submitted, depose to the considerations and factors that weighed with the management committee in the decisions which are...